Beyond bars: Exploring the link between Gender Inequality and Imprisonment

European Student Think Tank

Gender Equality Working Group

Abstract:

Gender inequality in penal systems is a persistent international problem, affecting women in all countries. Female convicts, who often come from economically and socially disadvantaged backgrounds, are often doubly excluded because prisons are predominantly designed for male inmates. Despite efforts to address gender-specific human and constitutional rights, discrimination against female inmates remains widespread in many European prisons. Therefore, the unique and multi-layered experiences of women in prison need to be analysed and considered separately. Against this backdrop, the present article looks at the situation of women prisoners in Europe and closely examines the link between gender, motherhood, and prisons. The article is divided into the following six  sections: a brief introduction, a summary of the status quo of female prisoners in Europe, the link between gender and imprisonment, the importance of gender sensitivity in prisons, the role of motherhood, and a conclusion with recommendations for a possible EU approach to reduce gender inequality among prisoners. 

Introduction

Gender inequality describes gender-based discrimination that is prohibited under international law and must be combated in all areas of life. These areas include the legal and penal systems, with gender inequality in prisons being a widespread international problem. Yet, women generally represent only a small proportion of inmates worldwide, and in most cases women prisoners belong to economically and socially disadvantaged groups in society, even before being detained. Therefore, gender-specific human and constitutional rights are often not sufficiently observed and respected in prisons (Khatun, 2023). Furthermore, prisons as such already exist on the margins of society and, as they are mainly designed according to male standards, this leads to a double exclusion of women prisoners, which is why the unique experiences of detained women must be analysed and considered separately (ibid., Colvin, 2011).

While there is a paragraph on women in the European Prison Rules adopted by  the Council of Europe’s decision-making body, the Committee of Ministers, in 2006, with reference to the European Convention on Human Rights and the case law of the European Court of Human Rights (Council of Europe, 2006), female inmates are also discriminated against in most prisons in European countries. To combat this in a strengthened and sustainable way, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has taken strict measures, such as setting up small housing units for female inmates to prevent sexual harassment or other violence against women  (Khatun, 2023). Against this background, the article takes a closer look at the situation of female prisoners in Europe and discusses the challenges they face because of their gender: What is the connection between gender and criminality, and what role does gender sensitivity play in prisons? What is the significance of motherhood in this context, and how can the European Union (EU) contribute to improving the living conditions of female prisoners?

Summary of the status quo: female prisoners in Europe

As previously mentioned, women in European prisons are discriminated against on the basis of their gender. Looking at current figures, it is confirmed that female inmates are a minority compared to male inmates, making up only about 6.9% of the global prison population. In comparison, the number of female inmates in Europe is even lower, at 5.9% (Fair & Wamsley, 2022: 2). Nevertheless, an increase in the number of imprisoned women and girls over the past decade can be observed worldwide (ibid.). This trend is also confirmed by the European Commission, which found an increase in the proportion of women in European prisons between 2011 and 2019 (European Commission, 2023). Furthermore, the CPT also pointed out that the number of female inmates is increasing in a number of EU countries (CPT, 2018). The highest proportions are found in Cyprus (10.7 %), Malta (9.6 %) and Latvia (9.2 %) and the lowest shares in France (3.3 %), Bulgaria (3.7 %) and Ireland (4.0 %) (European Commission, 2023). 

Regarding inmates’ rights, there are some references to gender and women in the current European Prison Rules. Among other things, the Basic Principles state that prison conditions that violate the human rights of prisoners cannot be justified by a lack of resources. At the same time, the rules refer to women-specific regulations in a separate paragraph. This includes special consideration of women’s needs, including their physical, occupational, social and psychological needs, when deciding on their detention. Furthermore, particular efforts should be made to provide women prisoners with access to specialised services, including consideration of possible experiences of abuse (Council of Europe, 2006). Nevertheless, according to the CPT, the fact that women are vastly outnumbered poses several challenges to prison administrations, often resulting in less favourable treatment compared to incarcerated men. Against this background, women in prison represent a group with special needs. This is not only due to biological reasons such as menstruation or pregnancy, but also to their social situation and cultural role, which makes them particularly vulnerable (CPT, 2018). In this context, female inmates often come from disadvantaged backgrounds or have already experienced violence or sexual abuse before their imprisonment (Van den Bergh et. al., 2011). The CPT’s work thus shows how important it remains to take a closer look at the conditions of women in prison, also within the EU. The next section will therefore take a closer look at the relationship between gender and the prison system, before discussing the importance of gender sensitivity in prisons.

