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Columbia Journal of Gender and Law Rethinking Prison Sex 2006

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RETHINKING PRISON SEX:
SELF-EXPRESSION AND SAFETY
BRENDA V. SMITH::'
At the risk of buying into popular stereotypes about sex behind bars
and the archetypes of the dyke prison matron providing better treatment to
women in prison in exchange for sex, I or torrid sex between women in
prison/ or the burly male prison rapist who creates prison wives/ or the
young man "turned out" in prison, 4 I plan to explore the complexity of

* Professor of Law, American University, Washington College of Law. Special
thanks to my Research Associate, Nairi Simonian, and Dean's Fellows, Emily Balogh,
Elizabeth Flesher, and Joyce Kosak. I would also like to thank the many advocates, inmates,
researchers, and correctional practitioners who work to explain the lives and experiences of
persons in custody. The work of Anadora Moss, Professor Barbara Owen, and Dr. Allen
Beck was crucial in writing this Article.
1 See, e.g., QUEEN LATIFAH, When You're Good To Mama, on CHICAGO MOVIE
SOUNDTRACK (Epic Records/Sony Soundtrax 2002):

Ask any of the chickies in my pen, they'll tell you I'm the biggest mother hen, I love 'em all
and all of them love me, because the system works, the system called reciprocity. Got a little
motto always sees me through, when you're good to Mama, Marna's good to you. There's a
lot of favors I'm prepared to do, you do one for Mama, she'll do one for you. They say that
life is tit for tat, and that's the way I live. So, I deserve a lot of tat, for what I've got to give.
Don't you know that this hand washes that one too. When you're good to Mama, Mama's
good to you! If you want my gravy, pepper my ragout. Spice it up for Mama, she'll get hot
for you. When they pass that basket folk contribute to, you put in for Marna, she'll put out
for you. The folks atop the ladder are the ones the world adores. So, boost me up my ladder,
kid and I'll boost you up yours. Let's all stroke together like the Princeton crew. When
you're strokin' Mama, Mama's strokin' you. So what's the one conclusion, I can bring this
number to? When you're good to Mama, Mama's good to you!

See also generally Chicago (Miramax Films 2002); Fred Ebb & Bob Fosse,
Chicago (Chapelle Music Co. 1975).
2 See generally GAYL JONES, EVA'S MAN (1987) (offering a fictional account ofan
African-American woman in prison and her sexual experiences with men and women inside
and outside of prison); THE BIG BIRD CAGE (New World Pictures, 1972) (using the
marketing slogan, "women so hot with desire they melt the chains that enslave them").
3 See generally AMERICAN HISTORY X (New Line Cinema 1998) (detailing the
story of the main protagonist's journey away from extreme right-wing racist violence after
being gang raped by white supremacists while in prison).

4

See generally GRANDMASTER FLASH, THE MESSAGE (Sugarhill Records 1982):

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prison sex and the challenges that it raises in the context of recently enacted
federal legislation, the Prison Rape Elimination Act ("PREA").5
The primary focus of this Article is to begin to frame the discussion
of prison sexuality and to chart an analytical framework for examining it.
This Article is by no means exhaustive and seeks primarily to mark the
terrain-leaving unexplored many areas that might prove fruitful for further
research. 6 This is the beginning of a project that will hopefully result in
greater scholarship and analysis of prison sexuality from a multidisciplinary
perspective.
In Part I, this Article briefly discusses the enactment of the Prison
Rape Elimination Act and prior attempts to enact legislation addressing the
sexual abuse of persons in custody. Part IT examines the historical
underpinnings of prisons in the United States and how that framework has
shaped attitudes toward the sexual expression of prisoners today. Part ill,
using the narratives of prisoners, describes the range of motivations that
prisoners have articulated in sexual expression and attempts to disentangle
prisoners' rights in sexual expression and from the state's legitimate interest
in regulating that expression. Part IV outlines six legitimate interests that
prison officials have in expanding sexual expression of inmates-such as
furthering the goals of the Prison Rape Elimination Act. This Part concludes
that in many situations the prison does not have a legitimate interest in
prohibiting prisoner sexual expression and would be better served by using
scarce resources to protect prisoners from nonconsensual and coercive sex
by staff or other inmates. 7 This Article concludes by acknowledging that the
Turned stickup kid, look what you done did. Got sent up for a eight year bid. Now your
manhood is took and you're a maytag. Spend the next two years as an undercover fag. Being
used and abused, and served like hell. Till one day you was find hung dead in a cell.
5 Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2003)
(hereinafter "PREA'l
6 For example, this Article does not address in depth the economic or other costs of
acknowledging the full range of sexual expression in prison-including conjugal visits,
increased family visitation, prison nurseries, and public health challenges. It also does not
address the complex issues that lesbian, gay, bisexual, and transgender inmates face in
custodial settings and their vulnerability to sexual violence.
7 This Article's discussion is confined to adult inmates. The issue of sexual
expression among youth in custody is beyond the scope of this Article. Curiously, most
research on the sexual behavior of youth in custody has focused on the outcome of sexual
behavior-pregnancy, and sexually transmitted diseases-and not on sexuality and sexual
expression ofjuveniles in custody and how sexual conduct might occur in juvenile custodial
settings. See. e.g., Nadine Lanctot & Marc Le Blanc, Explaining Deviance by Adolescent
Females, 2002 CRIME & JUST. 113, 168 (2002) (discussing girls who join gangs and their
sexual exploitation, which often leads to pregnancy); Aracely Munoz Contreras, Girls in
America: Sex and Deviancy in the Age of HIV/AJDS, 7 J GENDER RACE & JUST. 357, 358
(2003) (discussing how the juvenile justice system, particularly in Cook County, Illinois,
ignores that many adolescent girls are engaged in sexual activities that put them at risk for
contracting STDs and HIV/AlDS); Laurie Schaffer, Female Juvenile DelinquenCy: Sexual

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desire for sexual intimacy and sexual expression survive imprisonment and
that correctional authorities must fmd workable and humane approaches to
balancing their interests in safety and security with an inmates' interests in
self-expression.
I. THE PRISON RAPE ELIMINATION ACT OF 2003 AND ITS
PRECURSOR

The moving force behind the first modem piece of legislation to
address prison rape was the Women's Rights Division of Human Rights
Watch. In an effort to bring to light human rights abuses in the United
States, the Women's Rights Division had begun a project to document
human rights abuses in women's prisons. The Women's Rights Division
published a series of reports documenting the sexual abuse of women in
custody 8 and sought to follow-up those reports with the enactment of
legislation. In 1999, the Prevention of Custodial Sexual Assault by
Correctional Staff Act ("Custodial Sexual Assault Act") was introduced by
Congressman John Conyers (D-MQ, as part of omnibus legislation
reauthorizing the Violence Against Women Act. 9
The Custodial Sexual Assault Act called for the establishment of a
database of correctional employees previously found to be involved in
Solutions, Gender Bias, and Juvenile Justice, 9 HASTINGS WOMEN'S L.J. I, 20 (1998)
(discussing gender-specific sexualization of the female experience as a way to uncover
explanations for some female delinquency, and explaining that "[a]n urgent need exists for
gender-specific research on behalf of the plight of lesbian teenagers as they are processed in
juvenile justice systems"). See generally, e.g., Diane M. Morrison et aI., Sexual Risk
Behavior, Knowledge, and Condom Use Among Adolescents in Juvenile Detention, 23 J.
YOUTH & ADOLESCENCE 271 (1994) (analyzing to what extent adolescents in juvenile
detention engage in sexual behaviors that put them at risk for AIDS and other STDs);
Patricia J. KelIy et aI., Risk Behaviors and the Prevalence of Chlamydia in a Juvenile
Detention Facility, 39 CLINICAL PEDIATRICS 521 (2000) (analyzing the prevalence of
chlamydia and the association of selected behavioral risk factors in a population of
adolescents in two juvenile detention facilities).
8 See, e.g., HUMAN RIGHTS WATCH, ALL Too FAMILIAR: SEXUAL ABUSE OF WOMEN
IN UNITED STATES PRISONS (1996) (detailing sexual abuse of women in custody in D.C.,
Georgia, Illinois, Michigan, and California as human rights violations); HUMAN RIGHTS
WATCH, MODERN CAPITAL OF HUMAN RIGHTs?: ABUSES IN THE STATE OF GEORGIA 99-119
(1996) (discussing the problem of sexual abuse in Georgia's women's prisons); WOMEN'S
RIGHTS PROJECT, HUMAN RIGHTS WATCH, NOWHERE TO HIDE: RETALIATION AGAINST
WOMEN IN MICHIGAN STATE PRISONS (1998) (describing events surrounding HRW's
exclusion from Michigan prisons and the retaliation suffered by female inmates who
provided information about sex abuse for the HRW report).
9 See Violence Against Women Act of 1999, H.R. 357, 106th Congo (1999)
[hereinafter VAWA I]; Press Release, Rep. John Conyers, Conyers Introduces Omnibus Bill
to Stop Violence Against Women and Their Children (May 12, 1999), available at
http://www.house.gov/conyerslpr051299.htm. The Custodial Sexual Assault Act is found at
§§ 341-346 ofVAWA I.

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custodial sexual misconduct. 1O It also called for withholding federal law
enforcement funds from those states that failed to enact legislation
criminalizing staff sexual misconduct with inmates. II While VAWA
eventually passed with specific prohibitions on using any of its funds for
individuals in custody-even if they were the victims of sexual abuse-the
Prevention of Custodial Sexual Assault by Correctional Staff Act failed to
be included in the version of VAWA that was enacted into law. 12
Two years later, Human Rights Watch authored another report, "No
Escape: Male Rape in U.S. Prisons," this time documenting the sexual
abuse of male prisoners. 13 Teaming with Stop Prisoner Rape, an
organization originally founded by male prison rape survivors,14 Human
Rights Watch pushed for the enactment of another piece of legislation, the
Prison Rape Reduction Act of 2002. 15 The initial legislation, which was
introduced with bipartisan support, focused primarily on prisoner-onprisoner sexual assault and provided for penalties only in cases of prison
rape. 16 While there was bipartisan support for the bill, the failure to include
10 VAWA I at § 343. See also AFSCME Opposes Measure on Sexual Assault,
AFSCME Corrections United (1999), available at http://www.afscme.org/publications/
acunewslacul9907.htm (voicing objection to the creation of the national database and
questioning its necessity since "corrections facilities do not hire officers convicted of sexual
misconduct").
II

VAWA I § 344.

12 The reauthorization of VAWA finally passed as part of the Victims of
Trafficking and Violence Protection Act of 2000, 22 U.S.c. §§ 7101-7110 (2000)
[hereinafter VAWA II]. The Attorney General makes funds available to assist victims of
abuse pursuant to the Victims of Crime Act Victims Assistance Grant Program, which states
that "[s]ubgrantees cannot use VOCA funds to offer rehabilitative services to perpetrators or
offenders. Likewise, VOCA funds cannot support services to incarcerated individuals, even
when the service pertains to the victimization of that individual." 67 Fed. Reg. 56,444 (Sept.
3, 2002). It is notable that the Custodial Sexual Assault Act was included in the VAWA
omnibus legislation, but could not secure enough support for passage; yet VAWAIl includes
protections for immigrant battered women and trafficked women.
13

HUMAN RIGHTS WATCH, No ESCAPE: MALE RAPE IN U.S. PRISONS (200 I).

14 See Stop Prisoner Rape, http://www.spr.org (last visited Nov. 29, 2005). Stop
Prison Rape was founded in 1980 by Russell D. Smith as People Organized to Stop the Rape
of Imprisoned Persons. Smith was a survivor of rape behind bars himself. Renamed Stop
Prisoner Rape, the organization is now a national 50l(c) (3) human rights advocacy group
that works to end sexual violence against men, women, and youth. The scope of its mission
also now includes all forms of custody, including immigration detention. Jd. (follow "About"
hyperlink; then follow "History" hyperlink).

15

H.R. 4943, 107th Congo (2002).

16 See Hearing on the Prison Rape Reduction Act of 2002, 107th Congo (2002)
(statement of Wendy Patten, U.S. Advocacy Director, Human Rights Watch), available at
http://www.hrw.org/reports/2001/prison/rapebill-statement.pdf (discussing the organization's

Rethinking Prison Sex

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the perspectives of accrediting organizations, such as the American
Correctional Association, the Association of State Correctional
Administrators, and groups who had worked primarily on issues related to
sexual abuse of prisoners by staff, slowed enactment of the bill. I7
The Prison Rape Reduction Act was reintroduced in 2003 with
significant amendments--changing the name to the Prison Rape
Elimination Act, adding coverage of staff sexual abuse of persons in
custody and grants to assist states in their efforts to prevent, reduce, and
prosecute prison rape. 18 The legislation passed unanimously in the Senate
on July 25,2003. 19
As enacted, the Prison Rape Elimination Act establishes "a zerotolerance standard" for rape in custodial settings/a requires data collection
on the incidence of rape in each state, and establishes the National Prison
Rape Elimination Commission. The Commission is required to issue a
report on the causes and consequences of prison rape 21 and to develop
national standards on the prevention, detection and punislunent of prison
rape?2 While PREA does not create a private right of action for prisoners,23

report, No ESCAPE: MALE RAPE IN U.S. PRISONS, and proposing several changes to the
legislation, norte of which included expanding the Act's scope to address sexual abuse of
women prisoners); see also No ESCAPE: MALE RAPE IN U.S. PRISONS, supra note 13; Learn
About Federal Legislation, http://www.hrw.orglreports/2001/prison/learn.html (last visited
Dec. 23, 2005) (discussing PREA's proposal to provide federal funding in order to
investigate allegations, and its aim to prevent and impose punishment for male rape).
17 Interestingly, unions who had been quite vocal in their opposition to the
Prevention of Custodial Sexual Assault by Correctional Staff Act of 1999 took no position
on PREA, likely believing that the initial bill's focus on prisoner rape excluded custodial
sexual abuse by correctional staff. Unions were not represented at Congressional hearings on
PREA, and the AFSCME Corrections United did not publicly take a stand on the bill. It
appears that unions were relatively unconcerned about PREA's impact on their members.
18 S. 1435, 108th Congo (2003). See also H.R. 1707, 108th Congo (2003); H.R.
1765, 108th Congo (2003).

19 149 CONGo REc. S9659 (daily ed. July 21,2003); 149 CONGo REc. H7764 (daily
ed. July 25, 2003). The speed of passage and the bi-partisan support for this legislation, when
compared to the lack of support for the Custodial Sexual Abuse Act of 1998-which sought
to address staff sexual abuse against primarily women inmates-supports and reinforces
gendered notions of the acceptability of violence against women.
20 Prison Rape Elimination Act of 2003, 42 U.S.c. § 15602(1) (2003). PREA
applies to prisons, jails, immigration detention facilities, police lockups, and juvenile
facilities. § 15606(3), (7).
21

§ 15606(d).

22

§ 15606(e).

23 See Alexander v. Sandoval, 532 U.S. 275, 291 (2003) (holding that, in the
absence of explicit authorization by Congress, no private right of action is created simply by

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it does create a system of incentives and disincentives for states,
correctional agencies, and correctional accrediting organizations who fail to
comply with its provisions. Each correctional agency must, upon request by
the Bureau of Justice Statistics ("BJS"), report the number of instances of
sexual violence in its facilities?4 Each year, the three states with the highest
incidence and the two states with the lowest incidence of prison rape must
appear before the Review Panel on Prison Rape to explain their
statute). However, in its purpose section, it notes that one purpose of PREA is to "protect the
Eighth Amendment rights of Federal, State, and local prisoners." § 15602(7).
24 § 15603(a). The Bureau of Justice Statistics produces an annual comprehensive
statistical review of prison rape based on a representative sample of correctional facilities,
departments of corrections, former inmates, and other experts. !d.; see also ALLEN 1. BECK &
TIMOTHY A. HUGHES, BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, SEXUAL
VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2004, at 10-12 (2005), available at
http://www.ojp.usdoj.govlbjs/pub/pdflsvrca04.pdf (describing the methodology used to
produce the study); id. at 3 (stating that sexual violence was measured "by disaggregating
sexual violence into two categories of inmate-on-inrnate sexual acts and two categories of
staff sexual misconduct"). The methodology of the survey was explained as follows:

The inmate-on-inmate categories reflected uniform definitions formulated by the National
Center for Injury Prevention and Control in "Sexual Violence Surveillance: Uniform
Definitions and Recommended Data Elements," Center for Disease Control and
Prevention. . . . Definitions of staff sexual misconduct and harassment were based on
"Training for Investigators of Staff Sexual Misconduct," prepared by the National Institute
of Corrections.

Id. Nonconsensual acts are defined as:
[c]ontact of any person without his or her consent, or of a person who is unable to consent or
refuse; and [c]ontact between the penis and the vagina or the penis and the anus including
penetration, however slight; or [c]ontact between the mouth and the penis, vagina, or anus;
or [p]enetration of the anal or genital opening of another person by a hand, finger, or other
object.
!d. Abusive sexual contacts were defined as: "[c]ontact of any person without his
or her consent, or of a person who is unable to consent or refuse; and [i]ntentional touching,
either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person." !d. Staff sexual misconduct was defined as:
[a]ny behavior or act of a sexual nature directed toward an inmate by an employee, volunteer,
official visitor, or agency representative. Romantic relationships between staff and inmates
are included. Consensual or nonconsensual sexual acts include: [i]ntentional touching of the
genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, arouse, or
gratify sexual desire; or [c]ompleted, attempted, threatened, or requested sexual acts; or
[o]ccurrences of indecent exposure, invasion of privacy, or staff voyeurism for sexual
gratification.
!d. Staff sexual harassment is defined as: "[r]epeated verbal statements or
comments of a sexual nature to an inmate by employee, volunteer, official visitor, or agency
representative, including: [d]emeaning references to gender or derogatory comments about
body or clothing; or [p]rofane or obscene language or gestures." Id.

