Note from BW of Brazil: This is yet another story that’s been a long time coming as I’ve been wanting to post this piece for over a year now. The severity of the details has lead to a campaign to stop such abuses. A consequence of Brazil having one of the world’s largest prison populations is the vexatious/intimate body search that women and their children must endure if they are to see husbands and fathers in state prisons. The details and effects on those who must endure these procedures are truly gruesome and one could argue another form of suffering that families who already must deal with the absence of their loved ones must go through.
As Rede Brasil Atual points out, “the practice is not required by law. Rather, the Constitution guarantees the right to privacy by ensuring compensation for damages resulting from the violation.” Although today’s article focuses specifically on the prison system in São Paulo, “currently, only 6 (of Brazil’s 26) states prohibit the practice: Paraíba, Goiás, Minas Gerais, Espírito Santo, Rio de Janeiro and Rio Grande do Sul.” There are more developments and details on the movement to stop this humiliating procedure, but today’s piece will introduce you to one of São Paulo’s “dirty little secrets”.
They watch everything, then it’s their turn
In São Paulo prisons, children are forced to watch humiliating strip searches of their mothers and undress in front of agents to be able to visit their fathers
By Andrea Dip and Fernando Gazzaneo
“My son is not a criminal. He is only five years and the state wants to punish him like it punishes his father, who is already in jail and paying for what he did.” The phrase, full of outrage, is pronounced with clenched fists on the table, of the São Paulo “A.”, a mother of two, sales professional sales and law student. Her husband was jailed for three years and since then, every two or three months, she takes her son “R.” to see his father.
Every time, in the body search at the entrance, she and her son go through the same ritual:
“We walked into a box, I take off all my clothes I have to squat three times, open my private parts for the prison guard, sitting on a metallic stool metal detector, turn around with my arms up and sometimes they make me cough, with force, depending on who is searching. My son watches everything. When I need to open my private parts, I ask him to turn around,” she says.
Photo: “I had tears in my eyes because of seeing my daughter go through this situation. Since 6 months of age she has accompanied me in this struggle.” – In Brazil, mothers and daughters of inmates have to remove their clothes and open their genital orifices to be searched on the day of the visit. In São Paulo, only 3 cell phones or drugs are found for every 10,000 of these searches. Sign the petition for the end of the intimate search.
“Then it’s his turn. In the prison where his father was before being transferred, the agents ran their hand over his clothes, but when “T.” was transferred to a CDP here in the state capital, the searches of my son has changed. The first time, the agent asked me to take off all his clothes. I thought is was strange, and said it had never happened (before) and she replied that it was standard there. With gloves on, she touched my son’s shoulder so that he would turn around so she could both two sides, shook his clothes. At the time I said ‘Don’t touch my son. You know you cannot do that.’ She remained quiet and I didn’t argue because I get in soon, my son had not seen his father in months. R. didn’t know his father was in jail, I say that he works there pushing those food carts that come in the door. When he asks about the fences and walls, I say it is so that no one takes him away from me. On this day, when she asked him to take his clothes off, I said: ‘Filhão (son), remember that you had chickenpox? We needed to take your clothes to see if you still have it so you don’t give it to daddy, okay?’ He said ‘Okay mommy, but I don’t have chicken pox.”
A. explains that she was very uncomfortable with that. “The ECA [Estatuto da Criança e do Adolescente or Statute of Children and Adolescents] says that if a mother made her child undergo a shameful situation, humiliation, she must pay for it. But the state that created these laws can make my child go through humiliation? What’s the point?,” she asks. She says she has already wanted to make her son go alone for the men’s frisk when he was only 4 years old, which she retracted and managed to reverse. The situation became untenable when, on another day of visit, the same agent who had made the boy take off his clothes, asked that besides getting naked again, R. raise his arms and turn around.
“She did the exact same frisks given to adults and that was all I could stand. At the time I asked if she knew the ECA, if she knew that what she was doing was a crime and she said no. I sent for the coordinator on duty, looked right at them and said, ‘I want you to know that on Monday I will sue the state for what you are doing to my son. The state will be accountable,’ she warned.
Each prison a sentence
“A” sought the Ombudsman of São Paulo, which has opened a proceeding before the Corregedoria dos Presídios da Capital (Magistrate of Prisons of the Capital), asking that the case was investigated, and that the child would not need to once again go through this type of frisk, considered vexatious, to see his father. She also asked to that several complaints of vexatious frisks of children and adolescents in state prisons be investigated.
