Global: Ten reasons why criminalisation of HIV exposure or transmission harms women

A new pamphlet released to coincide with World AIDS Day highlights why criminalisation is bad for women and girls, despite policymakers believing they are enacting new HIV-specific laws in order to protect them.

In addition to criminalizing the transmission of HIV, these laws sometimes call for mandatory HIV testing of pregnant women, as well as for non-consensual partner disclosure by healthcare providers; further exacerbating the impact of such legislation on women. The call to apply criminal law to HIV exposure and transmission is often driven by a well-intentioned wish to protect women, and to respond to serious concerns about the ongoing rapid spread of HIV in many countries, coupled with the perceived failure of existing HIV prevention efforts. While these concerns are legitimate and must be urgently addressed, closer analysis reveals that criminalization does not prevent new HIV transmissions or reduce women’s vulnerabilities to HIV. In fact, criminalization harms women, rather than assists them, while negatively impacting on both public health needs and human rights protections. Applying criminal law to HIV exposure is likely to heighten the risk of or transmission does nothing to violence and abuse women face; address the epidemic of gender-strengthen prevailing gendered based violence or the deep economic, inequalities in healthcare and family social, and political inequalities that settings; further promote fear and are at the root of women’s and girls’ stigma; increase women’s risks and disproportionate vulnerability to HIV.

It then details the ten reasons:

  1. Women will be deterred from accessing HIV prevention, treatment, and care services, including HIV testing
  2. Women are more likely to be blamed for HIV transmission
  3. Women will be at greater risk of HIV-related violence and abuse
  4. Criminalisation of HIV exposure or transmission does not protect women from coercion or violence
  5. Women’s rights to make informed sexual and reproductive choices will be further compromised
  6. Women are more likely to be prosecuted
  7. Some women might be prosecuted for mother-to-child transmission
  8. Women will be more vulnerable to HIV transmission
  9. The most ‘vulnerable and marginalized’ women will be most affected
  10. Human rights responses to HIV are most effective.

10 Reasons Why Criminalization of HIV Exposure or Transmission Harms Women was drafted by Dr. Johanna Kehler of the AIDS Legal Network, Michaela Clayton of the AIDS & Rights Alliance for Southern Africa, and Tyler Crone of the ATHENA Network.

You can download the pdf of the pamphlet here.

To endorse the document or for more information, please contact:

ATHENA Network: www.athenanetwork.org

AIDS Legal Network: www.aln.org.za

ARASA: www.arasa.info

US: Arkansas man accused of HIV exposure not HIV-positive despite confession

A 41 year-old man in El Dorado, Arkansas, appears to have admitted under police questioning that he was HIV-positive after being arrrested in September for allegedly having unprotected without disclosing his HIV status.

However, a brief report from the police log of the El Dorado News-Times notes that the man was, in fact, HIV-negative, something he’d maintained during his arrest.

One can only wonder what went on during his time being questioned by police that could have made this man confess to something that wasn’t true, and why he was arrested in the first place.

Charges will not be filed against an El Dorado man who was arrested on Sept. 17 for knowingly/willfully exposing another person to HIV. Police said an investigation determined that [name of accused] 41, does not have HIV. According to an affidavit for warrant of arrest, [he] initially told officers he was not HIV-infected, but upon further questioning, he said he had the virus. Police said testing and a review of [his] medical records led to the charge being dropped.

Canada: Newspaper editors charged over photo of Aziga complainant

The publisher and two editors of The Hamilton Spectator were charged yesterday with breaching a publication ban by publishing the photo of one of the complainants in their coverage of the murder trial of Johnson Aziga.

According to a report in today’s National Post, publisher, Dana Robbins, editor-in-chief, David Estok, and managing editor, Jim Poling, along with The Hamilton Spectator “as a corporate entity” have been charged on two counts of breaching a publication ban for publishing, at some point during coverage of the trial

a picture taken by a long-time staff photographer with a caption that included the words: “A woman, on right, who was infected by Aziga.”

