Thursday, April 26, 2007

Prison Rape

The current issue of The New York Review of Books includes a letter on rape in prisons by David Kaiser, a member of the board of an organization called Stop Prisoner Rape. Kaiser's short letter notes: (1) how widespread prison rape is (about ten percent of male prisoners are raped, mostly by other prisoners, while an even higher percentage of female prisoners are sexually abused, mostly by guards); (2) how prison rape can be dramatically reduced by effective oversight and reductions in overcrowding; and (3) the dramatic cost that prison rape exacts in terms of physical and psychic harm to victims, as well as the public health cost from the spread of HIV.

I share Kaiser's view that prison rape is a national scandal but would add that a large part of the problem is our culture. Despite having the highest incarceration rate of any constitutional democracy, prisons and prisoners are generally invisible in American public life. When prison rape is discussed, it is generally thought to be a fit topic for humor or a perverse view about justice--as though contracting HIV via rape is an appropriate punishment for selling marijuana or insider trading. At best, prison rape today is evaluated in the way that ordinary rape of women by men was understood forty years ago, when (with the exception of black-on-white rape, which was treated extremely seriously for reasons having more to do with white male racism than concern for female victims), rape was also a fit subject for sexual humor. (Search for the word "rape" and then read a few lines of dialogue from this transcription of the 1972 Woody Allen film "Take the Money and Run" for a fairly standard example.)

Rape outside of prison, including acquaintance rape, only began to be taken seriously when feminists raised consciousness about the harm rape does, and that task is still not complete. Groups like Stop Prisoner Rape aim to do the same for victims of prison rape. Of course, (as even a fairly conservative Supreme Court acknowledged in 1994), nobody, not even a convicted murderer or rapist, should be raped as a form of punishment, but as a tactical matter for winning hearts and minds, it may be necessary for SPR to focus first on the rape of inmates who are entirely innocent or guilty only of non-violent offenses.

14 comments:

Benjam said...

Good for you Michael! This is the kind of issue that needs to be embraced by public-minded scholars and advocates. One of the problems with "interest group" liberalism is that viable groups will never form around certain interests. There will never be an organized lobby for prisoners who get raped. We need public interest lawyers to take up this case.

I amagine that the strongest legal challenge would come from pre-trial detainees, especially the ones who are ultimately acquitted. My understanding is that pre-trial detainees cannot legally be "punished." Do you agree with that? Also, do you agree that there is a viable 8th Amendment argument to be made against a prison that turns a blind eye to the issue?

Adam P. said...

I think there's also a degree of schadenfreude in the public mindset. "You're a bad person, and now you're humiliated by being raped." I think the idea of rape as power makes people think prison rape is ok- prisoners have already lost any power they have, so why should they have power over their sexual autonomy. Finally, I continue to believe that Americans think of male-male sex as "icky". Rather than think about it, they are happy to shut it out of their minds. From a gay rights perspective, one has to wonder if promoting discussion of male-male prison rape might reinforce negative perceptions of homosexual sexual conduct (though they are completely different things).

Michael C. Dorf said...

In response to benjam, yes, pre-trial detainees would have a very strong moral claim---even though nobody, not even a convicted felon can be raped as punishment consistent with the 8th Amendment.

I agree with Adam P's diagnosis of the problem and think that this too is a place for consciousness raising of the sort done by feminists. According to SPR, gay prisoners tend to be raped in prison at higher rates than straight prisoners. To the extent that the reaction to this fact by the straight, non-incarcerated public is "well, so what, they like that sort of thing anyway," it needs to be stressed that whether one is a man or a woman, gay, straight or bi, there is a vast difference between consensual sex and rape.

yonatan said...

It seems prison rape is another facet of the public withdrawal from what was once referred to as the "correction system". American society has lost its faith in correction, and with it has lost all interest in what goes on inside prisons. Prisons, now usually privatized, are treated by the public as a "black box" - lots of people go in, fewer come out, and the only "bottom line" anyone cares about is that of the firms running the prison (because these would ultimately affect our taxes). Privatization gives the illusion that what goes on inside the black box has no moral implications for the state and, through it, to us. This perception is made much easier to adopt due to the clear "otherness" of the prison population in terms of race, social background etc. Most people are comfortable turning a blind eye because they do not feel, or think, that prison conditions affect them or their likes. Until that attitude is changed, prison rape, violence or murder would carry little weight in public opinion.

David C. said...

I wonder how much of the public's apathy toward prison rape is simply a typical resistance toward any measures that might lead to increased taxes. After all, in New York we have constitutional crises over whether the state really needs to provide inner city children with an adequate high school education (Pataki said no!), primarily because suburban and rural New Yorkers would rather their state tax dollars, as opposed to their local property tax dollars, go toward renovation of the public school swimming pool. If our aversion to taxes is so great that we blithely turn our back on children from impovershed communities, then it does not surpsise me, although it does despress me, that we won't shell out the money to reduce overcrowding or increase the number of correctional officers. Sigh.

Benjam said...

SPR seems like a group focused primarily on lobbying and education. Maybe I'm cynical, but it seems to me that prison officials would pay a lot more attention to the matter if a flurry of lawsuits led to monetary awards against offending institutions. I assume that an 8th Amendment violation gives rise to a Sec 1983 action. I also assume that a plaintiff would need to show reckless indifference on the part of prison officials. Are there other legal barriers to litigation on this issue?

Adam P. said...

I think the shame involved in prison rape is what keeps the 8th Amendment cases to a low. You'd have to find a a plaintiff willing to come into court and say he's been raped. And then he's going to go back to prison, and likely face retribution. Individual litigation is hard on this issue.

Michael C. Dorf said...

The other problem with litigation -- even class actions with prisoner identity protected --- is that the operative legal standard of "deliberate indifference" has been interpreted to mean that nearly all cases get dismissed for insufficient evidence.

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