The following papers were presented at Women in Prison: An International Symposium on the Bangkok Rules at the Centre for Comparative and Public Law at the Faculty of Law, University of Hong Kong on 25-26 February 2014. Papers were edited, translated, and compiled by The Dui Hua Foundation.
Since the Bangkok Rules were adopted by the UN General Assembly in 2010, many countries and international organizations have started putting these rules into practice. In Thailand, criminal justice agencies and organizations working with women also place a strong emphasis on the implementation of the rules. This paper will discuss Thailand’s experience in implementing the Bangkok Rules, focusing on women offenders in non-custodial settings. The paper will also cover the characteristics and nature of women offenders in the criminal justice system, the background of the Bangkok Rules, and efforts to implement the rules among women offenders and raise public awareness in Thailand.
This presentation will explore international standards and lived experiences relating to children of all ages (not only babies and young children) whose mother is or may be sentenced to prison. Topics include how and why the best interests of the child can be taken into account, whether babies or young children should accompany their mothers into prison, and some of the alternatives to incarceration used in different contexts.
It is well known that women prisoners often experience multiple forms of gender-based violence while in confinement. However, as this presentation will suggest, violence against women not only is a frequent condition of women’s imprisonment but may also be a cause and consequence of it.
National and regional studies reveal a strong correlation between violence against women and women’s imprisonment, some suggesting that 70, 80, and even 90 percent of women in prison are survivors of sexual or physical violence. In many of these cases, the abuse that women experienced played a significant role in their involvement in the activities for which they are imprisoned. In other cases, women are imprisoned for economic offenses that they committed in response to coercion by abusive partners. In some countries, women who have been victims of violence are imprisoned for violating laws that criminalize “moral” offences or are administratively detained, ostensibly for their own protection. Even where women’s imprisonment is not directly related to violence they experienced, the over-incarceration of women, often as a result of severe sentences for drug-related offenses and lack of alternatives, is a serious human rights problem.
At the same time, the consequences of imprisonment on women and their families are often more severe and longer-lasting than those experienced by male prisoners. Some women who have been imprisoned are targeted for so-called “honor violence” by family or community members because of the perceived shame associated with the woman’s imprisonment. In addition, studies indicate that imprisonment has a disproportionately negative effect on women’s physical and emotional health. Women face legal and societal barriers to accessing employment, affordable housing, educational opportunities, health insurance, and social networks. Many prisons are located far away from a woman’s home, which makes it difficult for women to maintain regular contact with their children and families. These collateral consequences make former women prisoners more vulnerable to recidivism and to recurring gender-based violence.
Drawing upon examples from around the world, this presentation will explore some of the ways in which gender-based violence can be a pathway to and a consequence of women’s incarceration. It will also consider these pathways and consequences in light of States’ international law responsibility to eliminate violence against women and offer suggestions for how States might more effectively address them.
In mainland China, women account for a very small percentage of the prison population. Although there are no national statistics on the reasons for women’s incarceration, local data indicates that the main reason for women’s incarceration is their experience of domestic violence and their fighting that violence with violence. Prior to the violent act, most women attempted to file a report and receive police assistance or attempted divorce without success.
This paper draws parallels with relevant provisions of the Bangkok Rules, first to introduce pilot projects involving judicial intervention in domestic violence started in 2007 by people’s courts and implemented for both civil and criminal cases. These interventions include strengthening the protection of the basic rights of women in marriage and family and preventing and reducing crime among women, including women’s long-term experiences of domestic violence into the scope of sentencing as a mitigating factor for female defendants charged with fighting violence with violence, and the important influence of court pilot programs in the legislation of anti-domestic violence law in mainland China. Secondly, this paper identifies shortcomings, and finally, recommendations necessary for improvement.
