The emotional and sexual life of detainees. A reflection on the right to private life in prison

According to the established case law of the European Court of Human Rights, prisoners retain the exercise of their fundamental rights, apart from the right to liberty. In practice, imprisonment inhibits the ability of these individuals to establish or cultivate emotional or sexual relationships with free partners. Nonetheless, Article 8 of the European Convention on Human Rights prohibits unjustified deprivation. On the one hand, unless there are exceptional circumstances characterized by the existence of a serious risk, prisoners must be allowed to receive visits from a partner – to see and touch them – at regular intervals and for reasonable periods of time. Temporary bans on visits or the use of special features, such as separating the detainee from his or her visitor by a glass window equipped with a intercom system, must remain the exception. On the other hand, the same provision of the Convention has limited legal effect with regard to the sexuality of prisoners. Indeed, Article 8 does not impose any obligation on States to facilitate private interactions between prisoners and another person, temporarily exempt from direct supervision (“conjugal” visits). However, States can be expected to respect the prohibition of discrimination by offering in principle the same opportunities to all prisoners when they have introduced the principle of conjugal visits. While the right to a sexual life for free individuals is firmly established, the afflictive nature of imprisonment seems to impede, beyond a risk-based approach, the full development of this right for prisoners.