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Copyright (c) 2006 Fordham University School of Law
Fordham Urban Law Journal
January, 2006
33 Fordham Urb. L.J. 571
LENGTH: 12935 words
NAME: Brenda V. Smith*
BIO: * Brenda V. Smith is a Professor at the Washington College of Law. I would like to thank my colleagues for
their helpful suggestions and feedback on this paper. The manuscript of Prof. Pamela Bridgewater and her thoughtful
comments were particularly helpful. I would also like to thank my research assistants, Loren Ponds, Sundeep Patel, and
Nairi Simonian, who provided key research assistance.
... I initially began working on this paper in connection with a project that looked at the transatlantic abolition movement
in the United States and Europe from 1830 to 1870 with a focus on early feminist efforts. ... This paper addresses
the sexual abuse of women in custody as a more contemporary manifestation of slavery. ... Part III will discuss the
congruencies and the differences that exist between the sexual abuse of women in custody and slavery. ... Sexual Abuse
of Women in Prison and Slavery: Congruent Oppression(s)? Slavery and sexual abuse of women in prison share many
congruencies and certainly obvious differences. ... Slavery and the sexual abuse of slaves that occurred as a result of
it were legally sanctioned in the United States, while arguably sexual abuse of women in custody is not. ... Thus, a
congruency of both sexual abuse of women in prison and women in slavery is that sexual abuse was and is used as a tool
of oppression. ... The Thirteenth Amendment applies both in letter and spirit to the protection of slaves and prohibits
slavery--like conditions or treatment, even if the "slave" is a woman prisoner subjected to sexual abuse by the state and its
agents; well beyond the boundaries of punishment for her crimes. ... In the struggle to address sexual abuse of women in
custody, national feminist organizations have been slow to react. ...
I. Introduction
I initially began working on this paper in connection with a project that looked at the transatlantic abolition movement in
the United States and Europe from 1830 to 1870 with a focus on early feminist efforts. n1 In that initial effort, it became
clear that sexual abuse of women in prison and the sexual abuse of female slaves shared many similarities. This paper
addresses the sexual abuse of women in custody as a more contemporary manifestation of slavery. Part II situates the
sexual abuse of women in custody and women slaves in their historical context. Part II also charts the creation of the first
penitentiaries in the United States and the "Reform Movement," led by Quaker women who were also involved in the
abolition movement, and later in the suffrage movement. n2 It further examines the impact that women's entry into male
prisons as workers in the 1970s and 1980s -- pursuant to Title VII n3 -- had on the sexual abuse of women in custody. Part
III will [*572] discuss the congruencies and the differences that exist between the sexual abuse of women in custody and
slavery. Part IV discusses modern advocacy efforts to address sexual abuse of women in custody and explores the relative
lack of advocacy by national women's organizations on this issue. Part V concludes that the sexual abuse of women in
custody is a serious contemporary issue, similar to slavery, and that the appropriate societal response to this problem is
impeded by deeply imbedded views of women in custody as unworthy and undeserving of attention, and to some degree,
as responsible for their own victimization. n4

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33 Fordham Urb. L.J. 571, *572

II. Historical Context of Sexual Abuse of Women in Custody & Women Slaves
Historically, both women in custody and women slaves experienced abuse by those in authority. A review of the
historical contexts of women's imprisonment and slavery demonstrate that sexual abuse of both is deeply imbedded in
both experiences.
A. Sexual Abuse of Women in Custody
As long as there have been prisons n5 and women in them, n6 women have been sexually victimized. n7 Women in the
earliest prisons were poor women, usually of the non--ruling or minority class, and [*574] women who had deviated
from prevailing social norms for their gender. n8
In the 1860s, women reformers in the United States raised public awareness about the increasing number of women
in prison and the terrible conditions of confinement they faced, in particular the sexual abuse of women prisoners by
male guards. n9 These reformers pointed out that men were luring women and girls into prostitution. n10 Women prison
reformers complained that prisons degraded rather than reformed women by subjecting them to sexual abuse. n11 Thus,
the sexual abuse of women existed even in the earliest United States prisons.
Around 1870, there was a movement to improve the conditions of incarcerated women. This "Reform Movement"
n12 was led, in large part, by Quaker men and women involved in, or sympathetic to, the abolition of slavery and gaining
suffrage for women. n13 They [*575] believed that women who had run afoul of the law were in need of reforming,
n14 and thus opened "reformatories" staffed by "matrons" to teach women the skills they needed to make their way in
the world -- sewing, gardening, laundry, and cooking. n15 The Reform Movement lasted until the 1930s, when it lost the
support of some women's groups who felt that women's efforts needed to be focused on gaining the vote for women rather
than prison reform. n16 This "abandonment" left the Reform Movement lethargic and left female prisoners languishing
in institutions that retained the old characteristics of reformatories, n17 without formal backing from established and
respected women's groups. n18 Even after suffrage was granted, there was a definite fracture of the women's movement,
with some feminists voicing the idea that scarce resources were being wasted on the task of "reforming" women offenders.
For the next forty years, women's reformatories became the norm. While they had abandoned many of the more
salutary principles of the Reform Movement, they continued to be run with many of the outer trappings of reformatories
including all female staff and "gender--appropriate" training in cooking, sewing, gardening, and cleaning. n20
[*576] In the 1960s and 1970s, women correctional officers seeking job advancement used Title VII's n21 proscription
against discrimination in employment to obtain positions in male prisons. n22 Concerned with the threat of Title VII
litigation, prison officials supported women's entry into previously all--male settings, despite frequent challenges raised
by male staff and male inmates. n23 As a result, most restrictions on male officers' employment in women's prisons that
predated the Title VII were removed and, by some estimates, male officers working in women's prisons now outnumber
their female counterparts. n24
Women's entry into male institutions and their abandonment of women's institutions created opportunities for male
staff who had been prohibited by custom, if not by law, from working in women's institutions. Male and female correctional
staff's entry into institutions housing female prisoners resulted in complaints, litigation, and reports of sexual abuse. n25
These complaints were met with law [*577] suits requesting same--sex supervision. By and large, male prisoners have
lost challenges to cross--gender supervision. n26 However, female prisoners have had much greater success, with courts
routinely recognizing a greater need and expectation of privacy for women. n27
B. Sexual Abuse of Women Slaves
Sexual abuse was a prominent feature of the enslavement of African women in the United States. n28 While slavery
visited horrific and unimaginable abuse on all slaves, women slaves experienced abuse that was particularly related to
their gender. n29 Women slaves were routinely used as concubines for male slave owners, their relatives and their owner's
guests. n30 They were systematically impregnated by their owners, and at their owner's request, by other slaves in order
to produce children that were sold, worked or in turn bred to raise other slaves. n31 Much of the early abolitionist work
by women reformers, the same reformers who led the movement to create women's prisons, focused on sexual abuse of

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33 Fordham Urb. L.J. 571, *577

female slaves. n32
[*578] In fact, Harriet Jacobs, one of the early female abolitionists and a former slave wrote extensively of the sexual
exploitation of female slaves. n33 At the same time the sexual degradation of female slaves was also used rhetorically
by early women's rights groups who compared their lack of rights to that of female slaves -- making the plea that their
treatment should be better than that of female slaves. n34 Their failure to get that "better" treatment moved them to
abandon both the abolition movement and the reform of women's prisons, in favor of gaining suffrage. n35
III. Sexual Abuse of Women in Prison and Slavery: Congruent Oppression(s)?
Slavery n36 and sexual abuse of women in prison share many congruencies and certainly obvious differences. The
sexual abuse of slaves differed from sexual abuse of women in prison in at least one fundamental and important way -its legality. Slavery and the sexual abuse of slaves that occurred as a result of it were legally sanctioned in the United
States, while arguably sexual abuse of women [*579] in custody is not. n37 It would be tempting to say that sexual
abuse in institutional settings primarily affects women, and therefore -- like slavery -- an identifiable group is targeted for
discriminatory treatment. That, however, is not true. Both male and female prisoners frequently face sexual abuse by both
staff and other inmates as a means of domination. n38
Similar to sexual abuse in prisons, sexual abuse of slaves also was not limited to abuse of females. Though sexual
abuse of male slaves did not take the same form as sexual abuse of women slaves, male slaves were targeted for abuse
related to their sexuality -- often facing castration as a form of oppression. n39 Thus, a congruency of both sexual abuse of
women in prison and women in slavery is that sexual abuse was and is used as a tool of oppression.
A. Sexual Violence as a Tool of Oppression
Sexual violence has been used as a means of oppression, control and retribution against women in custody both
domestically and internationally. n40 On the international stage, in times of war, sexual abuse, usually against women, is
frequently used during investigation [*580] as a means of intimidation or torture. n41 The literature on the experience of
women in slavery and that of women prisoners is replete with accounts of the sexual abuse of women. n42
An offshoot of sexual violence is the complicated relationships that sometimes emerge between captive and captor.
Both in slavery and in prison, the roles of the oppressed and the oppressor can become confused -- sometimes resulting
in relationships that stretch traditional boundaries of captor and captive. n43 There are [*581] many accounts of
women slaves bearing children and having long--term relationships with their owners. n44 The same is true for women in
custody. n45 The reasons for these relationships are quite complex. They can certainly be motivated by love, n46 sexual
desire, n47 or desire to bear children n48 -- even under oppressive conditions. n49 These relationships, in the context of
slavery, were often motivated by need -- the oppressor had access to items that would make slavery or imprisonment more
bearable -- better food or clothing, better work assignments, protection from other oppressors, and increased status within
the framework. n50 The same is true for women prisoners. n51
[*582] Because of the imbalance of power inherent to the position of authority that captors hold over the captured,
the concept of consent may have only limited value in evaluating these relationships. n52 In slavery, however, consent
was not an issue. Slave masters owned slaves and their wives. Neither wife nor slave could protest sexual relations and
had little power over what happened to the products of those unions. n53 Wives and slaves also had little say over the
custody, disposition, and education of children. n54 Unless state law provided otherwise, or separate arrangements were
made prior to marriage, all of a woman's property belonged to her husband. n55 As for slaves, anything they produced -human or material -- belonged to the slave owner.
In prison, staff -- primarily male -- have exploited the prison setting as an opportunity to abuse women prisoners. n56
When courts and state law fail to respond to sexual abuse against women prisoners, [*583] they effectively "privatize"
it. n57 Like slaves, women prisoners have few means to protest these sexual relations. n58 Thus, the authority of the
corrections personnel who have the power to protect women from sexual abuse or ignore and perpetuate that abuse
becomes similar to the patriarchal authority of the husband and slave--owner seen in the nineteenth century.
B. The Impact of Economic and Political Forces on the Institution
Undoubtedly, there were powerful political and economic interests supporting slavery. n59 The political and economic
forces which shape criminal justice policy, and which in turn support imprisonment are powerful as well. n60 Slavery

