Mr Germán Parra Gallego
Germán is a PhD Researcher at the Programme for studies on Human Rights in Context (Ghent University, Belgium). His research focuses on urgent measures adopted to protect persons deprived of liberty in Guatemala and Colombia. His research project is part of a large ERC-funded project "IMPACTUM. Previously, Germán was a researcher at the International Center of Transitional Justice (ICTJ) and a legal advisor on human rights for the Ministry of Interior in Colombia. He worked for the International Committee of the Red Cross (ICRC) and was Deputy Coordinator in charge of monitoring prison conditions and judicial guarantees in Mexico and Central America. Germán studied Law and Public Administrative Law (Universidad Nacional de Colombia), holds a Masters Degree and a Human Rights’ Specialisation (Washington College of Law, American University, USA).
They call it love, we call it unpaid work.
Silvia Federici
Introduction
Care work encompasses a range of activities, including parenting, housework, and providing support to the elderly, people with disabling illnesses, and people with disabilities. In most countries, women and girls often bear the burden of performing these tasks, sacrificing their well-being, autonomy, and participation in formal labour markets and social and political life.
Unsafe conditions, long working hours, unpaid or poorly paid work, and exclusion from social protection, insurance and pension systems are widespread problems (International Labour Organisation, 2018). Feminist scholarship has indicated that care work is highly genderised and is a field of disparities and inequalities (Himmelweit, Susan, & Plomien, Ania, 2014). The asymmetric distribution of care work disproportionately affects marginalised women and girls due to factors such as socioeconomic class, race, rural, ethnic, or migratory status, and non-conforming gender identities.
At the same time, care work is an engine of each country's economy. In some contexts, it can account for between 10% and 39% of GDP and even exceed the manufacturing, commercial or transport sectors (ILO 2018). For example, in Argentina care work represents 16,8 % of GDP (Ministerio de Economía, 2023), in Colombia 20% (DANE, 2022), and in Mexico 28% (CISS, 2023). In countries like Argentina, Colombia, Costa Rica, Chile, Dominican Republic, Mexico, and Uruguay, local and national governments have adopted legislation and implemented policies and programs to recognise care work, support caregivers, create or strengthen community services and networks, and promote the recognition, reduction, reward and redistribution of care work. They have also established measures to ensure caregivers access education, vocational training, recreation, and self-care (Inter-American Court of Human Rights, 2023: 21, 22).
Recent developments at the regional and international levels have given visibility to care work and may contribute to increasing its legal status. In 2023, the government of Argentina requested an Advisory Opinion from the Inter-American Court of Human Rights on care as a human right and the obligations of States therein. This initiative opened a dialogue with the Court with the aim of defining such obligations in three dimensions: the right to give, receive and self-provide care (Inter-American Court of Human Rights, 2023). Also, in October 2023, the United Nations Human Rights Council adopted Resolution 54/6 on the centrality of care and support from a human rights perspective. Although not extensively, both processes highlighted the plight of women deprived of liberty and their families, acknowledging the detrimental impact of incarceration on care responsibilities.
The inequalities of care work converge with the disadvantages experienced by women in criminal justice systems. In Latin America, women are largely incarcerated for misdemeanours and economic-related crimes and are overrepresented in pretrial detention. Also, the majority of women are mothers and prisons are not equipped to meet their medical and family needs (IDB, 2019). In light of this phenomenon, the following text will delve into care work in relation to persons deprived of liberty and their communities. In this sense, it proposes a situated notion of care work that is not limited to activities carried out in domestic environments, but also in prisons, where women live with their children, and men and women carry out care activities as a form of sustenance in prison.
Invisibility of Care work within criminal justice systems
Globally, women make up 6.8% of people deprived of liberty. However, the population is even higher in countries like Guatemala (11,3%), Venezuela (7,8%), Chile (7,6%), El Salvador (7,4%), and Uruguay (7,1%). Since 2000, this population has grown by almost 60% compared to a 22% increase among men (ICPR, 2022). In Latin America, the "war on drugs" policies have led to an accelerated rate of incarceration of women over the past three decades (WOLA, 2023).
Throughout criminal investigations, judicial authorities rarely give special consideration or treatment to women who hold low-level positions in criminal organisations or who are victims of coercion, exploitation, or abuse (IACHR, 2023). The laws of Latin American countries do not allow non-custodial measures for drug-related crimes, impose prohibitive costs to access electronic monitoring devices or secure bail and exclude homeless women who cannot certify a fixed residence.
