“The opposite of compassion is not hatred, it’s indifference.”
–Anonymous prisoner quoted by Human Rights Watch
In response to Ezra Klein’s two posts on prison rape yesterday (which themselves relied on a 2001 Human Rights Watch report), a lot of bloggers are discussing prison rape today, and past posts are being linked again. Here are quotes from some of the blog posts I’ve been reading:
Ezra:
I understand why this is a politically tough issue: There’s no political upside to helping criminals, and the prison guard’s unions are terrifically powerful on the state level. But politically tough as it may be to address, it’s morally abhorrent to ignore. And we have to remember: Every single time we sentence a suspect to jail time, we are tacitly consenting not merely to his imprisonment, but to his savage sexual assault, with all the physical and psychological damage it will bring.
If you want to get involved, or donate money, or learn more, Stop Prisoner Rape is the leading organization on the issue. Their website is here.
Simple indifference aside, there are two obvious barriers to eliminating prison rape. The first is that most of the remedies are controversial (incarcerating far fewer non-violent offenders) or very expensive (building less crowded prisons, providing much higher pay and better training and supervision of prison staff, or radically improving monitoring of inmates).
And the second barrier to change is the really dirty little non-secret underlying tolerance of prison rape: the idea that it’s an effective deterrent to criminal behavior.
This “walk the line or get raped” attitude has undeniably been prevalent on the political Right, where for years politicians have railed against so-called “country-club prisons” and suggested that inmates deserve the most barbarous conditions imaginable. (There has to be a special place in hell for conservatives who want to criminalize loving, consensual gay and lesbian relationships, while smiling upon prison rape.) But it’s also found implicit currency elsewhere, among virtually every advocacy group that wants to deter some anti-social behavior, from drunk driving to white collar crime…
Robert at Lawyers, Guns and Money:
To add briefly to the point that Ezra has made, one of the most irritating aspects of CSI (which, sadly, I have been unable to break from) is the common, almost offhand manner in which the heroes threaten suspects with the prospect of rape in prison. It suggests to me that the public at large has simply concluded that a) rape is an integral part of prison life, such that a five year prison sentence automatically includes five years of rape, and b) that anyone who goes to prison is irredeemably besmirched, and thus deserving of constant rape.
To take this a bit farther, it’s interesting to compare modern conceptions of prison (sadly or no, I’ve never seen Prison Break) with the work of Johnny Cash or Merle Haggard. For Haggard or Cash, that a poor white family would have to deal with the prison system in some fashion was simply a fact of life, even if Cash himself only spent one night behind bars. Moreover, neither Cash nor Haggard dodged the question of guilt; even if the protagonists of their songs weren’t going away for life, they were usually guilty of something. At some point (probably as the War on Drugs saw a steady increase in the incarceration percentages of young black men) the idea that white people would have to deal with prison became alien. Is there music or other art today that deals with the possibility that guilty white folks might spend time in prison, and thus that prison should be made at least survivable?
…Giving someone HIV and subjecting them to rape, assault, and torture is inhumane, it’s illegal, it’s immoral, and, in this case, it is completely incommensurate with the offense. It’s appalling what goes on in our prisons. I saw another piece on American prisons on 60 Minutes last night. A prisoner with mental problems was allowed to die of thirst in a Michigan prison. They were strapping him to his bed for 18 hours a day. They caught his death on tape.
It’s interesting, by the way, to see how different the comments threads are from typical rape threads. No one is suggesting that rape victims in prison are “crying rape” for ulterior motives, for example.
Also, although no one is saying, “Hey—if people don’t want to get raped, they shouldn’t commit crimes for which they’ll be sent to prison if convicted,” unfortunately its absence isn’t because that sort of victim-blaming isn’t operative, but, instead, boasts such wide tacit agreement that it isn’t even worth saying. There are plenty of people (including progressives) who simply don’t blanch at the thought that rape is a likely part of any prison sentence.
I’ve heard that attitude ascribed to many things, from ignorance of the prevalence of prison rape to contempt for the rule of law, but I suspect the predominant quality which most closely tracks with holding the position is never having been raped oneself.
A recent ACS Issue Brief by attorney Deborah Golden warns that a federal law intended to prevent frivolous suits by prisoners involving such issues as “insufficient locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and yes, being served chunky peanut butter instead of the creamy variety” may also shield prison guards who rape prisoners from being sued by their victims. Under the Prison Litgation Reform Act of 1996, prisoners may only bring suits if they can demonstrate a “physical injury,” but the law does not define whether or not rape is such an injury.