Rethinking Prison Sex

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191

designations as states with either the lowest or highest incidence of prison
rape. 2S States and accrediting organizations stand to lose five percent of
federal funds for criminal justice activities for failure to implement or
develop national standards. 26 As an incentive to comply, PREA provides for
the withholding of grants from states that fail to adopt standards for
reducing, preventing, and eliminating prison rape. 27
While PREA does not substantially change the traditional definition
of rape,2s it recognizes that sexual assault can be accomplished not only by
actual force, but by the "exploitation of the fear or threat of physical
violence or bodily injury."29 Additionally, PREA gives the BJS authority to

25 § 15606(b)(3)(A). A high incidence does not necessarily mean that a state does
not address prison rape. In fact the contrary may be true. A state with a credible grievance
process and aggressive investigation may have higher reporting than a state that does poor
investigations and has a compromised grievance process. See Susan W. McCampbell &
Allen L. Ault, Lessons Learned: Miles to Go in Preventing Staff Sexual Misconduct with
Offenders, AMERICAN JAILS, Jan.-Feb. 2005, at 37. The information in this article is based on
work done under four National Institute of Corrections' Cooperative Agreements by the
Center for Innovative Public Policies, Inc. The article highlights how correctional agencies
"[b]eliev[e] that if there are no reported incidents of sexual misconduct that no misconduct is
occurring." Id. at 3. The article also discusses that

[a] key operational priority is the orientation of offenders to the agency's policies and how to
report misconduct. ... Agencies who orient inmates find that there is an initial testing of the
system-both by employees and inmates. Complaints may be made to see if the agency is
serious about accepting all allegations as well as investigating.

!d. at 8. See also generally Michele Deitch, Deitch: On Prison Rape, Texas Tries
to Report it Right, AUSTIN AMERICAN STATESMAN, Nov. 9, 2005, available at
http://www.statesman.com/opinion/content/editorial/stories/ll/9prisonrape_edit.html
(explaining that "[w]e need to encourage the reporting of prison rape, and those states that
take the problem seriously enough to use expansive definitions of rape and broad data
collection methodologies-<iespite the risk of being penalized-should be applauded, not
criticized").
26

§ I5607(c)(2).

27

§ 15608(a).

28

PREA defines "rape" as:

(A) the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a
person, forcibly or against that person's will; (B) the carnal knowledge, oral sodomy, sexual
assault with an object, or sexual fondling of a person not forcibly or against the person's will,
where the victim is incapable of giving consent because of his or her youth or his or her
temporary or permanent mental or physical incapacity; or (C) the carnal knowledge, oral
sodomy, sexual assault with an object, or sexual fondling of a person achieved through the
exploitation ofthe fear or threat of physical violence or bodily injury.
§ 15609(9).
29

§ 15609(9)(c).

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create another definition of rape for purposes of conducting its annual
statistical analysis and review. 30 That distinction is very important, because
the BJS has chosen to collect data on a broader range of sexual conductnonconsensual acts, abusive sexual contact, staff sexual misconduct, and
staff sexual harassment. 31 The BJS data collection includes inmate-oninmate conduct as well as staff-on-inmate conduct, and will include data
collection from a variety of sources: records, reviews of correctional
agencies, victim self-reports while in custody, and surveys of former and
soon to be released inmates. 32 Yet any discussion of rape necessarily
includes a discussion of consent. 33 Recognizing the complexity of sexual
behavior in correctional settings, the proposed BJS victim self-report survey
asks about consensual sex as wel1. 34
30

§ 15603(a)(2)(A).

31

See BECK, supra note 24, at 3.

32Id. at 2.
33 See generally Cheryl Bell et aI., Rape and Sexual Misconduct in the Prison
System: Analyzing America's Most "Open" Secret, 18 YALE L. & POL'y REv. 195 (1999)

(analyzing the shortcomings of current legal doctrine on the issue of rape and sexual
misconduct in prison, focusing on Farmer v. Brennan, 511 U.S. 825 (1994»; Kim Shayo
Buchanan, Beyond Modesty: Privacy in Prison and the Risk of Sexual Abuse, 88 MARQ. L.
REv. 751 (2005) (discussing rape of women in U.S. prisons); Ian O'Donnell, Prison Rape in
Context, 44 BRIT. 1. CRIMINOLOGY 241 (2004) (comparing occurrences and magnitude of
prison rape in the U.S. and the U.K.); Christine Peek, Breaking Out ofthe Prison Hierarchy:
Transgender Prisoners, Rape, and the Eighth Amendment, 44 SANTA CLARA L. REv. 1211,
1224-1229 (2004) (discussing whether some consensual sexual experiences in prison have
elements of coercion); James E. Robertson, A Clean Heart and an Empty Head: The
Supreme Court and Sexual Terrorism in Prison, 81 N.C. L. REv. 433 (2003) (discussing
prison rape in male prisons and prison rape litigation); Rachel Roth, "No New Babies?"
Gender Inequality and Reproductive Control in the Criminal Justice and Prison Systems, 12
AM. U. J. GENDER Soc. POL'y & L. 391 (2004) (examining conflicts over the rights of
prisoners and probationers to have sex or to procreate).
34 See BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, REVISION OF A
CURRENTLY APPRovED COLLECTION (PRETESTING ACTIVITES FOR SURVEYS IMPLEMENTING
THE PRISON RAPE ELIMINATION ACT OF 2003, OMB No. 1121-0303) (2005) (on file with
author). Ninety percent of the respondents are randomly routed to answer questions about
consensual and non-consensual sex in the facility. Section E of the questionnaire, entitled
"Activity With Inmates," asks about both wanted and unwanted sex or sexual contact the
inmate has had with other inmates in the facility. Id at 17-24; see also BUREAU OF JUSTICE
STATISTICS, U.S. DEPT. OF JUSTICE, SURVEY ON SEXUAL VIOLENCE, 2004, STATE PRISON
SYSTEMS 2, 5 (2004), available at http://www.ojp.usdoj.govlbjslpub/pdflssv2.pdf
(referencing non-consensual sexual acts between inmates, thus implicitly recognizing that
there can be consensual sexual acts as well, and defining staff sexual misconduct as
consensual or non-consensual sexual acts). Similar language appears in the surveys given to
the local jail jurisdictions and state juvenile systems. BUREAU OF JUSTICE STATISTICS, U.S.
DEPT. OF JUSTICE, SURVEY ON SEXUAL VIOLENCE, 2004: LOCAL JAlL JURISDICTIONS 3, 6
(2004), available at http://www.ojp.usdoj.govlbjslpub/pdflssv3.pdf; BUREAU OF JUSTICE
STATISTICS, U.S. DEPT. OF JUSTICE, SURVEY ON SEXUAL VIOLENCE, 2004, STATE JUVENILE
SYSTEMS 3, 7 (2004), available at http://www.ojp.usdoj.govlbjslpub/pdflssv5.pdf; see also

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The BJS data collection efforts have engendered a climate where a
number of communities concerned about prisoners are beginning to discuss
whether there can be consensual sexual interactions in prisons between
inmates and between staff and inmates. While correctional officials,
advocates, and prisoners are clear about the need to end prison rape, there
are other more complex agendas. Correctional authorities may have an
interest in minimizing the number of sexual interactions between inmates
that can be defined as rape in order to lower their numbers for purposes of
data collection. 35
Human rights organizations are concerned that correctional
authorities will respond to PREA by strictly enforcing existing prison
policies that prohibit sex between inmates, which could result in discipline
or criminal prosecution for prisoners who engage in consensual sex. 36 They
are also concerned about the backlash against people who engage in samesex relationships in institutional settings, either because of their sexual
orientation or because they engage in situational same-gender sex.
Furthermore, they are concerned that the acknowledgment of consensual
sex in correctional settings will allow prison authorities to cast actual rape
as consensual, thereby reducing the number of rapes reported to the BJS.
Lastly, prisoners are rightfully concerned that this heightened scrutiny,

BUREAU OF JUSTICE STATISTICS, U.S. DEPT. OF JUSTICE, DATA COLLECTIONS FOR THE PRISON
RAPE ELIMINATION ACT OF 2003, STATUS REPORT 4 (2004), available at
http://www.ojp.usdoj.govlbjslpub/pdf7dcprea03.pdf (discussing the Bureau's plans to
implement a project that includes cognitive testing of the questionnaire, conduct a national
pretest, and deliver a national implementation plan in 2006 on self-reports by inmates in
adult correctional facilities).
35 See DATA COLLECTIONS FOR THE PRISON RAPE ELIMINATION ACT OF 2003,
STATUS REpORT, supra note 34, at 1 ("Corrections administrators have concerns about legal
liability, reliability of self-reports, and potential disruption of facility operations.").
36 See, e.g., Lara Stemple, Executive Director, Stop Prisoner Rape, Address at the
Public Hearing before the National Prison Rape Elimination Commission: The Costs of
Victimization: Why Our Nation Must Confront Prison Rape (June 14, 2005), available at
http://www.nprec.usldocslMoralandEthicaIQuestions_V 1_1.pdf. Stemple comments that

the commissioner has heard me speak about the challenges of implementing the Prison Rape
Elimination Act at Notre Dame in March when I emphasized there the need to grapple
realistically with prisoners' sexuality and with the grim fact that rape is essentially the only
socially acceptable sexual outlet in many men's prisons.
Id.; see also Cal. Sexual Abuse in Detention Elimination Act, § 2639(f), 2005 Cal.
Adv. Legis. Servo 303 (Deering) ("Consensual sodomy and oral copulation among inmates is
prohibited by subdivision (e) of Section 286 and subdivision (e) of Section 288a,
respectively. Without repealing those provisions, the increased scrutiny provided by this
article shall apply only to consensual sexual contact among inmates and custodial sexual
misconduct.").

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while it may result in fewer assaults, also gives correctional authorities a
potent tool to selectively sanction inmates for any sexual expression. 37
Most advocates and correctional authorities agree in principle that
sex between staff and inmates can never, from a legal standpoint, be
consensual. Nonetheless, there are many instances where consent is
contested and the staff, the inmate, and/or the Court believe that the
prisoner and staff member engaged in a consensual sexual interaction. 38 The
situation of sex between inmates is just as complicated. Recent research
among prisoners indicates that relations between both men and women are
much more complex than initially thought. 39 While there is some
acceptance that women are more amenable to same-sex relations, given
their relational nature,40 recent research seems to indicate that many sexual

37 See Derrick Corley, Prison Friendships, in PRISON MASCULINITIES 107 (Don
Sabo et al. eds., 2001). Derrick Corley is a writer and prisoner at Clinton Corrections Facility,
Dannemora, New York. He queries, "If it is true that healthy people have healthy
relationships, and, if these relationships are systematically denied prisoners, then how can we
be expected to eventually live in society as normal, law-abiding, productive people?" [d.
38 See generally Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999) (prison
inmate alleged that a sexual encounter with the defendant-a fonner corrections officer at
the prison-was not consensual, as defendant contended, but was in fact a sexual assault that
violated her constitutional rights); Phillips v. Bird, No. 03-247-KAJ, 2003 U.S. Dist. LEXIS
22418 (D. Del. Dec. 1,2003) (inmate agreed to engage in sexual relations with prison guard,
and later claimed that the sexual relations were a violation of her right to be free from cruel
and unusual punishment); Fisher v. Goord, 981 F. Supp. 140 (W.D.N.Y. 1997) (the court
held that there was no credible evidence that the prisoner was raped, and that the evidence
showed that the action was part of a plan by plaintiffs to get the prisoner transferred out of
the state facility to one closer to home); see also CRISTINA RATHBONE, A WORLD APART,
WOMEN, PRISON AND LIFE BElllND BARS 49-54 (2005) (narrating non-fictional accounts of
women inmates in Framingham penitentiary and their relationships with male staff).

39 See BARBARA OWEN, OVERVIEW REPORT: FACILITY Focus GROUPS IS (Dec.
2005) (on file with author). According to the report,

Many also suggested that a large part of sexual victimization was tied to "domestic violence"
in both male and female institutions and rooted in relationships that may have begun as
consensual and turned coercive over time. While the relational component of violence has
been well known in female facilities, the focus groups in the male facilities also described
this situation.
/d. at 15. See generally Corley, supra note 37, at 107.
40 BARBARA BLOOM ET AL., NAT'L INSTITUTE OF CORRECTIONS, U.S. DEPT. OF
JUSTICE, GENDER-REspONSIVE STRATEGIES: RESEARCH, PRACTICE, AND GUIDING PRINCIPLES
FOR WOMEN OFFENDERS 65-66, 69 (2003), available at http://www.nicic.org/pubs/
2003/018017.pdf (addressing the needs of women inmates to have gender-specific policies,
programs, and services by collecting and summarizing multidisciplinary research and
practitioner expertise on gender-responsive strategies).

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interactions between male prisoners may be just as relational and not the
brutal rapes that pervade the media. 41
There has been a great deal of legal scholarship about rape and
consent-particularly in analyzing acquaintance rape 42 -and feminist
scholarship about the inherent gender imbalance of power and the inability
of women to consent to sex with men. 43 Most legal scholarship addressing
prison rape has focused on the unconstitutionality of sexual abuse in
institutional settings. 44 However, while there has been little scholarly legal
discussion of consensual sex in prisons,45 there has been robust scholarly
discussion by social scientists about consent and agency in institutional
41

See OWEN, supra note 39, at 15, 17.

42 See, e.g., STEPHEN 1. SCHULHOFER, UNWANTED SEX: THE CuLTIJRE OF
INTIMIDATION AND THE FAILURE OF LAW 254-73 ( 1998) (discussing what counts as consent in
the context of dating/acquaintance rape); ILENE SEIDMAN & SUSAN VICKERS, The Second
Wave: An Agenda for the Next Thirty Years ofRape Law Reform, 38 SUFFOLK U. L. REv. 467,
484-91 (2005) (discussing the definition of consent used in acquaintance rape cases and the
distinction between seduction and assault).
43 See, e.g., CATHERINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE
STATE 239 (1989) (explaining that no law explicitly gives men the right to rape women, yet
no law has undermined men's entitlement to sexual access to women); NICOLA LACEY,
UNSPEAKABLE SUBJECTS: FEMINIST ESSAYS IN LEGAL AND SOCIAL THEORY 104-24 (1998)
(analyzing a woman's autonomy in the context of rape and criminal law). But see Katharine
T. Barlett, MacKinnon's Feminism: Power on Whose Terms?, 75 CAL. L. REv. 1559, 1565
(1987) (reviewing CATHERINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE
AND LAW (1987)) ("MacKinnon has given inadequate attention to how power should be used.
Indeed, she seems entirely uninterested in what women should do with power, should they
ever get any."); Kathryn Abrams, Sex Wars Redu.x: Agency and Coercion in Feminist Legal
Theory, 95 COLUM. L. REv. 304 (1995) (questioning how feminists might formulate theories
that highlight both women's oppression and the possibilities of women's agency under
oppression).
44 See, e.g., Peek, supra note 33 (discussing transgender prisoners and the Eighth
Amendment's prohibition against cruel and unusual punishment); Jeffrey P. Brinkman,
Veney v. Wyche: Not in My Cell-The Constitutionality ofSegregating Prisoners Based on
Their Sexual Orientation, 12 LAW & SEXUALITY 375 (2003) (discussing the implications of
the Equal Protection Clause for a homosexual male inmate who was repeatedly denied the
right to move into a double occupancy cell based on his sexual orientation); Lisa Davie
Levinson, Tenth Circuit Survey: Prisoners' Rights, 75 DENY. U. L. REv. 1055 (1998)
(discussing cases concerning the Eighth Amendment's prohibition against cruel and unusual
punishment and Fourth Amendment claims of unreasonable searches and seizure as it applies
to a prisoner's cell).
45 But see, e.g., Ronald G. Turner, Sex in Prison, 36 TENN. B.1. 12, 12 (Aug. 2000)
(encouraging conjugal visits for prisoners, stating, "Except for the vague notion that
homosexuality sometimes happens behind bars, we assume that once the gate clangs shut,
inmates' sexuality and sexual needs do, too"); Danielle Dirks, Sexual Revictimization and
Retraumatization of Women in Prison, 32 WOMEN'S STUD. Q. 102, 110 (2004) (noting that
the legal system has "turned a blind eye" to discussing consensual and nonconsensual sex
between staff and inmates).

