Side event: Women, incarceration and drug policy: Specific vulnerabilities that call for focused responses

Organized by the Center for Legal and Social Studies, the International Drug Policy Consortium, the Washington Office on Latin America, Women and Harm Reduction International Network, Masyarakat Community Legal Aid Institute, the Eurasian Harm Reduction Association and the NoBox Transitions Foundation.

Ivana Radacic, OHCHR (Chair): Thank you for inviting me as the Chair of the UN Working Group on discrimination against women in law and in practice to be part of this very important event on “Women, incarceration and drug policy”.  Our Working Group is a five-member Special Procedure mechanism of the Human Rights Council, mandated to identify good practices in elimination of laws and practices that discriminate against women. As other Special Procedure mandate holders, we have a three-fold function: we submit an annual report to the Human Rights Council, conduct up to three country visits per year and communicate with the Governments in relation to the complaints about individual’s rights violation or discriminatory laws, policies or practices, that we receive. We also aim to ensure that gender is mainstreamed with the UN system, and women’s concerns addressed in all UN fora.

The Working Group has a great interest in women’s incarceration generally, and particularly for drug offences. In our report on the pathways of depravation of liberty for women, which is going to be submitted to the Human Rights Council this June, we included the issue of women’s incarceration for drug offences in the broad area of women’s deprivation of liberty, which also includes confinement in different social institutions as well as in the private sphere. We have identified the main causes of women’s deprivation of liberty as: gender-based discrimination and stereotypical social norms, economic depravation and violence against women. Specifically, in relation to women’s incarceration for drug offences, we have issued press release urging the Governments to address women’s needs in their policy making on drugs, on the occasion of the high-level meeting of the Commission on Narcotic Drugs.

The Working Group is of the view that the global ‘war on drugs’, which has resulted in harsh drug laws and policies, has significant human rights implications, many of which are gendered. The current approach of the international system of drug control, with its dependence on law enforcement and criminal sanctions, has failed, primarily because it does not acknowledge various realities of drug use, dependence and trafficking. The excessively punitive regime has resulted in countless human rights violations, while not achieving it health goals.

One of the implications of the ‘war on drugs’ has been an increase of female prisoner population, particularly in certain parts of the world. Proportionally, more women than men are serving prison sentences in relation to drug offences. Despite their often low-level, non-violent and first-time involvement in such crimes, women are more exposed to health and safety risks than men and the risks of being caught as drug carriers, and are often disproportionately punished.

Their pathways to offending are also often gendered. It is the situation of socio-economic marginalization, poverty, gender-based violence, lack of job opportunities and absence of social protection from the State, together with the need to support their family or involvement with men who use drugs, that can drive women into committing drug related offences. Gender sensitive drug policies must address the roots causes of structural inequality and discrimination which place women in a subordinate role in society including in the family, leading to a life experience of violence and domination. Repressive approaches only reinforce the vicious cycle of victimisation.

In addition, women’s experiences of administration of justice as well as imprisonment are gendered. Women often face obstacles to enjoyment of the right to a fair trial and suffer gender specific abuses in prison. Often, due to their economic marginalization, they cannot afford effective legal counselling and representation. Moreover, they face gender stereotyping and lack of gender-sensitive administration of justice. Within the criminal justice system, women are often subjected to moral judgments based on social expectations. The expectation that women should be “better behaved” than men may also lead to women’s sentencing to heavier penalties than men for the same crimes, while often mitigating circumstances, such as socio-economic depravation, are not considered. In the prison, in addition to bad conditions faced by all prisoners, women often experience gender-based violence and a lack of access to sexual and reproductive health services.

Finally, the consequences of women’s incarceration are also gendered. Women’s incarceration has not only a disproportionate impact on their own lives (women often suffer more from depression in detention, being stigmatised, less visited than men) but also on the lives of their families, as women are often primary carers of children and have increasingly become heads of households. As provided by the Bangkok Rules on Incarceration of Women, the Working Group, together with other Special Procedures mandate holders, has been advocating for alternatives to incarceration for women, in particular for women with young children. In the Working Group’s country visits reports (Chile, Senegal, United States, Kuwait, Chad, Honduras), the appalling situation of incarcerated women has been widely documented, including in relation to drug policies.