Africa: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

I received an email last week from Miriam Mannak, a freelance writer based in Cape Town, South Africa who keeps on blog on AIDS in Africa. She recently contributed this excellent piece on the spectre of criminalisation on her continent to the Inter Press Service News Agency, whose mission is to give voices to the voiceless.

 

AFRICA: HIV Laws Do More Harm Than Good by Miriam Mannak (IPS)

CAPE TOWN, Jul 30 (IPS) – In Sierra Leone, a mother who transmits HIV to her child can be fined, jailed for up to seven years, or both. Human Rights Watch reports that in 2008, several men were arrested in Egypt simply for being HIV positive. New legislation is currently being discussed in Angola that could lead to a three to ten year jail sentence for those who knowingly pass on HIV.

The legislation is inspired by a September 2004 workshop organised by the influential reproductive health organisation Family Health International developed an “African Model Law” intended to protect those who are infected and exposed to HIV.

But various civil society organisations fear that these legislative measures will hurt more than help the fight against HIV/AIDS.

Discourages testing, delays treatment

“If being HIV positive is being regarded as a crime, people will be less likely to get themselves tested,” said Johanna Kehler, director of the Aids Legal Network (ALN) – a South African non-governmental organisation that aims to protect the human rights of people living with and affected by HIV/AIDS.

“This means that they are more likely to spread the disease unknowingly, and will not have access to antiretrovirals that may help to prolong their lives.”

Jennifer Gatsi Mallet – coordinator of the Namibian branch of the International Community of Women Living with HIV/AIDS (ICW), a global network run for and by HIV positive women – agrees with Kehler’s statements.

“The criminalisation of HIV will be yet another reason why people will stay away from testing facilities and clinics,” she said.

The International Planned Parenthood Federation, a global organisation that advocates sexual and reproductive health and rights, counts 58 countries around the world with laws in place to prosecute HIV transmission and 33 others that are considering passing such legislation. Of these, twenty are in Africa.

Women lose more

“Women will be the first ones in line to be prosecuted, as they are more likely to know their status compared to men, simply because they visit clinics more often, for instance during and after their pregnancy,” Kehler explained.

Gatsi Mallet added that in “many parts of Africa, clinics and men are like water in fire. While some accuse health facilities of being unfriendly to men because most of the health care workers are female, others consider visiting as unmanly, especially when it comes to HIV and other sexual related transmitted diseases,” she added.

“They therefore rather prefer to go to traditional healers, whom are in general more male orientated.”

Because women are more likely to discover they are HIV positive, their male partners often blame them for bringing the virus home – regardless of the fact that the infection may well have travelled the other way.

“Women across the world, including in Africa, experience difficulties negotiating safe sex,” Kehler said. “If a man does not want to use a condom, they often are left with no choice.”

Angela from Cape Town, who requested anonymity – contracted the virus a few years ago. “I never had sex with anyone else but my husband, but I suspected that he was sleeping around. I just knew. So sometimes I asked him to use a condom, but he always blatantly refused,” she explained.

“He said that a wife is supposed to trust her husband. When I went for prenatal care two years ago, I was told I was HIV-positive. After confronting my husband, he accused me of sleeping around and of infecting him. He threw me out of the house.”

In countries like Egypt, such an accusation could lead to prosecution. The same is true in Togo, where HIV-positive people are prohibited by law from having unprotected sex, regardless of whether they have disclosed their status to their partner.

“In case of prosecution, women are left in a terribly vulnerable position, as many do not have the resources to, for instance, prove that they were HIV negative before intercourse,” Kehler noted. “Neither can they prove if they did not do it deliberately.”

Laws against mother to child transmission (MTCT) should also be banned, the ALN argues.

An HIV-positive mother can pass the virus to her child during pregnancy, whilst giving birth, or through breast feeding. Of the 370,000 cases of MTCT each year, about 90 percent occur in Africa, according to UNAIDS.

