Carceral Period Poverty in South African Prisons
Period poverty is the inability to afford access to menstrual products, sanitation and hygiene facilities, and awareness and information concerning menstruation. Period poverty manifests in prison settings.
Carceral period poverty occurs when a prison system creates or perpetuates barriers to access menstrual health management. It may be the product of androcentric policy-making and budgeting – prisons are typically designed with men in mind. Worse, to penalise and assert power and control over women’s bodies, prisons may “weaponise menstruation” by preventing or limiting access to menstrual health products.
Menstruation behind bars
During apartheid, menstruation in prisons was used as a form of humiliation and dehumanisation of female inmates. Today, women in prisons in democratic South Africa still experience challenges related to menstrual health management. The little research that has been done found a “serious dearth of information” on menstruation in South African prisons. When it comes to the lived experiences of female inmates and menstruation, there is a “resounding silence” and “veiled secrecy.”
Some may question the plight of female inmates (2 691 sentenced and 1 958 awaiting trial) when the issue of period poverty is widespread across South Africa. However, the two causes are not mutually exclusive. Given the gendered pathways to crime, female inmates tend to come from marginalised and indigent communities. In addition, almost half (42%) of female inmates are awaiting trial and thus innocent until proven guilty. Even for convicted female inmates, activists explain that women experience menstruation, “irrespective of their guilt and innocence,” and although the fight for “menstrual justice” does not absolve them of their guilt – they are human beings entitled to human rights.
Research from 2012 noted that female inmates are allocated two sanitary pads daily during their menstrual cycles. The Judicial Inspectorate for Correctional Services (JICS) found that in some facilities there were shortages of sanitary pads, they were available on an ad hoc basis, and the quality was questionable. There were also concerns related to holistic access – the lack of education and information on menstruation, limited access to other products (including tampons), water, underwear, lubricant, and private spaces. In response, JICS initiated the Women Incarcerated Campaign to encourage the donations of menstrual products for women in prison. Challenges persist as JICS recently received 118 urgent complaints concerning access to feminine hygiene products.
Legal and policy frameworks
According to section 12 of the Correctional Services Act 111 of 1998, the Department of Correctional Services (DCS) provides healthcare services within its available resources, and section 41(7) states that, for sentenced inmates, “programmes must be responsive to special needs of women”. The DCS’s Health Care Policy and Procedures contains a section on “maternal and reproductive health,” which lists “sanitary pads” as a requirement but lacks specificity. The DCS’s B-Orders mention “sanitary towels as required.” But, again, there are no further details – how many products each female inmate should receive, the quality, or a standardised, accessible process across prisons. There is a possible policy lacuna when it comes to the menstruation of female inmates.
Soft international law instruments provide normative standards with persuasive force. Rule 5 of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules) states that female inmates “shall have facilities and materials required to meet women’s specific hygiene needs,” and this includes “sanitary towels provided free of charge”.
A 2023 Resolution adopted by the UN Human Rights Council recognises that in the context of criminal justice detention: “States should ensure the availability, accessibility, acceptability and good quality of health information and health-care services, including those related to menstrual health and hygiene.” From a regional perspective, the SADC Protocol on Gender and Development calls on States to implement laws and policies to “enhance gender sensitive, appropriate and affordable quality health care,” which includes “the provision of hygiene and sanitary facilities” for “women in prison.”
Strategic solutions
To fill the gaps, two options are worth surfacing.
First, support civil society’s calls to legislate for the provision of menstrual health and hygiene management in South Africa. At the time of writing, a Menstrual Health Rights Bill and Law Petition will be considered by the Portfolio Committee on Women, Youth and Persons with Disabilities. This legislative move should not sidestep female inmates.
There is hope. The Sanitary Dignity Policy Framework indicates the Department of Women’s proposed norms and standards on dignity and menstrual health at the national level. The list of beneficiaries, “indigent girls and women,” extends to those who “have been imprisoned.” Any menstrual-related Bill should include this approach and expressly consider women and girls who are detained in police stations, awaiting trial in detention centres, and incarcerated in correctional facilities.