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33 Fordham Urb. L.J. 571, *583

helped stabilize the economy of the early colonies by providing a cheap source of labor for the [*584] benefit of a
few wealthy landowners. n61 Cheap slave labor was a standard means of economic growth until emancipation, when
slave plantations were dismantled -- and then quickly replaced by prisons. n62 Soon after emancipation, the composition
of prisons shifted from predominantly white to predominantly black. n63 Thus, in spite of -- or perhaps because of -emancipation, the enslavement of blacks was quickly converted to the subjugation of blacks through imprisonment,
furthering the goal of feeding the economy. n64
Prisons have become the primary economic development project in many communities, providing economic growth
and stability to economically marginal communities. n65 Private prison concerns such as Wackenhut and Corrections
Corporation of America n66 are publicly traded on the New York Stock Exchange and build prisons not just in this
country, but around the world. n67 Prisoners are seen [*585] as a commodity that these corporate entities house as a
service to states. In many states, the most powerful labor unions are police and correctional employee unions. n68
Political forces are also strong in promoting imprisonment. Getting "tough on crime" n69 is a certain way to enhance
the political standing of elected officials. With such strong political forces and economic benefit, n70 like the slave
plantations of the past, it is not surprising that sexual abuse of women in the prison system, much like the rape and
breeding of slave women, is often overlooked as one of the byproducts of a necessary institution.
C. Legal Protection From Unwanted Sexual Relations
It goes without saying that there was no legal protection from sexual abuse for female slaves. n71 Women prisoners, at
least, have some legal protection from forced sex by correctional staff. n72 Twenty--three states specifically provide by law
that a prisoner's consent is not a defense to criminal prosecution of staff sexual misconduct. n73 These states recognize
that the difference in power between prisoners and correctional staff negates claims of consent. Notwithstanding this
majority view, there continues to be debate among courts about the ability of prisoners to consent and the impact this
consent should have on the availability of relief for violations [*586] of constitutional rights. n74 Several states have
made it a separate criminal offense for an offender to have "consensual" sex with a staff person. n75 These states, Arizona,
Nevada and Delaware, can separately sanction prisoners and staff for "consensual" sex. n76 Not surprisingly, there are
few criminal prosecutions for custodial sexual misconduct in states against correctional staff. n77
While there is legal protection in the modern context for sexual abuse of women in custody, women prisoners still
have little choice about whether to become sexually involved with correctional staff. Like slaves, women prisoners are
often wholly dependent upon correctional staff for their lives and their livelihoods. Correctional staff, like slave owners,
determine the ways in which women will serve their time: where they will be housed; where they will work; how much
contact they will have with the outside; what they will eat; and how they will be clothed. This exercise of dominion and
control severely limits -- if not obviates -- consent. Like slaves who lacked freedom of choice, women prisoners must often
use their sexuality to negotiate within the prison system. Thus, the sexual abuse of female slaves and female inmates are
congruent and merit legal protection.
The Thirteenth Amendment of the Constitution outlawed slavery and slavery--like conditions by both private and state
conduct. n78 [*587] Courts have construed the Thirteenth Amendment to abolish not only chattel slavery but to "abolish
all prospective forms of slavery" as well. n79 The Thirteenth Amendment, however, has a specific exclusion allowing
such conditions as a punishment for crimes that result from a legitimate conviction. Nevertheless, sexual abuse is "not part
of the penalty" that women prisoners are expected to pay for their crime n80 and thus women prisoners should receive
protection from sexual abuse notwithstanding the Thirteenth Amendment exclusion. The Thirteenth Amendment applies
both in letter and spirit to the protection of slaves and prohibits slavery--like conditions or treatment, even if the "slave" is
a woman prisoner subjected to sexual abuse by the state and its agents; well beyond the boundaries of punishment for her
In the early twentieth century case of Butler v. Perry, n81 the United States Supreme Court held that involuntary
servitude included "those forms of compulsory labor akin to African Slavery which in practical operation would tend
to produce undesirable results." n82 "Involuntary servitude" is broader than the term slavery. n83 Involuntary servitude
is "control by which the personal service of one [person] is disposed of or coerced for another's benefit," n84 whereas
slavery, at least in the U.S. context, is tied to race. n85
[*588] Contemporary criminal involuntary servitude cases reflect an economic view of the Thirteenth Amendment
and have focused primarily on forced labor and peonage. n86 This narrow view, however, fails to recognize that slavery

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33 Fordham Urb. L.J. 571, *588

and involuntary servitude were more than forced labor. In the case of female slaves it was forced sex and reproduction.
The international human rights view of slavery is much more nuanced and has recognized that slavery and slavery--like
conditions include sexual violence which violates the International Covenant on Civil and Political Rights, the Convention
Against Torture, and the Slavery Convention. n87
A competing and more accurate view is that slavery and involuntary servitude were more than economic systems of
free labor, they were complex social systems. n88 For example, women's services included not only those that could have
been provided by substitute wage labor, but also sexual and reproductive services that clearly fall outside the wage--labor
system. n89 Given that, courts have found that Congress intended for the Thirteenth Amendment to prohibit anything
with characteristics of chattel slavery and that there is ample evidence that sexual exploitation of women slaves was a
recognized evil of the chattel slavery system. In much the same way, coerced sexual services of women prisoners should
be considered as falling within the scope of the involuntary servitude prohibition.
Women who are sexually abused while incarcerated are protected by 1983, a provision enacted pursuant to the
Thirteenth Amendment. n90 Section 1983 prohibits deprivation of any rights [*589] guaranteed by the constitution, law
or ordinance by a person acting under color of state laws. n91 Agencies, city officials and individual correctional staff are
persons acting under color of state law for purposes of 1983. n92 Women in custody have successfully used this statute in
litigating cases of sexual abuse in custody, n93 and courts have consistently found sexual abuse creates a cause of action
under 1983 and violates the Eighth Amendment prohibition on cruel and unusual punishment. n94 Likewise, courts have
held that other degrading treatment that does not rise to the level of rape -- including violations of women's privacy -which can be actionable under 1983 and violate the Eighth Amendment of the Constitution. n95 This protection is aimed
at protecting vulnerable citizens from the power of the state.
IV. Feminist Advocacy on Behalf of Women in Prison
Given that the focus of feminist efforts has always been to right the power imbalance between men and women, perhaps
the most surprising congruency between slavery and abuse of women in custody is the lack of consistent and forceful
feminist advocacy. As with slavery, the feminist response to the abuse of female prisoners has been varied and sporadic,
with mixed results as to its impact on the problem.
The history of feminist activism on slavery is mixed. n96 While white feminists often tied their struggle to that of
slaves -- comparing their lack of rights to that of slaves -- they just as often distinguished themselves based on race and
privilege. n97 For example, in [*591] the struggle for the vote, some white feminists parted ways with abolitionists on
giving the franchise to newly emancipated male slaves. n98 They felt strongly that white women should have the right
to vote before black men. n99 Lost completely in that discourse was the situation of black women -- who were dually
burdened by gender and race.
Similarly, modern feminist advocacy on behalf of women in custody has been mixed. In the struggle to address sexual
abuse of women in custody, national feminist organizations have been slow to react. n100 The primary advocates have
been individual women with backgrounds in criminal justice issues, poverty issues or international law. n101 For example,
national women's organizations that were very vocal in lobbying for the passage of the Violence Against Women Act
of 1994 ("VAWA I") n102 have by and large not taken [*592] up the issue of abuse of women in custody. n103 There
was a significant debate among women's groups and church--based organizations about whether to support VAWA I's
initial approach of enhanced penalties and criminalization as the primary method to battle violence against women. As
initially enacted, VAWA I, and as reauthorized in 2000, as VAWA II, the statute has prohibited the use of its funds for
any persons in custody. n104 While initially enacted to prevent male perpetrators from gaining access to funds meant
to assist female victims, the prohibition found in both VAWA I and VAWA II on the use of funds for any individual in
custody, means that the significant number of women in prison with histories of physical and sexual abuse both prior to
and during imprisonment n105 are ineligible for services funded by VAWA II, the largest source of funding nationally for
these programs.
In actuality, modern feminist organizations have been slow to stake out any position on criminal justice except
one related to women [*593] as victims of crime. n106 According to Ratna Kapur, this reticence directly rejects the
mainstream feminists' tendency to adopt the "victim subject" as an ideal model. n107 Kapur attributes such a tendency
to the movement's constant reliance on essentialism as a basis for making claims and seeking relief. n108 Kapur goes on

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33 Fordham Urb. L.J. 571, *593

to note that gender essentialism is seriously flawed because it lumps a large group of women together based on a single
shared experience. In the case of women slaves and women prisoners, the shared experience is sexual violence. Such
a stance, argues Kapur, is oversimplification in its worst form, as this "victim" theory "cannot accommodate a multi-layered experience," which is obtained through the lens of varying cultures, races, religions, and sexual orientations.
n109 This essentialism fails to consider the complexities of individual women's experience of sexual oppression and
accommodations they make in order to survive and achieve some "normalcy" within the confines of the oppression. n110
[*594] Very little feminist advocacy is devoted to the many primarily poor and non--white women who are prisoners.
This contrasts with the historical movement, where women and women's organizations were the primary movers for
improvement and reform of women in the justice system. n111 There exists legitimate critique that this advocacy
was religiously based and focused on making white women who had strayed conform to the middle class standard of
womanhood and motherhood, as women of African descent were not incarcerated in the earliest prisons. n112
In recent efforts to combat the sexual abuse of women in custody, advocates -- not associated with national women's
organizations -- have used a multi--pronged approach that has included litigation aimed at systematic reform, public
education, and legislative reform.
A. Litigation on Behalf of Women
One approach to litigating on behalf of women prisoners is embodied in Canterino v. Wilson, n113 where Susan Deller
Ross, n114 who was employed as an attorney at the U.S. Justice Department, Civil Rights Division, Special Litigation
Division, argued for better programming for a class of women prisoners on equal protection grounds. n115 The prisoners
were contesting the prison's refusal to allow them to take vocational classes viewed as "traditionally male" disciplines,
and instead limited the women's choices to "business office education" and upholstery. n116 The women were ultimately
successful due to Ross's attack on the disparate treatment of men and women prisoners on equal protection grounds,
however, nowhere in the case did any issues regarding sexual abuse of the women prisoners arise.
In 1993, while at the National Women's Law Center, n117 I co--counseled a case, Women Prisoners of the D.C.
Department of Corrections [*595] v. District of Columbia, n118 which challenged a pattern and practice of discrimination
against a class of female prisoners in the District of Columbia. The claims in Women Prisoners included the sexual
abuse of women in three District of Columbia prisons and female prisoners' unequal access to educational, vocational
and religious opportunities. The court found that the District of Columbia and its officials had violated the Fifth and
Eighth Amendments of the Constitution and D.C. Code Section 24--442, which provided for the care and safekeeping of
prisoners and ordered the District to implement practices that remediated the identified problems. n119
This case represented an "equality plus" approach, in which women's rights were asserted within the framework of
Eighth Amendment cruel and unusual punishment violations. Evidence of these constitutional violations was in the form
of compelling prisoner testimony which detailed numerous incidents of sexual abuse. n120 Yet another approach to the
problem of sexual abuse has been to combine human rights and equality advocacy to change female prisoners' conditions
of confinement.
Deborah LaBelle, n121 a Michigan sole practitioner, has litigated several cases in which she has combined international
human rights principles and United States constitutional law to obtain victories on behalf of women prisoners suffering
sexual abuse at the hands of corrections officers. n122 Using human rights in the context of sexual abuse of women in
custody was precipitated by a "confluence of factors", including both domestic and international attention and directives.
[*596] Ellen Barry, n124 the founder of Legal Services for Prisoners with Children in California, however, took
another approach, and focused on maternal and child health issues as litigation targets. n125 For example, in Shumate v.
Wilson, n126 the complaint alleged that the California Institute for Women and the Central California Women's Facility
had "furnished inadequate sick call, triage, emergency care, nurses, urgent care, chronic care, specialty referrals, medical
screenings, follow--up care, examinations and tests, medical equipment, medications, specialty diets, terminal care, health
education, dental care, and grievance procedures, and that the provision of medical care featured unreasonable delays and
disruptions in medication." n127
While these approaches have been quite different, they have all resulted in positive change for women prisoners.
n128 In fact, they represent an evolution of litigation; rather than being formulaic in its approach, essentializing women
in custody, advocacy on behalf of women prisoners has taken many forms and addressed a broad range of women's

