RISK FACTORS AND SITUATIONS Risk factors and situations Types and situations of risk are numerous for persons from sexual minorities in contact with the criminal justice system.29 While all persons in police custody are at risk because torture and other ill- treatment most frequently occur in the early stages of detention,30 LGBTI people are even more exposed to all types of abuse, whether homosexuality is criminalised or not (although where it is, these risks are even more acute). Arbitrary arrest, harassment, physical and pyschological violence, forced confessions, and rape by fellow inmates or law enforcement officials have been documented. The Special Rapporteur on torture has noted that ‘discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place’.31 The chapter below does not provide an exhaustive list of risk factors, but seeks to outline particular risk peaks relating to police custody and to the penitentiary system respectively. 1. Arrest and police custody Arrests on the basis of sexual orientation or gender identity occur frequently in some contexts, especially where homophobia and transphobia exist in police culture and where discrimination by public officials occurs with impunity. While in such contexts the police may frequently arrest LGBTI people following complaints from members of the public or on their own initiative, they seldom render assistance to LGBTI persons who have been assaulted as a result of their status, or for any other criminal complaint they may have. In Ukraine, for example, there are persistent reports of human rights violations of LGBTI persons by the police, including unlawful detention, extortion, threats of outing and disclosure of confidential information, denial of legal protection and deprivation of water and food, as well as physical violence in detention.32 In a report on impunity and violence against transgender women, human rights activists in Latin America,33 95 per cent of the transgender defenders interviewed reported that they had suffered police brutality either on the street, in police patrols or in police stations. Cases have also been documented in the United States of transgender sex workers being insulted in the streets by police officers, sometimes having their clothes or wigs violently pulled off. They were also questioned and searched more often than other people because of profiling applied by police officers. In some countries, carrying several condoms at a time is used by police and prosecutors as evidence in court to prosecute under anti-prostitution laws. As a result, transgender (and other) sex workers, trying to avoid being arrested with condoms, are at higher risk of contracting HIV.34 In Lebanon, humiliating practices by law enforcement officials have been documented, including the case of a man who when arrested by police officers believed he was being robbed, as the officers did not identify themselves. He was brought to the police station and ordered to do sit-up exercises naked.35 Targeted violence is often deeply rooted in institutional cultures allowing for stereotyping and attitudes of disdain towards persons from sexual minorities.36 In Nepal, for example, transgender persons known as metis have historically been one of the groups most discriminated against in the country, and abuse, violence and arbitrary arrests have been well documented. In 2011, a Supreme Court verdict acknowledged that Nepal had been negligent in protecting the rights of people of the ‘third gender’ and those of LGBTI persons in general. It ordered the government to take measures to protect this group, including specific anti-discrimination legislation, 29. Risks also exist beyond release, as the persons concerned may fear discrimination when returning to the community, may have lost their home, or may find that they cannot return to their family because their incarceration has revealed to their relatives that they are LGBTI. According to the surveys of detainees conducted by Her Majesty’s Inspectorate of Prisons (UK), LGB prisoners describe higher levels of anxiety about release and the period immediately following it than heterosexual prisoners. 30. See Monitoring police custody: a practical guide, Association for the Prevention of Torture, 2013. 31. Report of the Special Rapporteur on torture, 1 February 2013, A/HRC/22/53, para. 79. 32. See LGBT vector of Ukraine. The situation of LGBT in Ukraine (November 2011 – 2012), Council of LGBT Organisations of Ukraine, Nash Mir (Our World) Gay & Lesbian Centre, p21. Available at : www.gay.org.ua/publications/lgbt_ukraine_2012-e.pdf <accessed 7 October 2013>. 33. See The night is another country. Impunity and violence against transgender women human rights defenders in Latin America, Redlactrans and International HIV/AIDS Alliance, 2012, p15. 34. Human Rights Watch, Sex workers at risk: condoms as evidence of prostitution in four US cities, 19 July 2012. 35. Human Rights Watch, ‘It’s part of the job’: ill-treatment and torture of vulnerable groups in Lebanese police stations, 26 June 2013, p28. 36. See Institutional culture in detention: a framework for preventive monitoring, PRI/APT, 2nd edition, 2015, pp8-9. Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring |7