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III. Obligations Arising from the Human Rights of Particular Groups

2.2 Women, drug-related offences, and dependence on illicit drug economies

Women have the equal right to an adequate standard of living, including the right to food, clothing, and housing. This applies to women involved in the drug trade and dependent on illicit drug economies.

In accordance with this right, States should:

i. Develop specific, viable, and sustainable economic alternatives for women who are particularly at risk of exploitation in the illicit drug economy, including women who use drugs, poor women (whether urban or rural), and women from indigenous and ethnic minority communities.

ii. Take all necessary legislative, administrative, and policy measures to ensure that women’s specific needs and circumstances are taken into account in efforts to address involvement in the drug trade and dependence on illicit drug economies.

iii. Adhere to international standards in all efforts to address and respond to drug-related criminality among women.

iv. Make available gender-specific interventions that aim primarily at diversion from the criminal justice system, and address the underlying factors leading to women coming into contact with the criminal justice system.

With regard to sentencing for drug-related offences, States should:

v. Legislate for and prioritise non-custodial sentences for pregnant women where possible and appropriate.

vi. Ensure that courts have the power to consider mitigating factors in light of women’s caretaking responsibilities, such as lack of criminal history and relative non-severity and nature of the criminal conduct.

vii. Ensure the earliest possible transfer of non-resident foreign-national women prisoners, following the request or informed consent of the woman concerned.

Commentary:

The Committee on the Elimination of Discrimination against Women has expressed concern about the significant increase in the already substantial number of women and girls imprisoned for drug-related offences[719] and in preventive detention on drug-related charges,[720] as well as the limited access to gender-specific health care for these individuals.[721] The Committee has recommended that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[722] It has also recommended that prison reform consider a gender perspective; that greater use of non-custodial sanctions and measures be made; that judicial procedures avoid the overuse of preventive measures; and that adequate health care facilities be provided for women in detention centres.[723]

The Committee on Economic, Social and Cultural Rights has raised concern that predominantly punitive approaches to drug abuse affect women in particular and have ‘contributed to the disproportionate increase in the size of the population deprived of liberty in overcrowded prisons and in poor conditions’.[724]

The Committee against Torture has likewise raised concern about the impact of drug control legislation on the size of the female prison population.[725] Indeed, the Special Rapporteur on violence against women has raised concern that ‘domestic and international anti-drug policies are a leading cause of rising rates of incarceration of women around the world’,[726] observing that women in some jurisdictions are over-represented among low-level, non-violent drug offenders; often have minimal or no previous criminal history; and are generally not principal figures in criminal organisations or activities. Despite this, they have received similar sentences as ‘high level’ drug offenders,[727] or in some cases, serve prison time while more serious offenders enter into plea bargains and avoid imprisonment.[728] The Special Rapporteur has also found that incarceration rates among ethnic minority women are much higher than those among other women.[729] The Special Rapporteur on minority issues has highlighted the large increase in the number of women incarcerated for drug-related crimes, noting in particular the impact on women of African descent, who are highly over-represented in prison populations.[730]

The Special Rapporteur on violence against women has called on States to ensure that sentencing policies reflect an understanding of women’s levels of culpability and control with respect to drug offences and to review laws holding women responsible for association with people involved in drug activities, even where they have little or no knowledge of these activities. The Special Rapporteur has also recommended that gender-sensitive drug treatment programmes be provided in women’s prisons.[731] The UN Working Group on Arbitrary Detention has raised concern that poor and otherwise marginalised women, particularly mothers and housewives, often bear the brunt of harsh anti-drug legislation, facing incarceration for minor drug crimes while those responsible for more serious offences, if caught, can use their financial resources to evade punishment[732] and that women’s lack of access to legal representation and negative stereotypes about women charged with drug-related offenses may limit opportunities to seek plea bargains or reduced sentences.[733] The Working Group also has raised concern that some women incarcerated for drug-related offences have been coerced into drug-related activities by husbands or partners, or for drugs in their home that belong to their partners, and that pregnant woman convicted of drug-related offences cannot benefit from the alternatives to incarceration available to those convicted of other crimes.[734]

The UN Working Group on the Issue of Discrimination against Women in Law and in Practice has raised concern about the drastic rise in the number of women in prison globally and has noted that in some parts of the world, this increase can be attributed mainly to women being convicted of drug-related offences.[735] The Working Group has observed that proportionally, women are more likely than men to be incarcerated for drug-related crimes and that while they tend to be engaged at lower levels of the drug trade, they may receive harsher sentences than those responsible for more serious offences.[736] This disparity is due to the fact that they may have fewer opportunities to negotiate for lesser punishments, given their low status within criminal drug networks and because in some jurisdictions, the work that women do, such as transporting drugs, is subject to harsher punishment than offences committed by people at higher levels of these networks.[737] The Working Group also has raised concern about the disproportionate criminalisation of indigenous and racial minority women among the lower levels of drug networks.[738]

The Working Group on the Issue of Discrimination against Women in Law and in Practice has highlighted that violence is often used as a tool to coerce women to become drug couriers.[739] Women who are engaged in the drug trade or who use drugs may be reluctant to report such violence to law enforcement, for fear that doing so will subject them to further violence or discrimination.[740]

The Committee on the Elimination of Discrimination against Women recommends that States enhance economic opportunities for women at risk of involvement in drug trafficking and take measures to reduce the number of women in conflict with the law for drug-related reasons, including through programmes addressing the causes of criminality.[741] The UN General Assembly Special Session 2016 Outcome Document likewise recommends that States identify and address the conditions that make women vulnerable to exploitation and participation in drug trafficking, including as couriers.[742] Several countries have already enacted legislative and policy reforms to address the harmful consequences of drug control efforts on women, taking into account their age, economic status, caretaking responsibility, and pregnancy,[743] as well as the specific circumstances of poor, foreign women imprisoned as drug couriers.[744]