Second, in the event of legislative inertia, strategic litigation has a role to play. Carceral period poverty cuts at the intersection of justiciable human rights enshrined in South Africa’s Constitution, namely: dignity, equality, healthcare, and freedom from torture or other cruel, inhuman or degrading treatment or punishment. Since male inmates prompt most prison-related litigation, there is limited jurisprudence on issues related to women’s lived experiences in prison. Still, various legal standards have been crystalised and can provide a solid foundation for litigation related to menstrual hygiene management in prison.
In Sonke Gender Justice, the Constitutional Court acknowledged that inmates “are a particularly vulnerable group” as they are “wholly dependent on the State for the provision of their basic needs.” The Court solidified the common law residuum principle that inmates “may not be subjected to any illegal treatment, or infringement of their liberty not warranted by, or necessary for, the purposes of correctional centre discipline and administration” and that “[i]ncarceration per se is not a justification for the limitation of inmates’ rights.” The residuum principle affirms the negative obligation that female inmates should not be unduly punished – by carceral period poverty – in the prison setting.
“…although the fight for “menstrual justice” does not absolve them (female prisoners) of their guilt – they are human beings entitled to human rights.”
In prison healthcare discourse, there is the “equivalence of care” principle, which stipulates that inmates shall have access to the health services equivalent to that available to the general public. However, some persuasively argue that given the severe limitation on one’s liberty, complete reliance on the prison services, and the accentuated health risks of the prison setting, the principle should be deemed a floor and not a ceiling. Even though not all women and girls can access menstrual products at state expense, this should not be a bar for female inmates. Prison healthcare may require heightened standards of care for female inmates.
At first blush, this may seem counter-intuitive, but it is consistent with case law. Before anti-retroviral treatments (ARVs) were widely available and affordable to the general public, in Van Biljon, inmates successfully sought a declarator that the right to “adequate medical treatment” meant that inmates who contracted HIV were entitled to receive ARVs at state expense. The High Court underscored that “the standard of medical treatment for prisoners in general cannot be determined by the lowest common denominator of the poorest prisoner on the basis that he or she could afford no better treatment outside.” In N, the High Court ordered the State to immediately remove restrictions that prevent access to ARV treatment for eligible inmates coupled with a structural interdict to ensure compliance. Advocacy and potential litigation prompted access to condoms for inmates.
Similarly, in the COVID-19 pandemic, the government rightly prioritised inmates’ access to vaccines to avoid outbreaks in prisons. Aware of the differences between monthly menstrual health management and preventing or providing life-saving treatment for the spread of infectious and communicable diseases, a nuanced approach to the “equivalence of care” principle has merit. Plus, it shows how health standards in prisons can have a positive impact on future public health interventions.
Courts have also engaged with dignity and equality in the prison environment. In September, which concerned a transgender woman incarcerated in a male prison, the Equality Court stated that “if the State undermines a person’s self-worth through condemnation of conduct that forms part of a person’s experience of being human, the State violates that person’s right to dignity.”
In Smith, which involved inmates who were tortured in prison, the High Court observed that it is “recognised in international law and foreign courts that segregation and the denial and access to adequate medical care can amount to torture.” It may be worth considering whether the failure to provide or withhold access to menstrual products constitutes a form of torture or at least degrading treatment or punishment.
The way forward
Overcoming carceral period poverty is not an insurmountable challenge. On the contrary, targeted and practicable interventions are possible (recall there are less than 5 000 female inmates in our prisons). The UK government committed to providing all women and transgender people in detention with free menstrual products. Similarly, in the USA, federal prisons are required to supply free tampons and sanitary pads. In India, NGOs and experts are collaborating to implement interventions. Closer to home, the Malawi Parliament approved an increase to the prison health budget to provide menstrual products in prisons.
South Africa can develop sustainable solutions. By spotlighting the plight of periods in prison, we can try to overcome the challenges and stigma associated with criminality and menstruation.