Far from being a solution, the alternative of house arrest also establishes barriers for women and the people who receive their care. The lack of financial credit, work, study, recreational, sports and spiritual activities turn their homes into precarious prisons. In addition, women who spend prolonged periods in pretrial detention often face worse conditions than convicted women, as they do not participate in reintegration or rehabilitation schemes. The few existing programmes for reintegration in Latin America do not consider the interests and needs of women, focusing mainly on domestic chores rather than providing vocational training and skills for formal employment.
In Latin America, a large portion of incarcerated women are single mothers, often driven to take part in drug-related crimes out of necessity or to fulfil care responsibilities (IACHR, 2023; WOLA, 2021; ICRC, 2019). These women are often forced to leave their children behind upon entering the prison system, exposing them to several risks, including abandonment, institutionalisation, recruitment by gangs or armed groups, harassment, and discrimination due to the stigma associated with criminal investigation. In addition, detention can automatically remove parental guardianship of their children without individualised judicial evaluations based on the child's best interests (IACHR, 2023).
Even when not imprisoned, the burden of care falls heavily on female relatives of detainees, who often take on the care of children, the elderly, or people with disabilities or chronic illnesses. This often involves quitting jobs, accepting long shifts, or engaging in the informal economy or criminal activities. In addition, women with incarcerated family members are often forced to provide essential goods and services when prison systems fail to do so, or budgets are insufficient. This includes preparing and delivering food, medicine, clothing, and other items at your own expense. As prison visitors, they may face long journeys, bureaucratic hurdles, and invasive body searches.
In environments characterised by prison overcrowding, corruption, and control by influential people, it is common for detainees or their families to pay rent or extortion for security and basic needs in prison (IACHR, 2023). In short, prisons deepen the feminisation of poverty and place women in a continuous chain of precariousness.
Care work behind bars
Inside detention centres, women mainly carry out care tasks until their children reach the age limits established by law. During their time in prison, children face overcrowding, prison violence, lack of nutritious food and water, and inadequate housing, education, recreation and health care conditions. The separation of mothers from their children causes psychological impacts such as stress, depression, and anxiety, hindering effective social reintegration efforts (UNODC, 2014). In relation to Colombia, the International Committee of the Red Cross confirmed the negative impacts on children for the separation from their mothers or other caregivers, and the repercussions on their behavioural, intellectual, emotional and mental development (ICRC, 2019).
In addition, care work serves as a way to earn a living within prison. People without economic resources or support networks are especially vulnerable and can perform tasks such as cleaning, cooking, washing clothes or even engaging in sex work in exchange for protection, basic goods and services. In some cases, care work can even be imposed as a form of humiliation and punishment among detainees. The lack of provision of essential items for care and self-care particularly affects marginalised individuals and groups without family support networks, including those with non-conforming gender identities, from indigenous, rural, and migratory backgrounds, or people struggling with drug addiction.
The absence of adequate medical care denies detainees' right to care. Without regular access to medication, specialised treatment, therapy, or timely transfer to hospitals and clinics for tertiary care, detainees are pushed to the brink of death and physical and mental deterioration. Similarly, the physical and communication barriers faced by older people and people with disabilities make detention more unbearable and miserable. In addition, the imposition of disciplinary sanctions, such as solitary confinement or prolonged isolation, inflicts lasting psychological and psychiatric trauma.
Approach to Care from a Human Rights Perspective
Policies aimed at addressing care work are incipient in Latin America and have yet to be designed or implemented in favour of women deprived of liberty. In 2022, the Inter-American Court of Human Rights issued an Advisory Opinion on states’ differentiated approaches to certain groups of detainees, underlying applicable standards on infrastructure and services for children living with their detained mothers. It underscored the obligation to guarantee access to medical care and treatment for mothers, breastfeeding and pregnant women, LGBTIQ+ people, older people, and detained Indigenous people (Inter-American Court of Human Rights, 2022). This Opinion was a remarkable development for affirming standards on care behind bars but did not address the situation of family members of people deprived of liberty.
A Latin American network of women with family members deprived of liberty (RIMUF, 2022) has called for their recognition as a vulnerable group and their care as productive work. The Association for the Prevention of Torture estimates that there are nearly six million relatives of detainees in the Americas, half of whom are children (APT, 2022). Prioritising them in care programmes could help offset and reduce their workload, allowing them to participate in social and vocational activities. In addition, it is required that states ensure sufficient space for detainees, and essential goods and services, as well as prevent and punish extortion or the imposition of other burdens to the families. Other essential measures are: placing women in prisons close to their families, providing adequate spaces for spousal and family visits, and abstaining from demanding unreasonable requirements for entry or conducting abusive body searches.
