A Cautionary Tale: Black Women, Criminal Justice, and HIV

By Browne-Marshall, Gloria J. | Duke Journal of Gender Law & Policy, Spring 2012 | Go to article overview

A Cautionary Tale: Black Women, Criminal Justice, and HIV


Browne-Marshall, Gloria J., Duke Journal of Gender Law & Policy


I. INTRODUCTION

For two decades, the face of HIV/AIDS was a White gay male. Now, in its third decade, the face of the HIV/AIDS epidemic is African-American. (1) AIDS was first recognized by the Centers of Disease Control (CDC) in June of 1981. HIV is the virus by which AIDS is transmitted. (2) Although Black men are disproportionately infected with HIV, the infection rate for Black women is alarming. In similar fashion, the incarceration rate for Black men is the subject of national debate while little attention is given to the disproportionate number of incarcerated Black women.

The criminal justice system provides a prism through which this Article analyzes the socio-legal complexities of HIV transmission and the Black community, and in doing so, it provides a platform for a much broader discussion. Like The Canterbury Tales, this Article is comprised of many stories leading to a final destination. In this case, the journey leads to changes in HIV laws and policies. (3) This Article had its impetus in an earlier published work. (4) Accordingly, this Article examines the following: 1) the rising number of African-Americans, especially women, living with HIV/AIDS; 2) the concordant rise in the number of incarcerated African-Americans living with HIV/AIDS; 3) the legal issues arising from HIV/AIDS-related medical care and privacy concerns; and 4) controversial changes in HIV/AIDS-related privacy policies to save the lives of women.

II. HIV/AIDS and Black Female Inmates

A report to Congress on prisoners with HIV/AIDS described the disease as a virus transmitted through sexual relations and exposure to blood. Acquired immunodeficiency syndrome (AIDS) results when human immunodeficiency virus (HIV) attacks the body's immune system, leaving the individual highly susceptible to a range of infections, cancers, and other illnesses. HIV infection also attacks the central nervous system, causing progressive dementia, and it may lead to a serious wasting syndrome. (5)

In the 20th century, HIV/AIDS was categorized as a terminal disease transmitted primarily between homosexual men and intravenous drug users. However, any such narrow perspectives on this disease have evolved since its official discovery in 1981, particularly as advances in medical research have led to a better understanding of treatment and prevention of HIV/AIDS. HIV remains a preventable disease without a known cure. Advances in medical treatment have allowed people with the infection to live longer relatively healthy lives. (6) With people living longer with HIV, there is an increased chance of knowing someone with the virus, thus reducing the stigma originally associated with this disease. About one-third of American adults have a family member or know someone who has HIV/AIDS or has died from AIDS. (7) Nearly 60 percent of African-Americans know someone who has tested positive for HIV or has died of AIDS compared with 38 percent of Whites and 37 percent of Latinos. (8) The image of former athlete and businessman Irvin "Magic" Johnson living over twenty years with the virus is easing the social stigma. There is a decline in the stigma. However, in a CDC survey on attitudes toward HIV/AIDS, 36 percent of Americans surveyed are uncomfortable with having a roommate with HIV, 29 percent are uncomfortable allowing their child to be taught by an HIV-positive teacher, and 18 percent are uncomfortable with having a co-worker with HIV. (9)

HIV/AIDS is contracted through the exchange of fluids. (10) It can be contracted through both heterosexual and homosexual intercourse, including certain lesbian sex. (11) Unfortunately, the casualness with which HIV is now regarded may have contributed to the spread of the disease among women. Globally, women represent half of all people infected with HIV. (12) Women contract HIV/AIDS primarily through heterosexual relations and, to a lesser degree, intravenous drug use. (13) In 2009, women accounted for 23 percent of the 11,200 reported new HIV infections in the United States.

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