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settings, including prisons.46 The lack of scholarly legal discussion in the
area of prison sexuality conveys that there is need to address this topic, as I
have begun to do with this Article.
II. PRISONER SEX AND THE BIRTH OF U.S. PRISONS

Prisons in the United States, like those in Europe, are a relatively
recent phenomenon. The first U.S. prisons were created shortly after the
Revolutionary War. 47 Before these prisons were established, most
punishments were meted out by local authorities and involved physical
punishment on a continuum that included beating, maiming, branding, or
even execution. 48 Other punishments entailed elements of public shaming
and could even result in banishment from a community.49 Beginning in the
1800s, penitentiaries were created. 50 These institutions were formed largely
46 See, e.g., THE ARc, POSITION STATEMENT: SEXUALITY 1 (2004), available at
http://www.thearc.orgipositslsexualitypos.doc ("People with mental retardation and related
developmental disabilities, like all people, have inherent sexual rights and basic human
needs. These rights and needs must be affirmed, defended and respected."); Janet K.
Feldkamp, Navigating the Uncertain Legal Waters of Resident Sexuality, 52 NURSING
HOMES: loNG TERM CARE MANAGMENT 62 (2003) (discussing residents' rights to sexual
expression and the complicated issues that the topic creates for facilities and family
members); Kathleen S. Mayers, Sexuality and the Demented Patient, 16 SEXUALITY &
DISABILITY 219, 219 (1998) (stating that "[t]he management of sexuality in this population
[individuals with dementia], including consensual sexual activity as well as forced sexual
encounters, are topics which merit attention and should be addressed by the facility and for
individual patients"); Jamie P. Morano, Sexual Abuse of the Mentally Retarded Patient:
Medical and legal Analysis for the Primary Care Physician, 3 PRIMARY CARE COMPANION J.
CLINICAL PSYCHIATRY 126, 129 (2001) (noting that "[a]ccording to a 1982 article in
Pediatric Annals, the 'mentally retarded adolescent is a sexual being, whose reproductive
ability, sexual interests, and sexual activity range from high to low, identical to the range in
the general population. "'); Robert Worley et aI., Prison Guard Predators: An Analysis of

Inmates Who Established Inappropriate Relationships with Prison Staff, 1995-1998, 24
DEVIANT BEHAVIOR: AN INTERDISC. 1. 175 (2003) (discussing how some inmates pursue
consensual, romantic relationships with correctional employees).
47 See NICOLE HAHN RAFTER, PARTIAL JUSTICE, WOMEN IN STATE PRISONS 18001935, at xix (1985).
48

See CYNDI BANKS, WOMEN IN PRISON: A REFERENCE HANDBOOK 4 (2003).

49

See NICOLE HAHN RAFTER & DEBRA L. STANLEY, PRISONS IN AMERICA 3 (1999).

50

As Banks explains,

After 1815, many states erected penitentlanes based on two competing models-the
Pennsylvania system used by Quakers, which isolated prisoners in individual cells and
required complete silence both day and night; and the Auburn model, named after a prison in
New York that opened in 1817, where the inmates, although isolated in cells at night,
worked together in silence during the day and were subjected to extensive scrutiny and
surveillance backed up by a rigid system of discipline.
BANKS, supra note 48, at 4.

Rethinking Prison Sex

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on the model that prisoners should repent for their crimes through hard
labor, silence, studying the scriptures, and corporal punishment. 51
While the majority of prisoners were male, women did find
themselves in the first U.S. prisons. 52 Initially, women were held in the
same facilities as men. 53 Not surprisingly, male prisoners and jailers preyed
upon women in these early institutions. Conversely, some women traded
sex for food, better treatment, and even their freedom. Either way, it was
routine for women to conceive in prison. 54 In fact, there was a well-known
practice of women "pleading their bellies"-seeking lenient treatment
because of their pregnancies. 55 Pregnant women were allowed to escape the
most severe punishments until after they delivered, at which point they
typically were released to care for their infants. 56 Therefore, sexual
exploitation has been a subtext of imprisonment since its inception.
Seeking to address the appalling conditions of prisons and the
treatment of women in them, Elizabeth Gurney Fry, an early English
reformer, began visiting women and children in English prisons. She began
a campaign to push for better treatment for these women. 57 She saw this as a
religious mission and recruited other religious women. 58 Not surprisingly,
the standard of behavior that many reformers sought to promote for women
prisoners was one that mirrored their own, particularly as it related to
sexuality. During this period, women's sexuality was severely proscribed. 59
Good women were not supposed to enjoy sex,60 although they were obliged
to have sex because it was their duty and because they were expected to
produce heirs for their husbands. Therefore, the way to start reforming
women in prison was by controlling their sexuality, training them for
domesticity either as a wife or servant, and then saving their souls. 61
51Id.
52Id.
53 RAFTER,
54

supra note 47, at 10.

Id. at xxiv.

55 See
Wikipedia,
Pleading
the
http://en.wikipedia.orglwiki/pleading_the_belly.
56/d.

(2005),

available

at

In Britain, transportation to the colonies was another alternative. Id.

ESTELLE B. FREEDMAN, THEIR SISTERS' KEEPERS; WOMEN'S PRISON REFORM IN
1830-1930, at 123 (1981).

57

AMERICA,

Belly

58/d.

59Id. at 18-20.
60/d.

61

BANKS, supra note 48, at 7.

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Women who found themselves in prison either because of sexual crimeslike prostitution-or who engaged in sex in institutional settings-like
prison-were thus prime targets for restrictions on sex in order to save them.
Sex was seen as the primary vector for sin, and the best way to address this
issue was to prohibit sex in these institutions-both for men and for women.
The reformist ideas of Elizabeth Fry soon gained ground in the
United States. 62 Christian women, primarily Quakers, looking to do their
duty to God and country, set about caring for the poor and making visits at
prisons.63 What they found shocked them: women housed in male facilities
were made available sexually for male inmates and male jailers.64 Several
scandals involving women who had conceived while in prison caught the
attention of reformers and created the impetus for the Reform Movement in
.
65
pnson.
One of the major characteristics of the Reform Movement was the
establishment of separate prisons for women. 66 These prisons were often
directed and managed by all-female staff. 67 Women inmates were trained in
the domestic arts--eleaning, cooking, and needlework. 68 They were taught
to be modest and to abandon behaviors that had brought them into prison.
Because most of these early reformers had religious ties to Christianity,
there was a strong focus on teaching the Bible and, of course, denial of the
need for sexual expression for all women, particularly women prisoners.
Early reformers believed that sex was at the root of the problems that
brought women into conflict with the law.
At the same time that the Reform Movement held sway, there was
also a movement to look more into genetic or hereditary markers for a
number of illnesses. 69 Criminality was seen as a mental illness, almost a
congenital problem that affected criminals. There was a sense that it was
possible to predict the behaviors of children by looking at the trajectory for

62 FREEDMAN,

supra note 57, at 28.

63

BANKS, supra note 48, at 6.

64

See FREEDMAN, supra note 57, at 59.

65

!d. at 60.

66

!d. at 35, 47-52.

THE PRISON EXPERIENCE: SPECIAL ISSUES OF
century social refonns called for separate
institutions, and in 1873 the first institution with an all-female staff was founded).

67 See M. MORASH & P.I. SCHRAM,
WOMEN IN PRISON 123 (2002) (nineteenth

68

See RAFTER, supra note 47, at 39.

69

FREEDMAN,

supra note 57, at 41.

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their parents. 70 Of course, this view was contested,71 but it informed much
of the correctional practice in the early twentieth century.
It was only in 1942, with the Skinner v. Oklahoma decision, that the
Supreme Court struck down statutes which permitted states to involuntarily
sterilize prisoners and recognized that an individual's procreative ability
was a fundamental right that deserved constitutional protection. 72 In Skinner,
the defendant had been convicted of more than two felonies. Under
Oklahoma's Habitual Criminal Sterilization Act (the "Sterilization Act"),73
the Court ordered Mr. Skinner's sterilization. 74 Mr. Skinner claimed that the
Sterilization Act violated the Fourteenth Amendment of the Constitution.
Ruling for Mr. Skinner, the Supreme Court held that the
Sterilization Act failed to meet the requirements of the Equal Protection
Clause of the Fourteenth Amendment. The Court found that the
Sterilization Act treated defendants convicted of larceny and embezzlement
the same, except that those convicted of larceny faced sterilization. 75 The
Court found that, while "the equal protection clause does not prevent the
legislature from recognizing degrees of evil" and
the Constitution does not require things which are different in
fact or opinion to be treated in law as though they were the

70

RAFTER, supra note 49, at 10-13.

71

Id.

72

316 U.S. 535 (1942).

73 See id. at 536 (defining a habitual criminal under Oklahoma's Habitual Criminal
Sterilization Act as a person who, having been convicted two or more times for crimes
amounting to felonies involving moral turpitude, is thereafter convicted of such a felony in
Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution).
The Act further provides that "a proceeding against such a person may be instituted for a
judgment that such person shall be rendered sexually sterile." Id.
74 See id. at 537 (noting that the sterilization would be through "the operation of a
vasectomy in case of a male").
75 This is akin to the debate over differences in penalties for powder cocaine and
crack cocaine. See Elizabeth Tison, Comment, Amending the Sentencing Guidelines for
Cocaine Defenses: The 100-to-1 Ratio is Not As "Cracked" Up As Some Suggest, 27 S. ILL.
U. L. J. 413, 431 (2003)(noting that "data suggests that it is possible that African-Americans
comprise the majority of crack-related offenses due to the simple fact that, statistically,
African-Americans use and sell crack more than Caucasians. Caucasians, in contrast, use and
sell powder cocaine more than African-Americans''); see also Deleso Alford Washington,
"Every Shut Eye, Ain't Sleep ": Exploring the Impact of Crack Cocaine Sentencing and the
Illusion ofReproductive Rights for Black Women From a Critical Race Feminist Perspective,
13 AM. U. J. GENDER SOC. POL'y & L. 123, 135 (2005) (stating that "[t]he devastating aspect
of the 1OO-to-I quantity ratio is the disproportionate impact on Blacks and people of color
who become incidental collateral in the so-called 'war on drugs'''). Then, as now, criminal
penalties fell disproportionately on poor people and on people of color.

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same ... , [w]hen the law lays an unequal hand on those who
have committed intrinsically the same quality of offense ... [t]he
equal protection clause would indeed be a formula of empty
words if such conspicuously artificial lines could be drawn. 76

The Court found that larceny and embezzlement were fundamentally the
same except for the sterilization penalty, which made for "invidious
discriminations ... in violation of the constitutional guaranty of just and
equallaws.,,77
Against this backdrop of religious proscription of sexual activity
and foundational notions that criminality is in some way inherited, it is not
surprising that restrictions on sexual expression in prison remain today. At
the same time, these proscriptions that ostensibly prohibit sex create a
system where prison staff are the gatekeepers of sexual expression, using
sex as a management tool by either allowing or prohibiting sexual
expression as they wish. 78 In every state, correctional policies prohibit
sexual behavior by inmates, whether that conduct is with staff or other
inmates. 79 In many states, policies also prohibit any conduct that a prisoner
may engage in for her own sexual gratification, whether that is masturbation
or the use of objects. 8o There is a sense among correctional leaders that, if
76

Skinner, 316 U.S at 540-42.

77

[d. at 542.

78 See, e.g., Lucas v. White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999) (finding that
Bureau of Prison officials placed women in an otherwise all-male security housing unit,
opened plaintiff female inmates' cell doors for male prisoner's access, allowed the physical
and sexual harassment of plaintiffs, allowed correctional officers and male prisoners to
assault and rape plaintiffs in retaliation for previous claims of wrongdoing, and failed to
properly evaluate, train, discipline, and supervise custodial personnel so as to prevent such
occurrences); Cumbey v. Meachum, 684 F. 2d 712, 713 (lOth Cir. 1982) (alleging that crossgender supervision where female staff can view male inmates showering, undressing, and
using the toilet is a violation of privacy).
79 See, e.g., MICH. DEPT. OF CORR., WOMEN PRISONER'S GUIDE TO IDENTIFYING
AND ADDRESSING GENDER-BASED MISCONDUCT 11 (2001) (advising that "sex between
prisoners and staff is never ok"); CAL. DEPT. OF CORR., SEXUAL ABuSE/ASSAULT
PREVENTION AND INTERVENTION: AN OVERVIEW FOR OFFENDERS, KNow YOUR RIGHTS &
RESPONSIBILITIES (2000). The California document notes that

the [California Department of Corrections] specifically forbids sexual activity between
inmates/parolees and staff, contractors, volunteers. The CDC will prosecute the staff
regardless of your agreement. The law, Penal Code Section 289.6, will not allow the
employee to use your consent as a defense to prosecution. There is no exception to this.
/d. (emphasis in the original).
80 See, e.g., TEX. DEPT. OF CRIM. JUST., CORRECTIONAL INSTITUTIONS DIVISION,
DISCIPLINARY RULES AND PROCEDURES FOR OFFENDERS 27 (2005), available at
http://www.tdcj.state.tx.us/(prohibiting masturbation when performed in such a way that
others become aware that the offender is masturbating, and designating the activity as sexual

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sex were pennitted, it would compromise the safety and security of
institutions, the core correctional mission. 8 ! While this may be true for some
sexual interactions, there is a range of legitimate prisoner interests in
allowing sexual expression that do not threaten this core correctional
mission of safety and security.
III. INMATES' INTERESTS IN SEXUAL EXPRESSION
While there are certain sexual interactions that clearly have the
potential to affect safety and security in an institution, there are others that
are non-threatening. In particular, sexual interactions between inmates and
staff have the clear potential to affect prison safety and security. First, there
is an inherent imbalance of power between staff and inmates. Correctional
staff control every aspect of the prisoner and the prison experience: housing,
recreation, discipline, communication with the outside, and even the length
of an inmate's sentence. Second, there have been many reported incidents
of staff relationships with inmates that resulted in escapes, loss of life, and
issues that compromised the safety and security of not only staff but also
other inmates. 82 Finally, as a policy matter, state recognition of relationships
misconduct). Because the prison environment, by its very nature, provides very little privacy
to an inmate, it is more likely than not that someone would become aware that an inmate is
masturbating. See also CHRISTOPHER HENSLEY ET AL., Masturbation Uncovered:
Autoeroticism in a Female Prison, 81 PRISON J.491, 499 (2001) (reporting that
"masturbation in prison is almost always a rule infraction" and that the proportion of females
reporting that they do masturbate in prison is nearly twice the proportion of free society
women).
81 See
Mission of the Mississippi Department of Corrections, http://
www.mdoc.state.ms.us/mission.htm (last visited Dec. 3, 2005) (stating its mission as
"provid[ing] and promot[ing] public safety through efficient and effective offender custody,
care, control and treatment consistent with sound correctional principles and constitutional
standards"); Agency Mission of the Arizona Department of Corrections,
http://www.azcorrections.govlEthics.htrnl (last visited Dec. 3, 2005) (seeking to recruit "a
well-trained, professional work force to serve and protect our communities and its crime
victims by effectively employing the field's best security practices and proven pre-release
programming to prepare for the release and reintegration ex-offenders as civil, productive
citizens"); WYOM. DEPT. OF CORR., POLICIES AND PROCEDURES § IV, available at
http://doc.state.wy.us/pdf/field_servicesll-20I.pdf(last visited Dec. 3,2005) (describing its
goal to "contributeD to public safety by exercising reasonable, safe, secure and humane
management, while actively providing offenders opportunities to become law-abiding
citizens").

82 See, e.g., Dragnet out for fugitive and wife, both escape in hail of gunfire that
killed guard, CNN.COM, Aug. 10, 2005, available at http://edition.cnn.coml2005IUS/08/09/
inmates.escape/ (describing the manhunt for an escaped prisoner liberated by fonner prison
nurse who he had married and the death of a corrections officer shot pursuant to the escape);
McNairy County Sherifffound guilty of helping inmate escape, WBIR.cOM, OCT. 28, 2005,
available at http://www.wbir.comlnews/news.aspx?storyid=29706&provider=rss (describing
the sheriff's conviction for early release of a female inmate after she was reportedly
impregnated by a jailer).

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between staff and inmates as "consensual" puts the legitimacy of the state's
care and custody of inmates in question.
While there is abundant authority on the inappropriateness,
inadvisability, or ethical concerns raised by sex between lawyers and
clients,83 priests and parishioners, 84 physicians and patients, 85 and teachers

83See MODEL CODE OF PROF'L RESPONSIBILITY R.1.8(j) (2005) (stating that "[a]
lawyer shall not have sexual relations with a client unless a consensual sexual relationship
existed between them when the client-lawyer relationship commenced"). See generally In re
Pellizzari, 726 A.2d 451 (R.I. 1999) (holding that engaging in sexual relations with a client
during divorce proceedings warranted public censure); In re Adams, 428 N.E.2d. 786 (Ind.
1981) (holding that grabbing a female client, kissing her, and raising her blouse warranted a
public reprimand pursuant to an agreement for discipline); Comm. on Prof. Ethics and
Conduct of the Iowa State Bar Ass'n v. Durham, 279 N.W.2d 280 (1979) (holding that
sexual contacts between attorney and client in a manner which does not constitute an illegal
act and is not inherently wrong, not extending beyond caressing and fondling between the
female attorney and the male client, but occurring during the attorney's visits to client in
penitentiary in a professional capacity, warranted reprimand).
84 See THE CODE OF CANON LAW, Book II, Part I, Tit. III, ch. III: The Obligations
and Rights of Clerics (1983), available at http://www.ourladyswarriors.orgicanon/c02040329.htm. It states that

[c]lerics are to behave with due prudence in relation to persons whose company can be a
danger to their obligation of preserving continence or can lead to scandal of the faithful. The
diocesan Bishop has authority to establish more detailed rules concerning this matter, and to
pass judgment on the observance of the obligation in particular cases.
!d.; see also THE CODE OF CANON LAW, Book VI, Part II, Tit. V: Offenses Against
Special
Obligation,
available
at
http://www.ourladyswarriors.orglcanon/cI3641399.htm#par2874. The Code of Canon Law states that

a cleric living in concubinage, and a cleric who continues in some other external sin against
the sixth commandment of the Decalogue which causes scandal, is to be punished with
suspension. To this, other penalties can progressively be added if after a warning he persists
in the offence, until eventually he can be dismissed from the clerical state. A cleric who has
offended in other ways against the sixth commandment of the Decalogue, if the crime was
committed by force, or by threats, or in public, or with a minor under the age of sixteen years,
is to be punished with just penalties, not excluding dismissal from the clerical state if the
case so warrants.
!d. See generally Ellen Whinnett, Priest Sacked for Sex Proposals. Senior Catholic
'hit on' Two Men, THE MERCURY, Oct. 25,2003, at 2; Santa Fe Bishop Replaced After in Sex
Scandal, Cm. TRIB., Aug. 18, 1993, at 3M; Patricia Corrigan, Belleville Diocese Removes
Fourth Accused Priest, ST. LOUIS POST-DISPATCH, Mar. 31,1993, at 3A; Jonathan Friendly,
Roman Catholic Church Discusses Abuse ofChildren By Priests, N.Y. TIMES, May 4, 1986,
at 26.
85 See AM. MED. ASS'N CODE OF ETHICS § E-8.14 (2005) (discussing sexual
misconduct in the practice of medicine); § E-8.145 (describing sexual or romantic relations
between physicians and key third parties); § E-1O.015 (discussing the patient-physician
relationship); § E-3.08 (addressing sexual harassment and exploitation between medical
supervisors and trainees).

