The criminal justice system worldwide has long been designed with men in mind. From court procedures to prison facilities, the unique circumstances and needs of women in conflict with the law have been largely overlooked. Yet women make up the fastest-growing segment of the prison population globally, and their experiences within the justice system are markedly different from those of men. Reforming criminal justice to better serve women requires addressing international standards, implementing alternatives to incarceration, and dismantling discriminatory laws.
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International frameworks calling for gender-sensitive reform
The global community has recognized the need for criminal justice systems that respond to women’s specific needs. The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, known as the Bangkok Rules, were adopted in December 2010 as the first international instrument providing detailed guidance on addressing the gender-specific needs of women in criminal justice systems.
The Bangkok Rules comprise 70 specific provisions that offer direction to policymakers, legislators, and prison staff on reducing women’s imprisonment and meeting their particular needs when incarceration does occur. These rules cover critical areas including admission procedures, healthcare provisions, humane treatment standards, appropriate search procedures, and considerations for children who accompany their mothers into prison.
Despite this framework existing for over a decade, implementation remains intermittent across countries. Prison systems worldwide continue to be designed primarily for men, from architectural layouts to security protocols and available healthcare services.
Another crucial international instrument is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), adopted in 1979. This treaty sets international standards for eliminating discrimination against women and obligates signatory states to condemn discrimination in all forms, ensure equality under law, and amend or repeal discriminatory laws and practices. CEDAW recognizes that gender-based discrimination stems from stereotypes, stigma, harmful cultural norms, and gender-based violence, all of which impact women’s ability to access justice on an equal basis with men.
However, these international frameworks face a significant implementation gap. Many countries have not incorporated these principles into domestic legislation, and even when they have, enforcement remains weak. The result is that women continue to face systemic discrimination at every stage of the criminal justice process.
Non-custodial alternatives for women offenders
For women, particularly those who are mothers, incarceration carries consequences that extend far beyond the individual. In the United States, 80% of women in prison are mothers, and when they receive custodial sentences, families are often broken up and children placed with relatives or into state care.
Non-custodial sentences offer a more effective and humane approach. Research shows that non-custodial programs are significantly more cost-effective than imprisoning women, with the average annual cost of imprisonment standing at £56,415 compared to a community order cost of £2,800 per year. Beyond the financial savings, these alternatives address the root causes of women’s offending.
Women in prison often have histories of disadvantage that are perpetuated by the trauma of imprisonment, including abuse, mental health problems, and unemployment. Many have experienced domestic violence, sexual abuse, or coercive relationships. For these women, community-based alternatives that provide support services such as substance abuse treatment, mental health care, and economic empowerment programs prove far more effective at preventing reoffending than incarceration.
Types of non-custodial measures
Several alternatives to imprisonment have shown promise for women offenders. Community service orders allow women to remain with their families while fulfilling their sentence obligations. Probation systems with gender-responsive supervision can address underlying issues while maintaining accountability. Some jurisdictions have developed residential community-based programs where pregnant and postpartum women can reside outside prisons with their babies after birth.
For mothers specifically, the Bangkok Rules emphasize alternatives to custody that enable women to stay with their children, noting that outcomes for women given custodial sentences are measurably worse than for those sentenced to community orders. In England and Wales, for instance, 55.8% of women released from prison reoffend within a year, compared to 26% of those commencing a community order.
These alternatives must be designed to accommodate women’s caregiving responsibilities and linked to comprehensive support services. This includes addressing histories of trauma and abuse, abusive relationships, debt and financial hardship, unmet mental health needs, and substance use disorders. When properly implemented, non-custodial measures not only keep families together but also improve rehabilitation outcomes and reduce the risk of intergenerational involvement in the criminal justice system.
Systemic legal reforms needed
Beyond implementing alternatives to incarceration, fundamental legal reforms are necessary to align national laws with human rights standards. This requires abolishing discriminatory laws and practices that disproportionately impact women.
