Source: https://www.sydneycriminallawyers.com.au/blog/misgendered-incarceration-an-interview-with-scarlet-alliance-ceo-jules-kim/ (accessed 15/03/2018)
A transgender woman is currently being held in solitary confinement in WA’s Casuarina maximum security prison for men. In January, CJ Palmer was found guilty by a Perth District Court jury of committing grievous bodily harm for transmitting HIV.
The prosecution claimed that Ms Palmer was criminally negligent as she failed to tell a man whom she was in an eight month intimate relationship with that she had previously tested positive for HIV. However, Ms Palmer has maintained that she had never been told she had the virus.
In February, the 40-year-old sex worker was sentenced to six years imprisonment, with a non-parole period of four years. At the time of sentencing, Ms Palmer had already served 321 days on remand. So, she’s now looking at spending at least three years and 40-odd days in solitary confinement.
The policies of Australian jurisdictions differ in regard to transgender prisoners. In Western Australia, the treatment of prisoners is governed under the WA Prisoner Act 1981. Section 44 of the Act mentions the separation of male and female prisoners, but it makes no reference to trans detainees.
The WA Gender Reassignment Act 2000 allows for an individual to be legally recognised as their gender identity if they are a WA resident and have undergone gender affirmation surgery. However, Ms Palmer doesn’t meet the criteria to be legally recognised.
NSW is said to have the best model in the country when it comes to incarcerating trans inmates. After risk factors are considered, it allows for trans people to be imprisoned in accordance with their gender identity, and detainees are also provided with hormone therapy treatment.
The state did not charge Ms Palmer with intentional transmission. And advocates for people living with HIV have criticised the laws for being outdated, as they allow for the imposition of steep penalties for transmitting a virus that can now readily be treated.
In NSW, an individual living with HIV can be sentenced to up to six months prison time for failing to take reasonable precautions against transmitting the virus. However, due to changes to the law made last year it’s no longer a requirement that a person living with HIV has to disclose their status.
An individual in NSW can also be charged with grievous bodily harm for transmitting HIV under the NSW Crimes Act 1900.
Section 35 of that Act provides that a person can be imprisoned for up to ten years for recklessly causing grievous bodily harm, while section 33 outlines that doing so with intent carries a maximum penalty of 25 years.
A breach of human rights
As WA authorities insist on detaining Ms Palmer in a male facility, she has to be held in solitary confinement. The Mandela Rules – the UN minimum guidelines for the treatment of prisoners – specify that prolonged solitary confinement should be banned.
Scarlet Alliance CEO Jules Kim has pointed out that the UN has condemned the practice of solitary confinement. The Scarlet Alliance – Australia’s national peak sex worker organisation – has been providing Ms Palmer with support. Sydney Criminal Lawyers spoke with Ms Kim about CJ’s plight.
Firstly, Jules, what are the conditions like for Ms Palmer behind bars? And how is she coping?
It’s definitely improved. But, it’s still a problem. It’s improved in the sense that she is no longer in crisis care following her sentencing.
The judge made some comments about her conditions in the male prison needing to be looked into, because prior to the sentencing it was appalling.
The day after her sentencing they moved her to the Special Handling Unit. But, she’s still in a maximum security male prison, which is a problem.
It’s also improved in the sense that now there’s a small exercise yard, whereas in crisis care she was in her cell 24 hours a day.
And why was she initially placed in crisis care?
Because they didn’t know where to put her. It wasn’t that she needed crisis care.
They said that it made it easier for them to manage her medication. But, they weren’t giving her access to hormones anyway. So, it was literally because they didn’t know where to put her.
WA authorities were refusing to provide Ms Palmer with her hormone therapy treatment. What are the concerns over denying her access? And has this matter improved?
Obviously, she’s been on hormones most of her life. And there’s real concerns over lapsing her treatment. It’s something that’s not advised. It is something that as a transgender woman she requires. They should be providing her medication.
The doctor in the prison wouldn’t provide it. He asked her why she was on hormone replacement therapy. She said, “Because, I’m a transgender woman.” He said, “I don’t see women in a men’s prison.” It was pretty outrageous.
At her own cost, another doctor went out to the prison and has helped to get her back onto the hormones. I’m not sure if she’s gotten them as yet. But, they have let her know that she was going to have it in the next couple of days, as the intention was that she’ll be able to restart her treatment.
Ms Palmer is looking at being held in solitary confinement for at least another three years. What are the implications of authorities holding someone in prolonged solitary confinement?
In 2011, Juan Méndez, who was the United Nations special rapporteur on Torture, stated that having somebody in solitary confinement for more than two weeks constitutes a form of torture.
He said that if somebody was to be held in solitary confinement for over 15 days it would cause irreversible psychological damage.
There are real concerns about this. It is great that she now has a slight improvement in her conditions, but, ideally, she does want to be in a women’s prison.
It’s different in NSW. But, most prison policies in Australia still require somebody to have had surgery in order to be housed in the correct prison.
What sort of difficulties do transgender women being held in a male prison face?
CJ is a woman. So, you can imagine what it would be like for her in a men’s prison. It even just comes down to the basics of her not being able to access the right underwear, or the right toiletries. Also, having to strip in front of male officers – that has happened to CJ a number of times.
It’s a range of things. And that’s before considering she’s being housed with male prisoners that are in a maximum security facility. So, there’s all those concerns.
She can’t be in the general population, which means she’s not going to have access to work or education programs, as well as the range of other services that are available.
Even though they’re limited, in the general population she would get access, but she doesn’t get access to the full range of those programs in the Special Handling Unit.
In light of this, do you think WA authorities ought to be looking at changing their policies when it comes to transgender detainees?
Absolutely. It is a policy that is ripe for reform and quite outdated. This is in clear conflict with federal and state anti-discrimination legislation. There is sex discrimination and anti-discrimination legislation that the prison policy contravenes.
CJ has been sentenced to six years imprisonment for transmitting HIV. What are the effects of criminalising HIV like this? And what does this mean for people living with HIV in this country?
It’s highly problematic. We have a very effective public health response to HIV, which has been incredibly successful. It’s not something that belongs in the criminal justice system..
It was shown that there was no intent. It was never a factor in this case, and it was recognised as such by the state.
It is really problematic to have what is now a quite manageable illness within the criminal justice system. It sets back the health promotion aspect. It creates barriers for people disclosing, coming forward and getting tested.
It’s sending a message that if you are HIV positive then you will be seen to be a criminal. It’s really problematic, and not just for people with HIV, but also for the wider community and the successful health promotion approach. It creates significant barriers.
Some reports on the case seem to imply that Ms Palmer transmitted HIV whilst engaged in sex work?
Let’s for a start clarify some things. It was established that CJ was in a non-commercial relationship with this person. So, it wasn’t in a sex work context.
That’s a problem of reporting in the media. The fact that you are a sex worker defines everything, and it becomes the headline.
She was a sex worker. But, in the context of this relationship it was a non-commercial one.
And lastly, CJ is currently facing years of solitary confinement in a male prison. What’s the next move from here? And will there be a campaign to try and change her situation on the inside?
Certainly. But, the first move is to appeal the sentence, because it is manifestly excessive. This is even in comparison to other HIV convictions.
And we’ll be continuing to advocate to improve her conditions. Ideally, for her to be moved. It is a policy issue. CJ’s case highlights how problematic that policy is for transgender people.