WUNRN
European Institute for Crime Prevention and Control, affiliated with the United Nations - Publication No.65
Survey of UN & Other Best
Practices in the Treatment of Prisoners in the Criminal Justice System - 2010
Good Practices on the Treatment of
Women in Prison: A proposal for Supplementary Rules for the treatment of women
prisoners and non-custodial measures for women offenders
Vitaya Suriyawong - Director General Office of Justice Affairs - Ministry of Justice, Thailand
Introduction
Over the past decades, the number of women prisoners has increased across the
globe. While men remain the vast majority of prisoners in all countries, the rate
of increase among women is disproportionately higher than the rate of increase
for male prisoners. Women in prison make up, on average about six percent of
the world’s prison population, with rates ranging from under 4% in France to
almost 9% in the United States. The increase in the number of women in prison
is, in some countries, primarily due to the increased use of imprisonment to
punish offences that were previously punished by non-custodial sentences. This
is particularly the case related to drug offences and petty property crimes.
This increase in numbers of women incarcerated presents specific challenges for
correctional authorities and requires renewed attention to their situation. This
paper makes the case for the need for Supplementary Rules for the treatment of
women prisoners by describing the situation of women offenders, and reviewing
international penal standards and accepted UN instruments as they apply to
women in prison. The paper then moves to a brief discussion of best practice in
terms of programs and policies and outlines the current initiative, a proposal for
Supplementary Rules for the treatment of women prisoners and corresponding
non-custodial measures for women offenders.
As reported by the Quaker UN Office (QUNO), 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. In contrast to
male prison populations, drug users, lower-level property offenders, and sex
workers are overrepresented. 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 prisoners are most likely to be young,
unemployed, low-educated, and have dependent children. Many have histories of
alcohol and substance abuse while a high proportion of women offenders have
experienced violence or sexual abuse and related trauma.
Due to their small number, 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. There is also significant evidence that, due to
their gender, the human rights and basic dignity of women in prison are
systematically violated.
Emerging international standards make the argument that women in prison
require a specific and intentional approach to their psychological, social and
health care needs while imprisoned. It follows that all facets of prison facilities,
programs and services must be tailored to meet the particular needs of women
offenders. Existing prison facilities, programs, and services for women inmates
that have all been developed initially for men are not sufficient to their
rehabilitative needs. The section below describes some of the needs and makes
the case for a new approach to enhancing the lives of female inmates.
The
needs and realities of women offenders
Numerous documents describe in great detail the situation of women offenders.
For a comprehensive overview, see the QUNO report on Women in Prison.
Whilst problems such as overcrowding, health care, poor hygiene, and
inadequate visiting facilities affect both men and women prisoners, there are
many concerns that are specific to women, or which affect women prisoners in a
different or particular way. Particular groups of women, such as pregnant and
parenting prisoners, female juvenile prisoners, women with disabilities, women
with STD, women who are foreign nationals, and indigenous and other minority
women, have further needs specific to them as women.
Women in prison and other forms of detention are very often the sole or primary
care-taker of young children, and have other family responsibilities. They also
have different needs related to sexual and reproductive health as they may have
been victims of sexual abuse, before and/or after being sent to prison, and/or
may be pregnant and give birth in prison. In some countries, women’s basic
needs such as commodities for ensuring menstrual hygiene (sanitary napkins,
clean sanitary cloths) are often not met.
Related to their substance abuse involvement and sexual history, including abuse
and trauma, the topic of HIV/AIDS in prison is an emerging global concern. For
women prisoners, HIV/AIDS prevention, treatment, care and support programs
tend not to be adequately developed, even though both drug use and HIV/AIDS
infection are more prevalent among women in prison than among imprisoned
men.
Because there are few prisons for women, women tend to be imprisoned far from
home. The distance separating them from their children, families and friends
increases the feeling of isolation and can cause additional stress such as
economic hardship and anxiety, for both the women concerned and their
families.
Last but not least, upon release, the stigma of imprisonment weighs more heavily
on women than on men. In some countries, women are discriminated against and
are unable to return to their communities once released from prison.
