BRIEFING: ACCESS TO JUSTICE

Discrimination of women in criminal justice systems

January 2012

Introduction
The circumstances in which women commit criminal offences are different from men. A
considerable proportion of women offenders are in prison as a direct or indirect result of
the multiple layers of discrimination and deprivation, often experienced at the hands of
their husbands or partners, their family and the community.

Offences committed by women are closely linked to poverty and often a means of survival
to support their family and children. The profile and background of women in prison, and
the reasons for which they are imprisoned, differ significantly from those of men. Like
men, women prisoners typically come from economically and socially disadvantaged
segments of society, but drug users, lower-level property offenders, and sex workers are
overrepresented.1 In contrast to male prison populations, women mainly commit petty
crimes, theft and fraud and studies have demonstrated that prior emotional, physical,
and/or sexual abuse contributed to women’s criminal behaviour.2 Due to their economic
status, they are particularly vulnerable to being detained because of their inability to pay
fines for petty offences and/or to pay bail.

Women (and girls) comprise the minority of prisoners around the world, constituting an
estimated two to nine per cent of national prison populations. However, the number of

1
For example, in Moscow in 2001, 64 per cent of women in pre-trial detention had been charged with theft.
In Croatia, 7.8 per cent of women were imprisoned for violent offences in 1998, with the rest having been
convicted of property offences, crimes against public safety, traffic offences and offences relating to the
authenticity of documents. In the Czech Republic in the same year the prosecution of over one third of all
women involved property-related offences and another third involved economic crimes. In the same year
women comprised 9 per cent of all violent criminal offenders. (UNODC, Handbook for Prison managers and
Policymakers on Women and Imprisonment, 2008, page 89)
2
For example, studies in the U. S. have demonstrated that “[o]ne of the most significant risk factors is prior
victimization (Women Offenders: Programming Needs and Promising Approaches, National Institute of
Justice, 1998). According to the 2002 Survey of Inmates in Local Jails, a national survey of jail inmates
conducted every 5 to 6 years, 36% of female inmates reported they had been sexually abused in the
past. (Profile of Jail Inmates, 2002, Bureau of Justice Statistics, 2004). (...) Furthermore, according to the
1998 National Council on Crime and Delinquency multidimensional study of girls in the California juvenile
justice system, 92% of the juvenile female offenders interviewed in 1998 reported that they had been
subjected to some form of emotional, physical, and/or sexual abuse (Juvenile Justice Journal Volume VI,
Number I, Investing in Girls: A 21st Century Strategy, Office of Juvenile Justice and Delinquency Prevention,
1999. (as quoted by National Criminal Justice Reference Service, US Department of Justice,
https://www.ncjrs.gov/spotlight/wgcjs/summary.html)
 2

imprisoned women has increased significantly in some countries, and at a greater rate
than for men.

Due to their small number amongst the prison population, the specific needs and
characteristics of women and girls as subjects of the criminal justice system have tended
to remain unacknowledged and unaddressed. Prison systems and prison regimes are
almost invariably designed for the majority male prison population – from the
architecture of prisons, to security procedures, to facilities for healthcare, family contact,
work and training. As a consequence, few prisons meet the specific needs of women
prisoners, and often do not prepare them for release with gender-appropriate
rehabilitation.

The United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (Bangkok Rules)3 were adopted in December 2010 to
rectify the lack of standards, however the international community still lacks awareness
and commitment to implementation.

Gender roles result in a particular stigma attached to women in prison, and while
spouses regularly support their husbands in prison and upon release as a matter of
course, reciprocally women tend to be shunned by their spouse - and often even the
whole family - if they are detained.

At the same time, women are often the sole or primary caretaker of young children,
resulting in a particular impact of even short periods of detention on children and the wider
family.

PRI would like to outline below the main issues arising in this context:

1. Gender-specific / status offences

2. Disadvantages during penal procedures
3. Non-custodial measures
4. Vulnerability to sexual abuse
5. Imprisonment / Detention
6. Girls in prison
7. Rehabilitation

1. Gender-specific / status offences

The term “status offences” refers to laws prohibiting certain actions to persons based on
their sex, race, nationality, religion, age etc.

In many countries where criminal sanctions are used to curb sexual or religious
“immorality”, offences such as adultery, sexual misconduct, violations of dress codes or
prostitution penalise women exclusively or disproportionately. Some studies also
suggest that females charged on moral or status offences are treated more harshly than
males, presumably for having transgressed their gender role.

In some jurisdictions, women even face charges of adultery where there is clear indication
that a rape occurred.

