IMPUNITY WATCH LAW JOURNAL

Syracuse University College of Law

Vol. 3 CONTENTS Articles Reparations for Genocide: Adequate and Desired? Tamara Alfred Shackled During Labor: How the Law Punishes Undocumented Pregnant Women Jamile I. Moraes For Those Without a Voice: An International Plan to Reduce Child Marriage Ryan Rambudhan Notes Bringing the Problems of Supermaximum Confinement Out of Isolation: Using Recidivism to Change Public Opinion Stefanie Gruber The Heart of Ugandas Anti-Homosexuality Bill Has American Blood Running Through It Emily J. Krouse Realizing the Right to Self: Resolving the Limited Scope of the Legal System in a Multi-Sexed and Multi-Gendered World Brianne Yantz 1 24 49 Spring 2013

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Cite as: [Author], [Article], 3 IMPUNITY WATCH L.J. [Page #] (2013).

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IMPUNITY WATCH L.J. Reparations for Genocide: Adequate and Desired? By Tamara Alfred* INTRODUCTION

Spring 2013

It is a basis of law that those who violate the law should have to pay for their violations. Whether in the criminal sense, meaning time in a prison, or in the civil sense, paying damages to the wronged party, the goal is to seek some justice for the victim. In international law, this principle is often referred to as reparations. However, when it comes to the crime of genocide or crimes against humanity, reparations are not easily defined. While [t]he term reparations usually refers to the measures that a state must take after it violates a rule of international law[, it] can also apply more generally to remedying all wrongs, whether committed by a state and its agents or by private parties.1 In this sense, reparations refers to the moral imperative to mend what has been broken.2 Reparations can contribute to the individual and societal aims of rehabilitation, reconciliation, consolidation of democracy and restoration of law[, as well as] help overcome traditional prejudices that have marginalized

Tamara Alfred is a 2013 J.D. Candidate at Syracuse University College of Law. She received her B.A. in Communications, Law, Economics, and Government from American University in Washington, D.C. This article was originally written as part of the Law of Genocide class taught by Professor Menachem Rosensaft, Syracuse University College of Law, Spring 2012.
1

Dinah L. Shelton, Reparations, ENOTES (2005), www.enotes.com/reparationsreference/reparations [hereinafter Shelton, Reparations].

2

Reparations for Victims of Genocide, Crimes Against Humanity and War Crimes: Systems in Place and Systems in the Making, REDRESS, 2 (Mar. 1-2, 2007), www.redress.org/downloads/conferences/CNRC Background Paper 1-2 March 07.pdf [hereinafter Reparations for Victims of Genocide].

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certain sectors of society and contributed to the crimes perpetrated against them.3 importantly, reparations are a legal right owed to genocide survivors.4

The obligation to provide reparations for international wrongful acts is a recognized principle of international law.5 This has been reflected in a vast number of international treaties, as well as the decisions of both national and international courts.6 Additionally, in December 2005, it was confirmed by the United Nations (UN) with the adoption of the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Gross Violation of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines).7 The adoption of the Basic Principles and Guidelines details the types of reparations owed the victims, and states that when a victim dies or becomes incapacitated, their families or dependents should be financially compensated.8 Reparations for genocide have been traditionally conceived in the context of State responsibility for injurious international wrongs, particularly at the end of a conflict.9 However, reparations for genocide will generally also require remedial action by the individual perpetrator of the crime.10

3 4 5 6 7 8 9 10

Reparations for Victims of Genocide, supra note 2, at 2. Id. See id. at 1. See id. See id. at 1-2. Shelton, Reparations, supra note 1. Reparations for Victims of Genocide, supra note 2, at 2. Shelton, Reparations, supra note 1.

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Regardless of who is making reparations, the essential goal, according to the Permanent Court of International Justices 1928 holding in Chorzow Factory, is to, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in. [sic] all probability, have existed if that act had not been committed.11 This is extremely difficult with respect to the crime of genocide because [i]n effect, genocide and crimes against humanity cause harm, first and foremost, to immaterial and unique interests, such as dignity, personal integrity, and liberty[, and t]hese cannot be restored to their original status once they are impaired.12 As such, by its nature, genocide means that it is virtually impossible to wipe out all the consequences of the illegal act or to repair the harm that has been done. Reparations for genocide, then, are more likely to be aimed at punishing and reconciling the genocide, deterring future wrongdoing, and inducing positive future behavior.13 Accordingly, such reparations would be largely symbolic.14 It is important that the measures taken adequately respond to the injury, as well as address the rights, needs, and priorities of the beneficiaries and survivors.15 Common measures of reparation include compensation and restitution. Compensation provides something

equivalent in value to that which has been lost, while restitution restores precisely that which has

11 12

Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, 125 (Sept. 13).

Pietro Sardaro & Paul Lemmens, Restitution, ENOTES (2005), www.enotes.com/restitutionreference/restitution.

13 14 15

Shelton, Reparations, supra note 1. Reparations for Victims of Genocide, supra note 2, at 3. Id.

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been taken.16 Although restitution is the preferred form of reparations, money is [usually] awarded as a substitute when [a] victim cannot be restored to their previous position.17 Thus, restitution is typically limited to cases of stolen property, or other cases where the exact thing taken can be returned.18 However, [f[or personal injury and death[,] no restoration is possible, [as l]ife cannot be recovered . . . [i]n such cases, money becomes a substitute for the pre-injury status.19 As a result, the question that presents itself is whether there are in fact any adequate reparations for the crime of genocide. On the basis of the traditional law of state responsibility, human rights law, and international criminal law, reparations claims may be presented in one of the following ways: (1) The state of nationality of the victims could bring a claim on their behalf against the state responsible for the wrong; (2) the victims may be able to bring a claim against the responsible state in an international human rights tribunal; (3) victims may bring claims against the responsible state in national judicial or administrative bodies; (4) victims may present their claims against the individual perpetrators in an international criminal court; and (5) the victims may make a claim against the individual perpetrators in a national civil or criminal proceeding.20 Here, within the broad spectrum of criminal and civil liability, the aim is to examine what the available reparations are and have been, and whether these are actually adequate measures to respond to the injuries as well as address the rights, needs, and priorities of the beneficiaries and
16

See DINAH L. SHELTON, Reparations for Victims of International Crimes, in INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT 137, 139-40 (Dinah Shelton ed., 2000) [hereinafter SHELTON, Victims of International Crimes].
17 18 19 20

Id. at 143. Id. Id. Shelton, Reparations, supra note 1. 4

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survivors. For the sake of this paper, the International Criminal Court (ICC), in addition to other human rights tribunals, will be treated as the leading examples of criminal liability. Examples of civil reparations will be described through the examination of regular tort actions brought in a nations traditional legal system. I. CRIMINAL REPARATIONS Most of the experience with reparations in international law concerns postwar agreements to settle claims, whereby one state may pay large amounts of compensation to another state.21 For example, under the terms of the Dayton Peace Agreement, addressing the genocide and crimes committed in Bosnia and Herzegovina, claimants had the right to choose between a return of the property they lost or to accept just compensation in lieu of return.22 Similarly, at the end of 1945, delegates at the Paris Reparations Conference accepted the principle that individual and group compensation should be paid to the victims of Nazi persecution in need of rehabilitation and not in a position to secure assistance from governments in receipt of reparations from Germany.23 In this case, restitution was given for identifiable property that had been taken during the occupation, while indemnification was paid for objects that had also been seized, but could not possibly be restored to their rightful owners.24 Post-war agreements, however, are not the only instance in which reparations are available to victims of genocide. Reparations are also available through the various international human rights courts created to address gross human rights violations. These courts often classify
21 22 23 24

Shelton, Reparations, supra note 1. Sardaro & Lemmens, supra note 12. Shelton, Reparations, supra note 1. See id.

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monetary compensation as either pecuniary losses, non-pecuniary damages, or costs and expenses related to bringing a claim before the tribunal.25 For example, [t]he European Court of Human Rights renders judgments in which it may afford just satisfaction to the injured party, including compensation for both monetary losses and nonmonetary (moral) damages. 26 Additionally, the Inter-American Court of Human Rights has held that both pecuniary and nonpecuniary claims survive and automatically pass to the victims heirs or successors.27 Courts of this type will examine a large variety of injuries and factors in determining the amount of compensation a victim is owed: Intangible injuries such as physical pain and suffering have long been recognized as legitimate elements of damages. Mental anguish independent of physical injury is also now recognized as an element of recovery, including humiliation, loss of enjoyment of life and other non-pecuniary losses. Loss of consortium when one is deprived of a spouse may include loss of love and companionship as well as services in the home, society, and sexual relations. The impairment of any of these gives a right to damages.28 In addition to these international human rights courts, criminal tribunals have often been established following conflicts. These tribunals are another place where victims of the conflict may be able to receive reparations. Following the conclusion of the Holocaust, the first defined and most well known court, the International Criminal Tribunal at Nuremberg, was established to try those German officials who played a part in the so-called Final Solution. At the beginning of the 1990s, atrocities committed in the former Yugoslavia and Rwanda prompted the UN Security Council to establish two ad hoc international criminal
25 26 27 28

SHELTON, Victims of International Crimes, supra note 16, at 143. Shelton, Reparations, supra note 1. SHELTON, Victims of International Crimes, supra note 16, at 141-42. Id. at 143.

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jurisdictions in those respective regions.29 The resolution establishing the International Criminal Tribunal for Rwanda (ICTR) promises to ensure that violations will be effectively redressed, but the statute of the ICTR limits redress to restitution as a punishment additional to, but not as a substitute for, imprisonment.30 Neither the statute of the ICTR nor the statute for the

International Criminal Tribunal for the former Yugoslavia (ICTY) empowers the courts to award compensation or measures of rehabilitation to victims of the crimes being prosecuted, but both statutes foresee the possibility of compensation to victims by national courts in national proceedings.31 In all of these forums where reparations are possible, the definition of victim and who can receive the reparations appears to be consistent. Obviously, a victim is the person who directly suffered the effects of the human rights violation. However, as is the nature of genocide, the victims are almost always deceased and, therefore, cannot bring their own claims. In

response to this issue, the various international criminal courts and tribunals have expanded the definition of victim. The former European Commission on Human Rights defined the term victim as including not only the direct victim or victims of the alleged violation, but also any person who would indirectly suffer prejudice as a result of such violation or who would have a valid personal interest in securing the cessation of such violation.32

29

See Charles Garraway, Courts and Tribunals, CRIMES OF WAR, http://www.crimesofwar.org/a-z-guide/courts-and-tribunals/ (last visited Feb. 15, 2013).
30 31 32

Shelton, Reparations, supra note 1. Id. SHELTON, Victims of International Crimes, supra note 16, at 141.

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Most notably, the International Criminal Court (ICC) has specified that [c]onsistent with the definition of victim in Rule 85 of the Rules of Procedure and Evidence, victim shall include immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.33 The ICC is perhaps the most widely recognized and notable place for victims of human rights violations to receive reparations. Prior to the establishment of the ICC through the Rome Statute, the aim of international criminal justice was essentially to help restore international peace and security by punishing those responsible for heinous crimes during war-time (retributive justice). The impartial trial and punishment of some criminals (and not always the most culpable ones) by itself was considered vindication. Justice was done in the name of the abstract notion of humanity but not necessarily in that of the victims.34 Now, however, the Rome Statute allows for the first time victims of crimes and their families to access the ICC to express their views and concerns, and to make claims for reparations for the wrongs suffered.35 Article 75 of the Rome Statute authorizes the Court to establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional

33

Establishing Effective Reparation Procedures and Principles for the International Criminal Court, VICTIMS RTS. WORKING GROUP, 8 (Sept. 2011), http://www.vrwg.org/VRWG_DOC/2011_Sept_VRWG_ReparationPaper.pdf [hereinafter Establishing Effective Reparation Procedures].
34

Linda M. Keller, Seeking Justice at the International Criminal Court: Victims Reparations, 29 T. JEFFERSON L. REV. 189, 190-91 (2007), available at http://b6.b7.85ae.static.theplanet.com/files/faculty/Keller_reparations_ICC_final.pdf.
35

Id. at 189.

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circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.36 While Article 75 does not give an exhaustive list of the ways through which victims of crimes may be compensated, there are limitations on the ICCs ability to provide reparations. For example, although the Rome Statute allows for reparations, such reparations are to be made by convicted criminals only. Furthermore, the state where the violations took place is not involved in any way, and cannot assist with the furnishing of reparations. [P]lacing the burden of reparations on the few who are convicted before a criminal court is difficult conceptually, given the nature of the crimes which require the extensive organization and planning of governments or other entities. Certain crucial reparation measures will be difficult to implement using the sole lens of individual responsibility. For example, most measures of satisfaction and guarantees of non-repetition would require State involvement. This is also the case for other symbolic measures such as public acts and civic rituals designed to restore social ties between citizens. The reparations regime of the ICC can therefore not operate in a vacuum nor can its measures ever hope to fully satisfy victims rights to reparations.37 And, in fact, [t]he ICC reparation process does not exist in a vacuum. It exists amidst other avenues that may or may not be open to victims under national and international law. Indeed, since the Rome Statute is limited to only providing reparation in relation to persons convicted by the ICC and not against states, the ICC will not be able to provide full reparation to victims in all cases. 38 To date, the ICC has only ever convicted one person, former rebel leader in the Democratic Republic of Congo Thomas Lubanga. However, given the very slow nature of the court, it could take years, even decades, for victims to receive reparations as a result of this conviction. The current restrictive prosecution strategy makes it even more essential that the ICC reparation
36 37 38

SHELTON, Victims of International Crimes, supra note 16, at 137. Reparations for Victims of Genocide, supra note 2, at 5-6. Establishing Effective Reparation Procedures, supra note 33, at 3-4.

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process acts as a catalyst for states to fulfill their obligations to ensure that all victims of genocide, crimes against humanity and war crimes are provided full and effective reparation.39 In some ways, the ICC and the Rome Statute do at least provide an example for other legal systems to follow. Article 79 of the Rome Statute provides for the establishment of a trust fund.40 This is often the preferred method when dealing with reparations for genocide because the sheer number of both victims and perpetrators may be very large. A UN Victims of Crime report recommended that if it is uncertain whether the budgetary means of the State will be sufficient to cover an unknown number of claimants, a fund should be established to limit the financial burden. A basic amount should be paid out immediately and the difference paid later, the final amount payable to each claimant being known only at the time when it is clear how many claimants filed claims and the amounts distributable out of the fund.41 While the UN report may have been aimed primarily at state civil actions, this same principle has also been used for criminal reparations. The chief prosecutor for the ICTY and the ICTR used the fund system as a deterrent measure when he asked the UN Security Council to form a trust fund out of portions of Sudans oil revenues to compensate the victims, provide humanitarian relief, and rebuild destroyed villages in the Darfur region.42

39 40

Establishing Effective Reparation Procedures, supra note 33, at 4.

See Thordis Ingadottir, The Trust Fund of the ICC, in INTERNATIONAL CRIMES, PEACE, AND HUMAN RIGHTS: THE ROLE OF THE INTERNATIONAL CRIMINAL COURT 149, 149 (Dinah Shelton ed., 2000).
41 42

SHELTON, Victims of International Crimes, supra note 16, at 144.

Hannibal Travis, Genocide in Sudan: The Role of Oil Exploration and the Entitlement of the Victims to Reparations, 25 ARIZ. J. INTL & COMP. L. 1, 60 (2008).

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The precedent for such a fund exists in the UN Compensation Commission (UNCC), which was established after the 1990 conflict between Iraq and Kuwait.43 There, the UN required Iraq to compensate persons affected by the war by paying out over $21.8 billion to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens through the UNCC.44 The Commission, however, is limited to awarding monetary compensation, and cannot impose restitution or punitive damages.45 Under their scheme, compensation may be awarded for mental pain and anguish to individuals for dismemberment, disfigurement, loss of use of a body part, being taken hostage, being illegally detained, having a well-founded fear for ones life, and being deprived of all economic resources such as to threaten ones survival.46 This trust fund approach to paying out compensation is also common in civil systems, particularly in the United States. Civil systems have become the primary method for victims of gross human rights violations to seek reparations. Not all of the criminal tribunals are authorized to award compensation, but they do all allow for compensation to victims by national courts in national proceedings.47 Additionally, because genocide continues despite criminal indictments and convictions, it may be advisable for the international community to look more towards economic disincentives rather than criminal sanctions.48

43 44 45 46 47 48

Travis, supra note 42, at 61. Id. SHELTON, Victims of International Crimes, supra note 16, at 144. Id. at 144-45. See Shelton, Reparations, supra note 1. See Travis, supra note 42, at 54.

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While the concept of using civil systems to receive reparations for genocide is still relatively young, international law is clear that reparations must be made.49 The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power provides that [a]buse of power that is not criminal under national law but that violates internationally recognized norms relating to human rights should be sanctioned and remedies provided, including restitution and/or compensation, and all necessary material, medical, psychological, and social assistance and support.50 Under this reasoning, reparations for civil wrongs are an internationally recognized right that all states should protect. 51 As such, states are urged to work towards compliance with these norms.52 International common law, U.S. common law, and U.S. statutory law all provide methods for urging compliance. Under the doctrine of universal jurisdiction, a nation with the capacity to do so may sanction violations of the law of nations and crimes against humanity, even if the underlying events occurred outside the sanctioning state.53 Additionally, U.S. statutory law provides for a cause of action for a violation of the law of nations in the 1789 Alien Tort Claims Act. 54 The U.S. Supreme Court has held that U.S. courts should recognize a private

49 50 51

See Travis, supra note 42, at 54. SHELTON, Victims of International Crimes, supra note 16, at 139.

See John F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 HARV. HUM. RTS. J. 1, 32 (1999).
52 53 54

See id. Travis, supra note 42, at 67. See id. at 64-65.

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cause of action for genocide under this Act as long as the prohibition against genocide is an international law norm with specific content and wide acceptance among civilized nations. 55 Additionally, the Torture Victim Protection Act of 1991 acknowledges that both torture [and] extrajudicial killing [give] rise to a private right of action for violation of U.S. law.56 Most importantly, a state bears responsibility if it had a hand in the criminal act. Many international human rights instruments provide the first word on this issue, requiring that individuals be made whole for violations of their right by their governments. For example, the International Covenant on Civil and Political Rights . . . states that any person whose rights are violated shall have an effective remedy . . . .57 The African Charter on Human and Peoples Rights has a similar requirement, which states, peoples despoiled of their wealth and natural resources shall have the right to the lawful recovery of [their] property as well as to an adequate compensation.58 The international courts have also spoken on the issue. As the International Court of

Justice stated, it is well established in general international law that a State which bears responsibility for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act.59 Additionally, [s]uch reparations must compensate for all

55 56 57

Travis, supra note 42, at 69. Id.

Id. at 55 (quoting International Covenant on Civil and Political Rights art. 2(3), Dec. 16, 1966, 999 U.N.T.S. 171, 174).
58

Id. (quoting African (Banjul) Charter on Human and Peoples Rights art. 21, June 27, 1981, 21 I.L.M. 58 (1982)).
59

Id. at 54 (quoting Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, 259 (Dec. 2005)).

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damage caused to all natural or legal persons concerned and, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.60 In the context of genocide, the international convention makes criminal conspiracy to commit genocide, as well as complicity in genocide.61 This extends the liability for genocide to corporations acting in concert with a government when carrying out a genocide or other crimes.62 [W]hile criminal prosecutions may only implicate a tiny percentage of a regimes former officials, reparations may be levied on the state that organizes genocide and on corporations that knowingly provide practical assistance to its crimes.63 The United States recognized this when the Second Circuit held in Khulumani v. Barclay National Bank Ltd. that oil corporations that aid and abet violations of customary international law (CIL) may be sued for damages under U.S. law, provided that they willingly supplied the means for the government to violate CIL norms.64 These CIL norms are often referred to as jus cogens norms

commanding norms of international law, such as aggression, genocide, crimes against humanity, and war crimes that preempt any other inconsistent law.65 As a result, when coupled with the statutory laws giving a cause of action for these crimes, United States federal courts have

60

Travis, supra note 42, at 54-55 (quoting Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, 125 (Sept. 13)).
61 62 63 64 65

See id. at 70. See id. Id. at 4. See Khulumani v. Barclay Natl Bank Ltd., 504 F.3d 254, 260 (2d Cir. 2007). See Murphy, supra note 51, at 6.

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become the principal forum for victims seeking reparations for the Holocaust, the Yugoslav civil wars, and other mass killings.66 What has been referred to as the Holocaust restitution movement in the United States began largely with the consolidated 1997 case In re Holocaust Victim Assets Litigation. The case involved three accusations by survivors and/or their beneficiaries against Swiss banks: (1) [T]hat the banks failed to return moneys deposited with them by Jews seeking a safe haven for their assets in the face of persecution by the Nazis, known the dormant account claims; (2) that the banks traded in assets looted from the Jews by the Nazis, known as the looted assets claims; and (3) that the banks traded in assets made by slave labor which were then sold, and the sale proceeds deposited with the banks, known as the slave labor claims.67 Ultimately, under much political pressure, both nationally and internationally, the case settled for $1.25 billion.68 In addition to addressing the claims made in the lawsuits, the settlement included a refugee class, which consisted of individuals who sought entry into Switzerland to escape the Nazis and were either denied entry, or, after gaining entry, were sent back or mistreated by the Swiss.69 However, there are problems with using the civil system for supplying victims with a remedy for human rights violations. In the United States, the Marcos litigation exemplifies the problems associated with efforts to afford all victims some remedy . . . Rather than hold separate hearings on each of the 10,059 claims, the U.S. District Court allowed the use of a statistical sample of the claims in determining compensatory damages. Ultimately, one hundred and
66 67

See Travis, supra note 42, at 64-65.

Michael J. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 BERKELEY J. INTL L. 11, 14 (2002).
68 69

See id. at 15. Id. at 15-16.

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thirty-seven claimants were randomly sampled, including torture victims, families of those summarily executed, and those who disappeared, and then deposed. Ultimately, based on the sample, an average of $52,719 per valid torture claim, $128,515 per valid summary execution claim, and $107,853 per valid disappearance claim was awarded. The amounts fluctuated based on the amount of torture utilized and the type, as well as the victims age and actual losses.70 Ultimately, though, liability for the injurious act(s) rests with the State.71 It is

important to note that states have an implicit duty to remedy the wrongs they themselves committed: Human rights violations committed by State officials are qualitatively different from private injury because of the motives and nature of the conduct as well as the identity of the wrongdoer. Individuals expect protection from the State; one of its fundamental purposes is to secure the safety and well-being of those within its power. For the government itself to cause harm adds an element of outrage generally not present in purely private wrongdoing.72 The Inter-American Court of Human Rights recognized this impact in its Loayza Tomayo v. Peru decision, which held the . . . conditions of the life of a person are altered by unfairly and arbitrarily imposed official actions taken in violation of existing norms and of the trust that is placed in the hands of public power.
73

Given this, there is a strong argument that [t]he

remedies afforded should reflect the breach of trust involved because, in general, the more

70 71 72 73

See SHELTON, Victims of International Crimes, supra note 16, at 145. Reparations for Victims of Genocide, supra note 2, at 5. SHELTON, Victims of International Crimes, supra note 16, at 140.

Id. (quoting Loayza Tamayo v. Peru, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 42 (Nov. 27, 1998)).

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outrageous the wrongdoers conduct, the more outraged and distressed the victim will be and the greater the harm that will be suffered.74 In some instances, this call for greater state responsibility has led to states aiding the funding and implementation of both individual and collective reparations programs.75 In fact, [s]tates that have recognized their responsibilities to repair past abuses have set aside lump sums for distribution to victims, identified portions of annual State budgets, and introduced special taxes to collect funds.76 For example, through its reparation program, West Germany began paying out monthly payments for the remaining lifetime of individual Holocaust survivors around the world. These payments still continue today.77 By 1998, Germany had paid out approximately $60 billion in reparations to Holocaust victims.78 Still, other governments have not been as willing to continue contributing to reparations programs, and reparations [have fallen] below other demands on the States budget, such as general societal development.79 This exact problem is what brings up the final question. III. SHOULD THERE BE MORE OPTIONS AND ARE THEY EVEN WANTED? As addressed, there are options for reparations for victims of genocide. However, they seem to be extremely limited. Since restitution is almost always unavailable due to the nature of genocide, more often than not, all that is available to those who do survive or victims
74 75 76 77 78 79

SHELTON, Victims of International Crimes, supra note 16, at 140. See Reparations for Victims of Genocide, supra note 2, at 5. Id. See Bazyler, supra note 67, at 38. See Travis, supra note 42, at 57. Reparations for Victims of Genocide, supra note 2, at 5.

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beneficiaries is compensation. Furthermore, given the horrific and scarring nature of genocide, the compensation is unlikely to actually wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed,80 as has been the stated goal of reparations. As a result, the reparations end up being more symbolic, and often times, more political than anything. Clearly the reparations are not acting as a deterrent. If criminal sanctions could deter government officials from implementing genocide as a solution to their nations political and economic problems, the trial and sentencing of several heads of state and high officials over the past century should already have achieved this goal.81 And yet, [t]he persistence of genocide despite successful criminal convictions and private justice against architects of genocide . . . indicates that the international community may need to pay more attention to collective, rather than individual, responsibility for genocide, and to economic, rather than criminal, disincentives to genocide.82 Perhaps the problem is that, as evidenced by the Nuremberg trials, the wrong people are ultimately taking the fall for the crimes committed. Regardless, utilizing economic disincentives to genocide does not seem to be an acceptable measure of reparations either. In 1998, the Working Group on Involuntary or Enforced Disappearances issued a General Comment to Article 19 of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance. The Working Group elaborated on the obligation to provide adequate compensation.83 Compensation was deemed to be adequate

80 81 82 83

Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, 125 (Sept. 13). Travis, supra note 42, at 49. Id. at 54. SHELTON, Victims of International Crimes, supra note 16, at 138. 18

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when it is proportionate to the gravity of the human rights violation (e.g., the period of disappearance, the conditions of detention, etc.) and to the suffering of the victim and the family.84 It is difficult to look at the human rights violations here genocide and say that compensation is ever going to be adequate based on the Working Groups definition. Is money actually a sufficient replacement for a beloved family member? While [t]he Holocaust

litigation in the United States has already demonstrated the possibility that legal institutions could compensate victims and contribute to the survival of destitute survivors of genocide,85 it is still difficult to accept that this is adequate or proportionate to the gravity of the crime. As such, there has long been criticism of this approach to reparations, and many have questioned if the taking of moneys by survivors demeans the memory of the deceased victims.86 In December 1998, in the midst of the primary Holocaust litigation against the Swiss banks, Abraham Foxman, the head of the Anti-Defamation League and a Holocaust survivor, was interviewed for a Wall Street Journal article, where he decried that this struggle for restitution from the private defendants makes money the last sound bite of the Holocaust. According to Foxman, this is a desecration of the victims, a perversion of why the Nazis had a Final Solution, and too high a price to pay for justice we can never achieve.87

84 85 86 87

SHELTON, Victims of International Crimes, supra note 16, at 138. Travis, supra note 42, at 60. See Bazyler, supra note 67, at 37-38.

Id. at 39 (quoting Abraham H. Foxman, The Dangers of Holocaust Restitution, WALL STREET J., Dec. 4, 1998, at A18.).

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That same year Charles Krauthammer was quoted in The Los Angeles Times saying it should be beneath the dignity of the Jewish people to accept [money], let alone to seek it.88 Later, in 2000, Gabriel Schoenfeld echoed these sentiments, but also took a different approach. Schoenfeld, while not denying the legitimacy of seeking Holocaust restitution payments from the European wrongdoers, expressed concern about how the movement was being conducted. He accused the Jewish community leaders involved in the restitution efforts of ignoring the concerns of individual survivors, frequently lacking adherence to historical truth in making their accusations against the wrongdoers, and failing to see the impact that the movement is having on other vital Jewish interests, primarily the security of the State of Israel.89 On the other hand, forcing a wrongdoer to pay up is a form of retributive justice. Stuart Eizenstat, a U.S. official involved in the Holocaust restitution effort, opined, I think there is a certain symbolic quality that only money can convey to repair the injustices.90 Maybe, then, it is also a form of payback, which suggests to some that maybe the Nazis got one thing right: Himmler said you have to kill all the Jews because if you dont kill them, their grandchildren will ask for their property back.91 This idea has of course been criticized, with claims that defendants will not pay, and have no desire to pay, survivors of the Holocaust. Rabbi Marvin Heir, head of the Los Angeles-based Simon Wiesenthal Center, commented on the Swiss banks settlement that [i]t was for only one reason: they were pressured into it. Without the pressure, . . . without the threat of sanctions, the
88

Bazyler, supra note 67, at 39 (quoting Charles Krauthammer, Reducing the Holocaust to Mere Dollars and Cents, L.A. TIMES, Dec. 11, 1998, at 26).
89

Id. at 41 (citing Gabriel Schoenfeld, Holocaust Reparations A Growing Scandal, COMMENT., Sept., 2000, at 1).
90 91

Richard Wolffe, Putting a Price on the Holocaust, IRISH TIMES, Mar. 16, 1999, at 15. Id.

