Behind Bars for Being Pregnant and HIV-Positive


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."

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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  • rachel-roth

    Thank you for publicizing this case, which is one in a long line of cases where judges or other state actors subject women to different treatment because they are pregnant. This unfair treatment is usually overturned when challenged; however, not all women have the resources or legal assistance they need to bring an effective challenge.

     

    The judge’s action in this case rests on unfounded assumptions that prisons are good places for pregnant women and people with HIV. A studyof the District of Columbia jail, for example, found that women experience delays and interruptions in access to antiretroviral medications for HIV – delays which can lead to drug resistance and which have serious consequences for their health. People in prison have brought class action lawsuits challenging the inadequacy of medical care for people living with HIV. And women have given birth alone in their cells, without any medical attention whatsoever – including, for example, a woman in Maryland jailed specifically “to protect” her fetus.

     

    The crux of this current case lies in what Margo Kaplan identifies as the judge’s decision to treat Quinta Layin Tuleh as nothing more than a “fetal container,” without regard to her own health needs or right to make her own medical decisions. Even the U.S. Attorney in her case recognized that prisons are not well suited to the task of providing prenatal care: “In the end, Bureau of Prisons custody is designed to incarcerate… 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.”

  • invalid-0

    As a woman who has been living with HIV for more than 24 years, I am outraged at the judge’s decision. I was infected in the early 1980’s by my fiancé and the personal discrimination I have had to endure over the last 24 years is indescribable. We have come a long way since the first HIV case; there is no doubt about that. The continued ignorance that still exists in our society continues to oppress those that are living with HIV. Many of us will not reveal our status out of fear. In addition, those of us who do stand up still risk discrimination in the work force, with health insurance, and in many institutions such as jails and hospitals. It is a difficult battle and I applaud you for discussing the topic.

  • invalid-0

    Clearly imprisoning an HIV-infected woman just because she is pregnant and may transmit the virus to her infant is a bad precedent. However, I was under the impression that one reason the judge made the decision as described was because there was a possibility that the women, and her infant, would be deported to an area where PMTCT services, including non-medical interventions such as formula feeding were unavailable. Is this not the case? Also, if she were in agreement with the imprisonment, to protect her child and allow her to give birth in the U.S., would that change the nature of the ethical dilemma and bad precedent?

    • http://car-japan.blogspot.com/ invalid-0

      Concerning pregnancy at a HIV of exaggerations more than it is enough. In the developed countries, such as the USA or the Great Britain, level of transfer of a HIV to children for a long time already makes less than 1%. For this reason during pregnancy of the woman hand over the analysis on a HIV – that it was possible to take all measures for protection of the child.

  • progo35

    That is distrubing…anon…good point. I guess we’ll have to see what comes out in the news about it.

    "Well behaved women seldom make history."-Laurel Thatcher Ulrich

  • nezua

    The Judge’s actions are criminal to my mind. The height of abuse of power, lack of ethical introspection, and bald prejudice enforced by police. Disgusting, criminal, abhorrent, inhumane and stupid. He should pray he never falls under the power of humans so intellectually and morally impaired as himself.

  • invalid-0

    Confirm our dark suspicions?

  • nezua

    What mostly concerns me is the abdication of humanity to a pervasive reliance on force and penal instituations across our entire culture. This is another stop on that line. Taser use growing, Taser deaths stacking up, 6.1Bn alloted for new prisons this year, ICE predicting 400000 arrests, keeping women in jail in response to her having HIV—I don’t care what the reasoning was, it still surrenders humane and intelligent solutions to one that shrugs and kicks her to the curb where the C.O. is waiting. Primitive.

  • invalid-0

    She should be sentenced in accordance with the LAW. How is that difficult to understand? Not only did he not follow sentencing guidelines, and prosecutorial recommedations, he WENT OUTSIDE HIS AUTHORITY as a judge. And he admittedly did so SOLELY BECAUSE SHE WAS PREGNANT.
    That is called DISCRIMINATION.
    Our LAWS need to be enforced without discrimination- we have fought for that for 200 years. It is the very basis of our society- EQUAL PROTECTION UNDER THE LAW.
    So no, absolutely nothing changes the discriminatory sentencing and horrible precedent.
    The sentence will be reversed, the prosecutors have appealed it.
    It would be excellent if more people bothered to read the constituion before spouting off.