In the process, the director of the unit where R’s father is doesn’t deny that the strip search of the child happened and says that the procedure is standard. In the same document, two prosecutors of the Public Minsitry in São Paulo gave different determinations: one says that the request did not deserve acceptance since all are submitted to the frisk for security reasons and recommended that other penal institutions not submit anymore children and adolescents to any type of vexatious frisks. The case was dropped for lack of evidence. A. and her son R. were not heard. “I asked to be heard. I asked that they hear my son. But we were totally ignored,” laments A.
Patrick Cacicedo, coordinator of the Núcleo Especializado de Situação Carcerária da Defensoria (Specialized State Prison Ombudsman), who is now appealing the decision to drop A’s case, filed a parallel lawsuit against the State in order to indemnify the boy, R. He explains that there is currently no specific law in the country about the frisk. “There is a resolution of the Conselho Nacional de Política Criminal e Penitenciária (National Council on Criminal and Penitentiary Policy) which says that the intimate pat-down may only be allowed in cases of founded suspicion that the person being searched is a carrier of a legally prohibited substance or object and should have objective character, before the identified fact by management recorded in the proper book and signed by the person frisked. This is not that what we see today in the prisons of São Paulo. There is no standard that allows such an intimate and vexatious frisk. Here the manual, intimate frisk ends up always being used, for both adults and children,” says public defender.
The same resolution fo CNPCP establishes that the frisk should be done in an electronic way – through a metal detector, X-ray and other things – in the majority of cases. In São Paulo, the Regimento Interno Padrão da Secretaria de Administração Penitenciária (SAP or Standard Internal Regimen of the Secretary of Prison Administration) says that the agents can do intimate frisks “when necessary” and “in a reserved location”, for people of the same sex, preserve the honor and dignity of whoever is being frisked.”
In the case of children and teenagers the manual frisk is even more serious, according to the defender: “Touching a child and making the child go through an embarrassing situation already injures the ECA (Estatuto da Criança e do Adolescente or Statute of Children and Adolescents) right off the bat,” he says, referring to article 18 of the statute that establishes: “It’s a must of all ensure for the dignity of the child and the adolescent, saving them from any dehumanizing, violent, terrorizing, humiliating or embarrassing treatment.”
“A” says that she continues taking her son to see his father every two or three months, but that the last few times the boy decided that will not take off his clothes anymore and told the agents that “they already know that he doesn’t have chickenpox anymore and because of this doesn’t need to get naked again.” “If the agent was cool, understands the situation and only probes on top of the clothes. Others are rude and order him to take his clothes off anyway, then I have to make up another story for him,” says A.
“This practice is totally illegal, unconstitutional and the most severe violations of human rights that exist in Brazil,” denounced Patrick. “The objective of the humiliating frisks is that the persons don’t visit their relatives; that they don’t see all the violations of human rights that happen in there. You pass the punishment on to the family and the state uses various mechanisms for this,” he believes. “And the means don’t come to an end because if you do these frisks in order that drugs, weapons and cell phones don’t come in and they continue to come in, it’s because it’s not working.”
The SAP was sought out various times about the report for a statement in respect to the denouncements but said that they had no comment on the subject and that they didn’t know anything about these denouncements. The Ministério Público Estadual (State Public Ministry) also didn’t wish to make a comment on the issue.
The room of the community leader Andreia Ferreira, in a periphery neighborhood of Praia Grande, he works like a type of informal ombudsman for the families of prisoners on the coast of SP. There, it’s common, at anytime of day, for people that go through some embarrassing situation during a visit with prisoners. On the morning of July 12th, various women sat on the sofas and chairs spread out in the room, to tell their stories. After a long silence, the testimonies started to come out in a timid manner after they were told they were told that their identities would be protected.
The housewife “M”, 24, held her 9 month old daughter in her lap, while her son, 3 years old, suspicious played with the barra of her skirt. The boy was born before his father, also 24, went to the CDP of Praia Grande a little more than two years ago. M’s second pregnancy happened during an intimate visit in the cell of her partner. During M’s pregnancy, she didn’t stop visiting her husband. “All the time we go through being frisked and never got used to the way they did this. It’s a lack of dignity,” she said before giving details of the process. “I go to a small room with four or five women. In front of my children, I took off my clothes and squatted three times with my legs open. After that, I sit on a metal bench that’s for looking to see if I’m hiding something inside of me. The boy sees everything.” Then, it’s the boy’s turn. So that the boy doesn’t get scared, M is used to making up a story that it’s a medical exam or that carceireiras (the guards) are looking for an object lost inside my son’s clothes. They don’t touch me but they always run their hands over his body. They touch all parts of his body through his clothes.” The way that the frisk is done, she says, depends on each employee. “There are some that more educated and some that are stupid, that scream, that keep rushing. Sometimes they even curse. My baby, I have to remove the diaper, show the guard and after dress the girl again. It’s only after this that we pass through the metal detector and go to the patio where my husband is waiting for us.”
