RISK FACTORS AND SITUATIONS 6. Abuse by prison personnel Torture and other ill-treatment are absolutely prohibited and cannot be justified under any circumstances, including when perpetrated for reasons relating to the sexual orientation or gender identity of the detainees. However, cases have been documented of LGBTI detainees being exposed to physical violence, rape or other sadistic behaviours and insults from prison personnel. For example, in US prisons, approximately half of all sexual abuse is committed by staff, not by inmates.56 In Costa Rica, UNODC and UNAIDS have observed that homosexual practices result in physical punishments in some prison units and not in others, and concluded that the risk faced by LGBTI detainees of being exposed to violence depended on the penitentiary personnel concerned.57 This shows that when such forms of abuse are not strictly condemned by the prison management and higher authorities, LGBTI detainees find themselves at the mercy of the staff supervising their unit. In a women’s prison in the US (Fluvanna Correctional Center in Virginia), lesbian women and inmates perceived as masculine-looking were reported to be held in a so-called ‘butch wing’ where they were humiliated and stigmatised.58 It is essential for monitoring bodies to assess whether LGBTI detainees are subject to any kind of violence, or are discriminated against by prison staff. Monitors should also check whether an internal policy condemning discriminatory attitudes exists and whether there is a confidential and independent system of complaints in place. Where no such policy exists, monitoring bodies should consider making a recommendation. It may also be relevant to analyse the existing training programme, including continuing education, to understand whether such programmes include awareness-raising for prison staff on the issue of non-discrimination, and particularly about LGBTI detainees and their specific needs. ‘States shall: Take all necessary legislative, administrative and other measures to prevent and provide protection from torture and cruel, inhuman or degrading treatment or punishment, perpetrated for reasons relating to the sexual orientation or gender identity of the victim, as well as the incitement of such acts. […] Undertake programmes of training and awareness-raising for police, prison personnel and all other officials in the public and private sector who are in a position to perpetrate or to prevent such acts.’ Yogyakarta Principle 10 (A;C), The Right to Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment 7. Isolation and solitary confinement as a protective measure Protecting detainees from other prisoners is the direct responsibility of the detaining authorities. As described above, the risk of acts of violence carried out by fellow detainees – such as rape, physical violence or psychological abuse – is high for detainees from sexual minorities. Detaining authorities should identify various strategies to mitigate those risks. Measures can involve the separation of detainees by categories, the careful selection of detainees who share living quarters, well-publicised anti-bullying policies and confidential complaints systems. Detaining authorities too often resort to solitary confinement/isolation as a means of protection from violence and omit to compensate for the lack of personal contact and activity. As the Special Rapporteur on Torture noted, ‘[l]esbian, gay, bisexual and transgender individuals are often subjected to solitary confinement as a form of “protective custody”. Although segregation of such individuals may be necessary for their safety, lesbian, gay, bisexual and transgender status does not justify limitations on their social regime, eg. access to recreation, reading materials, legal counsel or medical doctors’.59 In addition, prolonged solitary confinement can amount to cruel, inhuman or degrading treatment or punishment and even torture.60 Given the harmful long-term consequences of isolation, in particular where it is prolonged or indefinite, the use of solitary confinement is only justified in exceptional circumstances, for the shortest possible time and with adequate procedural safeguards. The revised Standard Minimum Rules have, for the first time, incorporated explicit limitations, requiring authorisation by law or regulation of ‘any form of involuntary separation from the general prison population,(…) including policies and procedures governing the use and review of, admission to and release from any form of involuntary separation’ (Rule 37). The Rules define solitary confinement as ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’ and prohibit its indefinite or prolonged use (in excess of 15 days) (Rules 43 and 44). Beyond this absolute prohibition, the Rules clarify that ‘solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible, subject to independent review, and only pursuant to authorisation by a competent authority’ (Rule 45(1)). Furthermore, the Rules call on measures to alleviate the potential detrimental effects of separated confinement for the prisoners concerned (Rule 38(2)). Although the rationale of segregating detainees in situations of vulnerability for protective purposes can be legitimate, it should be instituted only in agreement with the detainees concerned, with a clear procedure, 56. Kaiser D and Stannow L, Prison rape: Obama’s program to stop it, 11 October 2012. 57. UNAIDS/UNODC, Diversidad Sexual, Derechos Humanos y VIH en el Sistema Penitenciario de Costa Rica, 2012, pp42-45. 58. Kaiser D and Stannow L, Prison rape: Obama’s program to stop it, 11 October 2012. 59. Interim report of the Special Rapporteur on Torture to the UN General Assembly, 5 August 2011, A/66/268, p19. 60. Ibid., p9. Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring | 11