These issues and others outlined in the QUNO report and elsewhere make the
case for a new approach to the situation of women in prison. The next section
reviews existing international rules and guidelines and their application to
women prisoners.
Existing
international rules and guidelines for the treatment of prisoners
Neither women nor men lose their human rights when they are imprisoned. As
stated in the Universal Declaration of Human Rights, the State may only limit
the exercise of a person’s rights and freedoms, including the rights and freedoms
of a person who is a prisoner “for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic
society”.
The application of this principle in relation to imprisonment is set out in the
Basic Principles for the Treatment of Prisoners: “Except for those limitations
that are demonstrably necessitated by the fact of incarceration, all prisoners shall
retain the human rights and fundamental freedoms set out in the Universal
Declaration of Human Rights” and any other UN covenants to which their State
is party.
The UN Human Rights Committee has elaborated on the meaning of this in
relation to the International Covenant on Civil and Political Rights. Persons who
are in prison must not “… be subjected to any hardship or constraint other than
that resulting from the deprivation of liberty … Persons deprived of their liberty
enjoy all the rights set forth in the Covenant, subject to the restrictions that are
unavoidable in a closed environment.”
In reviewing the situation of women in prison, it must always be asked whether
the restrictions upon their rights are “demonstrably necessitated by the fact of
their incarceration” and “unavoidable in a closed environment”. The treatment of
women in prison must be guided by not only the Standard Minimum Rules for
the Treatment of Prisoners and other prison-specific guidelines, but by all
applicable human rights (and, where relevant, International Humanitarian Law)
instruments. These include the:
Universal Declaration of Human Rights;
International Covenant on Civil and Political Rights;
International Covenant on Economic, Social and Cultural Rights;
Convention on the Rights of the Child;
Convention on the Elimination of Racial Discrimination; and
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
“The Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)”, the international bill of rights for women must also be
considered in developing an enhanced approach to addressing women offenders.
According to the Convention, discrimination against women can be defined as
"...any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality of
men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field."
The United Nations (UN) Standard Minimum Rules for the Treatment of
Prisoners were adopted by the First UN Congress on the Prevention of Crime
and the Treatment of Offenders in 1955, and approved by the UN Economic and
Social Council in 1957. Since then, they remain the key point of reference in
designing and evaluating prison conditions. Since 1955, further international
guidelines concerning imprisonment have been developed. Two of the most
important international standards for imprisonment are the 1988 Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and the 1990 Basic Principles for the Treatment of Prisoners.
These instruments, with the Standard Minimum Rules, affirm that all prisoners
must be treated with respect for their human dignity with regard to the conditions
of their detention. They reinforce the notion that the purpose of imprisonment is
rehabilitation of the prisoner, and set down minimum standards for matters such
as prisoner classification and discipline, contact with the outside world,
healthcare, complaints, work and recreation, and religion and culture.
Further provisions have been agreed to address detention of children, namely the
1985 Standard Minimum Rules for the Administration of Juvenile Justice and
the 1990 Rules for the Protection of Juveniles Deprived of their Liberty.
The 1955 SMRs do address several aspects of women imprisonment in their
original form, discussed briefly below.
I. Basic principle: Non-discrimination
Article 6 “(1) The following rules shall be applied impartially. There shall be no
discrimination on grounds of race, color, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.”
The equality of rights between men and women is a fundamental norm
reaffirmed in all major human rights instruments. Women and girl children who
are imprisoned are entitled to equal enjoyment and protection of all their human
rights, without any discrimination.
Reality:
In most countries, discrimination against women in prison has been documented,
including decisions made as to pre-trial detention, opportunities for education
and employment, healthcare, and in the exercise of marital and parental rights. In
many cases this discrimination is not intended by the prison authorities, but is
the effect of the prison system being designed for men.
Women often serve their sentences in harsher conditions than men due to their
small numbers. They have suffered from greater family dislocation than men,
because there are few choices for the imprisonment of women. They have often
been over-classified or detained in a facility that does not correspond to their
classification. For the same reasons, fewer programs have been offered,
particularly in the case of women detained under protective custody
arrangement. Furthermore, they have had no significant vocational training
opportunities, few opportunities for transfer, and very little access to a true
minimum security institution.