Linking gender and imprisonment

Looking more closely at the connection between gender and imprisonment, it should first be emphasised that prisons are generally located on the margins of society, and people, regardless of their gender, become invisible when imprisoned. However, female inmates become doubly marginalised and overlooked objects in this process: “Concealed within the hidden institution of the prison is the women’s prison population, an even more shadowy phenomenon that has generally been […] subsumed, in terms of policy needs, into the male prison population.” (Colvin, 2011: 1; after Diana Medlicott). 

Furthermore, apart from the fact that female prisoners find themselves in a system designed for men, the social perception of female offenders is different. For example, they seem to be more visible in the cultural imagination of our society, even for minor offences. This is also accompanied by a contradictory self-experience of women in prison. On the one hand, there is the real experience of imprisonment and unequal prison conditions. On the other hand, female detainees experience a social ideal that is mainly based on socio-cultural constructions of femininity, motherhood, violence and criminality, but has little to do with their reality as prisoners (ibid.). In this context, it is important to note that in a report presented to the European Parliament by Marie Panayotopoulos-Cassiotou on behalf of the Committee on Women’s Rights and Gender Equality on women in European prisons, MEPs were particularly concerned with the issue of reproduction and motherhood. As such, the issue of reproduction mainly reflects the contradiction between ideal and reality, in that maternal care and childcare are seen as a positive quality for women, making them visible in the prison context. This in turn implies that prisons themselves, as microcosms, reproduce the existing gender hierarchies and norms that can also be found in other social discourses, such as that of abortion (ibid.). 

A similar tendency can be observed when looking at the International Human Rights Treaties, which usually take a universalistic approach to human rights. As a result, they are considered gender-neutral and thus do not include gender as a category of analysis. At the same time, general international instruments for the protection of prisoners’ rights have historically included instruments specifically tailored to women in detention. Examples include the 2015 UN Minimum Rules for Prisoners, also known as the Mandela Rules, or the 2006 European Prison Rules (EPR). While these contain regulations relevant to women in detention, international legal instruments that focus specifically on the protection of female prisoners are often designed on the basis of women as mothers. Consequently,  the particular situation of female detainees is viewed primarily from a maternal-biological perspective, with other sociological aspects of female detention, such as sexual harassment or pre-existing inequalities, not receiving special attention. Rather, these needs are included in the universal nature of human rights in detention (Ciufoletti, 2020). At the same time, however, this neutrality is only apparent, as the international legal system must also be viewed as a gendered system, which has so far been created primarily on the basis of male organisational and normative structures. In this context, the traditional gender dichotomy of public and private space also contributes to the fact that women’s needs are ignored or underestimated. Thus international law, as well as prisons, which as entities are supposed to help ensure that the law is upheld, must also be interpreted as gendered  (ibid.). 

In recent case law, the European Court of Justice appears to be  taking a more sociological view of gender, stating that “references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex” (ibid., after Konstantin Markin). This implies that the gender dimension of the law will be explicitly taken into account in the future to avoid gender discrimination in the European legal and penal system. However, this is applied differently depending on the area of law.  While gender is strongly included in the area of domestic violence, the European Court of Justice’s rulings on the imprisonment of women seem to be much more static (ibid.). 

Overall, it seems that gender within the European legal system is gaining attention. This applies to anti-discrimination and maternity issues, but also to other areas such as the right to an adequate detention regime (ibid.). Nevertheless, it is important to bear in mind that gender roles prevalent in society have an impact on criminal procedures. They therefore need to be further challenged to improve prison conditions and reduce gender discrimination. In the following, gender sensitivity in the context of the penal system is examined in more detail.

The importance of gender sensitivity in prisons

As the previous sections have made clear, gender-specific human rights and constitutional rights are not sufficiently respected and recognised during women’s detention. Many of these issues are primarily related to the existing social gender inequality that has long existed outside prisons (Khatun, 2023; Van den Bergh et al., 2011). In this context, many female convicts experience challenges such as being confronted with jokes about their sexuality, having their abilities questioned, or being pictured as often suffering from mood swings due to hormonal imbalances. Furthermore, most prisons do not have facilities for psychological care or trauma treatment, meaning that pre-existing trauma or abuse must be endured by women in prison alone (Khatun, 2023). Moreover, the low number of women in prison results in fewer women-only detention centres, which means that women are often incarcerated farther away from their homes. This makes it difficult for them to maintain family ties and is especially problematic if they have children. Finally, inadequate medical and hygienic care is also a major problem, as female prisoners often receive insufficient, delayed, or no medical care, such as pelvic exams and mammograms. Simultaneously, they often experience a lack of hygiene measures such as free menstrual products or expanded showering facilities. These problems highlight the importance of gender sensitivity in prisons, while at the same time pointing to a general societal imbalance, as the same problems and needs of women often also exist outside of prisons (Khatun, 2023; van den Bergh et. Al., 2011; Colvin, 2011).

