2. 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.
3. 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.
4. 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
5. 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)
6. 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)
7. 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?)
8. 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
9. 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).
10. 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”
11. 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
12. International Standards and Norms and Guidelines
relating 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
13. 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?
14. 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)
15. 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.