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Holocaust survivors would have gotten nothing.92 Heir may have been right. In February 2000, the International Commission on Holocaust Era Insurance Claims (ICHEIC), which has dealt with insurance claims at the heart of lawsuits brought by many genocide victims and their beneficiaries, announced that it would begin a two-year claim process to locate and pay unpaid Holocaust-era insurance policies.93 However, a little over a year into the process, the ICHEIC had distributed only $3 million to claimants, while spending more than $30 million in expenses.94 Furthermore, as Michael Bazyler points out, even with the settlement, Actual payments that the Holocaust claimants will receive are minuscule (whether $7,500 or $50,000) compared to the personal and financial losses they suffered. The payments made by the corporate wrongdoers will come nowhere close to disgorging the profits they made from their dealing with the Nazi or participation in the Holocaust. Moreover, anti-Semitism may increase as a result of these latest financial demands being made on behalf of Jewish victims of the war.95 In spite of this, there is still an argument that the Holocaust restitution movement, and the civil process as a whole, has had beneficial results when coupled with the positive precedent it has set for future restitution movements, and that these far outweigh the questions and criticisms that have arisen.96 Besides obtaining long-overdue restitution, the litigation has forced European governments to create various historical commissions, which have unearthed new and valuable information about the financial wrongs committed against European Jewry during the war. Private companies, against whom similar accusations have been made, are likewise

92 93 94 95 96

Bazyler, supra note 67, at 17. Id. at 21. Id. Id. at 41. See id. at 37-38.

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putting Holocaust historians on retainer and, for the first time ever, opening up their wartime files for inspection.97 Furthermore, while civil suits may not lead to the same degree of accountability as in a criminal suit, they do offer a way of seeking justice and represent one form of authoritative adjudication of legal issues relating to human rights violationssuch suits still bring attention to past atrocities, provide victims with a forum to present their claims, and deprive the defendants of foreign refuge in the countries where the cases are brought.98 In fact, civil suits may actually be the most effective in establishing the full context in which the perpetrators committed their crimes and thereby in enhancing the prospects that the victims will have their suffering brought to the attention of the wider community and that a definitive, historically accurate account of the atrocities will be provided.99 CONCLUSION Ultimately, despite the way in which they are given, the right to reparations is a legal right owed to the victims of genocide.100 The Universal Declaration of Human Rights provides for everyone to have an effective remedy for acts violating their fundament rights.101 Similarly, the International Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination

97 98

Bazyler, supra note 67, at 42.

Murphy, supra note 51, at 31-32 (quoting STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 211 (1997)).
99 100 101

Id. at 48. See Reparations for Victims of Genocide, supra note 2 at 2. See SHELTON, Victims of International Crimes, supra note 16, at 140.

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Against Women all contain guarantees of an effective remedy.102 Not only are reparations a legal right, they are a moral right as well. The bottom line is that the law exists so that people pay for the crimes they commit, one way or another. It is not only a duty to the victims that we owe, but also a duty to ourselves. If there is no reparations system available for victims of the most heinous crime imaginable mass, systematic murder then why should anyone hope for reparations for any lesser crimes? To conclude, reparations play an important part in our society. They provide the vital psychological and social functions that are necessary for the successful reintegration and rehabilitation of those who have been victimized. 103 Not infrequently, the social reaction [to victims] is indifference or avoidance leading to a silence that is detrimental to the victims, producing isolation and mistrust . . . The need to re-adapt to normal society and return to previctim ways of living and functioning is crucial.104 It does not matter whether we achieve this goal through compensation, or simply by raising awareness through litigation. Ultimately, what matters is that the victims are remembered, and that we continue to take steps to wipe out genocide forever.

102 103 104

See SHELTON, Victims of International Crimes, supra note 16, at 140. See id. Id. 23

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Shackled During Labor: How the Law Punishes Undocumented Pregnant Women By Jamile I. Moraes* When I was in bed, I was begging the sheriff, Please let me freeat least one hand, and he said no, he didn't want to . . . Juana Villegas describing the experience of being shackled to her hospital bed as she went into labor.1 INTRODUCTION Each year, several women in the United States are shackled2 while giving birth. These women were not arrested for violent crimes, and they pose no physical threat to law enforcement. They have only committed one major offense: they are undocumented immigrants. Juana Villegas, a pregnant immigrant in the U.S. illegally, was forced to give birth while shackled to a hospital bed.3 Mrs. Villegas was arrested for a minor infraction, driving without a

Jamile Moraes received her J.D. from the Shepard Broad Law Center at Nova Southeastern University and was admitted to the Florida Bar in 2012. She currently practices immigration law in South Florida. Immigration law has always been a passion for Jamile. She feels most rewarded by uniting families and helping people achieve the American dream.
1

Police Claim Legitimate Arrest; Woman Claims Racial Profiling, NEWSCHANNEL5 (July 13, 2008, 12:19 AM), http://www.newschannel5.com/story/8666458/police-claim-legitimate-arrestwoman-clams-racial-profiling?redirected=true.
2

Alex Berg, Stop Shackling Pregnant Prisoners!, DAILY BEAST (Sept. 4, 2011, 11:36 PM), http://www.thedailybeast.com/articles/2011/09/04/stop-shackling-pregnant-prisoners-new-pushto-ban-controversial-practice.html (Shackling refers to the use of restraints anywhere on a pregnant prisoners body, from binding her hands and feet to chaining her abdomen. Pregnant prisoners arms and legs are usually shackled with metal handcuffs during transportation, then cuffed directly to their hospital bed by an arm and a leg in the delivery room.).
3

Lee Moran, Cuffed to a Hospital Bed by Her Hands and Feet: Pregnant Illegal Immigrant Forced to Give Birth in Shackles Wins $200k in Damages, MAIL ONLINE (Sept. 22, 2011, 7:10 PM), http://www.dailymail.co.uk/news/article-2040398/Cuffed-hospital-bed-hands-feetPregnant-illegal-immigrant-forced-birth-shackles-wins-200k-damages.html. 24

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valid drivers license.4 Her story is one of many examples of undocumented pregnant women who are forced to give birth under these harsh circumstances. Shackling women during childbirth is against U.S. Immigration and Customs Enforcement (ICE) policy, and is illegal in fourteen states.5 However, women who are arrested for immigration-related offenses are classified as criminals, thus they can still legally be handcuffed to their hospital beds by authorities in the remaining states.6 These women can also be denied the right to have a family member in the birthing room, and their newborn children can be held for longer than twenty-four hours.7 Because of serious health risks to both mother and child, many states are banning this practice and passing anti-shackling bills.8 Shackling laws punish immigrant women who commit minor offenses. There are several less severe alternatives to shackling undocumented women. This article proposes that local law enforcement agencies handle local issues, while ICE handles the immigration issues. Part I of this paper will discuss the problems that exist by using real women as examples. Part II of this paper will describe the dangerous health risks, to both mother and child, associated with shackling pregnant women. Part III will examine the current shackling laws, at both the federal and state levels. Part IV will discuss how shackling laws are harsher as applied to undocumented women and propose a solution to the problem. Finally, Part V will address the
4 5

Moran, supra note 3.

Cristina Costantini, Undocumented Women Forced to Give Birth to While Shackled and in Police Custody, HUFF. POST LATINO VOICES (Sept. 21, 2009, 8:39 AM), http://www.huffingtonpost.com/2011/09/20/undocumented-pregnant-woman-gives-birth-inshackles_n_971955.html.
6 7 8

Id. Id. Berg, supra note 2. 25

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alternatives to the inhumane practice of shackling women as well as the arguments in favor of shackling undocumented women. I. REAL WOMEN, REAL PROBLEMS A. Juana Villegas Juana Villegas is an undocumented Mexican woman who has been living in the United States since 1996.9 While in Nashville, Tennessee on July 3, 2008, Mrs. Villegas was pulled over by the Davidson County police for careless driving.10 She was arrested after telling the police officer that she did not have a valid drivers license.11 Driving without a valid license is a misdemeanor in Tennessee, and police officers usually only issue a citation for such offense. 12 However, Mrs. Villegas lawyer alleged that she was instead arrested because she was also an undocumented immigrant.13 After Mrs. Villegas was taken to the county jail, a federal immigration agent ran a background check, which revealed that she was an illegal immigrant who had been ordered to be deported in March of 1996,14 a criminal in the eyes of the law.15 Yet, Mrs. Villegas posed no physical threat to authorities,16 and had no other criminal record.17

Julia Preston, Immigrant, Pregnant, is Jailed Under Pact, N.Y. TIMES (July 20, 2008), http://www.nytimes.com/2008/07/20/us/20immig.html?_r=0.
10 11 12 13 14

Id. Id. Id. Costantini, supra note 5.

On March 11, 1996, Mrs. Villegas appeared before an Immigration Judge, and was taken back to Mexico that same day. Villegas De La Paz v. Holder, 640 F.3d 650, 52 (6th Cir. 2010). She reentered the United States through the Mexican border roughly ten days later. Id. 26

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When Mrs. Villegas water broke on the night of July 5, she was handcuffed and taken to the hospital by an ambulance.18 During the ride, she begged the police officers to free the shackles, but they ignored her pleas.19 Throughout the entire ride, there was a deputy sitting in the front of the ambulance who could have unlocked the shackles.20 Fortunately, Mrs. Villegas gave birth to baby boy Gael21 at the hospital without any complications.22 However, Mrs. Villegas remained shackled for up to two hours before delivery and six hours after.23 Her husband was not allowed in the delivery room, and Mrs. Villegas was forced to deliver her baby alone.24

15 16

See Preston, supra note 9.

See id. (Mrs. Villegas was nine months pregnant and thirty-three years old at the time of her July 2008 arrest).
17 18 19 20

Id. Id. Moran, supra note 3.

Woman Shackled During Labor Awarded Damages From Deputies, USA TODAY (Aug. 19, 2011), http://usatoday30.usatoday.com/news/nation/2011-08-19-tennessee-woman-shackledlabor-damages_n.htm.
21 22 23

Moran, supra note 3. Woman Shackled During Labor Awarded Damages From Deputies, supra note 20.

Police Claim Legitimate Arrest; Woman Claims Racial Profiling, supra note 1; see Hearing Before the Subcomm. of the Comm. on Approp. H.R., 111th Cong. (2010) (statement of The Honorable Lucille Roybal-Allard), available at http://www.gpo.gov/fdsys/pkg/CHRG111hhrg52999/html/CHRG-111hhrg52999.htm (Mrs. Villegas remained chained to her bed by the foot and the wrist until the final stages of her delivery, even though the nurses asked for the handcuffs to be removed.).
24

See Moran, supra note 3. 27

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Mrs. Villegas suffering did not end there. For the three days she remained in the hospital after giving birth she was not allowed any communication at all.25 Her phone was disconnected each time she was moved.26 She did not know the condition of her baby, and the police officers did not allow her to see her husband.27 As Mrs. Villegas left the hospital, a nurse offered her a breast pump but a sheriff's deputy said she was not allowed to take it.28 When she was taken back to the county jail, she was again denied access to a breast pump and was given the wrong type of painkillers by the jails medical staff.29 Mrs. Villegas breasts were very swollen after the birth, and the deputies refusal to allow her to use a breast pump caused her a great deal of pain and sickness.30 Subsequently, Mrs. Villegas sued the Davidson County Sheriffs Office in federal court.31 She was awarded $200,000 in damages, and the jurors were not allowed to know that she was an

25 26 27 28 29 30

Moran, supra note 3. See id. Id. Preston, supra note 9. Moran, supra note 3.

Woman Shackled During Labor Awarded Damages From Deputies, supra note 20; Costantini, supra note 5.
31

Mrs. Villegas originally sued Davidson County in 2009 for violation of her rights to due process under the Fourteenth Amendment and for [the Countys] deliberate indifference to [her] serious medical needs, as well as her First Amendment right to familial association and her Forth Amendment right of personal privacy. Villegas v. Metro. Govt of Davidson Cnty., No. 3:09-00219, 2009 WL 4015975, at *1 (M.D. Tenn. Nov. 19, 2009). However, that case was dismissed for failure to plead a distinct legal theory because the county officials were sued under their official capacities. Id. at *2. Two years later, Mrs. Villegas sued again. See Villegas v. Metro. Govt of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn. 2011). This time, Mrs. Villegas used the same cause of action, but she sued the Metropolitan Government of Nashville, Davidson County, Tennessee, the Nashville Davidson County Sheriffs Office, and Janet 28

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undocumented immigrant when deciding whether to compensate her.32 An appeal filed by the sheriffs office is currently pending with the U.S. Court of Appeals for the Sixth Circuit.33 Deportation proceedings against Mrs. Villegas have been set aside indefinitely and she is currently applying for a U visa.34 The U visa program was created by Congress to protect undocumented crime victims.35 Mrs. Villegas attorney believes that the conduct of the sheriffs office rises to the level of kidnapping and torture.36 B. Alma Minerva Chacon Alma Chacon is an undocumented Mexican woman who came to the United States approximately twenty years ago, at the age of sixteen.37 On the afternoon of October 12, 2008, Ms. Chacon was driving to the grocery store with her eight-year-old daughter when she was

Napolitano, in her official capacity as Secretary of the Department of Homeland Security. Id. at 896. Mrs. Villegas won on partial summary judgment. Id. at 920.
32 33

Woman Shackled During Labor Awarded Damages From Deputies, supra note 20.

Brandon Gee, Shackled Mom Seeks Visa Reserved for Crime Victims, KNOXNEWS.COM (Sept. 2, 2011, 2:44 AM), http://www.knoxnews.com/news/2011/sep/02/shackled-mom-seeks-visareserved-crime-victims/?print=1.
34 35

Id.

Id.; see Victims of Criminal Activity: U Nonimmigrant Status, U.S. CITIZENSHIP & IMMIGRATION SERVS., http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnexto id=ee1e3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=ee1e3e4d77d73210Vg nVCM100000082ca60aRCRD (last visited Feb. 7, 2013)
36 37

Gee, supra note 33.

Valeria Fernandez, Pregnant Latina Says She Was Forced to Give Birth in Shackles After One of Arpaios Deputies Racially Profiled Her, PHOENIX NEW TIMES (Oct. 22, 2009), http://www.phoenixnewtimes.com/2009-10-22/news/pregnant-latina-says-she-was-forced-togive-birth-to-her-baby-in-shackles-after-one-of-arpaio-s-deputies-racially-profiled-her/ [hereinafter Fernandez, Forced to Give Birth in Shackles]. 29

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pulled over by the police in Phoenix, Arizona.38 At the time, Ms. Chacon was only nine days away from her due date.39 Ms. Chacon was placed in handcuffs and arrested because there were two outstanding warrants for her arrest.40 She owed over $1,000 in fines for driving without a valid license and she had a misdemeanor shoplifting charge.41 Ms. Chacon is a widow who was forced to steal food to feed her young children.42 Nevertheless, both offenses were non-violent crimes.43 During her second night in jail, Ms. Chacon began bleeding and it lasted throughout the entire night, drenching her uniform.44 The following morning, a detention officer shackled Ms. Chacon to the stretcher and the paramedics took her to the hospital to give birth.45 When she arrived at the hospital, one of her ankles was chained to the hospital bed.46 Despite a nurses request to unshackle Ms. Chacon in order for her to get a urine sample, a police officer directed the nurse to drag her bed into the bathroom instead.47 Ms. Chacon delivered a healthy baby girl,

38 39 40 41 42

Fernandez, Forced to Give Birth in Shackles, supra note 37. Id. Id. Id.

Id. (Ms. Chacons husband died in a car accident, leaving her with four young children to care for. Her boyfriend, and father of the newborn baby, left Ms. Chacon once he discovered she was pregnant).
43 44 45 46 47

See Costantini, supra note 5. Fernandez, Forced to Give Birth in Shackles, supra note 37. Id. Id. Id. 30

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Jacqueline, but she was not allowed to hold her baby after the birth.48 In fact, she was not allowed to see or nurse her baby for over seventy days while she was in immigration custody. 49 In the few weeks following the birth, Ms. Chacons breasts swelled, causing her pain, and, like Mrs. Villegas, she was refused a breast pump and not given adequate pain medication.50 Ms. Chacon is currently applying for cancellation of removal, which means that she is trying to cancel her deportation, and she hopes to be able to remain in the United States. 51 Additionally, the officer who pulled Ms. Chacon over and arrested her, Maricopa County Sheriff Joe Arpaio, is under pending investigation by the U.S. Department of Justice for alleged discrimination and for unconstitutional searches and seizures.52 C. Miriam Mendiola-Martinez Miriam Mendiola-Martinez is another undocumented Mexican woman who lives in Arizona that was arrested while pregnant.53 She was arrested after being caught using false

48 49 50 51 52

See Fernandez, Forced to Give Birth in Shackles, supra note 37. Costantini, supra note 5; Fernandez, Forced to Give Birth in Shackles, supra note 37. Fernandez, Forced to Give Birth in Shackles, supra note 37. Id.

See Pete Yost, Department of Justice Gives Arizona Sheriff Joe Arpaio Deadline to Comply with Investigation, HUFF. POST POLITICS (Aug. 3, 2010, 6:27 PM), http://www.huffingtonpost.com/2010/08/03/department-of-justice-giv_n_669311.html; see also Sheriff Joe Arpaio Reportedly Forced Woman to Give Birth While Shackled, HUFF. POST POLITICS (Mar. 18, 2010, 5:12 AM), http://www.huffingtonpost.com/2009/11/25/sheriff-joearpaio-report_n_370543.html; see also Catherine Traywick, Americas Toughest Sheriff, MS. MAG., Apr. 2005, at 15.
53

Steven Lemons, MCSO Shackling Pregnant Moms, and Singer Linda Ronstadt Plans to March Against Arpaio, PHOENIX NEW TIMES (Jan, 7, 2010), http://www.phoenixnewtimes.com/2010-01-07/news/mcso-shackling-pregnant-moms-and-lindaronstadt-marches-against-arpaio/. 31

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documentation to obtain work, a non-violent crime, when she was seven months pregnant.54 She had no other criminal record. However, she was shackled throughout the last two months of her pregnancy.55 Mrs. Mendiola-Martinez gave birth to a baby boy, Angel, on December 21, 2009 and, like the other two women, was chained to her hospital bed without any family members present.56 She had a C-section, was in immense pain, and could barely walk.57 Moreover, her left foot swelled up because of how tight the restraint was on her leg.58 Allowed only two short visits with her baby, she had no idea where he was being cared for or what would happen to him.59 Fourty-eight hours after his birth, authorities gave her newborn son to a family member without her knowledge.60 On December 23, Mrs. Mendiola-Martinez returned to jail after being released from the hospital.61 Forced to walk out in shackles, and in handcuffs, she found herself leaving while her

54

Costantini, supra note 5; see Lemons, supra note 53 (Mrs. Mendiola-Martinez knew that using false identification was illegal, but she stated that she had to find a means of support for her three children who are American citizens by birth).
55

Lemons, supra note 53; Valeria Fernandez, Pregnant and Shackled: Hard Labor for Arizonas Immigrants, NEWS AM. MEDIA (Jan. 26, 2010), http://news.newamericamedia.org/news/view_article.html?article_id=bc96e9bf40ad9ac97a78dba 165ea2448# [hereinafter Fernandez, Pregnant and Shackled].
56 57 58 59 60 61

Costantini, supra note 5; Lemons, supra note 53. Lemons, supra note 53. Id. Id. Costantini, supra note 5. Lemons, supra note 53. 32

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wound from her C-section was still bleeding.62 Mrs. Mendiola-Martinez, with the help of her attorneys, agreed to a plea deal and was able to spend Christmas at home with her newborn son.63 ICE did not take her into custody after her release from jail for humanitarian reasons.64 However, it seems her future in the United States, where shes lived for the past fifteen years, remains uncertain.65 II. HEATH RISKS OF SHACKLING PREGNANT WOMEN In addition to the physical pain, anxiousness, and suffering that women who are shackled during birth endure, this practice leads to serious health risks to both mother and child. Shackling is dangerous at all stages of labor: before, during, and after the birth. If a pregnant woman is shackled while she is transported to the hospital, there is an increased risk of falling because of the restraints; they would also prevent her from protecting herself by breaking the fall.66 Additionally, during the birthing process, shackles hinder a woman's ability to move around to alleviate the pain of the contractions, or to expedite delivery.67 This produces stress on the woman's body, which potentially decreases the flow of

62 63 64 65 66

Lemons, supra note 53. Id. Fernandez, Pregnant and Shackled, supra note 55. Id.

Dana Sussman, Bound by Injustice: Challenging the Use of Shackles on Incarcerated Pregnant Women, 15 CARDOZO J.L. & GENDER 477, 487 (2009) (citing Amnesty Intl, Not Part of My Sentence: Violations of the Human Rights of Women in Custody, AI Index: AMR 51/19/99 (Mar. 1999)).
67

Jenni Vainik, Note, The Reproductive and Parental Rights of Incarcerated Mothers, 46 FAM. CT. REV. 670, 678 (2008) (citing Stop Violence Against Women: Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women, AMNESTY INTL (2006), www.amnestyusa.org/women/custody/custodyall.pdf); Berg, supra note 2. 33

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oxygen to the fetus, causing irremediable damage.68 If complications arise, the restraints delay the doctors' ability to perform an emergency C-section.69 Precious seconds are lost unshackling the woman, and research has shown that delaying this critical procedure by just a few minutes could potentially cause a baby to experience permanent brain damage.70 Furthermore, the shackles force the woman to stay on her back, and this position can put stress on the babys heart.71 If the woman remains shackled after the birth, the woman will be unable to nurse and hold her newborn baby, which is crucial to postpartum bonding.72 Also, shackles inhibit the new mother's recovery, as experts recommend walking to rehabilitate muscles after delivery.73 In essence, not only is the mother being punished, but the innocent newborn baby is being punished as well. The health risks can be quite fatal, yet in todays modern world, women are still being shackled during childbirth. It is unbelievable that in this day and age a child is born to a woman in shackles . . . [i]t sounds like something from slavery 200 years ago.74

68

Vainik, supra note 67, at 678 (citing Kendra Weatherhead, Note, Cruel But Not Unusual Punishment: The Failure to Provide Adequate Medical Treatment to Female Prisoners in the United States, 13 HEALTH MATRIX 429, 430 (2003)).
69 70 71 72 73 74

Id. Id.; Berg, supra note 2. Berg, supra note 2. Vainik, supra note 67, at 678; Berg, supra note 2. Sussman, supra note 66, at 487.

Adam Liptak, Prisons Often Shackle Pregnant Inmates in Labor, N.Y. TIMES (Mar. 2, 2006), http://www.nytimes.com/2006/03/02/national/02shackles.html?pagewanted=all&_r=1&. 34

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Despite the known risks of shackling pregnant women, only recently has legislation began to change.75 State prisons were originally designed for male inmates and, as such, many prisons are not aware of the special kind of care and treatment that female inmates need, especially pregnant inmates.76 The way female inmates are treated is a growing concern. According to the Bureau of Justice Statistics in 2007, six percent of women in jail were pregnant.77 Additionally, women are the fastest growing population in American prisons the number of female inmates more than tripled from 1995 to 2008.78 Fortunately, several states and the federal government are recognizing this growing concern. A. State Legislation In 2000, Illinois became the first state to pass legislation limiting the practice of shackling female prisoners during labor.79 Since then, thirteen other states Colorado, Vermont, Texas, New Mexico, California, New York, Washington, West Virginia, Pennsylvania, Hawaii, Idaho, Rhode Island, and Nevada have passed statutes prohibiting the shackling of incarcerated

75

See Elizabeth Alexander, Unshackling Shawanna: The Battle over Chaining Women Prisoners During Labor and Delivery, 32 U. ARK. LITTLE ROCK L. REV. 435, 435 (2010).
76

Maureen Turner, Birth Behind Bars: A Proposed Law Would Ban the Use of Shackles on Pregnant Inmates, VALLEY ADVOCATE (Sept. 22, 2011), http://www.valleyadvocate.com/article.cfm?aid=14092.
77

End Shackling Now!, NATL ORG. FOR WOMEN, 3 (2010), http://www.now.org/issues/violence/AntiShacklingKit.pdf [hereinafter End Shackling Now!].
78 79

Id.

Movement Builds to Stop Shackling Pregnant Prisoners, CRIME REPORT (Aug. 31, 2009, 12:05 PM), http://www.thecrimereport.org/archive/movement-builds-to-stop-shacklingpregnant-prisoners. 35

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pregnant women during labor.80 Several other states, and the District of Columbia, have written policies limiting the practice of shackling female inmates during labor and delivery.81 However, to date, it is still legal to shackle pregnant women during birth in the remaining thirty-six states. B. Federal Legislation and the Second Chance Act of 2007 On April 9, 2008, President George W. Bush signed the Second Chance Act82 into law. 83 The Act includes a provision requiring that the Federal Bureau of Prisons submit a report of every instance relating to the use of physical restraints on pregnant female prisoners during pregnancy, labor, delivery of a child, or post-delivery recuperation84 as well as the reasons for the use of the physical restraints, the length of time that the physical restraints were used, and the security concerns that justified the use of the physical restraints.85 As a result of the Act, the public will have, at least federally, a record of how often female inmates are being shackled. 86

80 81

End Shackling Now!, supra note 77, at 5; Berg, supra note 2.

Alexander, supra note 75, at 438. See Movement Builds to Stop Shackling Pregnant Prisoners, supra note 79, for a complete list of each states policies and regulations regarding the shackling of pregnant inmates.
82 83

Second Chance Act of 2007, Pub. L. No. 110-199, 1, 122 Stat. 657 (2008).

See Bill Summary & Status, 110th Congress (2007 - 2008), H.R.1593, Major Congressional Actions, THOMAS: THE LIBRARY OF CONGRESS, http://thomas.loc.gov/cgibin/bdquery/z?d110:HR01593:@@@R# (last visited Feb. 7, 2013); see also Symposium, What to Expect: Legal Developments and Challenges in Reproductive Justice, 15 CARDOZO J.L. & GENDER 503, 605 (2009) [hereinafter What to Expect: Legal Developments and Challenges in Reproductive Justice].
84 85 86

Second Chance Act 232. Id.

What to Expect: Legal Developments and Challenges in Reproductive Justice, supra note 83, at 605. 36

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Furthermore, in October 2008, the Federal Bureau of Prisons and U.S. Marshals Service banned shackling altogether, except in extreme circumstances.87 C. The Landmark Case: Nelson v. Correctional Medical Services There have been a number of lawsuits in various states besides Juana Villegas lawsuit in Tennessee.88 On October 2, 2009, the United States Court of Appeals for the Eighth Circuit en banc issued a historic decision in Nelson v. Correctional Medical Services.89 The court in Nelson was the first federal appellate court to hold shackling a woman prisoner during labor and delivery, in the absence of a clear security justification for such restraints, violates the Eighth Amendment to the United States Constitution by imposing cruel and unusual punishment.90 Similar to the women discussed in Part I of this article, Shawanna Nelson was a nonviolent offender who was six months pregnant at the time of her arrest.91 Having reached full term while serving her sentence, Ms. Nelson went into labor and was taken to the prisons infirmary where a nurse determined that she needed to be taken to a civilian hospital immediately.92 Officer Turensky, a female officer, was the assigned transportation officer.93 The prisons nurse testified that Ms. Nelson had to stop twice on the way to the ambulance
87 88

End Shackling Now!, supra note 77, at 5.