Research Report on the Treatment of Women Detainees in China—Using the Bangkok Rules as the Starting Point of Analysis
Author(s): Cheng Lei, Lü Xiaogang and Chen Jianjun
Abstract: Click to read
This report focuses on the treatment of women detained in mainland China and the extent to which their rights are safeguarded, using various empirical research methods to carry out targeted research on relevant regulations in the Bangkok Rules. Due to limited time and efforts, the scope of research for this report only pertains to issues concerning the treatment of women detainees; non-custodial measures for women offenders are not discussed. This report selected five women’s detention institutions (two women’s prisons and three women’s detention centers) in which to carry out a variety of empirical research methods, including interviews, field observation, surveys, and analysis of judicial statistics. Cross-validation was then conducted on data and results. The report mainly focuses on four issues relevant to the Bangkok Rules: 1) women detainees’ right to physical hygiene and health, 2) marriage and family rights, 3) mental health, and 4) the safeguarding of personal dignity and privacy.
The main findings of this study include: 1) Academic research on the Bangkok Rules and the rights protection and situation of female detainees is very limited. In this sense, it is urgently necessary that the framework of the Bangkok Rules be used to promote relevant, systematic research. 2) Existing laws and regulations concerning the situation of women detainees are scattered and oversimplified. To a certain extent, this shows that decision makers’ ability to recognize what it means to apply a female gender perspective to detention management is still limited. 3) Strict implementation of the system of separate detention for female detainees and male offenders has advantages and disadvantages. Furthermore, female corrections officers who manage women prisoners are currently insufficient in number; lack specialized training; and experience problems like poor mobility, heavy workloads, and poor remuneration, etc., all of which directly affect the treatment of women detainees. 4) Concerning rights protection and the situation of women detainees, overall, the government has in recent years worked hard to invest in and standardize the management of prisons and detention centers. Basic living conditions are fully provided inside places of detention. Humane management and the extent to which the rights of detainees are valued and respected have been largely transformed. The main deficiency that currently exists is that the treatment and rights of women detainees related to their particular physical and psychological needs still requires further refinement and special safeguarding. In this respect, the things that must urgently be improved include but are not limited to: mechanisms for hot water and food, channels and convenient conditions for communicating with family, psychological counseling, and privacy and personal dignity.
The adoption of the Bangkok Rules by the UN General Assembly in December 2010 represented a major paradigm shift in women’s corrections. The challenge that is now faced is to ensure that the rules are put into practice. They must be incorporated into domestic legislation, sentencing policies, and prison rules and regulations. This paper demonstrates the activities being undertaken by the Thai departments and bodies responsible for promoting and implementing the Bangkok Rules, notably the Ministry of Justice, the courts, the Department of Corrections, and Thailand Institute of Justice. Central to the discussion are seven key areas of reform, notably, body searches of prisoners, childcare and healthcare services for mothers and children, the physical environment and prison settings, the opportunity for training and knowledge enhancement for prisoners, discipline and punishment in prisons, and medical facilities and healthcare.
This paper received the support from the Beijing Prison Administration Bureau, enabling it to peek into the basic situation of female offenders in China’s prison system via judicial statistics on female juvenile offenders in Beijing. Generally speaking, in China, the rights protections of offenders in prisons in developed areas are at a higher level than those in underdeveloped areas, those of female prisoners are at a higher level than those of male prisoners, and those of juvenile prisoners are at a higher level than those of adult prisoners. Of course, although due to regional differences the situation of female juvenile offenders in Beijing’s prison system as described in this paper cannot fully represent the basic situation of female juvenile offenders in China’s prison system, due to the influence of China’s tradition of “respecting the old and caring for the young,” with the exception of corrections plans and techniques, the level of rights protection for Beijing’s female juvenile offenders should be able to be seen as the general situation of rights protection for female juvenile offenders in China.
Female juvenile offenders comprise a special group of female offenders. According to the provisions of Chinese law, juvenile offenders should serve out their sentences in juvenile reformatories, at the same time, male and female offenders should be detained separately. As compared with female juvenile offenders incarcerated in women’s prisons, it is more appropriate, in our opinion, for female juvenile offenders to be incarcerated in juvenile reformatories which house juvenile males and females in sex segregated cell blocks.
