In a letter published in The New York Review of Books, David Kaiser of Just Detention International argues that we could significantly reduce prison rape, if we genuinely wanted to.
“Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform.” We could similarly reduce the incidence of rape in prison.
We know how. To some extent, stopping prisoner rape is simply an issue of better prison management. In facilities where the chief official cares about it, and ensures that his or her subordinates take it seriously, rates of sexual abuse go down dramatically. This is accomplished by, for example, providing vulnerable inmates with nonpunitive protective housing at their request, and establishing confidential complaint systems that encourage inmates to report sexual violence without increasing their risk of future assault or retaliation, from any party.
Perhaps the most important thing detention facilities can do is employ classification systems that effectively separate likely rape victims from likely sexual predators. This requires maintaining basic data about inmates; it also requires training staff to accurately assess incoming prisoners’ various levels of threat and vulnerability. Prisoners placed in protective custody must be segregated by security level. A maximum-security gang member and a sixteen-year-old first-time offender placed in an adult facility may both require extra protection; that does not mean they should be put in the same cell. Recent innovations in facility design are helpful, particularly the use of pod-shaped configurations of cells rather than the traditional rows. But no matter what the architecture, effective surveillance of inmates is essential, and meaningful rehabilitative programs such as GED courses—leading to the equivalent of a high school diploma—which used to be much more common in American prisons than they are now, have been shown to reduce all sorts of violence. […]
Some policies that could reduce prisoner rape need funding. Legislators can help in other ways as well. Overcrowding makes it much more difficult for staff to meet their responsibilities, particularly of supervision. But overcrowding is close to inevitable if we lock people up at present rates. Offering treatment instead of incarceration to nonviolent drug offenders would by itself reduce prisoner rape enormously. In any case, we need laws that increase the independent oversight of detention facilities, and therefore their accountability. And Congress should repeal or at least substantially amend the Prison Litigation Reform Act of 1996, which as DeParle writes “has cut in half the number of inmates filing civil rights complaints,” and which makes it especially difficult for inmates to seek redress for sexual abuse.
The point about GED programs is interesting. Do you know if they studies hypothesize why GED programs reduce violence? Off the top of my head I would think that 1) inmates busy with positive work are less likely to get into trouble in general and 2) they can be used in a non-violent incentive/punishment system – in order to stay in the GED class you can’t have disciplinary infractions, etc.
I work in criminal law, but not prisons specifically, and haven’t heard much about GED programs or other programs reducing violence. Our local jail has a number of different educational and work programs, and is known by some as “the Hilton” of local jails (that may be because they get to watch movies, I’m not sure). Although there is some violence, we rarely hear of the kind of horror stories you hear about from some prisons (and this is jail, not prison, which is different). Also, the showers are right near the deputy work stations.
All of the above sounds like a great set of methods, except possibly this:
effective surveillance of inmates is essential
Increased surveillance of inmates may not be an unmitigated benefit to them, and the Prison Rape Elimination Act as well as Christian anti-prison rape advocacy tends to assume that all homosexual sex in prison must be rape.
…needs to be done with care, so that ending up with the “sexual predator” label doesn’t mean that you end up getting raped. Otherwise the labeling takes on too much power.
In the meantime, I’ll just try my best not to go in prison. I’d be incarcerated with men if I did. Might as well paint a bit target on myself.
I remember there was outrage before that a woman was “treated like a transsexual” (as in, brought into a men’s prison), and the outrage over someone ‘not worthy of that scorn’ being treated like a pariah. But a transsexual woman being treated like that? No biggie, it’s “their fault”.
This seems reasonable to me, but what would your response be if it turned out that black men were being classified as being in the high-threat category at higher rates than white men?
Emily:
The point about GED programs is interesting. Do you know if they studies hypothesize why GED programs reduce violence? Off the top of my head I would think that 1) inmates busy with positive work are less likely to get into trouble in general and 2) they can be used in a non-violent incentive/punishment system – in order to stay in the GED class you can’t have disciplinary infractions, etc.
Sounds like the same reason people support after school programs for kids. To keep them out of trouble. Not all prisoners are hard criminals that are beyond redemption and some of those that aren’t would more than likely jump at such a chance to get their life straight.
Sailorman:
…needs to be done with care, so that ending up with the “sexual predator” label doesn’t mean that you end up getting raped. Otherwise the labeling takes on too much power.
