The Eighteenth International AIDS Conference is currently underway in Vienna, and one of the issues that has been under discussion is how to reduce HIV transmission within the various at-risk groups. One such group is the prison population, among whom HIV transmission occurs due to both illicit sexual activity and intravenous drug abuse. But prison authorities have often resisted putting in place public health measures such as condom or needle distribution that have been shown to be effective, because they regard sexual activity and drug use as prohibited in their prisons, and do not want to to be seen as condoning these activities. Is this concern a reasonable one?
What we might call the Public Health Argument speaks in favour of condom and needle distribution among the prison population. It says that we know that these activities will occur anyway, irrespective of whether or not we pretend that they do not exist, and the harm of allowing them to occur without the use of condoms and clean needles is much greater than the harm of their occurring in a safer manner. We should therefore freely provide condoms and needles to prisoners.
But the Public Health Argument might be undermined by the idea that providing services that facilitate sexual and drug related activities among prisoners also implicitly condones these activities. And arguably, it is morally permissible to prohibit such activities among prisoners, and obligatory not to send mixed messages about them when we do in fact prohibit them.
Do we implicitly condone someone’s activities if and when we intentionally facilitate them? By analogy, consider organizations that provide pharmaceuticals and/or machinery in order to enable people to commit assisted suicide. It cannot reasonably be doubted that such organizations also condone the practice of assisted suicide in general, even if they do not take a view on any particular individual case.
One might argue in response that a distinction between intended ends and mere side effects shows that it is possible for us to provide condoms and needles to prisoners without intentionally facilitating the associated activities. Arguably, our intended end in providing condoms and needles to prisoners is to keep prisoners safe, and a mere side-effect will be that illicit sex and drug taking are facilitated. But the needed distinction here may be difficult to maintain: we intend to keep prisoners safe precisely by way of facilitating their having safe sex, if they are going to have sex, and by way of facilitating their taking illicit drugs with clean needles, if they are going to take illicit drugs. These means to our intended end must themselves be intended in order for us to intend the end; safe sex therefore cannot properly be described as just an unintended side-effect of condom distribution.
Nevertheless, we can still block the objection, by showing that to intentionally facilitate an activity is not, as such, to implicitly condone it. We see this view clearly presented in political philosophy under the doctrine of political liberalism, which says that the state has the rightful end of enabling its citizens to form and pursue their own conceptions of the good. It is essential to the liberal state that it does not take a view about the merits of the differing conceptions of the good its citizens may choose to pursue, so long as these conceptions do not undermine the functioning of the liberal state itself or infringe upon the abilities of other citizens to pursue alternative conceptions of the good. To take a more concrete example, consider free speech laws: a country with free speech laws implicitly condones the principle of free speech, yet it does not thereby condone any particular contentful speech whose promulgation may be facilitated by such laws. Indeed, the purpose of free speech laws is typically entirely at odds with such a stance.
We may not be concerned to enable free sexual activity or free drug use among prisoners as a matter of basic principle. However, the Public Health Argument presents us with another powerful reason to intentionally facilitate safe sex and hygienic drug use among prisoners: the predictable harms of HIV to the prisoners themselves (and to broader society as they come into contact with others upon release) that would result from our failing to do so. If we acted on this reason by providing condoms and needles to prisoners, we would no more condone either of these practices or any particular instances of them than a liberal state condones particular contentful speech by promulgating free speech laws. So the claim that providing condoms and needles would implicitly condone prison sex and drugs is false. If the empirical evidence about the effectiveness of these measures in combating HIV is as compelling as some argue, it would seem not just permissible but obligatory to provide prisoners with these basic means to defend themselves against it.
An excellent post.
Ultimately, it must be recognized that (although it is a fact to be empirically determined) provision of safe sex and safe injection supplies is not likely to increase the overall incidents of illicit sex and drug use. People have engaged, do engage and will continue to engage in these activities. Indeed, coupling distribution of clean needles with counceling would do two things at once (similarly, with sex).
It must also be recognized that implementing the public health measures does not prevent the prison authorities from strictly enforcing the no-sex, no-drug-use policies that are in place. There is no inconsistency, it seems to me, in saying to the prison population: “You are forbidden from having sex and using drugs, but if you are going to do it regardless here are the necessary methods to keep you safe.” One concern that does arise here is with privacy and possibility of entrapment: it seems that condoms and needles would have to be distributed anonymously, and this would potentially present significant logistical problems.
The issues are many and they are surely difficult, but the major roadblock at this stage, it seems, is the lack of dialogue and debate on the issue with the stakeholders.
Dmitri, thanks for your comments. You make an important point about the logistical difficulties of distributing needles and condoms anonymously.
I agree with you also that it’s an empirical question whether distributing needles and condoms is likely to increase the incidence of illicit sex and drug use, though I’m inclined to think it probably would increase it – for surely prisoners sometimes refrain from drug taking not for lack of drugs, but for lack of a (clean) needle, and sometimes refrain from sex because of their awareness of the dangers of sex without condoms? So (speaking as an empirically ignorant philosopher here!) it doesn’t seem prima facie implausible to think that we would facilitate these illicit activities by providing needles and condoms. But as I argued in the post, even if we knew that we would facilitate these activities, this does not itself count as a reason to refrain from taking the public health measures necessary.
I would also add that there seems to be a powerful moral argument that would undercut the position presented by the prison authorities in this case.
The (established) fact is that people are getting seriously harmed and die with the current lack of adequatte public health protections. To be sure, it is not implausible that providing such protections would increase the number of violations of prison rules (Although I would have to say that the net effect may be negligable since clean needles in conjunction with rehab councelling would drive drug use down, even though this could not be replicated with sex, which may well increase). Nevertheless, are we to take seriously the position of the prison authorities that following the rules (not laws, mind you, institutional rules) is to be held over and above the moral considerations for the protecting the lives and wellbeing of human beings, convicts through they are?
Though I admit ignorance about arguments to the contrary, it seems to me that the in the end we are faced with a position where relatively minor costs by the State and the prisons would net a tremendous benefit. Indeed, the harms, such as they are, appear to be of a different category from the benefits, and a morally inferior one at that.
From the moral point of view, therefore, I would be inclined to say that there OUGHT to be these public health protections in place.
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