Exercise 1 • Write down at least three ways in which gendered assumptions and gender discrimination bear impacts on individuals involved with the criminal justice system.
Learning Outcomes • To develop a critical understanding of the various ways in which gender-based issues arise at different stages within the criminal justice system. • To develop a broad understanding that gendered assumptions, practices, structures and rules bear impacts on complainants, witnesses, defendants and prisoners within the criminal justice system. • The develop an understanding that individuals who face discrimination and violence on the grounds of sex, gender, sexual orientation, and sex characteristics are at increased risks of criminal justice involvement, and at risk of disproportionate harm as a result of their contact with the criminal justice system. • To comprehend that “gender” is not a concept that is synonymous with women, and that gendered roles and attributes are both socially constructed, and potential grounds for discrimination and violence for all (women, men, and individuals who choose to identify as a third gender, or as gender neutral, or gender fluid). • Recognise the key international standards for safeguarding the rights of women, girls, and LGBTI persons in the criminal justice system.
Key Issues The Session is divided into two parts. Part I: Gender-based discrimination and women in conflict with the law Part II: Discrimination and violence against individuals that identify as or are perceived to be LGBTI
Gender-based discrimination and women in conflict with the law(Discriminatory Law and Procedure) Access to justice obstacles facing women in conflict with the criminal law • Challenges at the stages of prevention, initial contact, investigation, pre-trial, trial, post-trial Discriminatory Laws • Substantive criminal codes • Criminalising forms of behaviour that can only be performed by women (i.e. abortion) • Criminalising forms of behaviour that are not punished harshly if performed by men (premarital sex, adultery) • Failing to criminalise, or act with due diligence to prevent or provide redress for crimes that disproportionately affect women (intimate partner violence, sexual assault). • Procedural Criminal Codes • Failing to apply the defence of provocation differently to women • Preventing self-defence claims by women who are survivors of violence • Permitting sexual history evidence • Film: Tracey Ullman’s Show (2017), BBC. “What were you wearing?" (1:54 minutes)
Gender-based discrimination and women in conflict with the law (Violence against women as a pathway to offending and imprisonment) • Extreme trauma and prolonged abuse in intimate partner relationships can lead women to commit violence in self-defence or in defence of their children. • While few women commit violent crimes, a significant number of those convicted of manslaughter or murder killed a male partner or male family member, having experienced a history of domestic violence. • In most jurisdictions there is no separate basis in law for a history of abuse to be considered. Exisiting possibilities for defence do not allow for victimization to be consistently considered in determining culpability or in sentencing. • Differential patterns in drug use mean that women are particularly vulnerable to criminalisation for low level drug offences. (Self-medication following trauma, the exclusion of women from powerful positions within drug supply chains). • The Stories of Women Incarcerated for Drug Related Crimes (2018) Produced by the Washington Office on Latin American and Equis: Justicia para las mujeres. (7:24 minutes)
Exercise 2 • Can you identify examples of discriminatory criminal legislation in you own country? • How does this discriminate against women (or LGBTI persons) and what should be done to address this. (Does this require action beyond statutory amendment?)
The vulnerabilities of women prisoners • The general state of vulnerability of prisoners – who have often lived at the margins of society – underscores the importance of the international standards and norms for the treatment of all prisoners (the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Nelson Mandela Rules, 2015). • It is important to recognise, however, that women prisoners face a range of additional challenges, many of which stem from discriminatory practices, laws, and structures within that operate broadly (within society) and in criminal justice settings more specifically. • Woman are at disproportionate risk of sexual abuse in prison • The high likelihood that women have caring responsibilities for their children and families • Women prisoners have more acute mental health needs, and trauma histories, than women in the general population, or men in the prison population. • Gender specific hygiene and health-care needs that are not adequately met
The incarceration of women who are mothers • Globally there are fewer prisons for women – women are often incarcerated far from home. • Women report their suffering at not seeing their children, and children are often taken into state care • Women face disproportionate stigma for criminal justice involvement and may be abandoned by their families • Separation from children exacerbates underlying trauma and mental health concerns • WHO report that women prisoners experience mental health problems more than either male prisoners, or the general population – and women prisoners are at increased risk of self-harm and suicide (compared to women in the general population).
The specific vulnerabilities of girls in conflict with the law • The Convention on the Rights of the Child holds that children should be afforded additional protection by virtue of their maturing physical and psychological maturity. • Children in conflict with the law are a particularly vulnerable group (due to disproportionate rates of childhood trauma and adversity, and due to the hardships and risks of violence imposed by the criminal justice system). • Within this already vulnerable group (children in conflict with the law) girls are at particular risk of violence and discrimination due to entrenched structures of inequality, discrimination, and sexual and gender-based violence. • Case Studies: Kainat’s Ordeal; The case of “AS”
International recognition of the specific needs and vulnerabilities of women and girls in prison United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders with their Commentary(the Bangkok Rules) (the primary normative instrument on minimum standards for women prisoners). United Nations (2011). The Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, GA Resolution 65/228. New York: UN. United Nations Model Strategies and Practical Measures on the Elimination of Violence Against Children in the Field of Crime Prevention and Criminal Justice (Para 41 (c) (d)). the importance 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)). • The specific health, hygiene and reproductive needs of women in prison • Women’s safety in prison – Risks of Sexual Violence Case study on the Miguel Castro-Castro Prison vs Peru
International Standards and Norms and Guidelinesrelating to gender in the criminal justice system Instruments that uphold the rights of women and girls specifically • UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok rules) (the primary normative instrument on the minimum standards for women prisoners). • Convention on the Elimination of All Forms of Discrimination Against Women (the primary international legal instrument prohibiting all forms of gender based violence). Non Gender Specific Instruments of Relevance • The Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) • UN Principles and Guidelines of Access to Legal Aid in Criminal Justice Systems • UN Standard Minimum rules for Non-custodial Measures (the Tokyo Rules) • Declaration of Basic Principles of Justice for Victims of Crime
Exercise 3 Please read the Case Study on the Case of Miguel Castro-Castro Prison vs. Peru, and discuss the following questions: • Do you think women and men in prison have the same needs? If not, which are those needs and how penitentiary systems should address them? • How would you combine the obligation to serve a prison sentence and the right of a mother to take care of her children? Is it possible or desirable to respect both? If not, which one should prevail? • Do you think criminal laws and procedures should distinguish between men and women in conflict with the law? Should the law be equal for everyone or should it treat differently those who are different or have different needs?
Discrimination and violence against individuals that identify as, or are perceived to be, LGBTI Discriminatory Laws and the risks of contact with the criminal justice system • Consensual same sex relationships are criminalised in 73 countries • Individuals criminalised are subjected to violence and, where criminal records apply, to lifelong stigma Transgender persons are at particular risk of sexual and physical violence in police custody and in prison (as well as in the community). • Risks of violence are acute when transgender persons are incarcerated according to the sex assigned at birth • In some jurisdictions guidelines require that a transgender person’s views be taken into account in prison placement – there are concerns that this rarely happens. Case study: Tasty Nighclub Raid Film: United Nations Free and Equal Campaign (2013): ‘The History of LGBT Rights at the UN’. (2:51 minutes)
Gender-based discrimination and women in conflict with the law Perceptions and attitudes of criminal justice practitioners • Women who depart from gendered expectations may face harsh punishment in criminal justice settings (child abandonment). • LGBTI persons face disproportionate risks of discrimination and violence. • Highlights the importance of training criminal justice actors on the influence that gender stereotypes can bear on decisions - to ensure that decisions are based on facts, and applicable law. • Importance of challenging workplace culture that perpetuates discriminatory practices or attitudes.
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