International Standards for the Protection of Women’s Rights in Prison: the Bangkok Rules

01-08-2023

Ecenur Uyanık

Women's Rights Researcher

Global Human Rights Defence

• Introduction

Over half a million women and girls are held in penitentiaries worldwide, either in prison serving a sentence following a conviction, or awaiting trials in detention (Manganara, 2018). Women in prison have specific needs and unique profiles which are considerably different from those of men. However, criminal justice systems frequently ignore the gender-specific requirements of female prisoners and discriminate against them since they make up a smaller proportion of the overall prison population (Barzanò, 2012).  As such, while human rights violations such as torture or mistreatment in detention have long been a source of great concern for the longstanding efforts to recognise prisoner’s rights, the gendered dimension of prison problems have not yet been sufficiently explored by international soft law standards addressing prisoners’ rights. 

The main international legal frameworks relating to the treatment of prisoners are set by the United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, and the Standard Minimum Rules for Non-custodial Measures (also known as the Tokyo Rules). Although these instruments all apply without discrimination, they do not expressly address the specific situation of women prisoners and their unique needs (Barzanò, 2012). Consequently, in 2010, the General Assembly adopted the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, also known as the Bangkok Rules, to fill this gap and address the gender-specific needs of women in prisons. The Bangkok Rules aim to provide for the distinctive needs of women prisoners in order to accomplish a higher standard of gender equality within the criminal justice system (Barzanò, 2012). 

This article will first introduce some of the main issues regarding women’s vulnerability in prisons and the challenges they face because of their gender-specific needs, and then provide an outline of how the Bangkok Rules address these issues. 

• Profile and Situation of Women in Prison 

As studies show, the stereotypical conception that women are less likely to commit crimes than men holds true all over the world (Barzanò, 2012), however, women do enter the justice system and offend for various reasons. A majority of women mostly commit crimes out of desperation and lack of resources, especially when they are tasked with the responsibility of providing for a family, or out of reaction to assault or abuse in self-defence (Barzanò, 2012). For women who enter the criminal justice system, treating them in the same way as their male counterparts who make up the bigger chunk of the prison population is not the way to achieve gender equality, since the circumstances in which women commit crimes, as well as their needs in prison are considerably different from those of men (Penal Reform International, 2013). The unique situation and gender-specific needs of women must be taken into account to ensure the protection of their rights in prison and achieve gender equality in criminal justice institutions. 

Women in penitentiaries are often single, poor mothers belonging to marginalised groups such as ethnic minorities (Manganara, 2018). Their detention is often in close correlation with low socioeconomic status, which creates a vicious cycle as poverty is often the underlying cause of the crimes committed, as well as the reason why women stay incarcerated, since they lack the financial capacity to access legal services or pay bail (Manganara, 2018). Studies show that many women have been victims of domestic violence and sexual abuse prior to imprisonment worldwide. As a result of this, they are more likely to suffer from mental health problems than men, with imprisonment creating new mental health needs or exacerbating existing ones (Penal Reform International, 2013). Harm to mental health is aggravated when women feel unsafe due to male supervisors and prison guards, fearing abuse (UNODC, 2014). Women with mental health issues are considerably more vulnerable to abuse because of the lack of psychological assessment capabilities needed to protect or defend themselves (Manganara, 2018). 

In some countries where prisoners spend pretrial detention in police custody, women are at particular risk of sexual abuse, which is often used as a tool to coerce and control them in order to get confessions (UNODC, 2014). After pretrial detention, during conviction, women are frequently at risk of further sexual abuse and humiliation by law enforcement officials in prisons. The abuse women face can take forms of verbal abuse, strip-searches, improper touching during pat-down searches, frequent and unnecessary searching and spying during showers and in private living areas, and routine vaginal examination of women suspected of drug trafficking (Manganara, 2018). Rape often takes the form of sexual services which female prisoners are forced to provide in exchange for access to goods and privileges or for their enjoyment of basic needs and human rights. To address the vulnerability of women prisoners to sexual abuse, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) prohibit any involvement of male staff in the supervision of women’s prisons, but this rule is not applied in many countries mostly due to lack of female prison staff or concerns for equal employment opportunities (UNODC, 2014). The separation of men and women and employing exclusively female prison staff for the surveillance of women prisoners, as stipulated by Nelson Mandela Rules and the Bangkok Rules, are essential guarantees to protect women prisoners from violence. 