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and students, 86 there is very little scholarly literature on consensual
7
relations between prisoners and correctional stafe That is not surprising
since the prisoner/prison staff pairing epitomizes the inequality of power
and the potential for abuse of that power. Seemingly, there is little to
discuss or critique. However, viewing sexual expression in prison from the
prisoner perspective yields a different result. Prisoners have an interest in
sexual expression separate from that of the state, even in sexual interactions
with staff. 88 Outlined below are various types of sexual expression that
occur in penal settings, and the respective interests of the state or
correctional authorities and of prisoners in recognizing inmate sexual
expression.

86 See generally Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)
(seeking monetary damages under Title IX for a teacher's sexual harassment of a student);
see also generally Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992)
(determining for the first time that discrimination on the basis of sex for purposes of Title IX
and its regulations included sexual abuse ofa student by a teacher); Byanard v. Lawson, 112
F. Supp. 2d 524 (E.D. Va. 2000) (bringing an action against a school principal and school
board after a teacher sexually abused a student).

87 AMNESTY INT'L, USA (NEW YORK STATE), AMNESTY INTERNATIONAL CALLS
FOR RESTRICTION OF THE ROLE OF MALE GUARDS IN FEMALE FACILITIES (2000). According to
Amnesty,

[i]n April 2000 a guard at Albion Correctional Facility, a state prison, was charged with
third-degree rape and official misconduct. This resulted from a three-month sexual
relationship with a female prisoner. According to information submitted to the court from the
victim's attorney, during the three-month period, the guard was alleged to have attempted to
rape the female prisoner and to sodomize her and commit acts of sexual abuse. The guard
pleaded guilty to official misconduct as the sex was seen as 'consensual'.
[d.

at 1-2.

88 Mumia Abu-Jamal, Caged and Celibate, in PRISON MASCULINITIES 139, 141
(Don Sabo et al. eds., 2001). Abu-Jamal discusses two cases where prisoners attempted to
give some expression to their sexuality:

One prisoner, struck by a nurse's gentle manner, badly misinterpreted a simple smile for
genuine affection, and in his mind there arose the belief that she was his wife. He went so far
as to argue with and threaten fellow prisoners who dared to talk with her. This grew into a
fixation so pointed that, after several suicide attempts, which were probably staged in order
to gain her sympathy or access her nursing skills, he was committed to a regional mental
facility for several weeks. After his return, he no longer claimed that the female staffer was
his wife, but his fingers fidgeted constantly and his tongue perpetually darted in and out of
his mouth.... Another prisoner, imprisoned for more than a decade, since his midteens,
developed ajailhouse reputation for flashing au naturel whenever a female staffer, usualIy a
nurse, carne to his cell. Orders and repeated misconduct reports failed to deter his practice.
The administration finally assigned a male nurse to attend to his medical needs. The
flashings and many of his illnesses ceased.

/d.

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A. Sex for Pleasure
It was a complete surprise, therefore, when v., now known to
Denise and Julie almost exclusively as Bubble Gum Man, popped the lock
oftheir cell during count one afternoon. This was how it always
happened, Denise knew by now, and the sound ofthat lock being undone
prompted something close to panic. She'd allowed herselfto chat with
him for afew minutes earlier that day, but she hadn't meant anything by
it. She certainly didn't want to go out to him now. Didn't want to fool
around at all. Not with Bubble Gum Man. Julie, ofcourse, was thrilled. It
was safe, she kept saying. No one would ever know. All the girls were
locked in their rooms, and he was an officer, for chrissake. Didn't she
want some? All she had to do was walk out ofher cell and across the
corridor maybe five feet to the bubble, and there he'd be, waiting for her.
He was wicked good-looking, she said, even by outside standards
(maybe), and his cute little earring? Just go! Go! 89

Notwithstanding the desire to think otherwise, individuals continue
to have an affinnative interest in sexual expression even during
institutionalization. That is certainly the case in nursing homes, residential
drug treatment facilities, juvenile detention facilities, psychiatric institutions,
and certainly in prisons.90 Yet institutional policy in each of these settings,
including prisons, denies that this basic drive exists. A staple of institutional
policy is the prohibition on sex between residents91 and between staff and
Interestingly, this policy has shifted recently in some
residents. 92
residential settings. Both nursing homes and residential programs for the
mentally retarded, for example, have begun to allow sex between
residents. 93 However, in psychiatric settings, drug treatment facilities,
89

RATHBONE, supra note 38, at 64.

90

See supra note 46 and accompanying text.

91 See, e.g., Mayers, supra note 46, at 219 (reporting on a study to obtain
information, through surveys of nursing staff, about the extent of sexual behavior among
geriatric patients with dementia, nurses' desire for training, and their views about the
effectiveness of varying management approaches).

92 See Peter B. Gruenberg, Boundary Violations, in ETHICS PRIMER OF THE
AMERICAN PSYCHIATRIC ASS'N 3, 4 (2001), available at http://www.psych.org/edu/res_
fellowsieplDLOl.pdf (discussing the American Psychiatric Association's longstanding
principle against a doctor engaging in sexual activity with a former or current patient and the
patient's inability to provide informed consent to such a relationship).

93 See generally Dirk Johnson & Julie Scelfo, Sex, Love and Nursing Homes,
NEWSWEEK, Dec. 15,2003, at 54 (reporting on how nursing homes are coping with the desire
for sex and intimacy among residents); Feldkamp, supra note 46 (focusing on sexuality
among elders in long-term care facilities in the United States, rights of nursing homes
residents, the role of facility personnel in teaching safe sex among residents, and tips in
handling the sexual activities of a resident). See generally THE ARC, POSITION STATEMENT:
SEXUALITY, supra note 46 ("People with mental retardation and related developmental

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juvenile settings, and prisons, the prohibition by and large remains. 94 One
cannot help but wonder if a reason for this continued denial is the perceived
unworthiness or unreliability of these individuals in the expression of their
sexuality.
In spite of society's sense of either the desirability or deservedness
of prisoner sex, prisoners have an interest in sex simply for pleasure,95 and
there are few outlets for expression in prison. In the last decade, "get tough
on crime" has meant removing recreation for prisoners,96 cutting education
programs,97 and limiting opportunities for furlough. 98 Tight state budgets

disabilities, like all people, have inherent sexual rights and basic human needs. These rights
and needs must be affirmed, defended and respected.").
94 But see Henry E. Cauvin, Hinckley Wants Girlfriend, Psychologist Says in
Court, WASH. POST, Sept. 20,2005, at AI0 (reporting on John Hinckley's request for more
freedom in order to seek out intimate relationships and the psychologist's assessment that
Hinckley's desire for such a relationship was natural).

95 See Stephen "Donny" Donaldson, A Million Jockers, Punks, and Queens, in
PRISON MASCULINITIES 118, 125 (Don Sabo et al. eds., 2001). According to Donaldson,

These prisoners, who are perhaps focused more on the physical and less on the psychological
dimensions of sexual activity than are members of the middle class, insist that the difference
between the experience of entering a female mouth and of entering a male mouth is not
significant, that the experiential difference between entering a vagina or female anus and a
male anus is not significant. In all of these cases, they are aggressive, thrusting, dominating,
stimulating the nerves in their own penis in quite similar fashion, inserting their energy and
themselves into another body, and obtaining orgasms for themselves.

Id.
96 See Carl M. Cannon, Punishment, Not Rehabilitation, NAT'L L. J., Aug. 15, 1998,
at 1910 (discussing California's removal of weight-lifting equipment from prisons).
97 See id. ("Congress has cut educational opportunities in prison by eliminating
Pell Grants for inmates."). See generally, Charles B. A. Ubah, Abolition ofPell Grants for
Higher Education of Prisoners: Examining Antecedents and Consequences, 1. OFFENDER
REHAB. 39, 73 (2004) (discussing how rehabilitative and reintegrative correctional
philosophies view prison inmate college education as an effective approach to reduction of
inmate recidivism rate); see also Bobbie L Huskey, Think Twice Before Abolishing Inmate
Privileges, 57 CaRR. TODAY 6 (1995):

Studies have shown that inmates who have obtained their GED and a marketable skill while
in prison have a lower recidivism rate. In Illinois, for example, inmates who eamed their
GED while incarcerated have a retum-to-custody rate of only 4.5 percent---eompare this to
the 40 to 50 percent rate that some states have reported for inmates who have not obtained
theirGED.
98 See generally George M. Anderson, Parole Revisited, AM. MAG., Mar. 4, 2002,
available at http://www.americamagazine.orgigettext.cfrn?articleTypeID=1 &textID=1621
&issueID=363 (describing how, in the last thirty years, the opportunities for prisoners to
obtain early release has decreased dramatically because of get-tough-on-crime laws).

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have meant that there is tremendous idle time in prisons and jails,99 leaving
inmates with few productive activities. Thus, prisoners find a way to
occupy themselves and experience pleasure with tools that they controltheir bodies.
From my perspective, the state has little interest in regulating
inmates' sexual expression for pleasure, except to the extent that it
compromises safety and security or other legitimate penological goals. 100
While there is often an argument that men and women cannot "program"
because they are too interested in sex,101 sexuality is a feature oflife both on
the inside and in the free world. A more nuanced and informed reading of
the correctional mission would recognize the importance of assisting
inmates to make responsible decisions about sexual engagement and about
whether sex in an institutional environment, with its limited range of
choices, is wise. As described above, correctional authorities have an
interest in prohibiting sex between staff and inmates, but the value of
prohibiting sex for pleasure-with appropriate boundaries for inmates-is
less clear. Indeed, in enforcing the prohibition, correctional authorities miss
an opportunity to educate inmates about violence in relationships, to talk
about safe sex, and to encourage healthy relationships that could offer
support upon reentry.
B. Sex for Trade
I started talking real nice to the officer where I worked, in the laundry.

99

See Huskey, supra note 97. Huskey comments,

Unfortunately, because of budget constraints, we don't have enough productive work and
treatment programs throughout the prison and jail system. Often, we are left with inmates
who are lying in their cells doing nothing or are doing unproductive work. Idleness and
mindless work many times lead to trouble. Trouble then can translate into injury not only to
other inmates but especially to corrections staff.
/d.
100 See Turner v. Safley, 482 U.S. 78, 92 (1987) (finding that the correspondence
regulation was reasonably related to legitimate security interests, while the marriage
regulation did not satisfy the reasonable relationship standard because it was an exaggerated
response to rehabilitation and security concerns and there were obvious, easy alternatives to
the regulation).

101 In correctional parlance, "program" is often used to refer not to a particular
program or activity, but as a verb to refer to inmates' participation in programs and activities.
Often "programming" is tied to reduced sentences or greater privileges in institutional
settings.

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207

He was married but I told him how his old lady didn't pay him enough
attention. You know that if he was my man how I would treat him. He
started writing me notes and cards. Pretty soon I got him to bring in
eyeliner, perfume, and some cigarettes. I sold the stuff. Oh it was fun to
talk to him and stuffbut I never it get any further. I mean I never let
him touch me or anything. I used him to make my life easier in here. Why
not? You'd do the same thing. 102

In prison, sex is both a highly valued item and a relatively cheap
commodity. In the prison environment, items that are prohibited, such as
sex, cigarettes, "street food," money, drugs, and commissary,103 become
extremely valuable. Prisoners and staff engage in trade for items they want
and cannot get. Prisoners, however, are limited in what they have to
exchange. For many prisoners, the only item they have to trade is
themselves. In some institutions, there is a menu of sexual practices that are
bartered for common items like cigarettes, candy, chips, or a phone call. 104
In still other iterations of the exchange, prisoners who have money are
exploited sexually and intimidated for their commissary. lOS
Certainly prisoners have an interest in using their resources to get
what they want, even if that means using their bodies. 106 However, the
prison's interest in the safety and security of the institution suggests that sex
for trade should be prohibited. The potential for violence is great,
particularly when people do not deliver what they agreed to in exchange for
either sex or the sought after item. 107 Moreover, this system of bartering
102

See Worley, supra note 46, at 186.

103 Commissary is essentially a canteen where prisoners can purchase non-prison
food and items with their personal funds. Prisoners with more money can purchase food,
shoes, toiletries, and phone cards from the commissary. See Memorandum from Richard L.
Shiffrin, Office of Legal Counsel, to the Assistant Attorney General, Civil Division § 1 (May
22, 1995), available at http://www.usdoj.gov/olclbptrustl.htm.
104 See OWEN, supra note 39, at 23 (reporting the staff's belief "that when inmates
were victimized sexually, they were also more likely to be exploited in other ways," and
discussing the fact that "[r]eports of sexually victimized inmates giving their assaulter
money, clothes, food, commissary items and other commodities appeared in several of the
focus groups"); c.f Ice v. Dixon, No. 4:03CV2281, 2005 U.S. Dist. LEXIS 13429 (N.D.
Ohio July 6,2005) (alleging that defendant Dixon promised to arrange for Ice's release ifshe
performed oral sex and other sex acts upon him).
105 See Worley, supra note 46, at 185-89 (discussing "exploiters," or inmates who
aggressively forge inappropriate relationships with staff members to make illicit profits in
the underground prison economy).

106 See Susan E. Thompson, Prostitution-A Choice Ignored, 21 WOMEN'S RTS. L.
REp. 217 (2001) (supporting women using their bodies through prostitution as an acceptable
means of obtaining care for themselves and their families).
107

See Worley, supra note 46, at 186. He quotes one inmate as follows:

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often occurs because there are not legitimate ways for inmates to gam
access to those items or to decrease the desire for them, e.g., tobacco.
For example, in Women Prisoners v. D.C/o S some of the incidents
of sexual misconduct that fueled the litigation developed in exchange for
cigarettes, candy, food, and work assignments at the D.C. Correctional
Treatment Facility. 109 The D.C. Department of Corrections converted a
facility that had initially been intended to do assessments and provide drug
and mental health treatment to a facility for general population inmates who
needed jobs, recreation, and contact with the outside. Because of the
original mission of the facility, the facility was a smoke-free environment
for both staff and inmates. Staff continued to smoke and marketed their
cigarettes to prisoners in exchange for sex. 110 Additionally, the lack of
employment opportunities for women in the institution meant that women
were more vulnerable than men to sexual predation. Unable to buy
commissary with money they would have earned had they been permitted to
work, women traded sex for candy, potato chips, and phone calls. III
The harm to the municipality, the agency, and the prison facility
was immense. In addition to civil litigation brought by women prisoners
against the District of Columbia, the D.C. Department of Corrections,
corrections officials, and individual officers, the culture fostered an
environment where even female staff felt at risk for sexual abuse and
ultimately filed a Title VII suit against the District of Columbia Department

If a boss wants to stop, I'll give her a couple of months. But you never let them quit. An
inmate can always threaten to go to rank, and if that don't work then I tell him something
like, "I ain't got but 15 months to go before I discharge. I know you love your kids. I'd hate
to see them get hurt." Bosses with kids won't want anything to happen to their family.
[d.
108
877 F. Supp. 634 (D.D.C. 1994), vacated and modified in part on other grounds,
899 F. Supp. 659 (D.D.C. 1995), rev'd in part and remanded on other grounds, 320 u.s.
App. D.C. 247, 93 F.3d 910 (D.C. Cir. 19%), cert. denied, 520 U.S. 1196 (1997), on remand,
968 F. Supp. 774 (D.D.C. 1997) (order regarding sexual harassment, medical care, programs,
environmental health, and fire safety).

109

[d. at 664-67.

110 The author was co-counsel in this litigation, which challenged a pattern and
practice of sexual abuse of women incarcerated in a D.C. correctional facility and unequal
educational, vocational, and religious opportunities for female inmates. The litigation was
dismissed with prejudice with the consent of the parties in 2004. See also RATHBONE, supra
note 38, at 59-61 (describing sex-for-cigarettes scandal where women inmates agreed to
correctional staff's fondling in exchange for cigarettes).
111 See Women Prisoners, supra note 108; see also RATHBONE, supra note 38, at
47 (explaining that "[g]iving a [correctional officer] a blow job could get you a couple of
cigarettes, or a box of matches, or an order of take-out Chinese food, delivered direct from
the restaurant and still hot").

