Cross-Examination: Running Up That Hill – The Continuing Trials of Trans Prisoners

Eugenia Woo, Communications Co-Manager

Editor’s note: In the interests of fairness, No Pride In Prisons and the Department of Corrections were invited to give a statement to the author on their stances on current issues affecting transgender prisoners. Both parties’ statements have been reproduced in full below the article and attributed to the relevant sources. 

Last year, we reported on the hunger strike held by the queer and trans prison abolitionist group, No Pride In Prisons,[1] in order to have a transgender woman inmate, Jade Follett, transferred from Rimutaka Prison to a women’s facility. While Jade’s transfer request was eventually approved, events earlier this year at the Auckland Pride Festival and beyond show that accessible outcomes for trans people in the prison system are very much lacking in 2016.

No Pride In Prisons have protested at both the 2015 and 2016 pride parades. Emmy Rākete, spokesperson for the organisation, said that their protest at this year’s Pride was because “fundamentally, it’s wrong for a queer pride organisation to align itself with a group whose policies and institutional failures have resulted in the rapes of at least two transgender women in the last 6 months.”[2] Rākete mentioned that Corrections has confirmed that there are over twenty transgender women in custody, though it is likely that many more are also incarcerated.

No Pride In Prisons’ public demonstrations and nation-wide events have gained much public traction.[3] Following a press release alleging that a transwoman was raped in Whanganui Men’s Prison by two Corrections Officers in March this year,[4] Green MP Jan Logie was adamant about the need for an independent investigation into the treatment of transgender people in New Zealand’s prisons. Logie’s plans were to write to the Human Rights Commission requesting a review of our local incarceration systems under the Crimes of Torture Act 1989 – an Act that is usually invoked in situations where detainees are being subject to “cruel, inhumane or degrading treatment or punishment”.[5]

 

Incarceration Statistics

There is arguably a cause for concern when analysing how New Zealand fares against the other OECD countries in terms of statistics relating to imprisonment and the treatment of prisoners. As a country, we have the seventh highest imprisonment rate as of 2015, and our rate of imprisonment is 155 per 100,000 population – the majority of OECD countries have a rate below 140.[6] Rimutaka Prison, where Jade Follett was incarcerated, had units made out of converted shipping containers to house prisoners not too long ago.[7] A Human Rights Commission Inquiry in 2007 also noted that the incarceration of transgender individuals disproportionately affected Maori and Pacific people, two of the most historically overrepresented groups in New Zealand prisons.

There have also been recent concerns surrounding “non-accidental” deaths in our prison facilities. Just last month, the Department of Corrections announced that a prisoner had committed suicide at Mount Eden Prison. Labour MP Kelvin Davis was quoted as saying that the prisoner who died had been held in solitary confinement, and that Corrections was “willing to hold prisoners in their cells for up to 23 hours a day”.[8] A study conducted by Stuart Grassian of Harvard Medical School found that roughly a third of solitary inmates were psychotic or acutely suicidal.[9]

Ti Lamusse, a Master’s student in Sociology at the University of Auckland, has concluded in the course of their research on incarceration that prisoners commit suicide at a rate of 72 per 100,000, compared with the rate of 12 – 13 per 100,000 reflected by the general population.[10]
With the general consensus on solitary confinement being that it amounts to a torturous experience, Davis also expressed that New Zealand had to reconsider the effectiveness of prisons as a means of combatting social harm, the same sentiment expressed by Jan Logie in her pursuit of an independent inquiry into our local incarceration practices.

Statistics clearly demonstrate that being incarcerated has a damaging effect on the mental health of those who are incarcerated. This arguably affects transgender prisoners even more adversely on account of the difficulties that they face, particularly where they have not had gender reassignment surgery and are subject to the hypermasculine and/or homophobic prison environment where the threat of violence is very real. With suicide rates in prison being as high as they are, it begs the question of whether Corrections is struggling to meet its responsibilities to prisoners regarding their psychological wellbeing.