A serious problem complicating sentence execution in Chinese prisons is the distribution of prisons. Chinese criminal law stipulates that jurisdiction authority is generally in the place where the criminal act was committed, so after conviction by a court, offenders generally also serve prison sentences in the province (or autonomous region or directly administered municipality) where the criminal act was committed. Furthermore, determining which of the prisons within the province the offender will serve their sentence also depends on the type of offense. This is logical in terms of judicial efficiency, but it also has serious drawbacks: offenders incarcerated inside prisons have no connection to the communities in which the prisons are located. Thus, apart from concerns about prison security, society is indifferent to prison corrections. As a result, a real foundation for the socialization of sentence execution is lacking. Family visits are also faced with serious obstacles—with some relatives needing to travel far and wide, sometimes thousands of kilometers to make a visit—which is extremely detrimental to improving offenders’ mental health or reestablishing their connections with family or other members of society. Changing the distribution of prisons is a relatively difficult task in the near future, but it is entirely possible to start with juvenile offenders, gradually realizing prison downsizing and integration into the community may be one strategy worth considering.
Due to their small number among the prison population, women and girls as subjects of the criminal justice system have tended to have their specific needs and characteristics go unacknowledged and unaddressed.
Penal and prison systems 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. Where non-custodial alternatives to imprisonment are in place, they tend not to be gender-sensitive. Pre-release preparation and post-release support policies and programs are also typically structured around the needs of men and rarely address the gender-specific needs of women offenders.
International standards were almost silent on gender-sensitive treatment of women prisoners and prison conditions until the adoption of the Bangkok Rules by the UN General Assembly in December 2010. Now the standards need to be put into practice.
To support States in implementing the Bangkok Rules, Penal Reform International—together with partners such as Thailand Institute of Justice and Human Rights Education Associates—has developed a range of practical resources, including a Guidance Document, an Index of Implementation, and an interactive e-course.
This presentation will focus on states’ legal obligations to act with due diligence to prevent and address all forms of violence against women, whether committed by the state or a non-state actor.
In 1999, Hong Kong’s shadow report on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) highlighted a number of concerns regarding the situation of women in prison. Among these concerns were the recent rise in the number of female prisoners; the resultant crowded conditions; the types and objectives of work, training, and education; and gender staffing practices.
In light of the Bangkok Rules, with its emphasis on gender sensitivity in relation to health, safety, and treatment, this presentation picks up from the 1999 shadow report to examine developments and changes in Hong Kong’s prison system for females over the past 14 years. Our aim is twofold. First, we seek to describe the nature and context of the female prison population in Hong Kong, especially in light of the fact that, for nearly a decade, Hong Kong has ranked either first or second in the world with the largest percentage of female prisoners within the total prison population. While the female prison population typically averages between two percent and nine percent of a country’s total prison population, Hong Kong’s female prison population currently represents 19 percent of the total population. What are the driving forces for this rise in the female prison population, and to what effect? Moreover, what are their particular needs? We suggest that, like many other locales around the world, much of the growth in women’s imprisonment is related to unauthorized migration and/or drug-related offenses. In either case, both have distinct implications for prison systems, correctional authorities, and prisoners themselves.
Second, in relation to these implications, we discuss how Hong Kong’s correctional authorities have adjusted to the changes in the nature and context of the female prison population, including the adoption of policies and programs to facilitate motherhood in prison, healthcare, gender-relevant vocational training, and specialized psychological treatment for female offenders.
