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Indigenous woman sues ACT over forced strip search her legal team alleges amounts to ‘torture’

·6 min read
<span>Photograph: Lukas Coch/AAP</span>
Photograph: Lukas Coch/AAP

An Aboriginal woman sexual assault survivor with a serious heart condition who was forcibly strip-searched by a team of prison officers is suing the Australian Capital Territory government for breaching her human rights, arguing that her treatment was degrading and humiliating and amounted to torture.

The woman, who cannot be named, had just been denied permission to attend her grandmother’s funeral and moved to the crisis support unit of the Alexander Maconochie Centre, when a team of prison staff, one of whom allegedly had a knife, decided to forcibly strip search her, according to a statement of claim filed in the ACT supreme court.

Before they entered the cell, the woman was lying on her bed in a “calm state”, according to the court documents.

The 37-year-old Ngunnawal woman has a pacemaker and a collapsed lung. She screamed for help, told the officers she was having pains in her chest, and warned she couldn’t breathe, according to the court documents.

One officer asked colleagues “who’s got the knife?”, before saying to the woman, according to a transcript contained in court documents: “If you comply, I’ll get them [your clothes] off you and we’ll get this over and done with.”

The knife was intended to be used to cut off her clothes, according to court documents.

CCTV vision of the strip-search was allegedly watched live in the jail’s operation room.

The detainee also has borderline personality disorder and is a sexual assault survivor. She had been on remand at the Alexander Maconochie Centre, a facility that is supposed to be human rights compliant, for six months when the incident took place.

No medical advice was sought about whether the strip search was safe, given her medical condition, or appropriate, court documents allege. There was also no medical assessment of the woman prior to the strip search.

Related: Aboriginal woman in ACT prison alleges she was stripped naked in front of male inmates

A team of 12 prison officers were either in or near the cell during the search, including two males who were in “the immediate vicinity” of the woman, according to both court documents and a separate independent report on the incident.

Other inmates in the unit could hear what was happening.

The court documents allege the search was triggered by an officer who said she had seen the woman with her “hands in her crotch area”.

The officers found nothing on the woman. The court documents say the officers realised after the search she was having her period.

The woman outlined her version of events in a letter seen by Guardian Australia earlier this year.

“Here I ask you to remember that I am a rape victim, so you can only imagine the horror, the screams, the degrading feeling, the absolute fear and shame I was experiencing … as well as the grief and despair, disappointment of not being able to attend my grandmother’s funeral,” she wrote.

In early January, she was told her grandmother had died and the funeral was being held in a week’s time. The woman said she asked permission to attend and “completed paperwork” to make the request official.

The day before the funeral, she was told that “due to logistics” the request was denied, which caused her to become “very upset”. She said prison staff moved her to the Crisis Support Unit, or CSU, “because they fear for my safety and mental health”.

Earlier this year, the ACT’s Inspector of Correctional Services (ICS) released a report finding there was a lawful basis for the search, but that it was “not a last resort as required” by the territory’s Corrections Management Act and that it did not comply with the territory’s Human Rights Act.

It reviewed footage showing the woman telling officers she “cannot breathe” at various times while detained.

“During the use of force there are up to 12 staff in the immediate vicinity, some at times enter the cell, and others stay by the door or in the corridor outside the cell,” the report said.

It found the two men involved were not directly watching the strip search but were in the vicinity.

The case now launched by the woman, through her lawyers Ken Cush and Associates, alleges that the strip search violated the ACT’s Human Rights Act.

It alleges the search breached her right to be protected from “torture and cruel, inhuman or degrading treatment” and her right to be afforded “humane treatment when deprived of liberty”.

The case also alleges her treatment by the prison, particularly the decision to refuse her request to attend her grandmother’s funeral, denied her cultural and other rights afforded to “Aboriginal and Torres Strait Islander peoples and other minorities”.

Winnunga Nimmityjah Aboriginal health centre CEO Julie Tongs said authorities needed to be held accountable for their treatment of the detainee.

“Somebody needs to be accountable. [Name removed] was held accountable for what she did and went to prison. Yet, institutions can be the perpetrators and get away with it,” she said.

Tongs said the ICS report was damning, outlining failures that needed urgent attention.

“There were so many failures and breaches of the Human Rights Act and the corrections act. And yet, nothing changes. Nothing happens. One of the recommendations was for another body scanning machine. Why didn’t they have body scanning machines already? They should be installed. They should be there. But it just seems like it’s an everyday practice to strip search women and men coming in and going out of the jail. I just don’t get it.”

Tongs said the woman has been traumatised by her experience.

“We’re providing all support we can from Winnunga and she’s got family as well, but people just don’t take seriously enough what’s happening here in the ACT in the prison, and that’s why we need a royal commission.

“[Name removed], she’s having good and bad days, and she will for the rest of her life. But you know, the end of the day, she did nothing wrong. They were the perpetrators and they need to be held accountable.”

“She comes from a strong Aboriginal family and with strong cultural values and for her that would be devastating. And particularly for her not being able to go to their grandmother’s funeral. How did they think she was going to react? Why couldn’t they de-escalate the situation? But to traumatise her the way they did is absolutely disgusting.”

The ACT government said it could not comment on the matter while it was before the courts.

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