Locked Away While Innocent: Women, Human Rights, and Pre-Trial Detention

Abstract

Pre-trial detention is intended to be a measure of last resort, yet it is excessively applied across jurisdictions worldwide. This paper examines its use, with particular emphasis on its application to women and its incompatibility with international human rights law, standards, and norms. We demonstrate that the inappropriate and widespread use of custodial remand violates fundamental human rights, while exposing the gendered and intersectional barriers that impede women’s access to bail. We further underscore the far-reaching social, economic, and emotional consequences of women’s incarceration. Drawing on a limited but expanding body of research, we argue that pre-trial detention operates as a form of gendered punishment that reflects and reinforces structural inequalities, producing enduring harms for women, their families, and communities. The paper concludes by calling for investment in gender-sensitive, non-custodial, and community-based alternatives that advance women’s decarceration. These measures must be underpinned by reforms that give practical effect to human rights law, standards, and norms, while also addressing the structural conditions that lead to women’s involvement in the criminal-legal system, and ending the unnecessary imprisonment of those who are legally innocent.

1. Introduction

By confining individuals who have not been convicted of a crime, pre-trial detention poses a serious challenge to human rights. Although it is intended as a last resort, to be used only when necessary to ensure justice and public safety, pre-trial detention has become the default in many jurisdictions, often imposed without adequate justification or procedural safeguards. Globally, millions of legally innocent people are incarcerated each year, undermining the presumption of innocence and exposing detainees to significant harm. These impacts are particularly acute for women, who face gender-specific disadvantages within criminal justice systems that were largely built by and for men.

This paper examines the use and misuse of pre-trial detention for women through a feminist and human rights lens. Drawing on international frameworks, empirical studies, and feminist scholarship, it outlines the human rights standards that govern pre-trial detention before exploring the distinctive gendered experiences of criminalised women. It reviews global data on the use of custodial remand for women, identifies structural and intersectional barriers to release, and analyses the harms that pre-trial detention inflicts. This paper posits that the routine detention of legally innocent women not only contravenes international human rights but also reproduces and deepens structural gendered subjugation. Ultimately, it argues for urgent, gender-responsive reform to reduce the use of pre-trial detention and promote alternatives that respect women’s rights and uphold justice. The heavy reliance on custodial sanctions recreates and reinforces the gendered harm experienced by women in their pathways to confinement. Prisons both fail to enhance community safety and inflict further damage on those who are imprisoned (Owen et al. 2017). Redirecting investment into non-custodial and community-based measures provides a more constructive interim path towards women’s decarceration. Reforms are also needed to confront the structural conditions that bring women into conflict with the law, along with the intersecting social and institutional forces that funnel them into pre-trial detention.

2. Pre-Trial Detention and Human Rights

International human rights law, norms, and standards emphasise the essential distinction between individuals who have been found guilty, convicted by a court of law, and sentenced to prison, and those who have not (Open Society Foundations 2014, p. 95).1 As outlined in the Universal Declaration of Human Rights, liberty (Article 3), the presumption of innocence (Article 11), and protection from arbitrary detention (Article 9) are universal rights that, in practice, should limit the use of pretrial detention (United Nations General Assembly 1948). Yet on any given day, nearly one-third of the approximately 11.5 million people imprisoned globally are presumed innocent but remain detained pending trial (Penal Reform International and Thailand Institute of Justice 2024, p. 6).

Any deprivation of liberty, particularly in the case of those not convicted, must be objectively justified, of minimal duration, and exercised only under limited and carefully regulated circumstances (Open Society Foundations 2014, p. 175). The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (United Nations 1990, pp. 157–58) affirmed that pre-trial detention should be used only where there are reasonable grounds to believe that an individual has committed an offence, and where there is a demonstrable risk that, if released, they may abscond, commit further serious offences, or interfere with the course of justice. Within the human rights framework, moreover, any decision to detain must not be arbitrary. The Office of the High Commissioner for Human Rights (2025) has ruled that the notion of arbitrariness “is not to be equated with against the law but must be interpreted more broadly, to include elements of inappropriateness, injustice, lack of predictability and due process of law.” As a result, pre-trial detention “must not only be lawful but reasonable and necessary in all the circumstances” (Open Society Foundations 2014, p. 95). These issues are particularly critical when women receive arbitrary and unfair pre-trial detention.

When determining the use of pre-trial detention, the unique details of each case must be weighed. Despite this, women’s gendered realities, including caregiving responsibilities, are rarely considered in practice. A comprehensive assessment of salient factors involves evaluating the severity of the alleged law-breaking, the strength of the evidence, and the potential sentence upon conviction. The accused person’s behaviour, as well as their personal, social, and community ties, should also be assessed (United Nations 1990, p. 158). Pre-trial detention should not be imposed if the loss of liberty would be disproportionate to the harm of the alleged law-breaking and the likely sentence. Wherever possible, alternative non-custodial measures, such as release on bail or personal recognisance, should be used in place of detention (United Nations 1990, p. 158). When pre-trial detention is applied fairly, individuals must be promptly advised of their rights, including access to legal representation, eligibility for legal aid, review of the legality of their detention, and release if their imprisonment is deemed unlawful. Pre-trial detention must be subject to regular review by a judicial authority and should never extend beyond the period strictly necessary to ensure the protection of the community. To minimise the duration of such detention, all proceedings should be carried out as swiftly as possible (United Nations 1990, p. 158).