According to the CPT, women, whether imprisoned or not, must enjoy the fundamental right not to be discriminated against based on their biological sex or sexual orientation. It is important to consider several factors when dealing with women prisoners, including any form of physical, sexual or psychological violence they may have suffered prior to detention. Some of the CPT’s suggestions on how to achieve more gender sensitivity are as follows (CPT, 2018):

• Enough female supervisory staff  for all prisons with female inmates.
• Aim for mixed-sex staffing as a safeguard against abuse.
• Zero tolerance for physical abuse, excessive use of force and verbal abuse, or any other forms of disrespectful or provocative behaviour towards prisoners.
• Special attention towards inappropriate behaviour and sexual relations between staff and women.
• More specialised training to staff working with women prisoners to better address their needs.

Within the EU, national governments are responsible for providing adequate care to prisoners, and the way in which this responsibility is carried out varies considerably from one country to another. Several countries have transferred responsibility for prisoner wellbeing to the Ministry of Health, rather than leaving it to the Ministry of Crime. At the same time, the World Health Organisation’s Regional Office for Europe has been asked to provide guidance that could serve as a common tool for implementing greater gender sensitivity and equality. To date, there is no EU-wide approach, however the issue has been raised repeatedly (Van Bergh et. Al., 2011). In this context, the role of motherhood also plays a substantial role.

The role of motherhood 

Maternity is a complicated issue when it comes to prisons and female inmates, most evident in the fact that prisons are often ill-prepared and helpless in the face of pregnancy, childbirth, and childcare. Many of the health problems of incarcerated women are related to reproductive health such as menstruation, menopause, pregnancy, and breastfeeding. However, women’s physiology is still managed with medication in many detention centres, where access to regular showers, free provision of sanitary products and sanitary napkins, and the opportunity to exercise regularly are not standard. Accordingly, health care, especially for pregnant women, is often not comparable to that provided outside of prisons. Among other things, pregnant detainees rarely have access to maternity classes to prepare for childbirth, and the nutrition provided often does not meet the needs of pregnant women. In addition, female inmates are often discouraged from breastfeeding after giving birth because it is perceived as disruptive to everyday prison life (Van den Bergh et. Al., 2011). This is particularly problematic against the background that female prisoners often only seem to be visible through the issue of reproduction.

If one looks further into the social perception of motherhood, it also becomes apparent that the current image has been shaped by historical discourse. The discourse describes non-reproductive intercourse with the devil and the murder of newborns as the opposite of the ideal of maternal care. Against this background and beginning with witchcraft in the 15th century, female crimes were constructed in terms of female sexual perversity. In other words, the idea of the witch anticipates modern ideas of criminal, evil mothers who may have fallen in love with a violent man. Since the 15th century, beginning with witchcraft, female crimes have been constructed in terms of female sexual perversity. Later on, the new science of criminology developed and postulated a fundamental distinction between male and female criminality, the latter being more dependent on biology and sexuality and confirming the existing narrative, creating great social pressure. It is worth noting that this pressure originated outside prisons, suggesting that motherhood serves as a means of control in a male-dominated society (Colvin, 2011). Against this background, female inmates generally face a particular stigma that is perpetuated when they return to society. This stigma relates to women as mothers, as they are repeatedly told and reminded that they cannot be good mothers later in life because they are perceived as negative influencers in their children’s lives when they return to prison or are released from prison (ibid.; Khatun, 2023). At the same time, female women associate a lot of guilt with motherhood within the prison setting itself, but also externally by society or their families. As such, maternal failure and guilt are consistent themes in women prisoners’ self-perceptions over time and across national boundaries. In this context, a 2005 study for the EU Directorate General for Research and Innovation (DG RTD) found that the issue of motherhood was fundamental in many of the interviewed women’s narratives about their lives and especially in their discussions about the pain of imprisonment. Feelings of failure as a mother and guilt were particularly strong and emerge as such from all national accounts. This, together with the separation from their children, is a major contributor to daily stress and worry often leading to anxiety, depression, and self-harm (Colvin, 2011).  

