AUTHOR: BUSARI HALIMAT TEMITAYO
Student (LL.B), Faculty of Law, University of Lagos.
Human rights are the basic and inalienable guarantees that describe certain standards of human behaviour, and are regularly protected as legal rights in municipal and international laws. A correctional facility such as a prison serves to confine and rehabilitate prisoners, and it is often said that human rights do not stop at prison gates. However, the conditions of confinement in many prisons today have been the object of concern all over the world. One of such is conjugal rights for prisoners, which remains a controversial issue with two distinct points of argument. This paper discusses the objectives of imprisonment, explains the concept of conjugal rights, considers the arguments for and against it and posits that imprisonment should not amount to its suspension.
Prisons in Africa are often considered the worst in the world, while other prison systems are worse in terms of violence, overcrowding and a host of other problems. This is not to argue that prisons in Africa are human rights friendly as many are in deficient condition and their practices are at odds with human rights standards.
The objectives of imprisonment can be summarised into four: retribution; deterrence; incapacitation; and rehabilitation. Retribution is punishment for crimes committed against the society by depriving criminals of their freedom, as a way of making them pay for their crimes. Incapacitation refers to the removal of criminals from the society to facilitate the protection of the public. Deterrence entails the prevention of the commission of future crimes. It is hoped that prisons provide warnings to people thinking about committing crimes and that the possibility of being imprisoned will discourage people from breaking the law while also serving as an instrument for the reformation and rehabilitation of prisoners. Also, it is submitted that what is needed is proper manual to bring behavioural changes in the prisoners to ensure that the chances of them going back into crimes upon release are slim to none.
Conjugal rights are the sexual rights or privileges implied by, involved in and regarded as exercisable in law, by each partner in a marriage. They refer to the mutual rights and privileges between two individuals arising from the state of being married. These rights include mutual rights of companionship, support, sexual relations, affection and the like. The act of a husband or wife staying separately from the other without any lawful cause is referred to as subtraction of conjugal rights.
CONJUGAL RIGHTS FOR PRISONERS
Conjugal rights are usually exercised through visitation for prisoners. A conjugal visit is a scheduled period in which an inmate of a prison (or jail) is permitted to spend several hours or days in private with a visitor, usually his or her legal spouse during which both parties may engage in sexual intercourse. This visitation could be from the spouse or partner of the inmate to the inmate within the walls of the prison, or through other means such as the provision of a structure by the prison where supplies such as soap, condoms, lubricants, bed linens and towels may be provided, or in certain cases where prisoners are allowed to leave the prison premises, to the outside world under supervision.
Some scholars posit that for an offender who is sentenced to imprisonment, his or her punishment is just imprisonment. Thus, the punishment should not deprive such an individual of his or her rights. According to this school of thought, the prisoner should only be punished by imprisonment which he or she has been convicted for in a fair judicial process in a just and independent court. This point of view serves as the bedrock for legal systems which provide for and permit conjugal visits for prisoners.
The generally recognised basis for permitting such visits in modern times is to preserve family bonds and increase the chances of success for a prisoner’s eventual return to normal life after release from prison. Additionally, they serve as an incentive to motivate inmates to comply with the various day-to-day rules and regulations of the prison, and to avoid any infringement which may result in disqualification from having conjugal visits. Those in favour of conjugal visits argue that it will help in the rehabilitation of inmates, prevent sexual harassment and depression in jail. They further argue that it gives psychological relief to some prisoners and gets them to know that they are still responsible and that deprivation of conjugal rights amounts to double punishment. Furthermore, some of the supporters of this position assert that conjugal rights are God-given and not government-given and that it would be unfair to the partners of convicts to deny them conjugal rights as though they were also convicted.
Out of the 196 countries in the world, only a few permits conjugal visits for their prisoners. Some of these countries include: Australia; Canada; Denmark; Germany; Israel; Mexico; India; Jamaica; Pakistan; Saudi Arabia; Spain; United Kingdom; and the United States of America (USA). However, it is important to note that of all fifty states in the USA, only four (Connecticut, New York, California and Washington) currently allow conjugal visits, which are otherwise known as extended family visits.5 Also, these rights do not exist in the USA federal prison system. In addition, conjugal visits are considered a privilege for prisoners who have exhibited good behaviour during their term of incarceration.
In the USA, the Supreme Court and several courts have held that prisoners do not have a constitutional right to conjugal visits. In Pakistan, the Sindh home department grants conjugal rights to convicted inmates under which they would be allowed to meet their spouses for one day or night in 3 months. A notification was issued following a Supreme Court order on 6 April 2010 to implement same in all the provinces and is part of the government’s jail reforms. Jamaica recently adopted this position following the announcement made by the National Security Minister, Robert Montague, where he stated that he believes that allowing inmates to have sexual relations with their partners will be beneficial. This development in Jamaica however, has been highly criticised.
