Commentary Law and Policy

AIDS 2012 Still Missing the Mark: The Good and the Bad on Women’s Rights

Maria de Bruyn

A rights-based perspective for the global AIDS response requires addressing the comprehensive needs of women and girls, including those seen in areas that do not “conform” to the focus on motherhood and marriage.

Part of Rewire’s coverage of the International AIDS Conference, 2012.

On the whole, did the 2012 International AIDS Conference reflect the human rights-based and gender perspective necessary to addressing the epidemic among women and girls? There was a welcome emphasis on integrating family planning and HIV-related services, as well as reiteration on providing all HIV-positive women presenting for antenatal and post-partum care with lifelong antiretroviral therapy (ART). And some sessions focused on the need to assist women living with HIV in pre-conception planning so that they can determine when and how to guarantee the safest pregnancy and delivery possible. And finally, well-deserved and overdue attention was given to human rights violations involved in forced and coerced sterilization of and abortion among HIV-positive women.

What is striking about these contributions to the “AIDS discourse,” however, is their emphasis on women and girls primarily in their social role as mothers. Addressing women outside the motherhood paradigm – planning for and bearing a child – did not seem to be considered of equal importance.

For example, numerous speakers in sessions on the integration of reproductive health and HIV-related services pointed to high rates of unintended pregnancies among women and girls living with HIV, and called for urgent attention to increased access to contraceptive methods, including longer-acting methods. At the same time, there was little or no mention of what women should do when they are already faced with an unintended and unwanted pregnancy; access to emergency contraception and safe abortion was simply not mentioned. Nor was the provision of voluntary sterilization, although research and community work in Africa in which I have been involved reveals that women living with HIV who have requested voluntary sterilization have been denied access to this option.

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During a session on addressing women’s pregnancy intentions, I mentioned that providing women with access to HIV testing and options for ART through venues other than antenatal care – e.g., services for survivors of violence, clinics for sexually transmitted infections, abortion-related care – is greatly needed. A delegate questioned why I would advise that since targeting women through antenatal care is an effective way of reaching women. My response was that it is not only pregnant women who need to be kept alive and healthy – all women living with HIV need this, whether they have children or not. And if we truly want to promote pre-conception planning, it is important that women already know their sero-status and the pros and cons of early treatment so that their decisions about when and how to give birth are well-informed. This means that women need to be targeted outside of antenatal programs.

This focus on women primarily as mothers was also reflected in the new guidance document issued by the Global Commission on HIV and the Law. The report addresses laws that criminalize and discriminate against people based on their HIV status, sexual orientation and gender identity, and involvement in sex work and drug use. During a presentation on the report, a Commissioner noted that it was decided to also include laws that discriminate against women, even though this had not been within the original remit of the Commission.

The report contains valuable information and some very good recommendations. However, while the section on women and the law addresses violence against women, property and inheritance rights, coerced and forced sterilization and abortion, it does not address criminalization of abortion and denial of safe abortion. When I asked about this, I was told the Commission didn’t want “to go too far afield” in the issues it was tackling. I pointed out that coerced abortion and denial of safe abortion are both violations of the reproductive rights of women living with HIV and expressions of gender inequality; denial of safe abortion is not “further afield” than coerced abortion. I was then told that the issue of criminal laws against abortion was discussed by the Commission but there was no consensus on including this topic so it was left out of the report.

It is noteworthy to consider that the Commission agreed to address other “sensitive” issues such as discrimination against drug users, sex workers, and people of various sexual orientations but not denial of safe voluntary abortion, which is an issue that only directly affects women. Again, a human rights violation was acknowledged when it was related to women’s desire to be mothers but not when it related to women who choose not to be mothers (or who are spacing or delaying childbirth for myriad reasons, including issues related to violence against women).

It was also interesting to note a recommendation in the Commission’s report stating that we must:

“promote effective measures to prevent violence against men who have sex with men.”

Why did this recommendation not say: “promote effective measures to prevent violence against men who have sex with men and women who have sex with women?”  While the report gives ample attention to the need to address rape and violence against women, in particular marital rape, the phenomenon of corrective rape is not addressed in the same manner. Is this because it involves a violation of women’s rights outside the paradigm of motherhood and marriage?

To promote gender equality, gender equity, social justice, and sexual and reproductive rights of women and girls living with, and affected by HIV, it is important that guidance and advocacy emanating from the International AIDS Conference and norm-setting bodies, such as the Commission on HIV and the Law, are truly gender and human rights-based. Such a perspective requires addressing the comprehensive needs of women and girls, including those seen in areas that do not “conform” to the focus on motherhood and marriage.

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

News Health Systems

The Crackdown on L.A.’s Fake Clinics Is Working

Nicole Knight

"Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options," Feuer said. "And therefore every day is a day that a woman's health could be jeopardized."

Three Los Angeles area fake clinics, which were warned last month they were breaking a new state reproductive transparency law, are now in compliance, the city attorney announced Thursday.

Los Angeles City Attorney Mike Feuer said in a press briefing that two of the fake clinics, also known as crisis pregnancy centers, began complying with the law after his office issued notices of violation last month. But it wasn’t until this week, when Feuer’s office threatened court action against the third facility, that it agreed to display the reproductive health information that the law requires.

“Why did we take those steps? Because every day is a day where some number of women could potentially be misinformed about [their] reproductive options,” Feuer said. “And therefore every day is a day that a woman’s health could be jeopardized.”

The facilities, two unlicensed and one licensed fake clinic, are Harbor Pregnancy Help CenterLos Angeles Pregnancy Services, and Pregnancy Counseling Center.

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Feuer said the lawsuit could have carried fines of up to $2,500 each day the facility continued to break the law.

The Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care. Unlicensed centers must disclose that they are not medical facilities.

Feuer’s office in May launched a campaign to crack down on violators of the law. His action marked a sharp contrast to some jurisdictions, which are reportedly taking a wait-and-see approach as fake clinics’ challenges to the law wind through the courts.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before the U.S. Court of Appeals for the Ninth Circuit.

Some 25 fake clinics operate in Los Angeles County, according to a representative of NARAL Pro-Choice California, though firm numbers are hard to come by. Feuer initially issued notices to six Los Angeles area fake clinics in May. Following an investigation, his office warned three clinics last month that they’re breaking the law.

Those three clinics are now complying, Feuer told reporters Thursday. Feuer said his office is still determining whether another fake clinic, Avenues Pregnancy Clinic, is complying with the law.

Fake clinic owners and staffers have slammed the FACT Act, saying they’d rather shut down than refer clients to services they find “morally and ethically objectionable.”

“If you’re a pro-life organization, you’re offering free healthcare to women so the women have a choice other than abortion,” said Matt Bowman, senior counsel with Alliance Defending Freedom, which represents several Los Angeles fake clinics fighting the law in court.

Asked why the clinics have agreed to comply, Bowman reiterated an earlier statement, saying the FACT Act violates his clients’ free speech rights. Forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs,” Bowman said.

Reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, Googling “abortion clinic” might turn up results for a fake clinic that discourages abortion care.

“Put yourself in the position of a young woman who is going to one of these centers … and she comes into this center and she is less than fully informed … of what her choices are,” Feuer said Thursday. “In that state of mind, is she going to make the kind of choice that you’d want your loved one to make?

Rewire last month visited Lost Angeles area fake clinics that are abiding by the FACT Act. Claris Health in West Los Angeles includes the reproductive notice with patient intake forms, while Open Arms Pregnancy Center in the San Fernando Valley has posted the notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”


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