3
In 1980 the 6th UN Congress on the Prevention of Crime and Treatment of Offenders recognised that
women often do not receive the same attention and consideration as male offenders. However, it took until
2009 for the Crime Commission to task an expert group with the development of standards to explicitly
address this gap.
 3

Again, in some other countries detention is used as a form of “protection” for victims of
rape, to protect the victim as well as to ensure that she will testify against her rapist in
court. While in exceptional circumstances such measures may need to be taken for limited
periods, every effort needs to be made to ensure protection involves means that do not
involve detention. Such practice is further victimising women and deters them from
reporting rape and sexual abuse, thereby allowing perpetrators to escape justice.4

In some countries, particularly in the developing world, most women will never come into
contact with the formal justice system, but will be confronted with informal justice
systems, which the community may perceive as more legitimate than formal courts and in
tune with local customs. However, it is very difficult to apply human rights standards to
informal justice systems and they rarely guarantee women's right to equality before the
law. Rather, most informal justice systems are dominated by male elders or community
leaders and tend to perpetuate discrimination against women, largely excluding women
from decision-making and preserving patriarchal notions of how men and women should
behave.

 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment to the Human Rights Council (13th session): “(...) in some
countries, prolonged detention as such can become ill-treatment, as is the case for
instance when women are detained for their ‘protection’ for up to 14 years because
they are at risk of becoming victims of honour crimes.” The Special Rapporteur
recommended in the context of his visit to Jordan in 2006 that “[f]emales (...) detained
under the Crime Prevention Law for being at risk of becoming victims of honour
crimes be housed in specific victim shelters where they are at liberty but still enjoy
safe conditions.” (A/HRC/4/33/Add.3, para. 72 lit. (u))

 In her report to the Commission on Human Rights in 2003 the Special Rapporteur on
violence against women, its causes and consequences, noted that “[p]rotective
custody as a means of dealing with victims of VAW [violence against women] should
be abolished. Any protection provided should be voluntary. Shelters should be
opened and offer security, legal and psychological counselling and an effort to help
women in the future. NGOs’ cooperation in this field should be sought.” (Report of the
Special Rapporteur, Ms Radhika Coomaraswamy, Commission on Human Rights,
Integration of The Human Rights of Women and the Gender Perspective, Violence
Against Women, 6 January 2003, E/CN.4/2003/75, paras. 90 and 91.)

 The 2003 report of the Working Group on Arbitrary Detention to the Commission on
Human Rights recalled its annual report in 2001 (E/CN.4/2002/77 and Add.1 and 2)
and reiterated that “the Working Group had recommended, with regard to the
detention of women who have been the victims of violence or trafficking, that recourse
to deprivation of liberty in order to protect victims should be reconsidered and, in any
event, must be supervised by a judicial authority, and that such a measure must be
used only as a last resort and when the victims themselves desire it.” (Report of the
Working Group on Arbitrary Detention to the Commission on Human Rights, 16
December 2002, UN Doc. E/CN.4/2003/8, para. 65.)

COUNTRY EXAMPLES

4
In the light of such practices, Rule 59 of the Bangkok Rules provides that “[g]enerally, non-custodial
means of protection, for example in shelters managed by independent bodies, non-governmental
organizations or other community services, shall be used to protect women who need such protection.
Temporary measures involving custody to protect a woman shall only be applied when necessary and
expressly requested by the woman concerned and shall in all cases be supervised by judicial or other
competent authorities. Such protective measures shall not be continued against the will of the woman
concerned.”
 4

In the United States, the Department of Justice found that women were overrepresented among
low-level drug offenders who were non-violent, had minimal or no prior criminal history, and were
not principal figures in criminal organisations or activities, but nevertheless received sentences
similar to “high-level” drug offenders under the mandatory sentencing policies. From 1986 to 1996
the number of women sentenced to state prison for drug crimes increased ten-fold. Nationally one
in three women in prison and one in four women in jail were incarcerated for violating a drug law.
(Amnesty International, Women in Prison Factsheet, August 2005, citing Department of Justice,
Bureau of Justice Statistics, Prisoners in 1997, www.amnestyusa.org/women)

Many women who find themselves in the criminal justice system in Afghanistan have been
imprisoned for “moral crimes”. (...) Those that are imprisoned are not only victims of their social and
economic circumstances, but also of an unfair criminal justice system, where males and patriarchal
principles dominate. (...) Rape victims, who undergo virginity tests, which establish sexual
intercourse, may be convicted of adultery, if they cannot prove that the act was not consensual. In
order to prove that the act was forced, women may have to undergo forensic examinations to
identify evidence of self-defense on the body. In the cases of elopement, the release of the
detainee often depends on the result of the virginity test proving that the woman/girl did not have
sexual intercourse with the man accompanying her. If not proven, the woman is usually accused of
running away and adultery (zina) and sentenced to imprisonment. (...) In 2006 UNODC found that
50 per cent of women in Pul-e Charki Prison in Kabul were charged with or convicted of moral
offences, including zina and running away from home, combined with zina, in particular. (UNODC,
Afghanistan: Female Prisoners and their Social Reintegration, page 6, 25 and 40).