Overall, the described conditions in prisons, in combination with the prevailing image of criminal women and motherhood are particularly problematic, because women often only become visible through the question of motherhood and reproduction.At the same time, it is associated with feelings of guilt as well as with a strong contradiction between the real conditions for pregnant women during imprisonment and the social ideal of the ‘mother’, which leads to women’s psychological distress (Van den Bergh et. Al., 2011; Colvin, 2011).

While there are some rules concerning women in the European Prison Rules, the CTP further recommends the following regarding motherhood and pregnancy (CPT, 2018):

• Increase efforts to meet the special nutritional needs of pregnant women in prison.
• Always transfer pregnant female inmates to outside hospitals when possible.
• Providing breastfeeding mothers with complementary foods in accordance with existing guidelines for this category 
• Always pursue the best interests and welfare of the child, i.e., ensure that prenatal and postnatal care in the custodial setting are equivalent to that provided outside the community.
• Do not interfere with the right to motherhood more than safety considerations and the safety of the child require, and establish good contact between mother and child by housing mothers in custody with their babies after delivery and encouraging breastfeeding.
• While the child remains in the detention centre, the mother should be able to spend sufficient time with her child each day and be placed in a suitable environment. In this regard, the special sanitary and hygienic needs of mothers should be adequately met, including access to good sanitary facilities and the provision of sanitary and hygiene items, such as diapers.
• Guarantee the equivalent of a nursery or kindergarten, as well as the support of specialised personnel for postnatal care and paediatric care.
• Ensure adequate interface and co-operation between staff employed at prison mother-and-child units and health-care and other prison staff who are in contact with mothers in prison.
• Facilitate childcare by family members outside the prison so that the burden of raising children is shared and female prisoners can participate in work and other activities within the prison.
• Grant the possibility of receiving visits from family members together with their accompanying baby.
• Make case-by-case decisions regarding long-term arrangements involving the separation of the child from the mother, considering a child psychiatric and medico-social assessment, and the mother’s involvement in prison continuing to be involved in the upbringing of the child outside.

Conclusion & policy recommendations

Overall, it becomes clear that female detainees represent a minority in comparison to men. While prisons exist on the margins of society and therefore already foster the social exclusion of all prisoners regardless of their sex, they seem to reproduce social hierarchies that have existed already in our society for a long time. Not only are prisons built on male standards, but also the penal system and case law seems to still be embedded and shaped by a patriarchal system. While it could be observed in the last years that the number of women in prison is increasing and the European Court of Justice is taking on a more sociological definition of gender, it is still necessary to provide more research on the topic to ensure that this group does not remain invisible. In other words, that women’s needs are considered. This has to be taken forward in a way that not only the question of reproduction and motherhood defines special treatment for female detainees, but also other aspects of women’s experiences, such as sexual abuse, are sufficiently taken into account. 

One recommendation for a European policy approach towards more gender equality in prisons is to provide extended research on the topic, including examining linkages between gender inequalities inside and outside prisons. A special focus should be placed on the question of motherhood and reproduction. Here it could be fruitful to link discourses such as abortion outside prisons with the experience of female inmates’ guilt when it comes to motherhood. In this context, it is also important, for instance, to involve men as caregivers outside prisons, and to deconstruct traditional gender roles through parental leave or the right to abortion. At the same time, it should be ensured that if our society ascribes motherhood as a positive role for women, the conditions for menstruation and pregnancy in prisons improve accordingly. As the CTP already provides research and recommendations regarding women in prisons, it is also important to consistently implement their recommendations and guidelines. 

The penal system, its conception, and the regulations or jurisprudence on imprisonment must be analysed  and reformed by applying a gender lens. This does not mean that all universalistic claims of international law should be abolished, but rather that existing rights should be examined to understand the extent to which female needs are not taken into account. For example, acknowledging inequalities and the social position of women at the time of their imprisonment, especialy experiences of abuse.

According to European prison regulations, it would be appropriate not to save financial resources, but to build more women’s prisons. Since this does not realistically seem feasible, it is advisable to question existing prisons with regard to gender and, if necessary, to build more women’s wings in already existing prisons. For this purpose, the CTP proposals are very useful, for instance to increase the number of female employees in prisons where women are imprisoned and to make this legally binding in EU law.

Bibliography

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