Women and Prison: Driving change on body searches

This episode is the first in a series looking at how oversight bodies around the world are promoting safety and fairness for women in contact with the criminal justice system.

It’s part of the APT’s global campaign on women and prison.  Our goal is to support national oversight bodies in their efforts to promote implementation of the UN Bangkok Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders.

An important provision in the Bangkok Rules relates to body searches and strip searches.

Our guest in this episode is Rebecca Minty, Deputy Inspector with the Office of the Australian Capital Territory Inspector of Correctional Services.

Her office recently completed an inquiry into the case of an Aboriginal woman detainee who was forcibly strip searched. The report found that the woman’s human rights were breached and made a series of recommendations for change.

Transcript

Almudena Garcia

Hello and welcome to Perspectives, the APT’s podcast which explores contemporary issues related to torture prevention and dignity in detention. 

I’m Almudena Garcia, APT’s Digital Communication Associate, and this episode is the first in a series looking at how oversight bodies around the world are promoting safety and fairness for women in contact with the criminal justice system.

It’s part of the APT’s global campaign on women and prison. Luce Ahouangnimon, our Detention Senior Adviser, is leading this campaign.

 Luce Ahouangnimon

Our goal with the campaign is to support national oversight bodies in their efforts to promote implementation of the UN Bangkok Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders. An important provision in the Bangkok Rules relates to body searches and strip searches.

 In prison, there are legitimate safety and security reasons why it may be necessary 
 to conduct personal searches of detainees. But there have to be clear protocols – which are respected in practice – because body searches and strip searches are inherently humiliating and degrading, especially for women. And we know that some women, especially indigenous women and women who have experienced sexual assault and other trauma, can face additional vulnerability. 

This is why oversight bodies are so important. To conduct independent monitoring and uphold safety and protection for women detainees. Our guest today is Rebecca Minty. Rebecca is Deputy Inspector with the Office of the ACT Inspector of Correctional Services in Australia. Her office recently completed an inquiry into the case of an Aboriginal woman detainee who was forcibly strip searched. The report found that the woman’s human rights were breached and made a series of recommendations for change.

We’ll talk about the case in detail later in the podcast but, to start, I asked Rebecca why this work is so important to her. 

Rebecca Minty

I trained as a lawyer and I always had an interest in human rights law. And not long after graduating, I heard about this treaty about detention monitoring, which is the OPCAT, the Optional Protocol to the Convention against Torture. And it just struck a chord for me because it seemed like such a common sense approach to upholding human rights. It made a lot of sense.  

And so a number of years down the track I had an opportunity to work for the APT, which really was a very formative moment for me because I was working on detention monitoring for the Asia Pacific region, which is obviously such a vast region and there's so much diversity in approaches. But through all my observations and through my advocacy work and the people that I met, I really was convinced so much about the value of preventive detention monitoring. I could see the impact that it had; about being constructive, about being collaborating, by bringing people into the tent, to achieve change. 

So after working with APT, I then moved back to Australia some years later and I guess I was, in some ways, in the right place at the right time, because they set up this detention monitoring body in this little jurisdiction that only has one prison and one youth detention centre. But for me it was perfect because I had developed an understanding of the theory and the methodology of detention monitoring, but here was an opportunity to try and put it into practice. 

It's a huge learning curve because there's so much complexity in the detention environment, and there's so many areas of expertise, so there's always something to learn. I really love my job and I really see the benefit of it. And it really keeps me motivated.

Luce Ahouangnimon

Can you tell us about your role and the monitoring work of that your office undertakes?

Rebecca Minty

So my role is the Deputy inspector and, essentially, we're a very small office. We have less than three full-time staff. And so I pretty much do everything. We all do a bit of everything. And we were actually set up three years ago to provide preventive detention monitoring. There were really only two other bodies in Australia that had similar functions at the time. 

The jurisdiction was quite pretty progressive because they saw the OPCAT treaty that Australia was considering ratifying. They saw this coming and they thought, ‘okay, well let's set up a body that has the functions to perform that national preventive mechanism type function’.

