Women in Prisons: Violations of Labor and Social Rights
Andrew Coyle, the author of a book entitled “A Human Rights Approach to Prison Management: Handbook for Prison Staff” (published by the International Centre for Prison Studies), argues that the rate of female prisoners in all prisons of the world varies between 2% and 8% of the total number of inmates. The situation of women prisoners is very different from that of men and so it should receive a separate analysis. Jailed women are often victims of physical or sexual violence, they have various health problems. The consequences of imprisonment and its impact on women’s lives may be quite different.
As of the end of 2014, the two penal colonies of Belarus that were designed exclusively for women held 2,185 prisoners, i.e. 7.3% of the total number of prisoners, which is close to the upper limit of the general rate of female inmates.
The rules governing the legal status of convicts, as a rule, do not take into account the prisoner’s sex, but do have some peculiarities for women serving sentences in penal colonies.
Women sentenced to deprivation of liberty in Belarus serve their sentences in a penal settlement (IKP-21 in Vetka district) and in two penal colonies (IK-4 in Homieĺ, and IK-24 in Rečyca district) under minimum and maximum-security conditions; women can also be theoretically sent to prison.
Like all prisoners, women are obliged to work in correctional colonies. The rules of labor law apply to them, as well as to other prisoners, only to a certain extent, namely in regulations relating to the duration of the working day and occupational safety requirements. Wages of convicts who have worked the monthly minimum amount of working time and performed the assigned production rates cannot be lower than those set by the legislation of the Republic of Belarus for the performance of corresponding work, but no additional payments to the minimum wage are provided. In addition, wages of convicts for incomplete workdays or workweeks are calculated pro rata of time worked or according to productivity. No minimum monthly payment in this case is provided, even in the case of downtime due to the fault of the enterprise. In practice, this means the prospect of symbolic wages, especially after deductions for food and utilities.
The penal facilities that hold women with children have child care centers. The law requires the administration to create in these centers the conditions necessary for normal life and development of children. Convicted women may send their children to child care centers in case they are aged up to three years, and to communicate with them in their free time without limitations. They may be permitted to live with their children in the child care centers. However, this does not mean that these women are released from their duties, including participating in the cleaning work without payment.
With the consent of the women, their children may be adopted by their relatives or by decision of the guardianship authorities by other persons, or on reaching the age of three sent to the appropriate institutions. When the child, who is held in the child care center of the correctional institution, reaches the age of three years, and the remaining term of punishment for the mother does not exceed one year, the administration of the correctional institution under the law may extend the stay of the child in the center until the expiry of the mother’s sentence. However, the adoption of such a decision is a right, not a duty of the prison administration.
“Pregnant women should only be held in prison in the most extreme circumstances. If this is necessary, they should be provided with the same level of health care as is provided in civil society. When the time comes to give birth such women should whenever possible be transferred to a civilian hospital. This should ensure that professional medical care is available. For the baby this will avoid the stigma of having the prison recorded as the place of birth. In any case the birth certificate should give a non-prison address as the place of birth. Any security restrictions which are necessary during this period should be as discreet as possible. Where pregnant women are held in prison the administration should ensure that full consideration is given to any cultural issues surrounding childbirth. The matter of mothers in prison who have small infants is a very sensitive one. In a number of jurisdictions mothers are allowed to keep new born babies with them in prison. When this happens the mother and baby should be in a unit where they can live together on a continuous basis. Such units should have all the facilities which a nursing mother would normally require. This is preferable to keeping the baby in a separate nursery unit which the mother is only able to visit at certain times. The right age at which infants should be taken away from their imprisoned mothers is difficult to determine. Since the link between mother and child is all-important it is argued that the child should be able to stay with his or her mother as long as possible, perhaps the whole length of the sentence. A contrary argument is that prison is an abnormal environment which is bound to affect a child’s development from a very early age. For that reason a child should not be allowed to remain in prison with his or her mother much beyond the age of a few months. In practice, some prison administrations allow mothers in prison to keep their babies with them until the age of 9 months, 18 months, up to four years or longer if the child has nowhere else to go,” believes Andrew Coyle.
