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.