In addition to the legal recognition of the impact of detention on care, it is also critical to consider the human and social costs of expanding prison and prison systems and criminal policies (Angela Y. Davis, Gina Dent, Erica R. Meiners, Beth E. Richie, 2022). The principle of exceptionality of criminal law must be applied and resources allocated for community services, prevention and the establishment of care networks.
In the same way, it is necessary to examine whether criminal law is the most appropriate strategy to confront those who do not comply with their responsibilities of care. For example, in countries such as Colombia, Ecuador, El Salvador, Guatemala, Nicaragua and Peru, criminal law establishes prison sentences for those who do not financially support their family. However, this punitive measure does not balance the duties and responsibilities between parents and, on the contrary, increases the burden of caring for women, perpetuates the image and role of men as mere economic providers and stigmatises both them and their children. Instead, public policies should promote the appreciation of care, incentivise men in and out of prison to engage in care work, ensure that they fully enjoy parental leave, and obtain support from social services.
As a best practice, in 2023, the Colombian Congress passed legislation to replace prison sentences with work on behalf of public institutions, nonprofits, and NGOs. The beneficiaries are women heads of household with sentences of eight years or less. This progressive measure questions retribution and places restorative responses on the public agenda. However, noncustodial alternatives must go beyond maternity and care functions and be granted to women who face various types of vulnerabilities and victimisation in the past (IACHR, 2023).
The right to care in detention also encompasses guarantees of special medical treatment, therapy, support, and procedures for transgender detainees, the elderly, and people with disabilities and chronic illnesses. In times of endemics and pandemics, transfers or releases should be implemented for people at higher risk of complications, especially in overcrowded detention centres. Adaptations should be made to accommodate the needs of seniors and people with disabilities, and steps should be taken to prevent homelessness after release. Palliative care should also be provided to people in the terminal phase of their illness and should not be denied when such services are not available in prison. In the case of members of ethnic and indigenous groups, their treatment must be carried out in accordance with their customs on collective care and ancestral medicine.
The design of reintegration and referral programmes should be based on women's interests and needs and should include technical and vocational training that reflects the challenges and demands of the labour market. Consequently, governments must ensure that education and labour agencies lead the implementation of programmes for women released or deprived of liberty, foster cooperation with the private sector, and mitigate the negative impacts of stigma. Providing training and certificates as caregivers, providing technical and financial support in the creation of partnerships and entrepreneurship projects could also serve as sources of income for women deprived of liberty. Reduced sentences could also be an incentive for both men and women to engage in care work.
Mobilisation for the legal recognition of Care as a Human Right
Undoubtedly, the recognition, reduction, reward and redistribution of care work are central to achieving gender equality. As care work is a crosscutting aspect of society, it deserves higher reflection and engagement by political parties, international organisations, academia, and State agencies. In this sense, it is critical to address political, legal, socio-economic, and cultural frameworks that qualify care work as a “natural feminine attribute” and place it as a domestic and private issue. In these processes, it is also necessary to identify and tackle the burdens of care work exacerbated by deprivation of liberty.
Argentina's request to the Inter-American Court of Human Rights for an Advisory Opinion on care work provides an opportunity for the Court to elaborate on the legal status of this notion and its relationship with other human rights. Outstandingly, this consultation process has triggered immense mobilisation and drawn widespread public attention. The Court received 121 contributions from international and regional organisations, NGOs and academia, and eight Latin American States (Chile, Colombia, Costa Rica, Ecuador, Mexico, Panama, Paraguay and Uruguay). Although the vast majority of them focused on care work outside the criminal justice system, it is also crucial to consider the impact of criminal policies in their intensification and unequal distribution (Dejusticia, 2023).
Finally, the Advisory Opinion may also contribute to position care work as a matter of State policy and a regional issue independent of government changes. Certainly, the Court's analysis will shed light on the obligations of States with regard to care work and provide standards to be operationalised at the national level by the member states of the Inter-American system. In addition, it can contribute to reducing discrimination against women and girls and achieving the Sustainable Development Goals on gender equality and the recognition of unpaid domestic and care work (SDG 5).
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