The Albatross in Their Bag: The Ethical Conundrum of Condoms as Evidence

A good south wind sprung up behind;

The albatross did follow,

And every day, for food or play,

Came to the mariners' hollo!

In mist or cloud, on mast or shroud,

It perched for vespers nine;

Whiles all the night, through fog-smoke white,

Glimmered the white moon-shine."

"God save thee, ancient mariner!

From the fiends, that plague thee thus!

Why look’st thou so?" "With my crossbow

...I shot the albatross.

"I fear thee, ancient mariner!

I fear thy skinny hand!

And thou art long, and lank, and brown,

As is the ribbed sea-sand.

I fear thee and thy glittering eye,

And thy skinny hand, so brown."

"Fear not, fear not, thou wedding-guest!

This body dropped not down.

Alone, alone, all, all alone,

Alone on a wide, wide sea!

And never a saint took pity on

My soul in agony

Samuel Taylor Coleridge


This piece asks a series of questions about how society balances human rights with culturally accepted morality. It seeks to engage a discussion about those societies dominated by a traditional culture, a religion, or several religions, that view sex work as morally wrong but that must, in an age devoted to the universality of human rights, seek to establish legal institutions that recognize the freedom from a state establishment that values ideological paradigms over the human rights paradigm. Though it cannot provide an answer for which paradigm should govern, it does posit that there is, in fact, a right answer; though it does accept that the right answer may differ between cultures. It further suggests that how society determines which answer is correct, the ethical structure used in the debate, is more telling about the validity of the answer then the answer it reaches.


It is difficult for most people to comprehend a conflict between Human Rights and their moral compass; however, in law, that conflict has played out continuously with the use of condoms by sex workers. The condoms are simultaneously the symbol of a moral wrong and a tool of the right to health care. The Right to Health and the Right to Work, whether framed as a negative or positive right, ought to protect everyone equally; however, the use of condoms as evidence of the illegal sell of sexual services (Prostitution) has spanned from San Francisco to New York in the United States, and from Israel to China on the world stage. Some of the policies using condoms as evidence have officially ended but many of them continue, either in official policy or through extrajudicial practices. In either case, the practice is highly suspect because the populations affected most by the threat of these tactics are the same populations that every state’s domestic Department of Health must target for STD/STI prevention programs. In addition to directly conflicting with state public health initiatives, such as the distribution of condoms to at risk populations, the use of condom possession as evidence to prove the violation of a domestic Prostitution laws dangerously undermines efforts to protect economic interests, like family planning in low income areas, that the use of condoms helps to manage.

My personal experience with the conflict between condoms as the symbol of a moral wrong and as a tool of health care was in South Africa. At 25.32%, South Africa has the highest prevalence rates of HIV for women in the world, but in the “at risk” population of people who engage in the sale of sexual services (sex workers), the prevalence rate jumps to 59.6%.[1] The at risk populations have been trapped in the political doldrums on the wrong side of a health storm and the device promising escape has been hung around their necks, dragging them down “with [a] heavy thump, a lifeless lump, [and t]hey [have] dropped down one by one.”(The Rime of the Ancient Mariner)


Sex work and the actions associated with it, such as procuring a sex worker and owning a brothel, are criminalized in South Africa’s Prostitution law, the Sexual Offenses Act 23 of 1957 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SOA).[2] However, none of the offenses listed in the SOA or the relevant evidence described include references to condoms or condom possession as an element of the offense. As a result, condoms are not evidence of Prostitution in accordance with South African law. However, the state must meet a relatively high evidentiary burden to successfully prosecute a sex worker of Prostitution or related offenses, and this burden has resulted in the use of extensive, often invasive, operations, which compromise the rights of the suspect.

Police operations intended to compromise the spaces where people share the most intimate physical contact are inherently invasive, and the nature of such an investigation often results in evidence, whether in support or opposition to the commission of an offence, that is far more specific to the elements of Prostitution than condom use. Because additional evidence renders the inclusion of condoms as evidence unnecessary and confiscated condoms tend not to support the prosecution of a sex workers for violating Prostitution laws, the initial purpose for which condoms are confiscated is either lost (in cases when they are intended as evidence) or suspect (when it is done as a retributive or punitive tactic against sex workers).