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experience in custody -- worker, victim and mother. While litigation is an important tool in combating past abuses, public
education holds the greatest promise of preventing sexual abuse of women prisoners.
B. Public Education
To some extent, the visibility of staff sexual misconduct with inmates and other examples of abuse in institutional settings
in the media have informed the public's perception about the problem of [*597] sexual abuse in institutional settings.
n129 These accounts have convinced a once skeptical public n130 that sexual abuse can and does occur in institutional
A more difficult group to convince has been those in the corrections hierarchy. Schooled to believe that prisoners
always lie n131 -- women prisoners' corrections agencies especially, have been slow to recognize that sexual misconduct
is a pervasive problem in institutional settings. At about the time that the directors of Departments of Corrections began
losing their jobs over sex scandals in prisons, n132 heads of corrections agencies identified sexual abuse of [*598]
individuals in custody as a major problem and took positions decrying these practices. n133
Recognizing the need for training and technical assistance on this issue, the National Institute of Corrections (NIC),
under the leadership of Anadora Moss, n134 who had been involved in directing Georgia's response to a sexual abuse
scandal, n135 began to develop a systemic approach to addressing staff sexual misconduct with offenders. NIC began
an aggressive campaign in 1995 to assist state departments of corrections to address staff sexual misconduct with
inmates -- focusing on leadership, policy, law, management, investigation and agency culture. n136 NIC offered training
programs for key state corrections' decision makers; on--site technical assistance on policy development and the drafting
of legislation; and developed training programs for corrections staff. n137
[*599] While the correctional hierarchy has begun to address its lack of awareness through training and technical
assistance, they have been slow to permit similar training for inmates. n138 Correctional officials believe that inmates
would use the information to control staff by making false complaints of sexual abuse. n139 Many states only mention
sexual violence as part of the brief orientation that inmates receive when they enter the correctional system. n140 The
majority of those that provided more detailed training to inmates do so as part of an agreement reached in litigation. n141
In recent years however, several states have begun to voluntarily offer training about sexual violence to inmates. n142
Advocates critical of the correctional hierarchy have tried remedying this situation by providing [*600] materials to
inmates and the public on preventing and addressing staff sexual misconduct with inmates. n143 Moving beyond public
education and training, legislators have begun to draft and enact legislation penalizing women prisoners' abusers.
C. Legislation Addressing Staff Sexual Misconduct with Inmates
The moving force behind the first piece of modern legislation addressing sexual abuse of women in custody was the
Women's Rights Division of Human Rights Watch, under the leadership of Dorothy Q. Thomas. n144 The Women's
Rights Division had published numerous reports dealing with sexual abuse of women in custody, seeking to document
human rights abuse in the United States, n145 and had received positive response to these reports. For example, Radhika
Coomaraswamy, the United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences,
issued a highly critical report of the United States' practices with regard to women in custody. n146 The report was
delivered at the Fifty--Fifth Session of the United Nations Human Rights Commission in April 1999. n147 Prior to that
meeting, however, the United States Department of Justice embarked on a visual campaign to highlight its interest in
improving the conditions of women in custody. n148 Following up on those reports, the Women's Division gained the
support of Michigan Congressman John Conyers [*601] who introduced the Prevention of Custodial Sexual Assault by
Correctional Staff Act ("Custodial Sexual Assault Act") as part of omnibus legislation reauthorizing the Violence Against
Women Act. n149
The legislation called for the establishment of a registry for correctional employees found involved in custodial sexual
misconduct. n150 It also called for withholding federal law enforcement funds from those states that failed to enact
legislation criminalizing staff sexual misconduct with inmates. n151 While VAWA passed, the Prevention of Custodial
Sexual Assault by Correctional Staff Act did not. n152
Two years later, Human Rights Watch, under the leadership of Wendy Patten, n153 authored another report, No
Escape: Male Rape in U.S. Prisons, n154 this time documenting the sexual abuse of male prisoners. Teaming with Stop
Prisoner Rape, an organization originally founded by male prison rape survivors, n155 but led by a woman, Lara Stemple,

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n156 Human Rights Watch pushed for the enactment of another piece of legislation, the Prison Rape Reduction [*602]
Act of 2002. n157 The initial legislation, which was introduced with bipartisan support, focused primarily on prisoner-on--prisoner sexual assault and provided for penalties only in cases of prison rape. n158 While there was bipartisan
support for the bill, the failure to include 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. n159
The Prison Rape Reduction Act was reintroduced in 2003, with significant amendments -- changing the name to the
Prison Rape Elimination Act (PREA), and including coverage of staff sexual abuse of persons in custody and grants to
assist states in their efforts to prevent, reduce, and prosecute prison rape. n160 The legislation passed unanimously on
September 23, 2003. n161
As enacted, PREA establishes a "zero tolerance" policy for rape in custodial settings, n162 requires data collection
on the incidence of rape in each state, and establishes a National Prison Rape Elimination Commission ("Commission").
The Commission is required to [*603] issue a report on the causes and consequences of prison rape, n163 and to
develop recommendations for national standards on the prevention, detection and punishment of prison rape. n164 While
PREA does not create a private cause of action n165 for prisoners, 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. n166 On an annual basis, the three states with the highest incidence and two states with the
lowest incidence of prison rape will appear before the Review Panel on Prison Rape to explain what they are doing in
their facilities. n167 States and accrediting organizations stand to lose five percent of federal funds for criminal justice
activities for failure to implement or develop national standards. n168 As an incentive [*604] to comply, PREA provides
grant assistance to states to implement practices that reduce, prevent, or eliminate prison rape. n169
Like litigation, the enactment of legislation is a critical element in responding to staff sexual abuse of women in
custody. Legislation sends a message to the public, prisoners and correction staff that sexual misconduct is a serious
public policy concern that merits prosecution and appropriate penalties. Yet, state legislation has not had the broad
prophylactic effect that policymakers, advocates and many corrections officials anticipated. Unfortunately, sexual abuse
in institutional settings is even less likely to be reported and prosecuted than sexual assault in the community. n170
Interestingly, major legislative efforts to address sexual abuse of persons in custody, particularly women in custody, were
for the most part engineered by women who had strong feminist credentials, but worked in organizations that were more
aligned with prisoners rights and human rights. While the influence of feminism is clear, the lack of involvement of
women's organizations in leading this effort was a missed opportunity for feminists and women in custody.
V. Conclusion
The sexual abuse of women in custody is akin to the sexual abuse of female slaves. At base, both slave--owners and
correction officers used sexual domination and coercion of women to reinforce notions of domination and authority over
the powerless. Like women slaves, women prisoners are seen as untrustworthy, promiscuous, and seductive. They are the
archetypal "Dark Lady" who is responsible not only for her own victim--hood, but also for the corruption [*605] of
men. n171 Like women slaves, women in custody have sometimes "chosen" n172 to align with their captors -- for reasons
of convenience, n173 sexual expression, n174 desire, n175 material need, n176 or survival. n177 Because she is the
"other" woman, poor and often [*606] black, she is relegated to the margins, outside of the coalition n178 by traditional
feminists, black men, and those advocating for poor people. n179
While litigation, public education and legislation, have yielded concrete gains in addressing abuse of women in
custody, much remains to be done. Demands for supervision of women inmates by women correctional staff have met with
some success. n180 Poor record--keeping by federal, state and county correctional authorities, however, makes it difficult
to gauge the prevalence of the problem, thereby rendering it anecdotal at best and invisible at worst. n181 This lack of
record keeping or naming the problem means that bad actors can resign prior to or in lieu of being fired or prosecuted,
free to obtain employment in other corrections institutions. n182 It [*607] also means that little accountability exists for
states that fail to remedy the abuse of women in custody. n183
Enactment of VAWA created the largest appropriation of funds to combat violence against women in this nation's
history. Nevertheless, the lack of support or services for women who are abused in custody or who come into custodial
settings with histories of physical and sexual abuse, and are therefore at greater risk for abuse while custody, remains.