So we conduct three types of reviews. We've got quite a strict mandate from our legislation. We have to do ‘whole of centre’ reviews, more or less built on the healthy prison model that was introduced in the UK a number of years ago. So it's looking at every aspect of treatment and care, from the staff, to the detainees, to the visitors. So we have to do that every two to three years. And we also have to do thematic reviews. 

But then we have an additional function, which is quite interesting. It's a review of a critical incident and the legislation sets out what a ‘critical incident’ is. We then go in and conduct a review and we report publicly on that. We are backward looking and we see that what has happened: What has been the root cause of it? How did the correctional authorities respond? Was it appropriate? But the way we report is really prevention focused. So we make recommendations to try and prevent a recurrence of that sort of event. 

Luce Ahouangnimon

What is the situation of women detainees in your jurisdiction? And do the Bangkok Rules inform your monitoring and reporting work?

Rebecca Minty

Yes, we do look to the Bangkok Rules. as well as other rules such as the Mandela Rules, every day in our work. We've developed our own standards that attempt to really put a lot more flesh on the bones of these broad principles and broad rights. 

But obviously the Bangkok Rules are really important because the rights of women in detention are a specific issue, but they're also a cross-cutting issue. So when we're looking at health care, obviously we need to look at gender-sensitive and gender-responsive health care, and relevant preventive health for women, like screening. And these are things that the Bangkok Rules really bring to the fore. And so having an instrument like the Bangkok Rules has been very influential. 

Women offenders, I think that many studies and the data has shown that they're not committing incredibly violent crimes. They're often committing more low-level economic crimes, maybe fraud, some minor drug offenses. So I guess the level of criminality tends to be a bit lower. They also have a much higher, well, they have a very high rate of disadvantage, whether it's economic disadvantage, social disadvantage, whether it's caused by trauma. There are significant rates of trauma, including violence and sexual violence. So the women that end up in prison have often had a very difficult, difficult set of experiences that have led to them being incarcerated.

And we also see in prisons in Australia, a grossly disproportionate representation of Aboriginal women, also Aboriginal men in prison. And I think this is intergenerational trauma, generation after generation, that Aboriginal people have experienced. If you look at Canberra, under three per cent of Canberra's population are indigenous. But when we did our healthy prisoner review, around 18 per cent of the women in the jail were indigenous women, and it was even higher for men. So they are overrepresented in prison. And yes, there's compound disadvantage that makes it a difficult cycle for them to break out of.

Luce Ahouangnimon

Earlier this year, your Office were asked to review a ‘critical incident’ that involved the forced strip search of an Aboriginal woman who was a prisoner at the Alexander Maconochie Centre. It’s a case that generated a lot of concern among health professionals and Aboriginal women’s groups. Can you explain what happened and what your review found?

Rebecca Minty

The background to this incident was that there was an Aboriginal woman in custody at the jail. I'll call it the AMC. And she had some very serious health conditions. She'd also recently been informed that her grandmother had passed. And so that was a very difficult experience for her. At the time, she had just been told by the jail that she wouldn't be able to attend her grandmother's funeral. Now as a bit of an aside, for Aboriginal people, and we had a Royal Commission 30 years ago that looked into Aboriginal deaths in custody, one of the findings was how important it is for Aboriginal people to be able to attend funerals, to pay their respects to their family, to their culture. But for a range of reasons which I won't go into now, she was not able to attend the funeral. She was very traumatised and very, very anxious around this. She was really struggling with this news. 

And it was determined that she should go to the crisis support unit of the jail, to be under observations for her own safety. Now when she was transferred there, a senior officer decided that she needed to be strip searched. The reason for this was that another officer earlier in the day had thought that he'd seen her put something, conceal something, in her clothes. And he had a concern that it could have been a weapon or an implement that she may use to harm herself. So the senior officer, with this in mind, believed it was the best thing to do, that she needed to be strip searched for her own safety. And certainly there was grounds under the Corrections Management Act to conduct a strip search in this situation. 

She refused to be searched, so she didn't consent. And so what happened next was particularly traumatic for her and also for many of the staff involved. Four female officers went and put on tactical, personal protective equipment, or PPE, which involves, it's essentially riot gear. So a helmet and body, body armour. And so four of them then went into a cell, with the intent to basically to strip her clothes off, to remove her clothes, to carry out that search. And she resisted strongly. 

