Key Elements
In prison, it is sometimes necessary, for security reasons, to conduct body searches of detainees. The aim of body searches is to avoid bringing in and trafficking banned or dangerous substances and objects (e.g. weapons, drugs, or mobile phones).
There are three types of body searches:
- frisking (or pat-down): the detainee remains dressed;
- visual inspections: the detainee must undress and is subject to a visual inspection, without physical contact;
- intimate body cavity searches: the detainee is subjected to a physical examination of their body cavities (anus, vagina). Progressive standards recommend that such searches be prohibited by law. While these searches are not strictly prohibited, they should only be performed by trained and authorized doctors.
Due to their intrusive nature, all body searches can be degrading, even humiliating. They should therefore be used only when strictly necessary to maintain order or security in the prison for the person themselves and for other detainees and staff. Finally, searches must be conducted in a manner that is respectful of the detainee’s dignity.
Analysis
Reasons for body searches and circumstances of searches
Body searches can be a legitimate means of ensuring safety in prison if they meet the following three criteria:
• Legality: they are provided for and defined by law;
• Necessity: they are necessary to prevent the entry and trafficking of banned substances or objects;
• Proportionality: they are proportional to the threat; that is to say that they are the least intrusive means to ensure safety.
Because of their intrusive nature and the risk of abuse, the use of body searches must have a legal basis. A piece of legislation must define the circumstances, conditions and terms of body searches. This law may be supplemented by internal rules of the prison detailing the procedure. This must be distributed to staff and inmates. The law and/or rules may also specify the type of searches which are strictly prohibited.
The main objective of body searches is to prevent the entry or trafficking of banned products or objects. Body searches may be necessary when detainees have access to the outside world. Upon admission, detainees are often subjected to a full body search. This is also the case after family visits or after any outings for medical, legal or other reasons. Inside the prison, the prisoners may be submitted to frisk searches upon return from walks or workshops, or prior to placement in solitary confinement.
The security objective must be real and significant to prevent body searches being systematically and routinely applied to all detainees. The criteria to determine the need for a body search must be based on an assessment of the individual risk posed by each detainee or because of a well-founded suspicion.
The security imperative cannot be used to justify arbitrary or discriminatory body searches that would seek to stigmatize or humiliate a particular group of detainees, or to punish the prisoners as retaliation for a certain type of behavior.
Body searches for security reasons shall only be used when pat-downs are insufficient to maintain security. As recommended by the Inter-American Commission on Human Rights, body cavity searches should be prohibited.
The use of alternative measures should always be preferred, such as electronic equipment (X-rays), metal detectors or cells equipped with dry toilets in case there is a suspicion of drugs having been ingested.
Modalities of body searches
Body searches must be carried out by one person or by two staff members at the most. Body searches are sensitive operations, they must be carried out by trained and easily-identifiable personnel.
Insofar as non-invasive body searches aim to ensure safety and order, physicians should not participate in body searches. Cavity searches, which involve a risk of physical or psychological injury, should be prohibited by law, as recommended by the most progressive standards. However, when such searches are legally authorized, they should only be carried out by doctors. If body searches call for a doctor to perform them, the doctor should not be the prison’s doctor.
Body searches must be carried out in two stages in order to avoid the humiliation and complete nudity of the detainee. The inmate should take off his/her clothes from the waist up and then put their clothes back on before taking off their clothes from the waist down. These searches must be conducted in private, in a separate room, away from the eyes of inmates or others. There must be adequate conditions of hygiene and cleanliness.
For lesbians, gay, bisexual, transgender or intersex (LGBTI) detainees, the choice of the staff’s gender conducting the search should be respected. Some countries have adopted specific regulations regarding transgender body cavity searches with individualized search protocols in place.Transgender inmates should be consulted on the gender of the person conducting the search.
All searches must be conducted by staff of the same gender as the detainee and must be conducted out of sight and presence of staff of the opposite gender.