Agreed. Being labled a sexual predator is damaging enough in the outside world where you might have a small chance in hell of saying or doing something about it. To have that label put on you in prison…?
Disgust and a lack of surprise at how racist the prison system is.
Why do you ask, Brandon? What would your response be?
—Myca
Well, I’ll speak up in favor of this. Too often on the right-wing blogs I see people with the attitude that such a thing is what inmates deserve. Frankly, I’d be interested to see what would happen if a prisoner brought forward a court case seeking to have their incarceration set aside on the basis that rape consitutes “cruel and unusual punishment”.
Increased surveillance of inmates may not be an unmitigated benefit to them, and the Prison Rape Elimination Act as well as Christian anti-prison rape advocacy tends to assume that all homosexual sex in prison must be rape.
I would think that in a prison environment it would be almost impossible to determine whether some kind or another of coercion existed in a sexual relationship.
RonF,
For both of the points you raise, I recommend reading the article I linked in my earlier comment. Short version:
1) prisoners have brought those lawsuits and they’ve tanked on the grounds that the government itself is not punishing them (though this would be different if the guards rather than fellow prisoners were committing the rape), therefore there’s no 8th Amendment violation.
2) in what environment do you think we can be sure that a sexual relationship is wholly free of coercion?
I believe that Ron may be trying to say (but I may be wrong) that the concept of prison rape is so ingrained in our culture (the myths and stereotypes about male sexuality don’t help either) that most people will just assume that all prison sex is rape. Combine that with the attitude that people who are raped in prison “deserve it” (but this is not limited to prisoner victims of course) and you have victims that would be afraid to speak up and since they literally live with their rapist with no way out things could get quite cloudy.
I don’t think he was trying to imply that there are environments that are free of coersion. It seems to me that he was just talking about the particular environment of prison.
Danny,
But I don’t think we should make heterocentrism part of public policy. Our laws should not assume that all homosexual activity in prison *must* be rape, any more than they assume heterosexual activity in a society where women have less money, physical strength, political power, etc. than men *must* be rape. There are certain sexual relationships that have such disproportions of power that we preemptively prohibit them: incest, teacher-student, and so forth. Similarly, prisons should (and generally do) ban guards and other prison employees from sexual relationships with the prisoners.
But I don’t think we should make heterocentrism part of public policy.
Most certainly agreed.
2) in what environment do you think we can be sure that a sexual relationship is wholly free of coercion?
None. But in this case the State is responsible for the environment and thus has an interest and a responsibility that it does not have elsewhere. Add in the issues that everyone in there is a criminal and that they are living together and sleeping in arrangements that are not by choice and it adds up to a problem.
That link is very interesting, and thanks for pointing it out — but I don’t think it supports the claim that the PREA assumes all gay sex is rape. If anything, the paper argues that the PREA is going to have too narrow a conception of coerced sex, focusing on violent rape to the exclusion of other forms of coerced sex.
The paper’s argument for how the PREA will make the problem of sexual coercion worse was, I thought, extremely weak.
But in this case the State is responsible for the environment
Hm. On one level, you’re right: the State sentences prisoners to a fixed term and fixed terms. They can’t run out for a pint of milk; we aren’t supposed to starve them. They can’t go to the ER; we aren’t supposed to let them die of sepsis. They can’t call the cops; we aren’t supposed to subject them to crime.
But I’m not sure this is so different, really–the way you protect victims from rape (or sexual assault, or sexual harassment) is to offer them safe avenues for treatment and justice, protection from retaliation, and the clear understanding that they are victims rather than troublemakers. What we have now is none of the above. Prisoners are blamed for suffering sexual violence, reporting sexual violence, and demanding redress for sexual violence. Their problems aren’t special, and the data referenced in the original post doesn’t seem to indicate that their remedies need be.
Regular citizens certainly enjoy more human rights than your average convict, but that doesn’t mean that law enforcement can argue that they have more freedom from crime or violence. We can’t necessarily opt out of a high crime rate, or a victim-blaming justice system, and I think that similar fuck-em arguments are similarly illogical. Prison-rape apologists–including at least one on this very blog–argue that prisoners can avoid eighth-amendment violations by staying on the right side of the law. It’s humanity that’s the issue, not freedom: nobody should have to protect themselves from violent crime, let alone serial rape. A State whose institutions offer that vulnerability as standard is a State that isn’t earning its keep.
