Leavides Domingo-Cabarrubias | 8 March 2024

Today, 8 March 2024, is International Women’s Day 

Marking the World Day Against the Death Penalty in 2018, United Nations experts urged States to look into the plight of women on death row, and to adopt a gender-based approach to capital punishment. They highlighted the increasing number of women facing the death penalty for drug offences, noting that these women were often foreign nationals or migrants with low socio-economic backgrounds.

Recent data show a steady increase in the number of women prisoners worldwide, mostly for drug-related offences, which underscores the importance of analysing the intersectional impact of capital drug offences on foreign national women. As noted in a recent report by Eleos Justice and the Cornell Center on the Death Penalty Worldwide, a large majority of women on death row, particularly in Asia, are convicted of drug offences—despite international human rights law restricting the application of the death penalty to intentional killing only. A high percentage of those women convicted of drug offences are foreign nationals. In Malaysia for example, of the 141 women on death row in 2019, 95% have been convicted of drug trafficking, and 86% were foreign nationals, mostly from Nigeria, Indonesia, Iran, India, Philippines, and Thailand. In Indonesia, of the 10 women on death row in 2020, five were convicted of drug offences and five for murder. Of the 10, 3 were foreign nationals, all convicted of drug offences.

The high number of foreign national women on death row for drug offences can be attributed to various factors, but the pathways to death row are usually traced to economic insecurity brought about by many forms of gender inequalities and discrimination that limit women’s opportunities. Our Report explains this as a form of  ‘structural violence’,  referring to less visible forms of violence that are ‘built into the structure and shows up as unequal power and consequently as unequal life chances’.

First, although some women can be said to have exercised their agency in choosing to participate in the illicit drug economy, often, participation can be  ‘attributed to vulnerability and oppression’: women are having to exercise their ‘agency’ in committing drug offences due to economic insecurity and lack of other income opportunities. The vast majority of women in drug trafficking networks serve as drug couriers or ‘mules’, since they are ‘less likely to be caught and more easily controlled as they lack resources to buy or sell drugs for their own profit’. In some cases, these women are subjected to coercion, intimidation, or are deceived into unknowingly trafficking drugs. For example, there have been examples of a male intimate partner coercing or duping the woman into couriering illicit drugs through romance scams. A 2021 study from Thailand showed that out of 16 women imprisoned for drug offences, a quarter had been manipulated into transporting drugs by their romantic partners. In some cases, women had been deceived into transporting materials that they did not know contained illicit drugs. As observed by Hutton and Harry, ‘drug syndicates may be taking advantage of the transnational flow of female labour in the region (particularly migrant domestic workers) and using members of this mobile female workforce as unwitting couriers’.

Second, during trials, courts routinely fail or refuse to consider gender-specific vulnerabilities as mitigating factors, especially in States that impose mandatory death penalty. Furthermore, as observed by the UN High Commissioner for Human Rights Michelle Bachelet, women foreign nationals facing the death penalty face multiple obstacles including denial of consular access, unfamiliarity with laws and procedures, inadequate translation facilities, and lack of access to effective legal representation. In addition, they may also face bias by police officers, investigators, prosecutors, and judges, which can materially impact the proceedings and verdict against them. The 2021 Cornell report found that courts tend to rely on harmful gender stereotypes, showing reluctance in accepting that a female defendant was tricked into transporting drugs ‘unless she presents herself as a ‘helpless female victim: poor, uneducated, and—in cases involving a male co-conspirator—inexperienced with men’. Migrant/foreign national women may also continue to be victimised by unequal relationships with male partners who are co-defendants, particularly when they are not provided with a separate counsel. In one case in Malaysia where a couple was arrested for drug trafficking, the man, who spoke to the police in English—which his partner did not speak—declared that the drugs belonged to her. She received a death sentence while he was released and eventually disappeared.

Third, while awaiting execution, women live in conditions that fail to address their gender-specific needs. According to our report, they often lack access to sanitary products, and they are vulnerable to violence and exploitation due to lack of privacy in prisons, toilets designed for men, and the lack of female prison guards. In addition, women on death row tend to lose the support of their family and communities more often than their male counterparts: some husbands divorce their wives on death row, whereas wives and other family members of men on death row tend to continue supporting their male family member. The lack of family support deprives them of help that could assuage their social isolation and inadequate diet. For many foreign national women on death row, this situation is worsened by the fact that they have very little interaction consular officials, and families often do not have any means to visit or communicate with the prisoner.

In sum, foreign national women involved in the illicit drug economy face unique vulnerabilities that criminal justice systems fail to take into consideration when assessing their culpability. Capital punishment is not gender neutral: capital drug laws may not directly discriminate against women, but when these laws and their application are blind to the gender-specific circumstances and vulnerabilities that women face, they perpetuate the cycle of violence that women all over the world continue to suffer for the mere fact that they are women.  The situation of foreign national women is exacerbated by other socio-economic factors that intersect with their gender-based vulnerabilities, such as language barriers, ignorance of domestic laws and procedures, racial—in addition to gender—biases by police and judicial authorities, lack of social support in a foreign land, coupled with often inadequate consular support to name a few.

UN bodies, human rights organisations, and scholars have examined discriminatory applications of the death penalty, including on the basis of race and economic status. As the UN  High Commissioner for Human Rights reiterated, it is ‘nearly impossible to apply the death penalty without discrimination and so, to avoid irreversible miscarriages of justice and arbitrary killing, it should not be applied’. Putting a spotlight on the intersectional vulnerabilities suffered by women foreign nationals arising from their positioning in relation to gender, race, nationality, and economic status, is another important way of highlighting the deleterious impact of the death penalty, and provides another strong ground for its abolition.

Read the Silently Silenced: State-Sanctioned Killing of Women for a more in-depth discussion of the gendered nature of the death penalty.

Leavides Domingo-Cabarrubias is a post-doctoral researcher at Eleos Justice.