Due to gendered implications of drug policies, States and the international community should ensure that women, including former and current prisoners, are included at all stages of the development, implementation, monitoring and evaluation of drug policies and programmes. Good practices from countries which have invested in providing women with the much needed counselling assistance, access to harm reduction and drug dependence treatment services, job opportunities, should be drawn upon.

States must fulfil their international commitments to protect women’s human rights. They must urgently take concrete measures in order to give meaning to their commitments to mainstreaming a gender perspective in drug policies and programmes, expressed repeatedly in numerous resolutions and declarations in recent years.  This cannot happen if specific issues and concerns of women remain invisible and neglected. The Working Group will continue devoting considerable attention to the issue of women and drug related policies, calling on States to meaningfully address the specific concerns of women in international and national drug policies.

Natacha Lopvet, Equis, Mexico: I am French and have been incarcerated for 10 years in Mexico. I did not have access and protection from the consulate. I did not have a chance to talk to a lawyer. I know the stigma is very strong outside. As a foreign person, there was a lot of things to face, starting with the language, culture and the justice matter. So I have to face the first experience with law enforcement without understanding the language, a lawyer and family to support. Now I can talk about that because I am outside, for two years. It is still fresh. I believe now with the time after that we have to respect the current laws. If I had the protection of a defence lawyer, I would have stayed in prison for 15 days. I used to study the rights of travellers, we do have rights and they are protected. I discovered that I did have rights as a traveller, including at the airport upon arrest, three years afterwards in prison. You have to learn quickly in the jail, and to understand what is going on in the court. The language is a real barrier. The indigenous people suffer a lot too. Whoever does not speak Spanish, your life will be difficult in prison in Mexico. The culture is very important. I almost forgot my French after 10 years there.

There are a lot of people in prison who shouldn’t be there. The state does not respect their laws, and violate the rights of women and girls, and of men too. We are talking about the rights of everyone. This was not done with the application of presumptions. You also need to have the right to a defence. Foreigners, Koreans, etc, don’t have get a lawyer. If you had a good lawyer, you could stay in prison for only 15 days, not 10, 15 or 20 years.

I would like to talk about how many years in prison that a human being deserves. It’s a question we need to put on the table. Which judge knows how many years in a prison a person needs for whatever a person is accused of. You need to take account of the structural reasons behind why the women are trafficking drugs. You need to know who they are. A woman might be trafficking drugs to sustain her home and family, that’s it. I don’t know if we need military on the street, or lawyers and teachers to support people and their families. A lot of people on the street, they don’t have support.

We have to think that when you put someone in the prison, you are destroying the social tissue. When you punish one girl, you punish the whole family, the children and the whole generation. Instead of respecting their humanity, we are screwing them up. We need to think seriously about that, we are on a dangerous way.

I am psychologically strong, that’s why I am here. But the other girls, they came out of prison destroyed. They are not well. When you put the full family in prison, you put at risk the whole generation.

Eliza Kurcevic, Eurasian Harm Reduction Association: Today I will be speaking about the EECA region, and what we are doing in relation to women and criminal liability for the drug-related crimes. Today I will be talking about 5 specific countries in which we and our partners documented human rights violations of women who use drugs: Kazakhstan, Estonia, Belarus, Ukraine and Russia. Usually the average rate of women in prison is approximately 5/1000 whereas in Russia it is 33. In Estonia we don’t have a high number of women in prison (136) but there is a high rate of women in prison for drug-related crimes (62 out of 136). In Russia it is also very high: there is approximately 59 000 women in prisons, from which 19 628 are imprisoned for drug-related crimes. Usually we would think that the drug offences for which people are in prison are distribution and trafficking. But many women are in prison for drug use and possession in small amounts without intent to distribute (in other words – for the own purpose)

  • How is the ‘system’ violating the human rights of women who use drugs? We identifies at least 9 human rights violations of women who use drugs:
  • Lack/no access to harm reduction services in prison settings
  • Deprivation or restriction of parental rights
  • Police ill-treatment and arbitrary detention
  • Lack of access to legal and social support services
  • Stigma and discrimination
  • Drug treatment register and disclosure of personal information
  • Gender-based violence
  • Lack of access to sexual and reproductive health services
  • Inhumane and degrading conditions in prisons

First I want to talk about the lack of or no access to harm reduction services in prison settings. Many women in prison have an experience of drug use but only a few countries in the region provide access to harm reduction services (most of the countries do not provide NSP and some do not provide OST). There are no gender-sensitive services, even in wider community, and in Russia for example – access to OST is even banned by the laws (both, in prison and in freedom).

