Almost 20 years after the HIV virus was discovered, law and policy is still used to criminalize the transmission of HIV. In some countries this happens under old laws (from the nineteenth century or exported through colonialism) and in others under new laws explicitly drafted as part of the national response to HIV.
The nature and impact of the criminal law and its impact on the response to HIV is neither well documented nor well understood. But it risks further marginalizing people already vulnerable to HIV infection, including women, men who have sex with men, sex workers and people who use drugs. Legislation and legal practice is different in every country around the world, and collectively we need to become more conscious of the impact of both the criminal law and its implementation on national responses to HIV.
To call attention to these and other related issues, the International Planned Parenthood Federation (IPPF) has published “Behind Bars,‟ a collection of interviews that exposes how criminal laws regarding HIV transmission are affecting people’s working and private lives all around the world.
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The stories illustrate the personal and professional dilemmas faced by doctors, lawyers, researchers and advocates.
They include the stories of a doctor who, against her ethical principles, was forced to aid a police investigation, a woman living with HIV who prosecuted her former partner, and a lawyer who advocated in an HIV transmission case.
By fueling stigma, criminalization undermines efforts to prevent, treat and care for HIV. From the UK to the USA, Mali to Mozambique, Azerbaijan to Australia, criminal laws are increasingly being used to prosecute HIV transmission or exposure. But, as the interviews reveal, criminal law is a blunt instrument for HIV prevention.
Behind Bars show how a simplistic “law-and-order‟ response to HIV can intensify a climate of denial, secrecy and fear and provide a fertile breeding ground for the spread of HIV.
The drive for criminalization of wilful transmission of HIV is proving a costly intervention – in terms of time and money spent on investigating individuals’ private lives and determining the burden of proof – and seems to have had limited impact on HIV prevention.
Contributor Jan Albert, Professor of Infectious Diseases at the Karolinska Institute Sweden, said:
“Since I‟ve been an expert witness in court trials, my personal opinion regarding people living with the virus has changed. In my experience the accused are seldom “criminals.‟
There are many reasons for neglecting to inform sexual partners about HIV status, including denial. None, or very few, have had the intent to transmit HIV, which is how these acts often are described by the media. There will be more and more HIV infected people living in Sweden, and the rest of the world. Do we want to turn a proportion of our population into potential criminals every time they have sex?”
These stories show that criminalizing the transmission of HIV is actually undermining our efforts to prevent the spread of HIV. Fear of prosecution deters people from coming forward for testing and counselling; policing the bedroom effectively drives the problem underground.
Behind Bars is published as part of IPPF’s Criminalize hate, Not HIV campaign, for World AIDS Day, December 1, 2010. This short video highlights the dimensions and impact of laws that criminalize HIV transmission:
The film hints at not only the laws criminalizing HIV transmission and exposure, but also laws criminalizing behaviors associated with HIV transmission (drug injection, sex work and sex between men).
Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.
Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.
The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.
Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”
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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.
Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.
In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.
Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”
During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.
“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.
“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”
As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?“
International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:
[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.
The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.
The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.
Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”
“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.
In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”
ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.
The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”
Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.
“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.
At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”
Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”
Over and over again we've seen that the GOP and the anti-choice movement writ large blatantly disregard the likely consequences of their own rhetoric, and then cry foul when asked to do some soul-searching.
During a speech this past September to the Greater Houston Partnership, an influential Texas business association, U.S. senator and presidential aspirant Ted Cruz (R-TX) asked for a moment of silence in honor of Deputy Darren Goforth, a Houston-area police officer who had been shot and killed at close range in August after stopping at a gas station to refuel his police cruiser. The alleged assailant is a 31-year old Black male named Shannon Miles.
Cruz continued his remarks by claiming that police and other first responders “are finding themselves under assault right now at an unprecedented level.”
“Speaking to the press after his speech,” wrote reporter Christopher Hooks in the Texas Observer, “Cruz made it clear that he believed this “assault” [against Goforth] originated in the White House.”