II. Basic Principle Security classification
Article 8 requires that “The different categories of prisoners shall be kept in
separate institutions or parts of institutions taking account of their sex, age,
criminal record, the legal reason for their detention and the necessities of their
treatment.”
A prisoner’s security classification determines their level of liberty. Prisons are
operated pursuant to rules that determine the degree of supervision and control
imposed on prisoners, according to their security classification. Security
classifications direct decisions such as granting leave from prison, access to
visitors and programs.
Reality:
The small number of women prisons has not adequately accommodated the rapid
growth of female prisoner population. As a result, women prisoners are likely to
be imprisoned according to a security classification that is stricter than justified
by any risk assessment. Untried prisoners are often held with convicted
prisoners, and those sentenced for civil and criminal offences are often held
together.
III. Basic Principle Supervision of women prisoners by women
Article 53 “(1) 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. (2) No male member of the staff shall enter the part of the institution
set aside for women unless accompanied by a woman officer. (3) Women
prisoners shall be attended and supervised only by women officers. This does
not, however, preclude male members of the staff, particularly doctors and
teachers, from carrying out their professional duties in institutions or parts of
institutions set aside for women.”
Reality:
Current investigations throughout the world document the fact that women
prisoners are at risk of rape, sexual assault and torture. In addition to open
assault, staff sexual misconduct of all forms, improper touching during searches,
being watched when dressing, showering or using the toilet occur which the
Special Rapporteur on Violence Against Women describes as ‘sanctioned sexual
harassment’. Very often, the presence of male corrections officers in housing
units and elsewhere creates a situation in which sexual misconduct is more
pervasive than if women are guarded by female officers. Further, there are some
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
favors. Prisoners who are abused or exploited by prison staff usually have little
opportunity of escaping from the abuser, while those who file a complaint or
take legal action are at risk of retaliation.
IV. Basic Principle Separation of female and male prisoners
Article 8 “(a) Men and women shall so far as possible be detained in separate
institutions; in an institution which receives both men and women the whole of
the premises allocated to women shall be entirely separate…”
Reality:
As a result of the lack of women’s detention facilities, women and girls in many
countries are imprisoned in prisons where men and women share facilities, such
as cooking and recreational space. Whilst formally male and female prisoners
may be held separately, in practice they are not. This places women at an
unacceptable risk of abuse by male prisoners.
V. Basic Principle Children living in prison with their mothers
Article 23: “(1) In women's institutions there shall be special accommodation for
all necessary pre-natal and post-natal care and treatment… (2) Where nursing
infants are allowed to remain in the institution with their mothers, provision shall
be made for a nursery staffed by qualified persons, where the infants shall be
placed when they are not in the care of their mothers.”
Reality:
In many countries, babies born in prison stay in prison with their mother and
very young children may be attached with their mothers into prison. Facilities
provided vary widely from country to country. Some countries have ‘mother and
baby units’, with special facilities to support the mother and the child’s
development, while some, babies live in the prisons without their presence being
registered or monitored by the concerned authorities, and without any special
provision being made for them.
This brief review illustrates the inadequacy of these more general rules in
addressing the needs and realities of women prisoners. These rules and
principles contain only a handful of provisions specifically directed to women
and girl prisoners. While meant to be applicable to both men and women
prisoners, is very limited awareness or attention given to women’s vulnerability,
specific needs, health, and child-rearing responsibilities. Accordingly, there is
growing concern regarding the rights and treatment of women prisoners, at
national, regional and international levels. A range of international fora have
emphasized the need to review prison systems and the norms and standards
regarding imprisonment with women’s needs in mind.
While the 1955 SMRs address some issues, there is growing support for an
additional set of international standards that take a comprehensive approach to
enhancing the lives of female offenders. The next section highlights selected
examples of specific national efforts to promote women’s rights within the
context of their needs.
Best
practices: Programs and emerging policy
There exist many best practices concerning the treatment of women prisoners in
various countries, arranged by both public and private sections, which reflect
various and specific characteristics and needs of each country or region. To
illustrate this point, there are examples of practices selected from 3 countries that
have geographical, economic, social, and cultural differences, yet have
developed significant indicatives to address issues relating to women in prison.
