This module is a resource for lecturers
Topic two - The vulnerabilities of girls in conflict with the law
Girls in contact with the criminal justice system are a particularly vulnerable group, for various reasons. At the outset, it is important to note that there is international consensus that all children, without discrimination on any grounds, should be afforded additional protection by virtue of the vulnerabilities associated with their developmental stage ( Convention on the Rights of the Child (GA Resolution 44/25); Universal Declaration of Human Rights (GA Resolution 217A)). In addition to the vulnerabilities that may be associated with children's relative developmental immaturity, children who come into conflict with the law are especially vulnerable due to the circumstances that are likely to have precipitated their detention, (poverty, trauma, prior victimization, mental health issues, cognitive delay, etc). Furthermore, children deprived of liberty are exposed to the constant risks of physical violence, sexual violence, and psychological harm (for further materials on these issues, see Module 12 on Violence against Children, and Module 13 on Justice for Children). Having noted this general context of risk for all children in conflict with the law, this section of the Module is concerned with the fact that girls face disproportionate risks, relative to boys, due to deeply entrenched structures of inequality, discrimination, and sexual and gender-based violence.
While the specificities vary across cultures, women and girls all over the world endure the "pervasive and devastating" effects of discrimination and sexual and gender-based violence (United Nations SRSG on Violence Against Children, 2015, p. 1). In order to properly understand the harms of sexual and gender-based discrimination and violence against girls in criminal justice settings, it is important to reflect on the role that gendered assumptions, expectations, laws, and social structures play in shaping the experiences of girls, including their pathways to, and interactions with, the criminal justice system.
[A] gender perspective is crucial for understanding how structural factors such as differential access to education, resources and rigid gender norms define the different challenges and opportunities that boys and girls face. (Ellsberg et al., 2017, p. 5)
In many countries, girls subjected to child sexual abuse are denied access to justice and, instead, girls may be: disbelieved; prosecuted for moral crimes; shunned by their families or communities; subjected to violence; or killed. Instances in which male offenders enjoy impunity, while girl victims are punished, illustrate the extent to which gender discrimination pervades cultural and legal frameworks. Case study 5: 'Kainat's Ordeal', presented by the United Nations Secretary-General's Special Representative (SRSG) on Violence Against Children, illustrates the differential treatment of girls in formal criminal justice settings, as well as in contexts where discriminatory customary practices prevail.
Child-sensitive and rights-based approaches to criminal justice require attention to the differential risks and opportunities faced by boys and girls, both in society and in justice systems, whether as victims, witnesses, or alleged/recognized offenders. CEDAW directs particular attention to the importance of recognizing the challenges faced by girls:
Special consideration is to be given to girls (including the girl child and adolescent girls, where appropriate) because they face specific barriers to gaining access to justice. They often lack the social or legal capacity to make significant decisions about their lives in areas relating to education, health and sexual and reproductive rights. They may be forced into marriage or subjected to other harmful practices and various forms of violence. (CEDAW Committee, General Recommendation 33, para. 24)
International recognition of the specific needs and vulnerabilities of women and girls in prison
In recognition of the specific needs and vulnerabilities of women and girls in prisons, the Bangkok Rules enumerate the considerations that should apply to imprisoned women, girls, and their children. Girls constitute a minority of the overall number of adjudicated children, globally, but United Nations standards and norms require particular safeguards for girls, due to their particular vulnerability (Bangkok Rules, 2010, Rules 36-39; Beijing Rules, 1985, Rule 26.4). Below are some of the key areas in which imprisoned girls require the safeguarding of their rights.
Globally, women and girls endure disproportionate rates of sexual and gender-based violence, and there is a corresponding overrepresentation of sexually abused girls in contact with the criminal justice system (Saada Saar, 2015). Where girls have trauma histories of this kind, there is a particular need for additional safeguards and therapeutic supports in custodial settings. For example, the Bangkok Rules stipulate the safeguards that apply to searches for women, girls and their children (2010, Rules 19-21) as well as the United Nations Model Strategies and Practical Measures on the Elimination of Violence Against Children in the Field of Crime Prevention and Criminal Justice (hereafter, the Model Strategies) (Para 41(c)(d)). Indeed, the Model Strategies identify the importance of legislative change to prohibit all forms of gender-based violence against children, in addition to countering attitudes that condone gender-based violence and violence against children (para 11 (i); 9 (a)). These international standards, and legal scholarship from many parts of the world, indicate that access to justice for women and girls requires gender sensitive law, and procedures for women and girls reporting violence (Spohn and Tellis, 2016; Fitz-Gibbon and Walklate, 2018) (see Module 10 for information on secondary victimization and attrition in the reporting/prosecution of sexual violence).
Girls often face significant barriers to accessing justice, whether they are victims of crime, witnesses or alleged offenders. All too often, legislation and criminal, administrative and civil proceedings are inadequate for the safeguarding of their rights, while appropriate policies for their protection are absent or poorly implemented. Many countries lack specialized judges, prosecutors, lawyers and other personnel qualified to work with girls, in addition to sufficient resources to provide the requisite training. (United Nations SRSG on Violence Against Children, 2015, p. 1)
The United Nations Convention on the Rights of the Child (GA Resolution 44/25) (CRC) requires that where it is necessary that children be detained, as a last resort, they should be held in separate facilities to those detaining adults (1989, Article 37c). Yet, several States parties have entered a reservation to Article 37 (c), including Australia, China, Finland, the Netherlands, New Zealand, Norway, Singapore, Switzerland, Singapore, and the United Kingdom (1989). The CRC Committee has repeatedly urged that respective States parties withdraw their reservations or declarations to Article 37c and commit to ensuring that children and adults are detained separately (see for example: successive Concluding Observations on Canada CRC/C/15/Add.215, para.7, 2003; CRC/C/CAN/CO/3-4, para 9, 2012; and Singapore CRC/C/15/Add.220, para 45a, 2003; CRC/C/SGP/CO/2-3, para 6, 2011, regarding respective reservations and declarations to Article 37).
The situation regarding age mixing is even more complicated when it comes to the incarceration of girls. Often, the low number of girls detained means that they will be held with adult women, be placed in isolation, or held in facilities that are remote from their home (United Nations SRSG on Violence Against Children, 2015, p. 5-6). Case study 6: 'The specific vulnerability of girls in prison' illustrates the disproportionate impacts that these inappropriate custodial arrangements have for girls.
Next: Topic three - Discrimination and violence against individuals that identify as, or are perceived to be, LGBTI