Double Dose: Pregnancy, Prison and HIV

By Christine Cupaiuolo — June 29, 2009

Woman Shackled During Labor Sues State: A former inmate at the Washington Corrections Center for Women who was shackled while in labor is suing the state of Washington for violating her constitutional rights. Read the full complaint here (pdf).

The Seattle-based women’s rights organization Legal Voice filed the federal lawsuit last week on behalf of Casandra Brawley. According to the complaint, Brawley, who was serving a 14-month sentence for shoplifting, was shackled by a metal chain around her belly during transportation to the hospital. At the hospital, she was shackled to her hospital bed during several hours of labor. A physician demanded the leg iron be removed while he performed an emergency c-section. The shackles were replaced after the baby was born.

“It defies common sense – and the Constitution – to risk any pregnant woman’s health, safety, and dignity by shackling her while she is in the process of giving birth,” Sara Ainsworth, senior counsel at Legal Voice and co-counsel for Brawley, said in a release.

“Like Ms. Brawley, the majority of women incarcerated in Washington State are serving sentences for non-violent crimes. And the idea that labor presents an escape opportunity is absurd. There is simply no justification that outweighs the medical risks of this inhumane, demeaning practice.”

Extra Sentence for Pregnant, HIV-Positive Woman: Rachel Mehlsak, a legal intern at the National Women’s Law Center, wrote a good summary of a court case involving a 28-year-old pregnant woman from Cameroon. A judge in Maine had sentenced the woman — who pleaded guilty to possessing false immigration documents — to a prison term longer than the maximum suggested under federal sentencing guidlines to ensure she would deliver her baby in prison. Why? Because she is HIV-positive, and the judge rationalized that she would receive better care behind bars, thus reducing the risk of HIV transmission. No joke.

The woman was recently released while her appeal to the 1st U.S. Circuit Court of Appeals is pending in Boston. Margo Kaplan of the Center for HIV Law and Policy has more.

New Push for Fetal Homicide Law: Another example of an ill-conceived attempt to protect the fetus comes by way of New Mexico, where the murder of a 22-year-old pregnant woman has led to talk of a fetal homicide law.

“Most crimes of this nature are prosecuted under state law, and according to the National Conference of State Legislatures, at least 36 states have fetal homicide laws (variously known as the Fetal Protection Act, the Preborn Victims of Violence Act and the Unborn Victim of Violence Act). Some laws apply to the killing of a fetus at any time after conception, while others only apply to a fetus that is capable of surviving outside the womb,” writes Gwyneth Doland of the New Mexico Independent.

There are, of course, hefty consequences:

“What we’ve discovered is that the minute one of these laws passes, the first people who are prosecuted are not batterers, but pregnant women themselves,” says Lynn Paltrow of National Advocates for Pregnant Women, a women’s rights organization that has fought against fetal homicide laws.

“These cases are always presented as a response to violence against women. But not a single state has ever looked at whether these laws have done anything to decrease the epidemic of violence against women. And no state should pass another law like this until that research is done,” Paltrow says.

Paltrow says that similar laws in other states are used to prosecute pregnant women who suffer from substance abuse problems.

In particular, she points to South Carolina, where a fetal homicide law has been used to prosecute dozens of pregnant women struggling with substance abuse. In one case, a 22-year-old homeless woman whose pregnancy resulted in a stillbirth was convicted of murder and sentenced to 12 years in prison, even though health experts said there was no evidence her drug problem caused the stillbirth.

A Model Program: I recently learned about the work of Women’s Equity in Access to Care and Treatment (WE-ACTx), which began working in Rwanda in early 2004 to help genocide rape survivors, many of whom had contracted HIV from their attackers. Today, WE-ACTx focuses on increasing women’s and children’s access to comprehensive HIV/AIDS care and services, education and training.

Earlier this month, WE-ACTx held its 4th annual celebration of Day of the African Child (commemoration of the 1976 child uprising in Soweto against apartheid) with more than 400 children with HIV and their families.

In addition to running several medical clinics, the organization educates people affected by HIV/AIDS  about their legal rights, and empowers them to take action to resolve legal problems they may face. Here’s the English version of the WE-ACTx Community Handbook on Health-Care Rights and Other Laws (pdf). If you’re looking for an organization to support, take a look at WE-ACTx.

Resources on HIV Testing: National HIV Testing Day was June 27, and the Kaiser Family Foundation has released new and updated materials on attitudes toward HIV testing. First, take a look at the 2009 Survey of Americans on HIV/AIDS, the Foundation’s seventh major survey of the American public’s attitudes, knowledge and experiences related to HIV/AIDS.

Two new survey briefs were prepared as a follow-up: The first, on views and experiences with HIV Testing, looks at the U.S. public’s attitudes about experiences with HIV testing, including which groups are most likely to report being tested for HIV, reasons for being tested/not being tested, communication with doctors and partners about HIV/AIDS and more. The second brief examines more closely African American’s views and experiences with HIV testing.

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