In many countries, victims of sex trafficking are imprisoned and charged for prostitution or illegal entry or residence in the country, despite international conventions obligating states to protect trafficking victims and to prevent re-victimisation. When in prison, these women are particularly vulnerable because of conceptions about their sexual promiscuity and their association with the sex trade (Manganara, 2018). In some countries, victims of trafficking may also be detained under the guise of protection. Unequal gender-based cultural practices and norms in some countries create a discriminatory basis for the imprisonment of women. For example, in Jordan, women thought to have violated the strict rules required by custom, tradition, or religion are imprisoned for over a decade on the grounds that they are at risk of being victims of honour crimes (Penal Reform International, 2013). Imprisonment resulting from ‘moral crimes’ is a major factor for women imprisonment numbers in some countries, such as in Afghanistan, where a study showed that almost all girls in juvenile detention had been arrested for moral crimes which usually involve flight from teenage forced marriage, or sex outside of marriage due to being raped or forced into prostitution (Barzanò, 2012). 

Women have gender-specific medical requirements and need to have regular access to women’s health-care specialists. Prisons in many countries lack the means and equipment to provide basic health-care services, let alone gender-specific medical care (Manganara, 2018). As potential victims of sexual violence, women constitute a higher risk group than men with regards to HIV and other sexually transmitted infections. Studies show that a larger percentage of women are infected with HIV than men in prisons worldwide (UNODC, 2014).

Those who are mothers constitute a high percentage of incarcerated women. Pregnant women in prison rarely receive adequate pre- and post-natal care and delivery of babies is frequently carried out with poor hygiene conditions (UNODC, 2014). Regarding mothers who are forced to leave their dependent children outside when being admitted into prison, the rights and needs of those dependent children are rarely taken into account when detaining their mothers, which both goes against the best interest of the children and puts psychological strain on the mothers, who are kept away from them and left to worry about their care, or lack thereof, in the outside world. Separation of women from their children has traumatic and long-term effects on both women and their children. 

Drug-related offences make up the largest chunk of offences committed by women, and drug-related causes are the main reason for their delinquency (Manganara, 2018).  Women are at a high risk of reoffending considering the high proportion of substance-dependent female prisoners and the lack of gender-specific or standard treatment programmes in prisons. Most substance-dependent women continue with their substance abuse after release because of the lack of these programmes (UNODC, 2014).     

As outlined above, it is evident that women prisoners have unique circumstances that need special attention from criminal justice systems when they are admitted to prison. Overlooking these distinct needs may result in serious violations of the human rights of women prisoners, and states have a positive obligation under international law to take the measures necessary to prevent these violations. 

• Protection under the Bangkok Rules 

The United Nations Rules on the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders, also known as the Bangkok Rules, have remedied a gap in international law by recognising the gender-specific circumstances of women prisoners and seeking to address their needs (Manganara, 2018). This gap in international norms existed because women and girls represent less than a tenth of the prison population, and their specific needs have been overlooked and unacknowledged by criminal justice systems, while prison regimes have usually been designed specifically for men (Penal Reform International, 2013). The Bangkok Rules, which specifically address the many requirements that women have and the circumstances from which they emerge, are crucial for defending the rights of female offenders and convicts. The Rules supplement the existing UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) (UNGA, 65th Sess., October 6, 2010). By adopting the Bangkok Rules in 2010, the UN General Assembly recognised the need to provide international standards to appropriately respond to the distinct needs of women offenders and prisoners (Barzanò, 2012). The Rules are addressed to prison authorities and criminal justice agencies involved in the administration of sanctions. 

The Bangkok Rules protect three categories of female detainees: those who are presumed innocent but are in custody awaiting trial, those who are serving a sentence following conviction, and those in protective custody of the state (UNGA, 65th Sess., October 6, 2010). The most important aspect of the rules is that it is the first international legal instrument to address the needs and rights of children accompanying their parents in prison (Penal Reform International, 2013). In relation to this, not only mothers but male prisoners who are fathers are also addressed, as the central role of both parents is recognised for children (Penal Reform International, 2013). 