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Rethinking Prison Sex

209

of Corrections, alleging a pattern and practice of sexual harassment that
included behavior very similar to that which formed the basis for the female
prisoners' claims for constitutional protection. 112 Sex for trade therefore
created an environment where both prisoners and staff had to negotiate for
items that should have been either readily available or entirely unavailable
to both staff and inmates, such as tobacco. These abuses resulted in several
inmate pregnancies, some of which were carried to term and others which
ended in abortion. 1J3 For many women inmates who had long histories of
physical and sexual abuse both as children and adults by people in authority,
it reinforced a pattern of behavior where sex was commerce and detached
from self. This is sexual expression that should be prohibited by
corrections' authorities as it creates an environment where both staff and
inmates are at risk for sexual violence and harassment.
C. Sex for Freedom
The first time they touched, they were in the utility closet, shortly after she
started to work on his crew, Julie told me. She'd been trying to get down
a box ofmops and dropped them on his head by mistake. He made use of
the confusion to grab the back ofherjeans and turn her around to face
him. Thinking, "Fuck it, why not?" she let him kiss her. From then on
they did it everywhere - in the basement where they keep the lawn
mowers, in the broom closet right by the entrance to the institution, even
in the small chapel. 114

For many prisoners sexual expression is a corollary of freedom.
Whether they are imprisoned for short or long sentences, 115 sexual
expression, though limited, is one of few acts within their control. There is a
wealth of literature on the "situational" sexuality that occurs in prison: men
who have sex with men or women who have sex with women, but do not

112 See generally Neal v. District of Columbia, No. 93-2420 (RCL), 1995 U.S.
Dist. LEXIS 11461 (D.D.C. Aug. 9, 1995) (finding for female employees in a Title VII suit
alleging that the employer engaged in a pattern of sexual harassment by creating a hostile
working environment, by making job benefits conditioned upon the grant of sexual favors,
and by retaliating against those who challenged the harassment).

113

Women Prisoners, 877 F. Supp. at 641.

114

RATHBONE, supra note 38, at 51.

115 See LAWRENCE A. GREENFELD & TRACY L. SNELL, BUREAU OF JUSTICE
STATISTICS, U.S. DEPT. OF JUSTICE, WOMEN OFFENDERS 10-11 (1999) (indicating types of
sentences served by women); PAIGE M. HARRISON & ALLEN J. BECK, BUREAU OF JUSTICE
STATISTICS, U.S. DEPT. OF JUSTICE, PRISONERS IN 2004, at 4 (2005) (indicating in Table 4
prisoners sentenced to one or more or one or less years in prison according to the jurisdiction
of State or Federal correctional authorities under which they are sentenced).

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consider themselves as gay or lesbian. 116 While incarcerated, those
prisoners' sexual expression has been constrained by the state, and thus in
prison they are forced to pursue sex with partners who they may not have
sought in the community. Still other prisoners seek out staff members of
either the same or opposite gender in order to have sex. While prisoners'
choices are constrained during incarceration, even making the choice to
have sex when it is prohibited is an expression of freedom, albeit in a
situation of constraint.
D. Sex for Transgression
I've had sex with the wives oftwo different wardens. One night around
Christmas, I went over the house ofone warden and his wife asked me
to put her son's bicycle together. You know it was a Christmas present.
Then she cooked dinner for me and we had sex right there in the kitchen,
on the floor. I can talk my way into any woman's panties. I did it 'cause I
could. You know what I'm saying? Man when they busted mefor that, all
hell broke loose. It was hilarious. Yeah, I lost my outside trusty job but it
was worth it 'cause I embarrassed the shit out ofthat warden and his
family. I still can't stop laughing 'bout it. 117

Just like in the world outside of prison, sexual expression can be an
expression of freedom. This freedom of expression is closely associated
with transgression-breaking the rules and going against the normative
structures imposed by society, the state, and other institutions. Sexuality
and gender are both normative structures imposed by society, 118 and both
are performative. 119 Individuals adopt behaviors and practices that are
consistent with their perfonnance as males or females. Prisoners use sex to
transgress these nonnative structures by performing in ways that defy
society's constructs of gender and sexuality.

116 See also James E. Robertson, The Prison Rape Elimination Act: A Primer, 40
CRIM. L. BULL. 5 (recounting prison guards' accounts that some inmates will fight sexual
advances because if they did not, they would risk being considered gay). See generally
DANIEL locKWOOD, PRISON SEXUAL VIOLENCE 124 (1980).

117

Worley, supra note 46, at 190.

118 See Janet Shibley Hyde & Sara R. Jaffee, Becoming a Heterosexual Adult: The
Experiences of Young Women, 56 J. Soc. ISSUES 283 (2000) (reviewing research about girls'

transition from adolescent to adult heterosexuality and emphasizing the influence of
messages about sexuality from their peer group, family, and their culture more broadly). See
generally JUDITH P. BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY
(1990) (discussing how gender and sexuality are hegemonic).
119

See generally BUTLER, supra note 118 (originating the idea that sexuality and

gender are "performative").

Rethinking Prison Sex

2006]

211

First, the act of having sex is against set prison policies and rules,
120
and therefore transgressive. Second, prisoners can have sex with staff,
thereby jeopardizing security and putting the correctional mission at risk. 121
It is the ultimate way to thwart the system, and often prisoners use this
method of manipulation. 122 There are reams of training materials written for
correctional staff on avoiding prisoner manipulation,123 yet to manipulate
and try to change or control a situation of powerlessness is normative
behavior. 124 The prisoner and the state, symbolized by correctional
authorities, are constantly at odds. In the present environment, inmates will
seek to gain power and control in any way they can. If sex is an
advantageous tool, then prisoners will use it to their advantage to thwart,
control, embarrass, and harm those who control them within the confines of
prison. Therefore, prisoners use sexuality as a means of expressing their
autonomy, freedom, and transgression, because having sex with staff-a
symbol of the state or prison-affects the state and the prison's system of
control.

E. Sex for Procreation
Young women without children doing life sometimes wonder
ifthey will ever bear a child. Some truly pine for this child-bearing,
as ifit proves that they are still alive. If a woman is a teenager when she
comes to prison, she may actively seek to become pregnant and have

120 See Worley, supra note 46, at 178 ("Rather, prisoners can, through staff
manipulation, actively exert control over their personal situation to mediate or lessen the
pains of imprisonment.").
121 See id. at 190 ("[T]hese respondents admitted that they actually thrived on
putting staff members into situations that compromised their jobs as well as the facility's
security.").
122 See id. ("As one offender explained, having an inappropriate relationship with a
prison staff member was the 'ultimate way to out-con the law. "').

123 See generally James Topham, Sting!, CORRECf10NS TECH. MGMT. MAG. (2000)
(discussing the three steps that inmates use to manipulate staff: techniques, tools, and
turnouts. The first two stages are used to catch the staff member to be victimized, while the
turnout is when the inmate receives the payoff for his or her ability to manipulate the victim);
Gary Cornelius, THE ART OF THE CON: AVOIDING OFFENDER MANIPULATION 43-68 (2001)
(describing inmate tools of manipulation with case examples); BUD ALLEN & DIANA BOSTA,
GAMES CRIMINALS PLAY: How You CAN PROFIT By KNOWING THEM 64-68 (1981)
(discussing inmate manipulation ofstaffthrough sex and emotion).
124 See Kelly D. Askin, A Decade in Human Rights Law: A Decade of Gender
Crimes in International Courts and Tribunals: 1993 to 2003, II HUM. RTS. BR. 16, 17 (2004)

(chronicling findings of international tribunals on the use of rape of women in conflict to
"create an atmosphere of fear and powerlessness").

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a child-in her mind, before she can't. She may see the child as
something ofhers that she has created that is a good thing, a plus. She
may have no concept ofraising a child, or having a child with a parent
in prison; she may literally not have thought that far ahead. /25

Procreation is another aspect of sexual expression that survives
imprisonment. 126 There are still clear vestiges of the early reformer and
eugenic sentiment that criminals should not bear children. 127 Recently, in
two different settings, professionals expressed shock that male and female
prisoners might legitimately want to conceive children: the Feminism and
Legal Theory Project held at American University, Washington College of
Law, in March, 2004, where the audience was composed primarily of
feminist scholars and students; and a training on Operational Practices in
Women's Prisons held in June, 2005, where the audience was mainly
. I prolesslOna
~
. 1s. 128
correctIona
The audience at the Feminism and Legal Theory Project wondered
if this was a responsible position given that prisoners would not be able to
parent the children they conceived. Correctional professionals wondered
why these people should be permitted to bear children given their crimes,
125 See Interview by Tracye Payne Wilson with Elaine Lord, Warden, Bedford
Hills Correctional Facility (Oct. 2003). A transcript is available in Our Place, 4 Finding Our
Place (2003) at 23, available at http://www.ourplacedc.orglimages/newsletiOurPlaceFall03.
pdf.
126 Sentenced men and women may initially think of the separation from family
and of the age they will be when they are released. However, they may not consider the
impact of imprisonment on fertility. In that sense, loss of fertility becomes a collateral
consequence of imprisonment. See Donald Braman, Families and Incarceration, in
INVISIBLE PUNISHMENT, THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 122-28
(Marc Mauer & Meda Chesney Lind eds., 2003) (discussing how the incarceration system is
"intricately involved" in the dissolution of the family organization). See generally Federal
Resource Center for Children of Prisoners, Child Welfare League of America,
http://www.cwla.orglprograms/incarceratedldefault.htm (last visited Dec. 20, 2005); see also
JOHN M. JEFFRIES ET AL., SERVING INCARCERATED AND EX-OFFENDER FATHERS AND THEIR
FAMILIES: A REVIEW OF THE FIELD, VERA INSTIlUTE OF JUSTICE 3 (2001) (surveying existing
research and presenting findings from visits and from discussions with fathers who
participate in programs such as the Incarcerated Fathers Initiative, and with program
directors, prison administrators, and social service providers).
127 Brenda V. Smith, Spoken Remarks at Panel on Intimacy, Sexuality and Fertility
with Specific Reference to Women Prisoners: Animating the Feminist Body at the Feminism
and Legal Theory Project: Celebrating 20 Years of Pedagogy, Praxis and Prisms, Mar. 19,
2004 (Washington, D.C.) (discussing intimacy, sexuality and fertility for women in custody
and its challenge to feminist theory); Brenda V. Smith, Spoken Remarks at Panel on Legal
Issues at the U.S. Dept. of Justice, National Institute of Corrections Training Session:
Operational Practices in Women's Prisons, June 9, 2005 (Alexandria, VA) (presentation to
correctional leaders on legal issues affecting women in prison including issues of fertility
and procreation).

128

!d.

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Rethinking Prison Sex

213

i.e. that functional sterility was part of the penalty that prisoners should pay
for their crimes. Both audiences were concerned that the state would be
called upon to care for these children conceived while the parents were in
custody. Neither group recognized the desire to procreate as separate from
the desire to parent.
Yet both male and female prisoners desperately want to become
parents-conceive, aid in conceiving, bear, and raise children. Given the
construct of U.S. prisons, where prisoners have very limited contact with
their children or lose custody of their children as a result of their
imprisonment,129 prisoners are left with merely conceiving or fathering
children as the their primary way of sexual expression through procreation.
Male and female prisoners accomplish these goals in a variety of
ways.130 Male inmates may impregnate their partners from the community
during conjugal visits or during routine prison visits. 131 Female inmates
often have less contact with their male partners during imprisonment and
are less likely to have the opportunity for conjugal visits. 132 The availability
129 See DONALD BRAMAN, Families and Incarceration, in INVISIBLE PUNISHMENT:
THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 122-23 (Marc Mauer & Meda
Chesney-Lind eds., 2003) (discussing the strain that incarceration places on the family
organization). See also Beth E. Richie, The Social Impact on Women, in INVISIBLE
PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 139-40 (Marc
Mauer & Meda Chesney-Lind eds., 2003) (discussing the obstacles to parenting posed by
confinement, such as sudden and forced separation, long distances between urban
neighborhoods and correctional facilities, lack of accessible public transportation, obscure
visiting hours, and long waits at visiting hours).
130 See Interview by Tracye Payne Wilson with Elaine Lord, supra note 125. Some
women have voluntarily engaged in sexual relations with staff in order to conceive, either
because they are serving long sentences and fear they will not be able to bear children once
they have finished serving their sentences, or because they are attempting to "replace"
children that have been lost due to their incarceration or tennination of parental rights. Id. at
23.

131 Turner, supra note 45, at 26 ("Even without conjugal visits many inmates and
their spouses find ways to be sexually intimate in visitation settings. Sexual contact in
visiting rooms ranging from fondling to intercourse is not uncommon.").
132 See, e.g., CAL. CODE REGS. tit. IS, § 3177 (2002) (specifying California
prisoners' rights with respect to visitation of family members and setting forth several
institutional guidelines to regulate the visitation process). According to these regulations,
"[p]ersons with only a common-law relationship to the inmate will not be recognized as
immediate family members for the purpose of family visiting. Only those immediate family
members as defined in section 3000 are authorized for family visits." Id. California state
regulations define immediate family members as

legal spouse; natural parents; adoptive parents, if the adoption occurred and a family
relationship existed prior to the inmate's incarceration; step-parents or foster parents;
grandparents; natural, step, or foster brothers or sisters; the inmate's natural and adoptive
children; grandchildren; and legal stepchildren of the inmate. Aunts, uncles and cousins are
not immediate family members unless a verified foster relationship exists.

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of conjugal VISItS is quite limited. 133 In fact, only a few states pennit
conjugal visiting for inmates 134 and even those severely limit that
privilege. 135
A recent case, Gerber v. Hickman,136 raised the issue of prisoners'
desire to procreate. The prisoner, William Gerber, sought pennission from
the California Department of Corrections to provide, at his own expense, a
spenn sample to his lawyer to take out to the community to impregnate his
wife. 137 Mr. Gerber was serving life without parole as a result of the "three
strikes" law in California, 138 and thus was ineligible for California's

133 See Hernandez v. Coughlin, 18 F.3d 133, 138 (2d Cir. 1994) (holding that the
inmate did not have a constitutionally protected interest in conjugal visitation).
134 In 1993, seventeen states allowed sexual visits between inmates and their
spouses. See Turner, supra note 45, at 25. Many foreign governments provide for conjugal
visits, including Canada, Belgium, Denmark, Germany, Great Britain, Holland, Russia,
Sweden, and numerous Asian and Latin American countries. Id. See Abu-Jamal, supra note
88, at 140 (explaining how Dutch prison officials have operated "sex cells" for long term
convicts in order to keep inmates mentally and emotionally intact).
135 See Gerber v. Hickman, 264 F. 3d 882, 891 (9th Cir. 2001) (according to
California regulations, conjugal visits are prohibited for inmates sentenced to life without the
possibility of parole), reh 'g en bane granted and vacated, 273 F.3d 843 (9th Cir. 2001),
reh 'g en bane granted and ajJ'd, 291 F.3d 617 (9th Cir. 2002). See generally Rebecca L.
Miles, Criminal Consequences for Making Babies: Probation Conditions that Restrict
Procreation, 59 WASH. & LEE L. REv. 1545, 1546 (2002) (discussing the right to procreate
for individuals under probation).
136

291 F.3d 617 (9th Cir. 2002).

137 See id. Mr. Gerber attempted to inseminate his wife through legitimate means,
though others have not. See Gangster Sentenced in Sperm Smuggling Plot, L.A. TIMES, Aug.
22, 2003, at 16 (reporting on New York gangster who was sentenced for an additional
sixteen months for smuggling his sperm out of federal prison to his wife); Greg B. Smith,
Mobster Has On His Face in Sperm Scam, DAILY NEWS, Dec. 15,2000, at 7 (reporting on a
New Jersey mob associate who bribed guards to smuggle sperm to his wife outside of
prison); Pregnant Pause for Sperm Smuggling Wife, N.Y. POST, Mar. 2, 2002, at 6 (reporting
that a federal judge will not allow the wife of an incarcerated New York mobster to use her
husband's smuggled sperm to conceive).
138 See Marguerite A. Driessen & W. Cole Durham, Jr., American Law in a Time of
Global Interdependence: u.s. National Reports to the XVITH International Congress of
Comparative Law: Section V Sentencing Dissonances in the United States: The Shrinking
Distance Between Punishment Proposed and Sanction Served, 50 AM. J. COMPo L. 623, 637
(2002):

California['s] three-strikes law enhances punishment for felony offenders who have
previously been convicted of felonies. Crimes that count as previous "strikes" are violent
felonies or any other crimes listed in the code as serious felonies. However, the enhancement
applies whenever the current conviction is for any felony-not just those listed as violent or
serious.

