When the mother’s punishment is also that of her children11/04/2018 - Julia Dias
The ideal of motherhood and childhood as pictured in the social imaginary and the role of care that women play in societies does not match with the reality in prisons. However, that is the situation of thousands of women and children in the world and in South America. Motherhood, pregnancy and childhood behind bars are situations that have various consequences on the physical and mental health of these women and their children, who are in extreme vulnerability.
In Brazil, pregnant women and mothers of children up to twelve years old should no longer be incarcerated while awaiting trial until the last instance. This is what the Supreme Court has ruled in a groundbreaking collective habeas corpus. The decision was based on evidences brought by a study of Fiocruz researcher, Maria do Carmo Leal, who interviewed 241 mothers who gave birth in jail.
The situation revealed is dramatic. Although they are a minority in prisons, women find themselves in a more precarious situation, facing an institution that has not been designed for them. Since 2000, the female prison population worldwide has grown at a much faster rate than the male population. While the growth among men was 18%, the female rate is 50%.
In Brazil, there are more than 37 thousand women in prison, about 6.4% of the incarcerated population. In Colombia, they are more than 9 thousand. In Ecuador, almost 3 thousand. Most of them have children. In Brazil, 80% are mothers and 50% have more than five children. In Colombia, 90% of the incarcerated women of the main urban centers are mothers.
In general, women prisoners receive fewer visits. Even at the moment of the birth, their right to have a family member as a companion is not respected, as revealed by Leal’s investigation. Only 11% of the families were notified of the birth. In one third of the cases, they were handcuffed during hospitalization, 8% of them even at the time of birth.
The problem of women and mothers in prison is discussed worldwide and is governed by the United Nations Bangkok Rules, approved in 2010. This framework of recommendations aims to respect the rights and health of female prisoners and their children. Among the guidelines of the legislation on the subject are the principle in which no one must pay for the crimes of another person, and the best interest of the child, as determined in the Convention on the Rights of the Child. However, these principles are not respected in the case of small children who have their mothers imprisoned. In those situations, the penalty extends to the whole family.
International legal frameworks
- Bangkok Rules
- Convention on the Rights of the Child (CRC)
- Convention on the Elimination of Discrimination against Women (CEDAW)
- Standard Minimum Rules for the Treatment of Prisoners (SMR)
- Universal Declaration of Human Rights
This discussion is also present in other countries of South America. The decision on what to do with the children of imprisoned mothers is not simple. In Colombia and Ecuador, women deprived of liberty can remain with their children in prison until they reach 3 years old. However, in Colombia, as stipulated in the regulations of most penitentiary centers, when separated, they can only see each other once a month. In Brazil, they spend the last months of pregnancy and the first months of the child life alone in special prisons in urban centers. When they are from smaller cities, they are moved and receive almost no visitors. After the first year, the child either moves in with a relative or go to shelters.
If leaving the children apart from the mothers, who are often the heads of families, does not seem an adequate solution, leaving them behind bars is also not what is recommended for a healthy childhood. In Bolivia, there are children living with their mothers or fathers behind bars until adolescence. As in other countries, they have the permission to leave, but they must return to jail at night. 252 children, 160 of them under 14 years and 92 adolescents, are in this situation, according to Public Defense data of 2012. The Bolivian Ministry of Government considers this situation an “inexplicable permissiveness”, once it is illegal in the country to have children over six years old living in jail.
This is not a healthy environment for a child. There is a lack of adequate spaces, nurseries, pediatricians, sunlight, green spaces and there are often problems of overcrowding and of coexistence with other prisoners. In most prisons, pregnant and lactating women and their children do not have adequate assistance, space or food. In Brazil, even toys are not allowed for children who are with their mothers in cells, says Leal.
In any case, the consequences for the health of mothers and children are tremendous. For instance, they suffer more with mental health problems, such as depression and hyperactivity, aggressive behavior, among others. For some mothers, children can be a stimulus to seek recovery and they might give perspective to their future. Yet, the figures of postpartum depression are much higher than in women in freedom. The rate of vertical transmission of diseases is also higher, with a 4.6% rate for syphilis in Brazil, for example, an easily curable disease.
Because of their profiles, marked by poverty and lack of education, arrested mainly for crimes considered less serious, non-violent and of low social relevance, such as micro-trafficking, robbery and theft, they do not represent a significant danger to society and could serve their sentence in freedom, according to the UNODC. In addition, most of them are still waiting for trial and do not have a court ruling. That is the case of 70% of women incarcerated in Bolivia, for example.
There are already laws and jurisprudence so that these cases can be treated with alternative penalties, such as house arrest in most of the countries of the region. At least in theory. “It is time these laws are enforced”, says Leal.
- Bolivia: Situación de los Derechos de las Mujeres Privadas de Libertad – Defensoría de Pueblo
- El dilema de la madre entre rejas: delincuente y mala madre, una doble culpa – María Mauersberge
- Nascer nas prisões – Maria do Carmo Leal
- Mujeres Presas – La situación de las mujeres embarazadas o con hijos/as menores de edad – Limitaciones al encarcelamiento – Unicef y Ministerio Público de la Defensa