The lives of the vast majority of Afghans are ruled by customary law, which has survived for
centuries, regardless of, and to a large extent due to, the country’s violent political and military
history. In all regions of Afghanistan disputes and crimes are tried and resolved by a council of
elders (jirgas or shuras). Afghans regard jirga decisions as the law and condemn those who refuse
to accept these decisions. Such councils are made up exclusively of men. Women are unable to
approach the informal justice mechanisms, without the assistance of a male relative, which
severely limits their ability to raise certain issues with the local jirgas, even if they would so wish.
(UNODC, Afghanistan: Female Prisoners and Their Social Reintegration, page 15)

“According to Article 277 of the Egyptian Penal Code, a man’s adulterous act is considered as
such only if it takes place in the marital home, and he could face a sentence of six months in
prison, while a woman would receive a sentence of two-year imprisonment. The Egyptian legal and
human rights community took action on this issue, so that while social attitudes towards men’s
adultery as compared to women’s are still distinct, the law reflects a more equal penalty.” (Dr.
Sherifa Zuhur, Gender, Sexuality and the Criminal Laws in the Middle East and North Africa: A
Comparative Study, February 2005)

Reporting on his mission to Jordan in June 2006 the Special Rapporteur on torture stated that he
“is highly critical of the current policy of taking females under the provisions of the Crime
Prevention Law into “protective” detention because they are at risk of becoming victims of an
honour crime.” (Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment to the Human Rights Council (13th session), A/HRC/4/33/Add.3, para. 39)

In Iraq “Criminal arrest and detention places [female] victims at risk of further abuse or being killed
by their families upon release for dishonoring the family, and detention centers sometimes end up
serving as protective shelters to prevent families from killing women and girls at risk of honor
killing.” (Heartland Alliance, Iraq: Gender-Based Violence Prevention: Legal, Medical and
Psychosocial Services, http://www.heartlandalliance.org/international/wherewework/project-
pages/iraq-gender-based-violence.html)

GOOD PRACTICE

“As the result of a widespread campaign initiated and coordinated by women’s groups all around
[Turkey], in 1996 Article 441 of the Penal Code regulating adultery by men and two years later, in
1998, Article 440 of the Penal Code regulating adultery by women were annulled by the Turkish
Constitutional Court on grounds of violating the constitutional principle of equality before the law.”
(Women for Women’s Human Rights – New Ways, The New Legal Status of Women in Turkey,
Istanbul: WWHR-New Ways, 2002, p. 18)
 5

Multi-Agency Risk Assessment Conferences are held in the United Kingdom in cases of domestic
violence. Key agencies – police, probation, education, health, housing and the voluntary sector –
work together on an individual victim’s case to share information. This means that they can build up
a comprehensive picture of the abuse and agree action to support and protect domestic violence
victims and their families. (Redefining Justice: Addressing the individual needs of victims and
witnesses, Sara Payne, Victim, Support Services, UK, 2009)

3. Disadvantages during penal procedures

Women’s imprisonment is closely related to poverty, both because offences often relate to
supporting their family and escaping poverty and because they lack access to financial
resources in order to prevent detention.

The majority of offending and imprisoned women come from socially disadvantaged
communities and groups. In many countries typical female offenders will be young,
unemployed, have low levels of education and have dependent children. Typically, they
lack information on their rights.

Discrimination against women in society results in unequal power relations and access to
economic resources. As a result, women in conflict with the law depend on the willingness
of male family members to spend resources on due process of law for them.

This is reflected in particular vulnerability to being deprived of their liberty, for reasons
including an inability to pay for legal representation, fines for petty offences or to
meet financial and other bail or sentencing obligations.

GOOD PRACTICE

In 2000, a Paralegal Advisory Service (PAS) was set up by four NGOs in Malawi, with the support
and assistance of Penal Reform International. PAS represented a unique partnership between the
prison service and NGOs. Working closely with the prison administrations, PAS aimed to improve
communication, cooperation and coordination between the prisons, courts and police; to increase
legal literacy, helping prisoners to understand the law and how it affects them; and to provide legal
advice and assistance, enabling prisoners to apply the law and to help themselves. From the
outset, PAS particularly targeted cases involving vulnerable groups in prisons, including women.
(Msiska, Clifford W., National Coordinator, Paralegal Advisory Service, The Role of Paralegals in
the Reform of Pre-trial Detention: Insights from Malawi)

In Afghanistan UNIFEM developed a paralegal programme in partnership with the MOJ, Ministry
of Interior (MOI), MOWA, Afghan Women’s Network and Kabul University, to increase the legal
information and support available to women in more remote areas of Afghanistan. (United Nations
Development Fund for Women (UNIFEM), Paralegal Programme Proposal, November 2006.)

