In most Latin American countries the female penitentiary population represents less than 10% of the inmates. Most of them have been convicted for non-violent crime like drug trafficking, more than half are between 20 and 35 years old and almost all of them have children (some of them living with their mothers behind bars).

A key problem these women face is the enjoyment of their rights to sexuality and to motherhood. This issue is rarely discussed, however, because society, politicians and the media assume that this part of the population has no fundamental rights at all. While some restrictions certainly must accompany prison life, any enforced limitations should be reasonable and justified. Under these criteria, it is not apparent why rights to sexuality and maternity should be denied.

However, there are many “requirements” imposed by prison authorities for female inmates to be able to exert their sexuality in conjugal visits. For instance, they are required to have a stable relationship, which must be ascertained through a marriage certificate or the birth certificate of a common child. They are also required to have uninterrupted “excellent behavior” for a period of no less than six months.  Such requirements are common in many Latin American countries.

Clearly, most inmates wish to maintain familiar and spousal/partner ties while in prison, and these ties are recognized as important for the inmate’s emotional health. The requirement of a stable romantic relationship (spouse or partner) may therefore be seen as supporting the maintenance of familiar and partner/spousal ties. However, in prison there are also single and divorced women who do not have a stable partner and who may have—exactly as the inmates in a stable relationship—the desire to exercise their sexuality. If we understand this right as the freedom to autonomously choose who one desires to have sexual relations with, clearly only applying it to married women (or those in a stable relationship), restricts and violates sexual liberty.

Why shouldn’t it apply to all detained women? In Spain, for example, legislation provides that prisoners are the ones who choose the person with whom they want to have conjugal visits, whether their spouse or another person. This wide criterion has allowed homosexual inmates to have conjugal visits as well.

Demanding “excellent behavior” in order to have sex in prison reveals the use of conjugal visits as an instrument to keep female inmates in line. Demanding “excellent behavior” in order to have sex in prison—besides discriminating against inmates that have “bad” or even “regular” behavior—reveals the use of conjugal visits as an instrument to keep female inmates in line. It also exposes a contradiction, for if the purpose of this kind of visit is to preserve family bonds, then the conduct of the inmate should not be relevant.

Conjugal visits thus regulated do not amount to a right, but merely a privilege or a reward for good behavior. Those not complying with behavior regulations established by the prison authority, besides being exposed to arbitrary sanctions, have no chance at all to exert their sexuality, even if they have a stable relationship.

In some cases, the nature of the crime committed influences decisions to allow conjugal visits. This happened to Elizabeth Venturo Ríos at the Chorrillos Prison in Lima, Peru, who was condemned to a lengthy sentence for terrorist acts perpetrated within the terrorist movement Sendero Luminoso (Shining Path). In 2006 the penitentiary office told her she was forbidden to receive conjugal visits because she was convicted on terrorism charges, even though she was in a stable relationship and had excellent behavior.

Elizabeth Venturo and her fellow inmates went to court to challenge the decision, and the Constitutional Court of Peru ruled that, “conjugal visits are not restricted, limited or prohibited in a general or precise manner to inmates convicted for terrorist crimes; on the contrary, the restriction can be said to be the result of an arbitrary interpretation of regulations by the penitentiary authorities”.  Elsewhere in the same judgment, the Court held that: “the authorities’ argument that the restriction is based on the fear that inmates may become pregnant does not justify an absolute restriction”.

An incarcerated woman and her child in Rio de Janeiro, Brazil.

Indeed, one of the reasons for restricting the conjugal visits of the inmates is the fear they will become pregnant. For example, in a 2005 working paper entitled Mujeres y Sistema Penitenciario, a penitentiary employee at a women’s prison stated that, “The negation of conjugal visits for inmates comes from a simple fact: pregnancy. Given that men cannot become impregnated and women can, the possibility of pregnancy must be prevented by the authority”.

While providing birth control may seem to be an obvious solution, nothing in this issue is that simple. Fear of pregnancy is a convenient excuse, but the main reason to withhold conjugal visits is to ensure order and discipline within the precinct. Only certain inmates have access to birth control, and even then, whether or not a woman chooses to use the birth control methods provided is something that authorities cannot control. Therefore it’s simpler and more effective, from the authorities’ point of view, to simply restrict sexual relations altogether.

Rather than focusing on maternity or sexual rights, the authorities seem to focus on logistical problems—pointing to the lack of special environments within the prison where children can live with their mothers. While this is certainly a very real issue, the Inter-American Court of Human Rights has ruled that states must assume particular responsibilities and take diverse special initiatives to guarantee inmates the necessary conditions to develop a life of dignity and contribute to the enjoyment of those rights.

There are many ways to guarantee maternity and sexual rights to women in prisons. Special environments within the prison could be built for women and their children. In Argentina, house arrest is an option for women that have newborns in prison. Yet other countries on the continent, such as Peru, still have not discussed any such alternatives. But as long as changes are not implemented, female inmates will continue to find themselves deprived of many of their fundamental rights.