The Committee on the Elimination of Discrimination against Women and the Special Rapporteur on violence against women have called on States to develop gender-specific alternatives to incarceration, in line with the Bangkok Rules.[745] These rules encourage alternative measures and sanctions that take into account the accused’s history, the circumstances of the offence, and her care responsibilities, and they recommend the use of alternatives to incarceration for non-violent offences and the adoption of gender-specific measures to address the needs of women who use drugs.[746] They also recommend the earliest possible transfer of non-resident foreign-national women prisoners to their home country with their consent, especially if the women have children there, taking advantage of relevant bilateral or multilateral agreements.[747] The Mandela Rules provide further guidance on the treatment of women prisoners.[748]

The Commission on Narcotic Drugs has also encouraged UN Member States to take into account the specific needs and circumstances of women subject to arrest, detention, prosecution, and sentencing for drug-related offences when developing crime prevention and criminal justice measures, drawing on, as appropriate, the Bangkok Rules, the Mandela Rules, and the Tokyo Rules.[749] The UN General Assembly Special Session 2016 Outcome Document likewise encourages consideration of the specific needs and circumstances of women in prison for drug offences, in line with the Bangkok Rules and also referring to the Mandela Rules and Tokyo Rules.[750]

  • 719. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Canada, UN Doc. CEDAW/C/CAN/CO/8-9 (2016), para. 44; Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), para. 32; Committee on the Elimination of Discrimination against Women, Concluding Observations: UK, UN Doc. A/54/38 (1999), para. 312.

  • 720. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 48.

  • 721. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.

  • 722. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.

  • 723. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Chile, UN Doc. CEDAW/C/CHL/CO/7 (2018), para. 49.

  • 724. ^

    Committee on Economic, Social and Cultural Rights, Concluding Observations: Ecuador, UN Doc. E/C.12/ECU/CO/4 (2019), para. 47.

  • 725. ^

    Committee against Torture, Concluding Observations: Argentina, UN Doc. CAT/C/ARG/CO/5-6 (2017), para. 15.

  • 726. ^

    Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 23.

  • 727. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 45.

  • 728. ^

    Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 26.

  • 729. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), para. 55; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), para. 25.

  • 730. ^

    Report of the Special Rapporteur on Minority Issues on Her Mission to Brazil, UN Doc. A/HRC/31/56/Add.1 (2016), para. 59.

  • 731. ^

    Report of the Special Rapporteur on Violence against Women, Rashida Manjoo: Mission to the United States of America, UN Doc. A/HRC/17/26/Add.5 (2011), paras. 55, 115 (e, g).

  • 732. ^

    Report of the Working Group on Arbitrary Detention: Visit to Nicaragua, UN Doc. A/HRC/4/40/Add.3 (2006), para. 86.

  • 733. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 59.

  • 734. ^

    Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), paras. 45, 58; Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 63.

  • 735. ^

    United Nations, ‘Women’s Rights Must Be Central in Drug Policies, Say UN Experts at the Commission on Narcotics in Drugs’, 13 March 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24330&LangID=E.

  • 736. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.

  • 737. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 32.

  • 738. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 62.

  • 739. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 69.

  • 740. ^

    Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice: Women Deprived of Liberty, UN Doc. A/HRC/41/33 (2019), para. 68

  • 741. ^

    Committee on the Elimination of Discrimination against Women, Concluding Observations: Brazil, UN Doc. CEDAW/C/BRA/CO/7 (2012), paras. 32–33; Committee on the Elimination of Discrimination against Women, Concluding Observations: Colombia, UN Doc. CEDAW/C/COL/CO/6 (2007), paras. 20–21.

  • 742. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), annex, para. 4(d).

  • 743. ^

    See, e.g., Argentina, Criminal Procedure Code, art. 495; Paraguay, Criminal Procedure Code, art. 238; Paraguay, Penal Code, art. 43; Colombia, Criminal Procedures Code, art. 314; Venezuela, Organic Criminal Procedures Code; Costa Rica, Law 9161 (2013).

  • 744. ^

    See UK Sentencing Council, ‘Drug Mules: Twelve Case Studies’, March 2011, https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_bulletin.pdf; UK Sentencing Council, ‘Response to Consultation’, 2012, http://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_Offences_Response-web2.pdf.

  • 745. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation No. 33: Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), paras. 48, 51; Rashida Manjoo, Special Rapporteur on Violence against Women: Pathways to, Conditions and Consequences of Incarceration for Women, UN Doc. A/68/340 (2013), paras. 82–83; see also Committee on the Elimination of Discrimination against Women, Concluding Observations: Cambodia, UN Doc. CEDAW/C/KHM/CO/6 (2019), paras. 44–45.

  • 746. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rules 14, 15, 24(2), 30, 41, 57, 58, 61, 62, 64.

  • 747. ^

    UN General Assembly, Resolution 65/229: United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), UN Doc. A/RES/65/22 (2011), rule 53.

  • 748. ^

    UN Commission on Crime Prevention and Criminal Justice, UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), UN Doc. E/CN.15/2015/L.6/Rev.1 (2015), rules 28, 89, 93, 94.

  • 749. ^

    Commission on Narcotic Drugs, Resolution 59/5: Mainstreaming a Gender Perspective in Drug-Related Policies and Programmes (2016).

  • 750. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(n).

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