However, the ramifications of Corrections’ current practices extend beyond alleged mental harm to transgender prisoners; one of the reasons for the protests that took place at the Auckland Pride Parade was the alleged rape of transgender prisoners and inaction on Corrections’ part concerning such matters. Emmy Rākete stated that “some of these incidents have been reported to prison staff only to have them pressured not to make formal complaints because the very first response officers are meant to make to these complaints, according to the Prison Operations Manual, is to try to convince prisoners to withdraw them.”

The most recent online version of that manual has provisions encouraging prison staff to resolve issues informally before formal complaints are lodged, and sets out protocol for complaints to be brought. Part of the complaint process is that a prisoner making a complaint can be subject to an interview by prison director or another officer in the prison at the discretion of their interviewing officer.[11] Expecting those who face violence and assault at the hands of prison staff to then possibly have to account to their assaulters is arguably unreasonable and unsafe, and this was the situation of the transgender prisoner who was allegedly raped at the hands of Corrections Officers at Whanganui Men’s Prison. It comes as no surprise that prisoners in difficult situations like these may feel compelled to withdraw their complaints rather than go through the arduous process of having them heard by members of the same institution responsible for their assault. An inquiry into our incarceration practices, should it take place, must include clarification from Corrections on their treatment of prisoner complaints and their internal procedures for dealing with allegations of assault on the part of staff members. A lack of transparency on the part of Corrections has been discussed before at length,[12] and increased public scrutiny of their affairs has yet to herald any real change.

There is no doubt that Jade Follett’s plea to be transferred to a gender-appropriate facility in 2015 marked a resurgence of demonstrations regarding transgender prisoners’ rights in the public eye. While groups such as No Pride In Prisons and those in Parliament who support similar initiatives on the issue of incarceration have been working tirelessly to make their voices heard, government policy has been slow to respond, as evidenced by the multiple assault allegations levelled at Corrections officers this year and the fact that transgender prisoners are still being housed in inappropriate environments where they could be subject to violence. There is arguably a long way to go in terms of accessible outcomes for prisoners. So long as there is a lack of public accountability from Corrections concerning past, current, and ongoing complaints from incarcerated transgender people, public outcry is likely to continue.

[1] Eugenia Woo “Amicus Curiae: Hungry for human rights – the strike for Jade Follett,” Equal Justice Project (21 September 2015) <http://equaljusticeproject.co.nz/2015/09/amicus-curiae-hungry-for-human-rights-the-strike-for-jade-follett>.

[2] Statement from Emmy Rākete, No Pride In Prisons spokesperson (delivered to the author, 3 March 2016).

[3] No Pride In Prisons “Aotearoa to Stand in Solidarity with Transgender Prisoners” (press release, 19 January 2016).

[4] No Pride In Prisons “Transgender woman allegedly raped by prison officers in New Zealand prison” (press release, 9 March 2016).

[5] Crimes of Torture Act 1989, sch 1.

[6] Statistics New Zealand “New Zealand in the OECD” <http://www.stats.govt.nz>.

[7] Suraya Francése Dewing Women Among Men: Human Rights Jurisprudence and Pre-Operative Male-to-Female Transgender Imprisonment (2013) at 24.

[8] No Pride in Prisons “Corrections Responsible for High Rates of Suicide in Prisons” (press release, 14 March 2016).

[9] Jason M Breslow “What does solitary confinement do to your mind?” Frontline (22 April 2014) <http://www.pbs.org>.

[10] At [8].

[11] Department of Corrections, “Prison Operations Manual: Prisoner Complaints” <http://www.corrections.govt.nz>.

[12] Official Information Act Request “Information about transgender prisoners” (Sophie Buchanan, 21 May 2015) http://fyi.org.nz.

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Appendix 1

Statement from Emmy Rākete, No Pride In Prisons spokesperson (3 March 2016)

No Pride In Prisons protested at Pride because, fundamentally, it’s wrong for a queer pride organisation to align itself with a group whose policies and institutional failures have resulted in the rapes of at least two trans women in the last 6 months. These are only the stories of two out of the twenty-plus trans women Corrections know they have in custody. Likely there are many more.