Deprivation or restriction of parental rights is another issue. When children turn 3 they have to leave the prison. After women are released from prison, it is difficult for them to get their children back because the conditions under which the state is willing to return children are very strict, eg. having a job, good home and being free from drugs. In Ukraine for example, children can stay with their mothers until they are 3, then they have to leave the prison, and then they have to meet strict requirements in order to get their children back upon release from prison.

Police ill-treatment and arbitrary detention

“Vasya [name changed] is in Narva. He has just served five years for selling drugs…My girl was then going to the kindergarten; she was two and a half years old. I was walking on a street in the city and the police took me in… They wanted me to testify against Vasya. They said, ‘Well, what are we going to do with you? Your child is in the kindergarten. Who is going to pick her up? If you have someone to call, do it.’ She [the policewoman] started to play with me. I knew she could do it. I told her, ‘Write whatever you want, and I’ll sign it.’ And I signed that I had bought drugs in such and such quantities. And the fact that they [the police] were blackmailing me is true. Especially if a woman/a girl has a child, she will give evidence.”

When police want to increase their rates of arrest, they will make women choose between short and longer terms in prison for drug offences they did not commit in order to pressure women to agree to go in to prison and not lose child custody rights.

In Kazakhstan there are strong regime women colonies, where women are imprisoned from 3 to 25 years imprisonment, usually for the murder and possession of drugs. In one of four colonies, toilet is outside of the prison. So in case women want to use it, they need to make a group of few people and then ask safeguard to lead them.

Astried Permata, Community Legal Aid Institute (LBHM), Indonesia: Like other countries, the number of women incarcerated is increasing in Southeast Asia. According to the world imprisonment list, Indonesia is one of the world’s highest incarcerator of women. There are more than 500 prisons in Indonesia. Our study covered 307 respondents, and the purpose was to find out demographical profile of women incarcerated for drug offences, legal process that they have experienced  and the socio-economic costs of their incarceration. 91% of them are 24 – 53 years old, 39% are divorced, 46% are married, 82% have children, and 19% can’t fulfil their daily needs. 28% have experienced intimate partner violence. Those who experienced intimate partner violence, 63% experienced physical violence and 13% experienced sexual violence.

Evidence is important when someone is arrested, but in Indonesia, intention is not taken account of when a woman is arrested. 95.8% of respondents said said there were evidence when police arrested them. But we found several cases where women have to be imprisoned because of their friends’ drugs or their husband’s drugs.

30% of them were convicted of drug use. Most of them use amphetamine, and do so because they have a dual role: they are the backbone of the family and need to do domestic work. Ecstasy and cannabis was also used, for recreational purposes or as part of their decision for self-healing.

In terms of legal aid assistance, 52% received legal assistance provided from the state but many of them were not satisfied with the quality of that assistance. 69% of them did not have a lawyer during the investigation stage. Many of them also experienced torture, and most cases were committed by police.

As Natacha said, foreigners are discriminated against. They are seen as rich even though they are not, eg. sometimes the translator will also conspire with police to cheat them of their money. Also, there was the case of a Chinese women arrested a second time because she used drugs inside the police station, even though there were other women who also used drugs.

In terms of the socio-economic consequences, there are costs in prison for basic necessities including food, daily women needs and to call their family. Some of them lied about the status as an inmate or about the sentence, and some would not let their family visit them.

This is the hardest part. 82% of the study respondents have children. Some women decided to cut communication with their children, some of them make efforts to move their children to the city near of the prison.

Patrick Angeles, NoBox Philippines: While we were doing the study, I realised how common the stories faced by women in prison in countries around the world are—the institutional, structural, and social issues; the stories of trauma and abuse—and it’s really good we are having this conversation.

