WOLA: Advocacy for Human Rights in the Americas


16 Feb 2022 | Commentary

Two Contrasting Court Decisions Underscore Need for Gender-Oriented Drug Law Reforms

By Carolina Ahumada

On February 1, 2019, a 63 years old woman, a native of the province of Salta, Argentina, was traveling in a long-distance bus coming from the city of Bariloche bound for the Chilean town of Osorno. We will call her N.C. to respect her privacy. When the bus arrived at the border crossing with Chile, the National Gendarmerie Squadron 34 “Bariloche,” which was carrying out a routine control check, discovered that she was carrying 2.7 kilograms (6 pounds) of cocaine, arranged in four packages that were attached to her body. She was arrested and charged with “attempted smuggling for export, aggravated by the fact that it involved narcotics.” It later emerged that N.C. took this risk as a single mother in need of money to pay for surgery for her son.

According to the investigation, 20 days before, she had crossed from the town of Salvador Maza, Salta, to the Bolivian city of Yacuiba, where she presumably was supplied with the drugs. After analyzing her cell phone communications, the investigators concluded that she “was transporting the narcotic substance in compliance with an obligation imposed by a third party.” Eventually, the prosecutor withdrew the charges and she was absolved by the Argentine court.

A case that ended very differently is that of Claudia S.E, a 33-year-old Bolivian woman who crossed the border into Argentina while pregnant, carrying a little over a kilo (2 pounds) of cocaine in exchange for US$500 that she needed to pay for treatment for her 13-year-old son who was suffering from a femur tumor. Claudia was detained in October 2018 and charged with the crime of transporting substances, which carries a punishment of up to 15 years in prison. She was jailed under pre-trial detention, even though she did not pose a danger of absconding or hindering the case, and was fined 20,000 Argentine pesos (about US$540 at the time). When her son, Fernandito, found out that his mother was in prison, he abandoned his treatment for 3 months and fell into depression. Claudia asked to see her son before he died and did everything possible to get an answer from the Court of Appeals of Salta. After six months of waiting for a resolution, Judge Hansen allowed Claudia to travel to Bolivia and be with her son for 30 days. She would then have to return to prison and await trial. She and her son were together for almost five days until the child succumbed to his illness and died

These two cases illustrate the disproportionate impact of the “war on drugs” on women, and, in particular, on women in situations of vulnerability. Both of these cases involved single mothers with children in need of medical care that they could not afford. As a last resort, they turned to transporting illegal drugs to earn money. Like so many women engaged in high-risk drug-related activities, they were caught—but with two very different outcomes. In stark contrast to how such cases are routinely handled by the Argentine criminal justice system,  the government ultimately dropped the charges against N.C. and the judge absolved her. The government’s rationale for dropping its case against N.C. and the judge’s ruling in agreement could have significant implications for other Argentines in situations of vulnerability who are charged with committing low-level drug offenses, and potentially opening the door for debate on much-needed drug law reforms.


The war on drugs is a war on women

Considering the incarcerated population as a whole, there are far more men behind bars than women. However, studies show that women’s incarceration is growing much more rapidly, and in some cases has doubled in recent years.The numbers of people in prison in Latin America are increasing at a rapid rate, and one of the primary causes of increased incarceration is the war on drugs and the aggressive criminalization of drug-related activity, which falls most heavily on the most vulnerable individuals and communities. 

In Argentina, between 2015 and 2019, the “alleged criminal acts” linked to the drug law tripled from 32,884 in 2014 to 61,746 in 2018 and 98,037 in 2019. From a gender perspective, in just two years (2015-2017), the number of women incarcerated for drug offenses increased by a whopping 42%.

The generalized use of pre-trial detention for those accused of drug activity is even more marked as compared to other offenses, despite the fact that most of those charged with drug offenses are facing low penalties and have no prior criminal record. In Argentina in 2017, for instance, only 30% of women held behind bars for drug offenses had actually been sentenced. Of the 1,539 women in prison for drug-related reasons that year, only 23 had also committed another offense.

Another issue that incarcerated women face is that visits to prisons and the provision of vital items such as food, medicine, money, etc., are commonly tasks undertaken by the women in the family. When a woman is incarcerated, the caregiving tasks for which they were responsible may be passed on to other women in her family, making it harder to split time between these new responsibilities and visiting their family member behind bars. In general, women in prison tend to receive fewer visits and support than is the case of men. This creates even greater difficulties for women who are trying to survive behind bars, reinforcing patriarchal oppression and assigned gender roles.


“Mulas”:  a form of patriarchal oppression

Women become involved in the illegal drug market as a result of unequal power relations with the men around them due to poverty and economic and social marginalization, and even discrimination and racism. In general, women are involved in high-risk, low-ranking drug-related activities, such as small-scale dealing and transportation, and are therefore more at risk of being arrested and imprisoned. In Argentina, 82% of women convicted for drug offenses in 2016 received sentences of up to 4 years. Court sentences show that the main offenses were: commercialization (76%), possession (17%) and smuggling (6%). 

