This module is a resource for lecturers
Topic 1 - Gender-based discrimination and women in conflict with the law
This topic provides an overview of gender-based discrimination encountered by women at various stages of criminal justice system, with a particular focus on gendered pathways to offending and incarceration; access to justice; and key issues and challenges concerning women's imprisonment. As noted by the CEDAW Committee, gender-based discrimination is based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, all of which adversely impact on the ability of women to gain access to justice on an equal basis with men (CEDAW Committee, General Recommendation 33, para. 8). Frequently, States parties have discriminatory constitutional provisions, laws, regulations, procedures, customs and practices that are based on traditional gender stereotypes (CEDAW Committee, General Recommendation 33, para. 21). The Committee also stressed the importance of addressing stereotyping and gender bias in the justice system and its particularly harmful impact on women (CEDAW Committee, General Recommendation 33, para. 26).
Understanding gendered pathways of offending and incarceration
While women often relate to criminal justice systems as victims of crime, recent trends indicate that a growing number are featuring as suspects, accused and prisoners. The percentage of women in prison is growing globally and at a faster rate than the male prison population. While the global prison population grew by approximately 21 per cent from 2000 to 2016, that of imprisoned women and girls grew by 53 per cent during the same period (Walmsley, 2017). Such a dramatic increase, in less than two decades, in the number of women and girls in prison worldwide, raises questions about criminal codes, the functioning of criminal justice systems, and socio-economic factors affecting crime rates.
Whereas a comprehensive criminological and sociological analysis of the significant increase in the number of women in prisons is beyond the scope of this Module, it is necessary to adopt a gender lens in understanding the rise in women prisoners. There are certain factors that affect women differently, and often disproportionately, to men. It is important that these factors are considered in order to understand the ways in which pathways of offending and incarceration are gendered. The United Nations Special Rapporteur on violence against women, its causes and consequences, notes that these pathways include: a strong correlation with experience of prior violence and abuse; coercion into crime by an abuser or a person of influence; abortion in countries where it is illegal or legal only under limited circumstances; the commission of 'moral' crimes such as adultery; running away, for example, to escape violence; being held in prison for protection purposes (protective custody or detention); long periods of pretrial, immigration and/or refugee detention; and human trafficking (Manjoo, 2013). In general, a large majority of women in conflict with the criminal law do not pose a risk to society and their imprisonment does not help, but hinderstheir social reintegration. Many are in prison as a direct or indirect result of the multiple layers of discrimination and deprivation experienced at the hands of their husbands, family and the community (UNODC, 2014, p. 104).
This section focuses on two of those gender-based issues: discriminatory laws affecting women disproportionately, and violence against women as pathways for offending.
Discriminatory laws affecting women disproportionately
Laws, policies and institutions are articulations of the gendered inequalities, stereotypes, norms and values that are prevalent in cultures and societies. Criminal law and procedure are no exception. The table below highlights examples of gender-discriminatory aspects of substantive and procedural laws (United Nations, 2018). Recognizing the breadth of discrimination based on gender identity and sexual orientation, examples of discriminatory laws also include laws criminalizing homosexuality or other forms of same sex intimacy or laws excluding sexual violence against an individual of the same sex from the definition of rape or other forms of violence (see Topic 3 of this Module).
Examples of discriminatory criminal codes and criminal procedures
Substantive criminal codes
- Criminalizing forms of behaviour that are not criminalized or punished as harshly if they are performed by men, e.g., premarital sex, adultery and prostitution.
- Criminalizing forms of behaviour that can only be performed by women. An example is abortion, even when undertaken on medical grounds.
- Criminalizing behaviours which are not crimes by any international legal standard, e.g., running away from home without permission, failure to respect modesty and dress codes.
- Failing to criminalize or to act with due diligence to prevent and provide redress for crimes that disproportionately or solely affect women (e.g., intimate partner violence and Female Genital Mutilation/Cutting).
- Jailing women for petty offences and/or their inability to pay bail in such cases.
Procedural criminal codes
- Failing to apply the defence of provocation differently to women (as they may react differently from men).
