International standards for women offenders and prisoners

Written By: Florina Laza

(The Bangkok Rules)

            Do you get a sense of deja vu when you hear in the media about the poor conditions in our prisons? But how this would affect your judgment if the subject of discussion would be your grandmother, mother, aunt, sister or your dear female friend?

            More than half a million women and girls are currently being detained in prisons all around the world. But the majority of people in prison are men; women constitute only an estimated two to nine percent of national person population globally. Even so, the percentage of women has increased significantly in recent years, and at a faster rate than that of men. However, because the vast majority of lawbreakers are male, the prisons have been designed for centuries to respond to the needs of the majority male prison population. In this context, women’s specific needs are often overlooked and overshadowed by those of men, even in high-income countries.

            There are many characteristics that set the differences between the needs of men and women, and they need to be acknowledged and understand. Biologically speaking, women are simply different from men, having other physical features, needs, and psychological predispositions. Women need a more sensitive approach when it comes to healthcare and hygiene needs considering that some of them are pregnant or could suffer other medical implications. In this frame of reference, Julie Bilotta study case represents a good example of how women needs are ignored and treated arbitrarily by the prison employees.

            Almost 6 years ago, in Canada, a pregnant woman named Julie Bilotta was sent to pre-trial detention for drug and fraud-related charges. Shortly after, she started to feel labor pains, but the medical staff told her she was only in phantom labor and prescribed her digestive medicines. The pains became greater and she started to complain louder hoping someone might help her, but the prison guard told her to “shut up” and moved her to a segregated cell as a form of punishment. Only when the baby’s feet emerged the prison stuff called for an ambulance, but Julie was already giving birth in a prison cell in worst conditions possible. Because of the prison and medical stuff lack of interest, the baby was born with respiratory problems and the mother needed to be hospitalized for a blood transfusion. Her case proves without a doubt how specific female needs are overshadowed by the sense of false authority and justice.

            In contrast with usual male prisoner patterns, the stories behind the crimes are different for women offenders, the circumstances are particular and the determining factors of a criminal offense can only be subject to specific psychological approaches. Usually, they are driven by poverty and a sense of responsibility to support their families when committing criminal offenses such as theft, fraud, and minor drug-related offenses. Only a small minority of women are convicted of violent crimes. Nevertheless, it is estimated that a large percentage of women have been victims of violence themselves in their lives. A study conducted in 1999 at Bedford Hills correctional facility in the US shows that 94% of women prisoners have experienced physical and sexual abuse in their lifetime. Experts say that prior abuse in a women life may result in a criminal behavior.

            The most common profile is constituted by the image of a young woman, usually, unemployed who dropped out of school has children to take care of, and because of their lack of education, they also have no knowledge about their rights in criminal justice and prison settings.

            All these conclude to the fact that women have certain characteristics and needs that must be taken care of by all authorities around the world. But even so, right now we are talking about centuries of a so-called “tradition” when it comes to the higher representation of men in prisons, thus resulting in a system designed especially to meet the needs of men. We could even say that discrimination against women in prisons stays at the core of the justice system, particularly because of well-known stigma based on the traditional gender roles. While women regularly support their incarcerated partners, women prisoners don’t enjoy the same treatment. They are often abandoned by their husbands and even by their whole family.

            All international instruments support the principle of non-discrimination that is based on Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. The next article underlines once more how insignificant distinctions of any kind are between individuals when it comes to acknowledging rights and freedoms: “Everyone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind, such as race, color, sex, language, religion, political or another opinion, national or social origin, property, birth or another status”.

But we must remember that treating everyone as equal does not lead to equity or justice. So equal treatment does not result in equal outcomes, and discrimination may come in many forms. On those terms, the international community recognized that there was a clear gap in the international framework with respect to the correct treatment of women in prisons. And finally, in 2010, a regulated set of rules designed to embrace those specific needs became a reality when the United Nations General Assembly adopted the Resolution A/RES/65/229. They are the “The Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders”. They are, also, known as the Bangkok Rules, because they were initiated by the government of Thailand, Princess Bajrakitiyabha playing a major role in the development of the Rules.

