INTRODUCTION
Prison and the rules that define its uses are a particularly relevant mirror of society in the sense that prison is the place where all the oppressive structures of the state are crystallized.
The prison system has been intensively studied, as it raises certain key issues. The recidivism problem has constantly been pointed out in public speeches, most of the reintegration processes fail, the means of deprivation of liberty commonly deviate into cruel, inhuman or degrading treatment. But the situation of women in prison remains poorly studied. While torture and ill-treatment in detention have long been a source of great concern, the gender dimension of the problem has not been sufficiently explored.
Just over half a million women and girls are held in penitentiaries around the world. This represents between 2 and 9 per cent of the prison population[1]. Everywhere, women represent a minority of the national prison population, while they represent half of the world’s population. Prison can indeed be assimilated to a “house of men”, that is to say, in line with the definition given by Maurice Godelier (1982), a monosexual space contributing to the production and consolidation of masculine identity and privileges that are attached to it[2]. And although women are rarely sanctioned – about two times less than men – by decisions involving deprivation of liberty, they are confronted with multiple discriminations within prisons.
THE FACTOR OF WOMEN’S INCARCERATION IN PATRIARCHAL SOCIETIES
There are some common factors in the detention of women: generally, they have committed minor, non-violent offenses, they come from a disadvantaged and marginalized social background, suffer from mental disorders or from alcoholism or drug addiction. The detention of women is often linked to poverty, which on the one hand is a cause of delinquency and on the other hand deprives them of the financial capacity to access legal services, pay a fine or pay bail[3].
In some countries with discriminatory laws, the causes differ. For example, the report on the situation of women detained in Senegal (2015) states that “the offenses leading to detention (…) reveal that after drug trafficking (31%), infanticide is the main women’s cause of incarceration (16%)[4]. At the time of the visits, 3% of the women were in detention due to abortion. »[5] In Uganda, until April 2007, women found guilty of adultery were fined or sentenced to imprisonment[6].
Women may be detained for crimes of which they were victims in order to protect them from gender-based violence. This is the case of women who have been raped and who are at risk of rape, or exposed to violences from their relatives in order to prevent them from testifying. The same applies to women who have exceeded the strict rules required by custom, tradition or religion and who are therefore at risk of being victims of an “honour crime”[7]. In some countries, victims of trafficking may also be detained for protection purposes. For example, in Jordan women were at risk of being victims of honor killings and were held for up to 14 years[8]. Detention may also be aimed at ensuring that women testify[9].
Moreover, these practices have the effect of inflicting further trauma to victims and deterring them from filing a complaint and may in themselves constitute a form of torture or ill-treatment[10].
ALL EQUAL BEFORE INTERNATIONAL LAW
According to the WHO, incarceration represents a danger to health: the health status of prisoners is generally well below than that of the rest of the population.[11] However, a whole legal arsenal has been built around the deprivation of freedoms so that certain fundamental rights are respected:
Article 10 and 10.3 of the International Covenant on Civil and Political Rights provides that: « All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Article 5 of The Universal Declaration of Human Rights states that « No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. »
Paragraph 1 of Article 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calls on States to « prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official» Other international instruments have emerged, such as the Standard Minimum Rules for the Treatment of Prisoners (1955), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987), the Basic Principles for the Treatment of Prisoners (1990). In 1985, the Commission on Human Rights set up a Special Rapporteur on torture.
However, all these rules do not dissociate women and men. But « Putting people in situations of inequality on an equal footing perpetuates injustice instead of eradicating it. »[12] This is why real equality implies that specific measures are taken to eradicate existing inequalities.
INTERNATIONAL RULES THAT TAKE INTO ACCOUNT THE SPECIFICITY OF WOMEN PRISONERS
Declaration on the Elimination of Violence against Women includes in its definition of “violence against women” « Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs. » (Art 2, c)
If the Nelson Mandela Rules (United Nations Standard Minimum Rules for the Treatment of Prisoners) already provided Rule 6 (1) that « The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex(…)» and rule 53 (2) that « No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer » calling for a strict separation of sections, on 21 December 2010, the United Nations General Assembly took an important step towards better accounting for the needs and characteristics of women in the criminal justice system. By adopting Resolution A / RES / 65/229 by consensus, it approved the United Nations Rules on the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (known as the “Bangkok Rules”). These rules have filled a gap in international law by recognizing the unique circumstances and needs of women offenders and proposing ways to address them.
