CONCEPTS confessions, to humiliate and dehumanise them or merely to use the opportunity of their absolute powerlessness. Rape may also take place in the form of sexual services which women prisoners are forced to provide in return for access to goods and privileges or for enjoying their most basic human rights. In addition, sexual abuse of women by male prisoners may take place, sometimes with the complicity of prison guards. It is widely recognised, including by Special Rapporteurs on Torture and by regional jurisprudence, that rape constitutes torture when it is carried out by or at the instigation of or with the consent or acquiescence of public officials.22 The International Criminal Tribunal for the former Yugoslavia decisions also recognise rape and other forms of sexual violence as torture when certain criteria are met.23 Women who are raped not only have to overcome the trauma and confront the potential pregnancy and other health consequences caused by this violent act, but also the shame which is associated with the act and the additional stigma which women who have been raped face in many societies, and especially those where discrimination against women is pervasive, due to cultural, traditional or religious norms. Many women who are raped in detention choose not to report their cases for this and other reasons, such as the lack of appropriate responses by the authorities to their complaints, as well as the fear of retaliation. Custodial violence against women encompasses many acts, in addition to rape. These include threats of rape, touching, insults and humiliations of a sexual nature, using mechanical restraints on women in labour and virginity testing, among others. Other practices may amount to ill-treatment depending on the manner in which they are carried out, why they are carried out and their frequency. These practices are covered in more detail in the following chapter. Women are usually discriminated against in prisons also in many other ways, both due to their gender, as well as due to the fact that they constitute a minority in all prison systems of the world, making up between 2 and 9 per cent of the general prison population in the large majority of countries.24 Thus, their distinctive needs are usually not taken into account in policy formulation and programme development and their special safety requirements are frequently ignored. While more attention may be given to their needs in prisons allocated exclusively to women, the lack of attention, at headquarters level, to strategies, policies, programmes and corresponding budgets, aiming to respond to women’s gender specific needs, are still largely reflected in such prisons. In addition, prisons which hold only women are generally located far away from the women’s homes, due to the small number of women prisoners. Therefore one of the primary needs of women – that of the maintenance of family links – is severely compromised. Discrimination in accessing gender specific programmes and services and maintaining family links does not always constitute ill-treatment, but in certain circumstances such discrimination may evolve into ill-treatment. The Committee on the Elimination of Discrimination against Women (CEDAW) established within an individual complaint in 2001 that discrimination against women encompasses ill-treatment that affects women disproportionately, as well as detention conditions which do not address the specific needs of women (referring also to the Bangkok Rules). In the case considered by the Committee, alongside other problematic conditions, the female arrestee had been held in a cold cell located underground, one of the two cells designated for women’s housing in this prison facility, whereas male detainees were housed upstairs.25 22. A/HRC/7/3, 15 January 2008, para 34. See also Prosecutor v. Zdravko Mucic aka ‘Pavo’, Hazim Delic, Esad Landzo aka ‘Zenga’, Zejnil Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November 1998, paras. 480 to 493 for a detailed discussion of rape as torture and the international and regional bodies which have described it as such, available at: http://www.refworld.org/docid/41482bde4. html <accessed 24 November 2015>. 23. Prosecutor v. Zdravko Mucic aka ‘Pavo’, Hazim Delic, Esad Landzo aka ‘Zenga’, Zejnil Delalic (Trial Judgement), IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 16 November 1998, para 496. It is important to note that the internationally accepted definition of rape does not restrict the act of rape to penetration by the sexual organ. See ibid, para. 478, available at: http://www.unhcr.org/refworld/docid/41482bde4.html <accessed 1 October 2012>; Crimes of sexual violence that can be prosecuted as rape in international criminal tribunals include oral sex and vaginal or anal penetration through the use of objects or any part of the aggressor’s body. See A/HRC/7/3, 15 January 2008, para 35. 24. UNODC, Handbook for Prison Managers and Policymakers on Women and Imprisonment, 2014, p2. 25. UN Committee on the Elimination of Discrimination Against Women (CEDAW), Communication No. 23/2009, Inga Abramova v Belarus, 27 September 2011, CEDAW/C/49/D/23/2009, available at www.unhcr.org/refworld/docid/4fd6f75a2.html. 6 | Penal Reform International | Women in Detention: a guide to gender-sensitive monitoring