4. Non-custodial measures
A considerable proportion of women offenders do not necessarily pose a risk to society
and their imprisonment may not help, but hinder their social reintegration. Accordingly, the
criminal justice system should take into account their backgrounds and reasons that have
led to the offence committed and provide the assistance required to help them overcome
the underlying factors leading to criminal behaviour.

However, in most societies gender-specific alternatives to prison tailored to meet the

specific requirements of women offenders, in order to reduce re-offending, are lacking,
hindering the effective implementation of non-custodial sanctions and measures in the
case of many women offenders.
 6

The Bangkok Rules therefore provide, in Rule 57, that “[g]ender-specific options for
diversionary measures and pretrial and sentencing alternatives shall be developed
within Member States’ legal systems, taking account of the history of victimization of many
women offenders and their caretaking responsibilities.”

For example, research has indicated that restorative justice can be effective in the
social reintegration of women in some cultures. Since a large proportion of women
have mental healthcare needs, are drug- and/or alcohol-dependent, or suffer from
the trauma of domestic violence or sexual abuse, diverting them to a suitable
gender-appropriate treatment programme would address their needs much more
effectively than the harsh environment of prisons.5

The impact of being held in pre-trial detention, even for short periods, can be severe
if the prisoner is the sole carer of the children - a role still overwhelmingly held by
mothers. Even a short period in prison may have damaging, long-term
consequences for the children concerned and should be avoided, unless
unavoidable for the purposes of justice.

By keeping women out of prison, where imprisonment is not necessary or justified, their
children may be saved from the enduring adverse effects of their mothers’ imprisonment,
including their possible institutionalisation and own future incarceration.

 Rule 64 of the Bangkok Rules stresses that non-custodial sentences for

pregnant women and women with dependent children should be “preferred
where possible and appropriate, with custodial sentences being considered
when the offence is serious or violent or the woman represents a continuing
danger, and after taking into account the best interests of the child or children,
while ensuring that appropriate provision has been made for the care of such
children.”

 The United Nations Basic Principles on the Use of Restorative Justice

Programmes in Criminal Matters 6 provide guidance to states in developing
appropriate responses to women in the criminal justice system, where
appropriate.

 The African Charter on the Rights and Welfare of the Child, 1999, in Article 30
(Children of Imprisoned Mothers), provides that States Parties to the Charter “should
undertake to provide special treatment to expectant mothers and to mothers of infants
and young children who have been accused or found guilty of infringing the penal law
and should in particular: (a) ensure that a non-custodial sentence will always be first
considered when sentencing such mothers; (b) establish and promote measures
alternative to institutional confinement for the treatment of such mothers.”

 The Council of Europe, Parliamentary Assembly Recommendation 1469 (2000), on

mothers and babies in prison, adopted on 30 June 2000, also recommended the
development and use of community-based penalties for mothers of young children
and the avoidance of the use of prison custody.

 In its Resolution 10/2 on “Human rights in the administration of justice, in particular

juvenile justice”, dated 25 March 2009, the Human Rights Council emphasised that,
when sentencing or deciding on pre-trial measures for a pregnant woman or a child’s
sole or primary carer, priority should be given to non-custodial measures, bearing in

5
Bloom B., Owen, B. Owen & S. Covington, Gender Responsive Strategies: Research Practice & Guiding
Principles for Female Offenders. National Institute of Justice, US Dept. of Justice, USA, 2003.
6
Endorsed by the UN Economic and Social Council in 2002.
 7

mind the gravity of the offence and after taking into account the best interest of the
child.

GOOD PRACTICE

In 2007 the Constitutional Court of South Africa ruled that “the best interests of the child are
paramount in all matters concerning the child on sentencing of primary caregivers of young
children.” The Court, upon appeal by a mother of three children aged 16, 12 and 8, suspended the
portion of the four-year prison sentence the woman had not yet served: “Ms Cawood’s [a social
worker] report indicates that all three boys rely on M. as their primary source of emotional security,
and that imprisonment of M. would be emotionally, developmentally, physically, materially,
educationally and socially disadvantageous to them. In Ms Cawood’s view, should M. be
incarcerated, the children would suffer: loss of their source of maternal and emotional support; loss
of their home and familiar neighbourhood; disruption in school routines, possible problems in
transporting to and from school; impact on their healthy developmental process; and separation of
the siblings.” The court ordered to suspend for four years M’s imprisonment (of 45 months) on
condition that she would not be convicted of an offence committed during the period of suspension,
of which dishonesty was an element, and further on condition that she complied fully with the
order’s provisions. (Constitutional Court of South Africa, S. v. M., 26 September 2007, Ref. no.
7
[2008] (3) SA 232 (CC) 261)