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33 Fordham Urb. L.J. 571, *607

n184 Moreover, the lack of visible prosecutions of sexual abuse in custody and appropriate sanctions for those found
guilty n185 sends the message that corrections officials, employees, and agencies can act with impunity. n186 Hopefully,
the passage of the Prison Rape Elimination Act, with its focus on documentation, data collection and the development
of standards will begin to remedy the sexual abuse of women in custody and increase the accountability of states and
correctional officials.
Finally, the record of advocacy by national women's organizations of addressing the concerns of women in custody
is mixed at best. Fortunately, there are a host of creative and determined women advocates who were trained or worked
in women's organizations and took up the concerns of women in custody. These women advocates have addressed not
only sexual violence of women in custody, but health, education, and vocational needs of female inmates. n187 In this
way, they have claimed the history of early feminists abolitionists like Rhoda Coffin, n188 who were able to reconcile
advocacy for women in custody with advocacy that advanced women as a whole.

n1. See Sisterhood and Slavery: Transatlantic Antislavery and Women's Rights (Kathryn Kish Sklar & James
B. Stewart eds., Yale University Press, forthcoming 2006).

n2. See Carole D. Spencer, Evangelism, Feminism and Social Reform: The Quaker Woman Minister and
the Holiness Revival (1999), (search "Spencer") (remarking
that a prominent Quaker woman, Rhoda Coffin, was championed for her trailblazing efforts on behalf of women
prisoners and is credited with founding the first state prison for women, the Women's Prison and Girls' Reformatory
at Indianapolis, Indiana). Spencer notes that Coffin's pioneering work on behalf of women prisoners, including
the passage of legislation in Indiana that resulted in the administration of prisons consisting entirely of women,
contributed to Coffin's image as not only a woman who worked on behalf of women prisoners, but one who
championed the equality of all women in all spheres of life. Id.

n3. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e--2(a) (1994). The text of Title VII is as follows:

It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to
limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin.

n4. This paper is part of a larger scholarly project, which documents, explains, and enhances legal and other
responses to women in custody. See generally Brenda V. Smith, An End to Silence: Prisoners' Handbook on
Identifying and Addressing Sexual Misconduct (2d ed. Washington College of Law 2002); Brenda V. Smith,
Fifty State Survey of State Criminal Laws Prohibiting the Sexual Abuse of Prisoners (2005) (on file with author)
[hereinafter Smith, Fifty State Survey]; Brenda V. Smith, Instructor's Guide: Staff Sexual Misconduct with Inmates
(Nat'l Inst. of Corr. 2002); Brenda V. Smith, Rethinking Prison Sex: Self--Expression and Safety, 15 Columb. J.
Gender & L. 185 (2006); Brenda V. Smith, Sexual Abuse Against Women in Prison, 16 A.B.A. Crim. Just. Mag. 1,

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33 Fordham Urb. L.J. 571, *607

30 (2001); Brenda V. Smith, Watching You, Watching Me: Cross--Gender Supervision of Prisoners, 15 Yale J.L. &
Feminism 225 (2003).

n5. See Stephen P. Garvey, Freeing Prisoners' Labor, 50 Stan. L. Rev. 339, 342 n.16 (1998) (crediting Michel
Foucault with doing seminal work in the area of tracking the historical birth and rise of the penitentiary); see also
Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., 1977) (Pantheon 1975)
(detailing the birth and rise of the prison).

n6. See U.S. Dep't of Justice, Sourcebook on Criminal Justice Statistics Online 2002,
section6.pdf [hereinafter U.S. Dep't of Justice, Online Sourcebook]. Table 6.34 offers statistics on the total number
of women incarcerated in federal and state prisons throughout the country. At the end of 2002, there were 97,941
women incarcerated in the United States, with 86,257 of them being housed in state institutions. The largest number
of women are incarcerated in the South, which includes states from Florida to Texas to Maryland. Id. The median
age of incarcerated women of all ethnicities was thirty--three years old in state prisons and thirty--six years--old in
federal prisons. In the thirty to thirty--four--year--old age group, 129 White women, 662 Black women, and 216
Hispanic women out of every 100,000 in the general population for each racial group were incarcerated. In the
thirty--five to thirty--nine--year--old age group, 106 White women, 566 Black women, and 193 Hispanic women out
of every 100,000 women in the general population for each racial group were incarcerated. See Online Sourcebook,
supra, at Table 6.27; see also Lawrence A. Greenfeld & Tracy L. Snell, U.S. Dep't of Justice, Women Offenders 5-7 (rev. 2000) (indicating crimes, sentences and racial makeup of women prisoners). Greenfeld and Snell found that
sixty--two percent of women incarcerated in state and federal prisons are white, eighty--three percent are black and
forty--seven percent are Hispanic. Id. at 7.

n7. See Nicole Hahn Rafter, Partial Justice: Women in State Prisons, 1800--1935, at 97--98 (1985). Rafter
gives a first--person account of the especially poor situation of women prisoners in the South, detailing their living
conditions, which includes the constant supervision by male corrections officers. Id. She details an account of Molly
Forsha, who was convicted of murder in the mid--1870s, and gave birth to twins while incarcerated at Nevada State
Prison at Carson City -- allegedly as a result of sexual activity with the prison warden. Id. at 98. Rafter also discusses
the opening of the Indiana Women's Reformatory by Charles and Rhoda Coffin in 1873. Id. at 29--33. The Coffins
had observed that the conditions endured by women prisoners when housed with male offenders were abhorrent,
and often resulted in women being forced to engage in sexual activity at the whims of their jailers. This was due
largely to the fact that the male corrections officers held the keys to the women's cells. The Coffins' Reformatory,
as a result, was the first one to employ an entirely female staff. Id. at 29--31; see also Sheryl Pimlott & Rosemary
C. Sarri, The Forgotten Group: Women in Prisons and Jails, in Women at the Margins: Neglect, Punishment and
Resistance 55, 63 (Josefina Figueira--McDonough & Rosemary C. Sarri eds., 2002) [hereinafter Pimlott & Sarri,
The Forgotten Group] (citing an incident of sexual and physical abuse -- and subsequent pregnancy -- at the Auburn
New York State Prison in 1865, which led to the opening of a separate women's facility, the Mount Pleasant Female

n8. See Rafter, supra note 7, at 13 (detailing the viewpoint of early eighteenth century scholar, Francis
Leiber, that convicted women were essentially morally bankrupt, and therefore prone to commit heinous crimes
more quickly and easily than their male counterparts). Rafter notes that Leiber's opinion, shared by many of his
contemporaries, was essentially an articulation of the perception that a woman prisoner personified the archetypal
"dark Lady -- dangerous, strong, erotic, evil -- a direct contrast to the obedient, domestic, chaste ... Fair Lady." This
characterization, Rafter suggests, justified the need to separate the women from men, even when both sexes were
physically present in one prison facility. Id. at 12.

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33 Fordham Urb. L.J. 571, *607

n9. Joanne Belknap, The Invisible Woman: Gender, Crime and Justice 159 (2d ed. 2001) (discussing how,
following the civil war, reformers wanted to limit social disorder by restoring "women's inherent purity").

n10. Id. (noting that it was not unusual for women prisoners to be lashed until they gave in to sex with male
prison guards).

n11. Estelle B. Freedman, Their Sisters' Keepers 59 (1981).

n12. The Reform Movement should be differentiated from the concurrent movement of "Custodial
Imprisonment." Custodial Imprisonment initially supported women and men being housed together, but
subsequently advocated housing women prisoners in separate wings, wards, or floors of men's prisons. Only after
all these manifestations of "separate" areas for housing women prisoners were tested (and failed) did truly separate
women's institutions come about. See Rafter, supra note 7, at 103.

n13. See id. at 24 (crediting a group of Indiana Quakers with starting "the first entirely independent, female-staffed women's prison," which operated on the Reform Movement principle that rehabilitation is preferred to
punishment). Rafter also reports the observations of Dorothea Dix, who noted that Quakers were very active in
what is regarded as the precursor to the opening of actual reformatories: the lay visiting of women inmates at the
Eastern Penitentiary in Pennsylvania. The women at Eastern, numbering roughly twenty at any given time, were
subjected to solitary confinement for the duration of their sentences, although they were allowed to have visitors.
Lay visiting, like the Reformatory Movement, had its roots in religious obligation and the desire to bring some
kind of meaning to the lives of the prisoners. Id. at 15; see generally Julie Roy Jeffrey, The Great Silent Army of
Abolitionism: Ordinary Women in the Antislavery Movement (1998) [hereinafter Jeffrey, The Great Silent Army]
(discussing Quaker women's role in the abolition movement).

n14. See Prisons in America 8 (Nicole Hahn Rafter & Debra L. Stanley eds., 1999) (acknowledging the
"Declaration of Principles," a product of an 1870 meeting of prison officials and scholars in Cincinnati, which
established the primary goal of the Reform Movement as providing "religious, vocational and remedial education
for prisoners").

n15. See Rafter, supra note 7, at 26 (noting that Zebulon Brockway, an early proponent of the Reformatory
Movement, believed that a matronly, respectable woman figure in the presence of the prisoners was an essential
element of reformation). But see Pimlotte & Sarri, The Forgotten Group, supra note 7, at 63 (accusing the Reform
Movement of reinforcing stifling gender and class roles, as well as societal moral standards). Pimlotte & Sarri
posited that the Reform Movement was essentially just another form of punishment.

n16. See Rafter, supra note 7, at 81--82 (describing how the original reformatory population, consisting primarily
of minor offenders, was severely diluted by felons and misdemeanants who were again sentenced to local jails).

n17. Id. at 34--35.

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33 Fordham Urb. L.J. 571, *607

n18. See Belknap, supra note 9, at 162 (stating that "the reform movement for incarcerated women temporarily
died down and there was little change in women's imprisonment in the middle of the twentieth century").

n19. See generally Rafter, supra note 7.

n20. See Canterino v. Wilson, 546 F. Supp. 174, 212 (W.D. Ky. 1982) (concluding that defendants were falling
short of their constitutional obligation to provide a parity of programs and facilities for women, which include the
areas of prison industries, institutional jobs, vocational education and training, and community release programs).

n21. 42 U.S.C. 2000e--2(a) (1994).

n22. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 336--37 (1977) (challenging discriminatory employment
practices in corrections). The Supreme Court determined that gender was a bona fide occupational qualification
(BFOQ) in an Alabama maximum security prison given the poor conditions of confinement, which would have
exposed women staff to sexual assault, but held that height and weight requirements were not bona fide occupational
qualifications. Id. at 332 (discussing height and weight), 336--37 (discussing gender); Hardin v. Stynchcomb, 691
F.2d 1364, 1374 (11th Cir. 1982) (challenging a corrections policy which barred women from applying for deputy
sheriff position; male gender not a bona fide occupational qualification); Griffin v. Mich Dep't of Corrs., 654
F. Supp. 690, 705 (E.D. Mich. 1982) (holding that women were permitted to work in institutions housing male
inmates); Harden v. Dayton Human Rehab. Ctr., 520 F. Supp. 769, 774 (S.D. Ohio 1981) (holding that female
plaintiff had right to work as Rehabilitation Specialist in all male corrections institutions); Gunther v. Iowa State
Men's Reformatory, 462 F. Supp. 952, 958 (N.D. Iowa 1979) (holding that gender is not bona fide occupational
qualification for positions in men's reformatory beyond a certain position); see also Everson v. Mich Dep't of Corrs.,
391 F.3d 737, 761 (6th Cir. 2004) (holding that given the problem of sexual abuse in Michigan's female facilities,
gender--specific posts are reasonably necessary to the normal operation of its female prisons).

n23. See generally Brenda V. Smith, Watching You, Watching Me, supra note 4 (charting courts' jurisprudence
in analyzing claims of cross--gender supervision of male and female inmates).

n24. See Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons 2 (1996)
[hereinafter Human Rights Watch, All Too Familiar]; Online Sourcebook, supra note 6 at Table 1.96 (providing
statistics on prison workers).

