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Legal Commentary

: Balkinization

?There is no prison rape issue. There is only the prison issue.?

By Jack M. Balkin

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Yesterday, the National Prison Rape Elimination Commission issued a report on sexual abuse in prisons. The Commission and its report are products of the 2003 federal Prison Rape Elimination Act. Among the findings of the report: 4.5% of prisoners report being the victim of at least one act of sexual abuse in the past year; victimization rates among juvenile prisoners are much higher (around 20%); abuse is reportedly perpetrated by correctional officials more often than by other prisoners; and reports of abuse are often ignored by prison officials. I was struck by the report's doggedly optimistic ?finding? that ?sexual abuse is not an inevitable feature of incarceration.? A few years ago, I argued that in many ways, prison sentences are inherently sexual punishments.

Advocates have worked very hard to end tacit (or even explicit) acceptance of prison rape, so the claim that sexual coercion is endemic to incarceration seems a step backward. Nevertheless, I?m not sure we?ll do much to address the problem if we are not honest about its causes, and I think we?re likely to exacerbate the problem if we seek to make prisons still more prisonly (as the report?s recommendations of increased surveillance seem to do). There is reason to believe that the American approach to mass confinement tends to produce sexual abuse. In particular, the rigorous control of every detail of prisoners? lives?including, in many prisons, the prohibition of any consensual sexual contact?seems to turn some prisoners into vulnerable, infantilized beings and others into aggressors ready to seize any opportunity to assert power. (For those who think it can?t be done otherwise, contrast this recent article on an American prison with this description of an Austrian one.)

In the words of one prison rape survivor:

[T]he issue of confinement itself ? is by far the most important issue, for all the coercion, trauma, the demasculization, the degradation are inherent in this abomination, with only differences of degree?important as they may be to us inside?between one human zoo and another. Part of that confinement is what confines us to each other, barring us from sexual and emotional contact with those on the Outside. There is, ultimately, no prison rape issue. There is only the prison issue.

Stephen Donaldson wrote those words while incarcerated in 1980. Later, he would form an organization called Stop Prisoner Rape (now Just Detention International). As his organization?s original name suggests, it is probably too extreme to insist that there is literally ?no prison rape issue.? But it seems fair to insist that prison rape is a prison issue, and it is one more reason to rethink the sentencing policies that have given the United States the largest prison population in the world.

Full post as published by Balkinization on June 24, 2009 (boomark / email).

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