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conjugal visiting program. 139 In denying Mr. Gerber's request to send sperm
out of the facility, the prison cited three justifications: (1) its policy of
treating male and female prisoners the same, when possible; (2) the safety
risks caused by prisoners collecting semen; and (3) concerns about litigation
relating the to the procedure. 140 The District Court found for the California
Department of Corrections, but the Ninth Circuit recognized that
procreation was a fundamental right that survived imprisonment and that
Mr. Gerber's method of exercising that right did not unduly burden the
prison. 141 The Ninth Circuit ruled that the fear that female prisoners would
exercise their right to procreate was not a legitimate penological interest
that required the denial of Mr. Gerber's right to procreate. 142 However, an
en banc Ninth Circuit, over vigorous dissent, held 6-5 in favor of the
California Department of Corrections, ruling that the right to procreate was
inconsistent with imprisonment and that Mr. Gerber had no interest in
inseminating his wife, as he would never be able to leave prison to assist in
raising the child. 143
The Ninth Circuit's en banc decision fails to recognize that
prisoners' interests are determined by their limited opportunities. Given that
Mr. Gerber was not allowed conjugal visits, his only remaining interest, as
well as one of his remaining ways to express his sexuality, was in providing
the means for his wife to conceive a child. Certainly Mr. Gerber would have
raised the child ifhe had the opportunity, but his current situation precluded
him from doing so. Mr. Gerber's solution-which did not involve physical
contact, but collection of biological material, his sperm-was an
appropriate and non-intrusive way to both accommodate the exercise of his
constitutional right to procreate and maintain the prison's interest in
security.
Two of the arguments that the California Department of
Corrections made are easily disposed of-that the right to procreate is
inconsistent with imprisonment and that Mr. Gerber's actions in collecting
sperm and sending it out in some way interfere with prison security.l44

139 See CAL. CODE REGS. Tit. 15, § 3177 ("Family visits shall not be pennitted for
inmates who are in any of the following categories: sentenced to life without the possibility
of parole; sentence to life, without a parole date established by the Board of Prison
Terms ....").

140

See Gerber, 264 F. 3d at 890.

141

/d. at 892.

142Id.

at 891.

143 See id. at 623. Here the court did not recognize the right to procreate as separate
from the right to parent. See supra notes 126-129 and accompanying text.
144/d.

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Skinner v. Oklahoma stands for the proposition that the state cannot take
away the right to reproduce and that the right to procreate is consistent with
imprisonment. 145 Instead, the question Gerber confronted was whether the
state needed to facilitate that right.
Gerber had not asked the state to do anything extraordinary, and in
fact had proposed a scenario that would require the state's minimal
involvement. As Justice Kozinski's articulated in his dissent, whether the
package that Mr. Gerber sent was "used to inseminate Mrs. Gerber, to clone
Gerber, or as a paperweight has no conceivable effect on the safe and
efficient operation of the California prison system.,,146 Even if the state
thought that Mr. Gerber might use sperm collection as a pretext for
smuggling contraband, it was free to create a process to make sure that the
sperm collection took place in a controlled setting. 147
There is also a parallel for this process in the female reproductive
sphere. The state cannot prohibit female prisoners from obtaining abortions.
The state does not have to perform the abortions, but must permit prisoners
to obtain abortions at their own COSt. 148 Comparing Gerber's situation, the
only difference is that he is choosing to create life rather than terminate it.
Failure to support Mr. Gerber's efforts seems to suggest that the prison is
willing to support prisoners' reproductive decisions as long as they comport
with its notions of the value of prisoner families. Yet, in this case, the state

145 See id. at 887. Though factually distinct, Gerber raises many of the same issues
the court addressed in Skinner over sixty years ago. California's three strikes law
disproportionately affects people of color and in this case has the effect of "legally
sterilizing" Mr. Gerber and other three strikes inmates. See also PollyBeth Proctor,
Procreating from Prison: Evaluating British Prisoners' Right to Artifiically Inseminate
Their Wives Under the United Kingdom's New Human Rights Act and the 2001 Mellor Case,
31 GA. J. INT'L & COMPo L. 459 (2003) (examining the body of English law surrounding the
prisoner's right to procreation before the passage of the Human Rights Act and how the
prisoner's right to procreate will develop in light of the United Kingdom's passage of the
Human Rights Act).
146 See Gerber, 264 F.3d at 629 (Kozinski, 1., dissenting) (arguing that
"[p]roduction of the semen and delivery to a laboratory neither compromises security, nor
places a strain on prison resources beyond that required to mail any other package").
147 See id. ("Sure, the prison is entitled to make sure it doesn't contain prison
escape plans, but Gerber is not claiming an exemption from routine security checks.").
148 See Gibson v. Matthews, 926 F.2d 532, 536-37 (6th Cir. 1991) (discussing the
Sixth Circuit's decision that there was no violation of the Fifth, Eighth, or Ninth
Amendments when prison officials' delays resulted in the inability of a female prisoner to
have an abortion); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 354 (3d
CiT. 1987) (Mansmann, J., concurring) (discussing the Third Circuit decision that there was
an Eighth Amendment violation in a prison policy that required a court order before
permitting elective non-therapeutic abortions); see also FED'L BUREAU OF PRISONS, P.S.
6070.05, § 551.23 (1996) ("The inmate has the responsibility to decide either to have an
abortion or to bear the child.").

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Rethinking Prison Sex

217

intervened and made a decision that this arrangement did not comport with
its notions of how a family should be formed or operate. 149
More interesting is the state's angst about providing similar rights
to female prisoners. It would be a compelling argument if, in every other
context, prisons had not consistently argued that men and women were not
similarly situated and therefore prisons did not have to provide them with
similar opportunities. ISO In this circumstance, men and women are
different. lSI Biologically, it is easier for men to gather the material that they

149
See generally Overton v. Bazzetta, 539 U.S. 126 (2003) (holding that
restrictions on visits by children were properly related to maintaining prison security and
protecting the children, and the prohibition of visits by former inmates bore a self-evident
connection to the state's interest in maintaining prison security and preventing future crimes).

ISO See Klinger v. Dep't of Corr., 107 F.3d 609, 613-16 (8th Cir. 1997)
(determining that, because the women prisoners' comparison of the educational opportunities
at the women's prison to those at the men's prison failed to provide a meaningful
comparison of educational opportunities for male and female prison system as a whole, there
was not a violation of Title IX of the Education Amendments); Women Prisoners v. District
of Columbia, 93 F.3d 910, 927-28 (D.c. Cir. 1996) (noting that "an inmate has no
constitutional right to work and educational opportunities" and that "idleness does not
violate the Eighth Amendment protection against cruel and unusual punishment, indeed,
idleness does not even constitute 'punishment. "'); Teresa A. Miller, Sex and Surveillance:
Gender, Privacy and the Sexualization ofPower in Prison, 10 GEO. MASON U. CIv. RTS. J.
291, 337 (2000) ("The problem inherent in the search for symmetry [in men and women's
prisons] is that it ignores the unique problems of sex and power in men and women's prisons,
which are similar to those arising in the context of equal protection for whites and blacks ...
Judicial insistence upon formal symmetry fails to recognize that men and women experience
unwanted intimate physical contact and nudity before members of the opposite sex
differently."); Brenda V. Smith, Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225,
273-76, 275 n.336 (2003) (noting that, though judicial application of equal protection has
resulted in female inmates receiving greater privacy protection than male inmates, female
inmates receive less recognition of their right to educational and vocational opportunities in
comparison to male inmates).
lSI See Jospeh J. Bozzuti, Judicial Birth Control?: The Ninth Circuit's
Examination ofthe Fundamental Right to Procreate in Gerber v. Hickman, 77 ST. JOHN'S L.
REv. 625,637, n.n (discussing the difference in difficulty between sperm and egg donation,
declaring that "[t]hough occasions have called for recognizing the inherent different between
the sexes, and thus permitting different treatment of the sexes, if and how much such
recognition would be made in this case remains unknown"); Richard Guidice, Jr.,
Procreation and the Prisoner: Does the Right to Procreate Survive Incarceration and Do
Legitimate Penological Interests Justify Restrictions on the Exercise of the Right, 29
FORDHAM URB. L.J. 2277,2309 (2002). Guidice comments:

For instance, female inmates cannot avail themselves of the same method of procreation that
male inmates can, which is to simply provide a semen sample to their spouses so that they
may be artificially inseminated. Unlike male inmates, female inmates would necessarily
require outside medical attention or facilities to procreate via artificial means. Male inmates,
however, could complete the semen collection procedure from inside their own prison cells.
Because of their differences, male prisoners could claim that the narrow right to provide
semen to artificially inseminate one's spouse does not apply to female inmates. Therefore,

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contribute for procreation-spenn-than it is for women to harvest eggs, as
the former is within the man's control of the man and the latter requires
medical intervention. Yet technology is such that male and female prisoners
can maintain and exercise their right to procreate without having sex. In. the
case of men, they can masturbate. In the case of women, they can harvest
their eggs and use the substantial reproductive technology that exists to
impregnate a surrogate mother or other means. 152 The question still remains
whether prisoners are worthy candidates for reproduction. Thus far, the
state has ruled that they are not, and has limited their ability to reproduce
through legitimate and transparent means, such as conjugal visits, artificial
insemination, or surrogacy.153 As a result, both male and female inmates
have used interactions with staff and other prisoners as ways to accomplish
that goal.
F. Sex for Safety 154
The person told me that ifI did not do what he wanted he would make life

the policy oftreating male and female inmates equally, to the extent possible, is not furthered
by a blanket restriction on inmate procreation.
!d.
152 See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CENTERS FOR
DISEASE CONTROL AND PREVENTION, 2002 ASSISTED REPRODUCTIVE TECHNOLOGY SUCCESS
RATES, NATIONAL SUMMARY AND FERTILITY CLINIC REpORTS 37 (2004) (describing the
various methods of Assisted Reproduction Technology that exist, such as artificial
insemination, in vitro fertilization ("IVF"), gamete intrafallopian transfer ("GIFT'), and
zygote intrafallopian transfer ("21FT"). See generally Sarah L. Dunn, Note, The "Art" of
Procreation: Why Assisted Reproduction Technology Allows for the Preservation ofFemale
Prisoners' Right to Procreate, 70 FORDHAM L. REv. 2561,2563 (2002) (arguing that courts
should protect a male prisoner's right to procreate by donating his semen and should also
protect a female prisoner's· procreative rights by allowing her to harvest her eggs while
incarcerated).
153 See generally Gerber v. Hickman, 264 F. 3d 882, 892 (9th Cir. 2001) (declaring
that the right to procreation generally survives incarceration); Hernandez v. Coughlin, 18
F.3d 133, 136 (2d Cir. 1994) (recognizing that "[i]nmates possess the right to maintain their
procreative abilities for later use once released from custody," and emphasizing "later use").
154 See Donaldson, supra note 95, at 125. The author, Stephen "Donny" Donaldson,
was a former prisoner who was brutally raped while incarcerated, and coined the term
"survival driven" as an intermediate category to describe a homosexual's experience of rape
in prison. According to Donaldson, from

the typical punk's point of view, none of his passive sexual activities is truly voluntary, since,
if he had his own way, he would not need to engage in them. Many continuing and isolated
liaisons originate in the aftermath of gang rape or to counter the ever-present threat of gang
rape. Prison officials and researchers label such behavior as "consensual."
!d.

2006]

Rethinking Prison Sex

219

bad here for me. He made me suck on his penis and after doing this for
about a week, he wanted more. He and his friends made me bend over the
desk and they took turns going in me from the back. I wish something
could be done. This has happened more than once for me. 155

Imprisonment evokes our deepest fear-the fear of losing control
over one's personhood. Upon imprisonment, men and women lose the
control over functions that are core to survival--eating, drinking,
elimination, sleep, communication, self-care. All of these functions are
either controlled or limited by external authority. Often, concern for
physical safety and well-being is a key motivator for sex between inmates
and between inmates and correctional staff. Social scientists have identified
the concept of "protective pairing," where inmates have sex or become
involved with someone in order to protect themselves from a greater harm
from other inmates or staff. 156 Legal and other narratives are replete with
stories of prisoners having sex with other prisoners or with correctional
staff in order to ensure their safety. 157
In large part, statutory law has developed to address the problem of
sex for safety-at least between correctional staff and inmates. Currently,
every state except Vermont has a criminal statute which prohibits the abuse
of persons in custody. ISS Each state law's coverage varies based upon the
respective state's legislative perception of who is a threat. In particular,
some statutes only cover conduct that occurs in prisons or involves
ISS See Cindy Struckman-Johnson et aI., Sexual Coercion Reported by Men and
Women in Prison, 33 J. SEX REs. 67, 74 (1996) (discussing the lack of studies on prison

sexual coercion by social scientists and providing a research study to determine the
occurrence of sexual coercion in prison).
156 See Barbara Owen, The Mix: The Culture of Imprisoned Women, in THE
INMATE PRISON EXPERIENCE 157-58 (2004) (discussing how some inmates new to the system
find a "mentor" in an effort to adjust, and that those women who are "[I]eft to their own
devices are women who do not possess the skills for negotiating a bureaucracy, the prison
smarts to work the system, nor a 'protector' who watches out for them"). See generally
Struckman-Johnson, Sexual Coercion Reported by Men and Women in Prison, supra note
153; Cindy Struckman-Johnson & David Struckman-Johnson, Sexual Coercion Reported by
Women in Three Midwestern Prisons, 39 1. SEX REs. 217 (2002) (reporting on a study of an
anonymous self-report survey of coercive sexual experiences of women incarcerated in three
Midwestern prisons).
157 See Richardson v. Penfold, 839 F.2d 392, 394 (7th CiT. 1988) (describing an
incident in which a victim of prison rape was informed that his assailant "had 'sold' him" to
another inmate who subsequently raped him); No ESCAPE: MALE RAPE IN U.S. PRISONS,
supra note 13, at 87-89 (discussing various types of coerced sexual abuse within the prison
system).
158 See generally BRENDA V. SMITH, 50 STATE SURVEY 2005 (on file with author)
(providing a detailed analysis of each state's sexual misconduct in prisons laws, as well as
those codified at the federal level).

Columbia Journal ofGender and Law

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[Vol. 15:1

correctional staff, specifically exempting probation and parole settings. 159
Other states recognize that sex with a person in custody is an abuse of
authority and use language to cover "abuse of supervisory authority." 160
One of the sharpest divisions between states is the acknowledgment of
prisoner's ability to consent to sex and the consequences of that consent.
The majority view is that inmates cannot consent to sex with staff. 161
However, three states-Arizona, Nevada and Delaware-have
enacted laws that penalize not only staff but also inmates who "consent" to
sex with staff. 162 The result, at least in Delaware, has been that staff who
violate these laws are reassigned while inmates receive both disciplinary
and criminal penalties. 163 Unsurprisingly, this has created a situation where
inmates are reluctant to report for fear of not being believed and for fear of
receiving additional criminal and administrative sanctions.
Notwithstanding the passage of these laws, prisoners still receive
little protection from forced and coerced sex. While the full scope of sexual
violence in prison is not known,l64 even what correctional officials do
report 165 should cause concern. The recent BJS study found that inmate
159

[d.

160

See id. at 9-10. For example, Colorado law states that

[a]ny actor who knowingly subjects a victim to any sexual contact commits unlawful sexual
contact if: ... (f) the victim is in custody of law or detained in a hospital or other institution
and the actor has supervisory or disciplinary authority over the victim and uses this position
of authority, unless incident to a lawful search, to coerce the victim to submit.
!d.
161 See SMITH, supra note 158 (indicating that twenty-two states declare that staff
and inmates cannot consent to sex). See, e.g., ALA. CODE § 14-11-31(e) (1975) (prohibiting
the use of consent as a defense in cases where custodial officers are accused of rape); CAL.
PENAL CODE § 289(e) (2005) (banning the consent defense for officials accused of rape in
custodial settings); II DEL. CODE ANN. § 1259 (2005) (disallowing consent as a defense to
accusations of staff raping individuals in custody).

162

SMITH, supra note 158, at 5,12,38.

163 Telephone Interview with Lee Williams, Investigative Reporter, The News
Journal of Wilmington, Delaware, in Wilmington, Del. (Nov. 1,2005).
164 See generally BECK, supra note 24, at 2 (noting that there are no truly reliable
figures on the prevalence of prison rape); Struckman-Johnson, Sexual Coercion Reported by
Men and Women in Prison, supra note 155, at 67-68 (noting a conspicuous silence on the
subject of sex in prison and sexual coercion in prison from social scientists); StruckmanJohnson, Sexual Coercion Reported by Women in Three Midwestern Prisons, supra note 155,
at 379 (commenting on the lack of reliable numbers on prevalence of prison rape).
165 See BECK, supra note 24, at 1 (indicating that forty-two percent of the
allegations of sexual violence reported nationwide in 2004, involved staff sexual misconduct;
thirty-seven percent, inmate-on-inmate nonconsensual sexual acts; eleven percent, staff
sexual harassment; and ten percent, abusive sexual contact, but that numbers are suspect due

2006]

Rethinking Prison Sex

221

perpetrators of sexual abuse were more likely to be sanctioned and
prosecuted than staff perpetrators. 166 Even when prosecuted, the sanctions
that staff offenders receive is minimal. 167 The most common sanction for
staff perpetrators were discipline, discharge, or referral for prosecution. 168
Given this environment, sex for safety with staff and other inmates is a
reasonable response to the prospects, of receiving protection from either the
corrections agency or the state through either investigation, discipline, or
prosecution.
The federal courts have been another venue to seek vindication of
the constitutional right to be free from rape-if not protection from rape
itself. 169 The courts' protection of prisoners from rape has been inconsistent
at best. The Supreme Court laid out its standard for cruel and unusual
punishment in a case involving rape of a transsexual prisoner by other
prisoners. 170 The prisoner, Dee Farmer, had been placed in a general
population prison even though she presented as a woman and was in the
preoperative stages of her sex change. The Supreme Court ruled that
placing Ms. Fanner in this setting showed deliberate indifference to her

to varying definitions, poor recordkeeping, poor investigations, and compromised grievance
process); see also U.S. DEPT. OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL: DETERRlNG
STAFF SEXUAL ABUSE OF FEDERAL INMATES 3 (2005) (noting that sexual abuse of female
inmates is both underreported and alarmingly prevalent). U.S. GEN'L ACCOUNTING OFFICE:
WOMEN IN PRISON, SEXUAL MISCONDUCT BY CORRECTIONAL STAFF: REPORT TO THE
HONORABLE ELEANOR HOLMES NORTON, HOUSE OF REPRESENTATIVES 7-8 (1999) (reporting
that the full extent of staff sexual misconduct is unknown and underreported nationally due
to the fear of retaliation and vulnerability felt by female inmates, and that jurisdictions do not
have readily available, comprehensive data on the number, nature, and outcome of sexual
misconduct allegations).
166 See BECK, supra note 24, at 9 (reporting that a variety of legal sanctions,
including arrest, referral for prosecution, or a new sentence, were imposed on perpetrators of
inmate-on-inmate sexual violence in eighty-six percent of the thirty-six prison systems,
seventy-six percent of the forty-two jail facilities, seventy percent of the twenty-seven Stateoperated juvenile systems and fifty percent of the forty local, private juvenile facilities
whereas ninety percent of staff perpetrators of sexual misconduct were discharged or
referred for prosecution).
167

!d.

