Protecting the rights of women offenders: A job for the CEDAW Committee? (Olivia Rope – Penal Reform International)

Olivia Rope

Olivia Rope

Olivia Rope of Penal Reform International reflects on the potential of the Optional Protocol to CEDAW in protecting the rights of women offenders  

Globally there are 625,000 women and girls in prison every day.  This constitutes less than 9 per cent of the prison population. As a minority, these women usually find themselves in a criminal justice system that is designed for men.

Most female offenders are in prison for non-violent crimes, linked to poverty, such as fraud, theft or minor drug-offences.  A considerable proportion of women offenders are detained as a direct or indirect result of multiple layers of discrimination and deprivation, often experienced at the hands of their husbands or partners, their family and/or the community.

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.

Sentences frequently put women unnecessarily in prison, affecting the lives of their children and ignoring backgrounds of violence and poverty.  Women are vulnerable to being deprived of their liberty for economic reasons including an inability to pay for legal representation, fines for petty offences or to meet financial and other bail or sentencing obligations. As discrimination against women in society results in unequal power relations and access to economic resources, women in conflict with the law may depend on the willingness of male family members to spend resources for their legal case.

Due to the relatively small number of women in prisons, there are fewer women’s prisons and consequently women are often housed far away from their families and communities. In large countries, the distance between prisoners and their families can be as far as 2,000 km. This constitutes a major barrier for families trying to visit women prisoners. Visiting can be further compromised where public transport facilities are inadequate, expensive or non-existent, or if women are not permitted to travel alone. Additionally, women may receive fewer visits than men because they are stigmatised or rejected by their families.

In December 2010, 193 UN Member States acknowledged the discrimination experienced by women offenders and agreed to take steps to address such discrimination. At the General Assembly, they unanimously adopted the UN Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders, known as the “Bangkok Rules.”  These Rules importantly filled a gap in international standards. Other standards, including the Standard Minimum Rules for the Treatment of Prisoners or the Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), only have a few provisions on the treatment of women offenders. Now the 70 Rules that make up the Bangkok Rules give comprehensive guidance to policy makers, legislators, sentencing authorities and prison staff to reduce unnecessary imprisonment of women and meet the specific needs of women who are imprisoned.  The Bangkok Rules reiterate the fundamental principle – set out by the Tokyo Rules – to move towards an increased use of non-custodial sanctions and measures, instead of imprisonment.

So, why are alternatives to imprisonment often not used as a response to offending by women?  Firstly, the same criteria are usually applied to both men and women at the sentencing stage.  The typical background of women offenders, their caring responsibilities and the much lower security risk they pose to others are rarely taken into account.  This means that many women whose social reintegration needs would be much better served by a non-custodial measure or sanction, are instead imprisoned.

Secondly, there is a shortage of alternatives to prison that are suited and meet women offenders’ needs, which hinders the use of alternative non-custodial measures and sanctions by authorities and courts. 

For women and girls that do end up in prison, the Bangkok Rules respond to their needs, providing guidance on all aspects of the prison regime, from healthcare and rehabilitation programmes to the training of prison staff and disciplinary measures.  For example, Rule 19 states that search procedures must respect a woman’s dignity and must be carried out by female staff that have been properly trained in appropriate searching methods.

Inga Abramova from Belarus is one woman who saw first-hand the gender discrimination faced in detention and vulnerabilities during searches of women.  Inga was arrested when she was hanging ribbons to raise awareness of the ‘European March’ campaign and detained under administrative arrest for five days for ‘minor hooliganism.’ She was detained underground in a poorly lit and cold cell.  The cell’s toilet was only separated from the rest of the cell by a small screen so prison staff were able to watch the prisoners through a peephole.  The facility, designed for men, was staffed exclusively by male staff.  The guards made frequent comments about Inga “joking” that she would be “taken outside and shot” and calling her “the fourth,” as that was the number of her bed in the cell.  During a search, one of the guards poked her buttock with his finger, made humiliating comments and threatened to strip search her.  Following her release, Inga looked to seek justice, claiming she was subjected to inhuman and degrading treatment.

After having no success in her country she looked to the Committee on the Elimination of Discrimination against Women (CEDAW Committee), submitting a communication, under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

The Committee found that Belarus had failed to meet its obligations, as Inga had been subject to sexual harassment and discrimination.  The Committee recalled that the fact detention facilities do not cater for the needs of women constitutes discrimination under CEDAW, referencing the Bangkok Rules.  The Committee also recalled that women prisoners should be attended and supervised only by women officers (referencing Rule 53 of the UN Standard Minimum Rules); discrimination against women encompasses violence directed against a women because she is a woman, but also ill-treatment that affects women disproportionately.  The Committee held that the disrespectful treatment faced by Inga by male staff, including inappropriate touching and unjustified interference with her privacy constituted sexual harassment and discrimination.

This case is an example of how the CEDAW Committee can assess the situation of women offenders and prison conditions in a gender-sensitive way, using the Bangkok Rules as a benchmark.  By referencing the Bangkok Rules in this way, the Committee was able to help raise awareness about discrimination against women within criminal justice systems, and to increase knowledge about the existence of international standards in this regard.  Importantly, by referencing the Rules through the Optional Protocol’s communication or inquiry procedures, it can call on governments to address discrimination against women in their criminal justice systems and implement measures in accordance with the Bangkok Rules to rectify such discrimination. In this way, the Committee could contribute to systematic improvements in the treatment of women offenders.

For women caught up in criminal justice systems, such as Inga Abramova, and organisations working on behalf of women in prison, the communication procedure provides an important avenue to seek redress for human rights violations.  The Bangkok Rules constitute the only international standard introducing gender-sensitive safeguards relating to imprisonment and penal laws. They are hence a key reference point for the assessment by the CEDAW Committee of violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in the area of criminal justice.

The CEDAW Committee is currently looking at access to justice for women, through a General Recommendation.  Penal Reform International attended the CEDAW Committee’s Day of Discussion, intended to inform the Recommendation and responded with a blog Popular as a Victim, Forgotten as an Offender.  The blog highlighted the fact that women offenders, one of the most vulnerable groups in custody and denied access to justice, are frequently overlooked in such discussions.  Hopefully the General Recommendation highlights the discrimination faced by this group of women.

The Bangkok Rules represent a vital step forward for the rights of women in prison and women offenders, but now they need to be put into practice. The work of the CEDAW Committee can play a crucial role in working towards this.

Penal Refom International’s Toolbox on the UN Bangkok Rules aims to provide the necessary guidance and training tools to assist key stakeholders in implementing the Rules. It includes a Guidance Document, Index of Implementation, a free online course, quarterly e-bulletins, and more (in multiple languages).  Download our short guide on the Bangkok Rules, and find information on our toolbox here. 

Olivia Rope has a background in international human rights law and currently works at Penal Reform International in London as Programme Officer on international advocacy and women in the criminal justice system. Previously Olivia worked at Amnesty International in their European Union office in Brussels and in New Zealand.

With many thanks to Penal Reform International for use of the featured photo of ‘Women inmates at a female prison in Kampala, Uganda’ (2012).