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custody HumanRightsLaw Uncategorized

A human rights law perspective on sensory experience and dignity in detention

Elaine Webster and Natasa Mavronicola

Infliction of physical pain, non-consensual touch, slopping out, subjection to loud noise, social isolation – these are all experiences within penal settings of subjection to, or deprivation of, certain sensations, smells and sounds which are deeply relevant for understanding the nature of dignity violations. From our perspective as researchers analysing the interpretation of the right not to be subjected to torture, inhuman or degrading treatment or punishment, in particular in European human rights law, we reflect on how a human rights lens has potential to illuminate why those involved in the governance and/or oversight of penal institutions should be concerned with the sensory. At the same time, we reflect on what those of us engaged in illuminating and concretising human rights can learn from bringing the sensory into focus; on how it can deepen our understanding of what is actually going on at the level of individual experience, and in turn shape our understanding of what falls within the purview of a legal norm such as the right not to be subjected to torture or inhuman or degrading treatment or punishment.

The way that individuals experience dignity respect or disrespect is a core concern in the penal context. In human rights doctrine, dignity language is particularly prominent in relation to the experience of prisoners and other detainees, including in immigration detention. The Nelson Mandela Rules, dealing with the treatment of prisoners, state in the very first sentence of the very first rule that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.”

This is a powerful, if uncertain, red line. A challenge for working with the dignity idea is that it doesn’t possess a neatly labelled, off-the-shelf meaning in human rights discourse (or any other discourse). International agreements and human rights treaties are not philosophical works; they only try to capture and convey a sense of shared, social values. To understand the substance of dignity from a human rights perspective then, we have to piece together fragments of these shared understandings with the texts, with the pronouncements of monitoring bodies about the circumstances before them, and with theoretical accounts of dignity’s meaning. When we do so, we see patterns and gain insight into connections between sensory experience and dignity, respect and disrespect, as we outline below.

While the idea of dignity may be associated with metaphysical properties, it is a multi-faceted notion and contemporary accounts embrace its richness. It is widely recognised that human dignity is bound up with embodiment, and that dignity violations are socially-embedded experiences. Besides the ways the sensory can play a key role in the distress and harm that certain circumstances can occasion, sensory experience can also form part of actual and symbolic communication of a person’s perceived exclusion from the human community. 

The sensory dimensions of physical torture in detention, perhaps the prototypical violation of human dignity, are well documented in testimony and scholarship. One example is Elaine Scarry’s landmark study in the 1980s, The Body in Pain, which connected the wrongness of torture, not only to physical sensation but also to loss of voice; a perverse substitution of ‘voice’ with ‘sound’ (chapter 1). Scarry explains how this perversion becomes a key dimension of the experience, devised to impact not only the person subjected to torture but also those subjected to hearing it.

Eventually the pain so deepens that the coherence of complaint is displaced by the sounds anterior to learned language. The tendency of pain not simply to resist expression but to destroy the capacity for speech is in torture renanacted in overt, exaggerated form. Even where torturers do not permanently eliminate the voice through mutilation or murder, they mime the work of pain by temporarily breaking off the voice, making it their own, making it speak their words, making it cry out when they want it to cry, be silent when they want it’s silence, turning it on and off, using its sound to abuse the one whose voice it is as well as other prisoners (p. 54).

As Oliver describes it in discussing Scarry’s account alongside survivor testimony, enforced “linguistic paralysis” becomes an act of exclusion (Oliver 2011, p. 92).

The connection between sensory experience and inhuman and degrading treatment or punishment is not as well documented. This is partly because these wrongs have been subject to less attention than the prototypical experience of torture; they are often seen as less ‘severe’ and thereby less concerning. These forms of treatment, however, should not be seen as being of lesser importance or impact on those who are subjected to them, and sensory experience can be integral to what makes treatment or punishment inhuman or degrading in character.

