INTRODUCTION
criminal justice system.8 The Special Rapporteur on
Torture has encapsulated well the particular situation of
sexual minorities in detention:
‘[They] are often considered as a sub-category
of prisoners and detained in worse conditions
of detention than the larger prison population.
The Special Rapporteur has received information
according to which members of sexual minorities
in detention have been subjected to considerable
violence, especially sexual assault and rape,
by fellow inmates and, at times, by prison
guards. Prison guards are also said to fail to take
reasonable measures to abate the risk of violence
by fellow inmates or even to have encouraged
sexual violence, by identifying members of
sexual minorities to fellow inmates for that
express purpose. Prison guards are believed to
use threats of transfer to main detention areas,
where members of sexual minorities would be
at high risk of sexual attack by other inmates.
In particular, transsexual and transgendered
persons, especially male-to-female transsexual
inmates, are said to be at great risk of physical
and sexual abuse by prison guards and fellow
prisoners if placed within the general prison
population in men’s prisons.’9
Owing to their regular visits to places of deprivation
of liberty and subsequent reports to the authorities,
monitoring bodies – including National Preventive
Mechanisms (NPMs)10 – can play a pivotal role in
helping to ensure that LGBTI detainees are protected
and treated on an equal basis with other detainees. In
doing so, monitoring bodies should bear in mind the
principle of ‘do no harm’ and avoid identifying LGBTI
detainees to staff and other inmates against their will and
thereby exposing them to an even higher risk of abuse or
victimisation.
‘States shall […] ensure independent
oversight of all places of detention by bodies
that are adequately mandated and equipped
to identify arrests and detentions that may
be motivated by the sexual orientation or
gender identity of a person.’
Yogyakarta Principle 7 (D), The right to freedom from arbitrary
deprivation of liberty
The specific country context and the particular place of
detention will be relevant in determining an appropriate
strategy for monitors, including whether or not they
should proactively reach out to speak to LGBTI detainees
during a visit.
The aim of this paper is to outline the main risk factors
and situations to which LGBTI persons are exposed
when they are deprived of their liberty in the criminal
justice system, as well as to propose possible avenues of
action that could be taken by monitoring bodies.
8. The paper only considers situations of risks for LGBTI persons in the criminal justice system. However, it is clear that some of the considerations
analysed in this document may be relevant for other places where persons are or may be deprived of their liberty. For abuses towards LGBTI persons
in other settings, see for example: Review of homophobic bullying in educational institutions, UNESCO, 12 March 2012; or people seeking asylum in
immigration centres, in Discrimination on grounds of sexual orientation and gender identity in Europe, Council of Europe, 2d Edition, pp62-69, 2011. It
is also worth mentioning the report of the Special Rapporteur on Torture on torture and ill-treatment in health-care settings, which includes a section
about LGBTI persons, A/HRC/22/53, para76-79, 1 February 2013.
9. See Report of the Special Rapporteur to the UN General Assembly, 3 July 2001, A/56/156, para.23.
10. National Preventive Bodies (NPMs) are independent institutions established under the Optional Protocol to the United Nations Convention against
Torture (OPCAT). Their mandate is to prevent torture and other ill-treatment in places of deprivation of liberty by inter alia regularly visiting places of
detention and addressing recommendations to state authorities.
Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring
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