The use of the condom to protect against the transmission of HIV in prisons

Abstract

This article rose as a response to a practical moral question about whether or not condoms ought to be distributed to inmates in prisons of England and Wales to protect those who indulge in homosexual, genital encounter from the danger of contagion from the HIV virus. The suggestion has been made that doctors in prison should distribute condoms to those who ask for them.

The analysis offered here examines a number of presuppositions, some of which are articulated and expressively embraced, others which remains tacit, perhaps never seriously entertained.

The former includes the efficacy of the condom as a protection against the transmission of the virus through genital encounter, the notion that the role of the State does not extend to interference in the sphere of private morality, and, more explicit in an initial response to the proposal, that people’s consciences ought to be respected. The latter include the opinion that there is, nevertheless, a responsibility attaching to prison authorities for the well-being of inmates, if only to protect them from contagion, that sexuality is a matter of merely private morality, that morality concerns what is consequential upon deliberate action, but not a question of intrinsic good or evil.

It si argued here that the degree of protection afforded by the condom is over-estimated, that the implicit function of the State and of prisons is to foster the common good, and that this entails a duty of care for prisoners, especially for the weakest and most vulnerable. Although a thorough-going reform of prisoners is not the direct responsibility of prison authorities, it is argued that there is an obligation not to damage them or to facilitate such damage. The impact of what is contemplated upon family and upon society is considered. The proposal envisaged would seem to threaten the well-being of inmates, the stability of prisons, the institution of marriage, and the likelihood of an eventual, successful rehabilitation of prisoners into society.

To foment a practice which is intrinsically immoral cannot be justified, it is claimed here, even were the lesser evil argument can be invoked. Rights of the conscience and the correlative duty to respect conscience do not legitimate practices which are of their nature wrong. It is argued that the adoption of the policy proposed by bodies with a duty to the State and to society for the common good would in fact undermine the common good by facilitating what is scandalous.