Women and the UN Principles and Guidelines on Legal Aid: why are special measures needed and what more needs to be done?

Andrea Huber welcomes the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and their recognition that special measures are needed to ensure legal aid for women, but says that they are just a first step to ensuring that women do not face disadvantage because of their gender at any stage of the criminal justice system.

The UN Principles and Guidelines are the very first set of standards that explicitly encourage special measures to ensure meaningful access to legal aid for women – they do so in Principles 10 and 13 and in Guideline 9. These explicit provisions are hugely important as for many women access to legal aid is not a reality.

Women suspects and defendants face a number of specific challenges in accessing justice. They often depend on male family members to pay legal costs, whether for legal representation, or for fines or bail. Eligibility criteria for legal aid schemes may discriminate against women if means tests are based on family or household income, which they may not have access to. Women subjected to so-called ‘protective custody’ – to ‘protect’ them from the risk of becoming the victim of an honour crime – may also find themselves excluded.

Access to non-custodial alternatives to imprisonment often depends on having legal representation as well. Most legal systems are complex and require written motions, for example, to apply for bail, diversion or mediation. Without a lawyer to apply on their behalf, women are therefore even more likely to get a prison sentence.

Women who do have legal representation however it is funded, may still find themselves disadvantaged by the lack of awareness among lawyers and courts about the gender-specific circumstances in which many women come in conflict with the law.

The 2010 UN Bangkok Rules – a key international standard in this regard – state 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 backgrounds.” However, in practice these mitigating factors are not always pleaded by lawyers or considered by judges.

Counsels should take forward, for example, a history of violence, including domestic and sexual violence. Research has shown that women accused or convicted of offences such as assault, manslaughter or murder, have often experienced domestic and sexual abuse and frequently cite this as the direct cause and motivation for their offence.

Women who are abused tend not to react immediately, which seems to be why self-defence is often not considered relevant. This notion should be challenged, and – where relevant – evidence of prior abuse should be taken up by lawyers, and test cases should be brought before higher courts.

Courts should also consider the impact of prison sentences on a woman’s children, a factor which is often overlooked. However, the relevance of primary caretaking responsibilities has now begun to be reflected in jurisprudence. For example in a landmark ruling in 2007, the South African Constitutional Court suspended the sentence of a mother of three, reasoning that her children would suffer loss of their source of maternal and emotional support, loss of their home and familiar neighbourhood, disruption in school routines including problems in transporting to and from school, separation from siblings, and that it would impact negatively on their development.

It is also important for legal representatives to understand the motivations and causes of women’s offending.

Research indicates, for example, that women may be sent to prison for offences committed in response to coercion by abusive partners. Sometimes called the ‘girlfriend problem’, women may also be caught up in the offences committed by their significant other, participating in crimes either in a limited way, or unknowingly.

This is particularly true of the ‘war against drugs’, one of the biggest factors why the rate of imprisonment for women is increasing faster than for men. Research in Argentina, for example, showed that women’s primary role in drug trafficking is that of a mule, which makes them easy targets for drug enforcement authorities.

The UN Principles and Guidelines are of course a crucial step forward in addressing these inequalities. But are they enough?

The Principles are by their nature generic and we need concrete guidance to define what a gender-sensitive legal aid system actually means.

There is also a question of scope. Do they, for example, apply to the many women who are subject to ‘protective detention’? These women have not committed a criminal offence or been subject to a criminal charge, yet in the countries it is practiced it takes place within the criminal justice system.

Finally, the Principles and Guidelines call for “active steps to ensure that, where possible, female lawyers are available to represent female defendants, accused and victims”. This has many advantages, for example in cultures where women are not used to or comfortable having confidential conversations with men. It may also make it easier for women to reveal sexual abuse.

However, in many legal systems male actors have a superior status, acceptance and respect vis-à-vis prosecutors, judges and juries. In such an environment – and I am being provocative on purpose here – are we doing women any favours by automatically teaming them up with female lawyers? A question to think about.

This blog was adapted from a presentation at the International Conference on Access to Legal Aid in Criminal Justice Systems, hosted by the South African Department of Justice, UNDP, UNODC, the International Legal Foundation and Legal Aid South Africa in Johannesburg, 24-26 June 2014. The conference was attended by 250 participants from 67 countries.