Body searches can be inherently humiliating and degrading for all detainees but women are even more vulnerable in these situations. This is the reason why international standards and jurisprudence require that women be searched by other women. For full body searches, inmates are often asked to spread their legs to allow visual inspection of the vagina and this experience is traumatic, even if the search is carried out by a woman. In the case of vaginal examinations the experience is even more humiliating and traumatic. These types of body searches should be prohibited or used only in exceptional cases.
The criteria of need and proportionality apply to any search, but their importance is enhanced when it comes to the specific vulnerabilities of people who have an intellectual disability or a mental disorder. The intrusiveness of the search can be more painful and traumatic for a person suffering from such disorders. Appropriate measures of reasonable accommodation should be developed and implemented by the authorities to avoid suffering, humiliation or inconvenience to people living with mental or physical disabilities.
Body searches and visits of close friends and family
In many countries, people who come to visit the detainees are also subjected to body searches for safety reasons. In practice, these security measures disproportionately affect women: mothers, wives, girlfriends or sisters of detainees. There is a very high risk of abuse aimed at humiliating guests or preventing visits. The risk is enhanced when these searches are systematically applied, regardless of the women’s age or health (older women, young girls, pregnant women). Searches of children visiting their parents in prison is particularly sensitive and staff must be particularly attentive and respectful.
Legal Standards
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule 50
The laws and regulations governing searches of prisoners and cells shall be in accordance with obligations under international law and shall take into account international standards and norms, keeping in mind the need to ensure security in the prison. Searches shall be conducted in a manner that is respectful of the inherent human dignity and privacy of the individual being searched, as well as the principles of proportionality, legality and necessity.
Rule 51
Searches shall not be used to harass, intimidate or unnecessarily intrude upon a prisoner’s privacy. For the purpose of accountability, the prison administration shall keep appropriate records of searches, in particular strip and body cavity searches and searches of cells, as well as the reasons for the searches, the identities of those who conducted them and any results of the searches.
Rule 52
1. Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary. Prison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches. Intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.
2. Body cavity searches shall be conducted only by qualified health-care professionals other than those primarily responsible for the care of the prisoner or, at a minimum, by staff appropriately trained by a medical professional in standards of hygiene, health and safety.
Rule 52.1
Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary. Prison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches. Intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.
Rule 53
Prisoners shall have access to, or be allowed to keep in their possession without access by the prison administration, documents relating to their legal proceedings.
Rule 60.2
Search and entry procedures for visitors shall not be degrading and shall be governed by principles at least as protective as those outlined in rules 50 to 52. Body cavity searches should be avoided and should not be applied to children.
United Nations Rules for the Treatment of Women Prisoners and Non - custodial Measures for Women Offenders (the Bangkok Rules)
Rule 19
Effective measures shall be taken to ensure that women prisoners‟ dignity and respect are protected during personal searches, which shall only be carried out by women staff who have been properly trained in appropriate sear ching methods and in accordance with established procedures.
Rule 20
Alternative screening methods, such as scans, shall be developed to replace strip searches and invasive body searches, in order to avoid the harmful psychological and possible physical impact of invasive body searches.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016
Paragraph 23
Body searches, in particular strip and invasive body searches, are common practices and can constitute ill-treatment when conducted in a disproportionate, humiliating or discriminatory manner. Inappropriate touching and handling amounting to sexual harassment during searches is common, as are routine vaginal examinations of women charged with drug offences. These practices have a disproportionate impact on women, particularly when conducted by male guards. The punishment of women who refuse to undergo strip and invasive searches, for instance by placing them in isolation or revoking visitation privileges, is also common. When conducted for a prohibited purpose or for any reason based on discrimination and leading to severe pain or suffering, strip and invasive body searches amount to torture.
Paragraph 36
Humiliating and invasive body searches may constitute torture or ill-treatment, particularly for transgender detainees. In States where homosexuality is criminalized, men suspected of same-sex conduct are subject to non-consensual anal examinations intended to obtain physical evidence of homosexuality, a practice that is medically worthless and amounts to torture or ill-treatment (CAT/C/CR/29/4).