In 2012, China took a meaningful step towards promoting justice by amending and improving the Criminal Procedure Law with a view towards respecting and protecting human rights. Taking into consideration that female defendants form a vulnerable group with special needs and demands, among the amendments were a series of measures for sex-differential treatment meant to protect women’s human rights starting at the investigation stage. For example, women are treated differently as much as possible during pre-trial compulsory measures. Wherever possible and appropriate, priority is given to the use of non-custodial measures. China’s Criminal Procedure Law stipulates that pregnant women and women breastfeeding their own babies may be released on guarantee pending further investigation if doing so does not endanger society. Residential surveillance may be used for women who are pregnant or breast-feeding their own baby if they meet the conditions for arrest. In order to meet the special needs of women at odds with the law and engender human rights protection and humane care, women who are pregnant or breast-feeding their own baby—whether sentenced to criminal detention, fixed-term imprisonment or life imprisonment—may temporarily serve their sentences outside correctional institutions.
At the same time, in order to provide the maximum level of protection to women at odds with the law, the importance of female staff in proceedings has become increasingly prominent. For example, the Criminal Procedure Law stipulates that women’s health checks should be carried out by female staff or physicians and searches of women’s bodies should be carried out by female staff, reflecting protection requirements for women’s safety put forth in the Bangkok Rules. China presently has women’s prisons throughout the country specifically for imprisoning female offenders. Most of the staff members at these institutions are women, which is extremely important to ensure the human rights of female offenders and improve their ultimate circumstances.
For juvenile criminal cases, in order to protect female minors, the Criminal Procedure Law states that their legal representatives should be notified to be present at the time of interrogation and trial. If their legal representatives cannot be present, an adult family member or representative of their school, work unit, basic-level organizations in their place of residence, or juvenile protection organization should be notified to be present. When questioning female juvenile suspects, female staff should be present.
In July 2013, the case of a young woman who was killed after helping a pregnant woman back home in a certain city caught everyone’s attention. The pregnant woman was able to trick the victim into accompanying to her home. After the pregnant woman’s husband raped the woman, the couple murdered her. Looking at the entire case, the pregnant woman displayed a high degree of malice which negatively impacted society, but because she met the stipulations in the Criminal Procedure Law for “pregnant women,” she was first placed under residential surveillance.
This presentation intends to convey the idea that even in high-security prisons it is possible to comply with the Bangkok Rules. Some examples are given as to why and how the rules are implemented in the largest women’s prison in Norway. The Norwegian concept of “dynamic security,” which gives value to the relational dimension in direct work with prisoners, is of great importance in this respect. In other words, with good relations and humane treatment comes less violence and greater compliance with the rules. Guards carry no weapons in our prisons. Another basis for adhering to the Bangkok Rules is the prevailing Norwegian political position on punishment. A prison sentence should contain the loss of freedom only, and not the loss of other civil rights. Each individual has her inborn rights, not to be violated, even in prison. In Norway, prisoners’ civil rights are fulfilled through services from ordinary agencies in the community where the prison is placed. Known as the “import model,” its main goal is to keep life in prison as “normal” as possible. For instance, prisoners do not wear prison uniforms.
One of the basic rights for incarcerated persons is the right to file complaints. In the Norwegian system, all formal decisions can be disputed at a higher level. There are also independent boards of appointed civilians from all trades who visit prisons unannounced in order to inspect the conditions and have uncontrolled talks with the inmates.
This presentation will elaborate on the topics laid out above. It will also point out where Norway falls short of complying with the Bangkok Rules. For instance, Norway is one of the few countries that does not allow children to live in prison with their incarcerated parents. This is one major issue in need of a solution for mother-child relationships in high-security prisons.
In conclusion, the presentation will point to the important role of the Bangkok Rules in making national laws and local regulations. These rules must be given the respect and power to show the way towards better conditions for imprisoned women all over the world.
Women continue to constitute a very small proportion of the general prison population worldwide. In Argentina, women represent less than nine percent of the imprisoned population. However, not only is this figure increasing in tandem with the rise in the overall prison population, but studies in some countries have also shown that the number of female prisoners is increasing at a faster rate than that of male prisoners. For example, from 1989‒2008 in Argentina, the number of female prisoners within the federal system increased by 271 percent, while the male population rose by 112 percent.
