In what appears to be the first case of its kind, New York State's highest judicial body, the Court of Appeals, has ruled 4 to 3 that conjugal visits can be denied to inmates with AIDS. In the past two years, this court has reached unanimous decisions in more than 90 percent of the cases before it, but AIDS split it asunder.
"John and Jane Doe" were married in 1985. At the time, he was serving a 5 1/2- to 11-year sentence for a crime that has not been disclosed. In October 1985, he and his wife were allowed a two-day conjugal visit in a trailer on the prison grounds. Two months later, he was diagnosed as having AIDS and was told there would be no more conjugal visits.
The New York State Department of Correctional Services has a Family Reunion Program, which permits selected inmates and their spouses or relatives to have private visits. The aim is to "preserve, enhance and strengthen family ties that have been disrupted by incarceration."
When John Doe found he had AIDS, he and his wife obtained counseling concerning "safe sex" practices and other precautions against infection. Jane Doe was also told -- though it was quite evident to her already -- that it was particularly important to her husband to have time alone with his wife in view of the dimness of his future. They applied for another conjugal visit, and it was denied.
Jane Doe has continued visiting her husband. In an affidavit, she describes those visits: "I must sit in a hallway across the table from my husband who is seated in an isolation room. A correctional officer stands approximately eight feet away restricting our physical contact . . . our conversations are heard by this officer and any other medical and security personnel using the hallway in the unit."
The majority of the Court of Appeals found that since the corrections department is not obligated to allow conjugal visits for any prisoner, it can take away that privilege if there is a rational basis for doing so. Furthermore, "the state has a substantial interest in preventing the transmission and spread of communicable diseases."
After all, said the main opinion, Jane Doe could become pregnant and transmit the virus to her child. She could become single -- "by divorce or widowhood" -- and transmit the virus to a gentleman caller. Or, said the less gallant attorneys for the state, Jane Doe could commit adultery.
The dissenting judges agreed that the corrections department is not required to have a program of conjugal visits. But once it does give the inmates a chance to exercise a fundamental right -- the marital right of privacy -- it has to administer the program on "an equal and constitutional basis."
A marital couple does have a constitutional right, said the dissenters, to make its own "personal intimate decisions." And, "without question," if John Doe were "not an inmate," he and his wife could not be denied the right to be together as a married couple and engage in sexual relations " -- even though he has AIDS."
The judges in dissent added that if Jane Doe did contract AIDS, that would certainly have no impact on the prison community; and after all, the commissioner of corrections' responsibility concerns primarily the prisoners in his charge. Judges, noted the dissenters, generally defer to prison administrators on prison matters because of their expertise. But deference is not justified when the prison administrators make decisions involving the general population outside the gates. Deference is even less justified when marital privacy rights are involved.
Jane and John Doe have asked for a rehearing and if it is denied, they may appeal to the U.S. Supreme Court. Had John Doe been a prisoner in Connecticut, however, there might not have been a lawsuit.
In a letter submitted to the New York courts by the Does' lawyers, Dr. Edward Blanchette, medical director of Connecticut's Department of Correction, said that selected inmates there are also allowed conjugal visits in private trailers.
Prisoners with AIDS or infected with the AIDs virus can participate in those conjugal visits after Dr. Blanchette informs them and their visitors of the risks of infection. The husband and wife then sign a standard release form confirming that they understand the risks and take the responsibility if infection does occur. And the state, it trusts, cannot be sued.
Dr. Blanchette told me that the system has "been well received by the inmates and their wives or husbands." But in New York State, as a lawyer for John and Jane Doe says, "'When an inmate most needs the comfort and emotional support of his wife, the state is saying to her, 'Stay away.' " S W E E T L A N D O F L I B E R T Y