Dignity: How Women Are Robbed of Their Fundamental Rights Behind Bars

The United States has created the prison as a gendered institution and in turn has set up a series of human rights violations, specifically regarding women. Several factors have contributed to the current decaying status of women in custody. Both the prison culture and the inherent patriarchal structure magnify inequality for female prisoners and guards alike. In addition, current laws in the United States have had devastating but unintended consequences for females in the prison system. When seen through a human rights lens, the United States is failing miserably to protect women against barbaric forms of gender discrimination.

Even before the drafting of the Universal Declaration of human rights, fundamental rights of women as humans have been systemically violated. The first incarcerated women were placed in lock up with men and were subject to physical abuse and sexual assault. In 1828 the death of a female prisoner in a New York prison prompted legislation for separating men from women in prisons (Banks 4). This history has translated into increasing frequency and severity of ill treatment for women in prisons.

Researchers have continually found that the specific needs of female inmates are commonly unmet because women constitute such a small portion of the total prison population (Amnesty International). For female prisoners things such as gender specific counseling, programming, and health care are lacking. Female guards endure inadequate training and scorn. In effect, women brought into prisons are generally expected to submit to the male standards of treatment and experience. The gendered experience of women who are part of correctional institutions often goes unnoticed.

"Being in jail is harder on a woman than a man. [Men] grow up taking showers together, sleeping together...Women are taught to undress in private and be modest. Women have stall showers, men have one big shower room...so think how much harder that would be on a woman. She comes in here and we undress her and tell her to 'bend over, lady,' to look for contraband. We make her bathe in front of everyone," (Burkhart 94).

Little Instances of Patriarchy with Big Consequences

Even though females are the fastest growing segment of the prison population, it was not until 1997 that the Bureau of Prisons created a policy on how to 'deal with' female offenders (Government Accounting Office 46). At long last there was to be recognition of the differing needs of female inmates. However, patriarchy undermined good intentions. Patriarchy is defined by males having supreme authority over social organization. The prison system is the typical patriarchal organization on steroids. In women's prisons male guards have the ability to assert complete dominance over the female inmates. By prison code and by law women are forced to submit to every request and in 2003, seventy percent of federal prison guards were male (Austin 61). This exacerbated form of patriarchy has detrimental consequences given the setting. "In a culture of domination everyone is socialized to accept violence as an acceptable means of social control," main stream values give rise to abhorrent, yet strangely tolerable, conditions for women within the prison system (Hooks 64). This is a problem for female prisoners in particular because of they are more likely to have prior histories of abuse. In 2003, statistics point out that more than sixty percent of women in prisons had been victims of abuse; either physical or mental (Banks 164). Subjecting abused women to extreme authoritarianism does not rehabilitate them, nor does it protect them.

Despite histories of abuse and neglect, incarcerated women are labeled as deviant and dangerous. Interestingly, "deviant behavior in women is always gender deviance, perennially raising questions about women's gender performance and their moral and psychological fitness," (Golden 76). Women are expected to be modest, keep to themselves, and remain silent. These socialized characteristics are expected in prison as well as in society at large. However, being in prison also increases the chances that women are forced to violate all of the aforementioned behaviors. When women do violate these gender norms within the confines of prison, their behavior is corrected with reminders to remain submissive. Inmates often remark that "the guards are forever telling the women to 'grow up,' to 'act like ladies,' to 'behave' and to be 'good girls,' (Shakur 77). Reinforcing gender roles for women also heightens the sense of power felt by male guards - often having disastrous consequences, as will be discussed later.

In addition to importing gender stereotypes, prisons also have disparate allowances for women. Many prisons have inferior health care services as compared to male prisons, including access to counseling. This is especially shocking when the female prison population is need of such services due to increased instances of abuse. Recreational activities and training programs also fall along gender specific lines and have been challenged legally as inadequate compared to the opportunities provided to male prisoners just in sheer numbers (Pollock 157). In cases where women are pursuing litigation they often have a hard time finding the necessary tools in the law libraries. It has been documented that female inmates are less likely than their male counterparts to have the resources needed to follow through with litigation (Pollock 151). This startling fact is of dual importance because not only are women conditioned to be more submissive but with a lack of necessary resources to combat this, the patriarchal prison system is legitimated.