n25. See Rita J. Simon & Judith D. Simon, Female Guards in Men's Prisons, in It's a Crime: Women and
Justice 226--41 (Roslyn Muraskin & Ted Alleman eds., 1993) (discussing the entry of male employees into women's
prisons). For example, in Lucas v. White, three female inmates housed at the federal prison in Dublin, California
sued the Federal Bureau of Prisons seeking monetary damages, changes in prison procedures, and staff training.
Robin Lucas, Valerie Mercadel, and Raquel Douthit alleged that they were placed in a men's security unit and
sold as sex slaves by male staff to male inmates. The women prevailed and were each awarded $500,000 in
damages. Significantly, as part of the settlement, the Federal Bureau of Prisons agreed to and undertook a national
training program on staff sexual misconduct with inmates and developed a confidential reporting system to protect
women from retaliation. See Lucas v. White, 63 F. Supp. 2d 1046, 1051 (N.D. Cal. 1999). For further discussion
of litigation that has addressed sexual misconduct of prison staff with women inmates, see infra Section IV.A

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33 Fordham Urb. L.J. 571, *607

(detailing important litigation on behalf of women prisoners that illuminated widespread sexual misconduct against
these prisoners).

n26. Smith, Watching You, Watching Me, supra note 4, at 244--76.

n27. Id.

n28. See generally Pamela Bridgewater, Ain't I A Slave: Slavery, Reproductive Abuse and Reparations, Internal
Faculty Speaker Series (Oct. 29, 2004) (unpublished manuscript, on file with author) (discussing a gender--specific
slavery that took the form of sexual abuse).

n29. Id.

n30. Id. (discussing the sexual exploitation of slaves by their masters).

n31. Id. at 28--35 (discussing the profitable business of slave breeding and the economic benefits of raping and
impregnating female slaves).

n32. See Spencer, supra note 2 (noting that the prominent suffragette, Elizabeth Cady Stanton, advocated prison
reform as a significant prong in her feminist advocacy). Spencer notes that Stanton's prison reform views mirrored
those of Rhoda Coffin, who was a prominent prison reformer in her own right. Specifically, Coffin tied prison
reform to the larger idea of women's rights by characterizing both in terms of "the belief in the value and dignity
of every human being, even the most debased criminal." Id. Stanton was more direct in her approach, arguing
that "fear, coercion, and punishment are the masculine remedies for moral weakness." Id.; see also Nancy A.
Hewitt, Abolition & Suffrage, html?body=abolitionists.html
(last visited Jan. 27, 2006).

n33. See Harriet Jacobs, Incidents in the Life of Slave Girl, Written by Herself 35, 51, 55, 77 (L. Maria Child &
Jean F. Yellin eds., Harvard Univ. Press 1987) (1861).

The slave girl is reared in an atmosphere of licentiousness and fear. The lash and the foul talk of her master and his
sons are her teachers. When she is fourteen or fifteen, her owner, or his sons, or the overseer, or perhaps all of them,
begin to bribe her with presents. If these fail to accomplish their purpose, she is whipped or starved into submission
to their will.

Id. at 51.

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33 Fordham Urb. L.J. 571, *607

n34. Elizabeth Cady Stanton, Address to the Legislature of the State of New York, in Gender and Law: Theory,
Doctrine, Commentary [hereinafter Gender and Law] 57--58 (Katherine T. Bartlett & Angela P. Harris eds., 1998)
("We are moral, virtuous, and intelligent, and in all respects quite equal to the proud white man himself and yet by
your laws we are classed with idiots, lunatics, and negroes ... You place the negro, so unjustly degraded by you, in a
superior position to your own wives and mothers ... .").

n35. Id.

n36. See Slavery Convention of 1926, Sept. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253 (providing the earliest
version of an international treaty denouncing slavery and the trafficking of humans, promulgated by the League of
Nations). This treaty defines slavery as: "the status or condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised." Slavery Convention of 1926, art. 1. This document was later
updated and adopted by the United Nations, and is now called the Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, sec. I, art. 1(a), opened for signature
Sept. 7, 1956, 226 U.N.T.S. 3. Other international human rights documents that contain prohibitions on slavery
include the Universal Declaration of Human Rights, G.A. Res. 217A(III), at 71, U.N. GAOR, 3d Sess., 1st plen.
Mtg., U.N. Doc. A/810 (Dec. 12, 1948) and the International Covenant on Civil and Political Rights, Dec. 19, 1966,
999 U.N.T.S. 171.

n37. See generally Prison Rape Elimination Act (PREA), 42 U.S.C. 15601 (2003); Smith, Fifty State Survey,
supra note 4 (providing a detailed analysis of each state's laws about staff sexual misconduct in prisons, as well as
those codified at the federal level).

n38. See generally Human Rights Watch, No Escape: Male Rape in U.S. Prisons (2001) [hereinafter Human
Rights Watch, No Escape] (documenting the sexual abuse of male inmates in U.S. prisons).

n39. See Jenny B. Wahl, Slavery in the United States,
(noting that castration was one of the punishments male slaves endured).

n40. See Human Rights Watch, Nowhere to Hide: Retaliation against Women in Michigan State Prisons 14-17 (1998) [hereinafter Human Rights Watch, Nowhere to Hide]; see also U.N. Econ. & Soc. Council [ECOSOC],
Comm'n on Human Rights, Report of the Special Rapporteur on Violence Against Women, Its Causes and
Consequences, P 98, U.N. Doc. E/CN.4/1999/68/Add.2 (Jan. 4, 1999) (prepared by Radhika Coomaraswamy)
[hereinafter U.N. ECOSOC, Report of the Special Rapporteur] (noting that a corrections officer, against whom
an allegation of sexual misconduct was filed, retaliated by tearing up the inmate's photographs and destroying the
rest of her personal property); Paula Giddings, When and Where I Enter 34 (1984) (citing the seventeenth century
opinion that one had the "moral" right to take advantage of those weaker than him, and alluding to the fact that such
exploitation manifested itself in many ways, including the sexual exploitation of black slave women by their white
masters) (noting the Platonic idea that women fall into three categories:, "whore, mistress and wife," and stating
that it was obvious into which category the black slave women fell; Human Rights Watch, The Human Rights
Watch Global Report on Prisons (1993) (investigating degrading prison conditions in violation of human rights all
over the world over a six--year period).

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33 Fordham Urb. L.J. 571, *607

n41. See Jan Goodwin, Silence=Rape: While the World Looks The Other Way, Sexual Violence Spreads in
the Congo, The Nation, Mar. 8, 2004, at 18 (reporting on the use of rape as a weapon of war in the Congo); Brian
Knowlton, U.S. Installed Government in Iraq is Cited by U.S. for Rights Abuses, N.Y. Times, Mar. 1, 2005, at
A1 (reporting prosecutions of police officers in Baghdad who systematically raped and tortured female detainees);
Rwanda: Witness Tells of Sexual Assault by Soldiers, Africa News, Sept. 20, 2005 (reporting on a genocide
survivor's testimony at the trial of senior Rwandan military officials about how she was raped by soldiers during
the 1994 genocide); Woman Tells How She Was Tortured By Saddam Thugs, Belfast News Letter, Dec. 7, 2005,
at 17 (reporting how female detainees in Iraqi prisons lost their virginity to guards); The Reach of War: Latest
Report on Abu Gharib: Abuse of Iraqi Prisoners Are Without Question Criminal, N.Y. Times, Aug. 26, 2004, at
A11 (reporting the use of threats of sexual abuse and assault, forced masturbation, and forced nudity to degrade
prisoners of war); Olivia Ward, Rape: A Deadly Weapon of War, Toronto Star, July 24, 2004, at A11 (reporting that
in western Sudan, girls as young as eight are being routinely raped and forced into sexual slavery by Arab militias).

n42. See generally Harriet Jacobs, Incidents in the Life of A Slave Girl, supra note 33, at 27--30 (alluding to
her sexual victimization by her master, Dr. Flint); Human Rights Watch, All Too Familiar, supra note 24; Rafter,
supra note 7, at 59--61 (discussing the sexual abuse of women prisoners at the hands of prison guards and officials);
Bridgewater, supra note 28 (discussing the legal ramifications of raping a black female slave in the U.S.); Daniel
Burton--Rose, Our Sister's Keepers, in Prison Nation: The Warehouse of America's Poor 258, 258 (Tara Herivel &
Paul Wright eds., 2003) (describing the abuses suffered by women prisoners at Correction Corporation of America's
Central Arizona Detention Center in Florence).

n43. The complex relationships that formed between slave and slave--owner is illustrated by the following
narration of a letter written by a female slave, Virginia Boyd, to a slave trader, R.C. Ballard, on May 6, 1853
requesting that he not sell her unborn child, or previous children, all conceived with her masters:

I am in the present in the city of Houston in a Negro traders yard, for sale, by your orders. I was present at the
Post Office when Doctor Ewing took your letter out through mistake and [read] it a loud, not knowing I was the
person the letter alluded to. I hope that if I have ever done or said any thing that has offended you that that you will
for give me, for I have suffered enough Cince in mind to repay all that I have ever done, to anyone, you wrote for
them to sell me in thirty days, do you think after all that has transpired between me & the old man, (I don't call
names) that its treating me well to send me off among strangers in my situation to be sold without even my having
an opportunity of my children to sell his own offspring. Yes his own flesh & blood ... .

See Africans in America: Judgement Day Part 4: 1832--1865 (PBS Television Broadcast, 1999).

n44. See Gender and Law supra note 34, at 47--48 (detailing a relationship between a white man and his freed
slave partner, whom he never married, but with whom he lived for a number of years and fathered two children that
he acknowledged as his own, and to whom he bequeathed the majority of his estate upon death).

n45. See Robert Worley et al., Prison Guard Predators: An Analysis of Inmates Who Established Inappropriate
Relationships with Prison Staff, 1995--1998, 24 Deviant Behav.: An Interdisc. J. 175, 181--93 (2003) (discussing
how some inmates pursue consensual, romantic relationships with correctional employees).

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33 Fordham Urb. L.J. 571, *607

n46. See Stephanie L. Phillips, Claiming our Foremothers: The Legend of Sally Hemings and the Tasks of
Black Feminist Theory, 8 Hastings Women's L.J. 401, 405 (1997) (detailing her theory for the "love story" dynamic
between a black slave and her white master as an explanation for a sexual relationship, and citing as an example
the love affair between Sally Hemings and Thomas Jefferson); see also Kathleen Trigiani, Societal Stockholm
Syndrome, of cave/sss. html (describing the bank robbery, hostage situation and
ensuing close relationships between the hostages and the robbers that gave the syndrome its name and characterizing
the syndrome as possibly attributable to the true "emotional bonding between captors and captives"). Trigiani notes
that two of the hostages from Stockholm eventually became engaged to two of the bank robbers. Id.

n47. See Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire 101 Colum. L. Rev.
181, 205 (2001) (inviting feminists to rethink women's sexuality and desire as being outside of the confines of
reproduction, and suggesting that sexual desire is malleable, and often shaped by a woman's environment).

n48. See id. at 186:

Reproduction raises numerous sticky normative questions, yet underexplored within feminism, with respect to
choice, coercion, and policies that incentivize or disincentivize reproductive uses of women's sexual bodies -- not
only for women who occupy law's margins, such as lesbians and women of color, but also for women whose
reproduction we regard as unproblematic.