In Russia, federal legislation allows for mothers of children under the age of 14 and pregnant
women who have been convicted of less serious offences to have their sentences deferred,
shortened or revoked. Female prisoners who are pregnant or who have young children and who
are imprisoned for less serious offences may have their sentences deferred until their children have
reached the age of 14. (Russian Federation: Fourth periodic report to the UN Committee against
Torture, July 2004, (CAT/C/55/Add.11)

In Thailand, in mid-2005, women prisoners comprised 17.2 per cent of the overall prison
population, which was an exceptionally high proportion in comparison to other countries worldwide.
The ratio of female prisoners convicted of drug-related offences had risen to 88 per cent of the total
female prison population. The government responded to the situation with the implementation of
the Narcotic Addict Rehabilitation Act, which stipulates diversion from prosecution and compulsory
treatment for drug abusers. As a result the prison population was reported to show a decreasing
trend. By 2005 Thailand was deploying a drug policy which included comprehensive demand
reduction strategies, together with strict control and penalties for suppliers, in addition to diversion
and treatment for drug addicts. (UNODC, Handbook for prison managers and policymakers on
Women Imprisonment, 2008, page 93)

5. Vulnerability to sexual abuse

In many regards, women have a heightened vulnerability to mental and physical
abuse during arrest, questioning and in prison.

Women prisoners are at particular risk of rape, sexual assault and humiliation. In
addition to open assault, they are vulnerable to sexual misconduct by prison staff of
all forms, improper touching during searches, and being watched when dressing,
showering or using the toilet occur, which the Special Rapporteur on Violence
Against Women describes as “sanctioned sexual harassment”. Custody, for many
women, includes ill-treatment, including threats of rape, touching, “virginity testing”,
being stripped naked, invasive body searches, insults and humiliations of a sexual
nature or even rape.

Moreover, the impact of, for example, strip-searches on women is disproportionately

greater than on men, as women detainees as a group present a higher incidence of
previous sexual assault than both the general community and their male counterparts.

7
http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2007/18.html&query=%20M%20v%20S
 8

Further, there are cases of dependency of prisoners upon prison staff which leads to
increased vulnerability to sexual exploitation, as it drives them to ‘willingly’ trade sex for
favours.

Adequate protection and oversight mechanisms are lacking while prisoners who are
abused or exploited by prison staff usually have little opportunity of escaping from
the abuser. Women are particularly afraid of making complaints due to fears of
retaliation and the stigmatisation of sexual abuse.

 The report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment to the Human Rights Council in 2008 noted: “In
many countries male staff work in “contact positions” with women detainees and this
situation increases their risk of being sexually assaulted since male officers may take
advantage of routine pat-frisks to touch a woman’s breasts, thighs, vagina etc. They
may also abuse their responsibilities regarding surveillance in order to watch women
prisoners when naked. Physical violence can entail rapes of women detainees, but
the abuse of women by male staff can also be more subtly disguised. For instance,
they may offer women special privileges or goods otherwise hard to obtain. Equally,
they may threaten to deny them access to their entitlements. It is crucial to bear in
mind that under such circumstances it can never be argued that a woman has
‘consented’ to a sexual relationship, even if this appears to be the case.” (HRC 13th
session), A/HRC/7/3, 15 January 2008, paragraph 42)

6. Imprisonment / Detention
Due to the smaller number of women prisoners, they are usually being housed in annexes
to male prisons, often inadequately separated from the male population and subject to an
increased risk of overcrowding. Fewer women prisons also mean greater distances from
their homes and families, resulting in disadvantages in receiving visits and increased
isolation. In some countries, conjugal visits are not allowed to women in prison or are
more restricted than for male prisoners. Moreover, female prisoners are often over-
classified or detained in a facility that does not correspond to their classification and where
fewer or no programmes are offered with regard to rehabilitation and reintegration. They
usually have few opportunities for transfer and little access to a true minimum security
institution.

At the same time, more often than not prison infrastructure and personnel are oriented
towards a male prison population, overlooking the specific needs of female detainees. The
lack of female staff to attend and supervise women prisoners and the lack of training on
their specific needs aggravate disadvantages faced by female prisoners.

Women prisoners have greater primary healthcare needs in comparison to men. Special
health conditions of women (even more so those from economically and socially
disadvantaged backgrounds) may have been untreated before admission due to
discrimination in accessing adequate healthcare services in the community. Due to the
typical background of women prisoners, which can include injecting drug use, sexual
abuse, violence, sex work and unsafe sexual practices, a significant number of women
are infected with STDs, including HIV and hepatitis, at the time they enter prison.