Almost without exception every queer or trans person with a history of incarceration has alleged some level of sexual abuse in custody, either directly from corrections officers or as a result of the conditions of their incarceration. Some of these incidents have been reported to prison staff only to have them pressured not to make formal complaints because the very first response officers are meant to make to these complaints, according to the Prison Operations Manual, is to try to convince prisoners to withdraw them. I’ve listened to women tell me about being held down and non-consensually fondled by male guards as part of the strip searches mandated by Corrections policy. In any other context, we would recognise these are sexual assaults. People have told us they were cavity-searched 7 times in one day during their incarceration.

The prison system in this country overwhelmingly affects Māori, and as long as the Clean Slate act does not apply to custodial sentences this means incarceration allows for de facto racial discrimination against Māori in employment. The prison system cannot be reformed into being humane because it is fundamentally inhumane. Its violence can’t be legislated out of occurring because the prison is itself an act of violence. We’re not proud of prisons because they give us nothing to be proud of. Their basic purpose is the enforcement of state violence against marginalised and no amount of policy reform, education programs or diversity training can fix that. Only the absolute abolition of the prison as a mode of rehabilitation can fix that, and No Pride In Prisons will accept nothing less.

Appendix 2

Statement from Rachel Leota, Deputy National Commissioner, Department of Corrections (9 March 2016)

Corrections is undertaking a comprehensive programme of work over the next year to help support transgender prisoners. This will cover accessibility to support services, appropriate healthcare, appropriate rehabilitation and safety plans for vulnerable prisoners. As part of this, Corrections will work with support groups in the transgender community. Corrections has a duty of care to all prisoners and works to ensure every prisoner is placed in a safe environment. Corrections assesses each prisoner individually to ensure the most appropriate placements for them. There are approximately 20 transgender prisoners held in New Zealand prisons at any one time. If a transgender prisoner has a change of gender recorded on their birth certificate they are automatically put into a prison based on that gender. Transgender prisoners can also able to apply to be placed in a prison where they identify with the gender of the prisoners managed in that prison. Since November 2014, all 10 applications of transgender prisoners to transfer prison, have been successful.

As with any other prisoner, transgender prisoners can apply for voluntary segregation if they have any personal safety concerns. When a prisoner expresses concern for their safety, the Department has a duty to ensure that prisoners are housed safely and securely. Therefore any prisoner who fears for their safety can be placed on voluntary segregation, away from the general prison population. Prisoners on voluntary segregation are usually able to mix freely with other voluntary segregated prisoners.

Double bunking

As a result of an increasing prison population, the Department of Corrections is looking at options for maximising capacity at prison sites and adding additional bunks to some cells is one of these options. Corrections already operates a significant number of double bunked cells across the country and these are well managed. We have robust procedures to ensure the safety of prisoners who are double bunked. Prisoners are carefully assessed before being double bunked each and every time. No prisoner who poses a threat to another prisoner will be double bunked. Maximum security prisoners will not be double bunked. At Risk Units, Segregation Units and Youth Units will also not be double bunked given the nature of the prisoners held in these units. For more information on double bunking please see our website.

Sexual abuse in custody

Corrections manages some of New Zealand’s most difficult and challenging citizens. Violence is always a risk as many offenders resort to violent behaviour as a means of resolving issues and of expressing themselves. Prisoners can be volatile and unpredictable and many have long histories of antisocial behaviour. Understanding and managing this risk is a challenge common to all correctional jurisdictions and despite our best efforts to ensure risks are mitigated, we cannot prevent all assaults and no jurisdiction in the world has achieved this. The Department has a zero tolerance policy toward prisoner assaults on staff and other prisoners. No assault is acceptable; however, it is an unfortunate reality that from time to time this will occur and when this does occur the prisoner/s involved will be held to account for their actions. Any allegations of sexual assault are taken very seriously and passed on to Police for investigation.

Prisoner Complaints

There are no barriers to prisoners making a complaint. Prisoners are able to freely request a complaint form from unit staff in order to have any concerns investigated. They are also able to contact the independent inspectorate via email and an 0800 number or the Ombudsman. These freephone numbers are listed next to every payphone in every prison. Every complaint will be either * investigated by the person receiving it * or referred back to the appropriate operational level for investigation * or handed on to the next appropriate level for investigation For more information on the prison complaint process please see our website.