In the European Court of Human Rights’ (ECtHR) case law we find inhuman and degrading treatment and punishment often characterised by subjection to humiliation and/or suffering through manipulation of, or insensitivity towards, sensory experiences. We see this in noise subjection or sensory destabalisation through hooding as part of interrogation practices, such as the ‘five techniques’ of interrogation (hooding, noise subjection, stress positions, deprivation of sleep and deprivation of food and drink) that were the subject of a finding of inhuman and degrading treatment in Ireland v. United Kingdom (Ireland v. United Kingdom, 5310/71, 18 January 1978). Concretely, the continuous use of a dark hood as part of the “five techniques” served to cause not only substantial discomfort and disorientation, but also profound distress; Survivors of these ‘five techniques’, who are often referred to as the ‘Hooded Men’ have recounted having a a hood placed over their heads and being thrown off flying helicopters, not knowing that the helicopters were flying only a short distance from the ground. The debilitating implications of such ‘techniques’ have more recently been recognised in findings of torture in the context of CIA rendition and co-called ‘standard interrogation’ and ‘enhanced interrogation’ practices (e.g. Al Nashiri v. Poland, 28761/11, 24 July 2014) and the enduring image of the Hooded Man in Abu Ghraib. We also see a recognition of the significance of sensory experience in the ECtHR’s attention to such things as the cumulative effects of airplane noise and constant loudspeaker announcements on a child in immigration detention (see A.B. and others v France, 11593/12, 12 July 2016), or carelessness regarding the impact of not being able to hear or to see as a result of impairment (Ābele v Latvia, 60429/12, 5 October 2017; Slyusarev v Russia, 60333/00, 20 April 2010). Moreover, non-consensual physical impingement on one’s body is a recurring concern in case-law, from a slap on the face (Bouyid v. Belgium, 233380/09, 28 September 2015) to the performance of full body searches (Valašinas v. Lithuania, 44558/98, 24 July 2001). Further, the ECtHR has repeatedly underlined, in the context of the imposition of segregation in penal settings, that “complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment” (Onoufriou v. Cyprus, 24407/04 10 December 2009, para. 69). Sensory experience does not constitute the full picture of dignity violations, but it can be a key aspect of treatment that reflects or communicates dignity and disrespect.

Recognising this is beneficial for furthering our understanding of dignity and its concretisation from within a human rights law perspective. In the context of human rights law – both legal instruments and case law – individual and communal experiences are filtered into the legal form, of proscriptive abstract statements and narratives retold for the purpose of judicial decision-making. As such, the totality of particular experiences is not – and cannot be – conveyed or appreciated in this forum. For this reason, we’ve found it interesting to reflect on how attention to sensory experience can help shape the delineation of dignity-respecting treatment beyond its partial rendering in legal texts, through a richer understanding of what is really going on at the level of an individual’s experiences of violations of the prohibition of torture, inhuman or degrading treatment or punishment.

Notably, there is substantial scope within the ECtHR’s case law on inhuman and degrading treatment for the recognition of the way in which (cumulative) sensory experiences, or lack thereof, may communicate, often in diffuse fashion, distinct from the “fanfare” (Luban 2014, p. 129) of torture, a denial of equal humanity; and how they may serve, intentionally or not, to wear someone down, or even break their spirit. Often this recognition is present, but goes unspoken – the sensory dimensions of one’s subjection to profound powerlessness, severe distress, or loss of hope, are often to be found between the lines of the Court’s reasoning – for example, when the Court sets out an acceptable square metres per person to avoid overcrowding (e.g. Muršić v. Croatia, 7334/13, 20 October 2016), or when it deems detention conditions to be ‘insanitary’ (e.g. Kalashnikov v. Russia, 47095/99, 15 July 2002), or describes prolonged solitary confinement as “one of the most serious measures which can be imposed within a prison” (e.g. A.B. v. Russia, 1439/06, 14 October 2010), para. 104, 112).

In a sphere of judicial decision-making where empathy can play a significant role (Heri 2021, chapter 7), it is worth asking: what would be the impact if human rights doctrine were to accommodate a more immersive sensory experience of the places and circumstances faced by individuals? How might such an approach inform judicial responses to carceral settings in particular? The “vividness of imagined experiences” (Webster 2018, p. 71) within judicial reasoning might be enhanced by a greater appreciation of sensory dimensions. While there seems to be something particularly relevant from a dignity perspective about the social gaze, the way that individuals see themselves, and the presence of onlookers in judgments surrounding torture, inhuman and/or degrading treatment or punishment, the significance of seeing need not negate the significance of sensing more broadly. There is space for these broader perspectives to enrich context-sensitive assessments (see discussion in Mavronicola 2021, p. 93-105) of when particular experiences fall within the scope of the prohibition of torture, inhuman and/or degrading treatment or punishment.