Julian Sanchez at Hit and Run in 2003:
In the case of prisons, the state is at least a partial agent of the harm: It establishes the prisons in which convicts are confined and removes the ability of inmates to defend themselves against the felons with whom they’re compelled to coexist. You don’t get to throw someone naked into a pit of bengal tigers and then proclaim, with a look of wide eyed innocence, that it’s nothing to do with you if the guy gets mauled to death.
If you asked me what issue Americans will see in retrospect as the greatest unacknowledged barbarity of our time, I would nominate prison rape, which is not only tolerated but frequently encouraged within our prisons and is still the subject of jokes in popular culture and politics.
We spend a fair amount of time talking about detainee treatment and Guantanamo. But there is no greater, or more common, human rights abuses in America than those occurring in our overcrowded, constantly expanding, jails.
Ezra Klein wrote a series of posts on Prison Rape that are really worth reading. As it happens, my roommates were busy cracking jokes about prison rape while I was reading them, and I kind of flew off at them. Accuse me of having no sense of humor, if you will (and they did), but when the conceptualization of a problem as a popular joke is one of the key barriers to fixing it, I don’t think it’s a neutral action to play right into that structure…
Agorophilia, from 2004:
I’m still appalled that prison rape is not taken at least as seriously as the death penalty, given that (a) it’s imposed without regard to the severity of your offense, (b) no judge or jury officially approves of the sentence, (c) it’s systematically inflicted on the weakest and most vulnerable of prisoners, (d) the transmission of HIV can make it a de facto death penalty, and (e) it occurs at least an order of magnitude more often than the death penalty. Why isn’t allowing prisoners to be raped considered cruel and unusual punishment?
When I presented my position to a group of college students this summer, most of them libertarians or libertarian-leaning, I was surprised by their willingness to defend prison rape. They relied primarily on a loosely intent-based argument: that while prisoners may unfortunately get raped, that is not the state’s intent when it jails them…
Faith at The Point:
Prison rape is very much a taboo topic. Although rape is a horrific crime, the media has no qualms about reporting on the topic, but when it involves inmates, considered the scum of society, suddenly no one is interested. “They deserve what they get. Let’s leave it at that.” This speaks volumes of the de-humanized way we view those individuals within our justice system. But let’s not forget that those individuals are people, mothers, fathers, sisters, brothers. It is true that many have committed heinous crimes, but allowing rape to occur within the walls of an institution promotes chaos.
Note in the [Human Rights Watch] report how the officer simply tells the raped prisoner to find someone who will protect him. When you hang out with the Muslims in prison, they will not rape you. I’m not sure how easy it is for a non-Muslim to gain entry to the Muslims, but someone who has some Muslim leanings, or knew a Muslim on the outside, its not that hard. And again, Muslims in prison might be all hardcore, but THEY DO NOT RAPE (and they don’t let theirs be raped either). So, let’s see, you got a prison system that is turning ablind eye to rape and violence, and you then you got a religion inside the prisons that protects you from those two evils. And people wonder about the spread of Islam in US prisons.
From a 2004 article in Legal Affairs (curtsy: Instapundit):
Many other films and books have also invoked the specter of prison rape; to say that it is an unacknowledged problem in American culture is clearly inaccurate. Yet while our culture may not be bashful about discussing prison rape, it has, for the most part, portrayed it as a problem with no solution. Evocations like the one in 25th Hour aren’t meant to inspire outrage in the moviegoer; they’re meant to stir up fear. In films like Lee’s, or Curtis Hanson’s L.A. Confidential, rape is a fixture of prison life as unavoidable as lights out. In Hanson’s film, it’s a convenient shorthand for all the potential horrors of prison that can be used by detectives to extract confessions—from innocent suspects, no less. […]
Compiling statistics on prison rape involves the same pitfalls as compiling conventional rape statistics. […] The most authoritative studies of the problem, conducted by the University of South Dakota professor Cindy Struckman-Johnson, found that over 20 percent of prisoners are the victims of some form of coerced sexual contact, and at least 7 percent are raped. Extrapolating from Struckman-Johnson’s findings suggests that some 140,000 current inmates have been raped. […]
Despite its prevalence, prison rape has generally been treated by courts and corrections officials as it has by novelists and filmmakers—as a problem without a solution. Prison rape is rarely prosecuted; like most crimes committed in prison, rapes aren’t taken on by local district attorneys but left to corrections officials to handle. When inmates seek civil damages against the prison system, as Johnson has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference”—that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.