In countries like Guinea, Guinea-Bissau, Mali and Niger, a mother can be criminally charged if she does not take steps to prevent HIV transmission to baby, including taking antiretrovirals during the pregnancy.

MTCT is almost entirely preventable, by taking antiretrovirals and giving birth in a sterile environment. Breast feeding poses certain risks: WHO studies indicate that a mother who is HIV positive risks passing the virus on to her child. But in certain situations – for example where a mother does not have access to clean water to mix formula and sterilise bottles, but is on antiretrovirals – exclusive breastfeeding is recommended.

Formula-fed babies in developing countries are six times more likely to die from diseases like diarrhoea and respiratory infections than breast-fed babies, according to WHO.

“The problem is that many African women do not have access to proper health care facilities and cannot afford formula,” Kehler said. “These are things governments should provide. If they fail, they should be the ones that are to be held accountable for MTCT.”

SIDEBAR: Who’s responsible for MTCT?Chantelle Heunis* from Overcome Heights – an informal settlement near Cape Town – was infected by her now ex-husband with the disease in 1999. At the time she was pregnant with her second daughter.

“I only found out after my baby was three months old, after I went for a check-up as she was ill due to lactose intolerance. The nurse offered to test me for HIV – which was not a routine procedure back in the days. The results came back positive.”

The next step was to test the baby. “It was dreadful, but thank god she was found HIV negative,” Heunis said. “She is ten years old now, and as healthy as can be.”

According to Heunis, it should not be allowed for women to be punished for MTCT. “I was lucky because I was in good hands, but many women do not have this privilege. They transmit the virus through unhygienic birthing practices, for instance, or because they do not have access to ARVs to prevent MTCT.”

She also rejects the notion that HIV positive women should not be allowed to have children. “It is within our rights to have children. Besides, if a mother is HIV positive, that does not mean the baby is also.”

* not her real name.

US: Pregnant woman whose sentenced was doubled ‘to protect unborn child’ wins appeal

The HIV-positive pregnant woman from Cameroon whose sentence was doubled to ‘protect her unborn child’ and which caused a furore in May, was yesterday resentenced to 114 days, or time served, for having a fake Social Security card and work permit.

The woman was freed on bail in June and won her expedited appeal in July.

According to the Bangor Daily News, the 28 year-old

wept Tuesday as U.S. District Judge John Woodcock imposed the sentence her defense attorney and a federal prosecutor had recommended jointly on May 14 at her original sentencing in federal court in Bangor. “I just want to say that a lot of people who have gone through a lot for me are here today,” she told the judge Tuesday. “I am grateful for their time and support. I want to say, God bless America.” […] Alexa Kolbi-Molinas, a staff attorney with the American Civil Liberties Union Foundation in New York City, attended the resentencing in Portland. She criticized Woodcock’s original sentence outside the courthouse. “It was inappropriate for our client to have received a long sentence solely because she was HIV-positive and pregnant,” said Kolbi-Molinas, a staff attorney with the ACLUF’s Reproductive Freedom Project. “So we’re very pleased with the result. “The widespread support in favor of a reversal of the sentence shows that we are no longer a society which incarcerates the sick and the poor because they are sick and poor,” she said.

The woman is due to give birth later this month.

New Zealand: ‘HIV predator’ case increases testing and stigma

Following the intense media reporting of the alleged ‘HIV predator’ case, the New Zealand AIDS Foundation reports that the case has increased stigma against people already living with HIV, and also increased the number of people coming forward for HIV tests.

The New Zealand Herald quotes NZAF’s national communications co-ordinator Dawn O’Connor.

“While people in New Zealand are aware of the need to get tested the media interest has created a stigma and discrimination against people living with HIV,” she said yesterday.

It then goes on to try and assess the number of HIV tests taken up since the man’s name and photo was released last month.

The NZAF would not say how many tests it had carried out, “out of respect for its clients and their right to confidentiality”, but confirmed a marked increase in demand for HIV testing and counselling compared with this time last year. […] HIV support group Body Positive said 25 to 30 people had now been tested. Craig Webster, a social worker for the agency, said calls continued to come in from all over the country, averaging five to 10 per day.