The United Nations System Common Position on Incarceration clearly states that deprivation of liberty should be a measure of last resort, and that non-custodial options must be considered first (United Nations 2021, pp. 2–3). In line with this, the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), a key outcome of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, emphasise that governments should take all reasonable steps to avoid the use of pre-trial detention (United Nations 1990; United Nations General Assembly 1990). Specifically, the Tokyo Rules (6.1, 6.2 and 6.2) provide that:

• Pre-trial detention should be used only as a last resort, with careful consideration for the needs of the investigation, the protection of the community, and the interests of the victim.
• Alternatives to pre-trial detention should be introduced as early as possible, applied for no longer than necessary, and administered with humanity and respect for the inherent dignity of individuals.
• Individuals held in pre-trial detention must have the right to appeal to a judicial or other competent and independent authority (United Nations General Assembly 1990).

Despite this, pre-trial detention has become the default response within criminal justice systems worldwide, a pattern described as “one of the most overlooked human rights crises of our time” (Garahan 2020, p. 2). According to the United Nations Common Position on Incarceration, “the overuse and excessive length of pretrial detention remains a global challenge. Even though many individuals charged with criminal offences do not pose a threat to public safety or the administration of justice” (United Nations 2021, p. 3). In many cases, individuals held in pre-trial detention will ultimately have their charges dropped due to insufficient evidence or will be acquitted at trial. Others are convicted of minor, non-violent law-breaking, for which imprisonment is inappropriate, or where the maximum custodial sentence is shorter than the time already spent in detention awaiting trial (Appleman 2012, pp. 1311–12; Open Society Foundations 2014; Bhandari 2016, p. 85; Jones 2018, p. 1065; McMahon 2019).

Broadly, the unnecessary and often irrational use of custodial remand worldwide is attributed to the rise in penal populism (Open Society Foundations 2014). Large numbers of individuals are detained unnecessarily, driven by politicised public fears about crime and the influence of populist “tough on crime” policies (Heard and Fair 2019, pp. 16–17; Open Society Foundations 2014). There is substantial evidence that bail laws have been tightened, the judiciary has grown more risk-averse, and criminal justice systems are increasingly overwhelmed by rising caseloads, producing adverse repercussions (Fujimura-Fanselow and Wickeri 2013, p. 858; Garcia Castro 2019; Heard and Fair 2019, p. 15). Justice is undermined when judicial officers and defence lawyers, especially those working under legal aid, are overworked and time-poor. Under international law, individuals accused of law-breaking have the right to be tried without undue delay (see Article 14 of the International Covenant on Civil and Political Rights), yet surging caseloads have significantly lengthened criminal justice processing times (Townhead 2007, p. 18; Open Society Foundations 2014; Fujimura-Fanselow and Wickeri 2013, p. 865; Bhandari 2016). For those inappropriately held in pre-trial detention, slow-moving justice systems delay bail hearings and prolong the time to conviction, sentencing, or acquittal. Consequently, both the prevalence and duration of pre-trial detention are escalating, with minimal benefit to public safety (Fujimura-Fanselow and Wickeri 2013, pp. 864–65; Open Society Foundations 2014; Bhandari 2016; Heard and Fair 2019).

There is significant harm in the overuse of pre-trial detention. Rather than functioning as a measure of last resort, too many countries rely on it excessively, with deleterious consequences for individuals, their families, and communities (Open Society Foundations 2014; United Nations 2021, p. 3). Even short periods of pre-trial detention disrupt stability, producing immediate and long-term adverse effects (Jones 2018). Detained individuals are unable to earn an income and risk losing employment and housing (Jones 2018, p. 1065; Doelger et al. 2020, pp. 11–12; Colvin and Hamilton 2022, p. 126), while stigma and missed educational or training opportunities impair future employment prospects (Garahan 2020, p. 6). Pre-trial imprisonment is also linked to deteriorating physical and mental health, as well as a heightened risk of future law-breaking (Fujimura-Fanselow and Wickeri 2013; Jones 2018; Muntingh and Redpath 2018; Heard and Fair 2019; Wakefield and Andersen 2020; Colvin and Hamilton 2022; Commonwealth Human Rights Initiative 2022; Anderson et al. 2024). The harms of detention are gendered. Prisons are particularly damaging to women, and across many countries, overcrowded and deteriorating facilities create unsafe conditions of confinement that violate women’s human rights and undermine possibilities for healing and empowerment (Owen et al. 2017).

The negative effects of pre-trial detention extend beyond detainees themselves to their families, particularly dependent children, and to wider communities (Venegas and Vial 2008; Open Society Foundations 2014; Kates 2015; Muntingh and Redpath 2018; Garcia Castro 2019; Heard and Fair 2019; Wakefield and Andersen 2020; Commonwealth Human Rights Initiative 2022). For families, the detention of a loved one creates heavy emotional, social, and financial burdens, straining relationships and undermining well-being (Venegas and Vial 2008; Open Society Foundations 2014; Garcia Castro 2019; Wakefield and Andersen 2020; Dobbie and Yang 2021). At the societal level, pre-trial detention is substantially more expensive than non-custodial measures, diverting public funds from essential services such as health and education (Kates 2015; Heard and Fair 2019; McMahon 2019; Garahan 2020, p. 7). It prevents detainees from working and supporting dependents, reducing household income, productivity, and tax revenue, while increasing reliance on state support (Heard and Fair 2019). Communities incur social costs through increased risks of future law-breaking and the erosion of social cohesion (Heard and Fair 2019; Garahan 2020, p. 7).

