The Schrug

“Carrying condoms in DC could get you arrested.”

That warning was posted on Facebook by a magazine targeted to teenage girls. (No, I don’t read the magazine myself. It’s published by a client of mine.) I read that post a couple times and said to myself, “that can’t be right.” And in fact, it’s not. It seems I’d stumbled onto an urban legend in the making.

The Facebook post linked to an article at Feministing.com titled “Carrying condoms could get you arrested.” The article begins:

Jaclyn Friedman has a good post up at Amplify about an initiative in D.C. that could literally get you arrested for prostitution charges if you’re caught carrying three or more condoms with you. In short, D.C. police are using their "Prostitution Free Zone" law to go as far as arresting women for carrying condoms in their purse. This is happening in New and San Francisco as well.

Follow the link to Jaclyn Friedman’s article and you’ll read that

in some areas of D.C., carrying three or more condoms is grounds for arrest on prostitution charges

Follow this link in turn and you’ll come to a January 7 article by Alex DiBranco at Change.org titled “Don’t Carry Condoms in D.C. – You Could Be Charged Charged With Prostitution.” DiBranco opens with:

Think you might get lucky tonight? Well, if you’re in D.C., don’t bring more than two condoms in your purse, or you could be arrested as a prostitute. In D.C., police can declare "Prostitution Free Zones" where officers can pick up (I mean, arrest) anyone suspected of sex work. And they’ve been accused of using carrying three or more condoms as proof of intent to sell sex — rather than intent to spend the weekend getting jiggy with a guy.

Finally, we’ve arrived at some primary source material: A 2008 report written by the Alliance for a Safe & Diverse DC and published by a nonprofit called Different Avenues, as well as the official definition of a Prostitution Free Zone from the DC Metropolitan Police Department.

One teensy-weensy problem: Neither the report nor the police regulations nor anything else outside the blogosphere state that carrying condoms – whether three or three hundred — can get you arrested.

Alex DiBranco knows this now. Five days after posting the “Don’t Carry Condoms” article, she wrote a follow-up, titled “D.C. Police Confirm Condom Policy that Endangers Public Health.” She noted that DCist.com, another blog, had done some fact-checking. DiBranco wrote:

DCist contacted the Metropolitan Police Department for comment on its policy after they reported on an article I wrote last week about the use of condoms as evidence in "Prostitution Free Zones." According to DCist, MPD spokesperson Gwendolyn Crump confirms that condoms can be used as a factor leading "an officer to suspect (reasonable suspicion) that a person is engaged in prostitution," but stresses that possession of rubbers alone isn’t sufficient cause for an order to disperse or arrest. [emphasis added]

Here is the full comment from the police spokesperson, as posted by DCist:

Although the possession of multiple condoms may be a factor that leads an officer to suspect (reasonable suspicion) that a person is engaged in prostitution, it is not enough to establish probable cause for any crime. Depending on the circumstances, factors such as this may justify an investigative stop – but not an arrest.

If an individual is congregating with at least one other person in a Prostitution Free Zone (PFZ), which is already by nature a high prostitution area, late at night with no apparent destination, and in possession of multiple condoms, that would be sufficient to order the individual to disperse. Police cannot just order individuals to leave a PFZ without a reasonable suspicion that they are engaged in prostitution or prostitution-related activities.

The criminal offense associated with a PFZ involves the failure to disperse after an officer issues such an order to two or more persons congregating on public space within the PFZ for the purpose of engaging in prostitution or prostitution-related activities. The indicators for determining whether a group is congregating for prostitution-related activities are below, and the full DC Code section is attached.

Essentially, if police cannot arrest someone for having two or more condoms outside a PFZ, police cannot arrest them for it within a PFZ. Community members often refer to PFZs as an anti-loitering statute. To some extent that is accurate, but the only loitering that is prohibited is that related to prostitution.

One may approve or disapprove of DC’s actual tactics to thwart prostitution, but boiling down their policy to “carrying condoms in DC will get you arrested” is preposterously misleading. Advocates do their causes no favors by repeating errant claims, and bloggers should take the time to drill down to the original source material before rebroadcasting inflammatory reports.

As of this writing (January 13 at 11:15 AM EST), the main text of DiBranco’s original “Don’t Carry Condoms” article has not been updated to reflect the DCist’s post of the MPD clarification. I’m going to tell her to edit the original article. Even if she does, though, it’s probably too late to prevent this urban legend from making the rounds. Look for it someday at snopes.com.

Update: Alex DiBranco has since thanked me for my comment and an update has been posted on the January 7 article. The misleading headline and statements in the body regarding condom counts and arrests remain.

N.B. It occurred to me too late to check to see whether anyone else had already exposed this myth. After Googling carrying condoms arrest I found that CityPaper scooped me by a couple of hours. Drat!