Those responsible for transporting the substances for distribution both within and across borders in exchange for little monetary compensation remain at the lowest link of the trafficking chain because they are easily replaceable labor and their imprisonment has no impact on organized crime. The common, and derogatory, term for these women is “mulas.” As noted, there is no single or unique motivation for engaging in these activities, but a common cause is simply survival for low-income women who often are the heads of household and may have children or family members with health problems or disabilities. Similarly, they may become involved by deception, coercion, or co-opted by drug trafficking networks that, among other reasons, take advantage of their despair and need. The fact that trafficking networks exploit the situation of vulnerability these women find themselves in should be taken into account when drug laws are applied to them. For example, the Brasilia Rules (a key instrument for guaranteeing access to justice and contributing to social cohesion in the Latin American region) established that “vulnerable people are defined here as those who, due to reasons of age, gender, physical or mental state, or due to social, economic, ethnic and/or cultural circumstances, find it especially difficult to fully exercise their rights before the justice system as recognized to them by law.” While the activity to which the “mula” is subjected cannot necessarily be considered a “forced labor or service” in a strict sense, it cannot be denied that it constitutes a very serious form of exploitation. 


An unfortunately common situation, but with a surprising outcome

On July 7, 2021, an abbreviated trial was held for N.C. with the participation of prosecutor Miguel Ángel Palazzani. Representing the Public Prosecutor’s Office, Palazzani analyzed the background of N.C’s case and withdrew the accusation against the defendant, considering that she was a person “who belongs to a socially disadvantaged sector, who was in a ‘desperate’ situation of extreme need due to the economic impossibility of paying for a high-risk surgery that her son needed, and the pressure that fell on her as the main economic and emotional support for her family. Faced with this situation, third parties, abusing her situation of extreme vulnerability, used her to transport narcotics, and in this way, allow her to obtain the money necessary for her son to receive adequate medical attention.” 

In his arguments, Palazzani considered that “a judicial decision that lacks a gender perspective is inadmissible in light of the obligations assumed by the State in relation to the protection of women (under Articles 1, 2 paragraphs a, b, c, d, f and ccts. concordant and consequent) of the Convention on the Elimination of all Forms of Discrimination against Women and Art. 75 inc. 22 of the Argentine National Constitution.”

He concluded that the defendant “played the role of a ‘mula’ in a chain of trafficking in which she was only the weakest link, pressured by circumstances of extreme necessity (poverty, marginalization and the desperate health situation of her son who had to be treated). Therefore, this context must have its due role in the application of a solution that is respectful of the human rights involved.” Palazzani recalled that “in our Penal Code, the state of justifying necessity proceeds when the typical conduct is carried out to avoid a greater and imminent evil,” by virtue of which he withdrew the accusation. Judge Orlando Coscia agreed and ruled N.C.’s case was dismissed. This contrasts sharply with the case of Claudia S.E., where the full force of prohibitionist laws and the criminal legal system came down on her.

The harm done by the harsh enforcement of drug laws on women has been described by  Alejandro Corda who speaks not only as a lawyer, but also as an official in the Argentine criminal justice system for more than 20 years. In an investigation carried out by the Collective for the Study of Drugs and the Law (CEDD, Colectivo de Estudios Drogas y Derecho) published in 2012, he denounced how, although the overall numbers of women in prison are lower than men, there is an overrepresentation of the population of women incarcerated for drug-related crimes. In an interview on January 31, 2022, he highlighted: “Prohibitionism seems to have a greater impact on women,” adding that, “law enforcement has a full impact on them, diluting the symbolic component of the penalty, that of ‘setting an example,’ and filling the prisons with women without criminal records and guilty of minor offenses, such as those carrying drugs over borders, or ‘mulas,’ or being the neighborhood drug dealer.” In effect, prison time only worsens their lives and that of those around them, further accentuating their vulnerability. There is an overlap of vulnerabilities in the highest percentage of women in prison for drug offenses in Latin America: migrants, poor, heads of household, illiterate, transgender.” As for the cases in which judges acquitted or reduced sentences, he points out that “these are attempts made by isolated courts that do not happen in general, basically because the drug law in Argentina has remained the same since 1989. Some within the criminal justice system have begun to try legal constructions to justify exceptions to the law, which is problematic for the criminal system due to the lack of uniformity. What is lacking is an urgent reform of the law that takes up these exceptional rulings and generalizes them.”


Need for drug law reform with a gender perspective

Incorporating a gender perspective into drug policies and drug laws includes taking into account extenuating circumstances in investigating, prosecuting and issuing sentences in drug-related cases. These include poverty and social inclusion, caregiver status, level of education, gender-based violence and physical or mental disabilities, among other factors that may have contributed to the person’s involvement in drug-related activity. The argument put forward by Palazzani on behalf of the prosecution and Judge Coscia’s ruling to absolve N.C. are important steps in this direction. However, the verdict is still out as to whether or not this case leads to a larger change in strategy by Argentina’s Attorney General’s office or will remain an isolated instance.

Year after year, governments spend millions of dollars to incarcerate and criminalize people for drug-related reasons. There is an urgent need to transform punitive policies to ones with a public-health approach, based on human rights and with investments in communities, not prisons. Moreover, given the consequences that disproportionately affect women, it is important to encourage and ensure their participation in the debate on the development and reform of current drug policies to institutionalize a gender perspective so that their fate does not fall solely on the shoulders of a single court, as we have witnessed in the cases of N.C. and Claudia S.E. While a gender perspective is not incorporated by most of the justice systems in the region, the decision in the N.C. case is an important precedent for other rulings to uphold the rights of women.

Carolina is a sociologist from Argentina. She was a WOLA research assistant and is a Project Manager at Youth RISE. She is also the Harm Reduction Program Coordinator at Intercambios, A.C.