Taking the above into account, beyond threatening individual liberty, the presumption of innocence, and protection against arbitrary detention, the excessive or improper use of pre-trial detention undermines various economic, social, and cultural rights outlined in the International Covenant on Economic, Social and Cultural Rights (Muntingh and Redpath 2018, p. 146). These rights include the highest attainable standard of physical and mental health (Article 12), an adequate standard of living (Article 11), the right to work and earn a livelihood (Article 6), and the state’s obligation to offer the fullest protection to families (Article 10) (United Nations General Assembly 1966). Nation-states are legally and morally bound to respect, protect, and fulfil these rights. However, as demonstrated above, the detention of individuals who are presumed innocent inherently undermines them. In the criminal justice context, the protection of socioeconomic rights demands that any deprivation of liberty be imposed only when strictly necessary, for the briefest duration possible, and with minimal interference in the lives of pre-trial detainees and their families (Muntingh and Redpath 2018, p. 143).

Sufficiently resourced and effectively managed prison services are a crucial component of the United Nations 2030 Agenda for Sustainable Development, particularly Goal 16, which aims to promote peaceful and inclusive societies, ensure access to justice for all, and build effective, accountable and inclusive institutions. Appropriately equipped and competently managed incarceration services are also essential for realising Sustainable Development Goals 3 (good health and well-being), 4 (universal education), 5 (gender equality), 8 (decent work and economic growth), and 10 (reduced inequalities) (United Nations 2015). However, we know prison conditions, including access to healthcare, employment, education, and support, are often poorer for those in pre-trial detention than for sentenced prisoners, and that structural social inequalities mean certain groups, such as people living in poverty, are less likely to be granted bail. The unnecessary detention of women is also a persistent problem (Heard and Fair 2019, p. 7).

Prison overcrowding, largely driven by the excessive number of pre-trial detainees, significantly undermines the Sustainable Development Agenda (United Nations 2015). According to the United Nations Office on Drugs and Crime (2024, pp. 16–17), available data show that over 60% of countries have prisons operating above capacity, with one in four exceeding 150%. Overpopulation exacerbates poor health outcomes, limits constructive activities, and restricts educational and vocational programs (Garahan 2020). In such overcrowded environments, the safety, security, and dignity of incarcerated persons are jeopardised. Strained staff, infrastructure, and resources weaken effective management and humane treatment, increasing the risk of human rights violations (Chuenurah and Sornprohm 2020, p. 132; Fernandéz and Nougier 2021, p. 19; Schmidt and Jefferson 2021). The United Nations (2021, p. 5) highlights prison overcrowding as a key factor contributing to breaches of international minimum standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), and the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules). Moreover, the unnecessary use of pre-trial detention is corrosive to the rule of law, which underpins the United Nations Sustainable Development Goals, particularly Goal 16 (Fujimura-Fanselow and Wickeri 2013, p. 817; Open Society Foundations 2014, p. 121).

The rule of law and human rights are inseparable. Pre-trial detention increases the risk of miscarriages of justice by hampering detainees’ ability to prepare a defence, including limited access to legal counsel, reviewing evidence, and trial preparation (Townhead 2007, p. 24; Open Society Foundations 2014, p. 121; Heard and Fair 2019, p. 7; St. Louis 2021, pp. 56–57). Those held in custody face greater pressure from police or prosecutors to confess or accept plea bargains in exchange for bail or reduced charges (Open Society Foundations 2014, p. 121; Heard and Fair 2019, p. 7). Research shows that pre-trial detention independently increases the likelihood of guilty pleas, convictions, and longer custodial sentences (Open Society Foundations 2014, pp. 122–23; McMahon 2019, p. 7; Garahan 2020, p. 4; St. Louis 2021, pp. 53–54). Public confidence in the criminal justice system, and people’s willingness to comply voluntarily, rests on perceptions of fairness (Open Society Foundations 2014, p. 128). Arbitrarily detaining large numbers of legally innocent people for extended periods, while they face barriers to justice, undermines procedural legitimacy and erodes trust between communities and the justice system (Open Society Foundations 2014, p. 118).

Acknowledging the detrimental impact of pre-trial detention on the United Nations (2015) Sustainable Development Agenda, the proportion of unsentenced detainees within the total prison population has been adopted as a key metric for measuring progress toward Goal 16 (promoting peaceful and inclusive societies, ensuring access to justice for all, and building effective, accountable, and inclusive institutions at all levels) (Penal Reform International and Thailand Institute of Justice 2017; United Nations Development Programme, United Nations Office on Drugs and Crime and United Nations Human Rights Office of the High Commissioner 2024, p. 47; United Nations 2021, p. 3). Growing concern is being raised about the misapplication and overuse of pre-trial detention for women, particularly in relation to Sustainable Development Goal 5 (gender equality) and the Bangkok Rules (Penal Reform International and Thailand Institute of Justice 2017).

3. Women and Pre-Trial Detention

Historically, criminalised women have been largely overlooked, treated as an afterthought due to their relatively small numbers, rendering them an often invisible and forgotten group within the justice system (Chesney-Lind 1998; Jeffries 2014; Owen et al. 2017). Consequently, criminal justice systems globally have demonstrated limited gender sensitivity in both policy and practice, resulting in discrimination, social marginalisation, and human rights violations. The lack of gender-informed approaches creates systems that are structurally unresponsive to the specific needs and harms experienced by women. It is essential that gendered experiences, and their intersections with other forms of inequality, receive greater attention, deeper understanding, and meaningful integration into laws, policies, service delivery, and infrastructure.