It’s a conundrum that challenges those who argue that criminal HIV exposure and transmission laws and media reports of prosecutions increase HIV-related stigma and, therefore, have a negative effect on testing.

From the research I’ve been reading and digesting recently, there really is no proof at all that criminal laws or media reports about prosecutions dissuade people at high risk of HIV from taking an HIV antibody test. Although in some cases they might actually persuade some people to test, and in others, may dissuade someone who is highly aware of their actions and the legal repercussions not to test, their aggregate effect on testing is probably neutral.

A colleague who studies the behaviour of people with, and at risk of, HIV in the UK said to me recently that claiming that criminal laws and prosecutions put people off from testing “ascribes too much cool calculation to people who are generally getting on with their lives, and not wanting to think much about HIV.” I think she’s right: there are plenty of reasons why people don’t test for HIV but for most people, worrying about being arrested doesn’t register on the radar at all. HIV is already so stigmatised that the additive effect of being criminalised once you know your HIV-positive status is unlikely to be a significant deterent. This suggests to me that the links made between stigma and testing are perhaps not quite as straightforward as some advocates argue.

However, there is no doubt that for people already diagnosed with HIV criminalisation palpably increases the stresses and fears of living with HIV – and adversely affects their decisions to disclose and take sexual risks – but that is not necessarily the same as putting people off testing.

If anyone knows of studies from outside of the US (I am aware of two: Burris et al, 2007 and Wise 2008) and the UK (summarised in Chalmers 2008) that measure the impact of criminalisation on HIV testing, please let me know!

UN Secretary-General, Ban Ki-moon: criminalising HIV transmission “reinforces stigma”

United Nations Secretary-General Mr. Ban Ki-moon has spoken out for the first time against the criminalisation of HIV transmission.

Speaking at the HIV/AIDS review during the 63rd United Nations General Assembly, held in New York on June 16th, Mr. Ban spoke out about laws and policies that criminalised people with, and at risk of, HIV. He ended his speech by stating:

In recent years, a growing number of countries have taken steps to criminalize HIV transmission.

In theory, this has been done to prevent the spread of infection. In practice, it has done the opposite – reducing the effectiveness of HIV prevention efforts by reinforcing the stigma.

Such measures send the message that people living with HIV are a danger to society. We must instead encourage tolerance, compassion and inclusion.

Today, the Global Network of People living with HIV (GNP+) joined Mr Ban’s call to end HIV-related stigma and discrimination and highlighted similar calls from UNAIDS Executive Director Michel Sidibé, who said, in his address to the Meeting of the Programme Coordinating Board, held in Geneva on June 23th that

punitive laws that discriminate against men who have sex with men, sex workers, injecting drug users, migrants and people living with HIV must be removed from the statute books, country by country.

I must say that I’m honoured and proud to be working with both organisations as a consultant to aid in their work towards these goals.

Canada: Hamilton woman pleads guilty to HIV exposure

A 28 year-old woman from the same Ontario town as Johnson Aziga yesterday pleaded guilty of one count of aggravated sexual assault for not disclosing her HIV status to a man she met for a one-night stand in 2007. She will be sentenced in August.

The case was reported today in The Toronto Star and highlights the real problems HIV-positive Canadians are facing due to the current oppressive, discriminatory – and ultimately harmful – legal obligation to disclose before sex. When the woman was arrested in March 2007, police held a press conference saying the woman posed “huge threat”. According to the CBC website on the day of the press conference:

Det. Joseph De Lottinville called [the woman] “a huge threat” to public safety, amid police fears that she deliberately slept [my italics] with a number of people without revealing that she had HIV, the virus that causes AIDS.

Police allege that [she] has known of her HIV status since March 2003, but didn’t follow the legal requirement that people with HIV disclose the condition to sexual partners.