On the other hand, the argument against conjugal rights for prisoners is centered on the position that punishment should not come with perks. This school of thought, while recognising that prisoners are human beings entitled to basic human rights, posits that punishments cease to have meaning when they come with perks. Sending someone who has been convicted of a crime to prison is the government’s way of giving the convict the opportunity to take time off their usual lifestyle, reflect upon their actions and hopefully, be molded and reformed to be law abiding citizens. Here, it is regarded that depriving prisoners of pleasures such as sex is to serve as a way of understanding that there are repercussions other than loss of rights to liberty and movement when crimes are committed.
In some states where prisoners are not allowed conjugal rights, there have been reported actions both in and outside of courts where the recognition and acknowledgement of these rights are being fought for. Premium Times Nigeria reported over two years ago that Charles Okah sued the Nigerian government, wanting inter alia, the allowance of conjugal visits in prison. The applicant sought a declaration that the refusal of the respondents to allow for conjugal visits to the prison breached the fundamental rights of both convicted and awaiting trial inmates. Also, the Parliament’s committee on Human Rights in Uganda tasked the Commissioner General of Prisons, Dr. Johnson Byabashaija to explain why prisoners, especially those serving long sentences were not allowed to enjoy conjugal rights. Byabashaija responded, saying that Uganda’s laws have no provision for conjugal rights because they are one of the several limited rights with those in the conflict with the law. He also added that though the law is silent on the matter, allowing conjugal visits would stretch the already small budget allocated to prisons in Uganda. These actions show the eagerness and readiness of a significant portion of the citizenry of these countries to accept conjugal rights for prisoners in these states.
Under Islamic law, the prison system is a little different, as there are rare cases for imprisonment. In addition, imprisonment here is not the foundation of punishment, rather, it is supplementary and mainly for simple offences. Prisoners here are often incarcerated at the discretion of the judge and usually for offences that have no specific punishment, or in cases where such a prisoner is deemed to be very harmful to the society. Generally, such prisoners enjoy all rights, (including conjugal rights), except the right to freedom of movement. However, for serious crimes, if in the course of discipline, the state decides that depriving the prisoner of certain things will aid the rectification of such a prisoner; conjugal rights may be denied if they happen to be a part of those things.
In the study of criminology, one realises that the inability to find a balance between the objectives of imprisonment, especially punishment and rehabilitation accounts for the main reason for the failure of the prison system. The rate of recidivism all over the world affirms this. According to a report by the Bureau of Justice Statistics (BJS) in the USA, about 68 percent of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of their release from prison, and 77 percent were arrested within five years. In 2010, the Ministry of Justice figures in the United Kingdom (UK) disclosed that 14 prisons in England and Wales, most of which hold short-term inmates, have re conviction rates of more than 70 percent. The statistics underline the long-term ineffectiveness of the criminal justice system at diverting persistent offenders from a life of crime. Consequently over time, it has been observed that the emphasis placed on punishment being an end result of imprisonment is a little excessive. The argument against granting conjugal rights to prisoners seems to fail to consider that extreme punishment tends to harden people in need of correction.
As important as the punishment factor is, it is relevant to keep in mind that while nothing can be done to change a crime or crimes that a prisoner might have committed, it is possible to effect change(s) to the character of such a prisoner. This may directly or indirectly prevent that prisoner from relapsing into the criminal world upon release. This can be achieved through the implementation of a technique that encompasses the four objectives of imprisonment aforementioned.
One of the biggest advantages to having a prison that allows conjugal rights through conjugal visits is that prisoners tend to follow the rules and be obedient, for fear of losing those rights. Family relationships have a huge impact on the prisoner’s motivation to be rehabilitated. This means that granting conjugal rights to prisoners will not only be a source of help and support to the prisoners during incarceration, but will also increase the chances of the prison system being more effective in securing the rehabilitation and reformation of prisoners.
On the long run, keeping the aforementioned points in mind, ceteris paribus, the advantages of granting conjugal rights outweigh the disadvantages. It is submitted that prisoners should be granted conjugal rights upon careful and proper regulation. If this is done, it is highly likely that the rate of recidivism will reduce. Furthermore, states are encouraged to grant conjugal rights where it is observed that such rights will assist a prisoner in his or her reformation process.
Halimat Temitayo Busari is a law student in her penultimate year. her interests in areas of law include but are not limited to: human rights; intellectual property and tax. She can be reached via mail at firstname.lastname@example.org