In recent decades, the global number of women in prison has risen sharply (Fair and Walmsley 2022). Consequently, women in the criminal justice system are no longer as overlooked as they once were. This shift has been accompanied by growing recognition of the human rights of criminalised women, particularly within prison settings (United Nations General Assembly 2010; Penal Reform International and Thailand Institute of Justice 2024). A key milestone came in 2010 with the adoption of the Bangkok Rules by all 193 United Nations member states. These rules have been hailed as a “landmark step in adapting the 1955 Standard Minimum Rules for the Treatment of Prisoners to women offenders and prisoners” (Barberet and Jackson 2017, p. 214). Before their introduction, international human rights frameworks had largely failed to account for the distinct, gendered needs of women in conflict with the law (Jeffries and Jefferson 2022, pp. 7–8).

The 70 Bangkok Rules are designed to complement both the Tokyo Rules and the Nelson Mandela Rules. Together, they offer a practical yet aspirational framework of human rights principles, providing clear guidance to policymakers, legislators, sentencing bodies, and correctional institutions (Chuenurah et al. 2022). These rules acknowledge that criminalised women are particularly vulnerable, have distinct needs compared to men, are typically non-violent, and pose a low risk to public safety. They also recognise that existing criminal justice systems are deeply rooted in patriarchal structures (Jeffries and Jefferson 2022, pp. 7–8).

The Bangkok Rules address a range of factors that disproportionately affect criminalised women, including high rates of victimisation, trauma, substance dependency, mental health challenges, poverty, primary caregiving responsibilities, and reproductive health needs. They call for the development of gender-responsive prison policies, programs, and practices that promote women’s well-being, rehabilitation, and reintegration, while also emphasising the importance of non-custodial alternatives. The unwarranted incarceration of women, especially at the pre-trial stage, where they face an elevated risk of abuse, is firmly discouraged (Bangkok Rules 56, 57, and 58) (Van Gundy and Baumann-Grau 2013, pp. 11–12; Barberet and Jackson 2017; United Nations Office on Drugs and Crime 2020).

The Bangkok Rules provide explicit guidance on developing and implementing non-custodial measures (Rules 57–62), and the United Nations Office on Drugs and Crime (2020) Toolkit operationalises these provisions by outlining practical steps for implementation. According to the Toolkit, effective use of non-custodial measures can reduce the substantial social and economic costs of imprisonment, particularly pre-trial detention, while also lowering re-criminalisation and, over time, reducing prison populations by creating greater opportunities for healing and life rebuilding. By contrast, incarceration frequently deepens women’s contact with the criminal justice system, for example, by undermining their earning capacity and housing stability. Communities are better served by community-based interventions that address the underlying causes of women’s law-breaking (United Nations Office on Drugs and Crime 2020, p. 14). The Toolkit further reinforces this approach, calling for limits on the unnecessary confinement of women through community-based justice and emphasising that multi-stakeholder collaboration, including legislators, policymakers, court officials, civil society actors, and justice professionals, is essential for developing gender-responsive alternatives to confinement. Since the adoption of the Bangkok Rules, there has been a greater focus on implementing affirmative measures to redress gender disparities within the criminal justice system. This includes the development of gender-responsive correctional approaches (Chuenurah et al. 2022; Jeffries and Jefferson 2022). However, such efforts have largely concentrated on women’s prisons and custodial sentences. In the following section, we examine the limited body of research concerning women’s pre-trial detention and bail.

3.1. Previous Research

To date, research on women’s pre-trial detention remains limited, with existing studies clustered around three main areas. The first includes analyses of criminal justice administrative data to identify trends in the use of custodial remand or bail, as well as the demographic and social profiles of women detained (Bastick and Townhead 2008; Sadiq 2011; Irish Penal Reform Trust 2013; Garcia Castro 2019; Garahan 2020; Howard League for Penal Reform 2020; Robson 2020; Armstrong 2022; E. K. Russell et al. 2022; House of Commons Justice Committee 2023). The second body of work explores the obstacles women encounter in obtaining pre-trial release (Townhead 2007; Sadiq 2011; Kates 2015; Muntingh and Redpath 2018; Garcia Castro 2019; Robson 2020; Armstrong 2022; Kenney and Dolliver 2022; E. K. Russell et al. 2022). These studies illustrate how an array of gendered factors contribute to the misapplication or overuse of pre-trial detention for women (E. K. Russell et al. 2022). Lastly, there is research examining the impacts of custodial remand on women and those connected to them (Bastick and Townhead 2008; Sadiq 2011; E. Russell and Gledhill 2014; Kates 2015; Muntingh and Redpath 2018; Garcia Castro 2019; Jones et al. 2019; Garahan 2020; Robson 2020). Each of these areas is explored in more detail below.

3.1.1. Trends and Characteristics

Analyses of criminal justice administrative data reveal a troubling overreliance on pre-trial detention for women. In recent decades, the use of custodial remand for women has increased significantly. In some jurisdictions, the number of women held on remand now rivals, or even surpasses, those serving prison sentences. Proportionately, more women than men are incarcerated while awaiting trial, although women’s law-breaking is typically less serious and far less likely to receive a custodial sentence. Moreover, although pre-trial detention is often perceived as a temporary measure, in some countries, women remain in detention for extended periods, sometimes for years.

