Source Jillo Kadida (Mail&Guardian)
Richard Mwanzia Muasya, who was convicted and jailed for robbery with violence, says he is subjected to continuous human- and constitutional- rights violations at the prison, which is for men only.
He claims to suffer inhuman and degrading treatment at the hands of male convicts, prison warders and the public.
Muasya was born with both male and female sex organs, but regards himself as a man.
He has asked the court to release him because, he says, he is neither man nor woman and there is no special prison for people like him. He argues that if he is transferred to a female prison he will suffer the same fate.
The second leg of his case challenges Kenyan law for discriminating against him. He argues that the law recognises only the two sexes, male and female, and should be changed.
The fact that Kenyan law does not recognise intersexuality makes it difficult for him to acquire vital documents, including the national identity card, Muasya says in papers filed in court. This is because he does not know whether to complete application forms as a
man or a woman.
The birth and death registration law also does not provide for intersexuality, making it impossible for him to acquire a birth certificate.
Muasya was arrested with three other suspects in February 2005 after a robbery during which a woman was gang-raped.
However, the rape charge against him was dropped after medical reports confirmed that he is intersexed. The medical examination determined that none of his sex organs was fully developed and that it was unlikely that he could commit rape.
Muasya and other intersexed people in
suffer ridicule and discrimination. In some instances they are kept out of the public eye because people are ashamed of them. The problem facing Kenya ’s constitutional court is that he has been convicted of an offence, yet the country has no separate facility for holding intersexed offenders. Kenya
In addition, the Kenyan constitution does not recognise the unique rights of intersexed citizens. Under South African law, the intersexed are recognised and their
rights are protected.
There are two issues here:
If this person didn't commit the alleged crimes, then he/she should be released on those grounds alone.
Being intersex is besides the point if he/she is also a criminal. In that eventuality, there is nothing for it but for him/her to decide where (male or femaile jail) to be incarcerated.
I think he/she makes a good point concerning the exclusion of intersex persons. That said, we have all heard stories of the abuses that go on in prisons no matter what your sexual identity. So I think it is fair to say that escaping such abuse is not likely to happen no matter what type of prison an intersex person may find themselves in.
Of course, as an intersex person living in a society that does not give fair recognition, rights, or respect to people such as him/herself, I imagine he/she has tolerated a substantial about of torment and abuse outside of prison as well. It forces one to wonder if living such a life contributed to the fact that he/she has made criminal choices in the first place!
...a gang-rape? He regards himself as a man? Involved in a violent robbery? Sounds to me like someone needs to be incarcerated for a little bit of time.
This wouldn't perhaps be Muasya using his intersexuality as a get-out-of-jail-free card?
Of course, if Muasya is innocent...get him out. This goes without saying. And, of course, prison abuse is an epidemic that may never be solved--and male prisons abuse other male prisons, and female prisoners abuse female prisoners...Intersexuality is just another reason for prisoners to target someone. I agree with Heather--whatever prison anyone ends up in for whatever reason...your experience isn't going to be a very sunny one. If Muasya committed these crimes, intersexuality shouldn't be insulted by being used as an excuse to free him for any amount of time. That would set, needless to say, quite the dangerous precedent.
That being said, I can remember off the top of my head a particularly good episode of Law & Order: SVU (read: vigilant American TV lover) where a transgendered MTF, pre-operation, was sent to a male prison (though the character identified as a female) and was gang-raped. Just thinking about THAT instance makes me feel angry and powerless and like MY rights were somehow violated to at least be put in a prison where I, at least, biologically belong.
Is this the same issue or not? I don't want to sympathize with Muasya is he 1) is guilty, 2) identifies and lives his life as a male and is complaining about being sent to a male prison, and 3) is using intersexuality unfairly, or as a defense in any way against his crimes. But I also don't want to subject anyone to any further about of grief in prison if they're innocent and put somewhere on purpose where the abuse will be worse than it would be somewhere else.
If he identified BEFORE this incident as a man, without anyone telling him to, and is now going to prison JUSTLY...he's going to a male prison. Maybe you shouldn't go around robbing places and looking on while your cohorts gang-rape a woman. You can't suddenly decide to play the Intersexed Card when it suits you because you want to get out of your punishment.
This is such a complicated topic that touches on a a few very important issues. It isn't right that inter-sex individuals can't get a birth or death certificate, that within itself is an issue since the government is practically saying they don't exist. That also complicates other documents, health, legal or otherwise.
Another very important issue touched upon here is abuse in prisons. This is a problem world wide for people of both genders, and various sexual orientations or identities.
However in this specific case, you also have to look at what he was put in jail for. In prisons those who are in for rape are usually picked upon regardless of anything else, and even if those charges were dropped it is likely that rumor had already spread throughout the prison.
While on the topic of the charges, just because Muasya doesn't have fully developed sex organs doesn't mean he didn't participate in the violation of a woman. Even if he wasn't able to have sex with her, he could have been a part of restraining or penetrating her. If he is absolutely innocent, he shouldn't be in jail in the first place, but being inter-sex doesn't allow him the right to be involved in a violent crime and not be punished for it.
There needs to be a reassessment of how to handle these situations, possibly increase security and protection around him or other inter-sex prisoners, or have solitary confinement. While no one should have to endure harassment and abuse, no one should who is proven guilty in court should be allowed out of jail unless they've been proven innocent. There needs to be some sort of middle ground reached or special situation worked out for him so he can serve time for his crime in a safe environment.
His case is compelling, and I believe that he has a reasonable case. He is forcing his government to acknowledge intersecionality and grant them some rights. It is wrong for his government to ignore his existence just because he doesn’t fit into to the norm. From what I understand, the government and people feel as if they have the right to harass anyone different from them. In addition, I believe that he shouldn’t be released because he committed a crime, but the government should have special accommodations for him.
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