Andrea Hsu, Difficult Births: Laboring and Delivering in Shackles, NPR (July 16, 2010), http://www.npr.org/templates/story/story.php?storyId=128563037.
89 90 91

Alexander, supra note 75, at 435. Nelson v. Corr. Med. Servs., 583 F.3d 522, 532-33 (8th Cir. 2009) (en banc).

Id. at 525; Alexander, supra note 75, at 441 (Ms. Nelson was convicted for check fraud and writing checks with insufficient funds.).
92 93

Nelson, 583 F.3d at 525. Id. 37

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because she was in so much pain and could hardly walk.94 Officer Turensky was specifically instructed to rush Ms. Nelson to the hospital and not to waste time cuffing her.95 Regardless, Officer Turensky took the time to handcuff her.96 Officer Turensky testified that she did not ever feel threatened by Nelson at any time, yet, upon arriving at the hospital, she shackled Ms. Nelsons legs to the wheelchair, and then to the hospital bed.97 Ms. Nelson gave birth to a nineand-a-half pound baby while shackled to the hospital bed.98 Because of the shackles Ms. Nelson was unable to move her legs or stretch during the birth.99 As a result, Ms. Nelson suffered extreme mental anguish and pain, permanent hip injury, torn stomach muscles, and an umbilical hernia requiring surgical repair[,] as well as damage to her sciatic nerve.100 At the time Ms. Nelson was taken into custody, the state of Arkansas had a variety of policies regulating the use of shackles on prisoners.101 The policies of the Department of Corrections were unclear and gave vast discretion to the correctional officer who was in charge

94 95 96 97 98 99 100 101

Nelson, 583 F.3d at 525. Id. Id. Id. Alexander, supra note 75, at 442. Nelson, 583 F.3d at 526. Id. Alexander, supra note 75, at 440. 38

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of transporting the prisoner, including discretion that allowed the officer to decide whether to use shackles in a hospital on a woman in active labor.102 The lack of clarity in the law gives ample discretion to correctional officers. However, Nelson was a landmark case, and anti-shackling activists are hopeful that it will provide more clarity and lead to uniformity in the law. D. U.S. Immigration & Customs Enforcement On March 2, 2011, John Morton, the director of ICE, issued a memo stating that shackling pregnant women during delivery is against ICE policy.103 The memo stated that [a]bsent extraordinary circumstances . . . field officer directors should not expend detention resources on aliens who are... pregnant, or nursing . . . or whose detention is otherwise not in the public interest.104 In fact, Ms. Chacon reported that after she was taken to an ICE detention center, she was treated much better.105 But, before the memo was issued this year, ICE policy allowed restraints to be used on pregnant women.106 As such, conditions in ICE detention centers were no better than state prisons. Pregnant, undocumented women were routinely shackled while being transported, as well as medically neglected.107 As a matter of fact, in July 2008, over one hundred womens

102 103

Alexander, supra note 75, at 440.

Memorandum from John Morton, Director of U.S. Immigration & Customs Enforcement, to Immigration & Customs Enforcement Employees (Mar. 2, 2011), available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.
104 105 106 107

Id. Fernandez, Forced to Give Birth in Shackles, supra note 37. Sussman, supra note 66, at 479 n.12. Id. at 479. 39

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rights and immigrants rights activists wrote to ICE requesting that the agency change its policies, but ICE refused to do so.108 Fortunately, ICE has realized that shackling pregnant women is inhumane, and changed its policy earlier this year. E. Other Organizations Several organizations have also responded to this growing concern. In 2006, the UN Committee Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment condemned gender-based humiliation and incidents of shackling of women detainees and prison inmates during childbirth in the United States.109 The UN encouraged the U.S. to act in accordance with international standards for the treatment of female inmates and adopt the UN structure for the humane treatment of prisoners.110 In 2007, the American Congress of Obstetricians and Gynecologists wrote a letter to the Rebecca Project for Human Rights denouncing the practice of shackling female inmates in labor as "demeaning and unnecessary" and supporting federal legislation prohibiting the practice. 111 Additionally, in 2010, the American Medical Association adopted a resolution that limited the use of restraints on pregnant women in their second or third trimester, and none before, during, or after the delivery unless the woman is dangerous to others or herself, or demonstrated to be a flight risk, otherwise unable to be contained.112

108 109 110 111 112

Sussman, supra note 66, at 479 n.12. End Shackling Now!, supra note 77, at 5. Id. Id. Id. 40

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IV. SHACKLING LAWS ARE HARSHER AS APPLIED ON UNDOCUMENTED WOMEN A. A Minor Offense for an Undocumented Woman is a Federal Crime The shackling laws are harsher as applied on undocumented women. Although

immigration violations are civil cases, ICE classifies certain undocumented immigrants as criminals when they commit particular immigration offenses.113 Some of these offenses include returning to the United States after deportation, or remaining in the United States after a deportation order.114 Regardless of the nature of the offense that causes undocumented women to get arrested in the first place, they are criminals under the law, even if their offenses were nonviolent.115 Although federal legislation has been passed banning the practice of shackling pregnant women, this legislation only applies to federal prisons. Therefore, state correctional facilities can still legally shackle female inmates during childbirth, at their discretion. This means that

pregnant women that are not under ICE custody, or are not detained in federal prisons, can legally be shackled during childbirth in thirty-six states. This disparity could easily allow state officials to abuse their discretionary power. In fact, it is believed that many pregnant women are targeted by police officers, so their children are not born on American soil.116

113 114 115 116

See Costantini, supra note 5. See id. This was the case of the women discussed in Part I. Sussman, supra note 66, at 479. 41

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Another tool state officials have to abuse their power by enforcing immigration law is section 287(g) of the Immigration and Nationality Act.117 Section 287(g) authorizes the Attorney General to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions.118 The women

mentioned in Part I of this article were arrested pursuant to section 287(g) of the agreement.119 After an undocumented alien is arrested, law enforcement agencies often hold them in custody for forty-eight hours to allow ICE to assume detention.120 Because the undocumented women are turned over to ICE, they cannot leave once they have served their sentences. In fact, many inmates are kept in jail long after their sentences are over.121 ICE has a policy against shackling pregnant women, but it does not push state prisons to adopt this policy, not even during the forty-eight hour detention period.122 The outcome is that while a pregnant American

117 118

Immigration and Nationality Act 287(g), 8 U.S.C. 1357(g) (2006).

Id.; Bill Ong Hing, Institutional Racism, ICE Raids, and Immigration Reform, 44 U.S.F. L. REV. 307, 319-20 n.51 (2009) (quoting ACLU of NC & Immigr. & Hum. Rts. Poly Clinic, The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program in North Carolina, ACLU OF NC, 8 (Feb. 2009), http://acluofnc.org/files/287gpolicyreview_0.pdf (The 287(g) program was originally intended to target and remove undocumented immigrants convicted of violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.)).
119 120 121

Hing, supra note 118, at 319. Costantini, supra note 5.

Amy Elmgren, Immigration Policy: ICE Detainers Challenged by Lawsuit, LATIN AM. NEWS DISPATCH (Oct. 17, 2011, 7:30 AM), http://latindispatch.com/2011/10/17/immigration-policyice-detainers-challenged-by-lawsuit/ (the majority of ICE detainers are issued without probable cause for deportation, without notifying the detainee and providing them a chance to challenge the detainer).
122

See Costantini, supra note 5. 42

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citizen is eligible for bond or bail for a non-violent crime, an undocumented pregnant woman is lawfully forced to give birth in shackles. C. Lack of Reporting Shackling pregnant women is a constitutional violation, as the Eighth Amendment applies to undocumented aliens. 123 However, many violations by officials are not reported out of fear of deportation. In other cases, women who were actually deported are not here to tell their story. Either way, undocumented women have no voice. V. THE SOLUTION A. Female Inmates Should be Treated According to the Offense Committed There are several less stringent alternatives to shackling pregnant undocumented women. There could be an armed police officer outside the delivery room at all times. The women could wear a house arrest bracelet with active GPS tracking during childbirth. The daily cost for a house arrest bracelet is only $3.50 per day.124 A woman who gives birth is in the hospital for no more than a few days. There is no question that these individuals did something wrong, they were arrested for a reason and they were in the United States illegally. These women should face the consequences of their actions; however, having law enforcement shackle them during labor is not the answer. State and local authorities should handle state and local issues while immigration issues should

123

See Kenneth Ballard, The Bill of Rights and Immigrants, OBSERVATIONS (Jan. 9, 2010, 4:45 AM), http://www.kennethballard.com/?p=52; see also infra notes 135-38 and accompanying text.
124

Pricing, HOUSEARRESTBRACELET.COM, http://www.housearrestbracelet.com/house-arrestbracelet-pricing.html (last visited Feb. 7, 2013). 43

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be left to ICE.125 In other words, law enforcement should treat the undocumented women based on the crime they were arrested for. If this solution were implemented, undocumented women who are arrested for non-violent crimes would not be shackled during labor. They would be watched, but not shackled. On the other hand, undocumented women who are arrested for violent crimesand actually pose a threat to societywill be shackled during childbirth. This solution addresses the safety concerns of supporters of the shackling laws. B. Responses to Counter Arguments 1. Pregnant Women are a Flight Risk Supporters of shackling laws claim that shackling is necessary during labor because an unshackled woman might escape. 126 Do you know how many women leave their babies in the bathroom and flee after birth? said a local police officer.127 However, medical practitioners have stated it is nearly impossible for a woman who just delivered a baby, or is in labor, to run away.128 And even if they ran, they certainly would not get very far.129 Most women who are in jail for non-violent crimes have not posed an escape risk.130 In fact, there is no record that a single female inmate has even attempted to escape in the states that have prohibited shackling.131

125

See Fernandez, Forced to Give Birth in Shackles, supra note 37 (as discussed in Part III, Ms. Chacon stated she was treated much better at the ICE Detention Center).
126 127 128 129 130 131

End Shackling Now!, supra note 77, at 4. Interview with Drew Jacobs, Pembroke Pines Police Dept, in Davie, Fla. (Nov. 4, 2011). See Vainik, supra note 67, at 678. See id. See id. End Shackling Now!, supra note 77, at 4. 44

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Additionally, armed guards are usually present when the women give birth, and most hospitals are equipped with security systems should an inmate attempt to flee.132 If the proposed solution were implemented, and an undocumented woman who was arrested for a non-violent crime did somehow manage to run after delivering her child, there would be an armed guard watching her. The woman would be restrained before she had a chance to escape. 2. Shackling Pregnant Women is Not Unconstitutional Is has been argued that undocumented women do not have the same constitutional rights as American citizens.133 However, if that were the case, the government could arrest

undocumented immigrants at any time for any reason. The government could arrest them for protesting against the government, or take their property, or torture them.134 Since these events do not occur often, undocumented immigrants, including undocumented women, are afforded some constitutional rights. Undocumented women cannot vote or buy a firearm, but they have constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.135

132 133 134 135

See Vainik , supra note 67, at 678. See Ballard, supra note 123. See id.

See Connie Chang, Immigrants Under the New Welfare Law: A Call for Uniformity, A Call for Justice, 45 UCLA L. REV. 205, 254 n.165 (1997) (quoting Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1060 (1994)); see also Robert Longley, Do Illegal Aliens Have Constitutional Rights?: Courts Have Ruled That They Do, ABOUT.COM (last visited Feb. 7, 2013), http://usgovinfo.about.com/od/rightsandfreedoms/a/illegalrights.htm; see also Ballard, supra note 123. 45

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Additionally, according to the jurisprudence of the Supreme Court of the United States, prison inmates keep their constitutionally protected rights.136 In Turner v. Safley, the Supreme Court affirmed that inmates continue to enjoy their constitutional rights while in prison, so long as these rights are not inconsistent with their status as prisoners.137 Therefore, undocumented aliens have constitutional rights. Two constitutional rights may be infringed by shackling

undocumented pregnant women during childbirth: the Fourteenths Amendments due process clause, the right to conceive and raise a child, and the Eight Amendments prohibition against cruel and unusual punishment. Accordingly, shackling undocumented women is

unconstitutional, while having an armed guard outside the delivery room, or a house arrest bracelet is not.138 3. Undocumented Women Will be Encouraged to Have Anchor Babies Supporters of the shackling laws also claim that undocumented women should be treated as criminals so they are not encouraged to cross the border and drop an anchor baby. 139 This claim is more relevant to the controversial subject of illegal immigration rather than shackling undocumented women. The implication of anchor babies is that the children, who are U.S. citizens, act as an anchor that helps parents obtain citizenship and other benefits.140

136 137

Vainik, supra note 67, at 674 (citing Turner v. Safley, 482 U.S. 78 (1987)).

See Turner v. Safley, 482 U.S. 78, 95 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).
138 139

See Vainik, supra note 67, at 674-75.

See Lindsey Graham, Fact-checking the Claims About Anchor Babies and Whether Illegal Immigrants Drop and Leave, POLITIFACT.COM (July 28, 2010), http://www.politifact.com/trutho-meter/statements/2010/aug/06/lindsey-graham/illegal-immigrants-anchor-babies-birthright/.
140

Id. 46

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The Fourteenth Amendment states that [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.141 Accordingly, children of undocumented women are American citizens by birth. However, there are not as many benefits available to an anchor baby as one would think. Undocumented parents can only obtain residency in the United States if they entered lawfully with a visa, even if the visa has expired.142 Thus, if the undocumented woman crossed the border illegally, she is not eligible to apply for legal residency here in the United States. Additionally, under current immigration laws, only American citizens over the age of twenty-one can sponsor their parents.143 In the case of government assistance, the American child is eligible for very limited and short-term benefits.144 Punishing pregnant undocumented women does not solve the problem. There are several agencies that assist upper class documented women to come to the United States, have the child as an American citizen in the United States, and then return to their home country. Tucson Medical Center, located in Arizona, offers cutting edge technology, cozy settings and the chance for mothers to grant their babies American citizenship.145 The birth package costs $2,300 for a vaginal birth with a two-day stay, and $4,600 for a C-section and a four-day stay,
141 142

U.S. CONST. amend. XIV, 1.

Generally, all aliens who enter the United States illegally are not eligible to obtain permanent residency, the only exception to this rule are battered women and children under the Violence Against Women Act. See 8 U.S.C. 1182(a)(6)(A)(i)(ii) (2006).
143 144 145

8 U.S.C. 1151(b)(2)(A)(i) (2006). Graham, supra note 139.

Anne Zieger, AZ Hospital Helps Mexican Moms Have Babies with U.S. Citizenship, FIERCE HEALTHCARE (June 29, 2009), http://www.fiercehealthcare.com/story/az-hospital-helpsmexican-moms-have-babies-u-s-citizenship/2009-06-29. 47

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with a surcharge of $500 for each additional baby.146 The Chinese are also taking advantage of this opportunity. For about $15,000, a Chinese pregnant woman is set up with a hospital, a doctor, a temporary house, a car, and other extras.147 The Chinese women have to secure an American visa before coming to the United States.148 Clearly, documented women are taking advantage of the Fourteenth Amendment just as much, if not more, than undocumented women. Shackling undocumented women is most relevant to the topic of illegal immigration, as anchor babies only receive limited government benefits. CONCLUSION Shackling undocumented pregnant women during childbirth is inhumane and life threatening. There are several alternatives to shackling. Many of the arguments for the

shackling laws have been addressed in this article. If implemented, the proposed solution would prevent pregnant inmates, like the undocumented women mentioned in Part I, from giving birth in such horrible circumstances. The harm of shackling pregnant women does not outweigh the benefits.

146 147

Zieger, supra note 145.

Rob Gifford, Born in the U.S.A.? Some Chinese Plan it That Way, NPR (Nov. 22, 2010), http://www.npr.org/2010/11/22/131513165/born-in-the-u-s-a-some-chinese-plan-it-that-way.
148

See id. 48

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For Those Without a Voice: An International Plan to Reduce Child Marriage By Ryan Rambudhan* INTRODUCTION Recently, in Pakistan, a young bride never had the opportunity to say, I do. This was not because she was rushed into marriage, but because she was only six-months of age.1 Even more shocking, this marriage signified a compromise between two families to settle an ongoing dispute.2 While it is frequently stated that marriage entails constant negotiation between husband and wife, in some countries child-brides are used as an object of negotiation. Unfortunately, the narrative just described represents a small fraction of the current child marriages at large. The amazingly high rate of child marriage is best understood and addressed through the law. It is projected that over one hundred million girls will be forced to marry within the next decade.3 That equates to thirty-eight thousand girls married every day throughout the next ten years.4 Fortunately, legal guidelines create clear benchmarks, standards, and remedies that create the necessary awareness to combat child marriage.5

Ryan Rambudhan is a 2013 J.D. Candidate at The George Washington University Law School. He received his B.A. in Education from John Jay College of Criminal Justice in 2009.
1

Ani, 6-Month Old Baby Married to 25 Yr-Old Man, MID-DAY (May 31, 2010), http://www.mid-day.com/news/2010/may/310510-6-month-baby-married-to-25-yr-old-man.htm.
2 3

Id.

Child Marriage Facts and Figures, INTL CENTER FOR RESEARCH ON WOMEN, http://www.icrw.org/child-marriage-facts-and-figures (last visited Feb. 26, 2013).
4 5

Id.

Rangita De Silva-de-Alwis, Child Marriage and the Law, UNICEF, 1-3 (Apr. 2007), http://www.unicef.org/policyanalysis/files/Child_Marriage_and_the_Law.pdf. 49

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Child marriage is defined as the act whereby one is wed prior to the age of eighteen, and is also referred to as one of the most severe forms of child abuse.6 For instance, child marriage inevitably results in the sexual and economic servitude of the female child.7 While child

marriage affects both boys and girls across the world, it has an extremely disproportionate impact on the female child.8 Despite this fact, many legal devices ratified to eliminate child marriage remain gender neutral.9 Consequentially, gender-neutral laws are not tailored to the high frequency of child marriages involving females. The Convention on the Rights of the Child (CRC) is aimed towards recognizing certain social and economic rights of children.10 Despite the CRC achieving near universal

ratification,11 the CRC does not effectively combat child marriage. This is attributed to the CRC lacking sound enforcement mechanisms as well as the fact that established cultural practices tend to trump international law.12 Further, child marriage is strongly correlated with educational

6 7 8

De Silva-de-Alwis, supra note 5, at 1. Id.

See id. at 60 (providing statistics claiming that adolescent girls between the ages of fifteen to nineteen are ten times more likely to marry than boys in Sub-Saharan Africa and six times more likely to marry in Asian countries).
9 10

See id. at 1-2.

See Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
11

See Conventions on the Rights of the Child: Frequently Asked Questions, UNICEF, http://www.unicef.org/crc/index_30229.html (last updated Nov. 30, 2005).
12

Lynne M. Kohm, Suffer the Little Children: How the United Nations Convention on the Rights of the Child Has Not Supported Children, 22 N.Y. INTL L. REV. 57, 75-76 (2009). 50

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deprivation.13 For many families, withholding the female child from school is economically feasible as girls are expected to perform household labor and serve as economic providers. Because the CRC does not effectively combat child marriage, the current system is inadequate and requires further development. Due to the strength of religious, cultural, and custom based practices, legislation alone cannot effectively combat child marriage. The CRC must be supplemented with an optional protocol requiring signatory parties to recognize the rights of children through domestic law by providing financial incentives for single children below marital age. States adoption of the proposed optional protocol will compensate for the CRCs lack of enforcement mechanisms. Moreover, utilizing the law as a vehicle to implement these solutions will compensate for the CRCs inability to battle the deeply rooted religious and cultural causes of child marriage. Part I of this paper: (A) identifies the unique obstacles faced by female children; (B) establishes the origins of child marriage; (C) discusses the effects of child marriage; (D) examines the CRC and the current propensity of child marriage; (E) argues why the CRC, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and the Convention on the Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage (CCM) are not effectively combating child marriage; (F) investigates the most utilized solutions to end child marriage; and (G) inspects countries that have successfully delayed the practice of child marriage. Part II discusses the need to adopt an optional protocol that implements incentives to effectively combat child marriage as well as the need to shift cultural norms away from the practice.

13

De Silva-de-Alwis, supra note 5, at 1-3. 51

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Historically, female children have been treated as disposable property.14 Similar to market commodities, female children were freely sold, exploited, enslaved, and abused by their parents or caregivers. 15 Even throughout adulthood, females have traditionally been recognized as having few rights and are treated as their father or husbands property.16 Such treatment disproportionately affects females as compared to their male counterparts.17 Prejudice against females often starts before birth as women are scourged for bearing girl children.18 Although women cannot actively choose the sex of their child, they are pressured to bear male children or otherwise face scorn and torture.19 In India, this pressure led to selfselective abortions resulting in the termination of over one million female fetuses between 1981 and 1991.20 The pressure to bear a boy even led one Bangladeshi mother to throw her one-and-ahalf year old daughter into a river after being ridiculed for bearing a female child.21 Similarly, a father enraged at his wife for continuously giving birth to females chose to strangle his twin
14

Shannon Ragsdale & Vanessa Campbell, Protection of the Female Child: The Mothers of Our Future Case Studies of India, Pakistan, Bangladesh and Sri Lanka, 7 TULSA J. COMP. & INTL L. 177, 177 (1999).
15 16 17 18 19 20 21

Id. Id. Id. Id. at 185. Ragsdale & Campbell, supra note 14, at 185. Id. Id. 52

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daughters.22 As these acts of selective fetal termination and infanticide demonstrate, females are plagued both before and after birth. Even during the transition from infancy to early childhood, the needs of girl children are often subordinated to those of boys. For instance, families living in poverty on the Indian subcontinent prefer providing males with sustenance over females because males are better situated to care for their parents in the future.23 For example, male children in Bangladesh sometimes receive adequate nutrition at the cost of female children remaining under-nourished. 24 Similarly, girls in Sri Lanka are given less food to provide better nourishment to their brothers, and in India it is customary to feed male children before female children.25 Unsurprisingly, inattention to the needs of the female child has produced detrimental effects regarding their health. Female children have a higher chance of mortality as destitute parents avoid taking a female child to the doctor until she is a fraction away from death.26 Preferential treatment for males further explains why Bengali girls are fifty-percent more likely to die before age six than Bengali boys.27 Furthermore, in some societies, female children have a higher propensity to suffer from acute nutritional deficiencies, stunted growth, and being severely underweight in
22 23 24 25 26

Ragsdale & Campbell, supra note 14, at 185. Id. at 186. Id. at 187. Id. at 187-88.

Cynthia Price Cohen, The United Nations Convention on the Rights of the Child: A Feminist Landmark, WM. & MARY J. OF WOMEN & L. 29, 41 (1997); see also Ragsdale & Campbell, supra note 14, at 186.
27

See Ragsdale & Campbell, supra note 14, at 186. 53

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comparison to male children.28 Perceived as a burden, female children are disposed of through involuntary marriage, which further diminishes their limited life prospects.29 B. Origins of Child Marriage Child marriage originally derived from social, economic, and religious foundations. Initially, child marriage protected females from unwanted sexual advances and promoted economic security within families.30 Throughout the Middle East, South Asia, and sub-Saharan Africa, poverty frequently drives families into giving their daughters away in marriage with the hope of alleviating destitute conditions and securing family honor.31 In Nigeria, for example, eighty percent of the poor marry prior to the age of eighteen in comparison with twenty-two percent of the rich, who have access to adequate education and social networks.32 Poverty, in conjunction with the cost of dowries, makes female children an economic burden, thus allowing child marriage to alleviate the cost and responsibilities associated with raising a girl.33 Furthermore, grooms parents gain free labor and dowry, allowing child marriage to create a reciprocal relationship of exchange.34

28 29 30 31 32

Ragsdale & Campbell, supra note 14, at 187-88. Id. at 177. De Silva-de-Alwis, supra note 5, at 1. Id. at 32.

Laura Davids, Female Subordination Starts At Home: Consequences of Young Marriage and Proposed Solutions, 5 REGENT J. INTL L. 299, 302 (2007).
33

Ladan Askari, The Convention On The Rights of the Child: The Necessity of Adding a Provision to Ban Child Marriages, 5 ILSA J. INTL & COMP. L. 123, 126 (1998).
34

Id. 54

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Certain religious and cultural practices promote the ideal that girls should marry at young ages.35 During one period of time, Hinduism required child marriages with large age gaps between the bride and groom.36 Although Islam does not impose this requirement, Islam

similarly promotes the concept of child marriage.37 This may be interpreted by the act of Muhammad, the Islamic prophet, marrying Aisha, who was less than nine years old at the time of the marriage.38 Other religions similarly promote child marriage.39 For example, in the Christian state of England, conventional common law recognized the marriage of girls twelve years of age.40 Even in the United States, the state of Kansas allowed a twelve-year-old girl to marry based on old English common law.41 Many religions indirectly promote child marriage by stressing the preservation of the females virginity.42 By marrying off a young child, parents preserve their daughters purity

35 36

Askari, supra note 33, at 126.

GEORGE P. MONGER, MARRIAGE CUSTOMS OF THE WORLD: FROM HENNA TO HONEYMOONS 152 (2004) ([I]t was also decreed in Hindu writings that a man of thirty should marry a girl of twelve and that it would be sinful for a man to break this rule. Early Hindu religious writers said that a girl should be married at the age of ten or twelve years.); see Davids, supra note 32, at 303.
37 38 39 40

Askari, supra note 33, at 129. Davids, supra note 32, at 303. Id. at 304.

In re Marriage of J.M.H. and Rouse, 143 P.3d 1116, 1119 (Colo. App. 2006) (citing HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 2.1 (2d ed. 1987)).
41 42

See State v. Sedlack, 787 P.2d 709, 710 (Kan. 1990); see also Davids, supra note 32, at 304. Davids, supra note 32, at 304. 55

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from threats and allegations of sexual promiscuity.43 As females advance beyond puberty, Islamic practice raises questions concerning her purity.44 A parents attempt to prevent sexual immorality often results in early marriage for the female child and is also employed as a tactic to preserve familial respect. 45 As a result, older girls carry higher dowry prices and are viewed as damaged goods. 46 For instance, in Bangladesh, dowry prices double for fifteen-year-old girls who have not yet married.47 This line of reasoning is premised on the belief that a womans virginity plays an enormous role in preserving family honor.48 Further, it is also culturally feasible for families belonging to higher socio-economic classes to embrace the practice of child marriage.49 In some countries, custom demands that the husband pay a price for his future bride.50 This custom, however, similarly encourages child marriage because the brides family can profit from having their child married, and her family is also relieved from having to care for the child.51 In effect, desperate families sell their children as wives to settle debts and provide

43 44 45 46 47 48 49 50

Davids, supra note 32, at 304. Askari, supra note 33, at 126. Id. Id. Davids, supra note 32, at 302. De Silva-de-Alwis, supra note 5, at 32. See id.

Barry Bearak, The Bride Price, N.Y. TIMES (July 9, 2006), http://www.nytimes.com/2006/07/09/magazine/09BRI.html?_r=0; see Davids, supra note 32, at 302.
51

Davids, supra note 32, at 302. 56

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For example, a family in Zimbabwe sold their ten-year-old

daughter for seven United States dollars to raise money for food.53 Over time, the origins of child marriage have detrimentally evolved, promising a limited future for girl children across the world. In many countries where child marriage has a high frequency, gender bias places a females worth on her success in childbearing.54 Female children are expected to satisfy societys expectations and fulfill the duties of child-rearing and domestic responsibilities.55 Whereas parents invest in their sons education so that they will serve as financial providers, females must learn obedience and the craft of performing domestic duties.56 Education for young girls is considered a waste, as domestic responsibilities are viewed as the best source for a girls education.57 Educational deprivation leads to child marriage because girls granted secondary education are less likely to marry young.58 However, in many places, a girls access to education is inhibited due to domestic responsibilities and child bearing following marriage.59 Quite often,

52 53

Davids, supra note 32, at 302; Barry Bearak, supra note 50.

Davids, supra note 32, at 302; Early Marriage: Sexual Exploitation and the Human Rights of Girls, FORUM ON MARRIAGE & THE RTS. OF WOMEN & GIRLS, 8 (Nov. 2001), http://www.crin.org/docs/resources/publications/1367EarlyMarriage.pdf.
54 55

Askari, supra note 33, at 127.