In the United Kingdom, there are 14 women's prisons and 7 mother and baby
units while female young adult offenders are held in dedicated young adult units.
However, there are currently 4 purposes built female juvenile units. This
suggests that, even in the developed country like the UK, attention to the specific
needs of female prisoners, particularly on the custodial allocation, has just been
alerted.
On the issues of pregnant inmates and children attached to incarcerated mothers,
the United Kingdom’s correctional agencies handle them with the establishment
of the 7 particular units for children and imprisoned mothers, which have their
own management methods.
On the side of private agencies such as Women in Prison or WIP, it has
dedicated its effort to support and campaign for women offenders and exoffenders
as well as to assist them with other preparation before and after
release; for example, advice on housing, education, mental health, legal rights,
work, benefits, debt, and domestic violence.
In Nigeria, Kirikiri prison in Lagos has been organizing the project on
preventing HIV/AIDS among female prisoners as current global statistics shows
that more than 20 million women are infected worldwide, and Sub-Saharan
Africa has the highest figure among these women. The project aims at
intervention for female prisoners in Nigeria prisons. The methods used are 1)
peer-education training to create awareness and prevention of HIV/AIDS among
inmates and prison personnel who acts as care givers, 2) Behavior, Change &
Communication (BCC) materials are developed, produced and distributed to
further create awareness, 3) Pre and Post test Counseling sessions are held for
inmates and prison personnel, 4) there is also provision of relief materials for
example beverages for infected mother and their babies, and 5) provision of
palliative drugs to infected inmates. This may illustrate that correctional regimes
in Africa tend to give their attention higher on the issue of HIV/AIDS than other
regions.
Within the context of Thailand, although duty of care belongs to the State’s
correctional services, there are still various NGOs and charity organizations
actively advocating for the improvement of the treatment of women in prisons,
for example, a project called Kamlangjai or Inspire, which started in 2007. The
project aims at providing women prisoners with moral support, basic healthcare,
as well as opportunities while serving sentences and after release. Piloted at the
Central Women Correctional Institution in Thailand, the Project has continued to
expand to institutions in various parts of the country.
Equally important, the Kamlangjai Project places an emphasis on assisting
pregnant and nursing inmates and children living with mothers in prison. Some
of the activities in this area include maternity courses for pregnant inmates,
facilities for child care and breastfeeding mothers and improved women’s health
care in prisons.
Further, it seeks to promote opportunities for women prisoners upon release in
order to minimize the chance of re-offending. Some of the activities in this area
include provision of vocational training programs (foot massage, bakery
cooking, or hairdressing, etc), religion-induced behavioral rehabilitation, and
entertainment introduced as psychological support tool.
In spite of these significant efforts to address the gender-based rehabilitative
needs and to ensure the human rights of women while incarcerated, it is
increasingly clear that a broader, more comprehensive approach to women
prisoners on an international level is required. This next section details the
efforts of the Kingdom of Thailand to bring together a broad coalition of NGOs,
international experts and global partners to need for international standards
which help set a gender benchmark which can trigger domestic review of
correctional management worldwide.
Thailand’s
proposal
Thailand deems it timely and appropriate to invite the world community to use
the original Standard Minimum Rules for the Treatment of Offenders (SMR) as
a base to develop a more comprehensive set of standards specifically geared
toward female offenders. Through the initiative of HRH Princess Bajrakitiyabha
Mahidol, Thailand has proposed a new approach to women offenders through
the draft United Nations Rules for the Treatment of Women Prisoners and Non-
Custodial Measures for Women Offenders which has been introduced to the
world community as the tangible effort of Thailand under the project called
“Enhancing Lives of Female Inmates” or “ELFI.”
The ELFI Project was launched in July 2008 by the Thai Ministry of Justice with
the aim to propose supplementary rules to the existing UN Standard Minimum
Rules on the Treatment of Prisoners, particularly on the issues of women
prisoners and their specific needs as well as measures of non-imprisonment for
women with some conditions inappropriate for custody as the extension of the
Tokyo Rules.