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“The violence we’re seeing directed against law enforcement is a direct manifestation of the harsh rhetoric and the vilification of police officers and law enforcement that sadly has come all the way from the top,” Cruz said. “Senior administration officials,” he continued, including leaders at the Department of Justice, “have chosen to vilify law enforcement.”
Asked by another reporter how he could blame the president for a specific police killing, Cruz replied: “Rhetoric and language has consequences. It has consequences. And over and over again we’re seeing police officers targeted, and the president has a powerful bully pulpit.”
Rhetoric and language do indeed have consequences. It seems, however, that the fundamentalist right only admits this when they want to lay blame or antagonize for reasons of political and electoral expediency, no matter how tenuous the connection between cause and effect. But certainly this connection never comes up when it’s time to take responsibility for the obvious results of their own hate speech and inflammatory statements.
Cruz’s assertions about Obama’s “rhetoric” and police violence, for example, bear no connection to reality. As Radley Balko pointed out in the Washington Post, claims that police are facing unprecedented dangers are outright false. “Policing has been getting safer for 20 years,” Balko wrote. Both the actual numbers and rates of police fatalities are at the lowest they’ve been in over 50 years. “You’re more likely to be murdered simply by living in about half of the largest cities in America than you are while working as a police officer,” he concluded.
And it would be difficult for any objectively rational person to read “incitement to violence against police” in President Obama’s statement after Goforth’s murder, in which he talked about calling the officer’s widow and then said:
I also promised that I would continue to highlight the uncommon bravery that police officers show in our communities every single day. They put their lives on the line for our safety. Targeting police officers is completely unacceptable—an affront to civilized society. As I said in my State of the Union Address, we’ve got to be able to put ourselves in the shoes of the wife who won’t rest until the police officer she married walks through the door at the end of his shift. That comfort has been taken from Mrs. Goforth. So we must offer her our comfort—and continue to stand up for the safety of police officers wherever they serve.
Given the right’s reliance on a diminishing base of older, white voters who increasingly appear to be driven by fear, ignorance, and prejudice, the conservative movement’s determination to take and maintain political power requires a kind of Through the Looking Glass-journey, into a world in which efforts to address problems (such as racism, climate change, health care, refugees) based on facts, data, and evidence actually are at fault for the existence of the problems themselves and those who can’t or won’t face reality or take responsibility for those problems shift blame no matter the plausibility of their claims.
While eager to lay blame where no evidence exists to support it, the right is and has long been loathe to take responsibility for its own rhetoric. And we can see this in real time in the aftermath of the most recent episode of violence against reproductive health providers.
Last Friday, two civilians and one police officer died and nine others were wounded in a vicious and wholly predictable attack ata Planned Parenthood clinic in Colorado Springs, Colorado. The alleged gunman, Robert Lewis Dear Jr., who used what the New York Times described as an assault-style rifle to blast his way into the health-care facility, reportedly said “no more baby parts” during his arrest.
This would be a direct reference to false and defamatory rhetoric ceaselessly repeated by GOP candidates and the anti-choice movement over the past six months to claim Planned Parenthood profited from the sale of fetal body parts for research, when not a shred of evidence of illegal or unethical activity has been produced.
It’s no secret that the GOP, now fully co-opted by what was once a radical Christian fringe, long ago set its sights on destroying access to reproductive health care in the United States. With callous disregard to the effects on the nearly three million a year who receive primary reproductive health care at Planned Parenthood clinics, the right has made a religious crusade of efforts to shutter Planned Parenthood, persistently threatening to shut down the entire U.S. government in an effort to do so. State legislatures and governors throughout the country have voted to strip funding from family planning and other forms of reproductive health care, destroying an essential keystone of public health. And an entire industry now exists devoted to, among other things, manufacturing lies about abortion and contraception; passing laws to reduce access to abortion care and make criminals of doctors and patients; picketing clinics; harassing and threatening providers and patients; and denying women medically accurate information.
In this environment, heated rhetoric about abortion providers is only one lit match away from a raging forest fire of hatred and violence culminating in unstable people taking matters into their own hands.
