This chapter examines legal standards developed by the Inter-American Human Rights System which are to be applied to women deprived of liberty, with particular emphasis on those articulated in Advisory Opinion OC-29/22 by the Inter-American Court of Human Rights. This analysis is informed by the broader context of rising rates of female incarceration across Latin America and emphasizes the pressing need for the adoption and implementation of differentiated approaches tailored to the specific risks and needs of certain groups within the prison population. The chapter shows that the Advisory Opinion OC-29/22 constitutes a critical tool for confronting the structural and intersectional inequalities that shape women’s experiences within the criminal justice system. It stems from ongoing complementary efforts between the Inter-American Court and Commission to provide binding legal standards and authoritative guidance for legislative reform and State practices that address the growing incarceration rate of women, all from a human rights-based and gender-responsive perspective. The Advisory Opinion OC-29/22 also forms part of a broader normative and jurisprudential evolutionary process that traces its origins to the UN Tokyo and Bangkok Rules and draws strength and enrichment from learnings gained from implementation at the national level. The standards articulated by the Inter-American Court of Human Rights in Advisory Opinion OC-29/22 are already producing tangible effects on the situation of imprisoned women and their children. These emerging impacts are most noticeable in contexts where intersectional vulnerabilities, such as pregnancy, breastfeeding or primary caregiving roles, provide the basis for the adoption of non-custodial measures or less restrictive forms of imprisonment. Moreover, the standards have shown particular relevance in cases involving women charged with or sentenced for low-level drug offenses, where low risk profiles have supported the application of alternative measures or more proportionate responses. While the implementation of differentiated approaches for women within the criminal justice system appears to be gaining momentum, it is still too early to conduct a comprehensive assessment of the positive outcomes of the Advisory Opinion OC-29/22 at the national level. Nonetheless, it must be acknowledged that the document issued by the Inter-American Court of Human Rights has been well received as an authoritative source for structural reforms and ground-breaking criminal and penitentiary policies.

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The Inter-American Court of Human Rights’ Gender-Responsive Approach to Ensuring Women’s Rights in Prison: A Closer Look at Advisory Opinion OC-29/22

  • Romina I. Sijniensky

摘要

This chapter examines legal standards developed by the Inter-American Human Rights System which are to be applied to women deprived of liberty, with particular emphasis on those articulated in Advisory Opinion OC-29/22 by the Inter-American Court of Human Rights. This analysis is informed by the broader context of rising rates of female incarceration across Latin America and emphasizes the pressing need for the adoption and implementation of differentiated approaches tailored to the specific risks and needs of certain groups within the prison population. The chapter shows that the Advisory Opinion OC-29/22 constitutes a critical tool for confronting the structural and intersectional inequalities that shape women’s experiences within the criminal justice system. It stems from ongoing complementary efforts between the Inter-American Court and Commission to provide binding legal standards and authoritative guidance for legislative reform and State practices that address the growing incarceration rate of women, all from a human rights-based and gender-responsive perspective. The Advisory Opinion OC-29/22 also forms part of a broader normative and jurisprudential evolutionary process that traces its origins to the UN Tokyo and Bangkok Rules and draws strength and enrichment from learnings gained from implementation at the national level. The standards articulated by the Inter-American Court of Human Rights in Advisory Opinion OC-29/22 are already producing tangible effects on the situation of imprisoned women and their children. These emerging impacts are most noticeable in contexts where intersectional vulnerabilities, such as pregnancy, breastfeeding or primary caregiving roles, provide the basis for the adoption of non-custodial measures or less restrictive forms of imprisonment. Moreover, the standards have shown particular relevance in cases involving women charged with or sentenced for low-level drug offenses, where low risk profiles have supported the application of alternative measures or more proportionate responses. While the implementation of differentiated approaches for women within the criminal justice system appears to be gaining momentum, it is still too early to conduct a comprehensive assessment of the positive outcomes of the Advisory Opinion OC-29/22 at the national level. Nonetheless, it must be acknowledged that the document issued by the Inter-American Court of Human Rights has been well received as an authoritative source for structural reforms and ground-breaking criminal and penitentiary policies.