Body searches

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.

women

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.

women

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.

disabilities

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.