Officers said [she] is believed to have frequented several bars in the Greater Toronto Area, specifically in Hamilton, Brantford and Toronto, particularly in its downtown Entertainment District.

More than 10 men who allegedly had sexual contact with her are being interviewed by police.

This is phrased slightly differently on CityNews.ca, published the same day:

The 26-year-old from Hamilton was arrested on Sunday and police are alerting the public of her case. They allege she deliberately withheld [my italics] her important health information in order to have sex with men she met in bars in and around the GTA.

Detectives say [the woman] frequented bars in Hamilton, Brantford and Toronto on a regular basis and had sex with men she met at those establishments. She was diagnosed with HIV four years ago.

[She] deliberately failed to tell [my italics] one Toronto man about her HIV-status, according to police, and allegedly did the same to other men in order to have sex with them, often unprotected. Authorities are urging anyone who’s had sex with her to seek medical attention immediately.

“From what we’ve learned, she will disclose it sometimes and she won’t disclose it on other times,” Det. Joseph De Lottenville said Thursday.

The use of ‘deliberate’ in these different ways is really interesting. The first allegation that she “deliberately slept with a number of people without revealing that she had HIV” suggests that she intended to infect these men. However the second allegations, that she “deliberately failed to tell” one man that she had a one-night stand with that she was HIV-positive, is purely about nondisclosure. The knee-jerk reaction of the police was to create the myth of a female ‘HIV predator’ when the reality was that she and another man agreed to have (or probably did not even discuss) unprotected sex, putting themselves equally at risk – she of infecting another to HIV, he of becoming infected with HIV. I assume the man had the capacity to protect himself. Did he really need to be specifically warned about the risks? Why, then, is he is not held responsible for putting himself at risk?

And so, even after police released the woman’s name and photo for their ‘fishing expedition’, and even after interviewing more than ten of her other past sexual partners, she was still only charged with one count of aggravated sexual assault for nondisclosure. How then was this woman “a huge threat”? Aren’t the ten or more men who slept with her without using condoms who will have gone on to sleep with others, much more of a threat?

Canada: Prosecutions having negative impact on disclosure; Edwin Cameron speaks out

In my news story for aidsmap earlier this week, I wrote:

Over the past week, the global movement against criminalisation of HIV transmission received its biggest boost since the International AIDS Conference in Mexico last July. In rallies and meetings in Australia, Canada and Sweden leading judges, lawyers and politicians joined with HIV-positive advocates and civil society organisations to condemn the criminal justice system’s current approach to HIV non-disclosure, exposure and transmission.

I’ve already posted more detailed information about the Australian meeting, one of the two events in Canada, and highlighted the situation in Sweden. Below I’m posting highlights from newspaper coverage of South Africa Constitutional Court Justice Edwin Cameron’s speech in Toronto last Friday.

Update: The official text of Edwin Cameron’s address is now available from the Canadian HIV/AIDS Legal Network website. (Une version française est disponible ici). An audio recording, which captures both the passion of his delivery, and some off-the-cuff changes, is available in the same location. Video may also be made available at a later date.

The Toronto Star ran a major article headlined, Judge slams criminalization of HIV, which put forward, without critique, Mr Justice Cameron’s international policy arguments as to why Canada needs to think again about its nondisclosure law.

Canada’s relentless practice of invoking the criminal law against people with HIV and AIDS is only intensifying the stigma surrounding the conditions and contravenes United Nations guidelines, argues a judge of South Africa’s Constitutional Court, who is HIV-positive himself.

African countries that look to Canada as a world leader on human rights issues are getting the wrong message when it puts people with HIV/AIDS on trial for having unprotected sex, even when the virus has not been transmitted, Justice Edwin Cameron said yesterday.

“Canada’s wide approach to exposure offences is sending out a terribly retrograde message to other countries, especially on my own continent, in Africa,” said Cameron, who delivered the keynote speech last night to kick off a weekend symposium on HIV and human rights issues, hosted by the Canadian HIV/AIDS Legal Network.