Foregrounding the sensory within human rights law perspectives could constitute a valuable resource, just as connecting the sensory to the language of dignity within criminological perspectives could constitute a valuable resource. And it goes without saying that, in scrutinising the experience of persons in detention, there is a continued need to engage creatively with all the resources we have available.


Categories
Interviewing power research sensory Uncategorized Victimology

Sensing towards justice: The importance of attending to the sensory when interviewing victim-survivors

Beth

‘you were so afraid

of my voice

I decided to be

afraid of it too’

-rupi kaur, Milk and Honey

Recently, whilst designing a research project, I decided to look back on and examine my own experiences of participating in criminological research. I wanted to reflect on how we design and conduct research, bringing in knowledge of how it feels to be on the other side of the screen. I am a victim-survivor of abuse and have taken part in a small number of academic projects relating to this over the years. As I have only taken part in online interviews, and with an awareness many victim-survivors will experience the process differently to the way I do, I decided to investigate, and this is where I discovered a gaping hole in our conversations. There is plenty written about ‘ethical’ practice with victims of crime (Newman et al, 2006; Burgess-Proctor, 2014), how academics experience conducting their own research (Rice, 2009; Ross, 2017), and how methods may be experienced by participants (see Hlavka et al, 2007 and Campbell et al, 2009). But notably, almost all of this is written by and filtered through researchers, usually based on post-interview questions about the participant’s experience of the process. I question the effectiveness of this. How freely can those who have just sat in their vulnerability critique those imbued with more power? Participants do not have the same space to communicate for themselves about their experiences of taking part, and it seems that this has resulted in the loss of some of the nuance of emotions and sensations that taking part in research as a victim of crime can elicit.

Your research projects come into our lives suddenly and unexpectedly. Most often this is via a social media post, perhaps seen on a Saturday afternoon whilst I am sat with my family. There is a juxtaposition in this, the softness and warmth of my home against the harsh reminder of the world that exists outside of and prior to this new reality I have created. The pain which permanently exists under the surface is brought to the fore. But something about the research draws my interest and makes me stop, or go back to it. Curiosity perhaps. Most people don’t want to hear about my past, my existence is too uncomfortable for them to acknowledge and so they strip it from me on my behalf. We don’t have to talk about that. But I want to talk about it, and suddenly my head is bursting with things I didn’t know I wanted to say.

The words are almost tumbling out as I type a controlled message offering my time. Tap, tap, tap. My finger hesitates over the little arrow before I hit send. An odd thing about participating in research as a victim of abuse is that alongside the desire to be heard, worry and shame creep in at this point. Worry because I now have all these things I want to say, and if they say no I will have nowhere to put them. I will be left scrabbling to contain them again. I know I will be disappointed because the child within who couldn’t speak now desperately wants to be heard. The shame sits in my having contacted this ever-so-important person at all. Abuse lies, tells you that you have nothing of value to offer. Shame is the feeling of taking up too much space, and of needing to squash yourself into the smallest possible version so as not to trouble anyone. I am probably wasting their time.

Something that often goes unconsidered when designing time or resource pressured research is how we will communicate with people if they do not fit our study, or if we have finished data collection. Sometimes these limits are framed as ensuring researchers are not ‘over collecting’ data so as not to upset people unnecessarily, which while intended to be ethical, is actually cruel in its denial. What may seem like an innocuous email to say no thank you, might be experienced as deeply painful to someone who has already given something of themselves. If it has to be, effectively communicating why the decision has been made alongside a sincere acknowledgement that you appreciate them taking the time to get in touch can make all the difference to someone who has been repeatedly told they are not enough.