Possession of condoms is not a crime in South Africa, and though Chapter 2, Article 20 of the Criminal Procedure Act provides for the seizure of objects used for the commission of a crime nothing provides grounds upon which to conclude that possession of condoms is probative of the intent to exchange sex for money. Therefore, the prohibition of Chapter 24, Article 210 against irrelevant or immaterial evidence, “which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings” should be determinative. However, it is clear from a survey conducted by the Women’s Legal Centre of Cape Town and the Sex Worker Education and Advocacy Taskforce (SWEAT) in 2013 (“the Survey”) that South African Police Service (SAPS) officers are using condoms as probable cause to arrest people for Prostitution or Loitering for the Purposes of Prostitution. Even more disturbingly, 17% of respondents stated that police threw their condoms away, which shows that police also confiscate and/or destroy condoms from people they believe to be involved in sex work even when no arrest is made; a practice for which there can be no justification whatsoever. For instance, one sex worker reported harassment by police when recalling an encounter in 2009. “I was strolling on Milnerton beach, [when] cops asked me if I had any condoms. I replied yes and he made me give them to him and said I wasn’t permitted to carry condoms.”[3]

Confiscation or destruction of personal property by police is not permitted anywhere in the South African rules of evidence laid out by the Criminal Procedure Act. Forfeiture of confiscated items may result from enforcement of Article 35, subsection 2 but only when those items are “forged or counterfeit or which cannot lawfully be possessed by any person.” Otherwise, Article 30(a) demands that “the interests of the persons concerned” with the item to be confiscated or destroyed be given “due regard,” and Article 31, subsection 1(a) provides that such items “be returned to the person from whom it was seized, if such person may lawfully possess [it].”


How condoms are portrayed internationally, and how contraception is portrayed in customary societies play a big role in how condom use is seen by contemporary cultures. Increasing condom use among high-risk populations is one of the U.N. Millennium Development Goals. So, why is it that SAPS officers find the confiscation and/or destruction of condoms to be a valid means to perpetuate a legitimate government interest? What is it about condoms that officers find so inherently tied to crime that they would ignore the relevant statutory law? In many cultures these portrayals have not be positive, and in a few, condoms have even been demonized.

Not that long ago, the Catholic Church told adherents that reliance on condoms resulted in a false sense of security, even telling people – in states where AIDS has reached epidemic levels – that condoms are permeable to the AIDS virus. These misinformation campaigns had harmful effects on the streets, and the Catholic Church was not the only organization combating condoms. For example, Nahdlatul Ulama (NU), the largest Muslim organization in Indonesia, and other Indonesian Muslim groups helped to keep condoms out of the public and from playing any part in the Indonesian Ministry of Health’s policies.

In addition to the large and influential groups, both religious and political, that have condemned condom use, there are also cultural barriers.

One example is the barriers of social power. Increasing the number of followers in a cultural group augments social power; since procreation is the most reliable way to ensure adherents and condoms prevent children there are many cultural groups who are reluctant to use them. "Where fertility is seen as proving the virility of men, or as demonstrating the value of women as wives…these pressures usually create barriers to family planning and hence condom acceptance.”[4]

Another example is the social stigma associated with the purchase and use of condoms. In some cultures, women avoid using condoms because they associate them with promiscuity. Conversely, these cultures often find that men who use condoms meet with resistance from women who find the suggestion offensive. "Men use [condoms] to prevent disease when they have sex with prostitutes. If a lover were to propose using a condom, I would be angry! It would mean that he didn't trust me.”[5]

In patriarchal cultures, the use of condoms also involves gender equality issues. When women retain subordinate gender roles, it can leave them without a viable means of protection. This is also pertinent when looking at the financial disparity between men and women, which often places women in positions where their access to rights paradigms are relational. i.e., women must form sexual relations with men to access legal rights, to retain financial support, and support children.[6]

The continuity with which condom use has been belittled may be why, even with governments and international organizations like the World Health Organization supporting condom use, SAPS and other law enforcement agencies continue to confiscate and/or destroy condoms without care to the ethical considerations.

Undue Burden

According to the Survey, only 32% of prostitution‐related cases result in convictions; however, 60% of the cases reported to have admitted condoms as evidence in criminal court resulted in convictions. This suggests that despite lacking any probative value the presentation of condoms in trial gives undue advantage in favour of the State and discriminates against defendants in said cases by inflaming the jury. "Relevancy is based on a blend of logic and experience lying outside the law."[7] We can show that condoms have no probative value logically, but it also helps that courts have explicitly said so. In the U.S., Judge Richard M. Weinberg of Manhattan Criminal Court responded to a filing of condoms as evidence in the prosecution of a sex worker by saying, “I find no probative value at all in finding a condom. In the age of AIDS and H.I.V., if people are sexually active at a certain age, and they are not walking around with condoms, they are fools. I don’t need anything else on condoms.”