168 See id. at IO (Table 10) (reporting that of the 508 substantiated incidents of staff
sexual misconduct and staff sexual harassment, only a 193 were referred for prosecution).
169 See, e.g., Calderon-Ortiz v. Laboy-Alvaro, 300 F.3d 60, 64 (1st Cir. 2002)
(holding that a prison official's failure to prevent rape of a pre-trial detainee in a state prison
constituted deliberate indifference to his safety); Ware v. Jackson County, Missouri, 150
F.3d 873, 883 (8th Cir. 1998) (holding that an inmate's Eighth Amendment rights had not
been violated when officials were deliberately indifferent to risks of harm eventually
resulting in a prison guard raping the inmate).

170

Farmer v. Brennan, 511 U.S. 825,832-51 (1994).

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safety, and found that the prison had violated her Eighth Amendment right
to be free from cruel and unusual punishment. 171
However, the jurisprudence on prison rape has developed so that
states, municipalities, and public officials are rarely held liable for the rape
of prisoners--even juveniles-by staff or other youth. 172 Rather, states,
municipalities, and officials have been granted immunity because they
enacted policies and procedures, conducted staff training, and took
disciplinary action after the fact against staff or inmate perpetrators. 173 In
this environment, more often than not only the perpetrator is held liable. 174
The courts have not held states, municipalities, and public officials
accountable for preventing inmate rape. Hopefully, the Prison Rape
Elimination Act, with its requirement for data collection and accountability,
will begin to do so.
G. Sex for Love
We met through the "word o/God". Every day, we would share

171 See id. (holding that a prison official may be held liable under the Eighth
Amendment for acting with deliberate indifference to inmate health or safety only if he
knows that inmates face a substantial risk or serious harm and disregards that risk by failing
to take reasonable measures to abate it).

172 See Ice v. Dixon, No. 4:03CV228I, 2005 U.S. Dist. LEXIS 13429 (N.D. Ohio
July 6, 2005) (finding the county immune in its official capacity, the sheriff immune in both
his official and individual capacity, the perpetrator immune in his official capacity, but not
immune in his individual capacity, on claims of sexual assault and battery against Ice, the
plaintiff inmate incarcerated at Mahoning County Jail). But see generally Monell v. Dep't of
Social Services, 436 U.S. 658, 694 (1978) (finding that, when a government's policy or
custom is the source of the injury, a municipality or government can be held liable).
173 See Ice, 2005 U.S. Dist. LEXIS 14329 (concluding that the county's specific
policy-including the training it had given to staff within forty-eight hours of the incident,
videotaping the plaintiff in an interview, taking the plaintiff to the hospital for a rape kit,
calling the Ohio Bureau of Criminal Investigation, suspending Dixon, getting the Internal
Affairs involved and sending the incident to the Mahoning County Prosecutor's Officewere sufficient to find immunity).
174 But see generally Riley v. Olk-Long, 282 F.3d 592, 597 (8th Cir. 2002)
(holding prison officials personally liable for rape of female prisoner by male corrections
officer); Morris v. Eversley, 282 F. Supp. 2d 196,208-09 (S.D.N.Y. 2003) (discussing the
elements of claim for personal involvement where the guard who committed the assault on
the inmate was found personally liable, but granting immunity to the two female supervisors).

Rethinking Prison Sex

2006]

223

scriptures with one another and we bonded as Christians. It took six to
eight months before things became romantic and then sexual, ifya know
what I'm talking 'bout. We kept things very quiet from everyone. 175

Often prisoners engage in sex for love or desire. Even in the prison
setting, where individuals are legally stripped of their autonomy and dignity
and face violence from other prisoners and staff, prisoners manage to
establish meaningful and sometimes loving relationships.176 There is a great
deal of literature on how women create families while imprisoned. 177 These
prison families include children, husband, wives, even grandparents. The
process that male inmates use to establish bonds is commonly perceived as
violent and hierarchical,178 though that characterization may not encompass
all male prison relationships. The literature suggests that in male settings,
certain men are feminized in order to fulfill the role of women. 179 This
feminization often includes sex, cooking, and cleaning for the male
partner. ISO Yet there is little written about whether these relationships are all
governed by force or if there is love or emotional attachment.
At the same time that these relationships develop among inmates,
often complicated relationships develop among prisoners and staff. 18l In any
number of oppressive settings, there have been accounts of the powerless
forming emotional bonds with those in power. 182 During the period of U.S.
175

See Worley, supra note 46, at 183.

176 See id. at 185 (describing "heart-breakers" as inmates who insisted that they
were truly in love and never intended to take advantage of their relationships with
correctional staff).
177 See MERRY MORASH & PAMELA 1. SCHRAM, THE PRISON EXPERIENCE: SPECIAL
ISSUES OF WOMEN IN PRISON 196 (2002) (describing the network of relationships at the
Central California Women's Facility that provided prisoners with support and help in
avoiding negative prison influences).
178 See Donaldson, supra note 95, at 118-26 (discussing the male prison
classification system which includes "men," "queens," "jockers," and "punks").

179 See Peek, supra note 33, at 1226-30 (discussing masculinity and where it
places an individual on the prison hierarchy).
180 See id. (describing stereotypically feminine tasks undertaken by "queens" and
other submissive inmates, like doing laundry, cleaning the cell, straightening bunks, and
making coffee).

181 See Worley, supra note 46, at 182 (describing "heart-breakers" as inmates who
initiate relationships with security officers, forming strong emotional bonds, preceded by
lengthy courtships).
182 See generally Chungee Sarah Soh, Lecture at the Institute for Korean-American
Studies (May 1, 2000), available at http://www.icasinc.org/2000/2000s/2000scss.htrn1
(discussing the complex, "masculinist sexual culture," and both the men and women who
ascribe to its tenets, including the idea that men have superior sexual needs to those of

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slavery, there were many accounts of male and female slaves bearing
children and having long-term relationships with their owners. 183 The same
is true for women and men in custody. 184 In spite of modem feminist
notions of equality of relationships as the basis for love,185 few relationships
are equal. For prisoners, they may not see the inequality of their
relationships in prison as qualitatively different from relationships they may
have had in the community.
However, prison authorities cannot be in the position of
legitimizing relationships between staff and inmates, in the same way that a
school system would be hard-pressed to legitimate relationships between
students and teachers. There is an inherent imbalance of power that the
institution relies upon for its legitimacy. Prisons depend on the fact that
correctional staff's interactions with inmates are based on achieving
correctional goals-safety, security, discipline, and rehabilitation-rather
than on furthering an intimate or personal relationship. As a matter of
meeting its mission of safety and security, prisons must prohibit
relationships between staff and inmates. That does not stop inmates from
seeking out these relationships, whether for pleasure, freedom,
transgression, procreation, or love.
The role of the state in limiting sexual relationships based on love
between inmates is less clear. Since most state correctional policies prohibit
any sex between inmates, they end up also limiting romantic or intimate
women, and therefore, deserve to be "comforted" both in premarital and extramarital sexual
situations).
183 See Compton v. Prescott, 12 Rob. 56 (La. 1845), in GENDER AND LAW: THEORY,
DOCTRINE, COMMENTARY 47-48 (Katherine T. Bartlett & Angela P. Harris eds., 1998)
(detailing a relationship between a white man and his freed slave partner, whom he never
married, but with whom he lived and fathered two children that he acknowledged as his and
to whom he bequeathed the majority of his estate upon death).
184 See Worley, supra note 46, at 182-85 (discussing the romantic relationships that
inmates form with correctional staff).

185 Frances E. Olson, The Family and the Market: A Study of Ideology and Legal
Reform, 96 HARV. L. REv. 1497, 1573-74 (1983) (analyzing the feminist theories of
Shulamith Firestone and Elizabeth Rapaport, which discuss sexual equality as the means to
achieve meaningful and healthy love). For an alternative commentary on the power relations
at stake in such relationships, see generally CATHERINE A. MACKINNON, TOWARD AFEMINIST
THEORY OF THE STATE (1989) (proposing an alternative interpretation of gender differenceor sameness-by suggesting that equality between men and women be analyzed in terms of
how power is distributed between them). MacKinnon calls this the "dominance approach,"
and uses it to study not only sex discrimination in employment, but also trends of rape,
sexual abuse, and domestic violence. Id. at 493. In suggesting that there is an imbalance of
power in male/female relationships, there is the implication that there is some give and take
of power between the two sexes. In reality, MacKinnon seems to assert that women are
always on the giving end; i.e., they are the ones who either voluntary or involuntary
relinquish some or all of their power in their interactions with men. /d.

Rethinking Prison Sex

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relationships between inmates. Certainly there are instances where
relationships between inmates may threaten the correctional missions of
safety, security, rehabilitation, or discipline, either through inmate violence
or inmate noncompliance with institutional rules. The prison should be free
to limit or regulate those relationships in the interest of providing a safe and
secure environment for staff and inmates.
Yet it is questionable that the prison has an interest in regulating
those relationships that do not infringe upon correctional goals. A logical
response to this challenge might be, so what? Sexual conduct is prohibited
anyway, so why do we need to reach this? Isn't the absence of sex one of
the penalties that you pay for committing a crime? Why should we be
concerned about prison sex when we don't even want to talk about sex in
the free world?186 The simple response to these questions is that sexuality is
a core feature of any social environment. Sex is a basic drive that does not
dissipate in prison. And [mally, accounts of prison officials at all levels
indicate that they are aware that sexual relationships between inmates occur
and are part of the fabric of the correctional experience for both staff and
inmates. I 87
Correctional staff accounts indicate that they have already
developed tools to address these relationships-identifying, intervening,
and disciplining where appropriate. 188 A clear recognition, expressed either
in written policies or in the procedures followed by prison officials, that
intimate relationships between inmates occur would not only provide
opportunities for inmates to express those relationships, but also would
offer opportunities for corrections' officials to explicitly address them in a
manner congruent with their correctional mission.
IV. IMPLICATIONS FOR STATE REGULATION OF PRISON SEX

Having outlined a continuum of sexual expression in correctional
environments, the basic legal inquiry concerns the state's ability to regulate
that expression. Taking as a given that sexual expression is a fundamental

186 See Press Release, Kaiser Family Foundation, Number of Sexual Scenes on TV
Nearly Double Since 1998 (Nov. 9, 2005), available at http://www.kff.org/entmedia/
entmediall0905nr.cfm. A study by the Foundation found that the number of sexual scenes
on television has nearly doubled since 1998, that seventy percent of all shows include some
sexual content, and that primetime television content is seventy-seven percent sexual. Id.
While Americans may not want to talk about sex or teach about sex, they seem to want to
watch programs with high sexual content.

187 See OWEN, supra note 39, at 15 (noting that many correctional officials believe
that encounters of sexual violence between staff and inmates begin as consensual
relationships that become coercive over time).
188

Id. at 28-29.

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right,189 should this fundamental right survive imprisonment? Unfortunately,
the legal response is not promising. Court decisions seem to set parameters
for sexual expression that are marked by sterilization and abortion-the
State cannot sterilize an inmate,190 and the State must allow an inmate to
obtain an abortion to the same extent that the privilege is granted by the
holding state. 191 The terrain in between remains uncharted but seems
terribly forbidding.
The courts have embraced small but important limitations on
constitutional protections related to procreation,l92 visitation,193 and the
right to define one's family 194 as they relate to prisoners. As a result,
notwithstanding my view that states should recognize that these rights
survive imprisonment, I am not hopeful that courts would decide to
recognize these rights to self-expression in prison, even if they have done so
in contexts outside of prison.195
189 See Lawrence v. Texas, 539 U.S. 558,565 (2003) (noting that "[aJfter Griswold,
it was established that the right to make certain decisions regarding sexual conduct extends
beyond the marital relationship"); Planned Parenthood ofSe. Pa. v. Casey, 505 U.S. 833, 851
(1992) (recognizing the right to "bear or beget a child" as fundamental).
190 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that the right to
procreate is a fundamental right guaranteed by the constitution).
191 See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 330 (3d
Cir. 1987) (holding that prisoners have a right to get needed medical treatment, including
abortions).
192 See Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002) (contrasting the
general right to "procreate while incarcerated" with "the right to be free from surgical
sterilization by prison officials"); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994),
(recognizing that the right to maintain procreative ability survives imprisonment, but can
only be exercised upon release from custody) Goodwin v. Turner, 908 F.2d 1395, 1400 (8th
Cir. 1990) (holding "that the Bureau's restriction on inmate procreation is reasonably related
to furthering the legitimate penological interest of treating all inmates equally, to the extent
possible").
193 See Overton v. Bazzetta, 539 U.S. 126, 130 (2003) (discussing Michigan's
policy for contact visits where inmates are allowed limited physical contact with their
visitors in a large visitation room and non-contact visits where inmates must communicate
with their visitors through a glass panel).
194 See id. at 169 ("[O]utside the prison context, there is some discussion in our
cases of a right to maintain certain familial relationships, including association among
members ofan immediate family and association between grandchildren and grandparents.").
The court made it clear that it did not intend to "imply that any right to intimate association
is altogether terminated by incarceration or is always irrelevant to claims made by
prisoners." [d. at 170.
195 See, e.g., Overton, 539 U.S. at 136 (holding that visitation regulations limiting
prisoners' contact with their visitors were rationally related to a penological objective and
therefore valid); Gerber, 291 F.3d at 623 (holding that prisoner had no constitutional right to
artificially inseminate his wife); Goodwin, 908 F.2d at 1400-01 (holding that a regulation

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227

The Supreme Court has made clear that any analysis of a regulation
that infringes on the fundamental rights of prisoners must undergo a fourpart analysis, outlined in Turner v. Safley. 196 In Turner, a class of inmates
challenged state prison regulations that restricted correspondence between
inmates at different penal institutions, with exceptions for correspondence
between immediate family members and correspondence by inmates on
"legal matters." 197 The challenged regulations also prohibited inmate
marriage unless the prison superintendent detennined that there were
"compelling reasons" for the marriage. 198 While "compelling" was not
defined in the regulations, prison officials testified in the lower court
proceedings that "only a pregnancy or the birth of an illegitimate child
would be considered a compelling reason." 199 Ultimately, the
correspondence regulations were upheld, but the marriage restrictions were
declared unconstitutiona1. 2OO
In reviewing the constitutionality of the prison regulations, the
Court outlined a four-part test: 1) the existence of "a valid, rational
connection between the prison regulation and the legitimate governmental
interest put forward to justify it"; 2) the existence of "alternative means of
exercising the right that remain open to prison inmates"; 3) the "impact
[that] accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources
generally"; and 4) "the absence of ready alternatives as evidence of the
reasonableness" of the regulation,z°1
Turner has become the predominant standard for analyzing
attempts to regulate conduct in prisons and has been used by prison officials
to limit inmate visitation, 202 justify cross-gender supervision of male
disallowing prisoners to artificially inseminate their non-incarcerated wives is valid, even
assuming that the right to procreate survives imprisonment); Hernandez, 18 F.3d at 138
(holding that an inmate does not have a constitutionally protected right to conjugal visits).
But see Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (holding unconstitutional the
criminalization of private consensual sodomy).
196 See Turner v. Safley, 482 U.S. 78, 89 (1987) (applying a four-part
reasonableness test to prison regulations that infringed on inmates' rights to send mail
amongst thernselves-a First Amendment right-and to marry without the prison
superintendent's permission-a fundamental privacy right).
197

!d. at 81.

198 [d.
199

!d.

200 !d.
201

at 82.

at 81.

!d. at 89-90 (internal quotations removed).