But in this case they say yes, and the interview is arranged. The screen flicks on, and the things most immediately apparent to me are that I am not in control, and the attention is entirely on me. In a way which is hard to put my finger on this feels reminiscent of the crimes I experienced. The distance through the screen mimics the disconnect I once felt with the world around me. The invisible bubble. The Untouchable. Suddenly I am acutely aware of the chair digging into my back, of not knowing where to put my arms and legs. Everything feels wrong. I feel myself shift uncomfortably whilst I try to project the image that everything is okay. Smile. That’s what ‘in control’ looks like, right? Is it? I can’t quite remember. Adrenaline floods my body; I can hear my heartbeat and I can feel that I am shaking slightly. Thump-thump, thump-thump. I clench my muscles in an attempt to regain some control. All of my senses tunnel in on this interaction, and everything else around me almost ceases to exist. There is an eerie stillness in being hyperaware of your breathing, of the tenseness in your body, in perceiving the other person, offset by the relative silence around me as my brain mutes out background information. But I want to do this. I focus on the questions, and on saying what I want to convey. Time and space begin to contort as I narrate both in the then and the now.

I wonder what the researcher sees in this moment. I suspect not much. Many victim-survivors, especially adult survivors of childhood trauma, are experts at masking pain. We often hide our experiences for many years, learning as children to live in disguise. Online research makes it easier for me to mask my distress. I can position my screen so that all you see is my face. So that you don’t witness the shaking, the shifting, the fiddling with a piece of Blu Tack. Abuse taught me how to disassociate my mind from my body, and I subconsciously do that now. I have learnt to mute myself, to deny my own physicality. I have learnt to silence myself before I am silenced, as a form of control. To exist in a half form so that I might be palatable.

Researchers may develop a strategy for managing participants distress, but in order to implement this we need to have perceived it. This can be difficult if someone is not visibly upset. Using Fricker’s concept of ‘hermeneutical injustice’ (2007), it is hard for me to communicate my experiences in a way which others will understand without showing them the physical effect on me. Abuse is inherently sensory, I can explain it only in how it felt, in sounds, and smells. Without this framework it is hard for others to comprehend, but this level of detail can be hard for researchers to hear, and so many reject it. ‘I don’t want you to get upset, shall we stop’, centres the researcher and inadvertently communicates that this may be becoming too much for you. That you want to stop. For me, my becoming upset isn’t necessarily a negative thing. In fact this may be one of very few spaces I can express myself in an authentic way. ‘Remember that this is your space, we can do whatever you need ’ communicates that the participant is in control, and gives someone whose “no” has previously been ignored permission to advocate for themselves. To be present in their whole form. To exist.

Afterwards the adrenaline floods out of my body, like a tidal wave has crashed and dissipated, leaving me tired and drained. But this experience has also felt freeing; I have put down some of the heavy stones which I carry. Brené Brown once said that “shame thrives on secrecy, silence and judgement. Shame cannot survive being spoken” (2012). In the very act of speaking, in a scenario where I have the safety of remaining anonymous, some of the shame I feel has been drawn out and leached. I have released it, and it less so belongs to me. Each time I speak, my body feels a little lighter to inhabit. I feel proud, and the warm swell that starts in my chest grows and spreads down each arm and into my fingertips. I feel bigger somehow, like an unfurling, and it is one of those rare occasions where it feels good to take up space. To have grasped at power in the choice of speaking. Of, in some small way, helping those who will come after me. In this moment I feel strong, and defiant.

Something that has come to interest me is the question of whether there is a risk that participants may feel emotions ‘outside of normal experience’, and I wonder who’s experiences we are using to define ‘normal’? To those who have not experienced trauma, what I have described would seem to be ‘outside of normal experience’. But I exist within and navigate this space every day. When I watch a film or go online, I do so knowing that I could be confronted with abuse at any time. I go out in public knowing that men will sometimes stand a little too close behind me. I have learnt to navigate and manage these things because abuse is a life sentence. I will never cease to be a victim-survivor. There is an arrogance in the assumption that I do not live with my experiences outside of academia’s research interests.

My identity has been forcibly and irrevocably changed, but that does not mean that I will never be in a position to talk about my experiences. Yes, talking about it is painful, but the silencing hurts more. Returning to Fricker’s work (2007), there is violence in the testimonial injustice inflicted on those who have experienced abuse, in the academy’s refusal to accept our right to frame our own narrative and make our own decisions about our ability to participate safely. The chokehold of his hand and of his threats now manifests in the chokehold of others’ discomfort, and in my fear of being cast out. The body has an horrendous ability to remember and replicate the bodily sensations of being silenced. And so important things remain unspoken, and I remain unseen. Being told my truth cannot exist in the world because of someone else’s perception of what is an ‘acceptable’ level of emotion is akin to having my voice removed once more. It is the imposition of power, of being spoken for, in others attempts to manage ‘risk’.

