08/01/2012 04:24 pm ET Updated Oct 01, 2012

Who Is a 'Criminal?' Exclusion of Vulnerable Groups From International AIDS Conference Nothing to Celebrate

As the International AIDS Conference ended in Washington, D.C., last week, rumor has it that the lead organizer invited participants to celebrate the fact that "criminals" had been kept out of the conference. This with reference to the fact that sex workers and those convicted for drug crimes were prevented by current law from obtaining visas for the gathering.

Setting aside for a moment the insanity of excluding the voices of two groups very much affected by the HIV epidemic in general and by misdirected prevention policies in particular, and regardless of whether the rumors are true, we can use this opportunity to reflect on the definition, use and potentially manipulative power of criminal laws and policies.

For starters, our concept of what is criminal is relative and fluid at best. When I did research on access to abortion for rape victims in Mexico in 2006 and 2007, I was shocked to learn that child victims of incest were considered criminals in many jurisdictions. Meanwhile, rapists could escape the label by marrying their victim, a relatively common provision in several other countries too, including Cameroon and Brazil. This notion of incest victims as criminals and rapists as not criminals illustrates the fluidity of the concept.

Sex workers, too, are not always breaking the law. In some jurisdictions, such as Canada until very recently, sex workers could avoid criminal sanctions by doing only out-calls or by working alone -- conditions that tend to render their work more dangerous. In other jurisdictions, such as, for example, Nevada and New Zealand, sex work is generally legal, subject to regulation.

Punitive measures attached to drug use also depend on the jurisdiction, down to quite substantial differences on what constitutes an illegal substance in the first place. Considering the uncontested and severe health consequences of tobacco and alcohol overuse, it is amazing that these drugs are in legal circulation in the United States while other drugs with equal or lesser negative health implications are not. Moreover, there is now an overwhelming consensus that drug addiction is an illness rather than a malicious choice, and that treating it as an illness renders better (and cheaper) results than treating it as a crime.

But even if we believe existing criminal provisions in whichever jurisdiction we live in are just, the use of the criminal law to target specific populations for punishment should cause pause.

In the United States, Michelle Alexander has documented the highly selective application of the criminal law, in particular as it relates to drug-related infractions. For example, while whites and blacks use drugs at similar rates (and whites are slightly more likely to deal illegal drugs), blacks are overwhelmingly more likely to be targeted for arrest, prosecution and punishment. Likewise, ambiguous criminal law provisions on sex work in Louisiana up until very recently allowed the police to apply the provisions with the most severe punishments to trans sex workers of color.

Such police discretion in the use of criminal law -- even if one agrees with the provisions as they stand -- converts the penal code into a very effective tool for repression and discrimination.

In fact, those who believe in the fairness of existing criminal laws should be particularly worried about the selective application of them. If you think that everyone who smokes pot belongs in jail (and that the threat of jail sentences is a good way to bring down pot use), shouldn't you be worried that individuals who are neither resource-poor nor of color hardly ever are punished (and therefore will not benefit from the dissuasive powers of the law)?

More to the point, the selective implementation of criminal sanctions creates the illusion that white, upper-middle-class people can't be violent repeat offenders, something the exposure of Dominique Strauss-Kahn's sexually aggressive nature -- whether considered criminal or not -- should by now have been disproven.

In other words, the definition of criminal offenses, the selective implementation of the law, and the resulting stereotypes generate a self-enforcing loop of discrimination and exclusion to the detriment of all. The exclusion of so many legitimate voices from this year's AIDS conference is just one example. The incarceration of about 10 percent of the young adult black male population in the United States is another.

"Criminal" is not an objective term, and the application of criminal sanctions has consequences that go way beyond jail sentences or fines. Policy makers would do well to remember that when they seek to devise solutions to the many human rights violations suffered by sex workers, injection drug users and others vilified by the law.

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