To Help or To Hinder?

Federal laws and legal proceedings - some meant to help - hinder the 'human sovereignty' of women working in the prison system and those confined to it. It is essential to understand a brief historical context of the institutionalization of gender discrimination in the justice system. Some laws were enacted to end gender discrimination while others were created for reasons unrelated to gender biases. Both types of laws have unforeseen consequences for female prison staff and prisoners.

Title VII of the Civil Rights Act of 1964 had the ironic consequence of violating accepted international rules on the treatment of female prisoners. Because the Civil Rights Act created gender equity in all aspects of society, including employment options, females were allowed by law to work in men's prisons. This also eliminated the possibility of barring men from working women's prisons. At the same time, the United Nations Standards on the Minimum Treatment of Prisoners states in article 53 that female inmates should only be "attended and supervised" by female staff (van Wormer 105). This conflict of laws is representative of the confusion within the prison system as a whole of the boundaries of male supervision for female staff. While the Civil Rights Act is an earnest attempt to rectify histories of injustice, it inadvertently created a tangled web of abuse for society's most oppressed.

On a different note, the Prison Litigation Reform Act of 1995 (PLRA) had no such intentions of alleviating injustices. The law was enacted to counteract large numbers of "frivolous" lawsuits being brought against prisons by individuals and advocacy groups. The law has had a far reaching impact on the ability of prisoners to sue for legitimate claims. In regards to women specifically, this law has greatly hindered women in bringing lawsuits regarding sexual abuse. PLRA has three main components. First, prisoners must exhaust all mechanisms of redress within the prison system before they may pursue litigation. In addition attorneys' fees are precluded for lawyers representing prisoners. Lastly, and most striking, prisoners may no longer sue for mental or emotional harm without showing that they have also suffered some sort of physical abuse as well (Golden 65).

Requiring prisoners to exhaust prison mechanisms of redress poses specific problems for women in terms of custodial misconduct. It can mean that sometimes women must report the abuse to the very people who committed the crime or to someone who is in collaboration with the perpetrator. If such grievances are filed, they may not be taken seriously. One female prisoner describes how guards mock the threat of having a complaint (usually presented with a form called a 602) brought against them,

[the corrections officer] will tear it up and throw it in the garbage... or they will say "go ahead and 602 me because I know it won't go nowhere." Most 602s will get thrown in the garbage before you go away. It's a joke to them. (Human Rights Watch 90)

This woman's mental script is an example of how the prison culture can deter women from filing grievances. Women who are reporting misconduct not only face ridicule but can also be subject to retaliation from the perpetrators or from other angry staff. In 1998, Human Rights Watch wrote a report on the retaliation against female prisoners in Michigan. As a result the State of Michigan revised several prison policies including the re-categorization of custodial sexual misconduct from a misdemeanor to a felony (Michigan Department of Corrections 72).

Restricting lawsuits seeking to address emotional or mental harm to those who can show physical harm as well presents major problems in terms of custodial sexual misconduct. Though rape can be physically determined, it is unlikely that prisoners would be able to take the necessary steps to prove their case medically. Many women's prisons send prisoners off grounds to have routine gynecological exams done, so it is unlikely that the prisons would have the appropriate resources needed to provide medical evidence of rape (Pollock 160). Providing physical evidence of other sexual abuses is next to impossible. Groping, harassment, and inappropriate touching during searches are all examples of sexual abuse that leaves no physical marks, but plenty of mental trauma - especially when done repeatedly. PLRA leaves women with no means of ensuring their civil and human rights. The inability to protect oneself from such abuse legitimates the power relationship between the guard/male and the prisoner/female.

State Sanctioned Sex Abuse

In the same way that the Civil Rights Act contributed to human rights violations and abuses, so too have seemingly amicable court rulings affected sex abuse. In 1994 with the decision on Farmer vs. Brennan, the Supreme Court ruled that prison officials are indeed responsible for protecting prisoners from "sexual predation," as part of the eighth amendment to the constitution (Parenti 186). However, it is noted that the precedent set by this ruling has made it very difficult for those who are pursuing litigation for redress of sexual abuse, as they must prove that guards were knowingly ignoring the problem. In addition, because guards are required to protect prisoners from known abuse, the Farmer ruling has essentially set the stage for guards to ignore instances of abuse so as to not be held liable (Stop Prisoner Rape 20).