As soon as I was made a victim of abuse my entire existence became defined by risk. My risk of poor mental health. Of relationship breakdowns. Of chronic illness. Nothing is ever defined in relation to my strength. My power. My capacity to create change. I am an adult with the rights to make my own decisions, and I can assure you that victim-survivors do not speak without careful consideration and assessment first. Finding the balance is tricky, but in our desire to protect our participants we must also take care not to stifle those who want to speak, because of our failure to confront our own discomfort and fear. If you are not prepared to hear then do not do research with victims of crime, or you will compound and become complicit in the violence of our forced dissonance from the self. 

Going back to rupi kaur’s poem, every day I become less afraid of my own voice. But in it’s assertions that it is acting in my best interests, I feel deeply the silencing and rejection from an academy which is afraid of hearing me.

Reference list

Brown, B. (2012) Listening to shame. [online video] Available from www.ted.com/talks/brene_brown_listening_to_shame/transcript?language=en

Burgess-Proctor, A. (2014) Methodological and ethical issues in feminist research with abused women: Reflections on participants’’ vulnerability and empowerment. Women’s Studies International Forum, 48.

Campbell, R., Adams, A., Wasco, S., Ahrens, C. and Sefl, T. (2009) Training Interviewers for Research on Sexual Violence: A Qualitative Study of Rape Survivors’ Recommendations for Interview Practice. Violence Against Women, 15(5).

Fricker, M. (2007) Epistemic Injustice: Power and the Ethics of Knowing. Oxford: Oxford University Press.  

Hlavka, H. Kruttschnitt, C. and Carbone-López, K. (2007) Revictimizing the victims? Interviewing women about interpersonal violence. Journal of Interpersonal Violence, 22(7).

Kaur, R. (2015) Milk and Honey. Missouri: Andrews McMeel Publishing.

Newman, E., Risch, E. and Kassam-Adams, N. (2006) Ethical Issues in Trauma-Related Research: A Review. Journal of Empirical Research on Human Research Ethics, 1(3).

Rice, C. (2009) Imagining the other? Ethical challenges of researching and writing women’s embodied lives. Feminism and psychology, 19(2).

Ross, L. (2017) An Account from the Inside: Examining the Emotional Impact of Qualitative Research Through the Lens of “Insider Research”. Qualitative Psychology, 4(3).

Categories
mobilities prison

Ghost in the sweatbox

Jason Warr

“Long is the way and hard, that out of Hell leads up to light”

Milton: Paradise Lost (lines: 432-433)

I once spoke to a member of the INLA who said that he had been tortured by the British military in the six Counties. He said the hoods, the sensory deprivation, the shouting, the beatings, the white noise were bad but the real pain, the blot out everything but the very fibres of your body pain, came from the stress positions. Being forced into cramped and crouched positions for extended periods of time so the pain built and built and became all consuming – even after being allowed to move. As I sat there in the cramped Perspex and metal box, knees painfully wedged against the ridged front, arse numb from the hardened seat, broiling in nought but my boxers as the mid-morning sun turned the, only moments before, icy box into an oven, fighting the staccato and nauseating swaying, the caustic smell of ancient vomit, sweat, plastic, and fear burning my nose and throat this is what I thought about. Torture.

As I sit here in my academic office the echoes of that confined sensorium experienced 20+ years ago revisit me. I shiver. I don’t often reflect upon the embodied experiences of my decade plus incarceration, preferring rather to rationalise, examine, evaluate. I did then, and still do impose a distance between myself and my memories. I utilise them to inform research questions and interpretations of the contemporary prison. They are a filter. However, if we wish to explore the true nature of prison, punishment, and processes of social control (that is after all what my job as a prison’s researcher is) it behoves me to find the honesty in my own experiences. To no longer deny my embodied captivity but to explore it in all its sensorial glory. That it is what I have done in our book and what I do here. For the prison is an embodied experience, not just one of mind. The prison doesn’t just impose itself upon the ghost but the machine as well. The ‘penal’ is sensorially encoded into every constraint and restraint that you as a prisoner are subjected to. Bars, bells, bolts, bangs, and boxes – all are experienced through the senses; all communicate a symbolic message – thou art prisoner!

