Invasive search (or intimate search) and the Inter-American Human Rights System

Abstract

Among the types of searches commonly imposed in prisons, the most intrusive is the intimate search or body-cavity search (also called “invasive search” and even “vexing search”). This kind of search consists of a physical examination of body orifices such as vagina and anus. In this article, I answer the following main question: are invasive searches compatible with the international human rights protected by the Inter-American Human Rights System? To address this question, I conducted a research in order to identify all the documents produced by the aforementioned system on this subject. The process involved an unprecedented methodology centered on a technique of advanced search in websites. The results show, in sum, that: the Inter-American Commission considered that such searches may, in theory, be compatible with human rights, provided that they meet different requirements; in the specific situations examined later by the Inter-American Commission, the searches being practiced were considered incompatible; the Inter-American Court has ruled a concrete case in which a practice of extreme invasive search amounted to torture through sexual violence. The main conclusion of the paper is that the practice of the Inter-American System as a whole shows that it is very unlikely that invasive searches may be compatible with the protection of the rights of persons deprived of liberty and of their visiting family members or friends.