It goes without saying that women prisoners would likely be categorized in the group of "problematic reproducers,"
along with lesbians and women of color.

n49. See supra notes 41--44 and accompanying text.

n50. See Deborah G. White, Aren't I A Woman: Female Slaves in the Plantation South 99--120 (1990)
(describing how black female slaves were often rewarded with extra food, better clothing, and an increased standing
in the slave community if they submitted to their owner's sexual advances).

n51. See Anthea Dinos, Custodial Sexual Abuse: Enforcing Long--Awaited Policies Designed to Protect Female
Prisoners, 45 N.Y.L. Sch. L. Rev. 281, 283--84 (2000) (highlighting the unequal distribution of power between
corrections officers and prisoners, and noting that the former are aware of the latters' dependency on them for "basic

n52. See Carrigan v. Davis, 70 F. Supp. 2d 448, 459--61 (D. Del. 1999) (discussing inmates' inherent lack of
meaningful capacity to consent to sexual contact with correctional institution staff); see also U.N. Econ & Soc.
Council [ECOSOC], Comm'n on Human Rights, Report of the Special Rapporteur on Violence Against Women,
Its Causes and Consequences, P 55, U.N. Doc. E/CN.4/1999/68/Add.2 (Jan. 4, 1999) (prepared by Radhika
Coomaraswamy) [hereinafter U.N. ECOSOC, Report of the Special Rapporteur] (attributing the ease with which
corrections officials are able to exploit women prisoners to the hierarchical nature of the prison system, as well as
to the inherent power imbalance that is attendant to such a hierarchy).

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33 Fordham Urb. L.J. 571, *607

n53. See generally Claire Midgley, British Abolitionism and Feminism in Transatlantic and Imperial Perspective,
in Sisterhood and Slavery (forthcoming 2006) (manuscript at 3, on file with the author) (noting that the "abolitionist-feminist" form of rhetoric as was by the Garrisonian--American suffragettes to "equate sexual and racial bondage");
Karen Offen, How and Why the Analogy of Marriage with Slavery Provided the Springboard for Women's Rights
Demands in France, in Sisterhood and Slavery (forthcoming 2006) (manuscript at 3, on file with the author)
(remarking that the earliest French scholars' allusions to slavery were not race--specific, but rather focused on sex
when discussing the imbalance of power and rights).

n54. See James Mellon, Bullwhip Days: The Slaves Remember, An Oral History 197 (1988) (giving first-person accounts of the prohibition on slaves literacy). Some slaves, however, did learn to read and write, usually
from mistresses sympathetic to their plight. Unfortunately, many more unlucky slaves had owners who would cut
off fingers or entire hands if they caught slaves reading or writing. Id.

n55. See Norma Basch, In The Eyes of the Law, in Gender and Law: Theory, Doctrine, Commentary 15
(Katharine T. Bartlett & Angela P. Harris eds., 1998) (discussing the common law position that the matrimonial
union of a man and woman resulted in one legally--recognized being, the man).

n56. It cannot be assumed that women prisoners are entirely safe when they are in the absolute control of
female guards rather than male guards. See Daskalea v. District of Columbia, 227 F.3d 438, 443 (D.C. Cir. 2000)
(describing how a female sergeant forcibly restrained an inmate, as another inmate sexually assaulted her).

n57. See Kim Shayo Buchanan, Beyond Modesty: Privacy in Prison and the Risk of Sexual Abuse, 88 Marq. L.
Rev. 751, 754 (2005). "This uncritical judicial deference, which abandons prisoners' well--being almost entirely to
the discretion of guards and wardens, effectively privatizes the abuse of prisoners: prisoners, and their treatment,
have been removed from the public realm." Id. at 763; see also Teresa A. Miller, Keeping the Government's Hands
Off Our Bodies: Mapping a Feminist Legal Theory Approach to Privacy in Cross--Gender Prison Searches, 4 Buff.
Crim. L. Rev. 861, 882 (2000--2001) (remarking that although prisons are quintessentially public institutions, they
exist within a separate, "closed" sphere of discipline and punishment).

n58. See Danielle Dirks, Sexual Revictimization and Retraumatization of Women in Prison, 32 Women's Stud.
Q. 102, 107, 110 (2004) (discussing the inadequate reporting procedures, threats of retaliation, and the author's
belief that "imprisonment necessitates that these women have no choice but to comply").

n59. See Bridgewater, supra note 28, at 113--14 (detailing the sexual exploitation of female slaves, and noting
that while such domination resulted in the "physical exploitation" of the women, there were also economic
incentives; sexual exploitation was a method of forced breeding, which resulted in more slaves, which increased the
owner's personal wealth).

n60. See Bonnie Kerness, Breeding Monsters, Fortune News, Summer 2001,
reeding%20Monsters.htm (noting that the prison industry is among those that are growing the fastest in the United
States, and suggesting that those viewed as "economic liabilities" in free society become "economic assets" once

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33 Fordham Urb. L.J. 571, *607

incarcerated). Kerness, the Associate Director of the Criminal Justice Program of the American Service Friends
Committee, goes on to suggest that those who are most often perceived as economic liabilities are young men of
color. Id. This is reflected in prison statistics. See Online Sourcebook, supra note 6, at Table 6.27 (reporting that
in 2002, for every 100,000 prisoners, 3,437 were Black men as compared to only 450 White men); see generally
Marc Mauer, Race To Incarcerate (rev. & updated 2d ed., 2006) (examining the explosion of the prison population
in the last twenty--five years, discussing which demographic groups have been disproportionately impacted by the
explosion, and inquiring whether the explosion has had a positive effect on curtailing crime); Angela Y. Davis,
Masked Racism: Reflections on the Prison Industrial Complex, Color Lines (Fall 1998),
Lines/CLArchive/story1 2 01.html (discussing the inherent racism that exists in the ideology behind incarceration,
and suggesting that the American public has been hoodwinked into believing that incarceration is a necessary evil
if public safety is not to be sacrificed).

n61. Randall G. Shelden, Center on Juvenile and Criminal Justice, Slavery in the Third Millennium 2 (2005),
available at www.sheldenessays/com/res thirteen.htm.

n62. See Michael Stephen Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and
South Carolina, 1767--1878 (1980) (describing the transition from prison to plantation and to prison again in the
development of South Carolina and Massachusetts colonies); see also Garvey, supra note 5, at 339--57.

n63. See generally Shelden, supra note 61, at 2--5 (discussing convict leasing and how it helped to perpetuate

n64. See Hindus, supra note 62; Garvey supra note 5, at 355 (stating that prison labor in the form of convict
leasing "formed a vital part of the postbellum system of racial oppression" which "prevented the migration of
emancipated blacks out of the South and kept their wages artificially depressed").

n65. See James Brooke, Prisons: A Growth Industry for Some; Colorado County is a Grateful Host to 7,000
Involuntary Guests, N.Y. Times, Nov. 2, 1997, at 120. Brooke's article examines Fremont County, Colorado, home
to the Federal Bureau of Prisons's ADX Supermax prison, as well as three other federal prisons, and details the
ways the presence of the prisons boosted the local economy. Id. Specifically, Brooke notes that the "four [federal]
institutions employ slightly more than 1,000 workers, with an average salary of about $30,000." Id.

n66. For more information on Corrections Corporation of America and Wackenhut Corporation, visit their
websites at and www.correctionscorp. com.

n67. See Rick Brooks, Prison Concern Agrees to Settle Inmate Lawsuit, Wall St. J., Mar. 2, 1999, at 1 (reporting
that Prison Realty agreed to pay $1.65 million to settle a lawsuit instituted by prisoners at its Youngstown, Ohio
facility, and also noting that Prison Realty was formed as a result of a merger of Corrections Corporation of America
with CCA Prison Realty); Business Brief, Prison Realty Corp: Medium--Sized Facility is Being Built in Arizona,
Wall St. J., Mar. 9, 1999, at 1 (discussing the private Prison Realty's business of building and managing corrections
and detentions facilities, and noting that the company expected the new Arizona facility to generate yearly receipts
of about $31 million; see generally Joseph T. Hallinan, Going Up the River: Travels in a Prison Nation (2001)
(exploring all aspects of the private prison industry, and offering a critique of the system, which combines with

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33 Fordham Urb. L.J. 571, *607

political and economic forces to incarcerate more and more people every year).

n68. See COs Major Part of Union's Success, 9 AFSCME Corrections United News 2, 4 (2002) (discussing
trends that have emerged in the past year that show how an increasing number of corrections officers, especially
in Kentucky and Puerto Rico, are organizing themselves to seek better pay and benefits); Mark Lifsher, Union
Aims To Battle Prison Firms, Wall St. J., Apr. 21, 1999, at CA1 (discussing the attempts of a California union,
the Correctional Peace Officers Association, to block the building of two private prisons, built by competitors
Corrections Corporation of America and Wackenhut Corrections Corporation).

n69. See generally George M. Anderson, Parole Revisited, Am. Mag., Mar. 4, 2002, available at 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).

n70. See Garvey, supra note 5, at 370--71 (noting that in 1993 the Federal prison labor's net sales exceeded $400

n71. See supra note 41 and accompanying text; Bridgewater supra note 28, at 24--27 (stating that "enslaved
women were without legal recourse because they had no standing, under civil or criminal law, to accuse their
owners of rape").

n72. See generally PREA, 42 U.S.C. 15601 (2003); Smith, Fifty State Survey, supra note 4.

n73. See Smith, Fifty State Survey, supra note 4.

n74. See Carrigan v. Davis, 70 F. Supp. 2d 448, 458--61 (D. Del. 1999) (discussing whether it is appropriate
to characterize the "consensual" sexual activity as true consent or as waiver, and ultimately deciding that the
heightened standard of a "voluntary, knowing and intelligent" waiver applies when determining whether the inmate
consented to a violation of her constitutional rights); see also New Hampshire v. Foss, 804 A.2d 462, 465--66 (N.H.
2002) (elucidating the theories of consent (victim--focused) and coercion (corrections officer--focused)). The court
held that even if the inmate did consent, the defendant is barred from arguing that such consent is a complete
defense to coercion. Id. at 465. Nevertheless, the court found that the state had failed to prove that the defendant-correctional officer had coerced the inmate to have sex and overturned the defendant's conviction. Id. at 467.

