What happened to Rodri Estrada is the “stuff of nightmares,” a judge said last week while sentences her killers to life imprisonment.
The 41-year-old dialysis nurse “was attacked and murdered in her bedroom at midnight at the family home by two intruders, total strangers, that she had every reason to think her three young daughters were sleeping. Hall,” said Superior Court Justice Ian McDonnell.
She found that Yostin Murillo and David Beek found Estrada alone in their bedroom and sexually assaulted her. When she resisted, they killed her – striking her in the head at least eight times with metal bars, leaving her face unrecognizable to her husband when he came home later that night.
Now Murillo and Bec will be transferred from the provincial prison, where they have been held since their arrest in 2018, to the federal prison, where they will serve their life sentences. After an intake assessment, they will almost certainly be placed in a maximum security facility.
For Murillo, however, that assessment may face an additional and extremely rare question – could a convicted criminal be too dangerous to go to women’s prison?
Canada’s federal prison system has struggled for years over how to treat transgender inmates. Prisoner-rights advocates and current prison policy both agree that they should be imprisoned in a facility that matches their gender identity.
There is one exception to the policy, however, which allows Correctional Services Canada to refuse to transfer someone to a women’s prison where “there are health or safety concerns that cannot be addressed.”
For CSCs, the warning is justified due to the limitations of less secure women’s prisons. For prisoner rights advocates, this reflects clear discrimination against trans women, who, when incarcerated in men’s prisons, are exposed to repeated physical and sexual violence, harassment and long periods of time spent in isolation. are at risk.
With a violent criminal record, in addition to a brutal sexual assault and murder, including outstanding charges for assaulting a woman with a metal bar and a security guard with a wrench, Murillo’s case is an extreme example where he Exceptions can be implemented.
Murillo was transferred to a women’s prison in the provincial system earlier this year, months before the trial began in July, in line with Ontario’s policy to keep inmates in prisons consistent with their gender identity, until that they would not choose otherwise.
(Murillo’s lawyers requested that his jury had not been informed of the transfer, and referred to Murillo as a man and by male pronouns both during the trial and after the sentence was decided. After the trial, Murillo’s attorney, Brian Ross, declined to comment on whether his client wanted to be referred differently going forward.)
Like Ontario’s policy for provincial prisons, the interim policy for federal prisons introduced in 2017 requires that prisoners be held in prisons based on their gender identity, “regardless of their anatomy or identification documents.” without doing it.”
The 2017 rule completely replaced a policy based on whether the prisoner had had gender-affirming surgery. But trans offenders are still appointed “on a case-by-case basis as part of a thorough intake process to ensure the dignity, rights and protections of all offenders, including considering the offender’s health.” Appropriate measures should be taken to respect the needs, safety concerns, access to corrective interventions and support in the community,” said a CSC spokesperson.
CSC did not comment specifically on Murillo’s case, citing confidentiality.
For prisoner-rights activists, however, the exception to transfer women is inherently discriminatory and dependent on biological determinism rather than the prisoner’s specific circumstances.
Jennifer Metcalf, executive director of Prisoners Legal Services, said: “Cissender women do not have to prove that they are not going to pose a safety risk to other women, even if their crimes involve violence against women. ” “If a person has a security risk, it can be managed using security classification levels within the institution that match that person’s gender.”
After all, Canada’s prison system has maximum security facilities for both sexes. Certainly, a women’s facility should also be able to manage the highest-risk cases, she said.
The criteria for exception are also poorly defined, and risk assessment is often based on speculation and stereotypes, she said, explaining that the result is some trans women in men’s prisons, where they are more likely to be subjected to violence and harassment. From both prisoners and guards.
The 2017 policy change also provoked backlash from transphobic and other groups, who argued that it undermines the protection of women’s institutions to admit trans women, especially those convicted of sexual assault or violent crimes. has gone. Earlier this year, a group of current and former female prisoners called for a ban on transferring trans women to women’s institutions, claiming that violent men were exploiting the policy to victimize women.
A 2020 report from The Office of the Correctional Investigator found that sexual violence in prison is a serious issue that is underreported and poorly tracked, with limited data about perpetrators. Report found that transgender prisoners are at high risk of sexual harassment and discrimination and recommended a specific strategy to protect LGBTQ individuals.
The CSC has defended the security exception in court, arguing that women’s prisons are designed to be less secure than men’s – to show that women are not considered to be as physically dangerous as men and are almost are always the victims of trauma and violence – and therefore are not able to accommodate some trans women who are classified as high risk.
In 2019, Federal Court Justice Sebastian Grammond found that the government was wrong to deny a transfer to a trans woman, which was deemed too high a security risk. The government offered no evidence that trans women, in general, pose a greater security risk than cisgender women, with Grammond warning against speculation, which she called “fertile ground for discriminatory bias.”
The government argued that “considering the infrastructure of women’s institutions, the survival risk of a man with a male anatomy, even if he identifies as a woman and is transitioning to become a woman, is his May be different based on physical abilities and muscle mass. Strength linked to her male chromosomes.”
In his decision, Grammond criticized the government position, claiming that “we should not treat trans female prisoners as women because the risk they actually present is tied to their biological sex”. – stating that even under current policy a prisoner who had sex-affirming surgery prior to incarceration would still require an evaluation before being placed in a women’s institution.
“In short, for (CSC), chromosomes take precedence over gender identity or expression,” he wrote.
That inmate, Jamie Bolachnis, was convicted of first-degree murder in Montreal in 2016 and classified as having a high risk of escape after previous escape attempts. She was diagnosed with gender dysphoria in 2018 while in custody at a maximum-security men’s prison, but was repeatedly denied requests to transfer her to a women’s prison. After receiving “threats against her life and safety” and being placed in isolation, she filed for an injunction in federal court.
Grammond ordered his transfer, but noted the possibility of a different outcome, for example, Boulachnis was considered a dangerous criminal with a high probability of violent re-attack.
However, his decision was overturned by the Federal Court of Appeals, which agreed with the federal government’s argument that Bolachanis risked an escape that could not be accommodated in a women’s prison, even Maximum security too. The CSC determined that the facility would be equivalent to a men’s-only medium-security prison, the judge said.
Boulachnis was later transferred to a separate maximum security men’s institution where he was kept in isolation and later testified that he had been the victim of sexual violence and harassment. The CSC earlier this year transferred her to a women’s prison following gender-affirming surgery.
One of his lawyers, Sylvie Bordelis, said no reason was given by the CSC as to why his surgery would immediately change that risk assessment. “One day she was too dangerous to be in a women’s institution. The next day she had to be in a women’s institution,” Bordelis said.
“Even though CSC pretends they’re trying to respect the charter and gender identity, basically whenever there’s a security issue they can avoid following that person’s choice.”
Alexandra Paquette, a lawyer representing Bolachnis in federal court, said CSC is making similar arguments in another case where her client is being denied transfer to a women’s prison. Because it is considered a risk to escape.
These cases show that the CSC is “hiding behind (security) exceptions,” she said, adding that despite the new policies, the culture in Canadian prisons is focused on surgery rather than gender identity.
“When I took Jamie’s case in 2017, I read the interim policy and was like, OK this is easy,” she recalled. “Next thing you know we’re in 2021 and she was still suffering.”
CSC’s 2017 policy is still an interim rule, and the service is in the process of developing its own guidelines for the “management of offenders with views of gender identity or expression”.
If it was up to Metcalf, the security exception would have gone away, even in the extreme…