Let’s assume for the purpose of argument that Ted Cruz or some other GOP leader had said the following, playing off Cruz’s own words above:
Clinic personnel, reproductive health care providers, and patients at clinics are finding themselves under assault right now at an unprecedented level. The violence we’re seeing directed against clinics, providers, and patients is a direct manifestation of the harsh rhetoric and the vilification of doctors and patients that sadly has come all the way from the top of the GOP ticket and permeates throughout the base of the Republican Party, in which women’s bodies are treated as public property. Presidential candidates, congresspeople and state legislatures have chosen to vilify women’s health providers at every level. Rhetoric and language has consequences. It has consequences. And over and over again we’re seeing health providers targeted. We have a powerful bully pulpit and we must stop using discredited inflammatory rhetoric.
In this case, Cruz would be right: Reproductive health-care providers are indeed facing unprecedented levels of attack. Just this September, the FBI released a heightened threat assessment, noting that “it is likely criminal or suspicious incidents will continue to be directed against reproductive health care providers, their staff and facilities,” and warning clinics of increased threats based on “an uptick in attacks on reproductive health care facilities.” In fact, the FBI tracks what it now calls the “pro-life extremist movement.”
Yet despite ample evidence of this, the anti-choice movement took steps to spray gasoline on what was already a highly flammable situation, and then lit the match.
This past summer, a previously unknown organization called the Center for Medical Progress (CMP) run by a previously unknown 20-something anti-choice operative named David Daleiden released heavily doctored videos of conversations with abortion providers that had been recorded surreptitiously by Daleiden and others operating under completely false pretenses. The edited versions of these videos, purporting to provide evidence that Planned Parenthood clinics were selling and profiting off the sale of fetal tissue and “baby parts,” bore no resemblance to the original footage taken by Daleiden, which in fact showed exactly the opposite, that clinics were providing a service, at cost, according to strict legal and ethical guidelines, to women who of their own volition wanted to donate fetal tissue to research. In short, and to repeat, there was not a shred of evidence of charges levied by CMP, and in fact, it is CMP now under investigation by the attorney general of California.
Not allowing facts to stand in the way of its crusade, the right began and has pursued a relentless campaign of attacks on Planned Parenthood specifically and reproductive health providers generally, most recently accusing them of trafficking in body parts.
It would require a book-length list to repeat the false statements and unproven allegations against PP made by anti-choice politicians and actors in the past six months alone, but here are a few samples:
In a modern recreation of the blood libel used to defame and isolate Jews and which fostered mob violence and pogroms, Daleiden claimed to theNational Review that providers were “haggling over the price of living children.”
In July, shortly after release of the first CMP videos and without any effort to verify incendiary claims made in the videos, Cruz released a statement saying:
Today’s news regarding allegations that Planned Parenthood is possibly selling the body parts of the babies it has aborted is sickening. There is no place for taxpayer funding of organizations that profit from taking away innocent life, much less profiting off the bodies of the lives they have stolen. Congress should immediately begin an investigation of Planned Parenthood’s activities regarding the sale and transfer of aborted body parts, including who is obtaining them and what they are being used for. And it should renew efforts to fully defund Planned Parenthood to ensure that its morally bankrupt business receives not one penny of taxpayer money. [Emphasis added.]
Cruz has continued to hammer this theme on the campaign trail. In a September op-ed, Cruz wrote about the “horrifying and barbaric nature” of Planned Parenthood, asserting, among other things, that “American taxpayers are currently forced to fund this likely criminal organization, which barters and sells the body parts of unborn children.”
Well after the videos were found to be falsified, GOP candidate Carly Fiorina, who as noted by University of California researcher Carole Joffe, “has the habit of forcefully doubling down on her [false] claims [even] when she is confronted with the truth,” continued to claim Planned Parenthood was guilty of “harvesting baby parts,” despite evidence that the video to which she pointed was falsified.
Mike Huckabee has made attacks on abortion providers and on Planned Parenthood a centerpiece of his campaign, claiming that clinics are “selling babies’ body parts like the parts of a Buick.” Huckabee has variously called Planned Parenthood a “kill for hire organization,” compared abortion providers to Hitler, and stated that “only since the Nazis have we seen such coldblooded indifference to human life.”
