Criminal justice reform is finally gaining some traction in the U.S., including bipartisan support for legislation such as the SAFE Justice Act that would keep many people charged with non-violent crimes from going to jail in the first place. Top U.S. health officials need to be part of this movement, as criminal justice reform is not only about closing prisons; it's also about improving public health. Incarceration is associated with increased HIV risk, interference with medication regimens and poorer outcomes once infected, so the updated National HIV/AIDS Strategy would have been a great place to start. Unfortunately, this opportunity has been missed.
At the end of July, the Obama Administration released the updated Strategy, designed to carry the country's HIV policy through to 2020. Though a positive in many ways, the new policy takes a very limited approach to criminal justice issues. It also severely shortchanges two key groups: sex workers and transgender women, both of whom are heavily burdened by HIV and the criminal justice system. This is particularly disappointing given the emphasis in the new Strategy on combatting violence against women and girls, a topic that receives substantial attention.
Female sex workers and transgender women could rightly ask, in the words of Sojourner Truth, "Ain't I a woman?"
Sex Workers: From Nothing to Just Two Mentions
Sex workers received no mention at all in the first National HIV/AIDS Strategy, published in 2010. But globally, the HIV prevalence among female sex workers is approximately 12 percent, significantly higher than the 0.8 percent in the adult general population. The revised version uses the term "sex worker" only twice, both times in discussion of stigma that "can" attach to issues such as substance use, mental health, gender identity and "sex work." This is hardly adequate discussion of a population that experiences a worldwide prevalence of HIV nearly 12 times as high as in the general population. Its omission from the extensive section on violence against women is most puzzling, as the primary factor that increases sex workers' HIV risk is violence.
The Lancet 2014 special issue on sex work clearly established that physical and sexual violence from clients, police and strangers in the workplace is strongly associated with increased HIV risk because it interferes with sex workers' ability to negotiate and control condom use. Indeed, Shannon et al estimated thateliminating sexual violence would avert nearly one in five HIV infections among sex workers in Kenya and in Canada, the two places studied, through increased condom use. Because criminalization of sex work is such a key barrier to reducing violence against sex workers, this study concluded that decriminalizing sex work would have the single greatest impact on the course of HIV epidemics and could avert 33% to 46% of HIV infections among sex workers and their clients in the next decade.
No one expects the Obama administration to recommend decriminalization of sex work. However, sex workers' organizations wrote to the Office of National HIV/AIDS Policy (ONAP), objecting to their omission from the consultations that preceded the development of the Strategy and providing numerous proposals for how ONAP could improve access to HIV prevention, treatment and care for sex workers. Most important is their call for sex workers to be prioritized as a key population in the nation's HIV/AIDS plan. This step would not only acknowledge the role played by the criminal justice system in fueling the HIV epidemic among sex workers, but also bring the U.S. truly up to date. It would follow the recommendations of the World Health Organization, UNAIDS and other international health authorities that identify sex workers as a priority population in the global fight against HIV and call for reform of criminal laws that place sex workers at greater risk.
Far Short of a Full-Court Press for Transgender Women
With regard to transgender women, the new Strategy does improve on the old in some respects. The document cites the alarmingly high prevalence (nearly 30% in some studies) of HIV among transgender women in the U.S., and urges addressing violence against transgender women "by research and programmatic activities." But this falls far short of the full-court press that is needed for a community in crisis; facing high rates of poverty, homelessness and every other social determinant associated with HIV risk; and experiencing more homicides through mid-August 2015 than in all of 2014.
The updated Strategy also fails to address the evidence that, although transgender women face discrimination and violence from a variety of sources, the criminal justice system is a primary intersection of violence and HIV. According to the Bureau of Justice Statistics, 34% of transgender adult inmates reported sexual victimization in U.S. prisons and jails between 2007 and 2012. In the National Transgender Discrimination Survey, nearly one of two transgender women said they had been sexually or physically victimized in jail or prison. Transgender women of color reported higher rates of both incarceration and assault in detention than transgender white (non-Hispanic) women. Theresa, a 35-year-old transgender woman of color from New Orleans, told Human Rights Watch via email that she was placed in a male facility, a policy still in effect in most U.S. jurisdictions. "Jail is where I assume I caught HIV, as trans girls were just prey for career criminals in there, with no protection."
The new national HIV/AIDS Strategy pledges to "improve outcomes for women in HIV care by addressing violence and trauma, and factors that increase risk of violence for women and girls living with HIV." As politically uncomfortable as it might be, U.S. health officials can no longer ignore the elephant in the room, or perhaps more accurately, the cell. One of the risk factors for HIV that needs to be addressed, particularly for sex workers, transgender women and women of color, is the criminal justice system.
Megan McLemore is an attorney and senior health researcher at Human Rights Watch. Her work focuses on HIV and harm reduction issues for prisoners, people who use drugs, sex workers and LGBT people.