What Happens When Condoms Are Criminal?
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Renato Barucco
Transgender Family Program Manager, Community Healthcare Network
What comes into your mind when you think about condoms? Protection and safety? Sex and latex? Unwanted pregnancies and sexually transmitted infections? Boredom? Something that most likely will not come into your mind is criminal intent. Nevertheless, in some contexts, condoms can be considered vehicles of illegal activities. They can be confiscated and prohibited.
Sex in correctional facilities is illegal, so condoms are labeled as contraband in most prisons and jails. Administrators fear negative consequences, including increases in sex encounters, drug trafficking and rape. These concerns are not supported by existing literature. What we know for a fact is that sexual assaults are largely prevalent in prisons. The Bureau of Justice reports that nearly one in 10 prisoners is raped while incarcerated, either by other inmates or by staff members. Sex slavery and consensual encounters are known realities. A powerful and disturbing account of these dynamics is narrated by T.J. Parsell in Fish: A Memoir of a Boy in a Man's Prison. The Center of Disease Control reports that more than 2 million people are incarcerated in U.S. jails, and that according to the most recent data, 20,449 state prisoners and 1,538 federal prisoners are living with HIV or AIDS. One in seven persons living with HIV passes through a correctional facility. The prevalence of HIV, other sexually transmitted infections, tuberculosis and viral hepatitis, in conjunction with the ban on condoms, sets the stage for a public health disaster. Meanwhile, findings from jail systems that experimented with condom distribution programs suggest that prevention initiatives do not increase sex and do not affect custody operations, and that they enhance prisoners' awareness about safer sex. So why are condoms still illegal?
Outside prisons, on our streets, there are other laws that interfere with condom use. Police can seize condoms as evidence of prostitution and to support arrest. Sex workers in New York, D.C., Los Angeles and San Francisco, primarily transgender sex workers, are sadly very familiar with this issue. Many women are afraid to carry condoms, others create secret compartments in their purses, and some decide to work without them. Says D., a transgender woman collaborating with prevention programs in New York City:
Cops harass me often because they perceive me as being transgender. One night I was on Jackson Avenue in Queens volunteering for a LGBT organization. A cop wanted to arrest me because I was carrying safer sex packages. I explained him that I was doing street outreach. He wouldn't believe me. Thankfully my colleagues were not too far. It just doesn't make any sense: the Department of Health spends money and energy to distribute condoms and the police confiscate them.
Part of the issue is that many people could not care less about the health and safety of prisoners and prostitutes. They see incarcerated persons as a threat to society. They think that women and men who are on the streets selling their bodies should simply deal with the risks associated with their profession.
This line of thinking is not only cruel but intellectually faulty. Some 95 percent of prisoners will eventually be released, go back to their communities and date your sisters, colleagues and best friends. And sex workers are not having sex by themselves; they get paid by your sons and husbands and your kids' teachers.
If human rights are not your concern, the well-being of the community should be. Initiatives that effectively address prevention of HIV and other infections in populations at high risk for HIV or in contexts of high HIV prevalence contribute to the nationwide response to the epidemic.
For this reason it is essential to raise awareness of ongoing issues relating to access to prevention tools. After all, cops, laws and condoms share, or should share, one important goal: our protection.
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From Tuesday's Independent (UK)
Charlotte Philby
An HIV-positive inmate who was having unprotected sex with another prisoner was refused condoms by jail staff in a potentially harmful breach of guidelines, the Chief Inspector of Prisons has revealed.
In another incident, managers of one jail claimed that they did not need to provide their prisoners with protection because none of them was homosexual.
The revelations by Nick Hardwick to the first Commission into Sex in Prisons have thrown light on the rarely reported issue of intercourse behind bars and sparked calls for more action to prevent non-consensual sex between inmates.
Officially, sexual relationships between prisoners – as well as between staff and inmates – are prohibited. But prisoners should have free access to protection and condoms must be supplied if prisoners are thought to be at risk of contracting HIV or another STI.
Giving evidence to the commission, Mr Hardwick warned that the “Prison Service had not adopted a uniform approach as to how to achieve this requirement and practice varied between prisons”. He added that “one prison claimed that access to barrier protection was unnecessary because none of its prisoners were homosexual”. While at another prison “one homosexual and HIV-positive prisoner who was having unprotected sex requested and was refused condoms”.
