INSTRUMENTS OF CRIME: Condoms (and cellphones) criminalized in Allegheny County (Pennsylvania) prostitution cases

Megan Guza Samantha Sabatini likely would have avoided time in Allegheny County Jail if she didn’t have 11 condoms with her when she was busted for prostitution in 2012.

The prostitution charge against Sabatini, then 39, was a summary offense. Had it been the only charge, the undercover detective who arrested Sabatini in Pittsburgh probably would have let the Buffalo, N.Y., native go the same night and mailed her a summons to appear in court.

But the detective also filed a first-degree misdemeanor charge of possessing an instrument of crime in connection with the condoms. Sabatini spent several days in jail before negotiating a deal in which she pleaded guilty to the prostitution charge in exchange for getting the more serious, instrument-of-crime charge dropped.

“When she told me she had been legally charged with a crime for possessing condoms, I was dumbfounded and a bit emotional,” said Victoria Michaels, a lifelong friend who drove from Fort Lauderdale, Fla., to Pittsburgh to pick up Sabatini, who did not respond to interview requests.

A Tribune-Review analysis shows police charged people with both prostitution and possessing an instrument of crime in 100 cases last year in Allegheny County. In 15 of the cases, condoms were an alleged instrument of crime. In 14 others, police seized condoms as evidence.

In nearly all of the remaining cases, people faced instrument-of-crime charges for allegedly using cellphones to set up meetings with johns seeking sex for money. Many of the encounters were arranged through Backpage.com, a classified advertising website known for running ads promoting prostitution and escort services. The federal government shut down the website and brought charges against its founders last month.

Authorities say filing condom-related charges or using condoms as evidence gives police and judges more leverage to win guilty pleas in prostitution cases and allows authorities to take sex workers into custody.

“That can be helpful to investigators in these cases because many of these individuals in this industry are from out of the area,” said Allegheny County Police Superintendent Coleman McDonough. “If we simply release them and proceed by summons, we’ll never see them again.”

A first- or second-offense prostitution charge is graded as a third-degree misdemeanor, which McDonough said would prompt arresting officers to let the suspect go and mail the suspect a summons to appear in court.

By filing an additional instrument-of-crime charge, a suspect is immediately processed and their fingerprints and photos are stored in a law-enforcement database. It ensures police will be aware of their prior criminal history if they commit a crime elsewhere. Some defense attorneys say such charges are a reach.

“This is a very broad crime and is often loosely interpreted by the police when they are charging individuals,” said Casey White, a North Shore-based defense attorney who spent two years as a prosecutor in the Allegheny County District Attorney’s Office. “If using a condom is ‘possessing instruments of crime,’ I guess wearing eyeglasses during the commission of any crime could be considered ‘possessing instruments of crime?’ You could really use your imagination.”

In some instances, undercover officers ask for condoms.

In an October 2016 case that went to court last year, an Allegheny County detective used a Bridgeville woman’s Backpage advertisement to set up a half-hour meeting at a cost of $150. The woman asked if she could perform a “cop check” on the detective. The technique, used by sex workers to determine whether their would-be clients are in law enforcement, consists of a prostitute asking her john to touch her, believing — often erroneously — that a law enforcement officer would balk at the request.

In the criminal complaint against the Bridgeville woman, the detective wrote that he then “asked (her) if she had any condoms. (She) grabbed a box of condoms from her bag and asked me to pick one.” The detective said he seized the box as evidence, and condoms are explicitly listed in the probable cause charging documents.

In another complaint, an Allegheny County police detective wrote that he “disrobed down to (his) boxer shorts and confirmed the $120 appointment price … She disrobed down to her bra and panties. I asked if she had any condoms. (She) replied ‘yes’ then removed a condom from the nightstand and placed it on the dresser.”

The detective wrote that he later seized the box of condoms and charged the woman with possession of an instrument of crime.

In the 2012 case against Sabatini, the undercover detective responded to an online advertisement offering body rubs, according to police paperwork. The detective reported that while he alluded to oral sex, Sabatini did not. After arresting her for prostitution, officers found 11 condoms in her suitcase.

Safe and protected

Several cities and states have taken steps to block authorities from filing condom-related charges or using condoms as evidence against prostitutes. Advocates argue that the practice discourages sex workers from using condoms and endangers communities by making it more likely that sexually transmitted diseases will spread.

New York City banned seizing condoms as evidence in 2014 in response to an uproar from civil rights groups that said the practice undermined efforts to combat AIDS and other sexually transmitted infections. Later that year, California Gov. Jerry Brown signed the state’s “condoms as evidence” bill, which requires district attorneys to get court permission to use the possession of more than one condom as evidence in a prostitution case. Proponents called it a de facto removal of condoms as evidence by making it too burdensome for prosecutors to pursue.

The changes came several years after Human Rights Watch released a report on police in four major cities — Washington, New York, Los Angeles and San Francisco — that used condoms as evidence when stopping a suspected sex worker. Women interviewed for the study said they feared carrying more than one or two condoms would result in harassment from police.

An advocate for the LGBT community, Michaels said she does not condone escorting or prostitution but understands that some feel forced into sex work.

“I do have compassion in my heart for anyone who has to resort to prostitution as a means to simply survive in life. … Transgenders, particularly those who are not totally passable as the gender they transition to, find it extremely difficult to gain respectful employment,” Michaels said. “Most employers toss their job applications directly into the paper shredder or say they aren’t hiring.”

McDonough, whose police department made a majority of the arrests that involved women and men being charged for having condoms or cellphones, said prostitution stings are necessary to combat larger issues, such as human trafficking.

McDonough stressed that following arrests for prostitution, one of the first steps officers take is to offer resources such as connecting them with victim advocates. He said not many individuals accept those offers.

“Everybody wants us to arrest human traffickers, but you have to start somewhere,” McDonough said, likening it to narcotics enforcement. “Everyone wants Pablo Escobar to go to prison, but in order to get to him, you have to go after the guys on the street.”

Sabatini’s friend Michaels doesn’t see it that way.”They need to build a case against somebody, but it discourages other girls (from carrying condoms),” she said. “In my opinion, you would think if someone has to resort to that kind of work, you would want them to have something to keep them safe and protect others, too.”

Megan Guza is a Tribune-Review staff writer. Reach her at 412-380-8519, mguza@tribweb.com or via Twitter @meganguzaTrib.

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