Variations on this theme have been endlessly repeated for months by presidential candidates Ben Carson, Donald Trump, Marco Rubio, and Jeb Bush on TV, radio, and in print, and continued well after threats to clinics were directly linked by the FBI to the release of the CMP videos.
“Since the release of the initial video by pro-life organization Center for Medical Progress in July, investigators say there have been nine criminal or suspicious incidents across the country,” according to a report on the FBI findings by Jeff Pegues of CBS News.
The incidents include reported cyber-attacks, threats, and arsons. The FBI believes the incidents are, “consistent with the actions of lone offenders using tactics of arsons and threats all of which are typical of the pro-life extremist movement.”
Such threats were well-known before the FBI report and well before the release of the inflammatory videos. The National Abortion Federation (NAF) has tracked incidents of violence against providers since 1977 and has found that since 1977, an “organized campaign by anti-abortion extremists … has resulted in escalating levels of violence against women’s health care providers … [as] anti-abortion extremists have chosen to take the law into their own hands.”
NAF research shows that what began as “peaceful protests with picketing moved to harassing clinic staff and patients as they entered clinics and eventually escalated to blockading clinic entrances,” and later evolved to include arsons and bombings, the use of butyric acid to vandalize clinics, anthrax threat letters to frighten clinic staff, and, eventually, the series of murders of doctors that began in the 1990s and continues with other shootings and violence to this day.
In its 2014 National Clinic Violence Survey the Feminist Majority Foundation found that while “only” 19.7 percent of clinics nationwide experienced “the most severe types of anti-abortion violence,” down from 23.5 percent of clinics nationwide in 2010, clinics surveyed in 2014 nonetheless reported “significantly higher levels of threats and targeted intimidation of doctors and staff than in prior years.” For example, the survey found that in 2014, doctors and clinic staff at 28 percent of clinics surveyed were targeted by pamphlets containing personal information—photos, home addresses, and other information—up from 18.8 percent of clinics surveyed in 2010, and that stalking of physicians has increased, from 6.4 percent of clinics in 2010 to nearly 9 percent in 2014.
You cannot be a responsible public leader and not know of, understand, and be vigilant about the environment in which such violence thrives.
Yet in the wake of Dear’s alleged murderous spree on Friday, the GOP and its anti-choice supporters furiously sought to exculpate themselves from responsibility while still perpetuating the same falsehoods and rhetoric that led to violence in the first place. According to the New York Times, “Cruz, chafing at the suggestion that conservative criticisms of Planned Parenthood might have played a role in the attack at a Colorado clinic on Friday, lashed out on Sunday at the ‘vicious rhetoric on the left, blaming those who are pro-life.'” The vicious rhetoric of the left?
Reuters reported that while he called the shooting “an incredible tragedy,” Huckabee “dismissed talk that harsh anti-abortion rhetoric may have contributed to the attack,” and Fiorina “said on Fox News it was ‘typical left-wing tactics’ to demonize opponents of abortion or the ‘sale of body parts’ because of what she said was ‘obviously a tragedy.'”
The crocodile tears of sorrow over the shooting poured forth throughout the anti-choice community. As Jason Salzman reported here, Personhood USA spokeswoman Jennifer Mason, who is based in Colorado, said in a statement that her organization “opposes all abortion-related violence, against born and unborn people,” but went on to criticize coverage of the tragedy, writing that “the media is failing to report that innocent babies are killed in that very building every day that they are in business.”
What may be the most outrageous (and creepy) performance of denial and wide-eyed lack of accountability came from Daleiden himself, who claimed that of course he does not condone violence, and gee, he’s nervous he might be blamed and is concerned about his “friends at Planned Parenthood.”
Yes, Ted Cruz, rhetoric and language have consequences. And over and over again we’ve seen that the GOP and the anti-choice movement writ large blatantly disregard the likely consequences of their own rhetoric, and then cry foul when asked to do some soul-searching.
But by its own yardstick, the anti-choice community has this blood all over its hands.