Prioritizing Health Over Evidence

Elsewhere in the world, policy makers have recognized the importance of prioritizing public health over the use of indeterminate evidence and have taken steps to stop the use of condoms as evidence. The city of San Francisco passed a resolution in 1994, which was followed by a request by the District Attorney that the police to stop confiscating condoms and prosecutors stop using them as evidence. In Sri Lanka, civil society advocacy persuaded the Department of Police to refrain from arresting sex workers for carrying condoms in 2000. More recently, the People’s Republic of China enacted policy that discouraged condoms as evidence in prostitution cases in 2007 when the National Centre for AIDS Control and Prevention Secretary announced that “police departments at all levels will no longer take condoms as the proof of illegal sex activities in entertainment venues.” Unfortunately, the release of an action plan in March of 2012 that increased condom availability in public places was necessary to reiterate the policy and address the ignorance of local officials’ use condoms as evidence. The plan uses annual performance reviews to evaluate an AIDS awareness criterion and the promotion of public education.

Yet in South Africa, boxes of condoms have been introduced in court as evidence that a residence is used as a brothel.[8] This practice, and that of confiscating condoms, has become systemic and is a common occurrence across the country. As the Survey shows, it discourages sex workers from carrying and using condoms, leads to high-risk sexual behaviour amongst a population already recognized as particularly vulnerability and with a high estimated prevalence of HIV infection.

The ethical structures used by society to balance human rights with culturally accepted morality is a means in which to judge the integrity of its people. In order to consider a decision on the status of condom’s ethically sound, the people must engage in an honest discussion about why sex work is illegal and why the illegality of sex work should affect the status of a tool to aid in health care. Unfortunately, many societies have blindly persisted with a moral prerogative that condemns condoms, and thus condemns at risk members of their society to an inhumane standard of living. While decriminalisation of sex work is the solution supported by those organizations working in the sector, it is not the only one that would balance human rights and morality more evenly than the status quo. The common era of the United Nations has been devoted to the universality of human rights, which has included the recognition of religious freedom and freedom from the establishment of a state sponsored religious paradigm. The Rights to Health and Work are more recent trends, but they are capable of working with the religious freedom paradigm or independently. The trend does not provide an answer for which paradigm should govern, and it may not posit that there is, necessarily, an absolute right answer; however, it does suggest that there is a right answer within each cultural or social group that can provide for the main points of all paradigms. In fact, in this particular instant, the means used to reach the answer may be more telling about the validity of the answer then the answer it reaches.


[1]     Stefan Baral, MD; Chris Beyrer, MD; Kathryn Muessig, PhD; Tonia Poteat, MPH; Andrea L Wirtz, MHS; Michele R Decker, ScD; Susan G Sherman, PhD; Deanna Kerrigan, PhD, Burden of HIV among female sex workers in low-income and middle-income countries: a systematic review and meta-analysis, 2012 Lancet Infect Dis. 12: 538–49, 543 (2012).

[2]     See Sexual Offences Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007.Sexual Offenses Act of 1957,(Juta& Co. Ltd. 2010). Print.

[3]     Acacia Shields, Criminalizing Condoms, Open Society Foundations’ Sexual Health and Rights Project, 11 (2012). Available at:

[4]   Bledsoe, Caroline, The Politics of AIDS, Condoms, and Heterosexual Relations in Africa: Recent Evidence from the Local Print Media, “Births and Power: Social Change and the Politics of Reproduction,” Westview Press, 214 (1990)

[5]   Schoepf, Brooke Grundfest, Health, Gender Relations, and Poverty in the AIDS Era, “Courtyards, Markets, City Streets: Urban Women in Africa,” Westview Press, 153-68 (1996).

[6]   Hallie Ludsin, Relational Rights Masquerading as Individual Rights, 15 Duke J. Gender L. & Pol’y 195, 197 (2008).

[7]     Schreiner JA in R v Matthews and Another 1960 (1) SA 752 (A) at 758A-B

[8]     See State v Portia Gidane (Unpublished).

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Tags: Condoms, Human Rights, Morality, Right to Health, Right to Work, Sex Work


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