With human immunodeficiency virus still steeped in so much stigma in Africa that many are afraid to be tested, Canada is not providing a good example of dealing rationally and justly with the epidemic, said Cameron, noting Canada is a “world leader” in targeting HIV-positive people for prosecution.

[…]

AIDS activists, Cameron said, must accept there may be instances in which criminal liability is justified, noting that one example might be the recent case in Hamilton of Johnson Aziga, convicted of first-degree murder for actively deceiving women about his HIV status and infecting them.

But Canada needs to rethink its sweeping use of the criminal law and question why it is singling out HIV-positive people for prosecution when the same Criminal Code powers are not being used against those who expose people to other potentially deadly conditions, he said.

“Let’s take, for example, the two recent health scares, swine flu and the highly, highly contagious forms of tuberculosis. We had a case where somebody got onto an aircraft with a highly transmissible form of tuberculosis, and no one ever suggested that person should be prosecuted.”

“Queer activist” Andrew Brett also wrote about Mr Justice Cameron’s speech on rabble.ca. It’s becoming clear that the fallout of the Johnson Aziga verdict is hitting HIV-positive Canadians really hard. The few I’ve spoken with personally are feeling under attack. Mr Justice Cameron, himself HIV-positive, feels their pain. Brett writes:

Earlier this year, a court in Hamilton, Ontario became the first in the world to convict a man of murder for failing to disclose his HIV-positive status to his sexual partners, two of whom later died of AIDS. Since then, criminal prosecutions have increased and the degree of charges being laid has been elevated.In some cases, Toronto police have even issued “public safety alerts” with names and photographs of HIV-positive people who allegedly failed to disclose their status, asking their sexual partners to come forward. Cameron likened this practice to a proposal by a Swaziland parliamentarian to brand people with HIV/AIDS on the buttocks.

An article published on Tuesday in Xtra.ca, entitled Attempted murder the new aggravated assault? eloquently highlights the impact this culture of fear is having in Toronto.

Rita Shahin, associate medical officer for Toronto Public Health, says that public health can be required by law to tell police if a particular individual has tested positive for HIV.

“When the police get a complaint in front of them then they will come to us with a search warrant and if we have a file on somebody then we have to produce it,” says Shahin.

However individuals who have been tested anonymously — through the Hassle Free Clinic’s anonymous HIV-testing program, for example — will not show up in public health’s records.

Although Shahin says public health hasn’t yet seen a decrease in the number of people getting tested as a result of the recent charges laid, “it’s definitely creating a lot of anxiety and especially for those people who are behaving responsibly it’s [a question of] how do they protect themselves? How do they prove that they’ve disclosed to someone?”

[Angel] Parks [coordinator of the AIDS Committee of Toronto’s Positive Youth Outreach programme] says she’s also hearing from people living with HIV/AIDS (PWAs) who are afraid that they’ll be charged even though they’ve disclosed.

“With any other criminal charge it’s always relied upon for having forensic-type evidence and these cases seems to only be based on he-said, she-said scenarios,” says Parks.

“Now they’re are even more afraid of what the consequences will be when they do disclose… like what if things fall out in a relationship where disclosure has happened? What can they do to protect themselves to ensure they can provide a credible defence if such an incident did occur?”

Because public health also deals with complaints against individuals for nondisclosure this is a scenario Shahin has seen play out.

“That’s why we have to really investigate the complaint to sort out, is it true? Is there a basis to the complaint or is it a relationship that’s gone sour where somebody’s being vindictive?”

Both Parks and Shahin recommend the recently published HIV Disclosure: a Legal Guide for Gay Men in Ontario, produced by the HIV and AIDS Legal Clinic (Ontario).

“It is meant to target gay, bi and men who have sex with men,” says Parks, “but the information contained in it is applicable really to any person living with HIV…. They talk about how to protect yourself against malicious lies or attacks.”