n75. See generally Smith, Fifty State Survey, supra note 4 (providing a detailed analysis of each state's sexual
misconduct in correctional institution laws, as well as those codified at the federal level).

n76. See Ariz. Rev. Stat. Ann. 13--1414(B) (1989); Del. Code Ann. tit. 11, 1259 (1995); Nev. Rev. Stat. 212.187(1)

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33 Fordham Urb. L.J. 571, *607

n77. See also Beck & Hughes, infra note 166, at 9 (reporting that "the most common sanction imposed on staff
involved in sexual harassment of inmates was discipline but not discharge or prosecution").

n78. See U.S. Const. amend. XIII, 1 ("Neither slavery nor involuntary servitude, except as a punishment for a
crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to
its jurisdiction."); see also, Akil Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney,
105 Harv. L. Rev. 1359, 1359 (1992) ("The Amendment embraced not only those slaves with some African ancestry,
but all persons, whatever their race or national origin."); Joyce E. McConnell, Beyond Metaphor: Battered Women,
Involuntary Servitude And The Thirteenth Amendment, 4 Yale J.L. & Feminism 207, 212 (1992).

n79. McConnell, supra note 78, at 212.

n80. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

n81. 240 U.S. 328 (1916).

n82. See Butler, 240 U.S. at 332; see also Robertson v. Baldwin, 165 U.S. 275, 282 (1897). Thus, the forms
of involuntary servitude are varied. Peonage is a form of involuntary servitude prohibited by the Thirteenth
Amendment arising from the indebtedness to a master. Labor is coerced, either through legal sanction or physical
force or threats of either, to pay off debt. Clyatt v. United States, 197 U.S. 207, 215--18 (1905). Involuntary servitude
is also the "compulsion of ... service by the constant fear of imprisonment under the criminal laws" where a person
fined for a misdemeanor could contract with another to pay off his or her debts, but the law has made the breach of
the contract a crime. United States v. Reynolds, 235 U.S. 133, 146 (1914).

n83. See Clyatt, 197 U.S. at 215--18.

n84. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U.L. Rev. 480,
491 (1990).

n85. Slavery for Akil Amar is not tied to race. He defines slavery as "a power relation of domination,
degradation, and subservience, in which human beings are treated as chattel, not persons." Akhil Reed Amar &
Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev.
1359, 1359 (1992). The problem with this definition is that the word chattel implies forced labor.

n86. See id.

n87. International Covenant on Civil and Political Rights, supra note 36, art. 8; Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1 1, art. 2 3, G.A. Res. 39/46, Annex, U.N.
GAOR 39th Session, Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984); Slavery Convention, supra note 36.

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33 Fordham Urb. L.J. 571, *607

n88. The Compelling Need of Diversity in Higher Education, Expert Report of Eric Fonor, Gratz v. Bollinger et
al., No. 97--75321 (E.D. Mich. 1998) ("The breadth of the impact of slavery and involuntary servitude challenges
the rigid theoretical boundaries between public and private, the market and family spheres.").

n89. See Judy Scales--Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights,
24 Harv. C.R.--C.L. L. Rev. 9, 26 ("Black women ... performed a reproductive function which was crucial to the
economic interest of the slaveholders."); see also A Documentary History of the Negro People in the United States,
309, 313 (Herbert Aptheker ed., 1951) (Frederic Douglas stated, "more than a million women ... through no fault of
their own, [are] consigned to a life of revolting prostitution ... slave breeding is relied upon ... . Every slaveholder is
... a guilty party ... he deserves to be held up before the world as the patron of lewdness.").

n90. See, e.g., Riley v. Olk--long, 282 F.3d 592, 597 (8th Cir. 2002) (holding officials liable in official and
personal capacity under 1983 for rape of female prisoner by correctional officer ); Women Prisoners of the D.C.
Dep't of Corrs. v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994) (overturned in part on other grounds)
(concluding that the district was liable under 1983 for Eighth Amendment violations because corrections officials
were "deliberately indifferent" to physical and sexual assaults the prisoner suffered, to medical care and to living
conditions at two facilities, and fire safety at one); Daskalea v. District of Columbia, 227 F.3d 433, 444 (D.C. Cir.
2000) (holding the District of Columbia liable for the 1983 violation where a prisoner was forced to dance naked
upon a table in the cafeteria); see generally Nathan Newman & J.J. Gass, Brennan Center For Justice at N.Y. Univ.
Sch. of Law, A New Birth of Freedom: The Forgotten History of the 13th, 14th, and 15th Amendments (2004),
available at

n91. See 42 U.S.C. 1983 (stating that "every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person with the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law suit in
equity, or other proper proceeding for redress").

n92. Gilmore v. Salt Lake Cmty. Action Program, 710 F.2d 632, 637 (1983) (finding that a state agency is a state
actor, although not all actions by the agency may be state actions); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
452 (5th Cir. 1994), cert. denied, 513 U.S. 815 (1994) (holding that state employees, when acting in their official
capacity, are state actors under 1983); see also Riley, 282 F.3d at 597 (holding prison officials liable in official and
personal capacity under 1983 for rape of female prisoner by correctional officer).

n93. See, e.g., Riley, 282 F.3d at 597; Women Prisoners, 877 F. Supp. at 665.

n94. See Riley, 282 F.3d at 597; Women Prisoners, 877 F. Supp. at 665.

n95. Women Prisoners, 877 F. Supp. at 665 ("The lack of privacy within (prison) cells and the refusal of some
male guards to announce their presence in the living areas of women prisoners constitute a violation of the Eighth
Amendment since they mutually heighten the psychological injury of women prisoners."); Schwenk v. Hartford, 204

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33 Fordham Urb. L.J. 571, *607

F.3d 1187, 1196--97 (9th Cir. 2000) (holding that guard's attempted rape of prisoner constituted Eighth Amendment
violation); Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) (upholding jury verdict for violation of privacy interests of
female inmate who was forced to undress in the presence of male guards); Forts v. Ward, 621 F.2d 1210, 1217 (2d
Cir. 1980). Forts held that the privacy of female inmates was protected under 1983 where male guards were accused
of viewing female inmates while sleeping, changing clothes or using the toilet. The district court's injunction was
only reversed because the state had suggested accommodations of those interests, such as the issuance of nighttime
garments and allowing the cell windows to be covered for periods at night.

n96. See Nell Painter, Sojourner Truth: A Life, A Symbol, in Gender and Law, supra note 34, at 107--09
(criticizing Frances D. Gage's account of Truth's famous "Arn't I A Woman?" speech, and accusing Gage of
"playing on the irony of white women advocating women's rights while ignoring women who [were] black.").
Women abolitionists particularly sympathized with women slaves because of the sexual oppression that women
slaves suffered. See Ellen C. DuBois, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and
the United States Constitution, 1820--1878, 74 J. Am. Hist. 836, 839--40 (1987); Stanton, supra note 35, at 102--05
(comparing the rights of women to the rights of slaves). There were, of course, several abolitionist factions, and these
different factions and the women who belonged to them held differing viewpoints regarding the equality of blacks
and whites. See Rhoda V. Magee Andrews, The Third Reconstruction: An Alternative to Race Consciousness and
Colorblindness in Post--Slavery America, 54 Ala. L. Rev. 483, 493 (2003). Some believed in the gradual granting of
civil and political rights, while others were much more insistent upon the immediate equality of slaves. See Jeffrey,
The Great Silent Army, supra note 13, at 18 (discussing the faction of the Society of Friends (Quakers) in the late
1820s, and noting that the Orthodox Friends largely became followers of William Lloyd Garrison, who regularly
called for immediate emancipation in his abolitionist newspaper, The Liberator). Others simply were not interested
in abolition, insofar as it impeded the granting of rights to women exclusively. See Gender and Law, supra note 34,
at 109--10 (detailing feminist efforts to play on pro--slavery feelings in order to obtain the vote for women).

n97. Compare Declaration of Sentiments, in Gender and Law, supra note 34, at 56 (analogizing the oppressive
situation of white women with that of slaves, and characterizing the white marital dynamic as the same as that
between master and slave) with Sojourner Truth: Reminiscences by Francis D. Gage, Akron Convention, in Gender
and Law, supra note 34, at 65 (citing Gage's experiences at the convention where Truth gave her famous speech,
and noting the horror many white suffragettes exhibited when confronted with the prospect of a free black woman
speaking in front of white men -- the same men they viewed as the "masters" of their fates). Gage memorialized one
convention attendee's plea: "Don't let her speak, Mrs. Gage, it will ruin us. Every newspaper in the land will have
our cause mixed up with abolition and niggers, and we shall be utterly denounced." Id.; see also Mary L. Clark, The
Founding of the Washington College of Law: The First Law School Established by Women for Women, 47 Am. U.
L. Rev. 613, 633--47 (1998) (detailing the founding of Washington College of Law by two "radical," white women,
Ellen Spencer Mussey and Emma Gillett). While Gillett was only able to obtain her law degree because Howard
University School of Law, a historically black law school, admitted her, she and co--founder Ellen Spencer Mussey
refused admission to blacks -- male or female -- at Washington College of Law. Id.

n98. See Stanton, supra note 34.

n99. See Bell Hooks, Ain't I A Woman? 127--131 (1981) (acknowledging the pervasive racism during the early
years of the (white) women's rights movement, and commenting on the opposition met by many prominent, black
women leaders of the era, including Sojourner Truth, Mary Church Terrell, and Josephine Ruffin).

n100. By national feminists organizations, I refer to the National Partnership on Women and Families (formerly

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33 Fordham Urb. L.J. 571, *607

Women's Legal Defense Fund), Legal Momentum (formerly National Organization for Women Legal Defense and
Education Fund), and the National Women's Law Center.

n101. For example, consider the pioneering work of Deborah LaBelle, counsel in Everson v. Michigan
Department of Corrections, 391 F.3d 737, 753 (6th Cir. 2004) (concluding that female gender is a BFOQ for
the corrections officers, resident unity office positions, and program specialist, U.S. Dept. of Justice, National
Institute Of Corrections) and Glover v. Johnson, 198 F. 3d 557 (6th Cir. 1999) (moving to terminate District
Court's jurisdiction over plan to remedy equal protection violations identified in female inmates' civil rights action).
LaBelle recently authored an article alleging that judicial neglect and gender bias combine to create conditions
of incarceration that violate our basic precepts of fairness and humane treatment. See Women, the Law, and the
Justice System: Neglect, Violence, and Resistance, in Women at the Margins: Neglect Punishment, and Resistance,
supra note 7, at 347. Other trailblazing women include, Anadora Moss, former Assistant Deputy Commissioner of
Operations for the Georgia Department of Corrections (engineered the Department of Justice, National Institute Of
Corrections' response to sexual abuse of women in custody); Dorothy Q. Thomas, former director of the Human
Rights Watch (author of numerous reports of human rights violations against women in custody in the U.S.); Sheila
Dauer, head of the Women's Rights Division of Amnesty International; and Geri Green, counsel in Lucas v. White,
63 F. Supp. 2d 1046 (N.D. Cal. 1999) (litigating in response to allegations that male officers repeatedly gave male
inmates access to female inmates for sex).