This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.
The quotes above, and the links below, are from both right and left bloggers; this is a curious case where it appears that everyone agrees, yet nothing ever gets done.
Other bloggers discussing prison rape (not a complete list by any means):
Formal Dressage Required (good post about the schizophrenic media approach to prison rape).
Echidne
Outside The Beltway.
Unfogged (“I’m so ashamed to have joked about this.”)
Rserven at Daily Kos (the writer was at one time a “correctional specialist” in the armed forces).
Dr. Mellisa Clouthier
Asymmetrical Information
Christopher Hayes
Some Guys Are Normal (the blogger implies he’d commit suicide before going to prison).
Patrick at Making Light.
Julian Sanchez (again)
Agoraphilia(again)
Live From Silver City (discussing a prison gang-rape case currently in the news)
David Archer
Rev. Chad (this post collects quotes from prisoners)
Further reading: If you have time, you may also want to read through this 300+ page ethnographic report (pdf link), by Mark Fleisher, on attitudes and beliefs about prison rape by prisoners. (Curtsy: Corrections Community.) And also this considerably shorter (15 pages) report from Notra Dame Law School (pdf link). And, needless to say, HRW’s 2001 report.
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Part of the problem is the ever constant need for some to make political hay out of an issue that requires direct attention from all. The “special place in hell” remark not only diverts attention to misrepresent conservative positions on gay rights but also slanders victims’ rights and law and order communities as smiling upon prison rape. Nonsense.
I have seen, read and observed enough liberal feminists glorify the coming torture that an accused rapist will receive in prison to understand that this is a problem that all are responsible for neglecting.
Please, let’s agree that prison sexual violence is a disgrace, a public responsibility and work from there.
Attempts to gain political mileage are not only wrong and wasteful, they are objectively hypocritical.
This is an excellent round-up of a sensitive subject that seems to lack a lot of substantial discussion in the media. On the other hand, the statistics mentioned in one of your blockquotes said that only about 7% of prisoners have been actually raped, while about 20% have suffered some form of coerced sexual contact. I would imagine that far more than 20% of prison guards are subjected to death threats, being spat on, or actually being assaulted while on duty. I think that the systemic problems within the prison system that allow prisoner-on-prisoner rape also allow abuse by prisoners of guards.
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Well said. I’m a libertarian (and socially quite conservative), but (a) I am entirely against prison rape; (b) I have never met a conservative who wants to criminalize consensual gay behavior. Let’s put aside the typical partisan sniping on this issue and work together to solve the problem.
Amp, thanks for focusing on this.
ok, This issue scares me (a lot) as a skinny yet in shape (145lbs) white male w/ effeminate facial features.
This is a public health issue considering the STDfactor, a constitutional issue as a violation of the 8th ammendment, and an issue creating conditions conductive to violence against law enforcement officers.
the Sexually transimted diseases of prisoners do not dissapear after they are released, not to mention, A jail/prison environment that encourages rape is unconstitutional under the 8th ammendment. surly such an environment violates *all four* standards set by Furman v. Georgia(1972) where The “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture, or
1″A severe punishment that is obviously inflicted in wholly arbitrary fashion.”
2″A severe punishment that is clearly and totally rejected throughout society.”
3″A severe punishment that is patently unnecessary.”
Also, the reality of prison rape puts law enforcement officers at greater risk.
For example, I’m young, white, skinny and have some effeminate facial features.
I also know that class III body armor and an Ar-15 would cost ~$1000.
um yeah, i fear not only one and that the death of one law enforcement officer costs the state ~1.3 million dollars.
Perhaps the reality of Prison rape is a taxpayer issue as well.
correction: “um yeah, i fear not only one and that ”
should read: “um yeah, I frae I’m not the only one (who knows that military grade ordinance is cheap and easy to use, as it only takes a few sessions to hit moving targets at ~200 yards w/ an ar-15)
“Attempts to gain political mileage”
Which your comment, you know, isn’t?
“Which your comment, you know, isn’t?”
Correct. Unfortunately, in order to combat misdirection, one has to point it out. Thanks for providing another example.
Are we going to do this forever, or do we decry sexual violence in prison?