The women we interviewed, 35 of them, 20 were detained and undergoing trial while 15 were already sentenced. Most of them women were charged for sale and possession. The penalties are very harsh in the Philippines. The punishment for selling drugs is life imprisonment; for possession, the minimum is 12 years and the maximum is life imprisonment depending on the quantity caught with you. Most of them come from low-income backgrounds. Many worked in the informal sector or service industries such as selling goods on the street. Some also did sex work. Most of them were introduced by male partners into drug use and the drug trade.

Many of them engaged in the drug trade, driven by the need to provide and care for their families. Most of them used ‘shabu’ which is methamphetamine to help them work more for longer hours or cope with their situation. For women who engaged in sex work, they use shabu to entertain more clients or cope with the situation. Of those selling shabu, they used it to supplement their other sources of income.

Once they were arrested, the conditions they faced were not better. Rates of overcrowding in prison nationally are around 600%. In some prisons the rate is 1000%. 2 out of every 3 persons waiting for their sentence are charged with a drug offence. The trial process is very slow. In 2017, of over 40,000 drug cases filed, only around 300 were resolved. one of the reasons is that many of the women arrested come from poor backgrounds and could not afford to pay for a lawyer, and therefore had to rely on a public defender provided by the state who handles almost a thousand cases. There was a woman who was still undergoing trial after 17 years in prison. Trial dates can be rescheduled for reasons like the judge or the prosecutor or the arresting officers not attending, and the rescheduling can take months.

In prison, there are informal social structures and support systems to help cope with overcrowding. Hierarchies are established to help maintain order in the prison. There are only two institutions for women who have been sentenced, one in the north and one in the south. This makes it difficult for their families to visit, especially those with poor families.

In terms of treatment of mothers and pregnant women, policies are not followed in farflung areas. There was a case of a woman who gave birth while shackled even though that is not allowed under the policy, and her child was taken from her after 1 day, even though policy says she should be able to keep the infant for a month. In terms of access to services, while there are technical education, skills development, spiritual services, livelihood training and income-earning opportunities, there is a question of whether or not these translate to better outcomes once they are released. Jail and prison officials tell stories of women who are unable to find employment after release and are arrested again for similar drug charges. Some women are turned away by their families. There are added layers of stigma for women who become involved with drugs, as they are seen to be going against the roles society thinks they should play, like caregiver.

For recommendations, they include capacity-building, developing and standardizing M&E tools (such as under the Gender and Development assessment tools of the country), finding ways to reduce overcrowding through alternatives to incarceration or diversion, mapping and coordinating resource, addressing the needs of children left behind, and investing in research.

I had the privilege for spending the last few days with Natacha, and I could see how important it is for the meaningful involvement of formerly incarcerated women. It’s not enough that we’re here talking about or on behalf of them—we owe them a seat at the table. These women affected by these policies should not just be part of the response, but leading them.

Chair: some of the findings mentioned by Patrick, Astried, Eliza and Natacha, we also found in our research, for example economic deprivation and the use of drugs as a coping mechanism. Our Working Group does work on laws and policies affecting women, if anyone is working on this please do reach out to us.

Question: I do work for the UNODC and helped produce the booklet focussed on women and drug issues for the World Drug Report last year. I suggest to you to cover the situations faced by women in other parts of the world, because available information seems to focus on Latin America and we need to know about the situation in other regions of the world.

Question: How possible was it for you to go into the prisons to do this research?
Astried: We asked the government agency for permission and it was granted on the basis of some conditions.
Patrick: As with Astried, we were also given restrictions but the government agency could see that additional research was needed and welcomed it.
Eliza: We interviewed formerly incarcerated women, and did not go into prisons for the research.
Natacha: In Mexico it is very hard. It is very complicated to get access into prisons. But we do have enough information to understand what the problem is and where they come from. We need to stop the criminalisation of people who use drugs.

Question: What is the reaction of the government, the public and media when you raise the issue of women in prison?
Astried: We conducted national meeting about this research in Indonesia and invited several government officers. They are very open, especially from the correctional facilities, they realise it is a problem. It is not easy because some officials want to punish people for drugs but the prison wardens are aware of problem with overcrowding.
Natacha: Corruption is a big problem too – this is an important point we need to resolve.

Ivana: When the Working Group conducts country visits, they also go to visit the prisons and overcrowding is often a problem.

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