But the existence of a gap between what the law orders and practice is a constant issue.
A WIDE GAP BETWEEN INTERNATIONAL LAW AND THE SITUATION OF INCARCERATED WOMEN
Women with few resources and similar life courses
Women in penal institutions are mostly single, poor, minority mothers. In Canada, young, low-educated, unemployed or low-income women are overrepresented relative to their share of the population. Two-thirds of female inmates in federal penitentiaries are mothers and almost three-quarters of these mothers are single mothers. Once incarcerated, only 20% of them can rely on family members to care for children while they are away, while more than 80% of incarcerated fathers can entrust their children to a spouse or a relative[13].
Overall, studies have shown that women have significantly higher mental health needs than men when they are placed in detention, often because of domestic violence, abuse or sexual abuse. Once in detention, women are more likely to suffer psychological distress than male prisoners[14].
In addition, because mental disorders can be considered as a risk, women with mental disabilities are often placed in units with a higher security level than required, which can be extremely detrimental to their mental well-being and could worsen their condition. Women may need mental health care as soon as they are detained or develop mental health problems in prison. Therefore, they constitute a high-risk group because cell confinement can lead to harmful psychological effects. Women with mental disabilities are extremely vulnerable to the risk of abuse because they may not have the psychological balance needed to protect themselves or defend themselves; they may not be able to determine when certain limits are exceeded and their complaints may not be taken seriously[15].
Frequency of drug addiction and post-traumatic syndromes
Drug-related offenses are one of the largest categories of offenses committed by women and drugs are often the main cause of their delinquent behavior. Research also indicates that female prisoners are more likely to be addicted to hard drugs than male prisoners[16]. For example, it is estimated that at least 75% of women arriving in prison in England and Wales have problems related to their use of drugs at the moment of their arrest, and another estimate claims that 75% of women entering European prisons have a problematic use of drug and alcohol[17]. When drug abuse is not treated during detention, there is a high risk of re-offending, whether drug-related offenses, theft or prostitution in order to finance dependency[18].
Risks related to detention
The separation of men and women and the assignment of exclusively female prison staff to the surveillance of women prisoners are fundamental guarantees against violence. Detained women are at risk of sexual violence when supervised by male staff. These acts may include, in the best-case scenario, spying on women detainees in their private cells, showers or toilets or intruding into their cells when they are undressed[19]; and at worst, to require sex in exchange for goods and services, or to routinize and normalize rape[20]. Body searches, in particular strip searches and full searches[21] are common practices and may constitute a form of abuse when they are unjustified, humiliating or discriminatory. This is particularly the case for routine vaginal examinations of women suspected of drug trafficking[22].
It is also common for women who refuse to be subjected to a strip search or a full search to be held in solitary confinement or deprived of visits by way of reprisals[23]. In addition, because they have internalized from an early age the idea of a sexual male privilege in the area of sexuality, women prisoners have increased sexual services by a sense of obligation and fear of reprisal[24].
In many countries, victims of trafficking are imprisoned and charged for prostitution, illegal entry into the country, illegal residence or illegal work, despite international conventions that require states to protect victims of trafficking to avoid being re-victimized[25]. When placed in detention, these women are particularly vulnerable because of their association with the sex trade and prejudice about their alleged sexual promiscuity.
Deplorable sanitary conditions
The European Prison Rules prescribe that “special provision shall be made for the sanitary needs of women” (19.7), in practice, however, penitentiary authorities do not provide sanitary napkins or only provide them in limited medical conditions. Women may even be deprived of it as a punishment[26].
Similarly, the nutritional intake is largely insufficient in some institutions, as shown in the report on the situation of women’s rights in places of detention in Senegal. Although the minimum rules for the treatment of detainees recommend regular feeding times, a diet of good quality, well prepared and served, with sufficient nutritional value to maintain their health and strength, the very small subsidy awarded by the state can provide only one daily meal for each female inmate. As a result, only female prisoners whose families have the means to send them meals are able to complete the low daily ration more or less satisfactorily.[27] In this context, the situation of foreign women prisoners or persons detained in localities where they have no family or acquaintance is a particular concern.
