Sentenced to rape

[Michael Pollak <mpollak@xxxxxxxxx>]

   http://slate.msn.com/id/2089095/

   October 1, 2003
   Slate.com

   Violence Silence
   Why no one really cares about prison rape

   By Robert Weisberg and David Mills
   Posted Wednesday, October 1, 2003, at 11:07 AM PT

   Imagine the following defense argument being put forth to a judge
   who's about to sentence a defendant--an attractive long-haired young
   man of small but athletic build and gentle demeanor--after he has been
   convicted of molesting a teenage victim:

     Your Honor, it is unfair and disproportionate to sentence my client
     to jail, since it will almost certainly subject him to violent and
     probably sexual assault while incarcerated. As the evidence we will
     proffer shows, there is a 50 percent chance he will suffer an
     aggravated assault and at least a 40 percent likelihood he will be
     raped and sodomized on multiple occasions while imprisoned. We thus
     urge you, Your Honor, to recognize that any sentence of
     incarceration effectively includes these "secondary" sanctions.

   This motion seems fanciful, but it would be perfectly plausible for a
   defense lawyer to make. In fact, one wishes more defense lawyers would
   do so, since all these contentions are essentially true. While hard
   data on sexual assaults in prison is not easy to find, and observers
   dispute the precise frequency, no one who knows American jails and
   prisons doubts that rape and sexual assault--usually perpetrated by
   other inmates but occasionally by prison staff--are facts of daily
   life. What is surprising is how easily the citizenry and the judicial
   system have come to accept the brutal reality of our prisons and
   absorbed it into mainstream culture. A new bill adopted by Congress
   purports to address this widespread apathy toward prison brutality.
   But, whether or not its proponents were sincere, the bill is a
   superficial gesture of little substance.

   This past July Congress enacted the Prison Rape Elimination Act of
   2003, providing $60 million for a two-year survey of state and federal
   prisons to determine the pervasiveness of prison rape and creating
   various panels to offer remedies. Congressional sponsors of the bill
   included the most improbable political allies, and support for the
   bill ranged from the ACLU and Human Rights Watch to conservative
   evangelical organizations. (The clear interest of the latter in
   promoting religion among inmates has helped create a
   strange-bedfellowship with leftist prisoners' rights groups.) The bill
   passed both houses unanimously, and President Bush, flanked by two
   former inmates who had been raped in prison, signed it in early
   September. The reason you've never heard of the Prison Rape
   Elimination Act is probably that no one who knows our criminal justice
   system believes it will do much of anything to eliminate prison rape.

   Even the more modest earlier title for the bill--the Prison Rape
   Reduction Act--was an ambitious predictor of its likely outcome.
   Because despite its grand words and its sponsors' passionate
   expressions of concern, the main thing the law aims to do is collect
   data, and that may be, paradoxically, both quixotic and redundant.

   It is quixotic because the obvious problems of unreliable observations
   and underreporting inherent in prison assault make highly refined
   objective data a fantasy. It is redundant because the relevant facts
   are already clear: A recent report by Human Rights Watch synthesized
   data and various perception surveys from around the United States and
   *conservatively* concluded that approximately 20 percent of all inmates
   are sexually assaulted in some way and at least 7 percent raped. A
   cautious inference is that nearly 200,000 current inmates have been
   raped and nearly 1 million have been sexually assaulted over the past
   20 years. And, as HRW notes, prisoners with certain
   characteristics--first offenders, those with high voices and passive
   or intellectual personalities--face far higher probabilities.
   Moreover, the reports reveal that sexual slavery following rape is
   also an ordinary occurrence. Stories abound of prisoners who, once
   they are "turned out" (prison jargon for the initial rape) become the
   rapists' subordinates, forced to do menial jobs and sometimes "rented
   out" to other inmates to satisfy their sexual needs.

   Of course, prisoners face not only sexual assault from other inmates,
   but violence of all forms, often leading to horrific injuries and
   death. All too typical is the story, repeated by HRW, of a raped Texas
   prisoner with obvious injuries who reported the rapes (eight alleged
   rapes by the same rapist) to prison authorities. The authorities
   interviewed the rapist and the victim together, concluded it was
   nothing but a "lovers' quarrel," and sent them both back to their
   cells, where the victim was again repeatedly raped and beaten even
   more brutally. Also surprisingly typical is the very recent, notorious
   killing of Father John Geoghan, the Massachusetts priest imprisoned
   for sexual assault, whom the state correctional system effectively, if
   unintentionally, sentenced to death in a non-capital punishment
   jurisdiction.