For example, research from England and Wales, including findings by the Howard League for Penal Reform (2020, p. 2), shows that in recent years nearly half of all women entering prison have done so on remand. The offences for which these women are accused are typically less serious than those of men, with approximately 90% assessed as posing a low or medium risk of serious harm to the community (Howard League for Penal Reform 2020, p. 2; Robson 2020, p. 12). Theft is the most common charge leading to women being remanded, and the majority ultimately do not receive a custodial sentence (Howard League for Penal Reform 2020, p. 2; Robson 2020, p. 12). Similarly, Armstrong’s (2022, p. 222) analysis of data from Scotland underscores the gendered nature of pre-trial detention. There, remand accounts for about one in four women’s prison admissions, yet 70% of these women are not sentenced. Once again, most are held for suspected minor, non-violent law-breaking, in contrast to men who are more frequently remanded for violence (Armstrong 2022, pp. 221–22).

In the Australian state of Victoria, pre-trial detainees made up 54% of the total women’s prison population in 2021, a sharp rise from 22% in 2011, with most incarcerated women “leaving prison without having served any sentenced time” (E. K. Russell et al. 2022, p. 108). In New South Wales (Australia), 30% of women in prison are held on remand, compared to 18% of men, despite women being charged with fewer serious and violent crimes (Bastick and Townhead 2008, p. 110). Similarly, research from India indicates that over 72% of the female jail population consists of women awaiting trial, many of whom remain in pre-trial detention for four to five years. In most cases, even when convicted, their eventual prison sentences were significantly shorter than the time already spent in pre-trial custody (Bastick and Townhead 2008, p. 112; Sadiq 2011, p. 330).

Garcia Castro (2019) examined data from 13 Latin American countries and similarly found that a significant proportion of women deprived of their liberty are held in pre-trial detention. In eight of these nations, the number of women detained pre-trial exceeded those serving sentences. In Bolivia, Panama, Paraguay, and Uruguay, women in pre-trial custody comprised close to or more than 70% of the total female prison population. Furthermore, in all but one country, the number of women held on remand surpassed that of men. The disproportionate effect of strict drug policies on women is identified as a major contributor to the high number of women in pre-trial detention (Garcia Castro 2019, p. 7). Since women rarely occupy major roles in the illegal drug trade, they are particularly vulnerable targets for law enforcement. Garcia Castro (2019, p. 7) emphasises that women imprisoned for breaches of illicit drug law in Latin America “rarely pose a threat to society.” Yet, in several countries, women thus charged are more likely than men facing similar accusations to be in pre-trial detention. Garcia Castro (2019, p. 7) also highlights the troublingly high proportion of foreign nationals among women in pre-trial detention, ranging from 43% to 73% where data is available.

3.1.2. Barriers to Release

Created primarily by men and for men, patriarchal criminal justice systems, including pre-trial and bail processes, often operate to the detriment of women (E. K. Russell et al. 2022). Gender-based oppression, combined with other structural inequalities such as foreign national status and Indigenous identity, forms what researchers describe as a constellation of overlapping factors that increase the likelihood of women being denied bail and placed in custody (E. K. Russell et al. 2022). This complex set of circumstances includes socio-economic marginalisation (such as limited education, unemployment, and poverty), experiences of gender-based violence (including domestic abuse and sex trafficking), intimacy with toxic men, expectations and devaluation of women within families, as well as challenges related to mental health, including substance use.

Globally, individuals held in custodial remand are disproportionately poor and often lack the financial means to afford the “three B’s essential for pre-trial release: bribe, bail, or barrister” (Open Society Foundations 2014, p. 7). Moreover, poverty is feminised, with women disproportionately represented among the world’s poor. Compared to men, women are more likely to be unable to access these three crucial resources (Erol and Özdemir 2023).

Bail is a written commitment to appear in court. In many countries, this often requires a surety (a third party’s promise to forfeit money or property) or a security bond (a cash deposit or guarantee secured against an asset provided by the accused or a third party). In practice, this means an accused person must either provide the funds themselves or rely on someone else who can (Robson 2020, p. 31). Only a limited number of studies have explored women’s financial capacity to meet these requirements. For example, Kates (2015, p. 3) found that women in a pre-trial unit in the United States were frequently detained despite being granted bail, as they could not afford even modest amounts set by the courts. Nearly 40% of women remained in custody due to an inability to pay bail amounts under USD 500. In Kenya, 97% of women in custodial remand reported bail as unaffordable, compared with 54% of men (Muntingh and Redpath 2018, p. 159). Returning to the U.S., Kenney and Dolliver (2022) examined gender differences in the speed of bail payment. Within 24 h of bail being set, nearly half of the men had paid and been released, compared to only one-third of women. In the subsequent 24 h, 13.3% of men and just 6.2% of women managed to pay bail and secure their release. The authors link these disparities to the feminisation of poverty. Furthermore, research indicates that gender intersects with racial discrimination, compounding disadvantages for certain groups of women. Courts frequently label foreign national and First Nations women as high-risk, leading to higher bail and surety requirements. These amounts are often beyond reach for women who already face disproportionate poverty (Robson 2020, p. 31; E. K. Russell et al. 2022).

Research shows that corruption is especially prevalent during the pre-trial stage, where the uncertainty and vulnerability of the accused make them frequent targets for bribery demands. Pre-trial detention typically receives less oversight than later stages of the criminal justice process and is often managed by the lowest-ranking and lowest-paid personnel (Garahan 2020, p. 3). Because of their relative economic hardship, women are less able to navigate or influence these corrupt systems through bribery (Cherukuri et al. 2009, p. 270; Jeffries 2014, p. 266).