See Sarah Y. Lai & Regan E. Ralph, Recent Development: Female Sexual Autonomy and Human Rights, 8 HARV. HUM. RTS. J. 201, 220 (1995); see also Davids, supra note 32, at 304.
56 57 58 59

Davids, supra note 32, at 304. Askari, supra note 33, at 127. De Silva-de-Alwis, supra note 5, at 20. Id. 57

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lack of education is both a cause and effect of child marriage.60 Hence, cultural expectations limit the prospects of females and basically prohibit women from venturing beyond the domestic area.61 The desire to craft a submissive wife is satisfied by child marriage.62 From the outset, the bride-to-be is deprived of any independence because she is transferred from her fathers control directly over to her husbands control.63 Essentially, the female child is denied the opportunity to develop opinions and create a sense of identity outside of her familial or marital household.64 Ultimately, this forces girls to remain dependent on men throughout their entire lives.65 The magnitude of this situation worsens when girls marry men who are significantly older, therefore guaranteeing a lifetime of intimidation and control.66 C. Effects of Child Marriage The effects of child marriage can be devastating. Often, girls find themselves in homes with added responsibilities such as child bearing and household labor.67 Lacking the requisite autonomy to negotiate sexual experiences, child marriage is synonymous with sanctioned
60

De Silva-de-Alwis, supra note 5, at 18 (stating that early marriage has been universally associated with low levels of education).
61 62

Davids, supra note 32, at 304.

Elizabeth Warner, Behind the Wedding Veil: Child Marriage as a Form of Trafficking in Girls, 12 AM. U. J. GENDER SOC. POLY & L. 233, 243 (2004); see Davids, supra note 32, at 305.
63 64 65 66 67

Askari, supra note 33, at 126-27; see Davids, supra note 32, at 305. Askari, supra note 33, at 126-27. Id. Id. De Silva-de-Alwis, supra note 5, at 34. 58

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statutory rape.68 The girls parents sometimes endorse this sanctioned statutory rape.69 For example, in Ethiopia, parents clip their daughters fingernails and compel fasting to place them in a weakened state on the wedding night.70 For girl children, the wedding night consists of nothing less than forced consummation.71 Vulnerable due to their youth, child brides are subject to domestic abuse from their husbands and even in-laws.72 The stark age gap between husbands and wives promises a life where the young bride will be dominated and controlled.73 Due to the fact that most girl children are unable to perform duties similar to adult women, husbands react to their frustration with violence.74 Yet, young brides are unlikely to consider running away, as doing so often comes with severe consequences. 75 For example, Some years ago in the northern part of Nigeria, a little girl of nine was hacked to death by her ninety year old husband. She had been married to him in the name of tradition, but she refused to have the marriage consummated. She ran away to
68 69 70 71 72 73

See De Silva-de-Alwis, supra note 5, at 1-2, 34. Davids, supra note 32, at 310. Id. Id. De Silva-de-Alwis, supra note 5, at 34.

Tamar Ezer et al., Child Marriage and Guardianship in Tanzania: Robbing Girls of Their Childhood and Infantilizing Women, 7 GEO. J. GENDER & L. 357, 37879 (2006).
74

Early Marriage: Whose Right to Choose?, FORUM ON MARRIAGE & THE RTS. OF WOMEN & GIRLS, 20-21 (May 2000), http://forward-usrbucket.s3.amazonaws.com/downloads/Early%20Marriage%20Whose%20Right%20to%20Choos e-1.pdf.
75

See United Nations Childrens Fund, Early Marriage: Child Spouses, 7 INNOCENTI DIGEST 1, 12 (2001) [hereinafter Early Marriage: Child Spouses], available at http://www.uniceficdc.org/publications/pdf/digest7e.pdf. 59

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her family of orientation for protection but little did she know that no protection awaited her there. Twice she ran to her home for help and twice she was returned to her husband by her parents. The incensed husband then promised to do something to her that would ever prevent her from running away. With an axe, he crudely amputated both upper and lower limbs. Of course, she did not ever run away; she never lived to try. Two days later she died.76 The resulting harms of child marriage extend beyond a life of agony and further impair a child brides physical wellbeing. Child marriage also places enormous health risks on the girl child. It increases the risk of HIV as many girls are infected by their only sex partners, their husbands.77 Quite often, husbands are older and possess an abundance of sexual experience that is frequently accompanied by HIV.78 Because girls are pressured to bear children immediately, the majority of marital sex involving child brides, particularly in developing countries, is unprotected.79 Every day, approximately six thousand adolescents are infected with HIV.80 Further, girls between the ages of fifteen and nineteen are two to six times more likely to contract HIV than similarly aged boys in sub-Saharan Africa.81 In addition to AIDS, young brides are at an increased risk of contracting various sexually transmitted diseases. 82

76

Anjum Ashraf Ali, Child Marriage in Islamic Law 70 (Aug. 2000) (unpublished M.A. thesis, McGill University) (on file with McLennan Library, McGill University).
77

See Judith Bruce & Shelley Clark, The Implications of Early Marriage for HIV/AIDS Policy, POPULATION COUNCIL, INC., 2 (2004), http://www.popcouncil.org/pdfs/CM.pdf.
78 79 80

Id. Id.

Child Marriage by the Numbers, INTL CENTER FOR RESEARCH ON WOMEN (2006), http://www.icrw.org/files/images/Child-Marriage-Fact-Sheet-By-The-Numbers.pdf.
81 82

Id. De Silva-de-Alwis, supra note 5, at 35. 60

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Compared to developed women, children contract sexually transmitted diseases more easily.83 Female children are uniquely susceptible to sexually transmitted diseases because their vaginal membranes have a higher propensity of tearing due to fragile vaginal walls and lower mucus production.84 Married adolescents are isolated from educational resources that would provide them with the information necessary to prevent the transfer of diseases, and moreover, they lack access to contraception that would help delay childbirth.85 For these reasons, married adolescent females are at a grave risk of contracting sexually transmitted diseases as well as premature child bearing.86 Early child bearing is often an end result of early marriage. In poor nations, young females lack the medical resources to successfully deliver an infant.87 Sometimes taking hours and days of overwhelming pain, many deliveries result in the death of either the newborn or mother.88 For example, a low life expectancy for women may be attributed to pregnancy related complications, which is a leading cause of death for women between the ages of fifteen and nineteen.89 Even more compelling, females aged ten to fourteen years old are five times more

83 84 85

Davids, supra note 32, at 309. Id.

See Bruce & Clark, supra note 77, at 5; see also Early Marriage: Child Spouses, supra note 75, at 10-11.
86

See Davids, supra note 32, at 309; see also Early Marriage: Child Spouses, supra note 75, at 10-11.
87

Julie Polter, Girl, Interrupted: The Tragic Cost of Child Marriage, SOJOURNERS MAG., July 1, 2006, at 10(1).
88 89

Davids, supra note 32, at 307.

De Silva-de-Alwis, supra note 5, at 34-35 (noting that women under fifteen are five times more likely to die when compared to women in their twenties); Child Marriage and Health, 61

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likely to die during pregnancy compared to women who are approximately twenty-two years old.90 Even after successful childbirth, the females health is still at risk.91 For example, husbands often compel their wives to perform sexually following childbirth, even when vaginal tearing or other complications have occurred.92 The harms associated with early pregnancies also place babies born to young mothers at great risks, including premature birth, low birth rate, and poor mental and physical growth.93 For instance, babies born to young mothers have a much greater chance of dying when compared to babies born to mothers in their twenties.94 Hence, the practice of children having children produces massive health risks for the mother along with inter-generational health risks for the unborn baby. D. Applicable Law and Current Propensity of Child Marriage The primary international agreement geared towards combating child marriage is the CRC. 95 Comprising of 191 participatory nations, the CRC is the most ratified document in UN

INTL CENTER FOR RESEARCH ON WOMEN (2006), http://www.icrw.org/files/images/ChildMarriage-Fact-Sheet-Health.pdf (noting that obstetric fistula, a complication related to childbirth, is common amongst physically immature girls).
90

Too Young to Wed: Education & Action Towards Ending Child Marriage, INTL CENTER FOR RESEARCH ON WOMEN, 4 (2005), http://www.icrw.org/files/publications/Too-Young-to-WedEducation-and-Action-Toward-Ending-Child-Marriage.pdf [hereinafter Too Young to Wed].
91 92 93 94 95

See Davids, supra note 32, at 311. Id. De Silva-de-Alwis, supra note 5, at 34. See, e.g., Too Young to Wed, supra note 90, at 5. See CRC, supra note 10. 62

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history.96 With near universal ratification, the CRC reflects a global commitment to childrens rights.97 The CRCs global commitment is based on acknowledging core principles that maximize life prospects for children.98 A foundational principle going to the very heart of the CRC is its proclamation that the best interests of the child shall serve as the conventions primary consideration.99 In pursuit of this end, children are guaranteed fundamental protections that are usually inhibited by child marriage.100 This comprises of protection from all forms of abuse, including physical, mental, and sexual abuse.101 Furthermore, signatories are expected to protect

96

Kohm, supra note 12, at 58; see Laine Rutkow & Joshua T. Lozman, Suffer the Children? A Call for United States Ratification of the United National Convention on the Rights of the Child, 19 HARV. HUM. RTS. J. 161, 162 (2006) (describing the CRC as a successful treaty because of its near-universal ratification).
97

Kohm, supra note 12, at 5; see Rochelle D. Jackson, The War Over Childrens Rights: And Justice for All? Equalizing the Rights of Children, 5 BUFF. HUM. RTS. L. REV. 223, 225 (1999) (predicating the success of the Convention of the CRC due to the fact that almost all nations have signed the convention); see also Crystal J. Gates, Note, Working Toward a Global Discourse on Childrens Rights: The Problem of Unaccompanied Children and the International Response to Their Plight, 7 IND. J. GLOBAL LEGAL STUD. 299, 304 (1999) (describing the CRC the most thorough and inclusive human rights treaty); see also JANE FORTIN, CHILDRENS RIGHTS AND THE DEVELOPING LAW 3637 (2nd ed. 2003) (claiming that full compliance with the CRC would achieve the aim of protecting childrens rights).
98

See John Quigley, U.S. Ratification of the Convention on the Rights of the Child, 22 ST. LOUIS U. PUB. L. REV. 401, 402 (2003) (claiming that the CRC was a result of the belief that children are vulnerable).
99 100

CRC, supra note 10, art. 3.

Convention on the Rights of the Child: Protecting and Realizing Childrens Rights, UNICEF, http://www.unicef.org/crc/index_protecting.html (last updated Nov. 29, 2005) (claiming that the rights recognized in the CRC are geared towards allowing children to reach their potential).
101

See CRC, supra note 10, arts. 19, 34 (recognizing in article nineteen that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse . . . and recognizing in article 63

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children against all forms of exploitation, and provide maximum support for survival and development.102 While the CRC does not explicitly prohibit child marriage, the convention calls for the abolishment of traditional practices prejudicial to the health of children.103 In addition to protecting children from the chief harms of child marriage, the CRC also protects children from indirect consequences of child marriage. For example, children are promised the right to life,104 health, and access to health services.105 In addition, children are secured with the right to an education.106 Lastly, children are protected from all grounds of

thirty-four that States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse . . . to prevent the inducement or coercion of a child to engage in any unlawful sexual activity.); see also Kohm, supra note 12, at 59 (stating that article thirty-four protects children from sexual abuse); see also KAREN L. KINNEAR, CHILDHOOD SEXUAL ABUSE: A REFERENCE HANDBOOK 86 (2nd ed. 2007) (asserting that the purpose of article thirty-four is to protect children from exploitation).
102

CRC, supra note 10, art. 36 (States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the childs welfare.); see Kurtis A. Kemper, Construction and Application of the United Nations Convention on the Rights of the Child, 28 I.L.M. 1448 (1989) Global Cases and Administrative Decisions, 20 A.L.R. FED. 2d 95 (2007) (stating that the goal of the CRC was to protect humanitarian rights).
103

CRC, supra note 10, art. 24(3) (States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.).
104

Id. art. 6(1) (States Parties recognize that every child has the inherent right to life.); see SHARON DETRICK, A COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 125 (1999) (explaining how article six declares the childs right to life); see also Julia Velasco Parisaca & Wendy Medine, Bolivia: Mothers Teaching Mothers to Combat Malnutrition, IPS NEWS (Jan. 9, 2009), http://www.ipsnews.net/news.asp?idnews=45348 (basing Bolivias malnutrition policy upon the article six recognition of a childs right to life).
105

CRC, supra note 10, art. 24 (States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access of such health care services.).
106

Id. art. 28 (States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) make primary education compulsory and available free to all . . . .). 64

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discrimination, including sexual discrimination.107 Worth mentioning are two additional bodies of law geared towards combating child marriage. First, CEDAW aims to eliminate the unique forms of discrimination faced by women.108 According to the convention, signatory parties must take all appropriate measures to enable the advancement of women.109 To this end, states must take the necessary steps to eliminate discrimination as it exists in the spheres of education, health, social, and cultural life.110 Moreover, signatory parties shall recognize the right of women to marry freely and be active decision makers concerning the amount and timing of their children.111 As an enforcement mechanism, each state is expected to submit a committee report every four years with an explanation of the legislative, judicial, and administrative measures taken to further the documents provisions.112

107

CRC, supra note 10, art. 2(1) (States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind irrespective of the childs or his or her parents or legal guardians race, colour, sex . . . .).
108

See Convention on Elimination of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW].
109

Id. art. 3 (States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing hem the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.).
110

Id. arts. 10-15 (article 10, for example, provides that States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education . . . .).
111

Id. art. 16 (States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations . . . .).
112

CEDAW, supra note 108, art. 21 (The committee shall . . . report annually to the General Assembly of the United Nations on its activities and may make suggestions and general recommendations based on the examination of reports and information received from the States Parties.); see De Silva-de-Alwis, supra note 5, at 54-55 (noting that states are required to 65

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Second, the CCM focuses on protecting individuals against commanded marriage.113 The first CCM provision related to child marriage is the requirement of full and free consent of both parties.114 The second is that signatory parties are expected to designate a minimum age for marriage.115 The last is the obligation that all marriages be registered.116 Read together, the act of child marriage violates numerous conditions of the CRC, CEDAW, and the CCM. Child marriage violates numerous CRC provisions. A primitive reading of the broad best interest principle obligates states to abolish child marriage.117 While the CRC may lack an explicit provision banning child marriage, CRC violations are demonstrated by evidence showing that girls who marry early are exposed to violence, abandonment, and poverty.118 Furthermore, the CRC gains an abundance of leverage when read in light of CEDAW.119 For instance, child marriage is a violation of the principle of life, survival, development, and the girl consider practices that may be discriminatory in effect, and therefore contrary to a provision of CEDAW).
113

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Dec. 10, 1962, 521 U.N.T.S. 231 [hereinafter CCM].
114

Id. art. 1 (No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.).
115

Id. art. 2 (States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.).
116

Id. art. 3 (All marriages shall be registered in an appropriate official register by the competent authority.).
117 118 119

De Silva-de-Alwis, supra note 5, at 2. Id. Id. at 22. 66

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childs right to the highest attainable standard of health under both the CRC and CEDAW. 120 Additionally, child marriage barricades educational opportunities as guaranteed by both conventions.121 With the three aforementioned conventions in place, one can reasonably expect a significant decrease in child marriage. However, the current propensity of child marriage is quite to the contrary.122 The current rate of child marriage is at a towering level. Over thirty countries allow child marriage to take place while the female bride is below the age of fifteen.123 These regions primarily include Middle Eastern countries such as Lebanon and Iran, and African countries such as Ethiopia, Kenya, and Nigeria.124 Several countries have extremely high rates of child

marriage, including, but not limited to: Niger, at seventy-five percent;125 Chad, at seventy-two percent;126 Bangladesh, at sixty-six percent;127 Guinea, at sixty-three percent;128 Central African Republic, at sixty-one percent;129 Mali, at fifty-five percent;130 Mozambique, at fifty-two

120 121

De Silva-de-Alwis, supra note 5, at 3.

Id. at 3-4 (The responsibilities that women have to bear and raise children affect their right of access to education, employment and other activities related to their personal development.).
122

See Kohm, supra note 12, at 59 (claiming the European Committee on Crime Problems believes the CRC is ineffective).
123 124 125 126 127 128 129

Askari, supra note 33, at 125. Id. Child Marriage Facts and Figures, supra note 3. Id. Id. Id. Id. 67

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percent;131 Burkina Faso, at forty-eighty percent;132 Nepal, at forty-one percent;133 and Ethiopia, also at forty-one percent.134 This strikingly high rate of child marriage is best realized given that child marriages are practically unheard of in the United States and surveys on child marriage rates are usually not conducted in there.135 In some countries, child marriage amongst exceptionally young girls is an across the board practice. For instance, in Nepal, forty percent of girls marry before they turn fifteen, and in Mali, twenty-five percent of girls marry by the age of fifteen.136 Even more stunning, seventeen percent of girls in the Indian state of Rajasthan marry before reaching ten years of age.137 Unfortunately, any worldwide increase in marital age appears doubtful. Nevertheless, some researchers are optimistic that the worldwide marital age has improved.138 These claims may be called into question because most marriages are not

130 131 132 133 134 135

Child Marriage Facts and Figures, supra note 3. Id. Id. Id. Id.

See Child Marriage, DAY OF THE GIRL, http://dayofthegirl.org/child-marriage/ (last visited Feb. 28, 2013); see, e.g., State of World Population 2005: Child Marriage Fact Sheet, UNFPA (2005), http://www.unfpa.org/swp/2005/presskit/factsheets/facts_child_marriage.htm (providing a map of global trends on child marriage showing that the U.S. was not surveyed).
136 137 138

Kohm, supra note 12, at 71. Id. Askari, supra note 33, at 125. 68

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registered.139 Moreover, a shift towards increasing marital age does not imply a transition in cultural or social attitudes, but may be geared towards serving demographic interests.140 As a matter of fact, data suggest that while child marriage is decreasing, it is not doing so fast enough.141 Two surveys from 2007 showed that out of the fifty-five countries reviewed, thirtyfour had no significant reduction in the amount of child marriage and only five had experienced a decrease of more than ten percent.142 This staggered decrease in the occurrence of child

marriage raises questions concerning why the CRC, CEDAW, and the CCM cannot effectively combat child marriage. E. Why the CRC, CEDAW, and the CCM Are Not Effectively Combating Child Marriage The CRC has failed to guard children from child marriage. Although children have been vested with rights, many children still suffer from poverty, homelessness, abuse, neglect, preventable diseases, and unequal access to education due to child marriage.143 The fact that child marriage is the norm in many signatory nations illustrates the notion that a childs right to self-determination is subordinate to her culture.144 Without surprise, critics have expressed

139

Askari, supra note 33, at 125 (stating that most marriages are not registered despite legislation advising otherwise).
140

Id. (explaining that some countries increase marital age as a means toward development and as a method to reduce fertility).
141

Anju Malhotra et al., Solutions to End Child Marriage: What the Evidence Shows, INTL CENTER FOR RESEARCH ON WOMEN, 3 (2011), http://www.icrw.org/files/publications/Solutionsto-End-Child-Marriage.pdf.
142 143 144

Id. Kohm, supra note 12, at 61. Id. at 62. 69

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disgust with the CRC and view it as lacking necessary administration.145 Taking matters onestep further, some have criticized the CRC for sanctifying the practice of child marriage.146 Provisions of the CRC granting children protections are swallowed by other provisions, which allow cultural rules to trump international law.147 The conventions bright line definition of a child148 becomes meaningless as parents can override this provision with cultural and religious practices.149 The CRCs success is further weakened after considering the source charged with its enforcement: the very states that prize cultural and religious laws.150 Without international accountability, traditional practices of child marriage continue to occur as parents are granted broad latitude in determining who and when their children shall marry.151

145

See Kohm, supra note 12, at 59 n.15 (citing scholars who have harshly criticized the CRC); see generally Marc D. Seitles, Effect of the Convention on the Rights of the Child Upon Street Children in Latin America: A Study of Brazil, Colombia, and Guatemala, 16 INTL PUB. INT. 159 (1997) (critiquing the CRC).
146

Kohm, supra note 12, at 74; see Laura Adams, Privileging the Privileged? Child Well-Being as a Justification for State Support of Marriage, 42 SAN DIEGO L. REV. 881, 884 (2005) (noting where child marriage is accepted); see also Askari, supra note 33, at 127 (noting that child marriage is not prohibited in certain countries).
147

See Kohm, supra note 12, at 75 (noting article fourteen of the CRC, which grants parents the rights to control their childrens cultural heritage amongst other aspects of daily life).
148 149 150

See CRC, supra note 10, art. 1. Kohm, supra note 12, at 75.

See CRC, supra note 10, art. 4 (declaring that signatory parties should use appropriate measures to implement the rights stated within the CRC); see also Kirsten M. Backstrom, Note, The International Human Rights of the Child: Do They Protect the Female Child?, 30 GEO. WASH. J. INTL L. & ECON. 541, 565 (1996) (noting the diminished protection offered by the CRC due to its domestic delegation of enforcement).
151

See Kohm, supra note 12, at 77 (using examples of CRC signatories that have failed to protect girls from child marriage due to deference of parental discretion). 70

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Lacking international accountability, individual states do not enforce provisions of the CRC. 152 The international enforcement mechanism for the CRC is merely limited to a

monitoring system,153 and domestic laws offer no or lenient penalties.154 Similarly, CEDAW cannot effectively reduce the rate of child marriage with an enforcement mechanism based on a reporting system.155 Moreover, although domestic laws allow individuals to initiate complaints, it is unlikely for citizens and law enforcement to do so because of deeply rooted traditional acceptance of [child] marriage.156 Lastly, the CCM is also forceless because it fails to prescribe a minimum age for marriage.157 Hence, as with CEDAW and the CCM, the CRC recognizes the rights of children, but does not serve as an effective tool to combat traditional cultural practices.158

152 153

See Kohm, supra note 12, at 77.

See Convention on the Rights of the Child: Monitoring the Fulfillment of States Obligations, UNICEF, http://www.unicef.org/crc/index_30210.html (last updated Nov. 30, 2005).
154

Kohm, supra note 12, at 75 (stating that lenient punishments do not reflect the severity of child marriage); see JAYA SAGADE, CHILD MARRIAGE IN INDIA: SOCIO-LEGAL AND HUMAN RIGHTS DIMENSIONS 49 (Oxford University Press 2005) (discussing Indias lenient punishments for violations of child marriage laws); see also Vijayayashri Sripati, Indias National Human Rights Commission: A Shackled Commission?, 18 B.U. INTL L.J. 1, 39-40 (2000) (explaining the lack of enforcement of child marriage laws as the cause of its currency as opposed to a lack of legislation); see also Davids, supra note 32, at 319 (listing the number of countries that allow local customs to trump domestic law).
155 156

CEDAW, supra note 108, art. 18.

Kohm, supra note 12, at 76; see SAGADE, supra note 154, at 49 (noting how traditional acceptance of child marriage is reflected by lenient punishments for child marriages).
157 158

De Silva-de-Alwis, supra note 5, at 12. See Kohm, supra note 12, at 89. 71

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Policymakers have implemented several programs to end child marriage. Broadly stated, these programs aim to implement the following: (a) empowering girls with information, skills, and support networks; (b) educating and mobilizing parents; (c) enhancing the accessibility of schooling for girls; (d) offering economic incentives to girls and their families; and (e) implementing legislative and policy frameworks.159 Most programs geared towards eliminating child marriage attempt to empower girls with information and skills.160 The main rationale behind this type of program is to remove girls from social and economic isolation by providing them with skills and support networks, thus enabling girls to serve as their own advocates.161 Additionally, it is reasoned that girls with more human and social capital will have higher aspirations alternative to marriage.162 By changing societys perception of women, it will be unacceptable for parents to marry their daughters at young ages, therefore transforming conventional norms regarding child marriage.163 The second most used strategy to combat child marriage is parental and community engagement.164 This strategy is similar to the first approach, but also creates an enabling environment for parents to understand the consequences of child marriage and for community

159 160 161 162 163 164

Anju Malhotra et al., supra note 141, at 23. Id. at 11. Id. Id. Id.

Anju Malhotra et al., supra note 141, at 13 (noting that thirteen of twenty-three programs educate and mobilize parents and community members). 72

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members to transgress social expectations.165 Since girls cannot choose when they will marry, and because this decision is left to family members, parental education attempts to change social norms and change the custom of early marriage by appealing to parents and community leaders.166 With research showing that a girls education is strongly correlated with delayed marriage,167 enhancing the accessibility of formal schooling for females is the third most utilized approach to combating child marriage.168 Although child marriage may not directly cause girls to withdraw from school, research suggest that being out of school puts girls at risk of marriage.169 First, enrollment in school helps a girl to be seen as a child, and therefore, nonmarriageable.170 Second, schooling allows girls to acquire skills and information to better negotiate their interests.171 By attaining higher value via an education, the capital investment spent on girls may be seen as justifiable for parents.172 While measurable evaluations of

165

Anju Malhotra et al., supra note 141, at 13 (indicating that since girls frequently do not have the power to decide when and whom they will marry, parental education may allow for a change in social norms).
166 167

Id.

Id. at 14 (Girls with secondary schooling are up to six times less likely to marry as children when compared to girls who have little or no education.).
168

Id. at 14-15 (indicating that nine of twenty-three programs attempt to enhance the accessibility and quality of formal schooling for girls).
169

Id. (acknowledging the correlation between child marriage and girls being pulled out of school).
170

Anju Malhotra et al., supra note 141, at 14-15 (concluding that school attendance helps to shift norms about early marriage).
171 172

Id. Id. 73

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educational programs are difficult to undertake, these programs have increased girls secondary school enrollment and have produced an immediate and significant effect in delaying marriage in certain regions.173 Unfortunately, several studies have found that this strategy is underutilized as an avenue to prevent child marriage,174 despite the fact that these programs generally yield positive results.175 A fourth approach involves programs that attempt to eliminate the economic motivations behind marrying daughters at an early age by offering economic support and incentives to girls and their families.176 By creating economic opportunities for girls, this approach mitigates against poverty and the lack of income generating options that contribute to high child marriage rates.177 These programs financial incentives can increase the value and contribution of the daughter to her parents.178 By providing upward mobility and reducing economic factors, the financial incentives provided may very well reduce the rate of child marriage.179 In fact, these programs sometimes have the condition of educational investments in the girl child or the

173

Anju Malhotra et al., supra note 141, at 14-15 (indicating an educational programs success within two Bengali villages).
174 175

Id. at 14.

Id. at 15 (These programs are generally yielding positive outcomes on delaying marriage, and the increasing evidence base may provide the necessary momentum for such integration.).
176

Id. at 18-20 (indicating that eight of twenty-three programs offer economic incentives for girls and their families).
177 178 179

See id. at 18. Anju Malhotra et al., supra note 141, at 18. See id. 74

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obligation that she will not marry until age eighteen.180 In Bangladesh and Yemen, examples of educational investments involve microfinancing and skills training.181 While attitudinal change is not yet evident, these programs have nevertheless resulted in delayed marriage.182 Similarly, cash incentive programs have resulted in a reduction of early marriage.183 The last and least utilized strategy includes legislation and policy efforts aimed at reducing high rates of child marriage.184 However, due to the strength of religious, cultural, and custom based practices, legislation alone cannot effectively combat child marriage.185 In fact, programs that only aim at changing laws related to child marriage generally produce the weakest results.186 Instead, the strongest results are produced using the first approach, empowering girls with skills and resources.187 Moreover, survey results demonstrate that womens education is the only factor consistently associated with an increase in the age of marriage and

180 181 182 183 184 185 186

Anju Malhotra et al., supra note 141, at 18. Id. at 19. Id. See id. at 19-20. Id. at 20-24 (noting that four programs foster an enabling legal and policy framework). See Anju Malhotra et al., supra note 141, at 23-25.

Id. at 23 (noting how legislative efforts in Indonesia and Bangladesh only produced modest results).
187

Id. (noting programs such as the Maharashtra Life Skills program in India and Berhane Hewan program in Ethiopia that both yielded strong evaluations and addressed key factors of child marriage). 75

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childbearing.188 Hence, legislative policies produce the most success when paired with other intervention components.189 G. Examining Countries That Have Successfully Delayed Marriage Implementing educational programs and economic development in East Asia has led to delayed marriage, less child bearing, and more married women working outside the home. 190 Although traditional families in countries like China, North and South Korea, Japan, Hong Kong, and Taiwan are strongly male-dominated, a transition has occurred throughout every country in Asia where women are marrying later than they did in the past.191 Still, in both East Asia and South Asia, married women have little independence and are expected to live with their husbands family.192 Considering the shared social expectations between these regions, it is critical to uncover the cause of delayed marriage in Asia.193 In the Philippines, families have begun to provide the daughters with educational opportunities in place of landholdings, which are passed down to the sons; the result has been

188

OF POPULATION IN ASIA
189 190

Minja Kim Choe et al., Tradition and Change in Marriage and Family Life, in THE FUTURE 29, 39 (2002). See Anju Malhotra et al., supra note 141, at 26-27.