Sexual abuse in women's prisons is institutionalized. In the United States it is legal for male guards to perform pat searches, strip searches, and even body cavity searches of female prisoners. With all but three states allowing for cross-gender pat downs and the growing percentage of federal prison guards being male, the likelihood of this invasion is increasing. Trauma is a high possibility for women who are subjected to such treatment because over sixty percent of those females entering prison have already been victims of sexual abuse (Human Rights Watch 2). There is no evidence to support the idea that this severe invasion of privacy is in any way ameliorated by the fact that it is state sanctioned. Angela Davis puts this phenomenon into perspective, "Without the uniform, without the power of the state, [the strip search] would be sexual assault," (83).

In many ways, the relationship between female prisoner and the state parallels that of an abusive marriage, with one grand exception - there is no physical possibility of escaping the batterer. Women prisoners, 60 percent of which are coming from histories of abuse, are subjected to further violence within the very institutions which are supposed to be rehabilitating them (Banks 164). Laura Whitehorn describes her experience of fourteen years in prison:

For me, the hardest part was the pat-searches. In the Federal system, it's legal for male guards to pat-search women prisoners. That means they stand behind you and run their hands all over your body. The point is not to locate contraband; it's to reduce you to a completely powerless person. If I had pushed a guard's hands away they would have sent me to the hole for assault. In fact, that did happen once. It reduces you to an object, not worthy of being defended. (Day 43)

The Human Rights Committee of the UN has concluded that "persons being subjected to body searches by State officials or medical personnel acting at the request of the state, should only be examined by persons of the same sex," (Human Rights Watch 54). Whitehorn's explanation of the powerlessness is telling. The acceptance of sexual assault as part of daily life demonstrates again how patriarchy has lead women to become submissive, even to blatant violations of their rights. Female inmates are generally found to 'behave' better than male inmates, causing fewer administrative disturbances (Austin 60). Societal norms and gender roles have contributed to the reckless abandon of male dominance in prison settings. Christian Parenti writes, "In a world where sex is often infused with motifs of domination, it is no wonder that the combination of male keepers and female charges translates into rape on a mass scale," (192).

Unequal and Unfit to Guard

Women who choose to work in correctional facilities face just as much ill treatment as those who are incarcerated. Although laws vary from state to state and prison to prison, women are restricted by formal rules and informal stereotypes and routines. One survey of male correctional staff from 1980 found that seventy-two percent of male staff felt they have had to protect a female officer (Banks 131). Though this study is far outdated, it is likely the same would hold true today. The increased sexualization of females seen today probably increases the likelihood that women officers face patronizing attitudes from male guards. In fact, in 2003 Dana Britton described male officers as always having thoughts of violence "coupled with fear that women, due to their smaller size and lesser physical strength (qualities that are construed as inherently feminine) will be unable to deal with a crisis involving violence should one develop," (99). Male guards contribute to gendered prison roles by thinking and acting in this way. The inherent paternalism exercised by male guards is juxtaposed to research which actually shows that female guards are less likely to be attacked by inmates than are male guards (McMahon 62).

Women face challenges from the very beginning. An important piece of excelling at corrections work is learning how to do it correctly. When training new guards, prison officials are required to remain silent on issues of gender. Often this is translated into a training focused on physical strength and how to deal with violence. Women's strengths are categorically pushed aside and women are taught to act more masculine. Ignoring women's assets is actually damaging to the prison environment. Studies have proven time and again that the presence of female guards "humanizes the atmosphere," (McMahon 61).

Gender neutral training also intensifies feelings of un-preparedness in female guards, especially in male prisons. Female officers are often trained to act male by male staff, for work in a publicly conceived male institution.