Also, women who are admitted to prison are more likely than men to suffer from mental
health problems8, often as a result of previous domestic violence, physical and sexual

8
E.g. according to a study conducted by the Bureau of Justice Statistic in 2002 and 2004, mental health
problems in prison were found to be much higher among women than men; in the UK, according to research
published in 2006, 80 per cent of women prisoners were found to suffer from diagnosable mental health
problems, 66 per cent were drug-dependent or used alcohol to dangerous excess, 37 per cent had
 9

abuse, and examination by male doctors may put them at risk of re-traumatisation.
According to research women prisoners are at higher risk of harming themselves or
attempting suicide in comparison to men in prison, due to the higher level of mental illness
and substance addiction and the harmful impact of isolation from the community on the
mental well-being of women.

The United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (the Bangkok Rules)9 were adopted in December 2010
in order to rectify the lack of attention to the needs of female prisoners and gender-
sensitive non-custodial alternatives to imprisonment. However, awareness about these
standards and progress in their implementation is still lacking.

 The Committee on the Elimination of Discrimination against Women, Inga Abramova

v Belarus, recently took up the issue of female prison staff and explicitly referred to
the Bangkok Rules: “In an institution for both men and women, the part of the
institution set aside for women shall be under the authority of a responsible woman
officer who shall have the custody of the keys of all that part of the institution. No
male member of staff shall enter the part of the institution set aside for women unless
accompanied by a woman officer. Women prisoners should be attended and
supervised only by women officers.”10 (Communication No. 23/2009, UN Doc.
CEDAW/C/49/D/20/2008 (2011))

 The WHO/UNODC Kyiv Declaration on Women’s Health in Prisons provides guidance

on gender-specific aspects of healthcare: Correcting Gender Inequity in Prison Health
(Copenhagen, 2009)11

 On body searches, the Statement on Body Searches of Prisoners, World Medical

Association provides important guidance, even though it lacks a gender-specific
threshold: “The purpose of the search is primarily security and/or to prevent
contraband, such as weapons or drugs, from entering the prison. These searches are
performed for security reasons and not for medical reasons. Nevertheless, they
should not be done by anyone other than a person with appropriate medical training.
This non-medical act may be performed by a physician to protect the prisoner from
the harm that might result from a search by a non-medically-trained examiner. In such
a case the physician should explain this to the prisoner. The physician should
furthermore explain to the prisoner that the usual conditions of medical confidentiality
do not apply during this imposed procedure and that the results of the search will be
revealed to the authorities. If a physician is duly mandated by an authority and agrees
to perform a body cavity search on a prisoner, the authority should be duly informed
that it is necessary for this procedure to be done in a humane manner. If the search is
conducted by a physician, it should not be done by the physician who will also
subsequently provide medical care to the prisoner. The physician's obligation to
provide medical care to the prisoner should not be compromised by an obligation to
participate in the prison's security system.” (adopted by the 45th World Medical
Assembly, Budapest, Hungary, October 1993; editorially revised at the 170th Council
Session, May 2005)

attempted suicide at some time in their lives (See UNODC Handbook for prison managers and policy
makers on women and imprisonment, 2008, p. 9).
9
UN-Doc A/C.3/65/L.5, adopted by the UN General Assembly on 21 December 2010 (A/RES/65/229)
10
The Committee found that Belarus’ treatment of Inga Abramova constituted discrimination and sexual
harassment, in violation of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with
article 1 and the Committee’s General Recommendation No 19. In reaching its determination, the
Committee also took into account rule 53 of the Standard Minimum Rules for Treatment of Prisoners and the
UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders. In
reaching its views, the Committee reiterated that failure of detention facilities to adopt a gender-sensitive
approach to the specific needs of women prisoners constitutes discrimination, within the meaning of article
1 of CEDAW. - See decision at http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-23-2009.pdf
11
www.euro.who.int/Document/E92347.pdf
 10

 It is good practice to allow longer visiting hours if the visitors have to travel a long
distance. In some prison systems special rooms and houses are provided for the
prisoners to meet their long-term visitors in an atmosphere that allows for more
privacy and intimacy. This is particularly important for visits with all the family,
including children. In normal circumstances and where special security considerations
do not apply, families need to be able to sit down together within sight but out of
hearing of prison staff. (UNODC, Handbook for Prison Managers and Policymakers
on Women and Imprisonment, 2008, page 61)

COUNTRY EXAMPLES

In a women’s prison in Thailand with 4,000 prisoners, all were classified as high-risk, even though
the prison director said that only six prisoners actually met the criteria. (Nicholas McGeorge,
Friends World Committee for Consultation, personal communication following a visit to Lard Yao
Prison, Bangkok, Thailand, April 2005)

GOOD PRACTICE

In the Russian Federation, since 2004, due to amendments to the Criminal Code, women
prisoners no longer serve sentences in high-security regimes. (Women in Prison, A Review of the
Conditions in Member States of the Council of Europe, The Quaker Council for European Affairs,
February 2007, Part 2, Country Report: The Russian Federation)

