Les femmes

Women

In all countries that retain the death penalty for which data is available, fewer women than men are sentenced to death and executed. In the United States, for instance, 2.1% of death sentences handed down between 1973 and 2011 were imposed on female offenders, and 2.9% of the executions confirmed in the United States since 1608 were carried out on women. While some observers have taken these statistics as proof that gender bias affects capital sentencing decisions, others have pointed out that death-eligible crimes are often crimes of violence and that these are more frequently committed by male offenders.

While information on the gender of death row inmates is difficult to obtain, our research indicates that women are under sentence of death in less than half of the countries that retain the death penalty (37 countries out of 93 non-abolitionist countries worldwide). The countries that have at least one woman on death row include China, Egypt, India, Japan, Kenya, Malaysia, Singapore, Taiwan, Tanzania, the United States and Vietnam. In three of these countries (Bahrain, Kuwait, and Saudi Arabia), at least one women under sentence of death is a foreign national and a domestic worker.

Several countries provide by law that women may not be subject to the death penalty, either categorically or under certain circumstances. In four countries (Belarus, Guatemala, Russia, and Tajikistan), the law provides that women may never be sentenced to death. In many other countries, expectant mothers and mothers of small children are excluded from capital punishment on the premise that the life of an innocent child may be lost or jeopardized if her mother is executed.

Pregnant Women

In almost every country in the world, it is illegal to execute a pregnant woman. Of the 92 countries that retain the death penalty, 83 have passed laws prohibiting the execution of pregnant women. A further 8 countries have ratified the International Covenant on Civil and Political Rights, which prohibits the practice: Afghanistan, Gambia, Grenada, Guyana, Liberia, Saint Vincent and the Grenadines, and Tanzania. In Afghanistan, women who are more than 6 months pregnant at the time of sentencing will not be imprisoned until 4 months later –in effect, after delivery. In Papua New Guinea, a pregnant woman will be spared execution upon request. The only country in the world where a pregnant woman may legally be executed is Saint Kitts and Nevis.

States that prohibit the execution of pregnant women fall into two main categories: those which delay execution until after the woman has given birth, and those which commute the death sentence into a term of imprisonment for life or less.

Thirty-three countries fall into the first group, and delay execution until after delivery. In some countries, the law specifies the grace period (which can be as short as 40 days in Morocco, 2 months in Egypt or 3 months in Bahrain, and as long as 3 years in Thailand and the Central African Republic). In other countries, such as Burkina Faso, Chad, Iran, Japan, Lebanon and South Korea, execution is delayed for an undefined period of time after childbirth. Several countries with unspecified grace periods have ratified the African Charter on the Rights and Welfare of the Child, which prohibits state parties from imposing the death penalty on “mothers of infants and young children” (the Democratic Republic of Congo, Mauritania, Niger, and Tunisia). (We note, however, that in 1999, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions expressed concern that a pregnant woman was reportedly awaiting execution for armed robbery in the Democratic Republic of Congo.)

Twenty-two countries fall into the second group, and commute the death sentences that would otherwise be imposed on pregnant women. These countries include the Bahamas, Botswana, Ghana, India, Kenya, Kuwait, Laos, Malawi, Malaysia, Singapore, Sri Lanka, Uganda and Zambia. In almost all of these countries, the pregnant woman is sentenced to life imprisonment. In Belize, she is sentenced to a life term with hard labor. In Malaysia, she is sentenced to a maximum of 20 years’ imprisonment.

For 21 countries which prohibit the execution of pregnant women, we were unable to determine whether delay or commutation was the law and/or practice. These countries include China, Cuba, Equatorial Guinea, Indonesia, Jamaica, Jordan, North Korea, Sierra Leone, South Sudan, Sudan, Tanzania, the United States, Vietnam, and Zimbabwe.

Finally, 6 countries (Bangladesh, Eritrea, Ethiopia, Iraq, Myanmar, and Pakistan) have adopted an intermediate position where courts are empowered to exercise discretion in deciding whether to commute a pregnant woman’s death sentence to life imprisonment after her delivery.