Once, M’s body search didn’t end in the normal 15 minutes. That’s because the prison agent that that the woman had hidden drugs inside of her vagina. To check the suspect, M was taken to the PS together with her children. “They want for the doctors to examine inside of me to see if I had drugs. I stayed there from 11am to 4pm, waiting for someone to do this. No doctor wanted to. They decided then to me in an X-ray room. I hadn’t hidden anything. They left me there to go but they didn’t allow me to have a copy of the exam that they did on me,” she remembers.
After the sentencing, M’s husband was transferred to a prison in São Paulo. But the distance and the discomfort that she said he felt upon seeing her children being searched are not obstacles for visiting her companion. “I will continue taking them to see their father. I will do this: one month I take them. Another month no. My husband asks to see the children.”
Mother, are you naked?
Heidi Cerneka, of the Instituto Terra Trabalho e Cidadania (Institute of Earth Work and Citizenship and coordinator of Pastoral Carcerária of São Paulo, heard many statements like this: “Under the Constitution, the penalty cannot pass from the person arrested, but what we see today is otherwise. With these humiliations, the family ends up not going to visit anymore or the prisoner himself asks for them not to come. The law guarantees the family bond. Without visiting, how do you guarantee (this)? By letter? What is opened and read before?”
For Heidi, many women end up becoming convinced that this is a tolerable situation in order not to undergo anything further: “These are people who live daily with violations. For them this is just another violation. Many are convinced that it’s nothing that they can’t handle. Because getting outraged and horrified every week is difficult. You have two jobs: getting outraged and calming down, because if she goes in crying, the prisoner becomes agitated. And most do not know what to do, to whom to turn to.”
D., aged 21, M’s sister-in-law also has a husband imprisoned in the CDP of Praia Grande. She says she and her son go through the same procedure of the search narrated by M. “It’s embarrassing because of ignorance of the guards. They have to run his hand on the boy’s body and I don’t think it should be like this, because he is a child. Right? My son understands everything, he asks me, ‘Mom, are you naked?’ When searched, he tries to pull away from the hand of the guard, and has a frightened look. At school, the teacher told me he mimics for his classmates what I do when I’m searched. He kneels down and gets up, kneels down and gets up… it’s already was marked in his head.”
In one of the visits, a prison guard told the son of P., the wife of another prisoner, he could not enter with the gym shoes that light up on the back. “I snapped, I said the boy had entered other times with the shoes, but she wouldn’t budge. I had to go out and rip the shoes to remove the flashers. The boy cried because the shoes were new.”
“Big children, some 10 years old, already went through the search alone. The boy goes into one line and the mother into another. And there’s no other way. If you argue, you don’t go in, and still run the risk of being suspended from visits,” reports P.
Sitting on a chair in the corner, E., 14, listens in silence to the story of the women for nearly three hours. When she decided to speak, her voice was weak and the tears washed her face. Since childhood, the young girl has visited her father in jail. “I don’t remember how they did the search when I was small. I just don’t forget the swearing,” says the teen, weeping. In line, she says she’s always ahead of her grandmother, but the two do not always enter the room together to be searched.
The teenager goes through the same procedures by which older women are subjected. “I feel bad being naked with a lot of women I don’t know. Every 15 days, I need to go through this situation. Once, the guard accused me of hiding something in my bra. She made me rip it to prove that I didn’t have anything. I felt embarrassed, ashamed. But I held back the tears, because I was afraid of not being able to go in and see my dad.”
“A thing of a concentration camp”
Marcia Badaró, a psychologist who has worked for 30 years in the Secretaria de Administração Penitenciária (Department of Penitentiary Administration) of Rio de Janeiro, says that it is impossible to predict what kind of psychological damage these violations can cause children and adolescents: “It’s clear that each will react and perceive the situation in a particular way. But mainly for an older child and a preteen, who already have consciousness and preoccupation with their bodies, being forced to be exposed like this in front of people who they don’t know, is an absurd emotional violence. For little ones, it causes discomfort but they still don’t understand – they just know it’s something unusual, so they take the experience to school, for example. But the experience can result in a disqualification of their own bodies and in the trivialization of that violence.”