Paragraph 70
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (j) Ensure that strip and invasive body searches are conducted only when necessary and appropriate, by staff of the same gender with sufficient medical knowledge and skill to perform the search safely and respect the individual’s privacy and dignity and in two steps (to ensure that the detainee is never fully unclothed), and to prohibit body searches of females by male staff; [...]
(u) Guarantee all transgender detainees the choice of being searched by male or female officers;
European prison rules
Rule 54.1
1. There shall be detailed procedures which staff have to follow when searching:
a. all places where prisoners live, work and congregate;
b. prisoners;
c. visitors and their possessions; and
d. staff.
Rule 54.2
The situations in which such searches are necessary and their nature shall be defined by national law.
Rule 54.3
Staff shall be trained to carry out these searches in such a way as to detect and prevent any attempt to escape or to hide contraband, while at the same time respecting the dignity of those being searched and their personal possessions.
Rule 54.4
Persons being searched shall not be humiliated by the searching process.
Rule 54.5
Persons shall only be searched by staff of the same gender.
Rule 54.6
There shall be no internal physical searches of prisoners’ bodies by prison staff.
Rule 54.7
An intimate examination related to a search may be conducted by a medical practitioner only.
Rule 54.8
Prisoners shall be present when their personal property is being searched unless investigating techniques or the potential threat to staff prohibit this.
Rule 54.9
The obligation to protect security and safety shall be balanced against the privacy of visitors.
Rule 54.10
Procedures for controlling professional visitors, such as legal representatives, social workers and medical practitioners, etc., shall be the subject of consultation with their professional bodies to ensure a balance between security and safety, and the right of confidential professional access.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America
Principle XXI - Bodily searches, inspection of installations and other measures
Whenever bodily searches, inspections of installations and organizational measures of places of deprivation of liberty are permitted by law, they shall comply with criteria of necessity, reasonableness and proportionality.
Bodily searches of persons deprived of liberty and visitors to places of deprivation of liberty shall be carried out under adequate sanitary conditions by qualified personnel of the same sex, and shall be compatible with human dignity and respect for fundamental rights. In line with the foregoing, Member States shall employ alternative means through technological equipment and procedures, or other appropriate methods.
Intrusive vaginal or anal searches shall be forbidden by law.
The inspections or searches in units or installations of places of deprivation of liberty shall be carried out by the competent authorities, in accordance with a properly established procedure and with respect for the rights of persons deprived of liberty.
Extract from the 9th General Report [CPT/Inf (99) 12]
Paragraph 26
Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention. Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.
Extract from the 3rd General Report [CPT/Inf (93) 12]
Paragraph 73
A prison doctor acts as a patient's personal doctor. Consequently, in the interests of safeguarding the doctor/patient relationship, he should not be asked to certify that a prisoner is fit to undergo punishment. Nor should he carry out any body searches or examinations requested by an authority, except in an emergency when no other doctor can be called in.
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
Questions for Monitors
Are the circumstances, conditions and terms of body searches defined in a piece of legislation?
Are search procedures detailed in the institution’s rules?
Are personnel, staff, inmates and visitors aware of the search procedures detailed in the institution’s rules?
Are body searches conducted only when necessary and respecting the principle of proportionality?
Are body searches conducted systematically to all detainees, at other moments than upon admission?
Are body searches carried out of other detainees’ sight?
Are body searches carried out by personnel of the same gander and without staff members of the opposite sex present?
Are there specific regulations for body searches of transgender people providing them with the opportunity to choose the gender of the person doing the search?
Are full body searches conducted in two stages (upper body and lower body) and in a separate room? What happens in practice?
Are intimate excavations they strictly forbidden? Otherwise, are they expected to be carried out only in exceptional circumstances and by a qualified physician (other than the prison’s doctor)? What happens in practice?
Are there any alternatives to body searches in place? Are there any in place, notably to avoid body searches of visitors?