Women also face significant challenges in obtaining adequate legal representation. In Latin America, access to effective defence counsel is a persistent and gendered issue, especially among lower-income populations. For example, in Bolivia, nearly half of the women held in pre-trial detention depend on a limited number of overburdened public defenders with little available time (Garcia Castro 2019, p. 5). Muntingh and Redpath (2018, p. 159) found that in Kenya, female detainees (6%) are far less likely than men (19%) to receive legal assistance. In India, most women in pre-trial detention are illiterate, possess limited legal knowledge, and belong to marginalised castes (Sadiq 2011, pp. 334–38). These factors severely restrict their ability to access and afford private lawyers, while the lack of effective legal aid further hampers their chances of securing bail (Sadiq 2011, p. 338).

In the United Kingdom, foreign national women face particular challenges in accessing legal representation due to factors such as low literacy, poverty, immigration status, language barriers, and the trauma associated with various gender-based abuses (e.g., human trafficking). While free legal aid is available through an on-site duty solicitor program at the court, representation at bail hearings is not mandatory, and cuts to legal aid funding have diminished the quality of this service. For example, duty solicitors typically spend only around ten minutes with clients before hearings, rarely meeting with them afterwards, and there is no private space for confidential discussions. These conditions make effective communication between lawyers and foreign national women extremely difficult (Robson 2020, p. 21).

Women’s lower economic status often leads courts to perceive them as more likely to abscond, since decisions typically depend on factors like stable employment and housing to assess whether an individual will appear for trial and refrain from breaking the law again (Townhead 2007, p. 15; E. Russell and Gledhill 2014; Armstrong 2022, p. 226; House of Commons Justice Committee 2023, p. 18). In both Scotland and Australia, lack of a fixed address or homelessness frequently results in courts denying women’s bail applications (Armstrong 2022, p. 222; E. Russell and Gledhill 2014; E. K. Russell et al. 2022). Insecure housing and employment are also key contributors to the excessive use of pre-trial detention among foreign national women in Latin America and the United Kingdom (Garcia Castro 2019, p. 7; Robson 2020). Feminist scholars have demonstrated how risk discourses within the criminal justice system function as pseudo-scientific mechanisms of gendered and racialised control, recasting indicators of social disadvantage, such as homelessness, as ‘risks’ that could lead to reoffending or failure to comply (Hannah-Moffat 2005; E. K. Russell et al. 2022, p. 112).

E. K. Russell et al. (2022) demonstrate how poverty, insecure housing, and experiences of domestic violence intersect in the lives of criminalised women in Australia, showing how patriarchal justice systems both mirror and reinforce gendered disadvantage. Economic abuse often leaves domestic violence victims without stable housing or financial means, making it difficult to meet bail conditions. Domestic violence perpetrators can also isolate women from support networks, such as family members who might have helped secure their release. Abusive men may actively prevent women from engaging with the legal system, including attending court or complying with bail requirements, increasing the likelihood of custodial remand. The psychological toll of sustained trauma can further undermine mental health, leading some women to self-medicate through substance use. Together, these factors generate instability that positions women as high-risk, unmanageable, or in need of protection, ultimately channelling them into pre-trial detention.

In the United Kingdom, bail laws permit courts to remand individuals in custody for their protection (Robson 2020, pp. 29–30). This provision is frequently applied to foreign national women, many of whom are victims of trafficking or modern slavery, who are denied bail due to the absence of safe housing. Courts often justify this by claiming incarceration reduces the risk of re-trafficking (Robson 2020, p. 8). Yet, while these women are framed as vulnerable if released, they are simultaneously viewed as risky due to unstable circumstances such as lacking a fixed address, compounded by racialised fears around immigration and criminality. In the United Kingdom, ‘foreignness’ itself has become a marker of suspicion in bail assessments (Robson 2020, p. 5). Similarly, E. K. Russell et al. (2022, p. 112) observe that in Australia, First Nations women are “uniquely and acutely marginalised within a colonial and patriarchal legal system” that positions them as either too dangerous for release or too endangered to be granted bail.

In Australia, there are documented cases of women being placed in so-called ‘therapeutic’ custodial remand, held in pre-trial detention not because they pose a risk but because of a lack of housing, support, or treatment options in the community. Courts appear to assume that prisons can provide the assistance women need, despite evidence to the contrary (E. Russell and Gledhill 2014, pp. 27–28). As the next section explores, pre-trial detention is far from therapeutic and is especially harmful to women. Research from the United Kingdom highlights the flawed logic of such decisions. When courts detain women on the basis that they may face harm if released, they “trade on the possibility that a defendant might be harmed if she were released on bail against the certainty that she will be damaged by placing her in custody” (Townhead 2007, p. 18).

Gender imbalances also emerge in cases involving co-accused heterosexual partners, often resulting in harsher outcomes for women (E. K. Russell et al. 2022, p. 114). E. K. Russell et al. (2022) found that when a woman is charged alongside a male intimate partner, it is typically the man who is granted bail. Women may “take the fall” for violent or controlling partners—out of love, fear, or coercion—only to be denied release because courts generally do not permit co-accused individuals to live together while on bail. As a result, he walks free while she remains in custody. Similar patterns are evident in India, where being arrested with a male family member often prevents women from securing release. Within rigid patriarchal family structures, women are treated as expendable, and familial resources tend to be directed toward securing men’s release, leaving women to remain in detention (Sadiq 2011, p. 339).