            The Bangkok Rules are a so-called soft law instrument which means they are not legally binding like conventions, but they express an international commitment from all member states (193 member states of UN) and over time can become “good practice“, growing as influential as legally binding conventions. They apply to women prisoners in pre-trial detention, serving a sentence, women subject to non-custodial measures (pre-trial) or non-custodial sanctions (post-conviction), women offenders subject to corrective measures and women detained under “protective” custody. Some of the rules apply equally to both men and women, especially those relating to parental responsibility, medical services or searching procedures, and other only refer to the situation of the children of prisoners.

            This international instrument aims to create the main guideline for policymakers, legislators, sentencing authorities and prison stuff. As a result of it, finally, the unnecessary suffering for women in prisons may be reduced significantly. Because of the harsh conditions completely unsuited for women, they tend to have fewer chances in reintegration, leading even to recidivism as a way of survival. And considering that women are the primary caretaker of young children, even short periods of detention can have a damaging impact on a child’s normal growth.

            There are many international instruments that create an all-encompassing image of the international framework for the treatment of prisoners or offenders serving alternative sanctions. These include the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), which were initially adopted in 1955 and recently revised in 2015, and the UN Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules). The UN Bangkok Rules have the purpose of filling in the missing parts of the others, coming to supplement rather than replace the Nelson Mandela Rules and the Tokyo Rules.

The Nelson Mandela Rules present a set of minimum international legal standards for the treatment of prisoners. They have been used as a model for the creation of specific national legislation by governments from all around the world. They were, of course, an important step forward for a better civilization, considering that all UN member states committed to addressing all the required conditions and norms. The Tokyo Rules were adopted in 1990 and came in handy for the promotion of non-custodial measures and minimum safeguards for people subject to alternatives to imprisonment. All those international instruments create international standards, generally speaking, the Nelson Mandela Rules supplementing only in some areas the Bangkok Rules, and the Tokyo Rules only refer to non-specific provisions aiming the protection of men and women equally. And so, those specific provisions aspire to protect female prisoners who are in prison awaiting trial or serving prison sentences following a conviction, female offenders sentenced to non-custodial sanctions and children of the imprisoned parent.
Without a doubt, the adoption of the Bangkok Rules represented a major step forward in recognizing the gender-specific needs of women in the criminal justice system, providing a good example for government ministries, policymakers, legislators, prison authorities and staff, prison healthcare services, probation and parole services, and prison monitoring bodies.
They contain a wide range of healthcare and rehabilitation programs, necessary training for prison staff and, of course, supplementary assessments for visiting rights. This means a required reproductive healthcare, gender-specific medical treatments, prevention for substance abuse, well-prepared responses for mental health and indispensable access to preventive health care such as breast cancer screening. There is, also, a prohibition of solitary confinement or disciplinary segregation for pregnant women, women with infants and breastfeeding mothers. Furthermore, women should be treated with humanity and dignity, emphasizing on search procedures. For example, they should be searched by female guards and not by the man who often sees an opportunity in using their authority in harassing and humiliating them. It is common knowledge that women prisoners are particularly vulnerable to all forms of sexual misconduct by prison staff and other prisoners. The Rules also demand a special treatment for mothers prior to admission, so they can find the most appropriate alternative childcare.
In conclusion, the society made huge improvements over the years in respect to the protection of incarcerated women in prison facilities offering a tremendous scale of model provisions that don’t require additional resources for their implementation. What is to be truly changed is the common prejudice of people when it comes to a women role in the society, her image, and her reputation, because all these affect her reintegration and her ability to live her life in a proper manner. Moreover, the international community should implement gender-sensitive alternatives to detention, because imprisonment has become more of an ineffective tool than a useful one, often destroying any chances of a future outside the prison facility.

Edited By: Rachit Mehrotra

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