Behind Bars for Being Pregnant and HIV-Positive

Margo Kaplan

While some states do criminalize HIV exposure, a U.S. District Judge does more than this - he imprisons a woman for the mere possibility that she might transmit HIV in the future.

Editor’s Note: At the request of advocates working with the HIV-positive pregnant woman imprisoned in this case, we have removed references to her full name and now refer to her as "Ms. T."

In May, 2009, U.S. District Judge John Woodcock sentenced Ms. T,
who was about five months pregnant, for the crime of having fake
immigration documents. While both the federal prosecutor and defense
attorney urged the judge to sentence T. to 114 days, which would
allow her to leave prison with time served, Judge Woodcock doubled the
recommended sentence and exceeded federal sentencing guideline
recommendations for the sole purpose of keeping T. in prison until
she gave birth. Judge Woodcock’s sole justification for the extended
sentence is that Ms. T. is HIV-positive. The judge felt that – despite the
fact that T. had arranged for care outside the prison – keeping her in
prison would best ensure that she would take anti-retroviral medication
to reduce the chances of transmitting HIV to her child in utero. In
issuing this decision, Judge Woodcock has created disturbing precedent
that could allow the state to keep people in jail based solely on the
fact that they have HIV or are pregnant.

To understand how misled Judge Woodcock’s decision was, it is useful
to understand a little about how HIV can be transmitted from mother to
child, or "vertically." HIV can be transmitted during pregnancy,
childbirth, or breastfeeding. While all babies born to women living
with HIV will have HIV antibodies when they are born, 75% of those
babies will "serorevert" and will not develop HIV infection. Thus,
without any medical intervention, the rate of transmission is, on
average, 25%. Taking antiretroviral drugs during pregnancy and birth or
opting to have a cesarean section can reduce the rate of transmission
to less than 2%. The best course of treatment to ensure the health of
the mother and her child always depends on the individual woman’s
medical history and circumstances, and should be a decision she makes
after consulting with her physician.

Judge Woodcock’s decision ignores the complex factors involved in a
pregnant woman’s medical treatment decisions – as through being HIV
positive makes one incapable of reasonable decision-making – and glibly
equates being HIV-positive and pregnant with committing a crime. When
reading the sentence, he makes clear that his sole reason for keeping
Ms. T. in prison was that she was HIV-positive and pregnant, and that,
had she been pregnant and not HIV-positive, he would release her with
time served. He reasons that he could keep T. in jail "to protect
the public from [her] further crimes."

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Judge Woodcock bends himself into bizarre logical contortions to
justify his decision. He states, "I don’t think the transfer of HIV to
an unborn child is technically a crime under the law, but it is as
direct and as likely as an ongoing assault." Frustrated with what the
law actually forbids, Judge Woodcock invents a new category of actions
that, while not "technically" crimes "under the law," he still has the
authority to punish with imprisonment. However, if judges could hold
people in prison for any "direct" and "likely" action they found
morally reprehensible, they would have unlimited discretion. This is
precisely what the rule of law is intended to prevent.

While some states do, indeed, criminalize HIV exposure, Judge Woodcock does more than this – he imprisons a woman for the mere possibility that she might transmit HIV in the future.
His reasoning essentially criminalizes being HIV-positive and allows
the state to jail anyone with HIV simply because they have HIV and are
capable of transmitting it to another. It classifies anyone with HIV as
a threat to society who can be incarcerated at the whim of the state to
protect public health. As Regan Hofmann eloquently explained in her May blog,
criminalizing HIV transmission contributes to the stigmatization of HIV
and actually harms prevention efforts. The imprisonment of those with
HIV based on the mere fact that they might transmit it to others is
even more abhorrent as a matter of law and policy.

Some might be tempted to think that the judge in fact is helping
Ms. T. by ensuring she at least has access to medications. This argument
might have some merit if Ms. T. were asking the judge to keep her in
jail because she was concerned about deportation or her ability to
access care. But the fact is – and Judge Woodcock recognized – Ms. T. did
not want to remain in prison, much less give birth in prison. Her
attorney stressed that Ms. T. had arranged for medical treatment outside
of prison at a facility – unlike the prison system – specifically equipped
to meet her medical needs.

Whatever Judge Woodcock’s protective intentions, using imprisonment
to coerce pregnant women to make the medical care choices we think best
is an outrageous abuse of the system. By keeping her in prison because
he felt it would be best for the fetus, Judge Woodcock was unable to
see and treat Ms. T. as a competent adult with the ability and the right
to make her own medical decisions. Instead, he reduced her to a fetal
container – an obstacle to providing the care he wanted for the child she
was carrying. Not once in the transcript of the sentencing proceeding
does Judge Woodcock consider Ms. T.’s own medical care or her health
interests. She is guilty of being HIV positive, while her fetus is, in
his view, "a wholly innocent person."

Judge Woodcock’s decision perpetuates the myth that people with HIV
are somehow "other" – more reprehensible, less responsible, and deserving
of whatever state intervention helps protect the "innocent" remainder
of society. It also furthers the view that pregnant women lose their
autonomy and their rights by virtue of their pregnancy, and that
pregnancy should enable the state to detain a woman if the state
disagrees with the care she is choosing for her own body. While Ms. T. 
may have had counterfeit immigration documents, having HIV and being
pregnant does not make her any less "innocent" or any more deserving of
punishment.

This post originally appeared on the Center for HIV Law and Policy blog.

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