It’s going to take some time before public opinion catches up with the idea that the Canadian criminal justice system’s approach to HIV nondisclosure is at best flawed, and at worst, severly and negatively impacting on the human rights of people living with HIV, as this comment from a Toronto Star reader (agreed with by 15 others, and disagreed with by only one) suggests:

The carrier should still be charged: If a person with HIV has unprotected sex with another person who doesn’t have HIV and doesn’t inform his or her sexual partner that he or she has HIV, that person should be charged. I think the same would apply to someone who has herpes and doesn’t inform his or her partner that he has it. Just because the unsuspecting sexual partner doesn’t get HIV from the carrier doesn’t mean that the carrier shouldn’t be charged. It would be like saying that if you go into a bank to rob it and you are carrying a gun but don’t use the gun, you shouldn’t be charged with bank robbery. That doesn’t make sense.

No, actually, its the gun analogy that makes no sense. Or is it the case that people with HIV are now thought of in Canada not just vectors of transmission but actually walking deadly weapons? It seems that when it comes to HIV-positive people, attitudes in ‘conservative’ Texas and ‘liberal’ Ontario are exactly the same.

US: Judge gives HIV-positive pregnant woman longer prison sentence ‘to protect unborn child’ (updated)

A judge in Maine has more than doubled the prison sentence of an HIV-positive woman in order to protect her unborn child, according to a report from The Bangor Daily News. The judge admits he based the decision entirely on the woman’s HIV status.

The 28 year-old woman, from Cameroon, had previously pleaded guilty for having fake documents. She was not legally entitled to be in the United States and was planning to seek asylum. The case has now been taken up by the Maine Civil Liberties Union.

Both prosecution and defence had asked U.S. District Judge John Woodcock to sentence the woman to 114 days, or time served (she has been in custody since January 21st). However, citing the welfare of the woman’s unborn child, the judge sentenced her to 238 days (to coincide with her due date of August 29th).

Woodcock told [the woman] at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

[…]

In sentencing Tuleh, Woodcock said that the law required he take into account a defendant’s medical condition in fashioning a sentence. Although a defendant’s medical condition most often is used to lower a sentence, the judge found that there was nothing in the federal sentencing guidelines to prevent him from imposing a sentence longer than the guidelines recommended because of Tuleh’s HIV status.

“My obligation is to protect the public from further crimes of the defendant,” he said at Tuleh’s sentencing, “and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

“If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person,” Woodcock said, “I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

The Maine Civil Liberties Union told The Bangor Daily News.

“We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The sentence was objected to primarily by the prosecution, however.

Assistant U.S. Attorney Todd Lowell objected to Woodcock’s decision. Lowell said Tuleh’s sentence set a precedent that “could affect the many other sorts of cases that come before this court in which defendants have serious medical conditions. In the end, Bureau of Prisons custody is designed to incarcerate,” Lowell told Woodcock at the sentencing hearing. “Incarceration is mostly designed for the purpose of punishment, deterrence and community protection. The Bureau of Prisons is not well-designed to accomplish necessarily the end of providing medical care to a defendant and her unborn child.”

The US Attorney’s office has appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston, but arguments will not be heard until late July. The MCLU is also planning on submitting amicus curiae briefs on the issues of HIV, pregnancy, immigration law, and prisoner rights.

Update: June 18th The woman will now give birth in hospital rather than prison after Judge Woodcock heard new evidence that she will be looked after in the community, according to a report in The Bangor Daily News.

“I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”

Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy.

“At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said.

[…]

A three-judge panel in Boston has agreed to hear the appeal on an expedited schedule, but oral arguments are not expected to be held until late July and early August. In addition to appeals filed by the prosecution and the defense, a group of 15 individuals and organizations have filed in Bangor and Boston a “friend of the court” brief in support of Tuleh.

Woodcock said Monday that he found the brief “articulate and helpful” in making his decision about whether to release Tuleh on bail.

More details at the National Advocates for Pregnant Women site here

Click here to see the results of the paper’s poll asking whether a judge should be able to impose a longer sentence in order to protect an inmate’s unborn child?