Tougher criminal policies worldwide have meant that a growing number of women are being imprisoned for minor offenses. In Argentina, legislation for drug-related offenses has had a significant impact on the number of women in prison and on the growth rate of incarceration. Almost 65 percent of women in prison are accused or convicted of drug-related crimes.
It is beyond the scope of this summary to analyze in depth the many reasons that led to the massive and sudden increase in the number of female prisoners in Latin America, but we should at least refer to legislative policies in recent years that have been developed under the logic of emergency. These policies have significantly modified the social-control techniques and their rationality, and combined with high levels of poverty and exclusion, resulted in a criminal policy designed to fit the “included.” Those on the margins found prison as their only alternative, leading to an increase in the female prison population.
To understand the causes that led to the increase of women in prison, this presentation will consider how the transnational networks that traffic and distribute drugs affect men and women differently. Drug-related crimes—trafficking in particular—is usually organized through complex and hierarchical structures and networks beyond geopolitical boundaries. The lowest ranked roles within the networks are more vulnerable and more exposed to punitive power from the State. It is precisely in these secondary tasks and roles where women’s participation is concentrated. These women are highly vulnerable from an economic and social perspective. Moreover, the high profitability of drug trafficking versus the low profitability of women’s work appears to be a crucial factor in drug trafficking, as it is an activity that generates incomes usually unobtainable through other means, be it formal or informal work.
The subject of prisons and prisoners has limited interest for the general public except to the extent that the public is able to relate to the institution as a supposedly effective punitive instrument that locks up undesirables (“offenders”) and keeps society safe from them. That this is all in accordance with the law gives legitimacy to how prisons and prisoners are viewed. Knowledge about and interest in the institution and its occupants is almost non-existent with the result that those “inside” become invisible and thereby lost to society. Of these, the fate of women inside is infinitely worse in terms of their present as well as future lives.
There were approximately 16,000 women prisoners in the whole of India at the end of 2012. But how many actually go through the system in a year is at least ten times that number. The nature of their offences—from petty crimes to murder—and the causes for offending differ quite radically from those of men. They also have experiences in prison that are different from those of men. Constituting around 5 percent of the prison population in India, and a minuscule percentage of a 1.2 billion general Indian population, this category of prisoner has received attention only when there has been pressure from human rights groups to do so. Since prisons are a low priority for governments, and women housed in prisons being an even lower priority due to their relatively fewer numbers and the backgrounds they come from, it has not been considered worthwhile to devote much attention to an entire range of problems surrounding the issue of women and children locked up in prison.
The basic premises for suggesting there is a need to explore alternative ways of punishing women offenders is based on a few tested premises:
- that prisons damage people and the damage they do to vulnerable prisoners, like women, clearly needs greater investigation and understanding;
- that we know little about what really goes on inside our prisons, especially to women;
- imprisoned women suffer the worst in terms of disdain and insults in prison and outside (including in their own families);
- imprisonment of women ruins families and family life leaving women without futures;
- imprisonment wastes valuable human resources that could be better utilized in “alternatives”; and
- they are the most opaque and secret institutions of the State where human dignity can be violated without public knowledge, a fact that affects women more adversely.
Women in jail suffer from ill-health and mental and psychological disorders. These need to be analyzed and addressed as does the other vital negative effect that entire families are ruined when women are removed from their midst by being locked up.
The approach of this paper will be to look at the limits of the law in addressing this problem that lies entrenched in social and cultural factors. Both for understanding and approaching the problem, the canvas needs to be widened.
The presentation will introduce the Working Group on the Issue of Discrimination Against Women in Law and in Practice (WGDAW), indicate the importance of Bangkok Rules and show some examples of good practices aimed at bringing the national penitentiary laws and their implementation to conformity with the requirements set by those rules.