- On this basis, some laws provide for reduced sentences for (predominantly male) perpetrators who kill in response to provocation caused by the behaviour of wives or female relatives, but require aggravated sentences for (predominantly female) perpetrators who kill their abuser with premeditation.
- Preventing self defence claims by women who have been survivors of violence. The psychological impact, including in cases of battered woman syndrome, is not considered in sentencing.
Violence against women as a pathway to offending and imprisonment
As acknowledged by the United Nations Special Rapporteur on violence against women, its causes and consequences, there is a strong link between violence against women and women's imprisonment (Manjoo, 2013, p. 4). Evidence shows that exposure to extreme, traumatic events can cause or contribute to borderline personality disorder, antisocial personality disorder, substance abuse, and symptoms of post-traumatic stress disorder, which are directly relevant to violent behaviour and often lead to imprisonment (Artz et al., 2012, p. 141). A study which interviewed 102 mothers in central California in the United States found that 86 per cent of imprisoned women in the sample had, as children, suffered either sexual or physical violence or witnessed abuse at home (Greene et.al, 2000, p. 9).
In cases of domestic and intimate partner violence, women may use force against their abuser out of fear for their own safety and that of their children. This is often referred to as 'battered woman syndrome', which is suffered by women who, because of repeated violent acts by an intimate partner, may suffer depression and are unable to take any independent action that would allow them to escape the abuse, including pressing charges or to accepting offers of support ( GA Resolution 65/228, Annex para. 11).
Available evidence indicates that, while few women commit violent crimes, a significant number of those convicted of murder or manslaughter killed a male partner or male family member and have experienced a history of domestic violence. A UNODC Global Study on Homicide found that while only one out of every five homicides (at a global level) is perpetrated by an intimate partner or family member, women and girls comprise the vast majority of those deaths (UNODC, 2018). Victim/perpetrator disaggregations reveal a large disparity in the shares attributable to male and female victims of homicides committed by intimate partners or family members: 36 per cent male versus 64 per cent female victims (UNODC, 2018). Women are significantly overrepresented as victims of homicide perpetrated exclusively by an intimate partner: 82 per cent female victims versus 18 per cent male victims (UNODC, 2018). A 2016 study by Penal Reform International and Linklaters (2016) found that, with few exceptions, criminal justice systems are failing these women by ignoring their trauma and realities/dynamics of domestic violence:
- In almost all jurisdictions covered, there is no separate basis in law for a history of abuse to be considered and, generally, women have to rely on existing legal defences (e.g. self-defence, provocation, or temporary insanity). These typical defences tend to be ill-adapted to women who have experienced prolonged abuse.
- Courts are not equipped with the right guidance, or show a reluctance, to take victimization consistently into account as a factor either in establishing culpability or in sentencing.
- Promising practices have emerged in some jurisdictions, establishing defences or partial defences for abuse cases, or enabling greater weight to the mitigating circumstance of domestic violence to be given when establishing culpability or in sentencing (this is the case in some Australian and US states, for example). The case study titled 'reforming the defence of provocation' (included in the section Case Studies) illustrates the complex factors that continue to limit promising developments in law and practice. In addition, please refer to Case study 2: The Case of Y - An Account of a Public Defender.
Achieving a gender sensitive perspective requires an understanding of the gendered pathways to offending and imprisonment. Accordingly, it is important to recognize that criminal codes can be inherently discriminatory towards women. Furthermore, being a victim of sexual or gender-based violence (SGBV) can play a role in certain types of crimes committed by women. In addition to these two factors, Penal Reform International (PRI) acknowledges the disproportionate effects of poverty and harsh drug policies as additional factors that should be taken into consideration when analysing offences committed by women, and seeking to understand the increasing rate of women offenders (see Women and Imprisonment - Key Issues and Challenges). According to PRI:
offences committed by women are often closely linked to poverty, and frequently a means of survival to support their family and children. Harsh drug policies have disproportionately affected women, who often take part in low-level but high-risk activities, frequently as a result of coercion or driven by poverty. The fact that they receive a prison sentence is often also related to poverty and the inability to pay fines for petty offences or to afford bail. (PRI, n.d.)