Even when women are not co-accused with men, patriarchal norms often ensure their reliance on them. In some countries, women are legally prohibited from owning property (Stand for Her Land Campaign 2024), and many lack independent access to financial resources (United Nations Women 2024). As a result, women in conflict with the law frequently discover that their pre-trial release depends on the willingness of a man, often a partner or relative, to act as a surety (Garahan 2020, p. 5). This dynamic affects all women but is particularly troubling for those experiencing family violence, women partnered with nefarious men, and those without a male overlord. Notably, Sadiq (2011, p. 339) found that in India, being unmarried or widowed significantly reduced a woman’s likelihood of securing bail.

3.1.3. Impacts

Women held on remand have lost their liberty not as a lawful consequence of criminal conviction, but because of gendered oppression justified through appeals to broader community interests (Armstrong 2022, p. 222). Moreover, as this section will explore, research examining the impact of custodial remand on women, their children, and their families reveals that pre-trial detention carries deeply harmful consequences.

Caregiving responsibilities are gendered, with women worldwide performing the majority of care work (Gammage et al. 2019). Consequently, unlike men, women held in pre-trial detention often have significant caregiving responsibilities. For example, Kates (2015, p. 4) found that 70% of women jailed and awaiting trial in Massachusetts were mothers with primary or sole responsibility for their children’s care. Muntingh and Redpath (2018, p. 154) reported from interviews with women in pre-trial custody in Kenya that over 80% had children, nearly 10% had five or more children, and more than 70% had dependents beyond their biological offspring. In Latin America, many women detained pre-trial are single heads of households supporting multiple dependents, including children, elderly parents, or relatives with disabilities through both income and unpaid care work (Garcia Castro 2019, p. 10).

Detaining women, even for brief periods, disproportionately affects those who depend on them (Robson 2020, p. 14). A woman’s imprisonment can lead to negative health, social, emotional, and financial impacts on her dependents, with children suffering particularly severe consequences (Muntingh and Redpath 2018, p. 154; Garahan 2020, p. 6). Jones et al. (2019, p. 48) describe the children of incarcerated women as “collateral victims of the correctional system.” Parental incarceration is recognised as an adverse childhood experience linked to a range of short- and long-term negative outcomes (Children of Prisoners Europe 2018, 2021).

In the United Kingdom, data reveal that when a woman is detained, 95% of children must leave their primary home (Garahan 2020, p. 7). Muntingh and Redpath (2018, p. 151) similarly found through interviews with pre-trial detainees and their families in Kenya that 32% of those connected to female detainees, compared to just 3% linked to male detainees, reported that children had to relocate due to detention. Men often avoid parenting responsibilities, so when mothers are imprisoned, children usually fall into the care of other female relatives, most often a maternal grandmother, or into state care where available (Jones et al. 2019, p. 48). Women’s detention therefore imposes a disproportionate burden on their children and families, who frequently must assume caregiving duties both financial and non-financial, often without sufficient notice, preparation, or support (Kates 2015, p. 4; Muntingh and Redpath 2018, p. 154).

For children, the imprisonment of a primary caregiver is a deeply stressful experience for multiple reasons. They are often suddenly separated from their caregiver and, in some cases, may witness the trauma of their arrest and removal. Children may face stigma and bullying, while changes in living arrangements and family finances add further strain (Children of Prisoners Europe 2021, p. 2). Having a parent in prison is linked to higher rates of school failure, and in some countries, children may leave education entirely to work to make up for lost family income (Open Society Foundations 2014, p. 30; Muntingh and Redpath 2018, p. 154). These lost educational opportunities create long-lasting and intergenerational social and economic disadvantages for both individuals and society as a whole (Garahan 2020, p. 6).

Muntingh and Redpath’s (2018, p. 151) research revealed that having a family member in pre-trial detention drives already marginalised Kenyan families further into poverty and food insecurity. Significantly, since most women in custody were the sole breadwinners, families with a woman detained were much more likely to experience food insecurity (65%) compared to families with a man incarcerated (35%). Additionally, pre-trial detention brings unexpected expenses for families, such as costs related to visitation (Muntingh and Redpath 2018, p. 155).

The negative ripple effects of pre-trial detention extend into the prison, affecting women who are separated from their families. Strong, healthy family ties help ease some of the material and emotional challenges of detention. Muntingh and Redpath (2018, p. 157) found that in Kenya, women’s ability to depend on family impacted their access to necessities like food, money (including for bail), medicine, legal representation, and emotional support. Because caregiving, particularly parenting, is highly gendered, family separation is uniquely difficult for women. For instance, interviews with women in custodial remand in Canada revealed that “missing their children is one of the hardest (often the hardest) aspects of being incarcerated” (Jones et al. 2019, p. 47).

Women in pre-trial detention are more prone than men to become alienated from their loved ones. In Kenya, Muntingh and Redpath (2018, p. 154) found that 72% of women and 43% of men reported a deterioration in their spousal relationships since being detained. This disparity reflects a pronounced gender asymmetry in care and support. Wives were far more likely than husbands to visit and assist detained partners (Muntingh and Redpath 2018, p. 153). Women in custody generally received fewer visits than men (Muntingh and Redpath 2018, p. 153). In India, Sadiq (2011, p. 337) similarly reported that nearly 35% of women in her study had no family contact, and 22% had only been visited once during their confinement. The main reasons included prisons located in areas far away from women’s homes, making travel costly and time-consuming, as well as families struggling with the additional burdens of lost wages (due to the incarceration of women) and, at times, the payment of bribes to gain entry. Geographic isolation also emerged as a barrier in Massachusetts, where Kates (2015, p. 4) noted that the distance of the pre-trial detention centre made it “very difficult for the children” to visit their mothers.