The rules aim to provide guidance to policy-makers, national legislators, criminal justice authorities, and prison staff in order to reduce the unnecessary incarceration of women, and address the gender-specific needs of women in case of imprisonment. Recognising that imprisonment is usually an ineffective and harmful solution to prevent crimes, gender-sensitive alternatives are provided for both pre-trial detention and sentencing post-conviction, in an effort to address the most common causes of offending (Penal Reform International, 2013). Counselling services with on-site childcare facilities are one of these alternatives that provide a solution for offenders who are mothers, which allows them to tackle the root causes of criminal behaviour while continuing to care for their children. An important rule addressed to the judiciary, Rule 61, stipulates that “courts shall have the power to consider mitigating factors such as lack of criminal history and relative non-severity and nature of the criminal conduct, in the light of women’s caretaking responsibilities and typical backgrounds” (UNGA, 65th Sess., October 6, 2010). 

If imprisoned, the Rules state that a transition period must be implemented so that women who might feel particularly vulnerable upon their first admission to prison do not get re-victimised or resort to self-harm or suicide during that initial period. To put this practice in place, facilities where new prisoners can spend their first few days to help adjust to prison life should be provided to all prisoners, but especially women prisoners who are specifically vulnerable to mental distress (UNODC, 2011). The Rules also touch upon the need for gender-specific responses for mental health, and state that substance abuse treatment programs and reproductive healthcare must be provided for women prisoners. To ensure the treatment of women with humanity and dignity, the use of restraint instruments such as shackles on pregnant women during labour, birth, and transfers to hospitals is prohibited by the Rules. There is also a ban on solitary confinement or disciplinary segregation for pregnant women, women with infants, or breastfeeding mothers (Penal Reform International, 2013). 

The Bangkok Rules recognise the crucial importance of safety measures for women prisoners. To preserve women’s dignity and to address the risk of abuse, the Rules prohibit any involvement of male staff in the attendance and supervision of women prisoners, and stipulate that security measures such as pat-downs and strip searches must be carried out by female staff, and that alternative searching methods should be developed (UNODC, 2011). Searches are one of the most delicate and often traumatic experiences for prisoners, and this is aggravated in case of women prisoners who have a history of sexual abuse (Barzanò, 2012). 

Regarding the situation of women with children, Rule 2 stipulates that special provisions must be made so that mothers who have been unexpectedly separated from their children who they are the primary carers of can have access to information and legal advice on alternative care arrangements before admission to prison, to ensure that their children left outside are properly cared for (UNODC, 2011). The separation between a mother and her child has traumatic effects on both of them, which likely might result in acute emotional and developmental problems in the child and mental health issues in the mother (Barzanò, 2012). To mitigate the effects of this separation for women prisoners with children or families outside, Rule 4 refers to the principle of placing women close to their homes or places they are socially integrated in, in order to ease communication with their families and enhance their social rehabilitation (Ciuffoletti, 2020). 

For some children, accompanying their mothers in prison might be the case. Many women globally who are admitted to prison are accompanied by their children, who might remain with them for prolonged periods of time in prison (Penal Reform International, 2013). The rules require that prison services provide for the full range of children’s needs who are in prison with their mothers, including medical, psychological, and physiological needs to ensure that children are not treated as prisoners alongside their convicted parents (UNODC, 2011). The issues addressed by the Rules regarding women prisoners and their children are also in line with the principles enshrined under the Convention on the Rights of the Child, in particular as they refer to the best interest of the children in any situation, whether it be when the child joins her mother in prison or when they are separated. 

The Bangkok Rules, as outlined above, constitute an important step towards the realisation and protection of women’s rights in prison and the adoption of a gender-specific approach to prisoners’ rights by enshrining a set of international norms to be used as standards and guidance by states on the national level. Many of the Rules do not require additional resources for their implementation, but only a change of perspective on awareness, attitude and practices with regards to women (Penal Reform International, 2013). 

• Conclusion and Recommendations 

The situation of women in prison is often an overlooked issue, frequently neglected by criminal justice systems due to the fact that male population dominates penitentiaries globally. However, women prisoners have gender-specific needs that when overlooked, result in serious violations of women’s rights. 