The commentary to the UN Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (the ‘Bangkok Rules’) emphasizes that the Standard Minimum Rules “provide very little guidance on meeting the special needs of pregnant women, breastfeeding mothers and women with children in prison. There is no guidance provided on the treatment of the children themselves. In view of the number of women in prison who are pregnant or who have dependent children living with them, it has become essential to provide more detailed guidance and rules as regards their treatment, in order to ensure that both the women’s and the children’s psycho-social and health-care requirements are provided for to the maximum possible extent, in line with the provisions of international instruments. Viewpoints as to whether children of imprisoned mothers should stay with them in prison, and for how long, vary among specialists, with no consensus. Countries worldwide have very different laws as to how long children can stay with their mothers in prison. Nevertheless, there is general consensus that, in trying to resolve the difficult question of whether to separate a mother from her child during imprisonment, and at what age, the best interests of the child should be the primary consideration, in line with the Convention on the Rights of the Child, Article 3. Issues to take into account should include the conditions in prison and the quality of care children can expect to receive outside prison, if they do not stay with their mothers. This principle would imply that prison authorities should demonstrate flexibility and take decisions on an individual basis, depending on the circumstances of the child and family, and on the availability of alternative care options in the community. These rules recognize that applying rigid policy in all cases, where circumstances vary immensely, is all too often not an appropriate course of action. They emphasise that, in order to prevent any physical or psychological harm to children who do remain with their mothers in prison, the environment in which they are brought up in prison should be as close as possible to a normal environment outside prison and that the healthcare of children, which would include their regular vaccinations, should be provided for. They also emphasize the need for continued communication between the mother and the child following separation to prevent as far as possible the psychological damage caused by separation.”
The Belarusian legislation provide but for minor concessions to the detention requirements for pregnant and lactating women. Convicted pregnant women and nursing mothers may, in accordance with a medical report, receive additional food parcels in the amount and range necessary to maintain good health of both the mother and the child. In accordance with the Code for Criminal Procedure, convicted pregnant women, nursing mothers, along with minors, sick and disabled persons, are entitled to improved living conditions and better nutrition. Nutrition of children staying with their mothers in correctional colonies, detention centers and prisons, as well as children living in the child care centers of correctional facilities, should meet the standards set for children staying in orphanages run by the Ministry of Healthcare.
Along with convicts released from work due to illness, convicted pregnant women and nursing mothers not working due to reasons beyond their control are entitled to free-of-charge meals for the period of release from work. However, clothing and utilities are provided to them on a reimbursable basis.
In penal facilities, except for penal settlements, convicts, including women, should receive on the account, regardless of all deductions, at least 25 percent of accrued wages or other income, and in the case of female prisoners of over 55 years, pregnant women and women with children staying in the child care centers of the correctional institution, — at least 50 percent of their accrued wages or other income.
Imprisoned women showing diligent attitude to work and obedience to the prison rules are entitled, by a reasoned decision of the head of the penal colony, agreed with the supervisory commission, to living outside the penal colony at the time of release from work for pregnancy and childbirth, as well as the for the period until the child reaches the age of three. Convicted women who are allowed to live outside the penal colony should settle near the territory of the penal colony in premises belonging to the penal colony, and are under the constant supervision of the prison administration; they can wear clothing appropriate to regular life, have money and spend them without restrictions; in the waking hours, such prisoners enjoy the right of free movement within the boundaries determined by the head of the penal colony; unlike ordinary prisoners, they are entitled to sending and receiving parcels and packages; they can also receive visitors without any restrictions.
In the case of systematic or malicious violations of prison rules, the right to live outside the territory of the penal colony may be canceled by a decision of the head of the penal colony.
After the expiry of the period of leave from work for pregnancy and childbirth, convicted women are involved in the work at the direction of the administration of the penal colony. This means that the right to parental leave until the child reaches the age of three years old is not enjoyed by a woman who gave birth to a child in prison. Women prisoners are released from work starting from the twenty-seventh week of pregnancy for the period of 146 days, and after this period are required to work again.
As a general rule, prisoners may be assigned to perform work without pay only for the collective self-care, including cleaning and improvement of correctional facilities and adjacent territories. At the same time, imprisoned women of over 55 years old and pregnant women are required to work without pay only if they so wish. As already mentioned, women with children in the child care centers are not exempt from such work. Convicts are involved in this work in the order of priority in their free time. The duration of this work may not exceed fourteen hours a week. This means that in addition to the 7-8 hours of paid work a day during a 6-7-day working week, the prisoners, including women, can work without payment and without days off for an average of two additional hours a day.