Women with Small Children

A number of countries prohibit the execution of women with small children. A woman with a small child is presumed to be a primary care-giver whose death would endanger the child’s survival. Twenty-two countries have passed laws protecting mothers of young children from capital punishment, for periods varying from 40 days (Morocco) to 3 years (Thailand). Malian law provides that a mother will not be executed until her children are weaned. Taiwanese law mandates that mothers of small children be spared execution for “some time.” In Vietnam, a death sentence pronounced on a woman with a child under the age of 3 will be commuted to a life sentence. In Iran, the law provides that a woman cannot be executed while she is nursing if it would endanger the life of the child. In practice, however, there have been reports of women with young children being executed in Iran.

Two international human rights treaties prohibit the execution of women with small children: the African Charter on the Rights and Welfare of the Child, and the Arab Charter on Human Rights. Article 30(e) of the African Charter on the Rights and Welfare of the Child prohibits state parties from imposing the death penalty on expectant mothers and “mothers of infants and young children.” Of the 22 countries that have enacted such prohibitions at the national level, 8 are state parties to the African Charter on the Rights and Welfare of the Child (Algeria, Egypt, Guinea, Iran, Iraq, Libya, Mali and Sudan). A further 23 retentionist countries (including Botswana, Cameroon, DRC, Egypt, Ethiopia, Gambia, Ghana, Lesotho, Malawi, Mauritania, Nigeria, Tanzania, Uganda, Zambia, and Zimbabwe) have ratified the African Charter on the Rights and Welfare of the Child, but have not passed domestic legislation implementing the provision.

Article 12 of the Arab Charter on Human Rights states that the death penalty shall not be imposed on a pregnant woman before delivery or on “a nursing mother within two years from the date on which she gave birth.” Of the 22 countries that prohibit the execution of women with small children, 4 are parties to the Arab Charter: Saudi Arabia, the United Arab Emirates, Yemen, and the Palestinian Authority. In Palestine, a death sentence pronounced on a mother of small children may be commuted. In Yemen, the 2-year grace period may be abridged if another person can care for the child. Four additional countries have ratified the Arab Charter but have not enacted the prohibition in their domestic legislation: Kuwait, Qatar, Syria, and Tunisia.

Adding together the countries that have enacted legislation prohibiting the execution of women with small children and those that have undertaken to respect the prohibition at the international level, there are 50 countries in which it is illegal to execute women with small children. Additionally, three countries grant their courts discretion to exclude women with young children from the death penalty: Bangladesh, Eritrea, and Ethiopia. This corresponds to more than half the number of countries practicing the death penalty worldwide.

Commentary

American Civil Liberties Union, The Forgotten Population: A Look at Death Row in the United States Through the Experiences of Women, http://www.aclu.org/files/FilesPDFs/womenondeathrow.pdf, Dec. 2004.

Amnesty Intl., The Death Penalty and Women Under the Nigeria Penal Systems, AFR 44/001/2004, Feb. 10, 2004.

David. V. Baker, A Descriptive Profile and Socio-Historical Analysis of Female Executions in the United States: 1632-1997, 10(3) Women and Criminal Justice 57, 1999.

Phyllis L. Crocker, Is the Death Penalty Good for Women?, Buffalo Criminal Law Review, Vol. 4, No. 2, Jul. 16, 2001.

Joan W. Howarth, Executing White Masculinities: Learning from Karla Faye Tucker, 81 Oregon Law Review 183, 2002.

Elizabeth Rapaport, Equality of the Damned: The Execution of Women on the Cusp of the 21st Century, 26 Ohio Northern University Law Review 581, 2000.

Elizabeth Rapaport, Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women’s Capital Cases, Buffalo Criminal Law Review, Vol. 4, No. 2, Jul. 16, 2001.

Victor Streib, The Fairer Death: Executing Women in Ohio, Ohio University Press, 2006.

Last updated on January 25, 2012.