See Minja Kim Choe et al., supra note 188, at 29 (Throughout Asia . . . [y]oung people are waiting later to marry, couples are having fewer children, and more married women are working outside the home).
191

Id. at 29-30 (for example, [b]etween 1975 and 1995, the average age for marriage in Japan increased from 24 to 28 years for women and from 28 to 31 years for men . . . .).
192

Id. at 30 (As in East Asia, young women in most South Asian countries have little independence.).
193

See id. at 29-30. 76

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enhanced employment opportunities and delayed marriages.194 Additionally, in many other Asian countries, the trend towards longer schooling has led to delayed marriage for both men and women.195 By increasing job prospects for women, paid employment provides financial Put together, [e]ducation and

independence that reduces the pressure to marry early.196

employment tend to expand womens horizons and provide them with previously unavailable opportunities and lifestyles that compete with marriage.197 For educated girls, the decision to marry is likely to be significantly different compared to teenagers dependent on their families.198 In light of girls being financially independent and marrying later in life, arranged marriages have sharply declined in countries such as Japan.199 Further modernization in Asia has also led to structural changes in the labor market, enabling the creation of jobs compatible with traditional female roles. 200 As a result, there has been a considerable shift of women into the workforce.201 It is expected that women working before marriage will attach more value to their careers and less value to their roles as

194

Minja Kim Choe et al., supra note 188, at 30 (asserting that the provision of education has resulted in high levels of educational attainment for young women).
195 196 197 198 199

Id. at 30-31. See id. Id. at 31. Id. at 32.

Minja Kim Choe et al., supra note 188, at 32 (noting that the proportion of arranged marriages in Japan has decreased from sixty-three percent in 1955 to seven percent in 1998).
200 201

Id. at 31. Id. 77

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housewives and mothers.202 Even if women do not work following their education, a study of two communities of rural Bangladesh found that educated women have greater decision making authority within their families as compared to uneducated women.203 The findings of this study are critical, as many women in Bangladesh are extremely restricted in terms of making decisions concerning their health and deciding when to see a doctor.204 A different study of five countries in South Asia also found that women who are educated or who participate in paid work outside the family have more authority within the home.205 II. THE BEST INTERNATIONAL SOLUTION The strength of religious, cultural, and custom based practices makes legislation a weak tool to effectively combat child marriage. The CRC must be supplemented with an optional protocol requiring signatory parties to recognize the right of children through domestic law by providing financial incentives to families with single children below marital age. Part II of this paper is divided into two sections. Section (A) will discuss the implications of the optional protocol, which consists of two sections: the first article discusses financial incentives provided to girl children, and the second article discusses enforcement mechanisms. Section (B) will discuss the expected norm shifting process that will take place following states adoption of the protocol. If states adopt the optional protocol, a transition should take place whereby girl

202 203 204

Minja Kim Choe et al., supra note 188, at 31. See id. at 38.

Id. (finding that three-fourths of married women had little to no say in deciding whether to see a doctor and that two thirds of women could take a child to the doctor only in an emergency.).
205

Id. at 38-39. 78

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children will have increased social capital, and as a result, child marriage will not be feasible for families or state actors. A. Introducing an Optional Protocol The ineffectiveness of the CRC, despite the convention gaining the most signatories as compared to any other treaty, demonstrates the futility of mere legislation.206 Plainly stated, when CRC provisions and cultural practice cannot coexist in harmony, culture will inhibit the CRC provisions.207 The prime issue, therefore, is determining how to create legislation that will entice compliance from states, community leaders, and parents. The optional protocol to the CRC should contain the following text: Article 1 1. State Parties undertake to raise the funds necessary to implement programs granting financial incentives to families with single children below martial age who are enrolled in school on a full-time basis. 2. Each State Party may disburse such financial incentives preferably in the form of a tax credit, food or agricultural stipend, cash incentive, or via any other feasible method. 3. Each State Party shall take all necessary legal, administrative, and other measures to ensure the effective implementation and enforcement of the provisions of the present jurisdiction. 4. States Parties in a position to do so shall provide such assistance through existing multilateral, bilateral or other programs or, inter alia, through a voluntary fund established in accordance with the rules of the General Assembly. Article 2 1. The present Protocol is open for signature by any State that is a party to the Convention or has signed it. 2. Each State Party shall, within two years following the entry into force of the present Protocol for that State Party, submit a report to the Committee on the Rights of the Child providing comprehensive information on the measure it has taken the implement the Provisions of the Protocol.
206 207

See Kohm, supra note 12, at 59. See id. at 59-62. 79

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3. Strict criminal and civil penalties should apply to any individual who facilitates or participates in such a marriage, including the parents of the bride or groom.208 The first article of the protocol calls for states to raise the funds necessary to implement financial incentives to single children below marital age. This benefit should be conditioned upon full time enrollment in school. If families understand that the benefit is qualified by full time educational enrollment, they will be incentivized to send their children to school. The method of disbursement should be flexible. States should be able to choose between a tax credit, stipend, or any other feasible method. States should also have latitude in

determining the dollar amount of the financial incentive provided to families. For example, the financial incentive can mirror the cost of raising a child up until the age of eighteen. 209 An incentive of this proportion should alleviate the pressure on parents to have their children married prior to the age of eighteen. As an alternative option, incentives can weigh in the money lost from what would have been household labor.210 Further, incentives should incorporate scholarships and funding for school supplies to alleviate any financial burden associated with sending children to school.211 The second article of the optional protocol recommends a monitoring system and strict penalties to those who officiate child marriage. Monitoring systems should be implemented by an independent administrative agency charged with the task of protocol compliance. Thus, a
208

See, e.g., De Silva-de-Alwis, supra note 5, at 37-38 (stating that strict criminal and civil liabilities are necessary to effectuate the document).
209 210 211

See, e.g., Anju Malhotra et al., supra note 141, at 18-20. Id.

Id. at 15 (citing program examples such as the Zomba Cash Transfer Program in Malwai and Female Secondary School Stipend Program in Bangladesh). 80

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domestic monitoring body should be responsible for tracking and enforcing child marriage.212 Furthermore, there should be strict criminal and civil penalties for those found in contravention of the protocol. More importantly, penalties should focus on those responsible for the

marriage,213 as opposed to the coerced victim. The effectiveness of an administrative body created to enforce child marriage laws is likely to be called into question considering religious, cultural, and social norms. In response to this challenge, community-level programs that educate community leaders and parents about the effects of child marriage must be implemented. If parents receive a financial incentive, coupled with a wealth of knowledge explaining the detriments of child marriage, it is likely that an administrative body will have a significant level of influence. As a long-term goal, the

administrative body should aspire to educate and eventually appoint community leaders to the agency. B. Norm Shifting Process The ultimate goal of implementing financial incentives goes beyond funding education, and is geared towards shifting cultural norms that currently encourage child marriage. For example, many families have their daughters marry at young ages because girls are viewed as less marketable as they surpass adolescence.214 For this reason, the objection that families will still feel pressured to have their young daughters married remains a realistic possibility. However, during the norm shifting process, a widespread practice should commence whereby many girls marry after completing secondary school; therefore, a new norm may follow where
212 213 214

See, e.g., De Silva-de-Alwis, supra note 5, at 39. See id. at 38. See supra text accompanying notes 42-46. 81

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girls are not viewed as available until the age of eighteen. Ultimately, societal perception of young will be redefined and families will have less reason to be concerned that their daughters chances of marrying will be reduced if they postpone marriage. In effect, parents will be relieved from the pains of cultural pressure, which a prime motivator for child marriage.215 From a societal perspective, educated girls will be viewed as more valuable. This is because an education will equip girls with the tools and social networks necessary to become productive contributors to society. Hence, societys perception of women will not be limited to that of a child bearer or caregiver. Ultimately, if girls can make productive contributions to national economies, state governments will be willing to help redefine the role of women by affording them protections from child marriage. Although girl children in nations with high levels of child marriage often lack a voice to speak up for themselves, incentivizing education for children should directly benefit girls. First, by making education available to girl children, programs can focus on educating girls on their sexual and reproductive health. If female children are educated about the high mortality rates for young girls delivering babies, there is a greater chance that females will make informed decisions concerning their reproductive health. Also, it is likely that girl children will want to remain in school to satisfy eligibility requirements for the financial incentive. Thus, with more young girls completing secondary school, there is a higher chance that they will be equipped with the knowledge and maturity to make autonomous decisions concerning their health.216 Accordingly, legislation incentivizing education will impact individual decision-making concerning reproductive health.
215 216

See supra text accompanying notes 30-61. See, e.g., supra text accompanying notes 190-205. 82

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The ultimate issue, then, becomes one of affordability: how can we expect developing countries to undergo norm transition without the promise of funds necessary to sponsor incentive programs? After all, without first implementing the incentive program, the chances of norm shifting are doubtful. However, several members of the international community, including developing countries, have already acknowledged the importance of providing girl children with education to reduce the rate of child marriage.217 For example, programs have been implemented in Bangladesh, a developing country, which provides girls with scholarships so long as they remain in school.218 Similarly, India and other developing countries have implemented programs that provide cash or agricultural incentives to girls who remain enrolled in school.219 Several inferences may be drawn by the act of developing nations already providing cash incentives for education. First, it appears that developing nations place a sense of urgency on educating female children to prevent child marriage.220 This is best illustrated considering the fact that, although developing nations are already resource limited, they still take the necessary measures to provide incentivized programs to girl children.221 Second, because several states have already implemented incentive programs, it is likely these nations will adopt the optional protocol without objection. Furthermore, by accepting the optional protocol, nations will be making an explicit commitment, and will essentially hold themselves accountable to the international community.
217 218 219 220 221

See, e.g., supra text accompanying notes 190-205. See Anju Malhotra et al., supra note 141, at 19. See id. See id. at 2, 26. See id. at 26. 83

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It is also important to address the necessity of using an optional protocol as compared to directly amending the CRC. The CRC, like other multilateral treaties, has gained influence primarily because of the massive amount of signatory parties the convention has gained.222 However, a direct amendment to the CRC may be undesirable for signatory nations. In effect, there is a realistic possibility that a revised convention will lose signatory parties. Even if a revised treaty does not lose signatory parties, there is still a chance that nations will file reservations against the conventions new terms. If either scenario occurs, the CRC will lose a grave amount of its force. By utilizing an optional protocol, however, there is less need to consider signatory parties withdrawing from the treaty or filing reservations. Accordingly, an optional protocol will allow the CRC to maintain its forcefulness within the international community. CONCLUSION The effects of child marriage are devastating, especially for the female child. Although the CRC contains sections fundamental to recognizing the rights of children, the staggered rate of decreased child marriage indicates that the convention needs to be supplemented in order to effectively address the underlying cultural causes of child marriage. Although legislative reform is the most viable remedy to addressing child marriage, such legislative reform must be utilized to battle the cultural attitudes that promote child marriage. By incentivizing education and rigidly enforcing child marriage laws, the rates of child marriage should decrease and cultural attitudes are likely to transition.

222

See Jackson, supra note 97, at 225 (basing the CRCs success on the fact that almost all nations have become parties to the convention). 84

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Bringing the Problems of Supermaximum Confinement Out of Isolation: Using Recidivism to Change Public Opinion By Stefanie Gruber* The degree of civilization in a society can be judged by entering its prisons.1 How is it that a country can denounce terrorists treatment of prisoners and yet create a system of incarceration that produces the same level of psychological torture? What does supermaximum confinement2 entail and how does an inmate end up in one these facilities? Why is supermaximum confinement a growing trend in the incarceration scheme of the United States? How can this form of incarceration continue in light of the Constitutional prohibition of cruel and unusual punishment? Can a prisoner challenge incarceration under supermaximum confinement conditions on due process grounds? What are the human rights implications of supermaximum confinement? What is supermaximum confinement doing to those who are subjected to it? Why have Americans disregarded the disturbing trend taking place in the United States? What does this mean for our nation as a whole? How can the American publics opinion about supermaximum confinement be changed? Why is this important?

Impunity Watch, Senior Articles Editor, 2012-2013; JD Candidate, Syracuse University College of Law, 2013; BA, History and Sociology, summa cum laude, St. John Fisher College, 2009. Thank you to my family and fianc for always supporting me and believing in me.
1

Fyodor Dostoevsky Quotations, FYODORDOSTOEVSKY.ORG, http://www.fyodordostoevsky.org/quotes.php (last visited Mar. 17, 2013).
2

For purposes of consistency, this note will use the phrase supermaximum confinement as a general term. Different prison systems have implemented various titles for this method of incarceration, including control units, special management units or SMUs, special housing units or SHUs, high security units, intensive management units, and special controls units. See Craig Haney, Mental Health Issues in Long-Term Solitary and Supermax Confinement, 49 CRIME & DELINQUENCY 124, 151 n.1 (2003); see also id. at 125 (Despite the slight . . . variations in the ways different state prison systems approach this most restrictive form of confinement, supermax prisons have enough in common to permit some generalizations about what they are, why they have come about, what special mental health issues they raise, and how they might be regulated and reformed to minimize some of the special risks they pose.); see also SHARON SHALEV, SUPERMAX: CONTROLLING RISK THROUGH SOLITARY CONFINEMENT 3 (2009).

85

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Generally, when one is asked about the basic needs of a human being, three answers are given: food, shelter, and clothing. However, there is another more primal need that must also be fulfilled the need for human interaction. People are social creatures, meaning, in its most basic sense, that simply to exist as a normal human being requires interaction with other people.3 Depriving a person of meaningful human contact indefinitely is emotionally,

physically and psychologically destructive.4 For those who are incarcerated, this most basic need for human interaction is generally fulfilled. Inmates confined in the general population have cellmates, interaction during meals, recreation, and visitation, as well as access to reading material and opportunities for work within the prison.5 However, for those prisoners who are segregated from the general prison

population, the experience is much different. Supermaximum confinement strips a prisoner of all of these sources of meaningful human contact.6

Atul Gawande, Hellhole, THE NEW YORKER (Mar. 30, 2009), http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande.
4

Maria Godoy, Q&A: Solitary Confinement & Human Rights, NPR (July 27, 2006), http://www.npr.org/templates/story/story.php?storyId=5586937.
5 6

See SHALEV, supra note 2, at 1-2.

See Human Rights Watch, Mental Illness, Human Rights, and US Prisons: Statement for the Record to the S. Judiciary Comm. Subcomm. on Human Rights and the Law 3 (Sept. 22, 2009), available at http://www.hrw.org/sites/default/files/related_material/Human%20Rights%20Watch%20Stateme nt%20for%20the%20Record_9_22_09.pdf; see also COMMITTEE ON INTERNATIONAL HUMAN RIGHTS, SUPERMAX CONFINEMENT IN U.S. PRISONS 1 (N.Y.C. Bar Assn 2011) [hereinafter COMMITTEE], available at http://www2.nycbar.org/pdf/report/uploads/20072165TheBrutalityofSupermaxConfinement.pdf; see also Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 J. CONST. L. 115, 116 (2008); see also Haney, supra note 2, at 125-27; see also SHALEV, supra note 2, at 187. 86

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The prisoners subjected to supermaximum confinement are not a few select offenders. In the United States, there are over sixty facilities, on both the state and federal level, capable of housing at least twenty thousand prisoners in supermaximum confinement.7 Looking at these numbers in the context of the state and federal prison populations as a whole, supermaximum confinement accounts for close to two percent of all state and federal inmates serving one or more years.8 However, these numbers are merely estimates, as the Department of Justices Bureau of Justice Statistics, which offers a wide range of numerical measures of prisons and corrections policy, offers no numbers relating to supermax or long-term solitary confinement.9 The Federal Bureau of Prisons offers weekly population totals of inmates broken down by facility.10 As of March 14, 2013, the federal supermaximum confinement facility, the Florence ADMAX, held four hundred forty inmates.11 This means the remaining balance of the estimate is held in state supermaximum confinement facilities. operating supermaximum confinement facilities.12 As of 2004, forty-four states were

Lorna A. Rhodes, Pathological Effects of the Supermaximum Prison, 95 AM. J. PUB. HEALTH 1692, 1692 (2005); see Daniel P. Mears & Jamie Watson, Towards a Fair and Balanced Assessment of Supermax Prisons, 23 JUST. Q. 232, 232 (2006).
8 9

DANIEL P. MEARS, EVALUATING THE EFFECTIVENESS OF SUPERMAX PRISONS 1, 4 (2006).

COMMITTEE, supra note 6, at 9 (The estimate was the result of a 2006 commission chaired by former Judge John Gibbons and Nicholas Katzenbach, former Attorney General of the United States.).
10

See Weekly Population Report, FED. BUREAU OF PRISONS, http://www.bop.gov/locations/weekly_report.jsp (last visited Mar. 15, 2013).
11 12

Id. SHALEV, supra note 2, at 4, 22. 87

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This note approaches the topic of supermaximum confinement with the understanding that the general public has an out of sight, out of mind attitude towards prisoners.13 As soon as defendants are convicted and sentenced to a term in prison, they are no longer an immediate source of concern for the public and, therefore, no longer given a second thought. During the 1980s and 1990s, when supermaximum confinement facilities were emerging, policymakers sought to further tough on crime agendas.14 An attempt to divert attention to the rehabilitation and reintegration of prisoners with tax-payer funded programs is likely to be political suicide,15 as it could give the appearance of being soft on crime. Taken together, this has produced the environment necessary to both construct supermaximum confinement facilities and operate them with little public accountability. Preliminary material regarding the history and conditions of supermaximum confinement is indispensable as the backdrop for understanding the role of public opinion in holding the government and prison administrators accountable. An examination of the challenges to Prisoners have

supermaximum confinement that have proven fruitless is also necessary.

mounted legal challenges to supermaximum confinement under both the Eighth Amendment and the Fourteenth Amendment. The United States has also failed to adequately respond to

challenges to supermaximum confinement within the context of international law.

13

Supermax Prisons: An Overview, HUM. RTS. WATCH, http://www.hrw.org/legacy/reports/2000/supermax/Sprmx002.htm#P40_391 (last visited Mar. 17, 2012) (The public has either been indifferent or has uncritically accepted the punitive penal view of those who endorse the supermax approach.).
14 15

Mears & Watson, supra note 7, at 234.

Supermax Prisons: An Overview, supra note 13 (Fearful of being accused of coddling inmates or being soft on crime, few politicians have been willing to publicly challenge supermaxes on human rights grounds.); see also SHALEV, supra note 2, at 218. 88

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Appeals to the public on the basis of the human rights violations suffered by inmates subjected to supermaximum confinement have failed to galvanize organized assistance. Supermaximum confinements prevailing goal of punishment,16 coupled with tough on crime attitudes, has made it too easy for the public to dismiss the human rights implications of this form of incarceration. As such, an appeal to the publics own self-interest, as opposed to humanitarian impulses, may provide an effective method by which the proper level of public attention can be brought to the issue of supermaximum confinement. The bottom line is that supermaximum confinement, on the scale it is currently being used, is not working. The destructive psychological effects of this form of solitary confinement cannot be outweighed by any articulable benefit, including prison safety and security. This article proposes using recidivism17 as the vehicle to bring the plight of prisoners subjected to supermaximum confinement into the public consciousness. 18 While recidivism is a problem for prison populations across the board, inmates released from the total isolation of supermaximum confinement are likely to have lost whatever social skills and self-control they had when they went to prison, and . . . in some cases may be psychologically damaged beyond repair.19 Accordingly, the recidivism of concern here is violent recidivism. Prisoners subjected

16

See generally SHALEV, supra note 2, at 127 ([T]he main function of supermax prisons is to punish.).
17

Recidivism is measured by criminal acts that resulted in the rearrest, reconviction, or return to prison with or without a new sentence during a three-year period following the prisoners release. Recidivism, BUREAU OF JUST. STATISTICS, http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=17 (last updated Mar. 17, 2012).
18

The lack of public concern for the conditions of supermaximum confinement can also be attributed to the general lack of information available to the public regarding it. See SHALEV, supra note 2, at 5.
19

Rhodes, supra note 7, at 1695. 89

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to long-term isolation can suffer from anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations20 which can lead to violent behavior and outbursts upon reentry to society.21 A sweeping change will occur only if the public demands it, and holds its elected representatives accountable for bringing about the change. Publicizing the conditions of

supermaximum confinement is not enough to make the public care and act. Concern and a coordinated response will only result if the public sees a personal threat or benefit. A simple overview of the connection presented is that the psychological impact of supermaximum confinement creates prisoners who are ill equipped to successfully manage reentry into society at the end of their prison term. Therefore, when these psychologically

damaged prisoners are released, they either violate the conditions of their parole or commit a new violent crime to end up back in prison and likely back in supermaximum confinement.22 This is a public concern for two reasons. First, the increased risk of recidivism means that prisoners released from supermaximum confinement are more likely to commit a violent crime, which places the publics safety at risk. Second, the released prisoners are unlikely to be able to become productive members of society and, therefore, cost the general public, as

20 21 22

Haney, supra note 2, at 130. SHALEV, supra note 2, at 219-20; see id. at 202.

See Gawande, supra note 3 ([E]vidence from a number of studies has shown that supermax conditions . . . make it highly likely that [prisoners] will commit more crimes when they are released.); see also Haney, supra note 2, at 127 (If and when they are returned to prison on a parole violation or subsequent conviction, they are likely to be sent immediately back to supermax because of their previous status as a supermax prisoner.). 90

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taxpayers, more money either through the need for specialized care or incarceration costs if they reoffend.23 I. SUPERMAXIMUM CONFINEMENT At the outset, a distinction must be drawn between what can be referred to as the traditional form of isolation and what is supermaximum confinement.24 In the traditional form of isolation, prisoners have been physically segregated from the rest of the prison population and typically excluded from much of the normal programming, routines, opportunities, and collective activities available in the mainline institution.25 This form of isolation, used

predominantly between 1829 and 1890,26 limited the use of solitary confinement to relatively brief periods of punishment that were imposed in response to specified infractions of prison rules.27 Supermaximum confinement differs from the traditional form of isolation both in terms of the intensity and duration of the isolation, as well as in the reasons a prisoner would be subjected to it.28 The supermaximum confinement examined here focuses on administrative segregation, one of the three types of supermaximum confinement the other two types being punitive

23

MEARS, supra note 8, at ii ([S]upermaxes typically cost two or three times more to build and operate than traditional maximum security prisons.).
24 25 26

Haney, supra note 2, at 125. Id.

Laura Sullivan, Timeline: Solitary Confinement in U.S. Prisons, NPR (July 26, 2006), http://www.npr.org/templates/story/story.php?storyId=5579901.
27 28

Haney, supra note 2, at 125. See id. at 125-26. 91

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segregation and protective segregation.29 Administrative segregation is generally not imposed as a way of punishing prisoner misconduct and it is not imposed to shield a specific prisoner from the general population.30 Administrative segregation is used as an internal prison management tool31 and it is based on the dictates of the prison administration.32 Another feature unique to administrative segregation is the length of a prisoners confinement. This form of segregation under supermaximum confinement conditions is

generally imposed for an extended period of time. A prisoner in administrative segregation, for example, can be held for decades as opposed to a prisoner in punitive segregation being held for a period measured in weeks or months.33 The Attorney General oversees [t]he control and management of Federal penal and correctional institutions.34 The legislation governing the classification and treatment of

prisoners accounts for the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of the persons committed to such institutions.35 It is

29 30

SHALEV, supra note 2, at 2.

Id. (as the names indicate, those are the goals of punitive segregation and protective segregation, respectively).
31 32 33 34 35

Id. Stephen C. Richards, USP Marion: The First Federal Supermax, 88 PRISON J. 6, 13 (2008). SHALEV, supra note 2, at 2-4. 18 U.S.C.A. 4001(b)(1) (West 2012). 18 U.S.C.A. 4081 (West 2012) (emphasis added). 92

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the other factors that allow federal prison administrators a significant amount of latitude in the use of supermaximum confinement. This significant latitude is reflected in the regulations concerning the placement of a prisoner in supermaximum confinement. The Bureau of Prisons, under the authorization of the Attorney General, allows the warden of a particular facility to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury.36 Couched in terms of prison safety and security, the regulation gives the warden a considerable amount of discretion in determining which inmates will be placed in supermaximum confinement. The length of detention in supermaximum confinement is initially prescribed to be up to one hundred twenty days, or up to one year with the approval of the Attorney General.37 However, at the expiration of the initial placement, the inmates detention can be extended in increments of up to one year if the Attorney General or prison administrators believe there is just cause for doing so.38 At the state level, [m]any states place the supermax housing decision authority at the institutional level, while others place it with department of corrections (DOC) directors or deputy directors.39 Ohios regulations regarding an inmates housing placement center on an inmates violation of the rules of conduct and an inmates increase in security level due to a participation in a violent group disturbance or the commission of an act of violence against a

36 37 38 39

28 C.F.R. 501.3(a) (2012). 28 C.F.R. 501.3(c). Id. MEARS, supra note 8, at 5. 93

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staff member(s) or another inmate(s).40 Similar to the federal regulations, Ohios regulations limit the initial housing placement to ninety days, with periodic review to allow for additional time to be added if the rules infractions board decides it is necessary.41 Californias regulations regarding inmate housing assignments give a significant amount of discretion to the staff in determining the inmates housing placement, as well as whether the inmate will be placed in a double or single cell within the placement category.42 In California, an inmates housing

assignment is determined using a list of factors, including: the inmates length of sentence, enemies and victimization history, nature of commitment offense, and reasons for prior segregation.43 The relatively open-ended regulations and the amount of deference the courts have given to both federal and state prison management44 have made oversight of supermaximum confinement difficult. A. Brief History Supermaximum confinement is a relatively new form of incarceration in the United States. The Federal Bureau of Prisons reclassified the Marion, Illinois facility as its highest security prison in 1978.45 Then, in 1983, the Marion prison became the first to institute

40 41 42 43 44

OHIO ADMIN. CODE 5120-9-09(A)(1)-(3) (2011). OHIO ADMIN. CODE 5120-9-09(B)(1)-(3). CAL. CODE REGS. tit. 15, 3269 (2012). CAL. CODE REGS. tit. 15, 3269(a).

McKune v. Lile, 536 U.S. 24, 39 (2002) (It is well settled that the decision where to house inmates is at the core of prison administrators expertise.).
45

SHALEV, supra note 2, at 20. 94

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permanent lockdown.46 This meant that prisoners were isolated in their cells for twenty-three hours per day and lost communal meal and recreation time, work privileges, and educational programs.47 The states followed suit, and in 1989, California constructed Pelican Bay, a new complex the first supermax facility for the sole purpose of prisoner isolation.48 Pelican Bays construction was unique at the time because there was no need to build a yard, cafeteria, classrooms or shops . . . [i]nmates spen[t] 22 hours a day inside an eight-by-ten-foot cell with the remaining time spent alone in a small concrete exercise pen.49 The 1990s marked the building boom of supermaximum confinement facilities, including ADX Florence, the supermaximum confinement facility on the federal level.50 By 2004, forty-four states were operating supermaximum confinement facilities.51 Some prisons, like the Marion facility,52 were retrofitted to adhere to supermaximum confinement, while others, like the Florence facility, were new construction.53

46

Richards, supra note 32, at 9-10; see SHALEV, supra note 2, at 20-21 (The lockdown of the Marion prison is widely seen as marking the birth of the supermax doctrine.).
47 48 49 50 51 52

Sullivan, supra note 26; see SHALEV, supra note 2, at 21. Sullivan, supra note 26. Id. Id. SHALEV, supra note 2, at 4, 22.

