Being LGBT In Detention Facilities in Fiji
The Haus of Khameleon was invited by the Office of the High Commissioner for Human Rights (OHCHR) Pacific to facilitate a session on "LGBT Persons in Detention".
Lesbian, gay, bisexual and transgender (LGBT) persons have historically faced and continue to face discrimination and violence in Fiji. When deprived of their liberty, they find themselves in a particular situation of vulnerability and are at risk of serious human rights violations.
How many LGBT people are being held in correctional facilities around Fiji? There are no studies done so far to determine the numbers and even if there was, not all LGBT people would openly identify for fear of further persecution and abuse. Jails are traumatising and often dangerous places, especially for lesbian, gay, bisexual, and transgender people, and anyone who is gender nonconforming.
While statistics about criminal justice and LGBT people, in general, are lacking, we know that some groups of LGBT people are disproportionately likely to come into contact with the criminal justice system, particularly LGBT youth and transgender people.
LGBT prisoners also face many other forms of mistreatment behind bars. Many face constant humiliation and degradation from staff and prisoners alike. Staff may blame them for their own victimization, believing they are “flaunting themselves,” and refusing to take grievances or reports of abuse seriously. If their vulnerability is recognized at all, it may be by placing them in indefinite solitary confinement, with little or no activity or human contact—conditions that can cause serious psychological harm, and which medical experts have found to amount to torture. In other cases, LGBT prisoners’ requests for temporary protective custody are ignored. In cases of sexual abuse, just as in any other setting, sexual abuse behind bars can lead to post-traumatic stress disorder, depression, substance abuse, HIV, and other infections that can take a heavy toll on survivors, their families and communities, and public budgets.
There is constitutional provision that require facilities to ensure all individuals in their custody are physically safe, free from cruel and unusual punishment, have equal access to programs and facilities, and have access to necessary medical care. Fiji’s 2013 Constitution bans discrimination based on sexual orientation and gender identity or expression. In addition, the Constitution guarantees individuals the right to privacy and freedom of expression and religion. Although these constitutional rights are limited for those who are incarcerated, none are entirely extinguished, and many have important and particular relevance for LGBT people. In addition, Fiji has also ratified the Convention Against Torture (CAT) in 2016.
Right to Safety and Protection from Violence: Prisons and jails must protect LGBT prisoners from violence at the hands of other prisoners, as well as prison staff and correctional officers. When officials know that a person is LGBT and therefore vulnerable, failure to take adequate steps to protect them from abuse, can violate the Constitution.
Often, jail or prison officials will respond to the vulnerability of an LGBT inmate, by placing them in solitary “protective custody”—effectively punishing them for being a potential victim. Officials may segregate LGBT inmates as a temporary measure when specific circumstances demand, such as upon admission while determining an appropriate long-term placement, or immediately following an assault and during its investigation.
Medical Care: Prisons are required to provide inmates with adequate health care to meet their medical needs; failure to do so constitutes cruel and unusual punishment. In general, jail and prison officials have wide latitude to conduct personal searches to identify weapons or contraband. However, searches must be conducted for a legitimate reason—not simply to harass an LGBT prisoner—and strip searches should be conducted out of view of other prisoners except in extremely urgent situations.
Policy Recommendations Regarding LGBT People in Fiji Prisons
Harassment, Abuse, and Sexual Assault
-Ensure that strip searches of transgender detainees occur in a dignified manner that provides the individual with privacy from other prisoners and staff members. Revise Fiji Correction Services pat search policy and mirror squatting to ensure that transgender women are not searched by male officers – except in emergencies – and that demeaning techniques are discontinued.
-Ensure that prisoners who file complaints of sexual abuse or harassment are not retaliated against or subjected to punitive treatment. Also, ensure that all complaints and reports remain confidential.
-Allow transgender prisoners to use shower facilities at a separate time from other prisoners.
-Ensure that staff trainings are designed to effectively reduce animosity toward the LGBT population and eliminate homophobia/transphobia and misogyny in prisons. Explicitly prohibit homophobic/transphobic and derogatory comments directed against LGBT prisoners, and train staff to respect transgender people’s gender identity expressions.
-Where employment procedures allow, tie merit salary increases and promotions to adherence to the principle of treating all people in prison with dignity and respect, including LGBT prisoners.
Healthcare: Preventing and addressing sexual assault is a healthcare issue as well as a matter of basic human dignity and human rights. Taking action in a timely and professional manner to address reports of sexual assault is an essential component in minimizing harmful consequences to survivors and in breaking the cycle of sexual abuse in detention.
-Make certain that prisoners who are survivors of violence and/or sexual assault receive appropriate physical and mental health care follow-up, including monitoring and confidential counseling for post-traumatic stress disorder, depression, and other mental health problems. This follow-up must also include access to confidential, voluntary testing, and treatment and counseling for HIV/AIDS and other STDs.
-Facilitate the ability of hospital staff and independent rape crisis counselors to counsel victims in private.
-Ensure that LGBT people have access to appropriate job training, formal education, and physical and mental health programs while in prison.
-Train parole agents and staff to respect sexual orientation and gender identity, and specify to agents that unless otherwise specified by courts, transgender parolees’ expressing their gender identity cannot be used as a basis to allege a violation of their parole terms. Also, train parole agents to be able to offer appropriate referrals and resources to their LGBT clients.
-Work to restore and increase funding to social, health, educational, and economic services that alleviate poverty among transgender people in the wider community.