In two mother and baby units out of the 13 which exist in the Russian Federation, convicted
women prisoners live in joint accommodation with their babies and may do so until the baby
reaches the age of three (with some flexibility if the mother is due for release within a year). After
this the child goes into the care of family members or the appropriate welfare authorities. However,
upon release women who wish to be reunited with their children face barriers as they are required
to prove that they can provide financial support and accommodation. (Alla Pokras, Penal Reform
International, Presentation to the conference Gender, Geography and Punishment in Comparative
Perspective, held in Oxford (UK), as part of a programme funded by the UK Economic and Social
Research Council, 23 June 2010)

A Latvian women’s prison is semi-closed and there is a children’s home located in a separate
building on prison grounds, where children stay until the age of four. Imprisoned women are
allowed to stay with their children all the time until the age of one, and then are allowed to meet
their children twice a day for 1.5 hours. Once children reach the age of four they are either placed
in the care of relatives or in other children’s homes, which house eight-10 children on any given
day. Within a project funded by the Soros Foundation-Latvia, the children’s home cooperates
closely with the Social Paediatric Centre and has started an innovative parenting skills programme
for women prisoners. (Handbook for Prison Managers and Policymakers on Women and
Imprisonment, UNODC, 2008)

In Nigeria, Kirikiri prison in Lagos has been organising a project on preventing HIV/AIDS among
female prisoners in the light of global statistics that more than 20 million women are infected
worldwide, and Sub-Saharan Africa having the highest figure. The project used peer-education
training to create awareness and promote prevention of HIV/AIDS among inmates and prison
personnel who act as care givers, developed materials to create awareness, offered pre- and post-
test counselling sessions for inmates and prison personnel and provided relief materials such as
beverages for infected mother and their babies. The project also provided palliative drugs to
infected inmates. (Survey of United Nations and other Best Practices in the Treatment of Prisoners
in the Criminal Justice System, Proceedings of the workshop held at the Twelfth United Nations -
Congress on Crime Prevention and Criminal Justice, Salvador, Brazil, 12-19 April 2010, page 98)

7. Girls in prison
Due to their small numbers, juvenile female prisoners are likely to have even less
access to suitable educational and vocational training facilities than either adult
 11

women or juvenile male prisoners. Any programmes provided for juveniles are likely
to have been developed to address the needs of boys.

Also, juvenile female prisoners are even more unlikely to have access to gender-
sensitive - and age-appropriate - healthcare or counselling for physical or sexual
abuse suffered prior to imprisonment.

Pregnant girl prisoners comprise one of the most vulnerable groups in prisons,
due to the social stigmatisation to which they may be subjected, their inexperience
of dealing with pregnancy and the lack of adequate facilities for pregnant juvenile
female prisoners.

 A provision for equal access to such programmes for girl prisoners is enshrined
in the UN Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules): Rule 26.4: “…young female offenders placed in an
institution deserve special attention as to their personal needs and problems.
They shall by no means receive less care, protection, assistance, treatment and
training than young male offenders. Their fair treatment should be ensured…”

 The Commentary to United Nations Standard Minimum Rules for the

Administration of Juvenile Justice (The Beijing Rules) on Rule 26.4 refers to
resolution 9 of the Sixth UN Congress on the Prevention of Crime and
Treatment of Offenders calling for the fair treatment of female offenders at every
stage of criminal justice processes and for special attention to their particular
problems and needs while in custody. It also recalls the Caracas Declaration of
the Sixth Congress, which, inter alia, calls for equal treatment in criminal justice
administration, and against the background of the Declaration on the Elimination
of Discrimination against Women and the Convention on the Elimination of All
Forms of Discrimination against Women.

 Rule 65 of the United Nations Rules for the Treatment of Women Prisoners and Non-
custodial Measures for Women Offenders (“Bangkok Rules”) states:
“Institutionalization of children in conflict with the law shall be avoided to the
maximum extent possible. The gender-based vulnerability of juvenile female
offenders shall be taken into account in decision-making.”

GOOD PRACTICE

In the United Kingdom, the All-Party Parliamentary Group on women in the penal system has
initiated an independent inquiry on girls and the penal system aiming to bring about a reduction in
the number of girls who enter the criminal justice system. The inquiry is focusing on policy and
practice regarding girls and investigating the decisions that route girls away from or into the
criminal justice system. It is looking at how the police and the courts deal with girls who come into
contact with the criminal justice system and the different approaches to working with girls, both
nationally and internationally. The All Party Parliamentary Group is collating evidence from
charities, statutory services and local authorities, examining national government policy and will
hear oral evidence in parliament over the coming year.
(http://www.howardleague.org/appg-inquiry/)

8. Rehabilitation
Although many problems women face upon release are similar to those of men, the
intensity and multiplicity of their post-release needs can be very different. Women are
likely to suffer particular discrimination after release from prison, due to social
stereotypes. They might be rejected by their families and in some countries they may
lose their parental rights. If they have left a violent relationship, women will have to
 12

establish a new life, which is likely to entail economic, social and legal difficulties, in
addition to the challenges of transition to life outside prison.