Note that in 2007 the Marion prison was reduced to a medium security facility. Richards, supra note 32, at 18; see also USP Marion, FED. BUREAU OF PRISONS, http://www.bop.gov/locations/institutions/mar/index.jsp (last visited Mar. 17, 2013).
53

MEARS, supra note 8, at 5; see Richards, supra note 32, at 15. 95

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While the Marion, Illinois prisons permanent lockdown began in response to the murders of two guards in two separate incidents on the same day, the nations general movement towards supermaximum confinement can be attributed to more systemic issues.54 First,

beginning in the mid-1970s in response to the Nixon administrations war on crime,55 the size of Americas prison population exploded and made prison overcrowding a serious concern.56 Overcrowding made it difficult for prisons to provide inmates with opportunities to engage in productive activities so that prison administrators lacked positive incentives to manage the inevitable tensions and conflicts that festered behind the walls.57 And second, with a steep drop off in the provision of educational, vocational, and therapeutic programming in the name of rehabilitation,58 [i]n the mid-1970s, the United States formally abandoned its commitment to the rehabilitative ideals that had guided its prison policy for decades.59 Accordingly, prison administrations embraced a new philosophy built on the notion that incarceration was intended to inflict punishment and little else,60 as [p]risons throughout the country were filled to

54

These systemic issues, as opposed to increasingly dangerous criminals, fueled the movement. Haney, supra note 2, at 129 ([T]here is no evidence that the rise of supermax prisons was driven by the threat of some new breed of criminal or prisoner.).
55

See Richard M. Nixon Domestic Policies, PROFILES OF U.S. PRESIDENTS, http://www.presidentprofiles.com/Kennedy-Bush/Richard-M-Nixon-Domestic-policies.html (last visited Mar. 17, 2013).
56 57 58 59 60

Haney, supra note 2, at 127-28. Id. at 128. Id. Id. Id. 96

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capacity and beyond, and the prisoners who were crowded inside had few opportunities to engage in productive activities.61 B. Conditions of Confinement The hallmark of supermaximum confinement is the amount of time the prisoner spends alone.62 Supermax facilities essentially leave the prisoner alone with his or her thoughts, and little else.63 Segregated prisoners will spend anywhere from twenty-two and a half to twentyfour hours per day alone in their concrete cells, which measure between sixty and eighty square feet.64 The cell doors are not bars, but perforated stainless steel that obstructs [the prisoners] view to the outside, but at the same time allows no privacy in the cells.65 The inmates recreation time consists of approximately one hour per day alone in a concrete yard without any equipment.66 There are no group, work, or educational activities,67 the prisoners do not

congregate for any reason, and limited family visits are held through glass partitions prohibiting

61 62

Haney, supra note 2, at 128.

See SHALEV, supra note 2, at 152 (The design and regime in supermax units make it possible to keep prisoners locked up in their solitary cells for years with very little movement outside their housing units.).
63

See id. at 193 (One of the most noticeable things about supermax prisons is their lifeless quietness.); see also id. at 141 (Monotony, reduced sensory input and boredom are part and parcel of the experience of isolation.).
64 65 66

Id. at 3, 120; see Haney, supra note 2, at 126-27. SHALEV, supra note 2, at 121.

Id. at 3. See id. at 123 (The yard measures 26 by 10 feet and is surrounded by 20-foot high walls. The yards top is covered partly by a thick mesh screen, and partly by a Plexiglas cover. It contains no recreational equipment.).
67

Id. at 126. 97

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any physical contact. 68 Another defining feature of supermaximum confinement is the high level of control achieved through constant surveillance and inspection.69 II. PSYCHOLOGICAL EFFECTS OF SUPERMAXIMUM CONFINEMENT The psychological toll of supermaximum confinement makes it an inhumane and unsustainable form of incarceration. The prisoner subjected to supermaximum confinement suffers in way that few people outside the prison walls could understand, as [t]he problem of isolation goes beyond ordinary loneliness.70 These prisoners suffer a unique deprivation which is potentially one of the most painful deprivations that we can experience as social beings: the deprivation of human contact and social interactions.71 A prisoners response to this denial of meaningful human contact can take many forms. For example, the loneliness of such extreme isolation can make it difficult for prisoners to distinguish between reality and their own thoughts, or [the prisoners may find] reality so painful that they creat[e] their own fantasy world.72 The impact of supermaximum confinement on the prisoners has been the subject of many case studies and personal accounts provided by mental health and correctional staff who worked in supermax units, [and] a range of similar adverse

68 69 70 71 72

SHALEV, supra note 2, at 3. Id. Gawande, supra note 3. SHALEV, supra note 2, at 187.

Id. at 190 (One study of prisoners who were isolated for periods ranging from 11 days to 10 months reported both auditory and visual hallucinations.). 98

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symptoms have been observed to occur in prisoners.73

appetite and sleep disturbances, anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations.74 Additionally, direct studies of prison isolation have documented an extremely broad range of harmful psychological reactions,75 including insomnia, anxiety, panic, withdrawal, hypersensitivity, hallucinations, loss of control, irritability, aggression, rage, paranoia, and depression.76 According to Craig Haneys research and analysis, there is not a single published study of solitary or supermax-like confinement . . . that failed to result in negative psychological effects.77 The isolation of supermaximum confinement means that the degeneration of the prisoners mind can go unnoticed and, therefore, untreated.78 The Federal Bureau of Prisons offers mental health services to inmates79 and, per the National Commission on Correctional Health Care standards, treatment must be given to prisoners segregated from the general inmate

73

Haney, supra note 2, at 130 (Haney references five individual-specific case studies and personal accounts, as well as twenty-two broader and condition-specific direct studies of prison isolation).
74 75 76 77 78 79

Id. Id. Id. at 130-31. Id. at 132. See SHALEV, supra note 2, at 193, 198.

Mental Health Treatment & Counseling, FED. BUREAU OF PRISONS, http://www.bop.gov/inmate_programs/mental.jsp ((last visited Mar. 17, 2013). 99

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populations.80 In reality, however, inmates in supermaximum confinement are not likely to receive meaningful mental health care due to high staff turnover rates, understaffing in the units, and the high security measures preventing the appropriate amount of contact between doctor and patient.81 For those isolated prisoners who do receive mental health treatment, the [p]sychiatric examinations . . . can be conducted through video cameras and monitors without direct contact between the prisoner and the medical professional.82 This [t]elemedicine . . . further isolates prisoners and distances them from human contact.83 A prisoners inability to exercise personal autonomy, which is exacerbated in supermaximum confinement, can trigger some common psychological reactions that typically range from apathy to aggression.84 Beyond being deprived of the opportunity to exercise personal autonomy, the total control over prisoners lives in supermaximum confinement means that some prisoners become so reliant on the prison to [organize] their lives and daily routines that they lose the capacity to exercise personal autonomy.85 The loss of this capacity to exercise personal autonomy may render [prisoners] dysfunctional in society upon their release.86

80

HOLLY HILLS ET AL., EFFECTIVE PRISON MENTAL HEALTH SERVICES: AND IMPROVE TREATMENT 41 (Natl Inst. of Justice 2004), available at http://static.nicic.gov/Library/018604.pdf.
81 82 83 84 85 86

GUIDELINES TO EXPAND

Haney, supra note 2, at 143. SHALEV, supra note 2, at 125. Id. Id. at 196. Id. at 197 (emphasis added). Id.; see Rhodes, supra note 7, at 1695. 100

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Additionally, the pains of this deprivation are not easily alleviated by the reintroduction of human contact. Research87 has found that after [seven] days in isolation there [is] a decline in brain activity and that within the seven days this decline may be reversible.88 However, if the isolation persists for a longer period of time, it may not be.89 The decreased brain activity caused by the extreme solitude of supermaximum confinement can manifest itself in mental sluggishness, a disinclination to learn and . . . a drop in planning, motivation and physical activity.90 These manifestations may also include apathetic and lethargic behavior.91 In other words, depriving a human being of sustained social interaction can be just as destructive to the brain as a traumatic injury.92 Perhaps the most ironic result of supermaximum confinement is that as starved as [the prisoners] become for companionship, the experience typically leaves them unfit for social interaction upon release.93 III. CHALLENGING SUPERMAXIMUM CONFINEMENT Supermaximum confinement has been challenged on both legal and human rights grounds. Both avenues have proven to be unsuccessful in changing the way this country uses

87

See Paul Gendreau et al., Changes in EEG Alpha Frequency and Evoked Response Latency During Solitary Confinement, 79 J. ABNORMAL PSYCHOL. 54 (1972).
88

SHALEV, supra note 2, at 195; see Gawande, supra note 3 (EEG studies going back to the [1960s] have shown diffuse slowing of brain waves in prisoners after a week or more of solitary confinement.).
89 90 91 92 93

SHALEV, supra note 2, at 195. Id. Id. Gawande, supra note 3. Id. 101

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extreme isolation in incarceration. Even before supermaximum confinement began, in 1890, the Supreme Court of the United States discussed the traditional form of isolation in In re Medley. 94 The Medley Court was repelled by the practice of solitary confinement,95 characterizing placement in solitary confinement as a place where imprisonment always implies disgrace.96 The United States has also managed to skirt the human rights concerns of solitary confinement. While appearing to support resolutions relating to the humane treatment of

prisoners, this country has limited the import of such declarations to the reach of the protections offered by the Constitution. These are the same protections that failed to shield the prisoners from supermaximum confinement in the legal challenges. A. Legal Challenges in the United States Prisoners legal challenges to supermaximum confinement are almost certain to fail before they even begin. The courts deferential approach to the issue has left supermaximum confinement largely immunized from judicial review.97 As the law currently stands, as long as a prisoner receives adequate food and shelter, the extreme sensory deprivation that

94

In re Medley, 134 U.S. 160 (1890) (This case involved an inmates successful ex post facto challenge to a Colorado statute authorizing solitary confinement for certain death row inmates); see id. at 168 (A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, other, still, committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.).
95 96 97

COMMITTEE, supra note 6, at 6. In re Medley, 134 U.S. at 169.

COMMITTEE, supra note 6, at 2; see McKune v. Lile, 536 U.S. 24, 39 (2002) (It is well settled that the decision where to house inmates is at the core of prison administrators expertise.). 102

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characterizes supermax confinement will . . . almost always be considered within the bounds of permissible treatment.98 1. The Eighth Amendment The relevant portion of the Eighth Amendment to the United States Constitution prohibits the infliction of cruel and unusual punishments.99 While it is accepted that the Constitution does not mandate comfortable prisons,100 it does mandate humane punishments via the prohibitions of the Eighth Amendment.101 The Supreme Court has held that the Eighth

Amendment prohibits penalties . . . that transgress todays broad and idealistic concepts of dignity, civilized standards, humanity and decency.102 Solitary confinement is subject to scrutiny under Eighth Amendment standards103 and the length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards.104 An inmates successful challenge of a prison officials alleged violation of the Eighth Amendment requires: one, proof of the objective component, that the deprivation alleged must
98 99 100 101 102

COMMITTEE, supra note 6, at 2. U.S. CONST. amend. VIII. Rhodes v. Chapman, 452 U.S. 337, 349 (1981); see COMMITTEE, supra note 6, at 5. Estelle v. Gamble, 429 U.S. 97, 102 (1976).

Hutto v. Finney, 437 U.S. 678, 685 (1978) (citations omitted) (internal quotation marks omitted) (This case, decided on the eve of the supermax boom in the United States, involved indeterminate punitive isolation in unsanitary, unhealthy, and overcrowded conditions. The Supreme Court affirmed the Court of Appeals decision affirming an order that, in part, placed a maximum limit of 30 days in punitive isolation).
103

Hutto, 437 U.S. at 685; see Jennifer Wedekind, Fact Sheet: Solitary Confinement and the Law, SOLITARY WATCH, 1 (2011), http://solitarywatch.com/wp-content/uploads/2011/06/factsheet-solitary-confinement-and-the-law2.pdf.
104

Hutto, 437 U.S. at 686; see Wedekind, supra note 103, at 1. 103

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be, objectively, sufficiently serious; and two, proof of the subjective component, that a prison official must have a sufficiently culpable state of mind.105 In other words, a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.106 As to the first prong, a prison officials act or omission must result in the denial of the minimal civilized measure of lifes necessities.107 And for the second prong, the culpable state of mind must amount to deliberate indifference108 of the prisoners health or safety needs.109 The deliberate indifference standard often constitutes a difficult barrier.110 If a prisoner is provided with the basic needs of survival food, clothing, and shelter then evidence of psychological damage is not sufficient.111

105

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted) (internal quotation marks omitted) (The case involved a civil suit alleging an Eighth Amendment violation brought by a transsexual prisoner after the prisoner was raped in his own cell by another inmate. The petitioner sought damages and an injunction barring future confinement in any penitentiary. The petitioner alleged that the prison officials and staff had knowledge that petitioners prison facility was violent and knew that placing petitioner in that institution would result in his sexual assault. The Supreme Court remanded the case to the District Court to reconsider petitioners motion for additional discovery); see Wedekind, supra note 103, at 1.
106 107 108 109 110 111

Farmer, 511 U.S. at 847. Id. at 834 (citations omitted) (internal quotation marks omitted). Wilson v. Seiter, 501 U.S. 294, 297 (1991); see COMMITTEE, supra note 6, at 12. Farmer, 511 U.S. at 834. COMMITTEE, supra note 6, at 12.

Id.; see id. at 12-13 (The Supreme Court applied the deliberate indifference standard in favor of a prisoners Eighth Amendment claim in Hutto v. Finney, 437 U.S. 678 (1978). However, that claim was different from todays challenges in that the prisoner in Hutto faced a dirty, overcrowded cell and a poor diet). 104

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Application of this analysis came out in favor of the prisoners in Madrid v. Gomez.112 One of the issues the Madrid court focused on was the conditions in Pelican Bays supermaximum confinement facility, the Security Housing Unit (SHU).113 The majority of the inmates in the SHU included those who had violated prison rules, those with alleged gang affiliations, and those who had been administratively segregated because of prison administrators general concerns regarding assaultive or disruptive behavior.114 The court stated that the SHUs overall effect was one of stark sterility and unremitting monotony,115 as the inmates were severely deprived of normal human contact.116 The Madrid court heard the testimony of experts in the fields of medicine, psychiatry, psychology, and prison management and operation.117 More specifically to the areas of medical care, mental health care, and conditions in the SHU, the court received evidence from Dr. Armond Start, an associate professor at the University of Wisconsin Medical School and former director of health care services for the Oklahoma and Texas prison systems, Dr. Stuart Grassian, a psychiatrist and faculty member at Harvard Medical School and expert on the effects of solitary confinement, and Dr. Craig Haney, a professor of psychology at the University of California at Santa Cruz, who has specialized in the psychological effect of incarceration.118 The court received the expert opinions to answer the pivotal question of whether any of the psychiatric problems being experienced by SHU inmates are attributable to conditions in the
112 113 114 115 116 117 118

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995). Id. at 1227. Id. at 1227-28. Id. at 1229. Id. at 1230. Madrid v. Gomez, 889 F. Supp. at 1157. Id. at 1158. 105

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SHU as opposed to other factors, and if so, the extent and degree of such problems.119 The court concluded that many of the inmates incarcerated in the SHU did experience some degree of psychological trauma in reaction to their extreme social isolation and the severely restricted environmental stimulation.120 However, the effect on these inmates was not the same across the board, and those with pre-existing mental illness were the most susceptible to the psychological trauma.121 Considering the first part of the test, the Madrid court noted [t]he Eighth Amendment simply does not guarantee that inmates will not suffer some psychological effects from incarceration or segregation.122 [G]eneralized psychological pain such as loneliness,

frustration, depression or extreme boredom is not enough to give rise to an Eighth Amendment concern.123 The conditions will only give rise to such a claim if they inflict a serious mental illness, greatly exacerbate mental illness, or deprive inmates of their sanity.124 And as to the second portion of the Eighth Amendment test, the Madrid court engaged in extensive fact finding125 to conclude that the defendants had the requisite subjective knowledge.126

119 120 121 122 123 124 125

Madrid, 889 F. Supp. at 1232. Id. at 1235. Id. Id. at 1264; see Wedekind, supra note 103, at 1. Madrid, 889 F. Supp. at 1263. Id. at 1264.

Id. at 1156 ([T]he Court heard testimony from 57 lay witnesses . . . [and] received into evidence over 6,000 exhibits, including documents, tape recordings, and photographs, as well as thousands of pages of deposition excerpts.). 106

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The utility of Madrid is limited, however. The case dealt only with short-term stays in solitary127 and with those inmates either already suffering from or predisposed to mental illness.128 Furthermore, expert opinions are entitled to little weight in Eighth Amendment cruel and unusual punishment claims.129 The opinions of experts will not be directly relied upon by a court in making the ultimate legal determination. Rather, the court may use the experts testimony in assessing the effects of challenged conditions or practices, a subsidiary issue which may inform the final legal decision.130 2. The Fourteenth Amendment The Due Process Clause of the Fourteenth Amendment to the United States Constitution mandates that no state deprive any person of life, liberty, or property, without due process of law.131 An individuals liberty may derive from the Constitution or an expectation or interest created by state laws or policies.132 A successful Fourteenth Amendment challenge by a

126

Madrid, 889 F. Supp. at 1266-67 ([D]efendants had actual subjective knowledge that the conditions in the SHU presented a substantial or excessive risk of harm with respect to inmates who were mentally ill or otherwise particularly vulnerable to conditions of extreme isolation and reduced environmental stimulation. Yet defendants, in continued disregard for this risk, took no action to either exclude such inmates from the SHU, ameliorate the offending conditions with respect to these inmates, or otherwise seriously address the issue. This constitutes deliberate indifference.); see also Wedekind, supra note 103, at 1.
127 128

Wedekind, supra note 103, at 1.

See Madrid, 889 F. Supp. at 1265-66; see also Wedekind, supra note 103, at 1; see also COMMITTEE, supra note 6, at 14.
129 130 131 132

Madrid, 889 F. Supp. at 1159. Id. at 1159. U.S. CONST. amend. XIV, 1. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 107

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prisoner requires that he establish a protected liberty interest in avoiding supermaximum confinement, and that adequate due process was denied.133 Supermaximum confinement involves the deprivation of a prisoners liberty. The

Supreme Court has held that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement, but that a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations.134 However, that liberty interest is qualified.135 The prisoners liberty interest in avoiding specific confinement conditions must be evaluated by comparing the nature of those conditions themselves in relation to the ordinary incidents of prison life.136 The comparison must show that conditions sought to be avoided impose an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.137 In Sandin, however, this analysis produced an unfavorable result for the prisoner. Sandin involved a thirty-day period of incarceration in supermaximum confinement that, because of the length of the confinement, did not differ significantly enough from the previously imposed conditions of confinement to give the prisoner a liberty interest in avoiding the more severe conditions.138

133 134 135 136 137 138

Wilkinson, 545 U.S. at 222-24. Id. at 221-22. See id. at 222. Sandin v. Conner, 515 U.S. 472, 484 (1995). Id. Id. at 485-86. 108

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In Wilkinson, the Supreme Court did conclude there was a liberty interest in avoiding supermaximum confinement. As to setting a baseline from which to measure whether conditions would impose an atypical and significant hardship, the Court noted in dicta that assignment to [extreme isolation139] imposes an atypical and significant hardship under any plausible baseline.140 The conditions at issue in Wilkinson differed from those in Sandin, in that the length of supermaximum confinement was indefinite.141 While, so far, Wilkinson seems like a great precedent for challenging supermaximum confinement on due process grounds, there was an additional factor specific to the confinement at issue that persuaded the Court to conclude the prisoner had a liberty interest. The prisoner had a liberty interest in avoiding placement in the supermaximum confinement because, in addition to the other more severe conditions of confinement, it disqualifie[d] an otherwise eligible inmate for parole consideration.142 Concluding that a prisoner has a liberty interest in avoiding certain conditions of confinement is only half the battle. The second half involves the procedural aspects of placing an inmate in extreme solitary confinement. If there is a liberty interest, the second step of the overall analysis is to determine what process is due an inmate whom [the prison] seeks to place

139

Wilkinson, 545 U.S. at 223-24 (The Supreme Court was referring to the Ohio State Penitentiary, a supermaximum confinement facility, where almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; . . . the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room.).
140 141 142

Id. at 223. Id. at 224. Id. 109

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in supermaximum confinement.143 The Supreme Court has eschewed specific rules and has applied a framework analysis in making this determination.144 This framework was established in Mathews v. Eldridge,145 and considers three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.146 Overall, a due process challenge is likely to be unsuccessful unless the prisoner can show both that the supermaximum confinement is an atypical and significant hardship, and that adequate due process was denied. The application of the first portion of the analysis in both Sandin and Wilkinson demonstrate that an inmate incarcerated in supermaximum confinement indefinitely, but without the additional condition of automatic loss of parole eligibility, is unlikely to survive the first part of the test. Thus, a due process challenge to supermaximum confinement is unlikely to bring about significant change in how that method of incarceration is used. B. Human Rights Implications Human rights organizations have recognized the need to treat prisoners with dignity and have denounced the inhumane treatment of those who are incarcerated.147 Article five of the

143 144 145 146 147

Wilkinson, 545 U.S. at 224. Id. Mathews v. Eldridge, 424 U.S. 319 (1976). Id. at 335.

See Special Rapporteur of the Human Rights Council, Interim Rep. on Torture and Other Cruel, Inhuman or Degrading Treatment, transmitted by Note of the Secretary-General, 38, 50, U.N. Doc. A/63/175 (July 28, 2008) [hereinafter Interim Rep. on Torture]; see also id. 83 110

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Universal Declaration of Human Rights (UDHR) states [n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.148 Article five of the American Convention on Human Rights, echoes Article five of the UDHR, and then goes on to say that [a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.149 The Organization of American States Declaration of the Rights and Duties of Man declares that a prisoner has the right to humane treatment during the time he is in custody.150 In 2008, the interim report Special Rapporteur of the Human Rights Council (HRC) on torture and other cruel, inhuman or degrading treatment or punishment declared that supermaximum confinement for extended periods of time may amount to cruel, inhuman or degrading treatment or punishment and, in certain instances, may amount to torture.151 In 1992 the United States ratified the International Covenant on Civil and Political Rights (ICCPR).152 Article seven of the ICCPR forbids cruel, inhuman or degrading treatment or punishment, and article ten mandates that all prisoners be treated with humanity and with

(In the opinion of the Special Rapporteur, the use of solitary confinement should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort.).
148

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 5, U.N. Doc. A/RES/217 (III) (Dec. 10, 1948).
149 150

American Convention on Human Rights art. 5, Nov. 21, 1969, 1144 U.N.T.S. 143.

American Declaration of the Rights and Duties of Man, art. 25, O.A.S. Res. XXX (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003). 151 Interim Rep. on Torture, supra note 147, 77.
152

COMMITTEE, supra note 6, at 17. 111

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respect for the inherent dignity of the human person.153 The HRC takes the position that prolonged solitary confinement may amount to a breach of article 7 of the [ICCPR].154 However, in ratifying the ICCPR, the United States adopted reservations, binding itself to article seven of the ICCPR only to the extent such practices are also prohibited by the Fifth, Eighth and Fourteenth Amendments to the [United States] Constitution.155 In other words, the United States does not allow the ratification of human rights treaties to alter the current laws or practices.156 Legal challenges are limited to domestic courtrooms, as the reservations also declare that the United States will not submit to the jurisdiction of the International Court of Justice to decide disputes as to the interpretation or application of human rights conventions.157 Furthermore, all agreements concerning international human rights had been designated as nonself-executing,158 meaning that the treaty would become judicially enforceable only through the implementation of legislation.159 It has been contended that the use of supermaximum confinement violates these international instruments on human rights, and, more specifically, the humane treatment of

153 154 155

International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. Interim Rep. on Torture, supra note 147, 80.

COMMITTEE, supra note 6, at 19; see Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INTL L. 341, 341 (1995).
156 157 158 159

Henkin, supra note 155, at 341. Id. Id.

Self Executing Treaty, LEGAL INFO. INST., http://www.law.cornell.edu/wex/self_executing_treaty (last visited Mar. 18, 2013). 112

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The impact supermaximum confinement can have a prisoners health is not

illusory.161 There are three main factors inherent in solitary confinement that are exacerbated in supermaximum confinement: social isolation, reduced environmental stimulation, and loss of control over almost all aspects of daily life.162 Supermaximum confinement can take a serious toll on a prisoners mind as socially and psychologically meaningful contact is reduced to the absolute minimum, to a point that is insufficient for most detainees to remain mentally well functioning.163 The Committee Against Torture of the Office of the United Nations High Commissioner for Human Rights, recognizing the seriousness of the health implications of supermaximum confinement, has recommended that this incarceration method only be used in exceptional circumstances and otherwise abolished.164 The adverse effects on a prisoners health and well-being are serious and potentially irreversible.165

160 161

COMMITTEE, supra note 6, at 2.

See SHALEV, supra note 2, at 187 ([T]he adverse effects of solitary confinement on prisoners health are so severe that, in the context of coercive interrogation, international experts have identified solitary confinement as psychological torture.).
162 163 164

Id. at 188. Interim Rep. on Torture, supra note 147, 82.

Id. 80 (Exceptional circumstances referring to when the safety of persons or property is involved.); see id. (Principle 7 of the Basic Principles for the Treatment of Prisoners states, Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.).
165

SHALEV, supra note 2, at 218. 113

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Public awareness of issues in the community, both local and national, is vital to the health of that community.166 The strength of public opinion is often underestimated. With regard to supermaximum confinement, public opinion has the power to act as a check on it.167 The reality is, however, that public opinion only has this power when it is the attitude of more than a few activist groups. Public opinion needs to be just that, public. The general population of the United States needs to be informed about an issue that is important to it and this issue needs to be one that the general population has a personal interest in. The welfare of Americas prisoners rarely makes the cut.168 Prisoners are a difficult class of people for the public to generate concern about.169 But the reality is that what happens in correctional facilities has a significant impact on the health and safety of our communities.170 Supermaximum confinement can be an issue of public concern if the American people see a
166

JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICAS PRISONS 16 (Vera Inst. of Justice 2006), available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confinement.pdf (All public institutions, from hospitals to schools, need and benefit from strong oversight. Citizens demand it because they understand what is at stake if these institutions fail.).
167

Gawande, supra note 3 (The simple truth is that public sentiment in America is the reason that solitary confinement has exploded in this country, even as other Western nations have taken steps to reduce it.).
168

Maria Godoy, Q&A: Solitary Confinement & the Law, NPR (July 27, 2006), http://www.npr.org/templates/story/story.php?storyId=5587173 (Taxpayers tend to put prisons rather low on their list of public priorities. And that means the potential for . . . failure is heightened at prisons, which are among our most isolated institutions.).
169

See generally SHALEV, supra note 2, at 180 (A common technique for neutralising guilt or moral qualms about the treatment of others is to postulate that inmates constitute a class of individuals beyond the claims of morality.).
170

GIBBONS & KATZENBACH, supra note 166, at 16. 114

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direct connection from the effects of this form of incarceration to their own lives. Recidivism rates and violent crime can provide this connection. A. Supermaximum Confinement Leads to Increased Recidivism Supermaximum confinement increases recidivism.171 A study conducted in Washington state in the late 1990s found that prisoners termed seriously mentally ill or SMI and incarcerated in supermaximum confinement had higher recidivism rates than general population prisoners without serious mental illness.172 The recidivism rates compared at forty-six percent and thirty-eight percent, respectively.173 This data reflected recidivism rates involving new felonies, which also led the study to conclude that supermaximum confinement recidivists committed more serious i.e., violent new felonies.174 Emphasis must be placed on the conditions of confinement rather than on the individuals subjected to it. Upon release from prison, nearly all prisoners will experience some form of stress as they re-adjust to life on the outside.175 But this stress is pushed to the extreme and felt

171

See SHALEV, supra note 2, at 203 (Research has shown that recidivism rates of supermax prisoners who were released directly back to the community were significantly higher than those of prisoners who left a supermax 3 months or more before their release, as well as those of nonsupermax prisoners.); see also David Lovell et al., Recidivism of Supermax Prisoners in Washington State, 53 CRIME & DELINQUENCY 633, 633 (2007) (The research used a retrospective matched control design, matching supermax prisoners one-to-one with nonsupermax prisoners on mental illness status and up to eight recidivism predictors.).
172

See DAVID LOVELL & CLARK JOHNSON, FELONY AND VIOLENT RECIDIVISM AMONG SUPERMAX PRISON INMATES IN WASHINGTON STATE: A PILOT STUDY 9 (Univ. of Wash. 2004), available at http://www.son.washington.edu/faculty/fac-page-files/Lovell-SupermaxRecidivism4-19-04.pdf.
173 174 175

See id. at 9. Id. SHALEV, supra note 2, at 200. 115

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the most by those prisoners released after prolonged incarceration in a supermaximum confinement facility.176 This is especially true for those prisoners who are released directly from supermaximum confinement.177 Those who have been subjected to supermaximum confinement may simply be unable to adapt to free life and reoffend soon after their release.178 One of the arguments supporting the use of supermaximum confinement is that the general prison population, with access to programming and treatment, will have a better chance of post-release success if the violent and disruptive are segregated.179 However, this argument is completely oblivious to the fact that those who are segregated may someday be released, without having had access to programming and treatment and likely burdened with the mental and emotional issues triggered by supermaximum confinement. This argument also assumes that those who are segregated from the general prison population are the violent and disruptive prisoners, which is not always the case. Furthermore, this argument supports the conclusion that programming and treatment greatly increase an inmates likelihood of post-release success. Supermaximum confinement can be summed up as harsh and degrading, and [f]or many, the absence of normal social interaction, of mental stimulation . . . of almost everything that makes life human and bearable is emotionally, physically and psychologically destructive.180 The conditions of supermaximum confinement inhibit a prisoners ability to

176 177 178 179 180

SHALEV, supra note 2, at 200. See generally MEARS, supra note 8, at 5. SHALEV, supra note 2, at 220. Id. at 48. Godoy, supra note 4. 116

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cope with human interaction upon release from prison.181 This inability to cope with life on the outside may become so stressful that the former prisoner will want to return to the familiarity of regimented prison life.182 B. Using Recidivism Rates to Give the Public an Interest in Supermaximum Confinement Recidivism can be used to make supermaximum confinement immediately relevant to the general public on a personal level. People need to have a personal stake in the outcome before any real change can occur. Approximately ninety-five percent of the over thirteen million people incarcerated will eventually be released from prison.183 The conditions of confinement in supermaximum

facilities are torturous conditions that are proven to cause mental deterioration and prisoners often are released directly from solitary confinement and other high-security units directly to the streets, despite the clear dangers of doing so.184 These prisoners have not had access to treatment or prison programs and most likely are not rehabilitated, which poses a danger to public safety.185 Prisoners reactions to supermaximum confinement can include overwhelming rage, which can manifest itself in violence. It is plausible, indeed almost predictable, that some of the prisoners who are released from the harsh supermax environment directly back to the

181 182 183 184 185

Godoy, supra note 4. SHALEV, supra note 2, at 200. GIBBONS & KATZENBACH, supra note 166, at 11. Id. at 14. Id. at 15; see SHALEV, supra note 2, at 216. 117

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community will react violently.186 Supermaximum confinement does not promote safety or rehabilitation and is damaging . . . to the public when prisoners are released.187 The public will most certainly have an interest in how tax dollars are spent. At the level of the individual prisoner, it is twice as expensive to incarcerate an inmate in supermaximum confinement rather than the general prison population.188 The United States spends more than sixty billion dollars annually on corrections189 and as the rates of supermaximum confinement continue to climb, so will the amount spent on corrections.190 This increase could be curbed if more of the funds dedicated to supermaximum confinement were diverted to prisoner treatment and education.191 Unfortunately, as long as the political benefits of punitive rhetoric and policies continue to outweigh those of rehabilitation and reintegration efforts, this is unlikely to change.192 This is exactly where public opinion could begin the change the public must demand that the prisons focus more of the taxpayers dollars on rehabilitation and reintegration.