Research focusing on women in pre-trial detention, though limited, reveals that many suffer from poor health. Custodial remand often fails to support well-being and frequently exacerbates health issues, especially in overcrowded and under-resourced pre-trial facilities. Muntingh and Redpath (2018, pp. 156–57) found that inadequate healthcare and harsh conditions led to an increase in illness during detention, despite many detainees already having physical ailments at the time of arrest in several African countries. In Kenya, 75% of women in pre-trial custody were either physically unwell at arrest or became sick while incarcerated. Among those already ill at arrest, nearly 70% developed further physical health problems during detention. Additionally, one in eight women reported being HIV positive, and HIV-positive detainees experienced significantly worse health outcomes due to poor detention conditions and limited medical care (Muntingh and Redpath 2018, pp. 53–156).

Regarding mental health, Jones et al. (2019, p. 49) found that most women in their Canadian study struggled with addiction and mental health issues. Similarly, Kates (2015, p. 49) reported that 60% of women in her Massachusetts research had substance abuse problems, and half were diagnosed with mental illnesses such as anxiety, PTSD, schizophrenia, depression, or bipolar disorder. However, in both cases, crucial programs, resources, and support were only accessible to sentenced prisoners, leaving women in pre-trial detention without help. Kates (2015, p. 5) highlighted that 80% of the women interviewed wanted substance misuse treatment but “cannot benefit from substance abuse programs and resources available to other prisoners” because pre-trial detainees are neither classified nor allowed to mix with sentenced inmates. Consequently, pre-trial confinement effectively denies women urgent treatment for mental health and substance abuse issues (Kates 2015, p. 5).

In Australia, the judicial practice of placing women in pre-trial detention is sometimes justified as a form of therapeutic intervention, a deeply ironic idea. Firstly, prison policies often restrict women’s access to therapeutic programs and services while on remand, neglecting their specific needs related to gender-based violence, trauma, mental health issues, poverty, and homelessness (E. Russell and Gledhill 2014, pp. 27–28). Women in pre-trial detention are not only denied therapeutic support but are also commonly excluded from work, education, and vocational training opportunities (Bastick and Townhead 2008, p. 112). Secondly, pre-trial detention itself is inherently traumatic and harmful. Designed by and for men, the system is ill-suited to meet the unique needs of women, resulting in severe consequences. For example, in the United Kingdom, female pre-trial detainees represent the prison population most prone to self-harm (Townhead 2007, p. 27).

Researchers emphasise that women’s complex needs and caregiving responsibilities make the misuse and overuse of custodial remand especially harmful. They argue that pre-trial detention should never be used to address women’s victimisation, trauma, mental health issues, substance abuse, poverty, or homelessness (Townhead 2007; E. Russell and Gledhill 2014, p. 28). Instead, alongside community-based initiatives and investments aimed at tackling gender inequality and injustice, every effort must be made to divert women away from detention (Townhead 2007; E. Russell and Gledhill 2014, p. 28). Similarly, the United Nations Office on Drugs and Crime (2020, pp. 34–35; Townhead 2007, p. 29) emphasises that alternatives to pre-trial detention should be prioritised for women, recognising the particularly harmful impacts that deprivation of liberty has on them, their families, and their children.

4. Discussion and Conclusions

Although international human rights obligations require pre-trial detention to be used as a measure of last resort, it remains widely applied across criminal justice systems worldwide. For women, this overuse both reflects and reinforces deep-rooted gendered and intersectional inequalities. Barriers to securing bail, such as the feminisation of poverty, racial and colonial subjugation, and inadequate legal representation, increase women’s vulnerability to pre-trial custody and carry calamitous consequences, including disrupted caregiving, deteriorating physical and mental health, heightened economic insecurity, and the severing of family and community ties. This occurs even though many women held on remand are never convicted, and when they are, their law-breaking is typically minor and non-violent, rarely warranting a custodial sentence of any length.

While the need for gender-responsive criminal justice is globally recognised, most notably through instruments like the Bangkok Rules, implementation has largely concentrated on improving women’s prison conditions (Chuenurah et al. 2022). Less attention has been devoted to preventing their incarceration in the first place, particularly through expanding the availability and use of gender-sensitive, non-custodial, and community-based measures which provide stronger support for women and uphold accountability, while avoiding the unnecessary harms of imprisonment (Morash 2010; Bloom and Owen 2013; Bloom 2015; Rao 2020; United Nations Office on Drugs and Crime 2020; Chuenurah et al. 2022). The excessive and inappropriate use of pre-trial detention for women is embedded within entrenched systems of patriarchal and structural subordination. Meaningful reform requires the practical realisation of human rights law, standards, and norms, alongside women’s decarceration supported by social policies that confront the structural and gendered forces driving women’s criminal-legal system entanglement.

Human rights frameworks are unequivocal that pre-trial detention must be a measure of last resort. Yet despite the Bangkok Rules, the Tokyo Rules, the Nelson Mandela Rules, and numerous other human rights directives, criminal justice systems worldwide continue to treat custodial remand as the acceptable default. The problem is not the absence of standards, but a lack of political will to implement them. If the international community is serious about meeting the 2030 Sustainable Development Agenda, the overuse of pre-trial detention, particularly for women, must be addressed. The United Nations has already identified the proportion of unsentenced detainees as a key indicator for measuring progress on Goal 16. Unless states act to reduce reliance on pre-trial detention, they will continue to violate women’s human rights and undermine commitments to sustainable development. Put simply, unless the systemic use of custodial remand is dismantled, the promise of “leaving no one behind” by 2030 cannot be realised (United Nations 2015).