Access to justice obstacles facing women in conflict with the criminal law
The criminal justice system has historically been designed by men for men, which has often meant that laws and policies fail to consider the pathways to female incarceration and their mitigation (United Nations, 2018; see in particular Module 4) as mentioned in the previous section; and that women encounter particular challenges in all stages of criminal justice system, due to the male-dominated and male-oriented design and delivery of criminal justice services. The table below provides an overview of challenges encountered by women in conflict with the law.
There is substantial literature on gender and criminal justice system. Belknap (2015) provides an analysis of the ways in which gender is manifested in the criminal justice system; Renzetti (2013), and Fitz-Gibbon and Walklate (2018), explore feminist perspectives on crime, criminal victimization and criminal justice, and how feminist approaches to criminology challenge traditional, male centric criminal justice systems.
Stage (in the criminal justice continuum
Source: UNODC, UN Women, UNDP and OHCHR. (2018). A Practitioner's Toolkit on Women's Access to Justice Programming . New York, Vienna and Geneva: UNODC, UN Women, UNDP and OHCHR, Module 4.
Perceptions and attitudes of criminal justice practitioners
The previous section provided an overview of the different ways in which women may be subjected to gender-based discrimination and may be at heightened risk of vulnerability throughout the criminal justice system. Women in conflict with the law not only encounter 'formal' challenges, such as those originating from lack of institutional mechanisms, policies and facilities; but they also experience more subtle forms of discriminatory treatment, often due to the perceptions and attitudes of criminal justice officers. The UNODC information note for criminal justice practitioners on non-custodial measures for women offenders stresses that those whose behaviour does not fit within traditional gender roles frequently face prejudices and biases (UNODC, 2015). In dealing with women and men in the criminal justice system or in making decisions on detention or non-custodial measures, they may apply, enforce and perpetuate gender stereotypes, often unconsciously, or they may fail to challenge stereotyping by other actors in the criminal justice system.
The impact of gender stereotypes on women offenders varies. Women may receive harsher treatment or punishment than men for offences such as child abandonment, prostitution or assault, acts that are seen to violate what is perceived as the 'proper' role of women (UNODC, 2015, p. 7). For example, the differential application of the law is evident with respect to the defence of provocation:
In homicide cases, men who kill in response to 'provocation' may receive more lenient sentences while women who kill in response to abuse and violence may face aggravated penalties. In other cases, paternalistic attitudes, rather than an understanding of the actual situation of women offenders, may influence judges to award lower sentences to women, who are perceived as inherently weaker and more submissive and prone to manipulation than men and thus less responsible for their crimes. While this may be a desirable result and gender stereotypes may not always lead to negative outcomes for women offenders, it is important that judges, prosecutors, lawyers or public defenders are aware of existing stereotypes, perceptions and attitudes that can influence their behaviour. They should be sensitive to gender-specific needs and circumstances and take actions not based on stereotypes but on facts, applicable law and standards of conduct. (UNODC, 2015, p. 7)
Impact of judicial stereotyping
- Distort judges' perceptions of what occurred in a particular situation of violence or the issues to be determined at trial
- Affect judges' vision of who is a victim of gender-based violence
- Influence judges' perceptions of the culpability of persons accused of gender-based violence
- Influence judges' views about the credibility of witnesses
- Lead judges to permit irrelevant or highly prejudicial evidence to be admitted to court and/or affect the weight judges attach to certain evidence
- Influence the directions that judges give to juries
- Cause judges to misinterpret or misapply laws
- Shape the ultimate legal result
Source: Commonwealth Secretariat and UN Women (2018). Judicial Resource Book on Violence against Women for Asia: Combatting Violence against Women and Girls for Cambodia, India, Pakistan and Thailand. Commonwealth Secretariat: London.