186

SHALEV, supra note 2, at 219; see, e.g., id. at 202 (One parolee who was released from Pelican Bay SHU was arrested a day after his release and charged with raping and viciously beating a young woman with a [tire] iron. Prior to his incarceration in the SHU, the man was a small-time car thief . . . .).
187 188 189 190

GIBBONS & KATZENBACH, supra note 166, at 20. Id. at 15. Id. at 11.

See generally SHALEV, supra note 2, at 76 (The third group of prisoners placed in supermaxes are those paroled from a supermax that have either violated the terms of their parole or were returned to prison with a new prison term. In California, such prisoners are automatically returned to the SHU as soon as they are incarcerated, regardless of the nature of their original or new offence . . . rates of parole violations are very high . . . Parole violators who were paroled from a SHU will be sent directly back to it upon their return to prison.).
191 192

Id. at 218. Id. 118

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Our society needs to return to the method of corrections and rehabilitation, and move away from todays primary method of punishment. Supermaximum confinement is a form of punishment beyond ordinary incarceration. The desire to punish those convicted of crimes is creating criminals who are unfit to re-enter society, yet do so anyway. A former inmate, damaged by the experience of supermaximum confinement, is likely to cause a new harm to society and continue the vicious cycle. Legal challenges have failed to bring about the necessary change, and have actually narrowed the scope of prisoner redress by allowing prison administrators to figure out how to avoid judicial review. The change is even less likely to come from the political arena while tough on crime is still a popular and effective platform. Finally, one should consider the policy implications that favor public action over judicial intervention. If prisoner litigation under the Eighth Amendment or Fourteenth Amendment were to be successful, it is almost guaranteed that there will be a flood of new cases filed alleging the same conditions and demanding the same relief. This would inundate an already overwhelmed court system. However, if the public were to take action through its elected representatives and enforceable legislation, an appropriate outcome would result without the burden on the judicial system.

119

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The Heart of Ugandas Anti-Homosexuality Bill Has American Blood Running Through It By Emily J. Krouse* ABSTRACT Gay rights have become an increasingly popular debate topic over the last several years. Certain countries have been at the forefront of many of these discussions. For instance, Uganda and the United States are two countries that have frequently been in the news regarding their treatment of homosexuals. In 2009, Uganda addressed the Anti-Homosexuality Bill (the Bill) that sought to heighten the criminal liability of a person found to be a homosexual or found to have knowledge of homosexual actions and did not inform authorities.1 The Bill originally presented the idea that these sorts of actions by Ugandans would result in death. This segment was swiftly removed from the Bills proposed purposes and replaced with a conviction resulting in life in prison.2 As recently as 1973 it was considered a disability in the U.S. if a person engaged in homosexual behavior or identified as a homosexual.3 In some states until the mid 2000s sodomy

Impunity Watch, Editor-in-Chief, 2012-2013; J.D. Candidate, Syracuse University College of Law, 2013; B.A. History and Journalism, cum laude, Miami University, 2009. To my friends and family, your love and support have been my rock throughout three trying years of law school. I truly can't thank you enough for everything. To the staff of Impunity Watch, thank you for your dedication to the IW mission and for giving a voice to people around the world who are so often rendered voiceless.
1

Uganda Anti-Gay Bill Shelved by Parliament, BBC NEWS: AFRICA (May 13, 2011), http://www.bbc.co.uk/news/world-africa-13392723.
2 3

Id.

Psychiatric Treatment and Sexual Orientation, Position Statement, AM. PSYCHIATRIC ASSOC. (Dec. 1998), http://www.psychiatry.org/advocacy--newsroom/position-statements. 120

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was still a criminal offense.4 While these laws are no longer effective in the U.S., it does beg the question: Are Americans really that much more accepting of homosexuality than a third world country like Uganda? It would seem to this author that the answer is no. It is easy to disagree due to the fact that the U.S. is visibly more accepting of homosexuals. For example, they are on television, in films, and even able to be out in most social settings without fear of persecution. Further, this article argues that even though the U.S. may seem to be more respectful of homosexuals, some Americans with negative feelings are affecting the world by encouraging anti-homosexuality laws in other countries where such views are popular. The stretch of the American influence is far-reaching, and by not fighting against the negative influences of Americans in nations abroad, the U.S. is enabling discriminatory behavior. Shockingly, there have been claims that American Evangelical Christians were part of the reason that the Bill was drafted in Uganda.5 These American Evangelical Christians have played a key role in the campaign against homosexuality in Uganda, and, therefore, some of the blame for the drafting of this bill lies with them.6 Uganda defends its treatment of homosexuals by claiming that homosexuality is against Ugandan culture, religion, and morals.7 In the U.S., claims against gay rights are the same. Arguably, the U.S., as the greatest and most powerful country in the world, is no better and hardly any more advanced in the discussion and issue of gay rights than that of Uganda, a third
4 5

See Lawrence v. Texas, 539 U.S. 558, 575 (2003).

Michelle Goldberg, Uganda Anti-Homosexual Bills US Roots, DAILY BEAST (May 11, 2011, 6:56 PM), http://www.thedailybeast.com/articles/2011/05/11/uganda-anti-homosexual-billinspired-by-american-evangelicals.html.
6 7

Id.

Homosexuality is Against Our Culture, NEW VISION (Sept. 4, 2007), http://www.newvision.co.ug/D/8/459/584917. 121

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world country in Eastern Africa. On the outside, the U.S. may seem to be more forward thinking when it comes to gay rights, but, on the inside, the anti-homosexual thinking is still remarkably prevalent, influential, and it is reaching around the globe. INTRODUCTION Can you imagine being told that you cannot be with the person that you love? Or being told that how you feel is wrong? Or that your love and commitment are invalid? Or what you feel inside is reprehensible and goes against all that your community stands for culturally, religiously, and morally? In the eyes of many jurisdictions in the U.S., as well as many countries around the globe, this is the reality for many members of the gay community. Yet, people in the U.S. are lucky, despite the fact that gay marriage is not widely accepted among the states nor federally allowed. In 2003, the Supreme Court of the United States ruled in Lawrence v. Texas that homosexual conduct was no longer illegal; a decision that overruled Bowers v. Hardwick.8 In 1986, the Supreme Court held in Bowers that states have a right to criminalize consensual sexual behavior, even when it occurs in private.9 Specifically, the Court said the state of Georgia had a right to punish Michael Hardwick for sodomy even though his acts occurred in the privacy of his home.10 The police officer that witnessed Hardwicks conduct initially entered the house to serve a warrant for public intoxication.11 However, upon finding

8 9 10 11

See Lawrence, 539 U.S. at 558. Bowers v. Hardwick, 478 U.S. 186, 186 (1986). Id. at 188.

See Bowers v. Hardwick and the Right to Be Left Alone, GLSEN (Jan. 1, 1999), http://www.glsen.org/cgi-bin/iowa/all/news/record/31.html [hereinafter Right to Be Left Alone]. 122

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Hardwick engaging in a sexual act with another man, the officer placed Hardwick under arrest in his own bedroom.12 Nearly two decades later, in Lawrence v. Texas, the Supreme Court held, The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.13 Further, [t]heir right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government, wrote Justice Kennedy in the majority opinion for Court in Lawrence.14 Justice Kennedy continued, The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.15 While Lawrence was a landmark case that changed the lives of homosexuals in the United States, the Supreme Court has not ruled that all state constitutions prohibiting gays to marry are unconstitutional. This issue is currently awaiting review by the Supreme Court in Hollingsworth v. Perry.16 As of February 2013, only nine states and the District of Columbia allowed same-sex marriage.17 Massachusetts was the first state to legalize gay marriage. In Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court held that
12 13 14 15 16

See Right to Be Left Alone, supra note 11. Lawrence, 539 U.S. at 558. Id. at 592. Id. at 594.

See Perry v. Brown, 671 F.3d 1052 (2012); see also Hollingsworth v. Perry (Formerly Known as Perry v. Brown and Perry v. Schwarzenegger), LAMBDA LEGAL, http://www.lambdalegal.org/in-court/cases/perry-v-schwarzenegger (last visited Mar. 1, 2013).
17

Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws, NATL CONFERENCE OF STATE LEG., http://www.ncsl.org/default.aspx?tabid=16430 (last updated Feb. 2013). 123

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gay and lesbian couples could no longer be excluded from civil marriage rights in Massachusetts.18 In Uganda, homosexuality is already illegal, but in 2009 the government proposed the Bill.19 The Bill, if passed, would create new criminal offenses, including failing to turn

homosexuals into the police and promotion of homosexuality.20 To place this duty on the public is unfair and opens the door for the possibility of abuse. Additionally, the Bill would increase the prison sentence to life for those convicted of being homosexuals.21 By May of 2011, the Ugandan Parliament had shelved the Bill, and it was presumed that Uganda had felt pressure from the western world that the Bill was a gross violation of human rights.22 Indeed, it is likely that the Ugandan government hesitated to act out of fear of straining relationships abroad. Unfortunately, in October of 2011, Parliament brought the Bill back up for debate.23 I. UGANDAN SUPPORT FOR UGANDAS ANTI-HOMOSEXUALITY BILL Most Ugandans believe harassment of homosexuals or threatening statements by high government officials is simply the enforcement of Ugandan laws prohibiting homosexual
18 19

See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).

Hilary Heuler, Ugandan Gay Activists Killer Convicted as Parliament Debates AntiHomosexuality Bill, VOA NEWS (Nov. 11, 2011, 7:45 PM), http://www.voanews.com/english/news/africa/Ugandan-Gay-Activists-Killer-Convicted-asParliament-Debates-Anti-Homosexuality-Bill-133741338.html; see Memorandum from Hon. David Bahati, MP, Ndorwa County West-Kabale Dist. of Uganda (Apr. 20, 2009), available at http://wthrockmorton.com/wp-content/uploads/2009/10/anti-homosexuality-bill-2009.pdf.
20 21 22 23

Heuler, supra note 19. Uganda Anti-Gay Bill Shelved by Parliament, supra note 1. Id.

Bloomberg News, Uganda: Anti-Gay Bill Is Revived, N.Y. TIMES (Oct. 25, 2011), http://www.nytimes.com/2011/10/26/world/africa/anti-gay-bill-is-revived-in-uganda.html. 124

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activity.24 These laws reflect the culture and the sentiment of the vast majority of the Ugandan people.25 As one Ugandan noted, as a sovereign nation, we not only have the right, but also the obligation to enact laws that are supported by the vast majority of our people and reflect our culture and these values.26 A Kenyan marketing firm, Steadman and Associates Limited, conducted a poll showing that nearly all Ugandans ninety-five percent find homosexuality morally repugnant and absolutely unacceptable to their culture.27 Ugandans feel the democratic principle of governance mandates [their] government to make laws consistent with the values and aspirations of [the people of Uganda], even though these principles of governance may severely harm and damage the lives of hundreds or thousands of Ugandans.28 Additionally, Ugandans believe these laws are necessary to protect innocent people, including children, who may be tempted to engage in risky sexual behaviour and who are sometimes the victims of these acts.29 In Uganda, rumors have spread that homosexuals are the reason for child abuse, rape, and statutory rape.30 A letter from Pastor Martin Ssempa, a member of the President of Ugandas staff, to Scott Long, Director of the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch, concerning this issue as to why laws like the Bill are necessary, provided:
24 25 26 27 28 29 30

Homosexuality is Against Our Culture, supra note 7. Id. Id. Id. Id. Homosexuality is Against Our Culture, supra note 7. Heuler, supra note 19. 125

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Case in point is Benjamin Buloba who was sodomised and bled to death on October 15, 2004. Post mortem indicated much trauma to his rectum and he is reported having died, trying to put toilet paper in his rectum. It would be irresponsible of us to repeal these laws, if for no other reason than to try to protect people from this kind of activity and to vigorously prosecute and punish those who commit these crimes.31 Pastor Ssempa continued: Even more troubling is the implication in your letter that because your organisation disagrees with these laws, we should somehow simply ignore them and not enforce them. To criticise our government officials and even our President because they have spoken out in support of the enforcement of our duly passed laws is completely unacceptable. Ugandans decide Ugandan laws and policies.32 With ninety-five percent consensus, Ugandans clearly stand firm in their beliefs that homosexual behavior is an abomination that cannot be tolerated in their society. II. UGANDAS ANTI-HOMOSEXUALITY BILL HAS U.S. ROOTS American-style Evangelical Christianity in Uganda began to explode in the early 2000s. 33 There are links between many well-known anti-gay Americans and many of Ugandas anti-gay leaders.34 David Bahati, one of the Bills sponsors, is the secretary of the Ugandan branch of The Family, the secretive American Evangelical organization whose members include U.S. Senators James Inhofe, Jim DeMint, and Tom Coburn.35

31 32 33 34

Homosexuality is Against Our Culture, supra note 7. Id. Goldberg, supra note 5.

Jeff Sharlett, The Secret Political Reach of The Family, NATL PUB. RADIO (Nov. 24, 2009, 9:55 AM), http://www.npr.org/templates/story/story.php?storyId=120746516.
35

Id. 126

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In March 2009, three American Evangelical Christians, whose teachings about curing homosexuals had been generally discredited in the U.S., traveled to Ugandas capital, Kampala, to give a series of talks about the gay agenda and the threat homosexuals posed to Biblebased values and the traditional African family.36 These three American Evangelical Christians were presented as experts on homosexuality and spoke to thousands of Ugandans, including police officers, teachers, and national politicians, for three days.37 The topics discussed by the Americans included how to make gay people straight, how gay men often sodomized teenage boys, and how the gay movement is an evil institution with a goal to defeat the marriagebased society and replace it with a culture of sexual promiscuity.38 Only one month after these Americans left Uganda, an unknown politician claimed to have evangelical friends in the American government and, in 2009, introduced the Bill, which threatened to kill people if they were found to be homosexuals.39 Additionally, Pastor Ssempa, a strong advocate for the Bill, received at least $90,000 of American aid earmarked to promote and encourage the use of abstinence.40 Pastor Ssempa was a protg of Rick Warren,41 who

36

Jeffrey Gettleman, Americans Role Seen in Uganda Anti-Gay Push, N.Y. TIMES (Jan. 3, 2010), http://www.nytimes.com/2010/01/04/world/africa/04uganda.html.
37 38 39 40 41

Id. Id. Id. Goldberg, supra note 5. Id. 127

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curiously enough, was chosen by President Obama to give the invocation at his 2009 Presidential Inauguration.42 However, after much public pressure, Warren spoke out against the Bill.43 III. EFFECTS OF THE ANTI-HOMOSEXUALITY BILL Reverend Kapya Kaoma, a Zambian who went undercover for six months to experience firsthand the relationship between the Uganda anti-homosexual movement and the American Evangelicals, said, What [the Americans] have done is set [a] fire they cant quench.44 Kaoma was at the three-day conference and said that the three Americans underestimated the homophobia in Uganda and what it means to Africans when you speak about a certain group trying to destroy their children and their families.45 Further, human rights advocates in Uganda said the visit by the three Americans helped set in motion what could be a very dangerous cycle against homosexuals.46 Gay Ugandans already describe a world of beatings, blackmail, death threats like Die Sodomite! scrawled on their homes, constant harassment, and even so-called correctional rape.47 Stosh Mugisha, a gay rights activist said, Now we really have to go undercover.48 In July of 2009, a farmhand who wanted to cure Mugisha of her attraction to girls raped her in a
42

Ray Suarez, Controversy Emerges Over Obama's Choice of Inauguration Pastor, PBS NEWS HOUR (Dec. 18, 2008), http://www.pbs.org/newshour/bb/religion/july-dec08/rickwarren_1218.html.
43 44 45 46 47 48

Goldberg, supra note 5. Gettleman, supra note 36. Id. Id. Id. Id. 128

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guava orchard.49 She became pregnant and infected with HIV.50 Even Mugishas family was not supportive nor upset over the horrible rape she had gone through.51 Her grandmothers reaction to the atrocity was simply, You are too stubborn.52 IV. THE BILL TODAY In 2012, the Bill was reintroduced to the Ugandan Parliament, however, at that time the government opposed the possibility of there ever being a vote on the Bill, claiming that the outcry from the western world would be too detrimental to Uganda. 53 The Ugandan government released a statement in February 2012 stating: whilst the government of Uganda does not support this bill, it is required under our constitution to facilitate this debate. The facilitation of this debate should not be confused for the government's support for this bill.54 Even though the Bill is widely supported in Uganda, its progress has been slowed because of the strong disapproval expressed by the international community, including a public condemnation from President Barrack Obama.55

49 50 51 52 53

Gettleman, supra note 36. Id. Id. Id.

See Uganda Gov't Distances Itself From Anti-Gay Bill, CBS NEWS (Feb. 10, 2012, 8:12 PM), http://www.cbsnews.com/8301-501710_162-57375133/uganda-govt-distances-itself-from-antigay-bill/.
54 55

See id.

Uganda's Anti-Gay Bill Reintroduced in Parliament, FOX NEWS (Feb. 7, 2012), http://www.foxnews.com/world/2012/02/07/ugandas-anti-gay-bill-reintroduced-inparliament/print. 129

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European countries such as Sweden and Britain have threatened to cut aid to Uganda if the Bill passes.56 Additionally, three Americans who spoke at the conference in Uganda in 2009 have also spoken out against or publicly disavowed the Bill.57 Scott Lively, Caleb Lee

Brundidge, and Don Schmierer have all attempted to distance themselves from the Bill after learning that Ugandans were willing to go so far as to put others to death for their homosexuality.58 Further, due to the reintroduction of the Bill in February of 2012, the U.S. Department of State released a statement reiterating its stance that The Department of State opposes the Anti-Homosexuality Bill, which [it] view[s] as manifestly inconsistent with Uganda's international human rights obligations.59 The State Department also noted that during Uganda's recent Universal Periodic Review at the United Nations Human Rights Council, the country agreed to take immediate concrete steps to stop discrimination and assaults against LGBT persons.60 Unfortunately, as of December 2012 the Ugandan Parliament had discussed and promised to pass the Bill as early as possible.61 The Bill was up for a vote in early February 2013.62

56 57 58 59

Uganda's Anti-Gay Bill Reintroduced in Parliament, supra note 55. Gettleman, supra note 36. See id.

Chris Geidner, State Department: "Our Message Is Unchanged," Continues to Oppose Uganda Anti-Homosexuality Bill, METRO WEEKLY (Feb. 7, 2012, 11:35 AM), http://www.metroweekly.com/poliglot/2012/02/state-department-our-message-i.html.
60 61

Id.

Alexis Okeowo, Ugandas Kill the Gays Bill Back in Limbo, THE NEW YORKER (Dec. 18, 2012), http://www.newyorker.com/online/blogs/newsdesk/2012/12/ugandas-kill-the-gays-billback-in-limbo.html.
62

Id. 130

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Fortunately, the Bill was tabled again and no vote took place, but the Bill continues to linger on the Parliaments order papers under Business to Follow, meaning it could come up for debate and vote at any time.63 Today, opposition to the Bill within the Ugandan Parliament is almost non-existent, and Ugandan LGBT activists forecast that if Parliament votes on the Bill, it will likely pass.64 Since the proposal of the Bill, Ugandan President Yoweri Museveni has made conflicting statements about whether or not he supports the legislation.65 The possibility, and probability, of the Bills passage this year has led to additional objections from many countries. Due to the latest rhetoric surrounding the Bill, Britain, Germany, and several other European countries cut $180 million worth of aid to Uganda.66 The Canadian government has quietly spent more than $200,000 fighting the Bill since the nation's Parliament renewed its efforts to pass the Anti-Homosexuality Bill in late 2012.67 CONCLUSION With intense opposition to the Bill throughout much of the world, the Ugandan government once moved in the right direction by no longer supporting the Bill. However, the

63

Sunnivie Brydum, Canada Quietly Fights Ugandas Kill The Gays Bill, THE ADVOCATE (Mar. 7, 2013), http://www.advocate.com/news/world-news/2013/03/07/canada-quietly-fightsugandas-kill-gays-bill.
64 65 66

Id. Id.

Jocelyn Edwards, Ugandas Anti-Gay Bill is a Smoke Screen Obscuring Deeper Problems, DAILY BEAST (Dec. 15, 2012, 4:45 AM), http://www.thedailybeast.com/articles/2012/12/15/uganda-s-anti-gay-bill-is-a-smoke-screenobscuring-deeper-problems.html.
67

Brydum, supra note 63. 131

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Ugandan governments promise that the Bill would not be on the agenda for the coming year68 was clearly not upheld. Unfortunately, even though the Bill has not been passed to date, homosexual Ugandans constantly live in fear that the Bill could become law at any time. The irony throughout the entire story of the Bill is that Americans played such strong roles in both the support and opposition of it. This ranged from the support and incitement caused by the Evangelical Christian men who preached anti-homosexuality in 2009, to the strong opposition for the Bill from the American public, media, State Department, and President. It is shocking, worrisome, and widely unknown that the U.S. played such a large role in the initial support and backing of the Bill. While the U.S. has aided the opposition against the Bill, in many ways it still needs to do more to ensure that its own citizens are not spreading hate nor instigating this type of legislation around the world. While this type of bill would never stand in the U.S., the fact that American Christian Evangelicals are going to other countries to preach this type of hatred is an issue of impunity. Without repercussions for the people who preached hatred toward homosexuals and instigated the Bill, the U.S. enables the politically anti-humanitarian and anti-homosexual behavior of the Ugandans, and thus supports the Bill.

68

See Uganda Gov't Distances Itself From Anti-Gay Bill, supra note 53. 132

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Realizing the Right to Self: Resolving the Limited Scope of the Legal System in a MultiSexed and Multi-Gendered World By Brianne Yantz* INTRODUCTION In September 2011, Human Rights Watch1 issued a report detailing the ethical and legal violations regarding the rights of trans people2 in the Netherlands through the practice of forced sterilization.3 The reports foundational argument is premised on the notion that the right to ones own gender identity is vital for personal autonomy: The conditions imposed by article 1:28 of the Civil Code violate transgender peoples rights to personal autonomy and physical integrity and deny transgender people the ability to define their own gender identity, which the European Court of Human Rights has deemed to be one of the most basic essentials of selfdetermination.4 The report goes on to acknowledge that the Dutch government has recognized the egregiousness of its law; however, the failure to enact necessary changes prompted Human Rights Watch to

Impunity Watch, Managing Editor-Journal, 2012-2013; J.D. Candidate, Syracuse University College of Law, 2013; B.A. History, magna cum laude, Marist College, 2010. To my family and friends, thank you for your unwavering love and support. To the staff of Impunity Watch, thank you for all your hard work.
1

Human Rights Watch is a non-governmental organization that advocates for the worldwide enforcement and protection of human rights.
2

The term trans people is generally accepted to be synonymous with transgender, a classification that is sometimes recognized to include transsexual and gender-queer identities as well.
3

Controlling Bodies, Denying Identities: Human Rights Violations Against Trans People in the Netherlands, HUM. RTS. WATCH, 1 (Sept. 13, 2011), http://www.hrw.org/sites/default/files/reports/netherlands0911webwcover.pdf [hereinafter Controlling Bodies].
4

Id.

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propose its own reforms.5 In short, the objective of the report is to persuade the Netherlands to eliminate the current medical interventions required as a prerequisite to the legal recognition of trans identities and provide accommodation for a spectrum of gender identities.6 The arguments provided in the Human Rights Watch report7 have been, to some extent, influenced by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles),8 which maintain that international laws relating to gender identity are fragmented and inconsistent.9 To remedy this issue, the Yogyakarta Principles provide a set of idealistic legal standards that promote and protect all human rights for all persons on the basis of equality and without discrimination.10 Noticeably, the aims presented in the Human Rights Watch report and by the Yogyakarta Principles are essentially the same. The Yogyakarta Principles, however, are directed at a broader audience: the entire international community.11 Given the Yogyakarta Principles commitment to human rights and equality, the purpose of this note is to illustrate why the ideals behind the Yogyakarta Principles should be applied on

5 6 7 8

See Controlling Bodies, supra note 3, at 7-8. See id. at 1-8. See id. at 10-12.