The legislation establishes that persons serving sentences in correctional institutions are provided with necessary living conditions corresponding to the rules of sanitation and hygiene. The rate of living space per convict in correctional colonies and prisons cannot be less than two square meters. These standards do not differ for pregnant and lactating women. Such standards are unacceptable for any category of convicts, and have been repeatedly condemned by the European Court of Human Rights as insufficient. In this regard, the European standard for prisoners is an area of 4 square meters per person.
According to the Penal Code, convicted women with children staying in the child care centers of correctional facilities may be entitled, for leaving children with the relatives or in orphanages, to a short-term leave outside the correctional facility for up to seven days, not counting the time needed to travel to and back, while convicted women with children with disabilities outside the penal colony – to one short-term leave of the same period a year in order to meet them.
These leaves are not allowed for prisoners who have committed especially dangerous repeated offences; convicted of serious crimes to a sentence exceeding five years, and especially grave crimes, except for convicts serving sentences in correctional settlements; sentenced to life imprisonment; convicts whose death penalty was commuted to life imprisonment; prisoners with active tuberculosis; convicts who have not completed treatment for alcoholism, substance abuse, drug addiction, persons suffering from mental disorders (diseases). In practice, no reports have been received on the possibility to take advantage of this right.
Pregnant women and nursing mothers can enjoy certain benefits in the case of misconduct: these women cannot be placed in a punishment cell or cell-type premises, and cannot be transferred to maximum-security penal facilities. However, they may be subjected to other sanctions, including deprivation of visits. This falls short of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, which prohibit a ban on contacts with the family, especially with children as a form of disciplinary action against female prisoners. With respect to Rule 28 (“Visits involving children shall take place in an environment that is conducive to a positive visiting experience, including with regard to staff attitudes, and shall allow open contact between mother and child. Visits involving extended contact with children should be encouraged, where possible.”), a special procedure for women’s meetings with children should be introduced in the national laws.
In accordance with the Criminal Executive Code, non-lethal weapons means and firearms cannot be used against women with visible signs of pregnancy, except in cases of armed resistance, a group or armed attack on the prison staff and military personnel, or other actions that threaten the lives and health of citizens. Such a rule denies the protection for the category of pregnant women in prisons – those whose pregnancy cannot be determined visually, but whose pregnancy is a fact known by police officers. Rule 24 of the Bangkok Rules has not been directly implemented in the domestic law: “instruments of restraint shall never be used on women during labour, during birth and immediately after birth.”
Rule 48 also needs legal enforcement: “pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by a qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers.”
As noted in the Commentary to the Rules, “Prisons are not designed for pregnant women and women with small children. Every effort needs to be made to keep such women out of prison, where possible and appropriate, while taking into account the gravity of the offence committed and the risk posed by the offender to the public. Recognizing this reality, the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders determined that “the use of imprisonment for certain categories of offenders, such as pregnant women or mothers with infants or small children, should be restricted and a special effort made to avoid the extended use of imprisonment as a sanction for these categories.” The Council of Europe, Parliamentary Assembly Recommendation 1469 (2000), on Mothers and babies in prison, adopted on 30 June 2000, also recommended the development and use of community-based penalties for mothers of young children and the avoidance of the use of prison custody.
The Belarusian law provides and operates in practice such a form of probation as postponement of punishment for convicted pregnant women and women with children aged up to three years. In accordance with the Code, the court may allow convicted pregnant women and women with children under three years old a deferment of serving the sentence for the period when they can be released from work due to pregnancy, childbirth and until the child’s third birthday. One should not assume that such a provision could allow escape punishment for serious crimes: the postponement of serving the sentence is not applicable to women sentenced to imprisonment for more than five years for serious or particularly serious crime.
To summarize, the following should be noted:
social and labor rights of women in detention are unjustifiably discriminated against;
the government needs to change the law for the sake of real protection of the rights of pregnant women and nursing mothers;
criminal justice against women should be carried out according to the most humane standards;
imprisonment of women, especially pregnant women and those with little children, should be used in the very limited cases where there is confidence that other punishments will not reach their goal.