ELFI stems from the Kamlangjai Project and is based on the premise that, with
today’s changing World, the issues of women in prison have become more
complex. The existing regimes on the treatment of prisoners and offenders,
though appropriate for men, are either silent or not adequate for the genderspecific
needs and realities of women. The lack of specific standards, which
serve as a guide to those developing correctional policy and operating facilities
where women are housed, is especially important when dealing with pregnant
women and those with children attached to them.
The proposal does not mean to claim that Thailand has achieved the best
practices on the treatment of women in custody nor been a successful model for
other countries. Our part is simply to collect researches and best practices from
many countries, putting them together in a package proposal as a new set of
international standards and norms. We hope to be able to form an alliance of
like-minded countries in order to move this proposal towards a successful path.
Coalition efforts
International synergies play a key role in the drafting process and beyond. In
2009, Thailand convened the Roundtable Experts Meeting in Bangkok to
develop the draft United Nations Rules on the Treatment of Women Prisoners
and Non-custodial Measures for Women Offenders in order to make the Draft
Rules a well-rounded, comprehensive and integrated document. Following the
initial Experts Meeting, Thailand made presentations to several Regional
Preparatory Meetings to expand support of the initiative: the Latin and
Caribbean meeting in May, 2009; the Western Asian meeting in June, 2009; the
Asian and Pacific meeting in July, 2009; the African meeting in September,
2009.
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Following UN protocol, Thailand then convened a meeting of Intergovernmental
Experts, representing over 25 countries to review the draft rules closely. Then,
the “Draft United Nations Rules” represents a culmination of best policies and
practices on women prisoners that have been developed in various countries and
by many international organizations with the belief that this is a sustainable
guarantee and hope for women prisoners around the world.
As a result of the Meetings, there are 70 rules that can be organized into four
main pillars as proposed by the Draft United Nations Rules which include:
Part 1 Rules of General Application – covers the general management of
institutions which applies to all categories of women deprived of their liberty,
including criminal or civil, untried or convicted women prisoners, as well as
women subject to security measures or corrective measures;
Part 2 Rules Applicable to Special Categories – contains rules on classification
and treatments of the special categories of inmates; for example, inmates who
were victims of violence, pregnant inmates, and ethnic and racial minorities or
indigenous inmates. This part is also separated into 2 sub-sections namely
Section A: Prisoners under Sentence, and Section B: Prisoners under Arrest or
Awaiting Trial;
Part 3 Non-custodial Measures – apply to women offenders who committed
petty offence and those who have unsuitable physical factors to be custodial such
as, young female offenders and pregnant women. This part of the rules can be
enforced since proceeding of inquiry to post-sentencing stages of the criminal
justice process; and
Part 4 Research, Planning, Evaluation and Raising Public Awareness – aim at
encouraging research and analysis of behaviors of women that often lead to their
offences, including the impact of parental detention and imprisoned mothers on
the physical and psychological development of children. Additionally, it is
equally important to raise public awareness on this issue by actively engageing
with the media community.
(These rules and documentation of the process leading to their development can
be found on the website: www.elfi.or.th)
Future steps
After this 12th UN Congress on Crime Prevention and Criminal Justice, the final
agreed text of the Draft Rules will undergo its final stage which is the official
endorsement by the UN General Assembly, in New York this coming
September.
One should be aware that the proposed draft “United Nations Rules for the
Treatment of Women Prisoners and Non-custodial Measures for Women
Offenders” is not intended to create differences between men and women
prisoners, to grant women more privileges or a better treatment than males, nor
to replace or amend the existing regimes, but to simply create a gender equality
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approach to the treatment of prisoners and offenders as well as to narrow the gap
of negligence to fulfill specific needs of women prisoners, and to build an
internationally accepted point of reference on the treatment of women prisoners
for prison authorities worldwide, especially in its relation to gender differences
and unmet needs of women.
Once the proposed draft “United Nations Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women Offenders” is internationally
adopted and implemented, we, as the world community, shall be looking for the
best for those whose right to freedom is limited, yet other rights as a human
remain.
Once the best occurs to imprisoned women, we, as one society, shall proudly
declare that we are now in the civilized world where any maltreatment or
discrimination based on sex is ended by our own pure will to uphold human
rights of all individuals.