   Even if allocating the time and funds to collecting this additional
   data were somehow useful, how does the federal government propose to
   find it? Does the Department of Justice, charged with overseeing the
   study, have some secret methodology at its disposal that it's not
   sharing with us? And even if all this further data collection somehow
   dramatizes the problem, what then? Despite promises (or threats) in
   the new law to take prison officials or state governments to task for
   failure to stop rape and assault, the real cause probably lies in a
   more mundane and intractable reality: Inmates will attack inmates if
   enough of them live in sufficient proximity, with insufficient
   internal security, for long enough periods of time. That means that
   while Congress funds lots of studies, we already know that the key
   variables are really the sheer rates of incarceration in the United
   States, the density of prison housing, the number and quality of
   staff, and the abandonment of any meaningful attempts at
   rehabilitation. If it is honest, the new DOJ commission created by the
   law will suggest what we already know is necessary: that we lower
   incarceration rates, reduce the prisoner-to-space ratio, train huge
   numbers of new guards to protect prisoners, and abandon the purely
   retributive and incapacitative function of prisons. But there is no
   political will for such changes, which is perhaps why we fund studies
   of the obvious in the first place.

   The truth is that the United States has essentially accepted
   violence--and particularly brutal sexual violence--as an inevitable
   consequence of incarcerating criminals. Indeed, prison assault has
   become a cliché within mainstream culture. The news and entertainment
   media refer to it nonchalantly. Prime-time TV shows, such as Oz,
   depict the most awful scenes of rape and carnage. Popular TV dramas
   routinely depict police taunting potential defendants with threats of
   the violence and sexual abuse they will face in prison. Indeed, last
   year 7UP ran a TV advertisement in which a teasing threat of sexual
   assault in prison was part of a lighthearted pitch for selling soda.
   The advertisement ran for two months without objection and was only
   pulled after criticisms from prisoners' rights groups.

   So accepted is assault as part of prison life that an outsider might
   conclude that on some basic, if unarticulated level, we think it an
   appropriate element of the punishment regimen. Perhaps we believe that
   allowing prisons to be places of horrific acts will serve as part of
   the utilitarian deterrent effect of criminal sentences. Or perhaps we
   recognize that prison rape and assault are an unavoidable byproduct of
   the rape and assault in society generally, so that our goal here is
   not utilitarian but retributive: that is, even though we cannot
   eliminate rape and assault, we can at least reallocate them. Thus,
   when we purport to incapacitate convicted criminals, what we are
   really doing is shifting to them, the most "deserving" among us, the
   burden of victimization.

   The Prison Rape Elimination Act is better than nothing--unless, of
   course, it represents the last gesture politicians intend to make in
   the direction of addressing this problem. Assuming the study does not
   blinker reality by denying the prevalence of the problem, it will
   presumably mandate or exhort state and federal officials to monitor,
   train, and discipline prison staff and enhance inmate security--all
   under a threat of withdrawal of federal funds or the firing of
   negligent officials. Of course, the government would thereby be
   implicitly forcing prison officials to spend vast amounts of money
   they do not have and that Congress is unlikely to give state
   legislatures in the first place.

   Perhaps while this federal study is under way, there are other, more
   honest ways of acknowledging what the American prison system has
   created. Perhaps every sentencing judge should require that a
   defendant headed for prison be given extensive "pre-rape counseling"
   in the hope that he or she can take some small personal steps to
   reduce the risk of attack. Or perhaps we could require judges to
   demand data about the differential risks of rape and assault for
   different types of prisoners in different prisons and begin to factor
   such data into any sentence. "You committed murder, so let's send you
   somewhere where you're really likely to be raped." In that way we will
   be at least as brutally honest with ourselves as we are literally
   brutal with our prisoners.

   Robert Weisberg is the Edwin E. Huddleson Jr. professor of law at
   Stanford Law School. David Mills is a senior lecturer and director of
   Clinical Education at Stanford Law School.