Fall 2004 Human Rights Magazine

By Gloria J. Browne-Marshall

Far too many Americans believe that the AIDS epidemic is over in the United States. Among minorities, women, and the poor in America, however, the worst may be yet to come.

African Americans represent 13 percent of the American population but approximately 50 percent of new HIV cases. Some 80 percent of all women infected with the virus are women of color. In addition, African American women are becoming infected at younger ages than their white peers, primarily through heterosexual contact. Latinos represent 12 percent of the population but about 20 percent of AIDS cases. The HIV infection rate among Native Americans is one and a half times that of whites. On average, Native Americans die from AIDS much faster than whites due to late diagnoses.

To be sure, infection rates among all populations may stem in part from the failure of personal responsibility and inattention to warnings from HIV/AIDS advocates, physicians, and community organizers. However, other circumstances play a much larger role in the devastation HIV/AIDS is causing in poor and minority communities. Lack of insurance, inadequate medical attention, general poor health, and a criminal justice system in which people of color are disproportionately incarcerated contribute directly to increased infection rates among these “vulnerable” populations and represent this country’s continuing failure to observe certain fundamental human rights principles that would protect them.

America’s incarcerated population stands at nearly 2.1 million, the highest incarceration rate in the world. Of that number, more than 65 percent are people of color. One out of four African American men has experienced some form of incarceration. The statistics are troubling not only in and of themselves, but because imprisonment increases the likelihood of contracting HIV. In fact, there are three times as many AIDS cases in state and federal prisons than there are in the general U.S. population. The increase in the number of African American ex-offenders living with HIV/AIDS corresponds with increasing infection rates for women, especially African American women, who often contract HIV through heterosexual relationships.

America’s first human rights failure in this regard, even in the absence of HIV, is to accept (if not tacitly promote) the culture of violence that foments the poor health, rape, and unprotected sex that characterize everyday life in many correctional facilities in the United States. Even in the face of HIV/AIDS, however, most state correctional facilities refuse to distribute condoms (because sex among inmates is illegal) and, although many federal and state facilities test for HIV upon entry, most require inmates to admit engaging in high-risk behavior before being retested (which, in any case, remains at the facility’s discretion). An inmate who tests negative for HIV upon his arrival at the facility could contract the disease while in prison and be released without being retested, leaving him and any future sexual partners (and, in turn, their future partners) unaware of his infection. Thus, the rising rate of HIV and AIDS within communities of color is but one part of a broken and abusive system of criminal justice administration.

Apart from this system, people of color living with HIV also have higher death rates due to lack of insurance and inadequate medical care. African Americans, for example, often receive inferior medical care compared to European Americans and have higher rates of cardiovascular disease, diabetes, stroke, some forms of cancer, asthma, sexually transmitted diseases, and other illnesses that complicate treatment for HIV. Moreover, HIV-positive African Americans and Latinos are less likely than HIV-positive whites to receive life-sustaining medications.

As is true of the international pandemic, the conditions in which the American HIV/AIDS epidemic continues to thrive are a function of the degree to which human rights are respected, protected, and fulfilled in the United States. Basic human rights for all people—regardless of race, sex, or other status—are enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and the UN General Assembly Declaration of Commitment on HIV/AIDS of June 2001. Yet inadequate adherence to the principles proclaimed in these instruments, particularly with respect to vulnerable populations in the United States, contributes substantially to HIV’s disproportionate impact on those populations.

The International Covenant on Civil and Political Rights, for example, to which the United States is a party, requires that all people deprived of liberty—that is, prisoners—be treated with humanity and with respect for the inherent dignity of the human person. Yet such a standard is almost laughable in many American prisons. Further, the UN Declaration of Commitment on HIV/AIDS describes HIV/AIDS as “one of the most formidable challenges to human life and dignity, as well as to the effective enjoyment of human rights,” and identifies several human rights issues that are particularly relevant to minorities with HIV/AIDS in the United States. It recognizes poverty, for example, as one of the principal contributing factors to the spread of HIV/AIDS. It also acknowledges that the lack of affordable medications and health systems stands in the way of an effective response to the pandemic, “especially for the poorest people.” Like the International Covenant on Economic, Social, and Cultural Rights, which the United States has signed but not ratified, the UN declaration therefore recognizes the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This declaration also stresses that gender equality and the empowerment of women are essential to reducing the vulnerability of women and girls to the disease. Stigma, silence, discrimination, and lack of confidentiality continue to undermine prevention, care, and treatment, as does the lack of access to condoms, antiretroviral therapies, and diagnostics (testing), which are equally crucial to dealing effectively with HIV/AIDS.

Yet despite the UN Declaration’s well-known, broadly accepted, and legally and morally sound prescription for dealing with HIV/AIDS—much of which flows from principles and values that the United States long has championed—minority and poor Americans, especially women, remain vulnerable to HIV infection, are denied access to treatment, and suffer AIDS-related stigma and discrimination in disproportionate numbers. Without intervention, the American epidemic will only worsen.

Gloria J. Browne-Marshall, a member of the Council of the ABA Section of Individual Rights and Responsibilities, is an assistant professor at John Jay College and executive director of The Law and Policy Group, Inc., in New York City.

As published in Human Rights, Fall 2004, Vol. 31, No. 4, p.15, 23.