The role of the judiciary in challenging harmful gender stereotyping
- Challenging decisions by lower courts that are affected by wrongful stereotyping
- Challenging laws embodying stereotypes and resulting into breaches of constitutional or human rights guarantees
- Challenging policies embodying stereotypes and resulting into breaches of constitutional or human rights guarantees
- Awarding reparations that challenge stereotypes/stereotyping
- Speaking out on wrongful judicial gender stereotyping
Please also refer to Case study 10: Gender stereotypes and victim testimony.
Women and imprisonment - key issues and challenges
The number of women in prisons around the world has been increasing rapidly, at a faster rate than men. While deprivation of liberty poses risks to human rights of all prisoners, women prisoners are at particularly high risk of vulnerability, since prisons - including their architectural design, safety measures, healthcare provision and other services concerning work, education, and contact with the outside world - have been designed for men, a fact which is inherently disadvantageous to women. In addition, throughout various stages of deprivation of liberty, women are at risk of abuse, violence, and SGBV by law enforcement officers, prisons officials and other prisoners (PRI, n.d.). The following sub-sections provide an overview of specific challenges encountered by women prisoners.
The vulnerabilities of women prisoners
The World Health Organization identifies that prison populations, in general, comprise individuals who have experienced multiple challenges:
Many have lived at the margins of society, are poorly educated and come from socioeconomically disadvantaged groups. They often have unhealthy lifestyles and addictions such as alcoholism, smoking and drug use, which contribute to poor general health and put them at risk of disease. The prevalence of mental health problems is very high: some prisoners are seriously mentally ill and should be in a psychiatric facility, not prison. Moreover, communicable diseases such as HIV, hepatitis and tuberculosis are more prevalent in prisons than in the community (Van den Bergh et al., 2011).
Ensuring the well-being of prisoners, regardless of their sex or gender, presents a range of challenges, and underscores the importance of international standards and norms that establish minimum standards for the treatment of all prisoners through the United Nations Standard Minimum Rules for the Treatment of Prisoners - the Nelson Mandela Rules (United Nations, 2015).
It is important to recognize, however, that women prisoners face a range of additional challenges, many of which stem from discriminatory practices, laws, and structures that operate broadly (within society) and in criminal justice settings more specifically.
Factors common to the situation of women prisoners worldwide
Although the main reasons for the intensity of the vulnerability and corresponding needs of women prisoners may vary between countries, the most common factors include:
- The challenges women face in accessing justice on an equal basis with men.
- The existence of offences that are applied only or disproportionately to women, including abortion or 'moral crimes' such as adultery, sexual misconduct, or 'running away'.
- Poverty and dependence on male family members for money and support.
- The disproportionate victimization of women from sexual or physical abuse prior to imprisonment.
- A high level of mental health-care needs, often as a result of domestic violence and sexual abuse.
- A high level of drug or alcohol dependency.
- A low level of education and a high rate of illiteracy.
- The extreme distress imprisonment causes to women, which often leads to mental health problems or exacerbates existing mental disabilities.
- Sexual abuse and violence against women in prison.
- The high likelihood of women having caring responsibilities for their children, families and others.
- Gender-specific hygiene, health, and reproductive health-care needs that are not adequately met.
- Lack of gender appropriate vocational and rehabilitation programmes in prison. Stigmatization, victimization and abandonment by their families.
Source: United Nations Office on Drugs and Crime (UNODC) (2015). Training Curriculum on Women and Imprisonment Version 1.0. Vienna: UNODC, p. 7-8.
The challenges identified above provide a broad framework for understanding the disproportionate impacts that prison terms impose on women offenders. It is important to understand that a woman sentenced to a custodial term is more likely, than women in the general population, to have already endured significant forms of adversity and victimization, which may include sexual assault, domestic violence, drug and alcohol addiction, and poverty. In the context of these pre-existing vulnerabilities, specialists call for trauma informed care to prevent additional harm to vulnerable women prisoners (Meyer, 2016). Historically, prisons have been designed for adult male offenders, and the deprivations and hardships of prison often bear disproportionate impacts on women offenders who are likely to already bear trauma, and significant health and mental health problems:
most female prisoners have experienced abuse before they get to jail. The way the prison system treats these women risks making their trauma worse, which may boost their risk of re-offending (Meyer, 2016).