Places of detention: a source of multiple discrimination for women
- Geographically marginalized institutions
Since the majority of prisoners are usually men, in most countries prisons have been designed to meet their needs; however, women are often held in sections of these same establishments. For example, in France there are 190 prisons spread across the French territory, but only two prisons are reserved for women[28], and some European countries have only one prison exclusively for women[29]. As a result, they are often placed in institutions far removed from their communities and families. Families have to travel very long distances to visit their relatives detained. Visits are even more difficult where public transport is poor, expensive or non-existent, or where women are not allowed to travel alone.
Visits are crucial to the psychological balance of a detained person and are a means of obtaining food, medicine or other essential items when resources are limited and the authorities do not provide the necessary goods.
- Less access to infrastructure
The fact that women are fewer raises various problems for prison administrations. Prison rules and facilities were created in order to accommodate a prison population in which male prisoners are considered to be the norm. The principle of strict separation between men and women makes it more difficult to take care of them: it is necessary to reserve time slots for them, which, in fact, limits their access to common services such as the library, the gymnasium, and even the medical unit.
The lack of infrastructures can also be experienced outside the prison. The early release measures envisaged in case of prison overcrowding are often not available to women because they have no place to go, and for example, no social rehabilitation center can accommodate them.
- Limited access to training
In many countries, programs for women are less varied and of less quality than those available to male prisoners; and on top of that, where such programs are offered, they focus on skills traditionally associated with women, such as sewing, cooking, beauty or hairdressing.
Finally, male inmates are often offered a wider range of recreational and educational programs and income-generating projects than women, and they have more opportunities to get out of jail to work outside the prison[30]. This observation is a reflection of a more general trend which underlies that the lack of programs intended for women is due to the fact that female inmates are fewer in number than their male counterparts. This sometimes means that it is not considered viable to create a workshop exclusively for them.
A trend toward marginalization which may aggravate imprisonment
The lack of accomodation capacity or specific premises reserved for women, the obligation to separate the categories of prisoners (pre-trial / sentenced; short / long sentences) or the presence of only one female prisoner in one establishment can lead to the fact that a woman finds herself placed for prolonged periods in a detention unit subjected to an excessively strict regime, sometimes close to solitary confinement[31]. Though, it has been convincingly established on many occasions that solitary confinement can lead to serious psychological and sometimes physiological disturbances.
The Istanbul Declaration recommends that “the use of solitary confinement in prisons should be kept to a minimum.” and specifies that this practice should be absolutely prohibited, particularly in the case of prisoners suffering from mental illness.
In addition, because there are few female penitentiaries, they receive convicted prisoners for a wide range of crimes. But the treatment that is reserved for them is always dictated by the imperatives of maximum security. The most dangerous female detainees are often incarcerated with other female inmates[32]. This inadequate classification can often restrict women’s access to available programs for a large part of their sentence, which can reduce their chances of succesfull reintegration into society.
These factors may help to explain the fact that rates of suicide and self-harm are much higher among female inmates. Moreover, in France, small women’s units do not generally have an “arriving district”[33], that is to say, a transition zone allowing new prisoners to adapt to the total deprivation of liberty of the prison, and according to some studies, there is a greater risk of self-harm and suicide among inmates in the period immediately following their admission to custody[34]. Besides, according to research by the National Institute of Corrections of the US Department of Justice 50 percent of suicides in prison arrive during the first 24 hours and 27% during the first 3 hours.
The situation of underage girls
In places of detention, girls are one of the most vulnerable groups because of their age, gender and low numerical importance. Most penitentiary systems around the world do not have a policy or program specifically designed to meet their particular needs, particularly in terms of protection. They are thus placed in the same districts as adult women. Young girls can be abused by older women and by female staff. The European Parliament calls on states in its resolution of 13 March 2008 to « put an end to the incarceration of girls and boys aged 18 and under in adult detention centers ».
