Women in detention

Prison systems are rarely gender sensitive, and are even less so in conflict situations. When women are detained, it is crucial that international standards, applied with sensitivity to women’s particular needs, are brought to bear. This article gives an overview of the relevant international law, as well as the gender-specific considerations that need to be taken into account when implementing it. More than half a million women and girls are held in penal institutions around the world, either as pre-trial detainees or having been convicted and sentenced. They represent between 2% and 9% of the global prison population. The number of women held in relation to armed conflict is lower. In the main, women commit petty, non-violent offences such as theft and fraud; they come from impoverished and marginalized parts of society; and they tend to have a background of physical and emotional abuse, mental health problems, and alcohol or drugs dependency. Women’s imprisonment is closely related to poverty, both as the reason for the offence and because women often cannot afford legal services or payment of fines. Where women are unable to pay for a lawyer, or where legal processes are extremely slow, they may spend longer in pre-trial detention than the penalty for the crime itself. In many countries, the majority of female prisoners have been convicted of drug-related offences, but women are rarely major players in the drugs trade. Often they have been tricked into being drug couriers for small sums of money and sometimes do not understand the risks involved and the implications of the act. Coercion may also have Volume 92 Number 877 March 2010 doi:10.1017/S1816383110000226 123 been used to involve women in trafficking, and they may find themselves imprisoned for prostitution and breaking immigration rules. In some parts of the world, women may also be detained as a result of discriminatory laws and cultural practices, or tribal laws or traditions, rather than codified law. Women detained for ‘crimes of honour’ or who are in custody for their own protection may remain in prison for long and indefinite periods. Women may also be held for crimes of which they are the victims, such as rape. Sometimes ‘protective custody’ is a misnomer for the arbitrary detention of victims of particular crimes, or simply when the threat of such a crime is present, or when women are held to ensure that they testify. The majority of women in custody in conflict areas are detained for ordinary crimes. Female combatants held as prisoners of war are few in number because they are in the minority in armed forces and groups and are also less likely to be in frontline areas where they could be captured. The number of women held for security reasons related to armed conflict or internal disturbances is also very small in comparison with that of men, mainly because they are less likely to be perceived as combatants or potential combatants. Women may also be victims of kidnapping, whether by the state or by non-state forces, or be deprived of their liberty in situations of debt bondage or forced labour. In this article we will look at the situation of women held by the state, though these principles are also valid mutatis mutandi in the case of women held by non-state groups. The prison service in many countries is generally not a priority area of governance and as a result is often ignored and/or underfunded, though, as the Special Rapporteur on the right to education has pointed out, ‘the availability of resources may affect the implementation of policy: they do not dictate that policy’. However, conditions in post-conflict settings may be particularly poor and inhumane, often resulting from overcrowding. There may be little food and 1 Roy Walmsley, World Female Imprisonment List, International Centre for Prison Studies, Kings College London, 2006, p. 1. 2 ICRC, Women and War, Geneva, 2008, p. 22, available at http://www.icrc.org/web/eng/siteeng0.nsf/ html/p0944 (last visited 11 March 2010). 3 Penal Reform International, Penal Reform Briefing No. 3: Women in Prison – Incarcerated in a Man’s World, London, 2008, p. 2. 4 Tomris Atabay, Handbook for Prison Managers and Policymakers on Women and Imprisonment, United Nations Office on Drugs and Crime, 2008, p. 90, available at http://www.unodc.org/documents/justiceand-prison-reform/women-and-imprisonment.pdf (last visited 1 April 2010). 5 Womankind Worldwide, Taking Stock Update: Afghan Women and Girls Seven Years On, London, 2008, p. 35, available at http://www.womankind.org.uk/takingstockdownloads.html (last visited 1 April 2010). 6 Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Dignity and Justice for Detainees Week: information note no. 5’, Geneva, 2008, p. 2, available at http://www.ohchr.org/EN/ UDHR/Documents/60UDHR/detention_infonote_5.pdf (last visited 1 April 2010). 7 Charlotte Lindsey, Women Facing War, ICRC, Geneva, 2001, p. 163, available at http://www.icrc.org/ Web/eng/siteeng0.nsf/htmlall/p0798 (last visited 1 April 2010). 8 Ibid. 9 Ibid. 10 Report of the Special Rapporteur on the right to education, Vernor Muñoz, The Right to Education of Persons in Detention, A/HRC/11/8, 2 April 2009, para. 12, available at http://www2.ohchr.org/english/ bodies/hrcouncil/docs/11session/A.HRC.11.8_en.pdf (last visited 1 April 2010). 124 J. Ashdown and M. James – Women in detention