In recognition of the particular challenges women prisoners face, and acknowledging that international standards do not sufficiently address the needs of women in the criminal justice system, the United Nations General Assembly unanimously voted in 2010 (GA Resolution A/RES/65/229) to adopt the United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders, known as the Bangkok Rules. The Rules provide guidance to states on reducing unnecessary imprisonment with an overview of gender sensitive alternatives to imprisonment; and set standards on various aspects of women's imprisonment such as gender-responsive healthcare, measures to be taken during searches, measures to protect prisoners from violence including SGBV, and meeting the needs of children in prison with their mothers.
It should be noted that the Bangkok Rules (2010) build on existing international standards and norms that apply to all prisoners without discrimination, and are designed to complement the Nelson Mandela Rules (2015). Moreover, some of the Bangkok Rules address issues applicable to both men and women prisoners, including those relating to parental responsibilities and some medical services.
The incarceration of women who are mothers
Empirical research documents the high percentages of woman prisoners who are mothers. The proportion of prisoners who are mothers is 78 per cent in South Caucasus, and 75 per cent in Central Asia (PRI, 2015, p. 5) The incarceration of women who are mothers often bears devastating effects on women and their families. Globally, there are fewer prisons for women, because women constitute a small proportion of the overall prison population. This means that women are often imprisoned some distance from their home and family. Incarcerated women report their suffering at not seeing their children and, in cases where a mother's incarceration precipitates the breakdown of the family, children are often taken into state care. Women prisoners often bear disproportionate stigma for their criminal justice involvement and, in some cases, women are abandoned by their family. While most countries allow babies and young children to live with their mothers in prison until a certain age, this varies across jurisdictions. While such policies reduce risks associated with immediate separation; life in prison with babies and young children also bears challenges (such as access to additional medical services, age appropriate and adequate food, and other services for childcare in prison) and in almost all countries, children are separated from their mothers when they reach a certain age, a separation which causes emotional stress and trauma for both the mother and the child (PRI, 2015, p. 14). The trauma that forced separation and family breakdown imposes on women often exacerbates underlying trauma and mental health concerns. The World Health Organization reports that women prisoners experience a higher incidence of mental health problems than either male prisoners, or the general population (Van den Bergh et al., 2011). Furthermore, women are at greater risk of self-harm and attempted suicide than are women in the general population (Van den Bergh et al., 2011). Please refer to Case Study 3: The Pains of Imprisonment for Incarcerated Mothers.
Women incarcerated for drug-related offences
In some countries, drug-related offences are the number one cause of incarceration among women, whereas men are largely incarcerated for other crimes, including violent offences (UNODC, 2018, p. 6). Imprisonment statistics around the world confirm that women are imprisoned largely for drug-related crimes, with national and international anti-drug laws and policies considered a major cause of the rising rates of incarceration of women. In Latin America, the disproportionate effect of harsh drug laws has led to the female prisoner population almost doubling between 2006 and 2011, with 70 per cent of all women prisoners incarcerated for low-level drug-related offences (PRI, 2015, p. 7). Gender disparity of this kind is evident in Ecuador, for example, where 77 per cent of women in prison were incarcerated for drug offences, compared to 33.5 per cent of the male prisoners (PRI, 2015, p. 7).
In examining the differential effect that the criminalization of low-level drug offences has on women, the World Drug Report identifies that women's patterns of drug use vary to those of men. Among the differences is that while men are more likely to respond to problems by engaging in externalizing behaviours, women are likely to internalize problems, and may therefore use drugs as a means of self-medication to cope with adversity. "Women with substance use disorders are reported to have high rates of post-traumatic stress disorder and may also have experienced childhood adversity such as physical neglect, abuse or sexual abuse" (UNODC, 2018, p. 6). Underlying vulnerabilities and mental health problems of this kind are often exacerbated when women come into conflict with the law. Incarcerated women are less likely to have access to the health care, and the mental health care needed to assist with their rehabilitation and reintegration into society.
