Analysis of the Sayén Law Project: Some considerations in relation to foreign women deprived of freedom

Abstract

Sayén is the name of the daughter of a Mapuche community member who was charged and who, while in pretrial detention, gave birth shackled and in the presence of male officers of the Chilean Gendarmerie. As a result of this, the so-called Sayén Bill arises, which consists of a parliamentary initiative whose purpose is to modify the Chilean Criminal Procedure Code in two areas. On the one hand, it is intended to modify article 141 and introduce a new cause of inadmissibility of the precautionary measure of preventive detention and, on the other, add a new article 468 bis, which contemplates the suspension of the custodial sentence, both situations related to pregnant women or women who have sons or daughters up to three years of age, a period that can be ex-tended for three more years in certain circumstances. The project does not contemplate the special situation that foreign women in a situation of pregnancy or lactation live or may live. This article addresses the main problems of foreign women deprived of their liberty —to whom, by application of the principle of equality and non-discrimination, it must be applicable— and the problems that these women experience when they are incarcerated become present, and then, intends to take charge of the factual problem that would originate with respect to them when implementing the law, for which this author proposes indications to the project under analysis.