I really feel like...they should really have a female officer that comes in there [to training] and tells them what to expect. What you're going to see, what you're going to be exposed to and everything, it's very different that what the males get. You know, I'm talking about fifteen minutes of saying, this is how it's going to be. (Britton 100)

Gender neutral training, by default, produces female guards who are unfit to deal with the gender specific challenges they may face because they are women. This leaves female guards in a position where they are actually less qualified to perform their jobs than males. Male guards and prison officials in charge of training seldom question the implicit masculinity of the corrections role (Zimmer 57). Instead, the roles women play themselves are questioned. In effect, by eliminating talk of gender in training for fear of invoking sexism, prisons are actually creating a situation where female guards are at a disadvantage (Britton 101).

Conclusions: Human Rights, Equality, and Incarceration

Equality is not the same as equal treatment. The push towards equal treatment has actually had harmful consequences in terms of females and prisons. Human rights charters and international treaties recognize the difference between equality and equal treatment. The Convention on the Elimination of Discrimination Against Women (CEDAW) is particularly important for recognizing the inherent differing needs of women.

Small injustices lead to large social consequences. Some things as simple as denying female inmates the resources needed to carry out litigation and enacting the Prison Litigation Reform Act, make the government and the prison systems responsible for violating article eight of the Universal Declaration of Human Rights. Article eight states that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." Women are particularly vulnerable to the power structure in prisons and stripping them of their rights to challenge their positions and actions taken against them is a unique violation of dignity as well.

In addition, the practice of cross-gendered pat downs and strip searches violates the most fundamental of rights; the right to dignity. The International Covenant on Civil and Political Rights acknowledges that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person," (United Nations). Subjecting women to pat searches by male guards, allowing male guards to watch women using the bathroom and allowing male guards to be present when women undress are all irrespective of the dignity and humanity of the female prisoner.

International laws conclude that female prison facilities should not have male attendants or supervisors at all, let alone have males touching the female prisoners. While banning male employment from female correctional facilities would violate the Civil Rights Act, it is difficult to weigh the importance of personal safety with equality of opportunity. The continuation of male employment and systemic patriarchy is indeed a form of repressive tolerance. There is an obvious risk to allowing patriarchy to exist in such extreme forms in prisons throughout the United States as it only enforces female oppression in the larger society.

The Convention on the Elimination of Discrimination Against Women delineates the need for equality and not equal treatment of women. In order to adhere to the principles set forth by CEDAW, the United States must evaluate current policies and laws, such as the Civil Rights Act and adjust them to sufficiently uphold equality. Through several lawsuits and large numbers of courageous women, the problems of sexual abuse in women's prisons are slowly being acknowledged. Prisons are beginning to offer counseling for victims of sexual assault and training programs are being enacted for guards to understand more fully the nuances of preventing sexual assault. Though the United States has yet to ratify CEDAW, these have been positive steps towards the realization of gender equal treatment.

Because women are political minorities, in the United States and abroad, they have less power to realize their different interests. It is essential that the United States recognize that human rights are needed to protect the universal interests of the powerless and that incarcerated women in particular must be protected from violations of human rights. The policies, laws, and practices surrounding women in the prison systems have repeatedly violated human rights treaties and internationally accepted standards of treatment. Continued inaction on the topic of women's rights in prisons violates United Nations Minimum Rules for the Treatment of Prisoners, Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment and Punishment, International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. Furthermore, by not ratifying CEDAW the United States government has essentially admitted that women are viewed as lower status and that protecting women is of less priority than other things, thus implying that females are indeed second tier citizens. It is candidly clear that parity has won out over the differing needs of women. And while this may seem like a good start or a step in the right direction, it is actually just the opposite. Consenting people to believe that the United States is moving quickly down the path towards equality for women hinders the necessary dialogue of justice. As of Friday December 1^st, 2006, one in every thirty-two adults in the United States is locked up, on parole, or on probation (Hunt 1). With such staggering numbers of the population under the control of the government and the fact that women are the largest growing segment of the prison population, it is more important than ever to uphold human rights specifically as they relate to women. Policies such as gender neutral training, the Prison Litigation Reform Act, and allowing men to work in the housing units of female prisons must be reevaluated in terms of the differing needs of women. In the larger scheme of things "what happens to girls and women in courts and prisons connects with what happens in the playground, in the family, and at work," (Girshick 25). The problems of women in prisons are representative of the hegemonic patriarchy faced everyday. In order to remedy the prison system and its violations against women there must first be radical societal change.

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