A Test for Prisons

True consent shouldn't end in prison

The Stop AIDS in Prison Act of 2009 (HR 1429) passed through the House Tuesday, and is moving on to the Senate, despite some serious problems. While the bill gets a thumbs-up for mandating that inmates in federal prisons receive proper treatment, the lack of written informed consent leaves many AIDS and civil liberty advocates unable to support the bill.

"Anyone who is for true informed consent cannot in good conscience support this bill," said Housing Works President and CEO Charles King.

Introduced by Rep. Maxine Waters (D-CA), the bill seeks to increase HIV testing in federal prisons by providing routine testing, with pre-and-post test counseling to prisoners leaving and entering facilities, as well as testing upon pregnancy or request. The U.S. Department of Justice reported in 2001 that AIDS prevalence among U.S. federal prisoners was approximately three times that of the general population.

The bill was introduced in 2007 and, even without a Senate cosponsor, passed through the Senate judiciary committee, where it stalled. Insiders suspect that the bill stalled either because the Department of Corrections objected, or because Sen. Tom Coburn might have threatened to hold up the bill because it provides comprehensive, condom-teaching sex education for prisoners, something Coburn has opposed in other bills. However, the bill doesn't provide the condoms to go along with the education.

The bill was actually even worse in its original incarnation years ago, requiring mandatory testing. But Waters listened to input by HIV/AIDS advocates who urged that it include an opt-out provision (so those who don't want to be tested cannot be punished) and a greater role for counseling. However, Waters didn't include written informed consent for testing, so prisoners can be tested with only their verbal consent. Plus advocates are skeptical that, in the hierarchical prison environment, opting out will really be an option.

These advocates call written informed consent a safeguard ensuring that institutions -- such as prisons -- live up to their responsibility of giving people all the information they need in order to decide when and where to get a test, especially when the benefits and risks of testing are not clear-cut. They say that, given the myriad social and legal consequences of an HIV diagnosis, particularly in a prison, HIV testing warrants written, informed consent before it happens.

Dividing Line

AIDS groups are divided on the bill. The Americans for Civil Liberties Union shares Housing Works' position and opposes the bill. The San Francisco AIDS Foundation, the AIDS Action Committee and the AIDS Institute support the bill.

"The bill mandates oral consent, which the AIDS Institute supports. This is a great bill and one I think the community should be able to rally around," said Carl Schmid, AIDS Institute director of federal affairs.

But Jackie Walker, HIV/AIDS/Hepatitis information coordinator for the ACLU National Prison Project, disagrees, saying that the bill lacks protection for the rights of prisoners. "We are glad there are some provisions to make sure there's treatment, but the way the bill uses testing as a way trying to address HIV needs to be changed," Walker said.

More Than Just Testing

Walker noted that the bill also does little to address the real issues of HIV/AIDS among prison populations. Although the bill speaks of prevention education, it doesn't lift the ban on condoms in federal prisons.

The Justice Act, a bill by Rep. Barbara Lee (D-CA), would allow community organizations to distribute condoms and to engage in sexually transmitted infection counseling and prevention education in federal correctional facilities. But that bill's gone nowhere since its introduction in 2007, partially because of its emphasis on condoms.

Walker also noted that it is important to dispel the myth that transmission of HIV in prison is rampant. Although there has been little concrete research on the subject, a study of Georgia prisoners published in 2006 showed that 90 percent of those who were HIV-positive got the virus before entering prison, although many didn't know it at the time.

"We need to look at other types of sexual networks, and shouldn't view prisons as vectors of disease," Walker said.

Laura McTighe, director of Director of Project UNSHACKLE, the Community HIV/AIDS Mobilization Project (CHAMP) prison project, agrees that the problems of HIV/AIDS with the prison population stretches far beyond the prison walls. "Often people are first getting diagnosed in prison, but they were infected beforehand," McTighe said.

As many as one in four people with HIV/AIDS in the United States has been to prison. African-Americans are disproportionately affected by both HIV and the effects of imprisonment. For more information about AIDS among the prison population see the website for Project UNSHACKLE.

Photo credit: http://www.flickr.com/photos/seandreilinger/133281596/