The case of the Armed Forces Special Powers Act
One stark example is India’s Armed Forces Special Powers Act (AFSPA), which grants special powers to armed forces in areas classified as “disturbed areas”. Originally enacted in 1958 and currently in force in parts of India’s northeastern states and Jammu and Kashmir, the act allows security forces to shoot to kill, search houses, destroy property, and arrest individuals without warrants.
Critically, personnel operating under AFSPA cannot be prosecuted or sued without prior sanction from the central government. This provision of legal immunity has led to numerous allegations of human rights violations, with women in conflict zones particularly vulnerable to sexual violence and abuse.
The 2013 Justice Verma Committee report, which examined legal reforms related to violence against women, called for a review of AFSPA, noting that the act legitimizes impunity for systematic or isolated sexual violence during internal security duties. The committee emphasized that women in conflict areas are entitled to the same security and dignity afforded to citizens in other parts of the country. However, despite adopting many of the committee’s recommendations in subsequent legislation, the government did not incorporate reforms related to AFSPA.
In 2004, Manipuri women held a public protest with banners stating “Indian Army Rape Us” to draw attention to sexual violence by armed forces. Yet sexual assault committed against women in conflict zones was not included in the strengthened anti-rape law that came into force in 2013. Legislations such as AFSPA, which provide immunity to armed forces from legal consequences for human rights abuses, have proven to be a major hindrance against eliminating sexual violence in conflict areas in India.
Broader legal reform priorities
AFSPA represents just one example of discriminatory legislation that requires reform. Systemic change demands a comprehensive review of all laws, regulations, and policies that have discriminatory effects on women. This includes laws that criminalize status-based offenses such as prostitution or drug use, which disproportionately affect women who are often driven to these activities by poverty, coercion, or survival needs.
Legal reforms must also ensure that sentencing practices take into account women’s caregiving responsibilities and the best interests of their children. Courts should be required to consider non-custodial alternatives as the preferred option for pregnant women and mothers with dependent children, except in cases of serious violent offenses.
Additionally, reforms need to address procedural barriers women face in accessing justice. This includes ensuring adequate legal aid, eliminating gender bias in judicial decision-making, providing protection from secondary victimization during legal proceedings, and establishing specialized courts or procedures for cases involving gender-based violence.
Training programs for judges, prosecutors, police, and prison staff on gender equality and women’s rights are essential components of reform. Without changing the attitudes and practices of those who implement the law, even well-crafted legislation will fail to achieve its intended impact.
What do you think? How can countries better balance security concerns with the need to protect women’s rights in conflict zones? What specific steps should be prioritized to ensure that non-custodial alternatives are available and effective for women offenders?
References
- https://www.tijbangkokrules.org/en/about-bangkok-rules
- https://www.penalreform.org/issues/women/bangkok-rules/
- https://www.penalreform.org/blog/double-punishment-the-situation-challenges-and-adversities-faced-by-mothers-in-prison-around-the-world/
- https://www.law.cornell.edu/gender-justice/list/cedaw_committee
- https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-9/key-issues/1–gender-based-discrimination-and-women-in-conflict-with-the-law.html
- https://prisonreformtrust.org.uk/wp-content/uploads/old_files/Documents/Women/InternationalGoodPractice.pdf
- https://healthandjusticejournal.biomedcentral.com/articles/10.1186/s40352-021-00153-7
- https://mch.umn.edu/alternatives/
- https://prisonreformtrust.org.uk/wp-content/uploads/2022/03/JCHR-inquiry-on-children-whose-mothers-are-in-prison.pdf
- https://byjus.com/free-ias-prep/understanding-the-armed-forces-special-powers-act/
- https://www.lawaudience.com/women-in-armed-conflicts-in-connection-with-the-armed-forces-special-powers-act-afspa/
- https://www.dailyo.in/politics/indian-army-human-rights-violation-rape-manipur-northeast-kashmir-afspa-16754
- https://pwonlyias.com/current-affairs/women-in-armed-conflict/
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