The Bangkok Rules hold historical significance for encapsulating all the provisions addressing the many gender-specific issues affecting women prisoners. While the international law gap regarding the issue of women’s rights in prison has been filled by the Bangkok Rules and other supplementary instruments, there is still a long way to go for the standards on paper to be implemented properly in practice. 

In order to ensure proper implementation, steps must be taken in both the operational sense within the criminal justice system, and in terms of raising awareness via the engagement of civil society. Most importantly, a committed investment in the training of prison staff, policy-makers, prison administrators, and others who frequently engage with women in the criminal justice system is crucial (Penal Reform International, 2013). The support of the public and civil society is very important in the successful implementation of prison reform strategies, thus, informing society on research outcomes conducted on issues regarding women’s imprisonment and highlighting good practice on the effectiveness of delivery of justice to women offenders constitute important steps in raising public awareness (UNODC, 2014). 

To the greatest extent possible, the population of women in jail should be reduced through the development of laws, rules, and other measures by policymakers, and criminal justice institutions. To guarantee that legal authorities have enough alternatives to pretrial detention and imprisonment that accommodate women's particular needs, this may entail reviewing and revising pertinent legislation, including the criminal code and criminal procedure code (Penal Reform International, 2021).

In order to ensure that the unique requirements of women in prison are taken into consideration in the overall management mentality and treatment of inmates, it is the obligation of states and prison authorities to adopt gender-sensitive prison management policies. A gender-sensitive prison management approach must begin from the admission of a woman to prison, continue throughout her imprisonment period, and must also guide her on arrangements for her release and post-release assistance needs. The Bangkok Rules include instructions to prison officials on how, in the case of women in prison, a gender-sensitive prison management strategy should be represented in the prison regime, healthcare, activities, and a variety of other aspects of the management of prisons (Penal Reform International, 2021). 

In light of these necessary efforts to be made by public officials and actors in the criminal justice system, all states must aim to properly implement The Bangkok Rules in an effort to ensure and protect women prisoners’ rights by addressing their gender-specific needs. 

References

Barzanò, P. (2012). The Bangkok Rules: An international response to the needs of women offenders. Resource Material Series No. 90. Retrieved on July 5, 2023 from https://www.unafei.or.jp/publications/pdf/RS_No90/No90_11VE_Barzano.pdf 

Ciuffoletti, S. (May 2, 2020). “Regardless of their sex” or “biological differences”. An analysis of the European Court of Human Rights’ case law on women in prison. Revista Direito e Praxis, Vol.11 N.02, p.1275-1311. Retrieved on June 30, 2023 from https://www.scielo.br/j/rdp/a/jBjfJ6Tm3fBQhnjx8yyKVkc/?lang=en 

Manganara, J. (June 6, 2018). The Situation of Women in Prison. Retrieved on June 29, 2023, from https://www.womenalliance.org/the-situation-of-women-in-prison/ 

Penal Reform International (December 2021). Guidance Document on the Bangkok Rules: Implementing the United Nations Rules on the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders. Available here: https://cdn.penalreform.org/wp-content/uploads/2021/12/BR_Guidance_Doc.pdf 

Penal Reform International (2013). UN Bangkok Rules on women offenders and prisoners: Short guide. Available here:   https://cdn.penalreform.org/wp-content/uploads/2013/07/PRI-Short-Guide-Bangkok-Rules-2013-Web-Final.pdf 

United Nations General Assembly (December 14, 1990). United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules). Resolution 45/110. Available here: https://www.ohchr.org/documents/professionalinterest/tokyorules.pdf  

United Nations General Assembly (October 6, 2010). United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules). UN Doc. A/RES/65/229. Available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N10/526/28/PDF/N1052628.pdf?OpenElement 

United Nations General Assembly (December 17, 2015). United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). UN Doc. A/RES/70/175. Available here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/443/41/PDF/N1544341.pdf?OpenElement 

United Nations Office on Drugs and Crime (2011). United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders with their Commentary. Available here: https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf 

United Nations Office on Drugs and Crime (2014). Handbook on women and imprisonment. 2nd edition. Criminal Justice Handbook Series. Available here:      https://www.unodc.org/documents/justice-and-prison-reform/women_and_imprisonment_-_2nd_edition.pdf