In addition, the majority of them have been subjected to abuse and violence, which has favored their shift to delinquency. The special needs of their physical and mental health are often not recognized, and incarceration itself is likely to aggravate their trauma; depression, anxiety, and the risk of suicide or self-injury are more pronounced for girls than for boys or adults [35].
RETHINKING THE PENAL PROCESS THROUGH THE PRISM OF PATRIARCHY
After seeing the difference between the law and its use in different countries, we must examine how criminal control is based on conceptions of the “masculine” and the “feminine” which partially bias the resolutions adopted by international or regional institutions such as the UN, the European Parliament and all the documents drafted (information reports, summaries) by other institutional structures such as the National Assembly or the Senate in France. Indeed, the judicial actors turn a blind eye to the criminal behavior of women who comply with the expectations of women’s roles, but they are more severe towards those who do not comply[36]. For example, a number of girls may have committed one or more offenses, without being subject to criminal prosecution, which is more rare for male minors. Therefore, girls are no longer designated as delinquents but as “minor in danger”, and they remain in the civil sphere[37].
This can be explained by the conception of the role of the female that endlessly refers women prisoners to a maternal condition, even in official documents. The discourses are governed by the assumption that motherhood would make the “specificity” of women prisoners.
The French Senate Activity Report (2009) states that french prisons “do not spontaneously take into account women’s specific needs and specificities: the importance of family ties, modesty and respect for intimacy”
The Commentary to the Bangkok Rules speaks of “mothers’ and their children’s emotional need for close physical contact ” in Rule 28.
In prison, the example of “nurseries” or “mother-child units” is particularly significant. The identification of the categories of “mothers detainees with their child” and “pregnant women” is accompanied by specific and advantageous legislative provisions. Incarceration does not only mean for them a sentence: it is about “teaching them” their “job” as a mother, which is seen as a first step in integration into society. At the same time, no provision is made to generalize access to certain training or activities provided in the establishment, yet desired by these mothers.
Indeed, insofar as the maternal-feminine operate as a normative category, it contributes to producing other types of inequalities between women: between those who fulfill the expectations related to their sex and the others. Finally, parliamentary reports devote more than half of the few pages on women detainees to examining the situation of imprisoned mothers with their children, and these texts are strongly marked by traditional values regarding the place of women in society.
Institutions therefore participate greatly and openly in the construction of gender and the maintenance of structures of oppression.
This paper has been researched and drafted by Elise Pillet, intern at the President’s Secretariat of IAW in Athens, under the supervision of Joanna Manganara, President IAW.
[1] Julie Ashdown et Mel James, Les femmes dans les lieux de détention, Revue internationale de la Croix-Rouge, 2010
[2] Joël, Myriam. « Conduites sexualisées et pouvoir dans les prisons de femmes », Hermès, La Revue, vol. 69, no. 2, 2014, pp. 65-70.
[3] Penal Reform International, fiche pratique sur la réforme pénale No 3, 2008, available here : https://www.penalreform.org/wp-content/uploads/2013/06/brf-03-2008-women-in-prison-fr.pdf
[4] Infanticide is often the result of pre-existing situations of discrimination or violence, including pregnancies resulting from acts of sexual violence. The important rate of conviction for infanticide is also partly explained by the total prohibition on voluntary termination of pregnancies, for which a sentence to a five year term of imprisonment can be prescribed by the law.
[5] Rapport sur la situation des droits des femmes dans les lieux de détention au Sénégal, Dakar, mars 2015, available here : http://www.westafrica.ohchr.org/IMG/pdf/rapport_femmes_detention.pdf
[6] Penal Reform International, fiche pratique sur la réforme pénale No 3 , 2008, available here : https://www.penalreform.org/wp-content/uploads/2013/06/brf-03-2008-women-in-prison-fr.pdf
[7] Penal Reform International, outil pratique, Femmes privées de liberté : inclure la dimension genre dans le monitoring Penal reform international, 2013, available here : https://www.apt.ch/content/files_res/women-in-detention-fr.pdf
[8] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, Manfred Nowak, Doc. ONU A/HRC/7/3, 15 janvier 2008, §43.
[9] Haut-Commissariat des Nations Unies aux droits de l’homme (HCDH), Dignity and Justice for Detainees Week: Information Note N° 5, Genève, 2008, p. 2.