As far as cementing heterosexism…The PLRA cemented prisoners as a special outlaw category; it makes it really, really difficult for jailhouse lawyers to obtain any kind of justice for any crime they suffer as convicts. It seems like the first step would be to remove this stigma: to agree that people in prison are not liars, and that raped people in prison are not lying sluts. That barrier was the traditional one between any raped woman and justice; it’s a good way to institute individuation for prisoners as well.
Well, except that very often people in jail ARE liars – in fact, that in many cases is part of why there are there. Some of them already ARE rapists, a lot more than in the general population. The State is responsible for mixing violent criminals, liars, rapists, etc. as well as non-violent criminals all in one very small and highly stressful environment.
It’s going to be difficult to sort out consensual from non-consensual sex in a prison environment. It seems to me that they only way that they can prevent non-consensual sex in a prison is to ban ALL sex.
Amp,
I was thinking of passages in the article like this that seem to suggest that PREA doesn’t contemplate consensual homosexual activity:
The paper’s argument for how the PREA will make the problem of sexual coercion worse was, I thought, extremely weak.
Where did the paper argue that the PREA would make the problem of sexual coercion worse? I thought its central criticism of the PREA was how hortatory and unconnected to the reality of prison sex the legislation was — an essentially “feel-good” measure for Congress to feel like it has accomplished something without actually doing much. I’d consider the most controversial argument in the article to be its Foucaultian concern for surveillance and control. Instead of focusing solely on solving the problem of prison rape, Ristroph has a larger prison-skeptic agenda.
I’d generalize this to say that we should take a good look at seeing what alternatives to incarceration would produce the desired results of a) giving people an incentive to not commit crimes and b) penalizing people who do commit crimes and have them provide some kind of restitution to society.
Personally, I think public humiliation and manual labor are way under-utilized.
Well, except that very often people in jail ARE liars – in fact, that in many cases is part of why there are there. Some of them already ARE rapists, a lot more than in the general population. The State is responsible for mixing violent criminals, liars, rapists, etc. as well as non-violent criminals all in one very small and highly stressful environment.
It’s going to be difficult to sort out consensual from non-consensual sex in a prison environment. It seems to me that they only way that they can prevent non-consensual sex in a prison is to ban ALL sex.
We used–often still use–this premise to deal with sexual-violence redress in general: sex was forced by one party, or committed by both. Women had to prove not only that they’d been raped, but that were not accessories. This system didn’t address the problem of sexual assault. It made it endemic, especially for certain kinds of women. It didn’t provide an honest picture to authorities, either of rape or rapists. And it didn’t do anything to stop sexual violence or exploitation of social misogyny.
This is also the baseline that has driven sexual-violence-prevention strategies with countless smaller populations–“troubled teens,” for example, and sex workers, and institutionalized patient populations. Sometimes a given group is statistically less honest, less rational, and less respectful of authority. Sometimes the authorities cannot count on their cooperation for reasons unrelated to incompetence. That doesn’t make the liar-liar premise useful for their security. It doesn’t really accomplish anything but open season for sexual predators, because it means that all victims are suspect and that authority has zero obligation to seek truth from categorical liars.
Plus, enforced abstinence has not been terribly successful in any community, even ones that by your own argument are better equipped than the prison population to stay celibate. Criminalizing sex in general will criminalize prisoners in general. (And HIV and hepatitis prevention in particular.) It won’t help differentiate normal human contact from rape, and it won’t make raped inmates more confident of justice. It’ll probably make them wonder if they will face greater formal punishment for coming forward.
Right now, the problem is not that prisoners face too little suspicion. And it’s not that prisoners make too many false accusations. And it’s not that investigators continually exhaust the available evidence. It’s that prison authorities ignore prisoners when they say they do not deserve to be hurt–because they’re convicts, and they cannot expect to be treated like normal rape victims.
I’d add that the concept of sexual assault probably has had run ins with consensual BDSM. I don’t know how prevalent that would be in prison, but any regulation would probably ignore it.
Simply allowing prisoner to assortatively migrate — including cellmate preference — within the prison system would prevent the vast majority of problems. Yes, it would facilitate “gangs” one must remember that gang formation is as much a defensive result of being intimately housed with hostiles as it is an attempt to perpetuate criminal activity within the walls of the prison. One must further remember that organized criminal gang activity within the walls of the prison are carried out under very controlled conditions that virtually guarantee administrative complicity. Administrative complicity is a problem in any case which is made less of a problem by removing from them the power to subject prisoners to torture from fellow inmates by locating them with hostiles.