The Yogyakarta Principles are a suggested set of reforms that serve as a global guide to human rights, specifically in regards to issues of sexual orientation and gender identity.
9

The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, YOGYAKARTAPRINCIPLES.ORG, 6 (Mar. 2007), http://www.yogyakartaprinciples.org/principles_en.pdf [hereinafter The Yogyakarta Principles].
10 11

Id. at 7. See id. at 6-7. 134

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an international scale. To demonstrate the validity of the Yogyakarta Principles proposed standards, this note will explain how the right to gender identity is not adequately recognized, protected, nor enforced under current legal regimes, both foreign and domestic. While

recognizing the shortcomings of the gender binary system, this note will focus most of its analysis within that system, as it is the current paradigm under which the law operates. Specifically, it will address the difficulties trans people face surrounding gender identification validation under currently disjointed laws that assume the legitimacy of only two sexes. This note will also prove the need for a uniform set of regulations under a more expansive gender system as well as the need for state accountability at the international level. Finally, this note will highlight where and how the Yogyakarta Principles fill in the gaps in current international human rights law (IHRL). At this juncture, it is important for this note to acknowledge that a 2011 report by the United Nations Office of the High Commissioner of Human Rights does provide some soft law12 on gender identity rights.13 However, that report does not address the intricacies of gender identity as thoroughly as the Yogyakarta Principles, nor do its overly generalized findings adequately express, or advocate against, the human rights abuses trans peoples face beyond overt

12

Soft law is a categorization generally used to describe agreements that are not formally binding. See Gregory C. Shaffer & Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, 94 MINN. L. REV. 706, 715 (2010). An agreement that is formally binding, but so vague as to leave almost complete discretion to the parties as to its implementation . . . [and] an agreement [that] does not delegate any authority to a third party to monitor its implementation or to interpret and enforce it . . . can [also] be soft [law]. Id.
13

U.N. High Commissioner for Human Rights, Report on Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity, 1-4, U.N. Doc. A/HRC/19/41 (Nov. 17, 2011) [hereinafter Report on Discriminatory Laws and Practices].

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acts of violence and discrimination.14 For this reason, this note focuses on the standards set forth by the Yogyakarta Principles, which provide a more effective argument for the recognition, protection, and enforcement of gender identity rights in the long term. With this in mind, the following analysis will make clear the need for the successful implementation of the Yogyakarta Principles standards into the framework of IHRL. Prior to this discussion, though, it is first appropriate to provide a brief explanation regarding relevant terminology. I. TRANS PEOPLE CATEGORIZATION AND IDENTITY CLARIFICATIONS For the purposes of this note, the term trans people will be used to describe those individuals whose gender identities are not constricted to their biological sex at birth or the traditional categories of male and female. Such identities include, but are not limited to,

transgender, transsexual, intersex, and gender-queer. The primary reason for this umbrella term is simplicity: a multifaceted set of gender identities exists in the trans community and individual understandings of the terms associated with such identities are not always consistent.15 While this may often lead to uncertainty and dispute, all trans individuals can be considered part of a wide variety of people whose gender identity or expression transgress the rules of binary gender.16 Thus, as this note argues that the right to self-identity should extend to those outside the binary system, the umbrella term trans person will generally be used unless the subject

14 15 16

See Report on Discriminatory Laws and Practices, supra note 13, 81-85. See Controlling Bodies, supra note 3, at iii.

Dean Spade, Resisting Medicine, Re/modeling Gender, 18 BERKELEY WOMENS L.J. 15, 37 n.2 (2003).

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matter requires reference to a distinct gender identity.17 With this in mind, this note will initiate its inquiry with a discussion on the recognition of trans people under the current legal system. II. THE REALITIES OF SEX AND GENDER IN CURRENT LAW From a legal perspective, most of Europe and the U.S. only recognize two distinct sexes, male and female.18 This is evident from the language of the laws. The Defense of Marriage Act, for example, states the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.19 This language is both specific and restrictive, signifying that the U.S. has only contemplated the existence and legitimacy of two concrete and opposing sexes. Related to this problem of a binary sex scheme, most nations have not considered a legal system that encompasses a variety of gender identities, and current laws tend to express [n]arrow definitions of sex and gender, leaving transgender people trying to fit into a legal system that recognize[s] only biological males and females, without recognizing a spectrum of gender expression beyond the categories of women and men, which the law and society conceptualize as separate, distinct and oppositional.20
17

For the purposes of this note, the term transgender will be used to describe an individual whose sex is consistent with the one they were assigned at birth, but whose gender identity differs from that sex. Additionally, the term transsexual will be used to describe an individual who has transitioned, or who intends to transition, from the sex they were assigned at birth in order to bring their sex into conformity with their gender identity. This author recognizes that these terms present classifications that may be over-simplified, but believes that the categorization of these identities in the context provided is necessary to illustrate certain particularized arguments present in this note.
18

See, e.g., Dr. Anne Fausto-Sterling, Two Sexes Are Not Enough, NOVA (Oct. 30, 2001), http://www.pbs.org/wgbh/nova/body/fausto-sterling.html. Although this articles primary focus is on intersex infants, its argument is founded upon the idea that the law operates under a gender binary system and that this system is inadequate. See id.
19 20

Defense of Marriage Act of 1996, Pub. L. No. 104-199, 110 Stat. 2419.

Transgender Legal Issues: New England, GLAD.ORG, 3 (Nov. 2011), http://www.glad.org/uploads/docs/publications/trans-legal-issues.pdf. 137

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The consequences of these laws, both domestic and international, are that they impose social norms on trans people and police their identities, denying these individuals the right of selfdetermination.21 Advocates for change, such as the human rights experts behind the Yogyakarta Principles, place emphasis on expanding under the law basic human rights such as life, 22 equality,23 recognition,24 security,25 and privacy.26 In essence, the Yogyakarta Principles argue that gender identity is a fundamental right that should be recognized, protected, and enforced under the law.27 However, to better understand the shortcomings of the legal system in its current state, it is important to examine how, in practice, the law greatly imposes obstacles for trans people in gaining gender identity recognition. III. ISSUES SURROUNDING SEX AND GENDER IDENTITY RECOGNITION Legal determinations surrounding gender identity are often reflected in an individuals official documents, such as a birth certificate, drivers license, or passport.28 Although the laws of most jurisdictions today allow for such documents to be altered under specific
21 22 23 24 25 26 27

See The Yogyakarta Principles, supra note 9, at 6-7. Id. at 12. Id. at 10. Id. at 11. Id. at 13. The Yogyakarta Principles, supra note 9, at 14.

See Michael OFlaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta Principles, 8 HUM. RTS. L. REV. 207, 22021 (2008), available at http://www.yogyakartaprinciples.org/yogyakarta-article-human-rightslaw-review.pdf.
28

See Transgender Legal Issues: New England, supra note 20, at 29-31.

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circumstances,29 this may nevertheless pose a problem for some trans people because gender identities within the trans community can be assorted and complex, and these laws do not give equal consideration to the needs and desires of all. For example, most laws surrounding sex or gender recognition require physical alteration and re-adherence to the gender binary, which often includes sex reassignment surgery (SRS).30 Because of this requirement, transgender individuals who may not want to undergo any bodily changes are almost always trapped by the law31 without any means of obtaining legal recognition of their gender identity.32 For transsexuals, the SRS requirement may, on its face, appear to lead to greater opportunities for legal recognition; yet, this note argues that the legality of such measures is controversial. Still, because the requisite procedures and extent of recognition granted vary by

29

See Liza Khan, Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform, 11 YALE J. HEALTH POLY, L. & ETHICS 375, 382 (2011) (discussing the medical procedures required in the U.S. for transgender recognition); see also Table of Gender Recognition Schemes in Countries and Territories That Have Been Approved by the Secretary of State: April 2005, JUSTICE.GOV.UK, http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/tribunals/genderrecognition-panel/list-of-approved-countries-orterritories/table_of_gender_recognition_schemes_apr_2004.pdf (last visited Jan. 17, 2013) [hereinafter Table of Gender Recognition Schemes] (outlining the recognition process for trans people in select countries and territories).
30

See Shannon Minter, Transgender People and Marriage: The Importance of Legal Planning, NATL CENTER LESBIAN RTS. (2002), http://www.nclrights.org/site/DocServer/tgmarriage.pdf?docID=1182. While the focus of this piece is on issues surrounding marriage and family planning for trans people, it discusses how sex-reassignment affects these practices. See id. Furthermore, it is evident from this article that central to marriage law is the determination of a trans persons status as either male or female. See id.
31 32

Controlling Bodies, supra note 3, at 2-3. Id.

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jurisdiction,33 the laws of each jurisdiction need to be scrutinized individually.

jurisdictions there are stringent laws that prohibit any identity changes on the birth certificates of individuals born in those states. 34 Consequently, in these locations, transsexuals face a similar legal entrapment as transgender individuals: ones biological sex at birth is determinative of ones legally recognized sex for life.35 According to precedent set by the European Court of Human Rights (ECtHR), the laws that prohibit trans people from altering their legal sex status do not comply with IHRL. In 2002, the ECtHR considered two cases involving transsexual women who were denied recognition of their post-operative (post-op) sex statuses.36 In reversing its prior decisions on transsexual identity rights, the ECtHR held their right to respect for their private lives, and also their right to marry, had been violated37 under the European Convention on Human Rights (ECHR). Consistent with these decisions is the argument that trans people do fit within the scope of the rights and protections outlined in the ECHR, and thus, should be regarded equally under the laws. Fortunately, only a few jurisdictions still refuse to afford trans people an identity status

33

See Transgender Legal Issues: New England, supra note 20, at 18; see also Table of Gender Recognition Schemes, supra note 29 (offering different processes for recognition as well as different end results for the countries and territories provided).
34

See Transgender Legal Issues: New England, supra note 20, at 18. Within the U.S., for example, Idaho, Ohio, and Tennessee prohibit any sex or gender related changes to a persons legal documents. Id.
35 36

See id.

See Goodwin v. United Kingdom, 35 Eur. Ct. H.R. 18, 12-19 (2002); see also I. v. United Kingdom, 36 Eur. Ct. H.R. 53, 12-15, 20-21 (2002).
37

OFlaherty & Fisher, supra note 27, at 220.

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change.38 Many jurisdictions now allow transsexuals to have official government documents, such as birth certificates, altered to reflect the post-op sex when certain requirements are met.39 Yet, these requirements are mostly silent on transgender identity issues and, furthermore, they tend to vary from nation to nation.40 As a result, the legal implications of these laws also vary. For this reason, it is important to look at these requirements in-depth, beginning with the most restrictive: forced sterilization. A. Forced Sterilization While the legal possibility of a sex identification change exists within many nations, the channels a transsexual individual must navigate to achieve a desired sex status are very narrow.41 For instance, in the Netherlands, a nation that has recently been at the center of much controversy regarding this issue,42 to be legally recognized as the gender or sex opposite of ones sex at birth, both SRS and sterilization are explicitly required by law.43 Thus, for transgender individuals to achieve their desired gender status under the Dutch mandate,44 the only available

38 39 40

See Transgender Legal Issues: New England, supra note 20, at 18. See Table of Gender Recognition Schemes, supra note 29.

See generally id. Finland, for example, requires the sterilization of trans people for identity recognition purposes. See id. at 10. Slovenia, on the other hand, only requires a doctors certificate to recognize a change of gender. See id. at 20.
41 42 43 44

See Transgender Legal Issues: New England, supra note 20, at 16. See Controlling Bodies, supra note 3, at 1-2. See Burgerlijk Wetboek [BW] [Civil Code] art. 1:28 (Neth.).

In addition to the Netherlands, Belgium, Finland, France, and Norway are among those states in the European Union that also require transgender sterilization. See Claudia Moschi, Europe, No Sex Change Without Sterilization, WEST-INFO.EU (Jan. 22, 2013), http://www.westinfo.eu/europe-no-sex-change-without-sterilization/. In all, there are sixteen European states that have transgender sterilization laws. See Nicole Pasulka, 17 European Countries Force 141

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option involves alteration of the sexual organs. This is evident from the text of the law, which is specifically structured to force all trans people to give up their reproductive rights in order to achieve legal recognition as their self-identified sex or gender.45 The strict legal requirements of sterilizations laws conflict with many of the principles of IHRL. For example, article eight of the ECHR guarantees all individuals the right to privacy.46 Yet, with a forced sterilization requirement, the government is inserting itself into ones private life. As Human Rights Watch asserts in its report on the Netherlands, for such a requirement to be justified . . . it must be lawful; it must be necessary for one of the purposes specified in article 8(2) of the [ECHR]; and it must be a proportional means for achieving that purpose.47 However, the purposes specified in the ECHR are limited to the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.48 Given the extreme burden that forced sterilization imposes on trans people the loss

Transgender Sterilization (Map), MOTHER JONES (Feb. 16, 2012), http://www.motherjones.com/mojo/2012/02/most-european-countries-force-sterilizationtransgender-people-map; see also Sweden to Stop Sex Change Sterilization, THE LOCAL (Jan. 11, 2013), http://www.thelocal.se/45550/20130111/#.USD91VpVQjn.
45

See BW art. 1:28. The law in the Netherlands expressly states that male to female (MtF) transsexuals must no longer be able to father children, and that female to male (FtM) transsexuals must never be able to bear children again. See id.
46

Convention for the Protection of Human Rights and Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights].
47 48

Controlling Bodies, supra note 3, at 55. European Convention on Human Rights, supra note 46, art. 8(2).

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of reproductive abilities49 it is unfathomable that any government would find such an intrusive measure necessary for any such purposes. Furthermore, equal rights advocates would likely agree that such a drastic and invasive requirement is in no way proportional to any purpose or goal that any given government would ever hope to attain. In a 2003 decision, the ECtHR explicitly expressed its concern regarding the respect for human dignity and human freedom,50 stressing the role of the ECHR in protecting the right[s] of transsexuals to personal development and to physical and moral security.51 These remarks indicate a growing concern for the rights of trans people, which reinforces the argument that there are no necessary purposes under the ECHR that would justify the forced sterilization of transsexuals. At this time, it is important to note that the rights of transsexuals are not only protected under the ECHR, which applies regionally. There are global mandates, particularly the Universal Declaration of Human Rights (UDHR), that also support the argument against forced sterilization on account of gender identity. According to the UDHR, everyone has the right to recognition everywhere as a person before the law52 and all are equal before the law and are entitled without any discrimination to

49

See Note to the Attention of the Parliamentary Assembly Committee on Social, Health and Family Affairs Committee, in Relation to the Draft Report on Putting an end to coercive sterilisations and castrations, AMNESTY INTL, 2 (Nov. 15, 2011), http://www.amnesty.eu/content/assets/Doc2011/AI_note_on_sterilisations_and_castrations.pdf.
50

Van Kck v. Germany, 37 Eur. Ct. H.R. 69, 69 (2003) (citing Goodwin v. United Kingdom, 35 Eur. Ct. H.R. 18, 90 (2002)).
51 52

Id.

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 6, U.N. Doc. A/RES/217 (III) (Dec. 10, 1948).

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equal protection of the law.53 What is essentially expressed in these provisions is the idea that the legal system does not recognize individuals or protect their rights on a selective basis; everyone is the same in the eyes of the law. The terminology itself is clearly indicative of this notion. The UDHRs consistent use of terms such as all54 and everyone55 strongly suggests that the rights described therein should apply equally and consistently to every individual regardless of distinguishing characteristics such as sex or gender. Thus, the idea that there is a necessary purpose behind the forced sterilization of a particular group or that such a measure is a proportionate means to the achieving that purpose has no basis when IHRL essentially contemplates a legal system where the rights of the individual of all individuals, regardless of sex or gender are paramount. Evidently, there is little, if any, legal justification for the practice of forced sterilization. Fortunately, this practice seems to be losing its popularity within the international community.56 Forced sterilization of trans people is becoming less and less tolerable, and those who still employ such a practice have begun to face intense criticism.57 Today, a seemingly more

53 54 55 56

Universal Declaration of Human Rights, supra note 52, art. 7. E.g., id. arts. 1, 7. E.g., id. arts. 2, 3, 6, 8, 10, 11, 13-15, 17-29.

See Table of Gender Recognition Schemes, supra note 29 (indicating that permanent sterility was required by only six of the nations outlined in the 2005 UK data table). But see Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity, EU AGENCY FOR FUNDAMENTAL RTS., 17-18 (2010), http://fra.europa.eu/fraWebsite/attachments/FRA-2011-Homophobia-Update-Report_EN.pdf (providing different statistics that indicate that, as of 2010, eighteen nations within the European Union still required trans people to undergo sterilization in order to receive recognition).
57

See, e.g., Sweden's Transgender Sterilization Law Slammed By International Activists, Politicians, HUFF. POST (Jan. 20, 2012), http://www.huffingtonpost.com/2012/01/20/swedentransgender-sterilization-law-activists_n_1219878.html. At the time of this notes initial drafting, 144

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accepted, and likely more humane, practice is SRS; however, this practice also presents some major legal concerns that must be remedied under IHRL. B. Sex Reassignment Surgery In most other European countries, and throughout most of the U.S., changes in gender status do not explicitly require sterilization; the only requirement is that individuals undergo a sex change or SRS.58 Accordingly, under a facial interpretation of these laws, it appears that transsexuals have a greater means of achieving legitimacy than transgender individuals who, once again, have no means of achieving legal recognition without making physical alterations to their bodies. However, although seemingly more humane and less restrictive, these laws are deceiving; genital reassignment surgeries involve removal or serious alteration of ones original reproductive organs, which ultimately renders the individual infertile.59 Thus, similar to the law of the Netherlands, laws requiring SRS are essentially forcing pre-operative (pre-op) transsexuals to choose between identity recognition and reproductive rights.

Sweden was among those European states that practiced forced sterilization; however, the Swedish government has since caved to international pressure and put an end to its sterilization law. See Zach Ford, Sweden Ends Forced Sterilization of Transgender People, THINKPROGRESS.ORG (Jan. 11, 2013), http://thinkprogress.org/lgbt/2013/01/11/1434121/swedenends-forced-sterilization-of-transgender-people/?mobile=nc.
58

See Table of Gender Recognition Schemes, supra note 29; see also Eva Fels, Chairwoman, TransX Austrian Transgender Assn, Development of TransGender Politics in Europe 1 (Mar. 27, 2006); see generally U.S. States and Canadian Provinces: Instructions for Changing Name and Sex on Birth Certificate, DRBECKY.COM, http://www.drbecky.com/birthcert.html (last visited Jan. 17, 2013) (offering information as well as links to official Internet sources pertaining to the legal requirements surrounding birth certificate changes).
59

Dr. J. Joris Hage, Medical Requirements and Consequences of Sex Reassignment Surgery, in TRANSSEXUALISM, MEDICINE AND LAW: COUNCIL OF EUROPE, XXIIIRD COLLOQUY ON EUROPEAN LAW 103, 111-12 (1993); Paul DeSutter, Gender Reassignment and Assisted Reproduction: Present and Future Reproductive Options for Transsexual People, 16 HUM. REPROD. 612, 613 (2001).

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To the credit of these laws, however, is the fact that, despite this forced choice, SRS is a medical necessity for many transsexuals.60 With this in mind, it is noteworthy that the major legal concern for these transsexuals may not necessarily be the loss of reproductive rights or abilities after treatment begins, but rather their abilities to make informed decisions as well as the availability of alternative reproductive options.61 Specifically, in regards to the latter, it has been argued that medical professionals should discuss with SRS candidates pre-op availabilities such as sperm preservation for biological males and gamete preservation for biological females.62 Such measures would help protect post-op transsexuals abilities to create families, which is another right recognized under IHRL.63 Accordingly, it is important for all nations to provide these reproductive opportunities to pre-op trans people and for the availability of such measures to be made known. In regards to decision making, it is imperative that the state ensures trans people are aware of all the possible consequences of SRS. In fact, recent international case law supports this assertion. In 2011, the ECtHR held that sterilization without informed consent constitutes a major interference with a persons reproductive health status.64 Under this decision, the law requires that all individuals who may be subjected to sterilization to be made fully aware of the

60 61

Controlling Bodies, supra note 3, at 22.

See Walter Meyer III et al., Standards Of Care For Gender Identity Disorders: Sixth Version, WORLD PROF. ASSN FOR TRANSGENDER HEALTH 1, 17 (Feb. 2001), http://wpath.org/Documents2/socv6.pdf.
62 63

Id.

See European Convention on Human Rights, supra note 46, art. 12; see also Universal Declaration of Human Rights, supra note 52, art. 16.
64

V.C. v. Slovakia, [2011] Eur. Ct. H.R. 1888, 106.

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risks. While this mandate clearly applies to those nations that explicitly require sterilization, because SRS poses a high risk, if not a definite result, of infertility, it should apply to those nations that only require SRS as well. Taking this into consideration, there is a third approach the gender dysphoria requirement that appears to be the more advanced and accommodating in terms of understanding the complexities that gender identity issues pose for trans people. C. Gender Dysphoria Arguably the most progressive approach to trans peoples identity rights has been implemented in the UK, where neither SRS nor sterilization is required. All that is required is evidence that the individual has been living as the opposite sex or gender for two years and has been reported by a medical professional as having gender dysphoria.65 Such an approach may be more accepted by the international community because neither of its two requirements appear to conflict with the ECHR or the UDHR. Furthermore, because this law does not require one to under go any physical bodily changes, it accommodates the legal needs of both transsexual and transgender individuals. Nevertheless, under the Yogyakarta Principles, the psychological requirements of the law in the UK would still be unjust because the Yogyakarta Principles argue: No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a persons sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.66

65 66

Gender Recognition Act 2004, c. 7, s. 2 & 3. The Yogyakarta Principles, supra note 9, at 23.

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While the Yogyakarta Principles reiterate many of the same ideals as current IHRL, more liberal notions are evidently present. Unlike current IHRL, the Yogyakarta Principles rightly take into account both the psychological requirements of the law and its unfair impact on the trans community.67 Thus, while the gender dysphoria requirement of the UK is by far the most considerate policy regarding legal recognition of sex and gender, it is still not ideal. With this understanding, further analysis of the Yogyakarta Principles, specifically to address where and how they improve IHRL, is necessary. IV. THE YOGYAKARTA PRINCIPLES AS NECESSARY LEGAL CHANGE Although the Yogyakarta Principles are not legally binding, they represent a set of ideals that aim to bring greater clarity and coherence to states human rights obligations.68 The Yogyakarta Principles are significant because, unlike any aspect of existing IHRL, they specifically address the rights of trans people. This lack of attention is due, in part, to the fact that gender identity issues have always been little understood.69 For this reason, many of the Yogyakarta Principles twenty-nine articles reflect those rights already recognized under IHRL, but address them in the context of gender identity.70 For example, the Yogyakarta Principles address the right to legal recognition before the law, which is also recognized under article six of the UDHR;71 however, the Yogyakarta Principles specifically maintain that each persons self-

67 68 69 70

See The Yogyakarta Principles, supra note 9, at 23. Id. at 7. OFlaherty & Fisher, supra note 27, at 232.

Compare The Yogyakarta Principles, supra note 9, with European Convention on Human Rights, supra note 46, and Universal Declaration of Human Rights, supra note 52.
71

See Universal Declaration of Human Rights, supra note 52.

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defined . . . gender identity . . . is one of the most basic aspects of self-determination, dignity and freedom.72 Hence, where the law has little understood or addressed alternative gender

identities, the Yogyakarta Principles are essential because of the clarifications they provide. Beyond simple legal clarifications, the Yogyakarta Principles are also vital to IHRL because they speak to two issues of concern that have not been adequately addressed to date. First, the Yogyakarta Principles discuss the underlying factors that have allowed inequality towards trans people to prevail.73 Second, the Yogyakarta Principles emphasize the need for more stringent measures than those currently in place to ensure that violators of trans peoples rights are held accountable.74 With this in mind, the discussion that follows will provide an explanation as to the importance of remedying these two issues. A. The Underlying Factors The Yogyakarta Principles would be an important addition to IHRL because they address the underlying factors that have hindered equality for the trans community. A key aspect of the Yogyakarta Principles is the acknowledgment that gender identity refer[s] to each persons deeply felt internal and individual experience.75 This recognition of ones gender as selfidentified, rather than socially imposed, is vital. It is important that governments understand that they cannot lawfully limit gender identity recognition because identity is so fundamental to an individuals private sense of self.76 Essentially, as the Yogyakarta Principles underscore, without

72 73 74 75 76

The Yogyakarta Principles, supra note 9, at 11. See id. at 8-9. See id. at 31. Id. at 8. See id. at 8-9. 149

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any recognition of self-identity as an internal experience and an individual right, the law cannot fully comprehend the struggles of trans people.77 Another important aspect the Yogyakarta Principles highlight is the idea that nations must not support nor enforce hierarchical social structures based on sex or gender perceptions. Rather, they should be obligated to promote equality and protect all forms of self-identity, including those that transcend the boundaries of the binary system: [G]ender identity is integral to the realisation [sic] of equality between men and women and . . . states must take measures to seek to eliminate prejudices and customs based on the idea of the inferiority or the superiority of one sex or on stereotyped roles for men and women, and . . . the international community has recognised [sic] the right of persons to decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free from coercion, discrimination, and violence.78 From this phrasing, an important distinction can be drawn about the Yogyakarta Principles: they address the fact that social biases help produce sex and gender inequalities in the first place. This is essential to IHRL as well because it acknowledges the role social and political psychologies play in the administrative oppression of a particularized group of individuals, and it addresses why, at a more internal level, many jurisdictions have been reluctant to recognize the rights of trans people or to provide adequate legal protection for the trans community. In addressing particular barriers that trans people have encountered the failure of governments to recognize self-identity as fundamental and the further restrictions societal norms play in proliferating inequality79 the Yogyakarta Principles provide a more than satisfactory guideline for remedying current legal injustices. For this reason, they would greatly enhance

77 78 79

See The Yogyakarta Principles, supra note 9, at 8-9. Id. at 9. See id. at 8-9. 150

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current IHRL as it applies to trans people. However, in addressing the inadequacies of IHRL, the Yogyakarta Principles do not stop with the root causes of inequality; they also speak to the equally important need for stricter enforcement of, and punishment under, the law. B. Accountability Perhaps the most important aspect of the Yogyakarta Principles is its last principle, which discusses accountability.80 Here, the Yogyakarta Principles assert, there should be no impunity for perpetrators of human rights violations related to sexual orientation or gender identity.81 While the ECHR and the UDHR simply state that individuals should have the right to an effective remedy for rights violations,82 the Yogyakarta Principles detail the measures necessary to enforce this right, and emphasize that perpetrators must be held accountable for their actions in a manner that is proportionate to the seriousness of the violation.83 Furthermore, the

Yogyakarta Principles even go as far as to suggest that nations establish appropriate, accessible and effective criminal, civil, administrative and other procedures, as well as monitoring mechanisms, to ensure the accountability of perpetrators for human rights violations related to sexual orientation or gender identity.84 Clearly, this call for accountability and remedial action goes far beyond any recourse that has been provided by traditional IRHL.

80 81 82

The Yogyakarta Principles, supra note 9, at 31. Id.

See European Convention on Human Rights, supra note 46, art. 13; see also Universal Declaration of Human Rights, supra note 52, art. 8.
83 84

The Yogyakarta Principles, supra note 9, at 31. Id.

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Because neither the ECHR nor the UDHR speak to accountability at length, the current disparities trans people face regarding legal recognition evidence the need for stricter laws. Without laws enforcing liability, contemporary institutional practices such as forced sterilization go without punishment. Accordingly, the Yogyakarta Principles lay out a more detailed

framework for addressing accountability,85 which is necessary to ensure those who violate the law will be brought to justice. The Yogyakarta Principles also take into account specific

underlying problems in existing law not contemplated by the ECHR nor the UDHR: the failure to recognize identity as an experience that is deeply internal, and the role of stereotypes and social norms regarding sex and gender distinctions in justifying unequal treatment of trans people.86 In doing so, the Yogyakarta Principles not only affirm the identity rights of trans people as fundamental, they also provide particularized insight into the attitudes and behaviors that create and enforce sex and gender inequalities in the first place. Further, in recognizing and discussing the latter, the Yogyakarta Principles also highlight the need to rid any acceptance of social hierarchies premised on sex or gender that continue to exist in the law. For these reasons, the Yogyakarta Principles should be implemented into IHRL. CONCLUSION As this note has illustrated, the right to gender identity is not adequately recognized, protected, or enforced under existing IHRL. Moreover, there is no uniform attitude towards the rights of trans people, which complicates the international communitys treatment of alternative gender identities. However, this note has demonstrated how the Yogyakarta Principles provide much needed insight into specific areas where legal changes must be made in order to provide

85 86

See The Yogyakarta Principles, supra note 9, at 31-33. See id. at 8-9. 152

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for adequate recognition of trans peoples rights. Furthermore, this note has also explained why the Yogyakarta Principles concept of accountability is vital for equality: a lack of accountability has allowed extreme human rights violations, most abhorrently the practice of forced sterilization, to continue to take place. Thus, for these aforementioned reasons, it is imperative that the human rights ideals presented by the Yogyakarta Principles be effectively implemented into international law, and that all nations, including the U.S., commit to the recognition, enforcement, and protection of all peoples gender identity rights.

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