[10] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, 5 janvier 2016, A/HRC/31/57
[11] Organisation Mondiale de la Santé (Europe), Prison Health as part of Public Health, Déclaration de Moscou, 24 octobre 2003.
[12] Office du Haut Commissaire aux droits de l’homme des Nations Unies, Fiche d’information n° 22 : Discrimination à l’égard des femmes : La Convention et le Comité, Genève, undated. (translation by the author)
[13] Lempen, Karine. « Société Élisabeth Fry du Québec : La justice pénale et les femmes », Nouvelles Questions Féministes, vol. vol. 34, no. 2, 2015, pp. 120-123.
[14] Julie Ashdown et Mel James, Les femmes dans les lieux de détention, Revue internationale de la Croix-Rouge, 2010,
[15] Penal Reform International, outil pratique, Femmes privées de liberté : inclure la dimension genre dans le monitoring Penal reform international, 2013, available here : https://www.apt.ch/content/files_res/women-in-detention-fr.pdf
[16] Commentary to the United Nations Rules for the treatment of women prisoners and non-custodial measures for women offenders (the Bangkok Rules), 2009, available here : https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf
[17] OMS/Europe, La santé dans les prisons, le Guide de l’OMS sur la santé en prison (2007) et Les femmes en prisons, un examen des conditions dans les États membres du Conseil de l’Europe, Conseil Quaker des a aires européennes, p. 12
[18]Ibid.
[19] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, 5 janvier 2016, A/HRC/31/57
[20] Penal Reform International, outil pratique, Femmes privées de liberté : inclure la dimension genre dans le monitoring Penal reform international, 2013, available here : https://www.apt.ch/content/files_res/women-in-detention-fr.pdf
[21] The strip search consists of removing or lifting all or part of a person’s clothing in a way to allow a visual inspection of the private areas of the individual concerned. Intrusive body searches involve physical inspection of the inmate’s genital or anal areas.
[22] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, 5 janvier 2016, A/HRC/31/57
[23] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, 5 janvier 2016, A/HRC/31/57
[24]Joël, Myriam. « Conduites sexualisées et pouvoir dans les prisons de femmes », Hermès, La Revue, vol. 69, no. 2, 2014, pp. 65-70.
[25] Assemblée générale de l’ONU, Protocole additionnel à la Convention des Nations unies contre la criminalité transnationale organisée visant à prévenir, réprimer et punir la traite des personnes, en particulier des femmes et des enfants, 15 novembre 2000
[26] Penal Reform International, fiche pratique sur la réforme pénale No 3, 2008, available here : https://www.penalreform.org/wp-content/uploads/2013/06/brf-03-2008-women-in-prison-fr.pdf
[27]Rapport sur la situation des droits des femmes dans les lieux de détention au Sénégal, Dakar, mars 2015, available here : http://www.westafrica.ohchr.org/IMG/pdf/rapport_femmes_detention.pdf
[28] European Prison Observatory, Prison conditions in France, Marie Crétenot, Barbara Liaras, 2013
[29] Resolution 1663 (2009), Women in prison, Council of Europe, available here : http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17733&lang=en
[30] Julie Ashdown et Mel James, Les femmes dans les lieux de détention, Revue internationale de la Croix-Rouge, 2010
[31] Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT), Fiche thématique – Janvier 2018
[32] Rapport d’activité de la délégation du Sénat aux droits des femmes et à l’égalité des chances entre les hommes et les femmes, n° 156, 11 décembre 2009
[33] Rapport d’information de la délégation aux droits des femmes de l’Assemblée Nationale, n°1900 par M. Guénhaël HUET, 8 septembre 2009.
[34] Commentary to the United Nations Rules for the treatment of women prisoners and non-custodial measures for women offenders (the Bangkok Rules), 2009, available here : https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf
[35] Rapport du Rapporteur spécial sur la torture et autres peines ou traitements cruels, inhumains ou dégradants, 5 janvier 2016, A/HRC/31/57
[36] Cardi, Coline. « Le contrôle social réservé aux femmes : entre prison, justice et travail social », Déviance et Société, vol. vol. 31, no. 1, 2007, pp. 3-23.
[37] Ibid.
