A story of misplaced paternalism and the wrong answer to a pressing problem

by Jess McCabe // 3 June 2009, 11:31

An HIV-positive pregnant woman has been jailed by a US judge, who believes that the health-care provided by the country's immigration system is so poor, that prison is her best bet for ensuring she doesn't pass on HIV to her child, reports bangordailynews.com.

Obviously, this doesn't reflect well on the immigration system in the US, and there's clearly a major problem if healthcare in prison is better than that available for people who are only criminals by virtue of having the audacity to try and move freely in a world that values people differently depending on where they're born.

But Quinta Layin Tuleh, aged 28 from Cameroon, has been sentenced to 238 days in federal prison for possessing false documents - against the urgings of both defence and prosecution lawyers - because US District Judge John Woodcock thinks he knows best, and feels free to use the force of the law to impose prison to protect - not Quinta - but her fetus:

Woodcock told Tuleh at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child. He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status. If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

The Maine Civil Liberties Union criticized Woodcock’s decision when informed of it by the Bangor Daily News.

“We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate. But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

And the judge's justification:

“My obligation is to protect the public from further crimes of the defendant,” he said at Tuleh’s sentencing, “and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.

“If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person,” Woodcock said, “I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

Except, of course, that it's not Tuleh that is committing "assault" but a system which denies her adequate healthcare.

(It's not the main point, but I shudder to think what sort of precedent this sets regarding abortion, too... imprisoning women because they might commit "assault" against a fetus?)

Comments From You

Jennifer Drew // Posted 03 June 2009 at 12:50

Judge John Woodcock enacted his pseudo male right of control over a woman's body because the foetus's pseudo rights supercedes this woman's real right to her body. A clever way of controlling women's reproductivity by claiming 'foetus rights' supercede women's human rights.

Transferance of HIV to an unborn child is not an 'assault' because the real perpetrator is the male who infected this young woman with HIV/Aids but that is conveniently ignored and instead yet another woman is punished for contracting HIV/Aids.

Feminist Avatar // Posted 03 June 2009 at 12:58

This is not the first instance of this in the US. Pregnant woman with drug and drink problems have been jailed on the same basis- to protect the foetus from the mother's 'abuse'.

Qubit // Posted 03 June 2009 at 14:29

I may be misunderstanding the article but since it didn't specify a drugs problem I assumed the 'drugs regime' referred to the one HIV positive people (who can afford it) go on to keep their symptoms at bay rather than illegal drugs.

Jess McCabe // Posted 03 June 2009 at 14:35

@Qubit Yep, that's the point - it's not that she has a drug problem, it's that she needs access to drugs to ensure she doesn't pass on HIV to the fetus.

Lara // Posted 03 June 2009 at 15:36

The only thing that isn't reported is that Quinta Layin Tuleh and her lawyers may have asked for a longer term in prison for access to the drugs. The judge, recognising her plight, has agreed to this. The language about assault etc etc is probably to justify his decision. Quinta Layin Tuleh is probably very grateful to that judge and I imagine the discourse he has used to describe her sentancing doesn't mean a jot to her - as her child now has a better start in life. She obviously wants to take those drugs as she has already begun treatment.

Jess McCabe // Posted 03 June 2009 at 15:39

@Lara If the news story is to believed, the defence lawyers "pleaded" the judge to give her a sentence meaning she'd be released immediately.

Shea // Posted 03 June 2009 at 21:42

This is a worrying precedent- not only because the status of the fetus counts as greater than that of the woman, and because as Jess points out the way it could be used against abortion. But more importantly, how in the hell do you imprison people for "potential crimes" they might commit?!?! What about due process? What about innocent until proven guilty? This judge has just swept away 300 + years of legal precedent. How about being convicted and sent to prison for a crime you actually commit?!

This is very disturbing and deeply misguided.

Clare // Posted 05 June 2009 at 10:41

'I don’t think that the transfer of HIV to an unborn child is a crime technically under the law'

So why imprison her to prevent it happening, even if that is the judge's motivation? This is crazy (and is he claiming that healthcare in prison is better than healthcare outside? I sincerely doubt that the be a general rule).

Princess Rot // Posted 05 June 2009 at 15:24

It's part of the larger backlash against women, and probably tied into this whole "personhood for the unborn" schtick we're mired in. I don't know how much you Brits follow American wingnuttery, but valuing the fetus over the pregnant woman is a very common tactic of the proponents of uterus-control. It sadly does not surprise me that Tuleh gets treatment just because she has HIV, but because she's pregnant. I don't deny that it would be better to ensure the baby doesn't get the disease, but to be truly pro-life, treatment of Tuleh should continue AFTER birth, something which I doubt will happen.

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