I think there are two important factors, both secondary to public neglect, that have much to do with the problem. The first is monetary, that is, the cost of additional manpower and infrastructure. Second is the fact that the surest solution to the problem, to remove prison predators from the rest of the population permanently, requires even more of the human isolation that any humanitarian feels uncomfortable imposing on another. But we do it for those who murder in prison and we need to admit the need to do it for those who commit sexual violence.
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“Are we going to do this forever, or do we decry sexual violence in prison?”
Ah, such naivete. How refreshing.
The majority of rapes committed against female inmates are by male prison guards. I had talked to some teenaged women who did stints at CYA which is the youth prison in my state and they’d been interviewed in a wide-sweeping investigation involving guards raping teenage female inmates. Investigations unfortunately are much rarer than rape in prisons or CYA.
I believe that it’s the same systemic problems within the penal system that allow that along with prisoner on prisoner rape.
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Here’s a couple of recent papers on the subject: Within the Walls: An Analysis of Sexual Harassment and Sexual Coercion at Naval Consolidated Brig Miramar, and The Culture of Prison Sexual Violence.
RadFem write:
To some extent this is, no doubt, true. There are prisoners who are extremely vulnerable to prisoner-on-prisoner rape and my experience with the penal system is that the system isn’t willing to deal with the problem.
On the other hand, without saying it’s okay, rape within the prison system seems unavoidable, short of 24/7 lockdown with all prisoners being kept separate. Do that, and there will be lawsuits about cruel and unusual punishment. Don’t do that and the same thing will happen. Not that this excuses what happens, but prisoners are in prison for a reason and some of those reasons do include violent crimes. In my opinion the penal system primarily fails because it doesn’t adequately distinguish between violent offenders and non-violent offenders. As I understand the system, the penal system also doesn’t treat offenses within the penal system the same as ones outside — a rape inside a prison isn’t going to result in the same treatment of the offense as a rape outside a prison.
So, as I understand it everyone commenting here (left, right, and center) thinks this is an ugly thing.
Great. Now what?
I’m serious.
The most substitive comment on what to do seems to be separating out violent and non-violent offenders. So, what should that entail? A different wing? A different (maybe more high security) prison entirely? What about someone who was violent in the past and just got re-incarcerated for a DUI? How do they get classified? And how, exactly, does this end up eliminating or reducing rape? If these inmates are segregated out of the more non-violent offenders, how do we now protect them from each other? Or do we decide that these guys just deserve what they now get, which seems to be the entire perception problem we now face?
I think one of the only differences is that second degree murder at least in my state is only capital offense in certain circumstances and one of them is if an inmate is serving for first degree murder and kills an inmate in prison. So in that instance, second degree murder is treated more harshly than it is in most other instances on the outside, but still that’s involving individuals who have already been convicted of murder.
Is it always the most violent offenders or because of the violence of prison culture do more nonviolent criminals also become conditioned to behave in this way? Because quite a few nonviolent prisoners come out of prison much worse and often violent than when they went in, including gang members who were convicted of participating in crimes as accessories without committing the actual crime(i.e. someone who drives a vehicle used in a murder can be charged with murder)
You would have to rehaul the entire penal system, probably our society and how it views prisoners and the penal system to change things.
Do you want to end 90% of prison rapes? The solution is relatively straightforward: bring back the lash. Corporal punishment is cheap, at least as effective as prison, and does not require us to take on the moral culpability of housing burglars with rapists.
Taking what Radfem points out farther…if second-degree murder committed in prison gets a harsher punishment, let rape committed in prison do as well–confinement to solitary.
What is needed is a deterrent, and one of the few ways to punish prison lifers that will actually hurt is solitary. A rape ought to get the perpetrator some fixed (long) time in solitary, with repeat offenses carrying solitary until release. They won’t be able to harm anyone else and they’ll still be around as an example.
Do you want to end 90% of prison rapes? The solution is relatively straightforward: bring back the lash. Corporal punishment is cheap, at least as effective as prison, and does not require us to take on the moral culpability of housing burglars with rapists.
physically brutalizing a prisoner in order to ‘protect’ them from the brutality of a prison rape is a pretty bad solution. i prefer the option of isolating the prison rapists because it focuses punishment on them and not their potential victims as jae suggests.