Moreover, the results of this assortative migration _will_ tend to be racially segregationist — simply by the individual choices of the inmates.
That’s the reality and Human Rights Watch discusses it plainly.
I don’t see the problem with criminalizing sex in prison, as it seems almost like a necessity to prevent rape.
piny, your argument doesn’t really seem to grok in the male prison rape context. The biggest defense to rape is consent, and if there is no consensual sex, there can be no “consent defense.” Note that this does not require charging or prosecuting the victim for being an accessory. (obviously, charging both parties is a problem. You assume we need to do so, and therefore conclude that criminalizing sex won’t work. I prefer the solution of “don’t charge both parties.”
Furthermore, particularly when it comes to penetrative homosexual male sex, it seems essentially impossible to rape someone if you’re in the role of ‘bottom.’ Similarly, it seems difficult to rape someone orally: you can make someone give you a blowjob, but the reverse is tricky.
So not to be too blunt about it, but to me it seems like the general policy would be “if you say you were raped, you get swabbed, and if there’s semen then the perp gets busted.” Or you can report it solo or with witnesses, of course.
Sure, you’ll still have the issue of one-on-one rape with no witnesses and no physical evidence… but that’s simply life, not the fault of the prison.
And you’ll have no consensual sex, unless you are really willing to trust the receiving partner not to bust you. But so what? I mean, why are we really even concerned with consensual sex (much less consensual BSDM) in prison, for chrissakes? Let people have sex when they’re out.
Sailorman,
Similarly, it seems difficult to rape someone orally: you can make someone give you a blowjob, but the reverse is tricky.
This must be peculiar to male homosexual sex, as one of my friends was sexually assaulted by her boyfriend in high school in part through his insisting on performing oral sex on her to which she did not consent.
As for semen as the be-all and end-all of proof, that seems likely to cause assaulting prisoners to keep committing the assaults but pull out before they would release a large amount of semen. How easily can a swab pick up the amount of genetic material left during the course of sex but prior to orgasm?
I mean, why are we really even concerned with consensual sex (much less consensual BSDM) in prison, for chrissakes? Let people have sex when they’re out.
My parents had the same idea about sex and dating for when young people are in school: why are they doing this when they are supposed to be learning? let them have sex once they have gotten an education and settled down. This of course got them treated as crazy by Westerners who grew up on Romeo & Juliet as a cultural icon.
I agree with PG. And your argument (Sailorman) seems to hinge on the “dominant equals perpetrator”, which is what seems to fuel the notion that all heterosexual sex is rape (where the male is perpetrator because assumed to be dominant).
Wanting a dominant position in a relationship shouldn’t be subordinate to someone wanting a submissive position in a relationship (or limited to the sex part if you prefer). I’m not playing semantics really. I’m saying that say, me, a submissive woman, wanting to be in a submissive sexual position – is well aware of what will happen, I’m informed. I “choose” that not because I think it’s “women’s place in life” (or just in sex), but because I like it personally, period.
There are people who are masochists. Personally I’m not, and probably could not understand the motive to be masochist, but it doesn’t make them bad people or dupes.
If there is something that happens to which I haven’t consented to, then it is sexual assault – but were I dominant, it wouldn’t change a thing. Unless I’m physically bound and unable to move, there always is room for me to sexually assault my partner.
Schala: we’re talking about prison. So heterosexual sex is not really an issue, as I do not believe there to be any mixed sex prisons.
PG: Yes, I thought I was clear that I was referring to male homosexual sex; sorry if that wasn’t apparent. I’m referring to males at this point because males make up somewhere in the range of 90% of prisoners and (I suspect, though i may be wrong) therefore 90% if not more of prison rapists and rape victims. And I’m referring to adult homosexual sex because that is the only kind of sex available to prison inmates in a unisex prison.
Dunno. I am all for convicting them on other issues as well. My point is merely that in a variety of physical settings there can be a single person to prosecute.
Assigning that role to the dominant male in a male hetero relationship is one of convenience, and takes into account the assumption that consenual sex is banned.
I’m confused as to why you are conflating normal kids with prisoners. Am i missing something?
You’re considering the bottom to be “the woman” of the relationship, in prison. Thus were I found my analogy. Implying guilt upon a purpotedly dominant position does not work, is what I say.
My goal is to stop prisoner rape.
The first criteria to doing so effectively is to stop prisoner sex, thus being able to avoid the consent defense.