    • invalid-0

      Check your facts. She is NOT an American citizen, and is therefore NOT entitled to the same rights as an American citizen, *including* Constitutional rights. She should have been immediately deported. Also, we (America) needs to do away with birthright citizenship.

  • invalid-0

    She was jailed for having fake immigration papers. Send her home! I don’t want to support her or her child.

    • invalid-0

      I will reserve my real thoughts for you and reply only by saying that it is at best ignorant and misguided and at worst racist.
      the mother is a human being, and she is having a child. only someone who could be so exclusionary and harsh because they dont want to have to “pay” for them is perhaps the one who is a danger to society.

      are there no documented americans who are a danger to society?

  • http://thelongestwar.wordpress.com/ invalid-0

    At the root of this appalling judicial misogyny is that “he reduced her to a fetal container.”

    Enforced prison for this woman and all that comes with (informally as the culture of prison violence — imagine the horror for a pregnant woman) is just another example of the violence imposed by men against women in man’s longest war.

    Stated another way, as typical of the stories shown by culture-reflective movies at the multi-plex globally on any given weekend, only male lives (and potential male lives as potentially male fetuses) matter to the sexual politics men have imposed by violence and brainwashing upon womankind. Women are incidental, props to the male psyche and phallus, in this sadly violent global culture dominant men have made.

    Once the roots of male hypocrisy (on both the right and the left of male-run politics, different styles of rhetoric and privilege bandied about, but essentially for men with women as the underclass) can be faced without denial — once seeing the roots of the problem as a war — then a critical mass of women can free up to find coordinated solutions, as women, for women.

    A solution-driven realm is the world I hope my daughter will have, after I’m gone, in the fast-changing global culture. For my part, I blog, http://thelongestwar.wordpress.com/, to show and tell what resonates as my lived experience among the dudes of a global dude-land no decent parent would ever want for a beloved daughter.

    • invalid-0

      To Jude:
      You have some of the worst writing skills that I have ever seen. Your comment reads like a pathetic failed attempt at being intellectual and creative. I recommend you give up any writing aspiration you might have. You sound far too forced and fake.

  • invalid-0

    I am surprised by this considering that the USA is a a so called developed country. This kind of behaviour is not a good reflection to the developing world where most people are affected. Yes she had committed a crime using fake papers but she wanted to make a living hence fake papers. Immigration has been quite a issue because people are emigrating from poor resource settings to rich ones. The only way to stop this kind of thing is to make sure that wealth is equally distributed among the nations and we will not be getting people using fake papers. The judge is a louse and needs to be disbarred he comes from his middle class background with no inclination of what happens to the poor of the earth. Very disturbing indeed. I am shocked.

    • invalid-0

      Someone commented that “The only way to stop this kind of thing is to make sure that wealth is equally distributed among the nations and we will not be getting people using fake papers”. This naive and foolish person has absolutely no understanding of reality. Each nation is responsible for itself. If the people of a nation do not like how their country is being run, they should do like the American colonists did in the late 1700s and take control of their fate. Individual charity is fine, but the U.S. government should NEVER EVER provide “charity” at the expense of the American tax payer. That is what is referred to as THEFT, and charity through theft is NOT charity. People show blatant disrespect for America’s laws by sneaking into the U.S. illegally. Their very presence here illegally is an affront to America. That is unacceptable.

      • invalid-0

        did your founding fathers have papers when they came to the US? or did they flee on boats (and displace entire societies of native peoples once they were here).

        is it right to assume that if your family was hungry, persecuted, or in danger, you wouldnt do anything you could to get them to a better place? would you put their survival asside to “respect” the borders of the country? borders which make it so difficult to enter legally, one has no choice but to make the sacrifice to live in a new country undocumented.

        god bless my immigrant parents.

  • http://www.travestisohbet.net invalid-0

    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.

  • invalid-0

    That woman is here illegally, and as a result is NOT entitled to the same rights as an American citizen, nor SHOULD she be. There are consequences for entering a country illegally, as there should be. Also, “birthright” citizenship should be done away with. She actually should have been immediately deported.

  • http://www.viptravesti.net invalid-0

    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.

  • invalid-0

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  • http://www.librariannet.com invalid-0

    This is cruel in my opinion. Yes she is not American but the case is very harsh.

    Cheers

    lawyers

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