She had significant health conditions, serious ones, including a heart condition. And so it was quite a risky situation, given her health background. She also had a, a history of recently being the victim of sexual sexual assault and she'd made that clear to a number of sources. So these factors combined to make it a particularly stressful situation for her. And she ultimately, after a number of minutes of prolonged struggle and resistance, she eventually agreed that she would go and willingly be strip searched. Although this question is about how willing, how are you actually consenting in that environment. But she, she said, ‘If a certain officer does it, I will go’. And so they deescalated, this officer came and then they went to another room, a private room, where the search was carried out. 

All of this situation came to light because she actually publicly wrote down her experience and wrote it in a public letter to the media and to the Minister. And one of the local Aboriginal health services supported her and advocated for her. And that was how this incident came to light. And the reason it ended up as a critical incident was because the Minister referred it to our office. 

And our report eventually found that, whilst there were legal grounds under the corrections legislation, under the human rights legislation that is also applicable in our jurisdiction, this use of force to conduct a strip search wasn't consistent with her human rights, and that there were less restrictive means that the staff could have used; for example, just putting her under observation and observing her, rather than forcibly removing her clothes. Ultimately, nothing was discovered, no implement or blade or weapons. So, yeah, it was a difficult situation.

There's so many layers of vulnerability that can make it even more traumatic. So I think, as the Bangkok Rules say, whatever we can do around the world, in every setting, to reduce the prevalence of this, we need to be doing it. And there is so much more that can be done. If you have scanning technology to stop people physically being violated, then they should absolutely be implemented. And our report, one of the key recommendations was to introduce scanning technology into the prison. And whilst we still haven't received the government response to our report, we have heard there has been an official response that they will be procuring two body scanners in the forthcoming budget cycle. So I think that's a really positive thing. 

I don't know if any good can come out of it for the woman who was at the centre of this. But her courage and her strength to come forward and to speak out has achieved this change. This is her, this is her that has really brought about this. And I'd like to recognise and acknowledge that.

There's probably just one other thing. I just wanted to acknowledge the role of an indigenous advisor that joined our team. So we're a very small team, we've got 2.8 staff. We don't have an indigenous member of our staff, and obviously in conducting a review of this issue, there's some very sensitive cultural matters that we felt we would really be enhanced, our expertise would be enhanced, by bringing on someone with a better understanding of Aboriginal culture, with lived experience.

So there was a fantastic expert, Dr. Liz MacIntyre, who is an Aboriginal woman, who's got expertise in criminology and working with Aboriginal women in detention. I learned a lot from that experience because she really talked us through things, from her perspective. And I think that was incredibly valuable in highlighting for us some cultural aspects that we wouldn't have picked up on otherwise. And I think it's a good reminder that people with lived experience, people with life experience that is diverse, can really add to a monitoring team.

Luce Ahouangnimon

What is the current status of the report? And are you hopeful that your recommendations will be accepted? 

Rebecca Minty

So we're still waiting for the government response to our recommendations. But we're very hopeful they'll accept them all. And when they do respond, we then take on some responsibility for following up. We can always check that they've been implemented and check on the progress.

I suppose the issue of the scanning technology is a really positive response. I think the other part of our report, the recommendations go more to culture and having a human rights culture in prison. But the tricky thing, of course, as a detention monitor is culture and decision-making is harder to measure, it's harder to measure change. We can easily go back in a year and say, ‘yes, they've got two scanners now, tick, tick’. But to get a sense of the culture and the decision-making analysis when it comes to doing strip searches and body searches, that's much harder to understand and to measure and to bring about positive change. But I certainly think the goodwill is there and very hopeful that the report will prompt some positive change in that regard as well.

Almudena Garcia

Rebecca Minty is Deputy Inspector with the Office of the ACT Inspector of Correctional Services in Australia. We hope you enjoyed this episode of Perspectives. 

We’ll be back soon with another episode in this series.

And if you have an idea for us to cover on Perspectives, we’d love to hear from you. Contact us via email on apt@apt.ch. Or find us on social media – Facebook, Twitter and LinkedIn

Thanks for listening and we look forward to your company next time.