You can deter sex by punishing both parties, but that causes a significant deterrent of rape reporting. Conversely, if you only punish one party, then the other party has no disincentive against reporting a rape.
So; who to punish? May as well be the one who has the most control over where his penis ends up. The one putting his penis somewhere can elect (or not) to take the risk of punishment.
While I don’t like the reasoning behind it, I would probably support it in the case of male prison.
The remaining question is then: what about women? I can’t be sure, but I doubt strap-ons are readily available in prison, so you can’t decide who the perpetrator is simply looking for the penetrative partner.
I haven’t the foggiest idea. Rape prosecutions are difficult enough to win. In the case of female on female rape without obvious signs of physical violence, it seems even more difficult because of the physical evidence issue.
I heard (but it might be wrong) that women were pushed to “get a protector” in prison, much the same as it is for men who aren’t all that big or strong physically. The “Never hit a woman” meme obviously not applying to women, it’s not much of a protection against violence to be female in prison. So it makes sense in a way. In exchange of protection, well you can guess how the trade goes.
Sailorman,
I didn’t conflate, I compared. These are not the same rhetorical devices.
You’ve decided that because you find sex in prison inconvenient to regulate, it’s easiest just not to allow anyone to have sex in prison, without mentioning that some people will not be allowed out of prison for decades or perhaps ever. This actually is much harsher than the idea that “normal kids” shouldn’t have a romantic life while they’re young and being supported by their parents — at least my parents had an endpoint in mind for when it would be acceptable for dating and sex to begin. So you’re right, it’s an unfair comparison.
It came to mind because in both situations, one group is under the state-sanctioned control of another, and it’s rather easy for the controlling group to decree that sex is so messy and complicated that it’s really easier for controlling group if the controlled group just isn’t allowed to have it at all under any circumstances.
Assuming that you didn’t violate society’s moral codes by the virtue of existing, your situation as a child was really completely different in a moral sense.
People don’t control whether they are kids; they do control whether they are prisoners (or more accurately, whether they are not prisoners.) They also control, through their actions, the length of time that they will be deprived of normality while in prison. Presumably there is at least some link between the degree to which people violate moral codes and the length of time which they spend in prison.
We have to be more cautious with children because they don’t necessarily deserve to be deprived of stuff. But we don’t have to have the same level of concern for prisoners: although we can’t do anything we want, the balancing of interests is much different.
That might work for prisoner on prisoner rape common in male prisons but will do little in women’s prisons (and youth authority facilities) for men and teenaged girls, because most of these women and girls who are raped are actually raped by guards or correctional officers. Banning prisoners for “sex” might put these women and girls in the position of being blamed for their own rapes if it’s deemed that they are having sex with the guards and correctional officers rather than being raped and often that’s the attitude already since consensual sex essentially is already banned.
I realize this thread is about prisoner rape meaning men who are raped in prison but there’s different populations who are raped in prison and the dynamics are not necessarily the same so the strategies won’t be either.
Some of the strategies listed do make sense for addressing prisoner rape involving men but I’m not sure whether they would be effective at dealing with that serious issue.
No, in large part because of the reasons above.
I’d say all sex could be banned (not should, but could), but that proving who’s the perpetrator could prove harder. Especially since the perpetrator could just force their victim to play the more dominant role by coercion, threat or what not – not even going into what guards could do. It might even be used as a tool to get someone punished just for its own sake.
Are you kidding? Is this really going to have to turn into a discussion of “what lesbians do in bed/no, one does not have to have a phallic object to have sex”?
Or maybe you were taking about the previous commenter who mentioned that if semen was found, rape would be assumed. Are we making semen-ejaculating strap-ons now?
Because the sentence “Let me suck your dick or I’ll kill you” is impossible to utter in English?
With all due respect, I think virtually all the measures suggested in the OP are a better idea than this, Sailorman.
I ask because that’s the answer I expected. It’s almost certain that black men would be classified as high-risk at greater rates than white men. Racism may be an aggravating factor, but the reality is that prison rape (between male prisoners, at least) is perpetrated disproportionately by black men, and disproportionately against white men.
My worry is that when leftists see that such a policy is having a racially disparate impact, you’ll refuse to accept the possibility that there could be legitimate reasons for it, and demand that segregation by risk level be discontinued because the prison system is just too racist ever to implement it fairly.
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Oh come on, Amp: what percentage of rapes do you think involve forcing a noncompliant male victims to receive a blowjob? Be realistic, please.
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