I don’t know whether the INLA man told me the truth about him being one of the ‘Hooded Men’. It mattered not. As I sat there it was that particular story that my discomforted mind dragged forth. Of course, I am not saying my experience was similar to the horrors of ‘enhanced, 5-point, interrogation’ but it was, nevertheless, what my mind conjured as the pain in my knees grew, my back began to cramp, and every thought narrowed to the nagging senses of my twisted and uncomforted body. I had never been inside one of these contraptions before. In the preceding years, though experiencing multiple moves and journeys doubled cuffed and squished between the sweating and nervous bodies of officers, I had been moved in singular roomy vans or cars. Yet here I was, for the first time, going fuck knows where, in a sweatbox.

An apt name. A box of sweat.

Long is the way and hard …

That morning I had been rudely forced from sleep as 4 officers had burst into my cell. Panic. Fear. I had jumped out of bed, sleep blinded, clad in just my boxer shorts, and had swung at the unknown, amorphous, and blurry bodies in front of me. Thems the rules in prison. The hard lessons you learn in Young Offender Institutions – people burst in on you, you fight. There is no choice but to fight. Connection. Crunching impact as fist impacts with something. “Ooogh”. Hands reach, bodies swarm, lights flash, shadows dance, uniforms glimpsed, grips take hold. Pain. Sharp and intense. Arms going one way, head another, kick in the nuts. The swing may have been a bad idea! “What the fuck Guv? What’s going on?” Grips loosen. I’m told to calm the fuck down and comply. I do. I’m told that I’m being moved. I cry that I have a visit that day. I complain. Grips retighten, twisting. Pain. I’m told that my mum will be notified when the wing officers come on in the morning. I struggle but it’s no good. I’m being ghosted.

Ghosting … old prison slang for being forcibly and unexpectedly moved from hosting prison to somewhere else in the estate. A laydown or permanent move. You know not. I did not know why I was being ghosted. I was told that it was for security reasons. I didn’t know where I was being sent. Security reasons. Laughingly they told me I was heading up North. What the fuck?? Ghosting is one of the more pernicious aspects of being in prison. The discombobulation. The anxiety. The stress. The not knowing. The deprivation of certitude. It ruptures what ontological security you may feebly cling to. You do not warrant security; you gave that up when you came to prison.  It creates a schism between you and the spaces you inhabit. Nothing is solid. Nothing permanent. No place is yours. Transportation has a long history in carceral practices. The process itself is designed to both physically and symbolically cast you as an outsider, no longer a member of this society, you belong outside, over there, away from us. Any sense of belonging, of community, is to be denied to you, your civic status revoked. That loss is encoded into the very embodied experience of transportation. Of course, in my ghosting, I am not saying that I am some Jim Jones being sent o’er seas to Botany Bay[1] nor a Sarah Collins heading for Van Dieman’s shore[2]. However, the forced movement, and the status and powerlessness it reinforces, are microscopic instances of the same power being imposed for the same reasons.

So, there I sat, in my boxers, sweating, in pain, rocking and banging about as the vehicle ran roughshod over pothole and bump. Heading to where I knew not in the barren North. Cramped, nauseous, muffled, a world of green blurring by, no comforting concrete to be seen. Wilderness. The interminable minutes stretched into hours. The heat and funk rose as the plastic of the booth, the miniature cell, closed in and compressed the air around me. The stench of me combining with that older undertone of vomit and detergent and heat to make my own self a source of disgust. The roar of the tyres and the diesel engine, pitched to the point of visceral white noise, intruded into my mind; occasionally blocking out the pain emanating from my lower limbs and back. My thoughts, when they came, were bloody and black. I raged. I wanted to hurt anyone associated with that experience. With every passing, torturous mile I became more feral. With every passing mile I shrank, I became less. To survive I needed that journey to end. Even if all that lay at the end was another cell and countless years.

Long is the way …


[1] MacColl, E and Lloyd, A L (1957) ‘Jim Jones at Botany Bay’, Convicts and Currency Lads, Australia: Wattle Records.

[2] See old English Ballad Female Transportation: https://digital.nls.uk/english-ballads/archive/74892349?mode=transcription