For the judge Antonio Carlos Malheiros, coordinator of the Vara de Infância e Juventude do Tribunal de Justiça (Childhood and Youth Court of the Court) of São Paulo, the search reported by women is “a thing of a concentration camp” and is “totally at odds with the ECA and the Federal Constitution.” He said he didn’t know of the procedure for children and adolescents and that recently only he and another judge voted for the end of the strip search of women in the District of Taubaté. At the conclusion of the ruling are found phrases like “The text does not denote mandatory because it deals with a mere condition [the search] to those who insist on personal contact with the inmate.”
Malheiros sees a criminal hardening in the judiciary, the prison system and society in general: “If you provoke a radical conservative he will say ‘who orders one to be married to a criminal?’ There’s a lack of standardization, lack of political will, political courage. Caring for the dignity of the imprisoned does not bring you votes, on the contrary, you lose votes. The more you curtail the rights of the prisoner, the harder you are, the more you earn. Speaking of reduction of criminal responsibility, death penalty, life imprisonment, this brings points. I’m sure if I ask in my own family, many people will say, ‘gee, you’re worrying about this? The guy is a criminal, fuck him, his family, the child, the mother. This is reflected in other instances, unfortunately.” The judge also disagrees that these procedures prevents drugs, cell phones and weapons from entering the prisons: “Drugs, weapons will enter the prison with this vexatious check, or not. The personnel system itself that is bought or threatened lets it pass.”
In a statement by e-mail via the press office, Paulo Eduardo de Almeida Sorci, assistant judge of the Corregedoria Geral da Justiça do TJSP (Internal Affairs Division of the Court of TJSP), said: “The search for children and teens, during their admission into the penal institution on the occasion of the visit to the prisoner is purely administrative and of direct responsibility of the director of the correctional facility”. In the same e-mail, he declared: “Actually, there is not much difference – in the prison system – from what is happening in stadiums and airports. All visitors to prisons should be searched, regardless of age.”
Sorci said that “Article 3 of Law No. 10.792/2003 states that prison establishments will have a metal detector apparatus, which all who want to have access to the property must submit, even to those that exercise any public office or function. This means that the legislator legitimized direct body search (with physical contact) for all and any to any situation of which the safety device detects objectively and technically any irregularities, i.e. the possible presence of a sealed and typified object.
It could be different
Human rights activists and law experts like Carlos Moriath, former coordinator of Development and Consolidation of Normative Acts of the National Penitentiary Department and Professor of Police Investigation of the National Police Academy, agrees that a solution to the search of the family would be to create a reserved space for visitors where, after contact, the prisoners themselves would be searched before returning to their cells. “As a matter of logic, I think this kind of search of the visitors doesn’t resolve anything. If a strip search is performed even in defiance of the norm and the evils still remain, it’s a sign that something is wrong. If it were the solution of security problems, there would be no more illegal products inside the prisons. The ideal would be that the prisoner suffered a strong search, including intimate if necessary, after each visit.”
According to Gabriela Ferraz, lawyer of the Instituto Terra, Trabalho e Cidadania (Earth, Work and Citizenship Institute), several states have banned the vexatious intimate search of children, adolescents and adults in their prisons. Among them are Paraíba, Rio Grande do Sul, Minas Gerais, Rio de Janeiro and Goiás “That’s already something, but it only accentuates the inequality with the other states. Our goal today is to take to the vote the bill created by Deputado Iriny Lopes (PT-ES) which specifically ordains for the search in prisons across the country, prohibits the intimate search of children and adolescents and allows that of adult only in cases of founded suspicion,” he explains.
Deputado Iriny says that he intends to introduce the bill in 2014 or when Deputado Marco Feliciano (PSC) leaves the presidency of the Human Rights Commission of the Chamber. “I created this project because I received many allegations of such conduct especially with children who had to expose their private parts for the search with a mirror to see if there was not something inside, of girls and boys, wives and mothers of detainees. I withdrew the bill from the agenda of 2013, like other colleagues, to protest the election of Feliciano but I intend to repeat it in 2014. In truth, I lament that there is a need to create a law for this. This conduct shames us before international human rights organs. It’s standard and is scandalous,” he says.
According to data supplied by SAP, 1222 phones were found in the prisons of the state of São Paulo in the first quarter of 2013. Of these, only 104 were seized during the searches of visitors. A spokesperson says the Department.