In addition to concerns about the disproportionate number of women criminalized due to the prosecution of low-level drug-related offences, UNODC identifies that there are gender dimensions to the criminalization of women for serious drug offences.
some women involved in trafficking in drugs are victims of trafficking in persons, including trafficking for the purposes of sexual exploitation. Women's participation in the drug supply chain can often be attributed to vulnerability and oppression, where they are forced to act out of fear. Moreover, women may accept lower pay than men: some researchers have noted that women may feel compelled to accept lower rates of payment than men to carry out drug trafficking activities, which means that some drug trafficking organizations may be more likely to use women as 'mules'. (UNODC, 2018, p. 7)
The box below identifies the compounding impacts that discrimination, and SGBV have in contributing to drug-related offences among women, and in increasing the likelihood that women will be arrested, prosecuted, and imprisoned for drug-related offences.
Gender dimensions of women's drug use, and women's criminal justice involvement due to drug-related offences
- Women who use drugs are more likely to have suffered gender-based violence.
- Women tend to progress rapidly from initiation of substance use to the development of substance use disorders.
- Women who have experienced childhood adversity and abuse internalize behaviours and use substances more often to self-medicate.
- Social inequalities and a lack of social and economic resources make women more vulnerable to drug use and drug use disorders.
- Gender stereotyping and stigma can trap women who use drugs in their drug-using networks.
- Women face more barriers to accessing services and a lack of integrated drug treatment and childcare services.
- Studies document situations where women are forced to act as drug 'mules' through coercion, intimidation, deception, or a sense that they are helping loved ones.
- Women may become involved in drug trafficking through their own decision, which may be influenced by limited options for employment and income.
- Where mandatory minimum sentencing and mandatory pretrial detention operate, women who commit low-level drug offences may become enmeshed in the criminal justice system without discretionary scope for proportional sentencing.
- Women are often less likely than men to be able to pay fines or the surety required for bail.
Source: United Nations Office on Drugs and Crime (UNODC) (2018). World Drug Report: Women and Drugs: Drug use, drug supply and their consequences. Vienna: UNODC.
The specific health, hygiene and reproductive needs of women in prison
In addition to the extensive mental health, and physical health needs of general prison populations, women prisoners are made additionally vulnerable in instances where their specific reproductive, health and hygiene needs are not met.
Women have less access to health-care services in prisons than men. Women have gender-specific health-care needs that go beyond pregnancy, pre-and post-natal care and also include reproductive and sexual health care or preventative screening for breast or cervical cancer. Different physical and mental health-care needs stem from violence experienced, sexually transmitted diseases, unsafe sexual practices or substance use (UNODC, 2015, p. 16).
Ensuring the well-being and dignity of women and girls in custodial settings requires the provision of adequate sanitation facilities, as well as services/facilities relevant to women and girls' physiology. For example, imprisoned women and girls are sometimes denied access to sanitary products and privacy while menstruating (in contravention of Rule 5 of the Bangkok Rules, 2010); women and girls are often denied access to pre- or post-natal care and nutrition; and women and girls may be restrained during childbirth (in contravention of Rule 24 of the Bangkok Rules, 2010), denied access to their child, or prevented from breastfeeding (in contravention of Rules 48, 49 and 50 of the Bangkok Rules, 2010). See "International recognition of the specific needs and vulnerabilities of women and girls in prison" for more information on the Bangkok Rules.
Women's safety in prison
Women are at particular risk of sexual violence in prison (Wolff et al., 2006). Strip searches and intimate body searches are also particularly traumatic for women who have experienced prior abuse, and gender sensitive practices are required to prevent additional trauma. The Bangkok Rules (19 and 20) have specific guidance for human rights compliant body searches in prison, differentiating between situations warranting minimally invasive methods (visual searches) to invasive methods such as strip searches and body cavity searches.
Case study 4: 'Miguel Castro-Castro Prison vs Peru' illustrates extreme forms of gender specific violence and discrimination in custodial settings.