Janet Weston
Despite living in a supposedly hyper sexualised society, we know very little about sex in prisons. In the US and the UK, concerns that confinement within a single sex environment might lead to prisoners having sex with one another was raised from time to time throughout the twentieth century, as medical and psychological studies of sexual behaviour tried to make sense of the ‘problem’ of homosexuality. But the question of whether those held in places of detention really were sexually active took on a new urgency with the arrival in the early 1980s of HIV and AIDS.
As a recent special Series in the Lancet reminded us, infection rates for HIV, TB, and hepatitis B and C are significantly higher amongst people in prisons than in the general population. Prisons have long been acknowledged as sites of both danger and opportunity in relation to the management of infectious disease, but the emergence of HIV and AIDS gave this a new urgency and a wider scope. Sex behind bars, as well as injecting drug use, medical confidentiality, hygiene, overcrowding, education, and clinical care for prisoners all became important considerations for the management of the HIV epidemic. Although recommendations for minimising the risks of infection within prisons were quick to arrive, they proved difficult to implement.
My research into the impact of HIV and AIDS on prisoner healthcare looks at why this might have been, and how the prison system in England and Wales responded to the problems they presented. One of the most controversial recommendations made by international agencies, as well as by advocates closer to home, was that prison administrators should provide condoms to male inmates during their time in prison. Condoms had quickly become a mainstay of HIV and AIDS prevention in the UK as a whole, but how could prisons enable safer sex when ‘officially’ sex did not take place behind their walls?
Acknowledging that sex happened between prisoners was problematic. In the nineteenth century, as prisons took on the form and function that we recognise today, the presence of offenders convicted of homosexual crimes within single sex prisons presented an awkward conundrum for anxious prison administrators. Attempts to prevent such ‘unnatural crimes’ from reoccurring behind bars came to rely upon the controlled environment of the prison: those thought likely to prefer same-sex partners could supposedly be identified and monitored, and in any case, the uniformed officer was all-seeing and all-knowing. If this approach wasn’t working, it meant that not everyone who might take part in same-sex acts while in prison could be easily identified, and that not all of prison life was as closely regulated as some liked to imagine. Longstanding views of sexuality, masculinity, and prison discipline would all be called into question.
Nevertheless, the dangers presented by HIV and AIDS called for action. Fears that prisoners could act as vectors of infection who would, in the words of MP Charles Irving, ‘unleash the disease on an unsuspecting heterosexual population’ upon their release were at least partly responsible, as well as humanitarian concerns for the health of inmates themselves. By means of a subtle adjustment in policy, quietly delivered, condoms were eventually permitted on prescription. This discreet and strictly medical approach was in many respects necessary, given the lack of enthusiasm in various quarters for the idea, but has created a problematic legacy that still leaves prisoners at risk today.
Condoms were initially provided in 1991 to some prisoners as they were released or left for a period of home leave, apparently at the instigation of a few enterprising individuals who saw this as a useful public health initiative. But debate continued about allowing them within prisons. Some staff and senior management were concerned about the message that it would send to inmates: might it appear to condone or even encourage sexual activity? Would sexual assaults become common? Given that same-sex acts between men in public were criminalised – and the prison was, arguably, an entirely public place – was it even legal to hand out condoms inside the prison walls?
More powerfully for the Home Office, there was no evidence that prisoners were having risky sex. Permission to carry out research into this and the prevalence of illicit drug use within prisons had been refused in the late 1980s, prompting protests outside Pentonville prison involving helium-filled condoms. Ministers remained unmoved, and retained plausible deniability that there was any problem that required action.
The Prison Service’s Directorate of Health Care found a way to sidestep these barriers a few years later. This was prompted by confirmation in 1994 that a prisoner had been infected with HIV through sexual contact while in prison: the hypothetical had finally become reality. All prison doctors were advised that they had a duty of care to prescribe as best they could to reduce infection, which could and should include the prescribing of condoms to prevent the transmission of HIV. This was a strictly medical solution, to be implemented on a case by case basis within the privacy of the consulting room. Reliance on clinical decision-making avoided any need for wider debate or policy change.
This was far from ideal. Without any discussion about sex between prisoners, prisoners’ rights, or the logic behind this newly endorsed prescribing power, it was entirely possible for this guidance to doctors to have virtually no impact. The concerns of prison staff about the possible outcomes or legalities of allowing condoms had not been addressed. The extent of sexual activity amongst prisoners remained officially unknown and unspoken, and the goal of preventing all sex between prisoners remained. The rights of prisoners to the same methods of protecting their health as anyone else, and the implications of this for the disciplinary structures of the prisons, were not considered.
The longstanding independence of prison doctors, and indeed of individual prisons to adopt and interpret policy guidelines as they saw fit, added to the problem. Staff in different locations found their own ways to balance their duty to prevent sex between prisoners on the grounds of good order and control, with their less well articulated responsibilities to individual and public health.
Litigation, research, and reporting from the 1990s to the present day has pointed to significant inconsistencies across the prison estate, with doctors in some prisons extremely reluctant to prescribe condoms, governors in other instances forbidding them outright in the name of security, and prisoners in some institutions unaware that they might be able to obtain condoms at all. Reliance upon individualised medical decision-making was simply not enough to overcome pre-existing institutional priorities and beliefs.
The principle of equivalence, to which England and Wales as well as many other nations around the world subscribe, holds that prisoners should receive the same standard of care and treatment available to the general public. But in practice, the delivery of healthcare within prisons takes place amidst a miasma of strongly held (and sometimes contradictory) assumptions about prisoners and the purpose of their incarceration. Goals of punishment, security, deterrence, rehabilitation, education, treatment, and reform cannot easily coexist. The emergence of HIV and AIDS as a health crisis of enormous proportions brought about many changes in how we think about sex and what preventive healthcare might include, but until we rethink prisons themselves, their occupants will remain at risk.
Further reading:
Virginia Berridge, AIDS in the UK: the making of policy, 1981-1994 (Oxford: Oxford University Press, 1996)
Regina Kunzel, Criminal Intimacy: Prison and the Uneven History of Modern American Sexuality (Chicago: University of Chicago Press, 2008)
Perkins, Access to Condoms for Prisoners in the European Union: Final Report (London: National AIDS and Prisons Forum, 1998)
Janet Weston is a historian at the London School of Hygiene and Tropical Medicine, where she is researching the impact of HIV and AIDS on English and Irish prisons as part of a Wellcome Trust-funded project examining healthcare for prisoners since 1850. She is also preparing a book for Bloomsbury about the evolution of medical theories and cures for sexual crime in twentieth century England.
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