Keeping prisoners safe – and discussing these matters responsibly

There has been screaming controversy in the media for days now about a Scottish transgender woman who has been convicted of rape. Many misleading media reports have suggested that she would have to be accommodated within a women’s prison. There was outrage when she was initially taken to Cornton Vale women’s prison where she was held away from other prisoners while initial risk assessments were carried out over a 72 hour period.

Once that risk assessment was completed, unsurprisingly, she was moved away from Cornton Vale to HMP Edinburgh. There are few clearer statements of the obvious  than that anyone convicted of sexual assault, violence or raping women should not be incarcerated alongside women.  It was never going to happen in this case or in any other with such a record. There are procedures in place to protect prisoners from other prisoners who might harm them.

The Scottish Prison Service did its job properly.

In all parts of the UK, every prisoner is risk assessed for all sorts of things when they enter prison. Do they have a history of violence? Is there anyone in custody who might be a danger to them? Are they a danger to anyone on the prison estate? Is it safe to allow them to share a cell? That assessment determines the safest place for them and everyone else.

Unfortunately, the media has not missed an opportunity to print scare stories about trans women and the Scottish Government’s Gender Recognition Reform Bill. As this has been unfairly blocked by the UK Government, it clearly has no relevance in this case. But even if the prisoner had a Gender Recognition Certificate under the current system, it would have absolutely no effect on where she will serve her sentence. Conflating the two issues, and suggesting that trans women are a danger to other women is wrong and irresponsible.

Scotland’s Equality Network has a very useful Twitter thread explaining the issues involved in this case.

As far as we can tell, the Scottish Prison Service’s policy has generated the result it should, and that we would have expected. As we understand it, Isla Bryson was held in segregation while a risk assessment was done.

That risk assessment decided, not surprisingly, that she should not be held in the women’s estate. That is what we would expect for a person convicted of rape.

It is our view that anyone who has committed sexually violent crimes, and who poses a risk to women, should not be housed with women on the female estate.

As liberals, we should appreciate Equality Network’s view that these things should be decided on an individual basis.

They said:

In September 2022, there were 15 trans people in custody in Scotland (0.2% of the prison population).

Following risk assessments, 9 of them were held in the estate matching their gender assigned at birth, and 6 in the estate matching their transitioned gender. It is right that this should be decided on an individualised risk assessment basis.

For example, a trans woman transitioned for 20 years, who is in prison for a non-violent offence like financial fraud, might pose no risk to other women in custody, but be at significant risk herself if accommodated on the male estate.

A blanket rule about where trans people in custody are accommodated would be wrong.

The assessment of where a trans person in custody is held does not depend on whether or not they have a gender recognition certificate (GRC).

The risk assessment policy applies to all trans people in custody, with or without GRCs. That means that the changes to the process for applying for a GRC, overwhelmingly agreed by the Scottish Parliament in December, would have no effect on the Scottish Prison Service’s policy on this, and no effect on where trans people in custody are housed.

In a community of any size, there will be some people who commit appalling crimes – that does not and should not reflect on the majority of that community.

When we discuss these issues, it’s always important to do so in an atmosphere that doesn’t stoke up hatred towards a particular group. This is especially important after hate crime statistics revealed this week that anti trans hate crime is rising at a faster rate than any other.

From The Scotsman:

Hate crimes where the aggravator was transgender identity have seen the steepest increase both in the last year and since 2014/15 when the data begins.

They have risen 68 per cent between 2020/21 and 2021/22, from 110 to 185 incidents, and are the most likely to come from online sources, with more of a quarter (27 per cent) being “cyber-enabled”.

Today, Alex Cole-Hamilton restated the Lib Dem position and asked the Scottish Cabinet Secretary for Justice if he was confident that the review currently underway would restore public trust in the prison system: and heal the divisions in society:

While it is universally agreed that convicted rapists should not be accommodated in the women’s prison population, groups like the Equality Network and Rape Crisis have expressed themselves in reasonable and calm terms. Unfortunately, the right wing press and the Conservative Party have weaponised this situation to fan the flames of their culture war. Scottish Conservative Leader Douglas Ross’s theatrical grandstanding in Holyrood last Thursday, where he used some highly emotive language was unbecoming for someone with aspirations to Government office.