202 See Overton v. Bazzetta, 539 U.S. 126 (2003) (holding that restrictions on visits
by children were rationally related to maintaining prison security and protecting the children,

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inmates/o3 and limit reading material that prisoners can receive?04 At the
same time, prison officials have used Turner to enact policies they deemed
beneficial, such as same-sex supervision for female inmates, 205
rehabilitative programs for particular categories of prisoners, 206 and
207
enhanced opportunities for female staff.
Under Turner, states could enact policies that permitted a greater
range of sexual expression for prisoners. I have identified at least six
legitimate penological interests that would be served by enhanced prisoner
self-expression.
First, the Prison Rape Elimination Act requires correctional
agencies to report all incidents of prison rape. 20g However, appropriately
identifying acts that are consensual as opposed to coerced would permit
corrections official to more accurately report information to the Bureau of
Justice Statistics and meet the data collection requirements of the Act. This
would in tum enhance national, state, and local interests in assessing
prevalence and risk, with the goal of more effectively deploying resources
to eradicate rape in prisons altogether.
Second, making this appropriate distinction would assure that
corrections officials effectively use scarce investigative, medical, and
and the prohibition of visits by former inmates bore a self-evident connection to the state's
interest in maintaining prison security and preventing future crimes).
203 See generally Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1999) (finding
that cross-sex surveillance of male inmates is "not unreasonable" under the Turner test);
Oliver v. Scott, 276 F.3d 736, 746 (5th Cir. 2002) (finding that cross-sex surveillance was
not a violation of male prisoner's equal protection rights, according to the Turner test).
204 See Rice v. State, 95 P.3d 994, 997 (Kan. 2004) (holding regulations that
limited inmates' subscriptions to periodicals were reasonably related to penological interests
and were therefore valid).
205 See Torres v. Wisconsin, 859 F.2d 1523, 1529 (7th Cir. 1986) (holding that
defendants were required to meet an unrealistic, and therefore unfair, burden in displaying
the validity of their bona fide occupational qualification theory, and that, under Turner,
"prison administrators have always been expected to innovate and experiment"); see also
Everson v. Michigan, 391 F.3d 737, 747-48 (6th Cir. 2004) (holding that female gender was
a bona fide job qualification for the positions in housing units at female prisons because the
plan would enhance security and protect privacy for female inmates).

206 See Smith v. Bingham, 914 F.2d 740, 742 (5th Cir. 1990) (denying sex
discrimination claims by male inmates challenging their exclusion from vocational programs
open only to female prisoners).
207 See BLOOM, supra note 40, at 114 ("Although courts have given deference to
decisions of prison administrators in a Title VII context, they balance the rights of employees.
Therefore, the Turner standard appears to play a role in the analysis of whether sex
discrimination is a BFOQ, even though it is not directly determinative.").

208

Prison Rape Elimination Act of2003, 42 U.S.C.S. § 15603 (2005).

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229

administrative resources to address cases of forced or coerced sex between
inmates and between inmates and staff. Policies that recognize and allow
greater sexual expression would provide a broader range of categories in
which correctional officials could situate sexual behavior, resulting in a
significant improvement over current policies which simply provide that all
209
sexual conduct is prohibited. Another outcome of this policy change
would be enhancing the credibility of the agency with staff and inmates.
Currently, correctional staff ignores or selectively enforces prison policies
that prohibit sexual conduct.21O Having policies that are honored more in the
breach than in the observance fosters a culture of disrespect by both staff
and inmates and calls into question the necessity for following other rules.
Third, sex in prison, whether consensual or non-consensual, poses
serious health risks to the community, which the Prison Rape Elimination
Act recognizes in its findings and purposes. 21l For example, recent studies
estimate that the rate of infection for hepatitis and HN-both sexually
transmitted diseases-among the prison population is three times that of the
general population, and affects female inmates at a higher rate than
males. 212 It goes without saying that treating these diseases exacts
supra note 39, at 8,10. See generally SMITH, supra note 155.

209

OWEN,

210

OWEN, supra note 39, at 9.

211 PREA is replete with references to the public health impacts of prison rape. See,
e.g., § 15601(7):

HIV and AIDS are major public health problems within America's correctional facilities. In
2000,25,088 inmates in federal and state prisons were known to be infected with HIV/AIDS.
In 2000, HIV/AIDS accounted for more than 6 percent of all deaths in federal and state
prisons. Infection rates for other sexually transmitted diseases like tuberculosis and hepatitis
B and C are also far greater than for the American population as a whole. Prison rape
undermines the public health by contributing to the spread of these diseases, and often giving
a potential death sentence to its victims.

See also § 15601(14)(C) (discussing how the high incidence of prison rape
"increases health care expenditures, both inside and outside of prison systems, and reduces
the effectiveness of disease prevention programs by substantially increasing the incidence
and spread of HIV, AIDS, tuberculosis, hepatitis B and C, and other diseases"); §
15601(15)(B) (prison rape also affects interstate commerce because of "the incidence and
spread of HIV, AIDS, tuberculosis, hepatitis B and C, and other diseases, contributing to
increased health and medical expenditures throughout the nation").
212 See LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF
JUSTICE,
HIV
IN
PRISONS,
2003
BULLETIN
I
(2005)
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf7hivp03.pdf (stating that "[t]he overall rate of
confirmed AIDS among the prison population (0.51 %) was more than 3 times the rate in the
U.S. general population (0.15%)" and "[a]t yearend [sic] 2003,2.8% of all female State
prison inmates were HIV positive, compared to 1.9% of males."). See generally NAT'L
COMM'N ON CORRECTIONAL HEALTH CARE, 2 THE HEALTH STATUS OF SooN-To-BE
RELEASED INMATES, A REPORT TO CONGRESS (2002). The report notes that that some of the
serious diseases affecting inmates, including STDs, HIV/AIDS, hepatitis B and C, and

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significant costs from state, local, and federal government. Acknowledging
that a broad range of sex occurs in correctional settings for a variety of
reasons would enable prison officials to take appropriate health measures
such as condom distribution,213 HN/AIDS education programs,214 clinical
trials, and specific interventions that target risk behavior in prison settings.
The refusal to acknowledge sexual activity, both consensual and nonconsensual, means that correctional agencies have not initiated programs,
services, and resources that could protect the health of staff, inmates, and
the communities to which they will return. 215
The fourth legitimate penological interest for recognizing and
allowing for a broader range of sexual expression is the impact on reentry
tuberculosis can be transmitted to other inmates, correctional employees, daily visitors, and
to the community once inmates are released. Inmates who are released with untreated
conditions can become a financial burden on community health care systems. !d. at vii.
213 See Michael L. Closen, The Decade of Supreme Court Avoidance of AIDS:
Denial ofCertiorari in HIV-AIDS Cases and its Adverse Effects on Human Rights, 61 ALB. L.
REv. 897, 904 (1998) (discussing how the Supreme Court did not address the prevalence and
modes of transmission ofHIV/AIDS in prison); Brent Staples, Fighting the AIDS Epidemic
by Issuing Condoms in the Prisons, N.Y. TIMES, Sept. 7, 2004, at Al (noting that "[c]ondoms
are banned or simply unavailable in more than 95 percent of the nation's prisons"); Fighting
AIDS Behind Bars, N.Y. TIMES, June 10,2005, at Al (noting that "[t]he United States will
never contain deadly diseases like AIDS and hepatitis C until it prevents them from
spreading behind bars, where infection levels are many times as high as in the world outside
and the diseases spread easily, thanks in part to unprotected sex among inmates").
214 One model for such programs is Our Place DC, which has implemented a
program to educate women while they are incarcerated and upon their release about
HIV/AIDS, including methods of transmission, prevention, and care. See Our Programs and
Services, Our Place DC Website, http://www.ourplacedc.orglpageslabprog.html (last visited
Dec. 3, 2005). Another model is The Women's Collective, which runs "Sisters Helping
Sisters to Survive," a peer education program that seeks to educate women about safer sex
and empowerment, provide safer sex tools, encourage HIV testing among women, and help
HIV positive women receive care. See Prevention Programs, Women's Collective Website,
http://www.womenscollective.org/prevention.html (last visited Dec. 3,2005).
21S Indeed, studies are being conducted to determine if the alarming rise of HIV
among heterosexual African American women is linked to the large number of African
American men who are imprisoned and return to the community. See HIV/AIDS AMONG
AFRICAN AMERICANS, CDC FACT SHEET, available at www.cdc.gov/hiv/pubslFactsiafam.htm
(last visited Dec. 3, 2005) ("African American women are most likely to be infected with
HIV as a result of sex with men. They may not be aware of their male partners' possible
risks for HIV infection such as unprotected sex with multiple partners, bisexuality, or
injection drug use."); Jonathan E. Briggs, New Law to Focus on HIV in Blacks; Infection
Rate Tied to Prison Population, CmCAGO TRIBUNE, Aug. 19, 2005, at C4. See also Illinois
Governor Signs Law Focusing on HIV Prevention Among African-Americans, THE
ADVOCATE, Aug. 23, 2005, available at www.advocate.com/news_detail_ektidI9909.asp
(stating that "[t]he legislation, called the African-American HIV/AIDS Response Act,
requires the state Department of Corrections and all county jails in the state to offer free HIV
antibody tests to all inmates when they arrive at prison, during their imprisonment, and
before they complete their sentences and are released").

Rethinking Prison Sex

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231

or reintegration into the community. The Bureau of Justice Statistics
estimates that over 600,000 inmates return to the community each year. 216
Research also indicates that the strongest indicator for success upon reentry
to the community is family support. 217 Strengthening and preserving family
bonds, rather than enhanced sexual expression, are the goals for most
conjugal and family visiting programs. 218 These family visiting programs
result in enhanced family support for inmates while they are serving their
sentences, and sustain important connections and support which they can
mine once they have served their sentences. Inmates who have family
support are less likely to re-offend and return to prison, straining limited
correctional resources.
Many correctional agencies explicitly use family and conjugal
visiting as an inmate management tool. 219 Inmates who exhibit positive
institutional behavior are rewarded with enhanced opportunities for intimate
contact. 220 In the case of conjugal or family visits, this can often implicitly
mean greater opportunities for sexual expression. In addition, correctional
staff implicitly reward or punish prisoners by allowing or restricting their
intimate contact with other prisoners. By explicitly regulating this conduct,
prison officials could control and implement it strategically, in furtherance
of correctional goals of safety, security, and rehabilitation.

216
See Reentry Trends
in
the
US:
Releases
From Prison,
http://www.ojp.usdoj.govlbjs/reentry/releases.htm(lastvisitedDec.3.2005)(notingthat.in
2001,592,000 state prison inmates were released from prison).
217 See NAT'L INST. OF CORR., U.S. DEP'T OF JUSTICE, SERVICES FOR FAMILIES OF
PRISON INMATES, SPECIAL ISSUES IN CORRECTIONS 1 (2002), available at
http://www.nicic.orgipubs/2002/01 7272.pdf (noting that studies have supported the idea that
increased contact between inmates and their families contribute to an inmate's re-integration
into the community).

218 !d. at 6 (indicating that policies and programs focus "on supportive family
relationships or benefiting the children of inmates").
219 See generally Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984) (noting
that conjugal visits may alleviate sexual tension, reduce homosexuality, and serve as an
incentive for good behavior).
220
See MISS. DEP'T OF CORR., CONJUGAL VISITS, available
http://www.mdoc.state.ms.us/conjugal_visits.htm (last visited Dec. 8,2005).

at

Inmates that qualify for conjugal visits are those that are 'A' or 'B' custody (minimum
custody levels) and maintain an acceptable level of good behavior. In addition, eligible
inmates cannot have a rule violation report (a report that is written after a rule is broken such
as fighting, swearing, etc.) in the last 6 months.

[d.

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Fifth, recogmzmg and granting inmates a degree of sexual
expression may enhance inmate safety by decreasing prison rape. 221 By
explicitly recognizing and regulating the conduct, the state can further its
interests in preventing violence and disease associated with prison rape, and
help prisoners learn healthy and responsible sexual behavior prior to reentering the community.222 Examples of this kind of intervention have
already been used in situations involving illegal sex, namely prostitution223
and prohibited sex in other institutional settings, such as nursing homes,224
homes for the mentally retarded,225 and psychiatric settings.226
Finally, permitting a greater degree of sexual expression recognizes
the inherent dignity of human beings, which survives imprisonment. 227
Increasingly, the courts have turned to international human rights law,
which recognizes the dignity of each and every person, to enrich our
impoverished constitutional rights jurisprudence. 228 Both prevention from
221 BONlCE E. CARLSON, ENCYCLOPEDIA OF AMERICAN PRISONS 105, 106 (Marilyn
D. McShane & Frank P. Williams, III eds., 1996) (noting that conjugal visits may alleviate
sexual tension, reduce homosexuality, and serve as an incentive for good behavior).
222

Prison Rape Elimination Act of2003, 42 U.S.C.S. § 1560I(l4)(A)-(F) (2005).

223 See Thompson, supra note 106, at 227 (noting that one benefit of legalized
prostitution is the corresponding health regulations designed to prevent disease outbreak);
Ashley Bollinger, Regulating the World's Oldest Profession: Criminalization,
Decriminalization or Legalization - What is Best for Working Women vs. What Will Work
in the United States? 34 (2005) (unpublished student paper) (discussing how legalization of
prostitution in Nevada has created an environment where the "incidence of disease among
licensed prostitutes is virtually zero") (on file with author); Jenna Casper, Prostitution: A
Celebration or Degradation of Women 10, II (2005) (unpublished student paper) (discussing
legalization of prostitution and the argument of liberal feminists that prostitution should be
treated as an occupation that women should have the right to pursue) (on file with author).

224

Feldkamp, supra note 46.

225

THE ARC, POSITION STATEMENT, supra note 46.

226

Mayers, supra note 46.

227 See International Covenant on Civil and Political Rights art. 10 § I, Dec. 16,
1966,999 U.N.T.S. 171 ("All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person. "). See generally The Special
Rapporteur of the Commission on Human Rights, Report of the Special Rapporteur on the
question of torture and other cruel, inhuman or degrading treatment or punishment, ~ 23,
delivered to the members of the General Assembly, U.N. Doc. A/56/l56 (July 3, 2001),
available at http://www.un.orgldocuments/ga/docs/56/a56156.pdf (expressing concern about
reports of sexual abuse of sexual minorities in detention); Brenda V. Smith, Watching You,
Watching Me, 15 YALE J.L. & FEMINISM 225, 276-88 (2003) (lauding the use of human rights
norms and instruments as way of analyzing prisoners' claims for vindication of rights
insufficiently protected by U.S. Constitution).
228 See, e.g., Roper v. Simmons, 541 U.S. 1040, 1198 (2004) (citing international
law standards in finding that execution of individuals under eighteen years of age violates
the Eighth Amendment); Lawrence v. Texas, 539 U.S. 558, 572-73 (2003) (using

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233

sexual abuse and pennitting greater sexual self-expression are congruent
with international human rights instruments and nonns. 229 Many other
countries recognize this and pennit sexual expression in institutional
settings?30 They pennit sexual contact not only because they recognize that
sexual identity and expression is core to personhood, but also that
pennitting sexual expression accomplishes legitimate correctional goals.
Corrections agencies in the United States would enhance the safety of
prisons and inmates by doing the same.

v. CONCLUSION
The desire for sexual intimacy and sexual expression is a powerful
force that survives imprisonment. 231 Indeed, it is a powerful human desire.
Individuals in custody, despite society's view, maintain their humanity and
personhood. As Judge Posner has written, "[w]e must not exaggerate the
distance between 'us,' the lawful ones, the respectable ones, and the prison
and jail population; for such exaggeration will make it too easy for us to
deny that population the rudiments of humane consideration.,,232 Inmates
can and will find ways to express their desires for freedom, pleasure, and
love. 233 This expression can take the fonn of transgressive sex which, at
base, is a desire to gain control of their environment and those who control
them and their environment?34 Inmates have even found ways to conceive
international law in holding that a Texas statute making it a crime for two persons of the
same sex to engage in consensual sodomy in privacy was unconstitutional).
229 See Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc.
A/CONF/611, annex I (adopted Aug. 30, 1955); Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N.
GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), (entered into force June 26,1987)
[part I Only]; Hearing on the Prison Rape Reduction Act of 2002 Before the Senate
Committee on the Judiciary, 107th Congo (2002) (statement of Dr. Scott Long), available at
http://www.nprec.us/docs/sCatrisk4_slongstatement.pdf (discussing the international laws
against discrimination for sexual orientation and commenting that "every day the lives and
the physical integrity of lesbian, gay, bisexual and transgender people are at stake within our
prison systems, and what they face is torture, and our government is complicit in it and in
many cases responsible for it").

230 See Abu-Jamal, supra note 88, at 140 (explaining that Dutch prison officials
facilitate sex for prisoners in an effort to improve mental health).

231

See supra note 37 and discussion Part III.

232 Johnson v. Phelan, 69 F.3d 144, 152 (1995) (posner, J., dissenting) (dissenting
from the majority decision upholding cross-gender viewing of nude male inmates by female
correctional statI)o
233

See supra Part lILA, C, G.

234

See supra Part III.D.

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Columbia Journal ofGender and Law

[Vol. 15:1

or impregnate their partners in the community. 235 While correctional
authorities have legitimate penological interests in prohibiting the sexual
interactions inmates engage in for safety, trade, and transgression/ 36 they
also have compelling and legitimate penological interests in enhancing
opportunities for sexual expression for inmates. 237 There is great benefit to
acknowledging that inmates do not lose their sexuality once they enter
prison, and that managing these interactions is part of the work required of
corrections agencies. Moreover, appropriate intervention in these
interactions can enhance the safety of inmates, staff and the community,
help agencies realize their correctional goals of providing safe and secure
correctional environments, and encourage rehabilitation of inmates.238 This
approach also preserves scarce correctional resources for serious incidents
of sexual violence that occur in institutional settings. While there is still
much work to be done in outlining the parameters of a workable and
humane approach to enhancing opportunities for inmate sexual expression,
this Article will hopefully serve as an initial step in that direction.

235

See supra Part III.E.

236

See supra Part I1I.B, D, F.

237 See supra Part IV (outlining six legitimate interests that prison officials have in
expanding sexual expression of inmates).
238 See supra Part III.G, notes 186-188 and accompanying text, and Part IV, notes
208-229 and accompanying text.

SEXUALITY AND MARRIAGE

 

 

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