While Mr Hardwick did not name either of the prisons involved and declined to supply further information to The Independent, his testimony last November raises concerns that vulnerable convicts could be contracting sexually transmitted diseases because of failures within the prison system. Campaigners claim that a systemic culture of denial about the extent of sexual relations – both consensual and coercive – behind bars is so damaging that prisoners have died as a result.
Between 2007 and 2012, six inmates died in sexually related incidents in the UK prison system.
The commission heard that in 2008, a prisoner referred to as Mr E was murdered by his cellmate Mr F who had allegedly sexually assaulted two prisoners on previous occasions. Mr F had been convicted of the rape of an adult male two years before Mr E’s death.
There were already concerns that Mr F was “grooming” other prisoners. He had been the subject of three Violence Reduction Strategy documents, due to his inappropriate behaviour to other prisoners. Given the security information available in Mr F’s files, he should have been considered a risk to other prisoners and not have been sharing a cell.
Giving evidence to the commission, which was launched by the Howard League for Penal Reform last year, Nigel Newcomen, Prison and Probation Ombudsman (PPO), spoke of another incident in which a woman prisoner in a relationship with another female inmate took her own life.
He said: “Most staff who were aware of the relationship commented that it was not a positive relationship.”
Despite the prison having a policy that intimate relationships between prisoners were not condoned and should be brought to the attention of wing managers, key staff were not made aware of this relationship. Mr Newcomen said that this “led to decisions being made which did not access the risks involved”.
In several cases, Mr Newcomen found that “general themes emerged… regarding poor record keeping and information sharing which impacted on the safety of the individual”.
Former prisoners interviewed by The Independent claimed sex is rife in some jails, with prisoners regularly lured into sexual relations with staff on the promise of a long-term relationship. One former prisoner, Rebecca Hilton, who had gender reassignment while serving a life sentence between the male and female estate, said that sexual abuse and rape between prisoners is a routine occurrence particularly in men’s prisons and is often overlooked by staff.
Chris Sheffield, chairman of the Commission into Sex in Prison, said: “We know very little about sex in prison. No one knows how many people are sexually assaulted in prison every year, or whether some prisoners are having underage sex, perhaps putting their health or their partner’s health at risk.”
In an HM Inspectorate of Prisons survey, 1 per cent of prisoners said that they were being sexually abused, rising to between 2 and 3 per cent among prisoners who considered themselves to be disabled. In an academic study of 200 ex-prisoners, 91 per cent said they had been coerced sexually. Yet only a tiny number of complaints about sexual issues are officially logged. The PPO logged just 108 such complaints between 2007 and 2012.
Solicitor Nick Wells, who has represented several prisoners who claim to have been victims of sexual abuse, said that the internal process of making a complaint is so complicated and time-consuming that often prisoners either give up or are released before their case makes it to the outside.
“Even for a solicitor, when you have some sort of stick to wave at them it is hard enough to get a prison to do what it is supposed to do”.Sex in prison: rules
Prisons are under no legal obligation to distribute condoms or barrier protection to inmates. Policy is discretionary and varies from prison to prison, though most do offer some kind of free condom service. But under Prison Service Order 3845, “condoms may be prescribed if in the clinical judgment of the doctor there is a risk of HIV or STD transmission”.
HM Prison Service says consensual sex in jail is illegal because cells are “public places”, but relationships between prisoners tend to be dealt with on a discretionary basis.
The Prison Service Instruction 47/2011 regarding prisoner-discipline procedures states: “There is no rule specifically prohibiting sexual acts between prisoners, but if they are observed by someone who finds (or could potentially find) their behaviour offensive, a charge… may be appropriate, particularly if the act occurred in a public or semi-public place within the establishment, or if the prisoners were “caught in the act” during a cell search. But if two prisoners sharing a cell are in a relationship and engage in sexual activity during the night when they have a reasonable expectation of privacy, a disciplinary charge may not be appropriate.”
For a member of staff to have a relationship with a prisoner is a disciplinary and sackable offence. The Prison Service Order 1215 overseeing professional standards states: “Staff must exercise particular care to ensure that their dealings with prisoners, former prisoners and their friends and relations are not open to abuse, misrepresentation or exploitation on either side.”