In many countries, the risk of losing their accommodation and employment upon detention
is higher for women, and women offenders are confronted with increased stigmatisation
as in most societies they contravene prevailing role models for their sex. They therefore
are likely to have particular support requirements in terms of housing, reunification with
their families and employment, and will need assistance which is gender-specific.

While a general requirement to apply individual treatment according to the needs of

prisoners is enshrined in Rule 69 of the UN Standard Minimum Rules on the treatment of
prisoners, pre-release preparation and post-release support policies and programmes are
typically structured around the needs of men and rarely address the gender-specific
needs of women offenders, with targeted continuum-of-care in the community after
release.

Rehabilitation programmes should be designed and made available in prisons

specifically for women prisoners, taking into account their gender-specific needs,
aiming to address the underlying factors that led to their offence and to cope with
the challenges they face as women in prison. Programmes offered should include
skills which are not traditionally considered as appropriate for women due to gender
stereotyping.

 United Nations Rules for the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (“Bangkok Rules”):
Rule 45: Prison authorities shall utilize options such as home leave, open prisons,
halfway houses and community-based programmes and services to the maximum
possible extent for women prisoners, to ease their transition from prison to liberty, to
reduce stigma and to re-establish their contact with their families at the earliest
possible stage.
Rule 46: Prison authorities, in cooperation with probation and/or social welfare
services, local community groups and non-governmental organizations, shall design
and implement comprehensive pre- and post-release reintegration programmes which
take into account the gender-specific needs of women.
Rule 47: Additional support following release shall be provided to released women
prisoners who need psychological, medical, legal and practical help to ensure their
successful social reintegration, in cooperation with services in the community.

 Commentary to the Draft UN Rules for the Treatment of Women Prisoners and
Non-Custodial Measures for Women Offenders on Rule 42: “Gender sensitive
programmes may include therapeutic programmes, self-help groups and
consultation dealing with substance abuse, mental health, history of abuse and
domestic violence; parenting programmes, including child visitation programmes
and parent education; and special programmes to build confidence and life
skills. Programmes to assist women to live independent lives may include
programmes to develop administrative skills, bookkeeping, computer skills,
painting and decorating, cooking/catering, horticulture, hairdressing, gardening,
women’s health, childcare, dressmaking, embroidery managing income
generating community projects and the use of micro-credit facilities.”

COUNTRY EXAMPLES

In Afghanistan many women prisoners are rejected by their families due to the offences they have
committed, especially if these comprise so-called “moral crimes”, and it is very difficult for women
who have been abandoned by their families to survive on their own in the community due to social
stigmatisation, as well as economic difficulties. (UNODC, Afghanistan, Female Prisoners and their
Social Reintegration, p. 36.)
 13

GOOD PRACTICE

Prisoners Rehabilitation and Welfare Action (PRAWA) in Nigeria conducts weekly literacy and
support circle programmes in the Female Prison Kirikiri Lagos to encourage confidence building,
self-esteem, and improved communication skills amongst female prisoners. Alternatives to violence
training workshops and training in life planning skills are also conducted for ex-prisoners and others
in the community by PRAWA. Community-based dress- and soap-making workshops are available
for female prisoners in Lagos and Enugu by PRAWA, and a knitting workshop for female ex-
prisoners is provided by the Society for the Welfare of Women Prisoners (SWEWP) in Enugu.
(Human Rights and Vulnerable Prisoners, PRI Training Manual, No. 1, p. 76)

In Afghanistan legal advisers from Medica Afghanistan offer mediation services to assist women
and girls after being released from prison as many of them experience rejection or threats, being
perceived as casting shame upon the family. At the same time, living alone is not an easy option
for women in Afghanistan, where it is almost unthinkable to live outside the field of family relations.
The mediation between the affected women and their relatives is aimed at easing the process of
reintegration.
(http://www.medicamondiale.org/projekte/afghanistan/rechtshilfe-fuer-afghaninen/?L=1)

End/
PRI, January 2012

Penal Reform International (PRI) aims to develop and promote international standards for the administration
of justice, reduce the unnecessary use of imprisonment and promote the use of alternative sanctions which
encourage reintegration while taking into account the interests of victims. PRI also works for the prevention of
torture and ill-treatment and for a proportionate and sensitive response to women and juveniles in conflict with
the law, and promotes the abolition of the death penalty and the implementation of humane alternative
sanctions. PRI is an international non-governmental organisation with Consultative Status at the United
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