Eliminating violence against women in the criminal justice system

This Saturday 25^th November is the International Day for the Elimination of Violence against Women. The date was designated by the United Nations in 1999, but, almost 20 years on, we see that violence against women is as prevalent as ever – and particularly so for women caught up in criminal justice systems. In this blog Harvey Slade looks at global findings on the phenomenon, and analyses if and how such violence is addressed.

The World Health Organization has estimated that 35 per cent of women worldwide have experienced either intimate partner violence or non-partner sexual violence in their lifetime. But for women who are in conflict with the law, the statistics are alarmingly high. Penal Reform International found that in Tunisia, 49 per cent of women in prison were survivors of domestic violence, while this figure was 37 per cent in Uganda and 38 per cent in Kyrgyzstan. Findings in Kyrgyzstan, as well as Kazakhstan, also indicated that a third of women in prison had been sexually abused.

These figures are likely to be conservative – and understating the realities. Women often do not report violence, due to stigma and patriarchal societies. The link between violence and women in prison was summarised by the UN Special Rapporteur on violence against women, who stated:

‘the undeniable link between violence and incarceration, and also the continuum of violence during and after incarceration, is a reality for many women globally’.

Combating violence against women therefore means addressing the continuum of violence that women in the criminal justice system find themselves caught in.

Acknowledging trauma

In many cases, violence is a direct cause of women’s imprisonment, as they seek to defend themselves, or their children, from their abuser. But even when the link is not direct, it is certainly there. Research in New York previously found that nine out of 10 women convicted of killing an intimate partner had been abused by an intimate partner in the past. The huge number of survivors in prisons around the world should not be written off as a coincidence.

So how much do criminal justice systems acknowledge this link? Not a great deal. A report by PRI and Linklaters, Women who kill in response to domestic violence, found that, in the majority of jurisdictions reviewed, there was no specific legislative basis for a history of abuse to be considered as a mitigating factor. This is in spite of the fact that Rule 61 of the Bangkok Rules states that courts shall have the power to consider mitigating factors in such a context.

In lieu of specific legislative bases, existing criminal law frameworks have instead been used to protect survivors. But often, existing defences such as self-defence and provocation have proved ill-adapted to the situation of a woman suffering from ‘battered woman syndrome’ or a slow-burn reaction to the violence they face. Even when helpful precedents are in place within the criminal law to take account of the impact of domestic violence, the lack of legislative bases may mean that evidence of abuse is treated inconsistently between cases.

Horrifyingly, it is often more accurate to say that such trauma is treated punitively, rather than acknowledged in a mitigating sense. In Afghanistan, almost half of all women (and virtually all girls) in prison were estimated to have been convicted of ‘moral crimes’. Moral crimes in this context include abortion, adultery and ‘running away’. ‘Running away’ refers to when women leave their homes without permission – often to escape from domestic abuse. Instead of survivors having their trauma acknowledged, they are punished.

When protection is offered to women, it is under a patriarchal guise. We see that scores of women are kept in ‘protective’ detention, where they are detained in order to ensure their protection from threats, such as honour crimes, but also to ensure that they will testify against the perpetrator in court. Such detention has been reported as continuing for up to 14 years by the UN Special Rapporteur in Jordan.

Violence within the prison

Human Rights Watch have found that, historically, ‘women in custody are frequently subjected to a range of abuses by their jailers’. Amnesty International USA put this down to the fact that imprisoned women are ‘largely invisible to the public eye’, meaning that little is done when the punishment of imprisonment is ‘compounded with that of rape, sexual assault, groping during body searches, and shackling during childbirth’. Outside of prison walls, too many blind eyes are already turned to the mistreatment of women. Inside prison walls, their view is obscured anyway.

Violent methods of prison administration have a gendered impact. For example, body searches turn into an act of humiliation, which has led to the Bangkok Rules calling for effective measures to be taken to ensure that ‘dignity and respect are protected during personal searches, which shall only be carried out by women staff’. The European Prison Rules equally call for persons being searched to ‘not be humiliated by the searching process’. The Nelson Mandela Rules follow the lead of the Bangkok Rules in prohibiting the use of restraints on women during labour, birth and immediately after birth.

The American Civil Liberties Union paints a very stark picture in its report on solitary confinement of women. They point to the accepted psychiatric research establishing that solitary confinement aggravates underlying mental health conditions. This is precisely why Rule 45 of the Nelson Mandela Rules prohibits the use of solitary confinement where it would exacerbate the condition of someone with an existing mental disability.

Combining this with the fact that nearly 75 per cent of women in prison are diagnosed with mental illness, the report portrays the gendered impact of solitary confinement’s harmful effects. Because of solitary confinement’s use as a method to control those whose behaviour is difficult to manage, and the tendency of people with mental illness to behave in a way that is ‘difficult to manage’, mentally ill women find themselves hand-picked for solitary confinement. Here, their health deteriorates drastically. This also risks ‘re-traumatizing women who are already vulnerable’ as a result of prior abuse.

On the International Day for the Elimination of Violence Against Women

We should acknowledge that women in the criminal justice system have often faced violence throughout their lives, leading up to their imprisonment, where they may only face more violence. Such lives of violence are disproportionately subjected on women, and this has not been sufficiently recognised and combated.

More information

To mark the International Day for the Elimination of Violence Against Women on November 25th, PRI will be live-streaming the award-winning play Key Change, which highlights the complex journey that women who come into contact with the criminal justice system face, and the impact of gender violence on their lives. Find out more.