I would seriously love it if the press would devote the same amount of newsprint to investigating the failure of our justice system to deal with rape and sexual assault. As Rape Crisis Scotland shows, a tiny proportion of reports result in prosecution and of that tiny proportion half or less result in conviction.

And if we really are concerned about prisoners, we should consider the wider issue of coercive sex in prisons. In 2014, the Howard League’s report identified that 1% of prisoners in British prisons reported being sexually assaulted. Gay and transgender prisoners were at a higher risk of assault than heterosexual prisoners.  Maybe well-staffed and resourced prisons where those inside had their own space might help, alongside a culture of dealing with allegations promptly, professionally and with a view to gathering evidence might help. The Government aren’t rushing to sort that, or tackle sexual assaults on women in prison  by staff and visitors so you do have to wonder whether they are more motivated by whipping up  transphobia than anything else.

We also have to think about the fact that we routinely host cis women who are sex offenders in women’s prisons, and cis men who are sex offenders in men’s prisons. That is bound to come with an element of risk, and managing that risk is aways going to be a challenge. It goes without saying that in a liberal society the same risk assessment process should apply to everyone. Trans people should not be stigmatised and treated as though they are a danger in themselves.


* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings

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  • Mel Borthwaite 31st Jan '23 - 7:26pm

    Male prisoners who have been convicted a raping another male are jailed in men’s prisons. Female prisoners who have raped another female are jailed in women’s prisons. Why should a trans person not be jailed in accordance with their gender identity? Are trans rapists more dangerous than cisgender rapists?
    Perhaps the key issue this issue should be drawing attention to is the issue of prisoners having to share cells. This needs to end as a matter of priority.

  • Caron Lindsay Caron Lindsay 31st Jan '23 - 8:16pm

    I think there is a genuine principle about keeping perpetrators of sexual violence, whoever they are, completely away from those upon whom they have a record of attacking. They do need to be kept away from the general population until they can be rehabilitated.

  • A C McGregor 31st Jan '23 - 9:06pm

    The fact that prisoner-on-prisoner sexual (and non-sexual) violence occurs in prisons *at all* is a shocking indictment of the underfunded nature of our prison service. The so-called “party of law and order” currently squatting in number 10 permit this state of affairs to continue because their ideology insists that prisons should be like something out of the 18th century, as are the rest of their policies.

    Prisoners – cis or trans – have rights which must be upheld. If there is an situation where a prisoner is not appropriately risk assessed, then *that is a failing of the prison system*, and by extension a failure of the Government.

    But one of the rights which must also be protected – for prisoners as for any other person – is the right to be treated appropriately for their gender and gender identity. Anyone who thinks the rights of prisoners don’t matter as much as other people’s rights does not belong in this party.

    The despicable trick that transphobes are trying to pull is to equate trans people with prisoners, and imply that both groups are not deserving of their rights. This is false on both counts.

    The prison system needs to be funded, trained and equipped for the modern day. That includes being able to handle trans prisoners appropriately and as their gender.

  • David Le Grice 31st Jan '23 - 10:58pm

    By both the Westminster and Scottish government’s logic, men convicted of raping other men and who are gay and not bisexual should be sent to a women’s prison. Indeed there is far more evidence that transgender people are at risk of bieng assaulted or raped in men’s prison than there is to suggest that transgender prisoners pose a threat to women.

    Surely the only way to be consistent and minimise the risk fairly in all directions would be to place people in prisons for their current gender but seperate dangerous individuals from other prisoners and or keep them under supervision whenever they are around them.

  • While I agree that on principle it seems desirable to treat both sexes equally, I suspect there is a pragmatic point here about which prisons tend to be the most plentifully supplied with facilities to keep separate from other prisoners those prisoners who are assessed as posing a risk to other prisoners.

    But yes, agreed with Caron’s article, the gleeful seizing on this story by people who don’t spend much of the rest of their time speaking up for the welfare of prisoners tells its own story about their motivations in all this.

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