We’ve also recently posted on this topic at Masculinities in Media, at the attached web address. Here’s a piece of the post:
A report recently issued by the Department of Justice detailed increased rates of sexual violence in U.S. prisons. Quoting from an article in The New Standard:
Based on the records of system officials, the federal Bureau of Justice Statistics (BJS) reported that 6,241 incidents of sexual misconduct and violence took place in 2005, or almost 3 violations per 1,000 inmates nationwide. Fifty-five percent of incidents were described by the report as “sexual misconduct” or “sexual harassment” perpetrated by staff against inmates, while 45 percent involved inmate-on-inmate “coerced sex acts” or “abusive sexual contact.”
This information has the potential to feed into a number of common misconceptions about rape and men in prison. They should be addressed before getting into the implications of the report itself.
First of all, we only hear about male survivors of sexual assault within the context of prison (we all know the “don’t drop the soap” joke). This is a convenient way for us to distant ourselves from the reality that men are raped outside of prison cells, in our communities, by fathers, community leaders, brothers, cousins, friends, lovers. Statistics on prison rape can also feed into a second misconception – of men in prison. Not all men in prison are violent and hyper-sexualized, or submissive and taken advantage of. Consensual sex does occur in prison, and as The New Standard addresses in their article, more often than not the violence is born from the institution and its staff rather than from prisoners.
As the US prison population surges past 1%, this issue becomes more and more important to the population at large.
In addition to fighting prison rape, I think we should also focus on fighting prison STDs. Only one US state allows prisoners access to condoms. HIV rates in prisons are alarmingly high. Given the disproportionate numbers of african american men in prison, this is turning into a genocide against the black community.
What we want for prison sex is the same thing we want for all sex: safe and consentual.
Back to the main point, I think there may be parallels between fighting prison rape and the fight against marital rape. It needs to be seen by general society as wrong. I think loudly complaining about prison rape jokes in the media might help this.
Making Light has another discussion of prison rape and neglect.
One aspect of this issue that I haven’t seen addressed is that prison rape not only unjustly punishes someone who is (presumptively) guilty of something — an argument which some find all too easy to ignore — but also rewards through sexual gratification the violent, exploitive predators which prisons are avowedly set up to punish. The whole dynamic strikes me as the ne plus ultra of patriarchal exploitation.
I wonder if this ‘rewarding of bad behavior’ meme might be persuasive (or at least eye opening) to some of those folks who would otherwise adopt a ‘they’re criminals, they deserve what they get’ stance.
Yet another problem I can’t do anything about.
Hiya Ampersand. Thanks for this post. It’s been awhile since I’ve been a frequent commenter at this blog. Volokh linked to this post. the following is what I posted at volokh. (if I’d drafted the post for this blog, it would have had less stuff about the law, more about policy, publicity, and my personal experiences. One doesn’t have to be a lawyer to help fight CCA – bloggers and muckrakers ahve a role too. )
arbitraryaardvark (mail) (www):
A couple of years ago, I spent a month as a pre-trial detainee in a CCA (corrections corporation of america) facilty in indianapolis. I wasn’t raped, but I was assaulted by inmates and tortured by guards. I met at least one guy who was raped while there. Others had been mauled by dogs or maimed by prisoner violence. The trumped-up charges against me were later dismissed -it’s punishment first, trial later if ever. I think the prosecutor would have been thrilled if I’d been raped. I’ve been a frequent commenter at this blog for years. I’m a libertarian actist, a civil rights attorney, a vegetarian due to my commitment to nonviolence. Was I at risk? You betcha. I’m also a slim queer white guy; that didn’t help.
After a few weeks of no medicine not much food not much sleep, I was emotionally distraught which is exactly what the bullies pick up on – the trick to survival in jail is to appear calm cool and collected.
I have a federal suit pending against the jail, that isn’t likely to get far unless I get some competent counsel. While I’m a member of the bar, I don’t have any trial experience,and I’m up against the BigLaw firm and a judge who so far isn’t very receptive to a pro se prisoner suit.
My goals are to either or both recoup the costs of the ransom I paid to get out and the legal fees of getting the false charges dismissed, and/or make some changes in how the private jail handles prisoner rights and prisoner safety issues. This is an opportunity for those of you who are lawyers to do something about it, whether motivated by pro bono concerns or the hope of collecting an award of legal fees and or a cut of whatever damages you could win or settle for. I can be reached at gtbear at gmail dot com. Details of the suit and of my experiences on request.
Sincerely, Robbin Stewart/Arbitrary Aardvark.
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