n102. Violence Against Women Act of 1994, Pub. L. No. 103--322, 108 Stat. 1902 (codified as amended in
scattered sections of 42 U.S.C. and 18 U.S.C.) (VAWA I), reauthorized in Victims of Trafficking and Violence
Protection Act of 2000, Pub. L. No. 106--386, 114 Stat. 1462 (codified as amended in scattered sections of 42
U.S.C., 22 U.S.C. 7101--7710) (VAWA II).

n103. A notable exception is the National Women's Law Center, where I litigated Women Prisoners of the
D.C. Department of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), one of the seminal
cases addressing sexual abuse of women in custody. The National Women's Law Center was also one of the few
organizations that did not support VAWA I, because of the impact of the enhanced criminal penalties on Native
Americans and its failure to provide funding for services for women prisoners affected by sexual and domestic
violence. The National Women's Law Center also supported a legal services program for women prisoners in the
District of Columbia for nine years. This critique does not attempt to evaluate the effort of local women's groups
and women's commissions who have consistently made efforts to address the needs of women in custody.

n104. The Attorney General makes funds available to assist victims of abuse pursuant to the Victims of Crime
Act (VOCA), through the Victims Assistance Grant Program, which states that "subgrantees 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.
56444--01 (Sept. 3, 2002). There is no acknowledgement in the report that prisoners could themselves be victims.
The exclusion of prisoners continued with the reauthorization of VAWA II, supra note 102.

n105. See Angela Browne et al., Prevalence and Severity of Lifetime Physical and Sexual Victimization Among
Incarcerated Women, 22 Int'l J.L. & Psychiatry 301, 319 (1999), reprinted in 3 Crim. Just. Rep. 74 (2002) (noting
that the time incarcerated women spend in prison can be used to their advantage, and "targeted interventions" would
likely provide ease in making the transition to life in prison as well as re--transitioning to life outside of prison).
VAWA II does not provide funding for this targeted intervention, even though the majority of incarcerated women
have been victims, at one time or another, of sexual or non--sexual violence. See also Greenfeld, supra note 6, at 1

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33 Fordham Urb. L.J. 571, *607

(reporting that six in ten women in state prisons has experienced physical or sexual abuse in the past).

n106. See Ratna Kapur, The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in
International/Post--Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. J. 1, 5--6 (2002); see also Elizabeth Bruch,
Models Wanted: The Search For An Effective Response to Human Trafficking (unpublished manuscript, on file
with author) (criticizing traditional approaches to human trafficking that focus on the sexual victimization of
women and fail to account for the complexities surrounding sex work, exploitive labor, migration, and related
issues); Leti Volpp, Talking "Culture": Gender, Race, Nation, and The Politics of Multiculturalism, 96 Colum. L.
Rev. 1573, 1585 (attacking Doriane Lambelat Coleman's interpretation of "victimhood," and suggesting that instead
of weighing competing interests within the narrow confines of the law, as Coleman does, one should approach
"victimhood" as " more contingent, and less categorical").

n107. See, e.g., 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); Catharine 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); Susan W. McCampbell & Allen L. Ault,
Lessons Learned, Miles to Go, Preventing Staff Sexual Misconduct with Offenders, 18 Amer. Jails 37 (2005). But
see Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 Colum. L. Rev. 304.
353--86 (1995) (questioning how feminists might formulate theories that highlight both women's oppression and
the possibilities of women's agency under oppression); Katharine T. Barlett, MacKinnon's Feminism: Power on
Whose Terms?, 75 Cal. L. Rev. 1559, 1565 (1987) (reviewing Catharine 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.").

n108. Kapur, supra note 106, at 6--11.

n109. Id. at 6.

n110. See Worley, supra note 45, at 178 ("Rather, prisoners can, through staff manipulation, actively exert
control over their personal situation to mediate or lessen the pains of imprisonment.").

n111. See supra notes 7, 13 and accompanying text (discussing women's activism in the reform movement).

n112. See Rafter, supra note 7, at 13.

n113. 546 F. Supp. 174 (W.D. Ky. 1982).

n114. Professor Ross is currently Director of the Georgetown Law Center's Women's International Human
Rights Clinic. See Georgetown Law, (search "Faculty," then "Faculty Profiles,"
then "Susan Deller Ross").

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33 Fordham Urb. L.J. 571, *607

n115. Canterino, 546 F. Supp. at 180.

n116. Id. at 188--89.

n117. Though I was able to pursue work related to women in custody for nine of the ten years that I worked at
the National Women's Law Center, that work did not continue after my departure.

n118. See Women Prisoners of the D.C. Dep't of Corrs. v. District of Columbia, 877 F. Supp. 634, 639--43,
656--62 (D.D.C. 1994) [hereinafter Women Prisoners I]; stay denied and motion to modify granted in part, Women
Prisoners of the D.C. Dep't of Corrs. v. District of Columbia, 899 F. Supp. 659 (D.D.C. 1995; vacated in part,
remanded, Women Prisoners of D.C. Dep't of Corrs. v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996); cert.
denied, Women Prisoners of the D.C. Dep't of Corrs. v. District of Columbia, 520 U.S. 1196 (1997).

n119. Women Prisoners I, 877 F. Supp. at 664--65.

n120. Id. at 639--41.

n121. Deborah LaBelle See American Civil Liberties Union, (search "LaBelle"); Open
Society Institute, areas/justice fellows/grantees/deborah labelle. She
is a Senior Soros Fellow and cooperating attorney with the ACLU and has an impressive body of legal and scholarly
work on issues involving women in prison, juveniles, and discrimination against individuals who are Lesbian, Gay,
Bisexual, or Transgendered.

n122. See Mich. Dep't of Corrs., 391 F.3d at 756--58 (litigating right of female inmate survivors of sexual
abuse to same gender supervision in housing units under the Fourth, Eighth, and Fourteenth Amendments of the

n123. See Sexual Abuse of Women in Prison: A Thematic Case Study, in Close to Home: Case Studies of
Human Rights Work in the United States 99--101 (Larry Fox & Dorothy Q. Thomas eds., 2004), available at articles/docs/close to home/part4.pdf [hereinafter Close to Home]
(chronicling a series of events spearheaded by recognizable human rights organizations, starting with the publishing
of All Too Familiar by the Human Rights Watch in the United States, and culminating with a visit from the Special
Rapporteur on Violence Against Women, Radhika Coomaraswamy).

n124. Ellen Barry is the founding Director of Legal Services for Prisoners with Children (LSPWC). See
LSPWC, (search "Ellen Barry").

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33 Fordham Urb. L.J. 571, *607

n125. See for a list of cases filed by Ellen Barry and
Legal Services for Prisoners with Children.

n126. No. CIV S--95--0619 (E.D. Cal. Aug. 21, 2000).

n127. Plata v. Davis, 329 F.3d 1101, 1103 (9th Cir. 2003) (citing Shumate v. Wilson, No. CIV S--95--0619 (E.D.
Cal. Aug. 21, 2000)).

n128. See Close to Home, supra note 123, at 98--101 (discussing the efforts of Smith, LaBelle, and Barry to
help prisoner--victims who suffer as a result of an inadequate legal system and widespread abuses).

n129. See, e.g., Army Calls Sex Bias Widespread, Dallas Morning News, Sept. 12, 1997, at 1A ("sexual
harassment exists throughout the Army crossing gender, rank, and racial lines"); Rick Brundrett, 11 Suit Targets
Juvenile Prison System, State (Columbia, S.C.), June 19, 2002, at 1 (reporting on $27 million suit alleging prison
official failed to protect juvenile detainees from sexual and physical abuse by other youths or staff members); Jackie
Calmes, White House Tries to Stick to Business Amid Scandal, Wall St. J., Mar. 30, 1998, at A20 (discussing
sexual harassment lawsuit brought against former President Bill Clinton); Steve Fry, Rape at Jail Draws 10 Years,
Capitol--Journal (Kansas), Nov. 19, 2005, jones.shtml; Kendra Hurley,
Heed Lessons of Church Scandal, USA Today, July 25, 2002, at A13 (seizing opportunity to discuss pervasiveness
of sexual abuse against children in foster care system amid highly publicized Catholic church sexual abuse
controversy); William Lobdell, Turmoil in the Church, Dioceses' Policies Reflect Settlement, L.A. Times, Apr. 28,
2002, at B1 (discussing overhaul of church's policies in light of recent settlement with sexual abuse victim).

n130. See generally U.S. Dep't of State, Bureau of Democracy, Human Rights, and Labor, Country Reports
on Human Rights Practices for 2001 (2002), available at (providing
comprehensive information on the human rights practices of all countries who are members of the United Nations).

n131. See Bud Allen & Diana Bosta, Games Criminals Play: How You Can Profit By Knowing Them 7--10, 33-37 (1971) (discussing essential conflict between the "keeper" and the "kept," and identifying inmate techniques for
setting up professionals who deal with them); Gary Cornelius, The Art of the Con: Avoiding Offender Manipulation
13--18, 25--30, 43--69 (2001) (describing sociopathic personalities in the general and inmate populations, how
inmates cope with incarceration through a process known as "prisonization," and the several methods inmates use
to manipulate officers). These texts have formed the basis of many prisons' staff training programs.

n132. See, e.g., Michael Novick, Second Guard Arrested For Sex With Susan Smith; Inmate Informed Prison
Authorities of Liaison, Associated Press, Sept. 27, 2000, available at 3149.html (detailing the indictment of a second correctional officer in a South Carolina
prison who confessed to having had sexual relations with inmate Susan Smith); Peter Sigal, Bucks County Warden
Resigns After Turbulent Year, Philadelphia Inquirer, Feb. 7, 2002, at A1 (detailing the resignation of the Bucks
County Prison Warden amid several scandals, including the arrest of three correctional officers and an inmate
counselor, who were arrested and accused of having sex with female inmates).

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33 Fordham Urb. L.J. 571, *607

n133. See Nat'l Sheriffs Ass'n, Resolution: Dev. of Policies on Standards of Conduct for Jail and Local
Corr. Facility Staff 1 (2002), available at
(offering the Association's support to its members to strongly enforce policies and practices against staff
sexual misconduct, and indicating that such policies and practices should be clearly defined and regularly and
vigorously communicated to staff members); Association of State Correctional Administrators Const. Resolutions,
Establishment of Policies Regarding Sexual Harassment Activity or Abuse 4 (1999) (noting that it is the
responsibility of administrators to ensure that corrections staff members undertake their duties with the highest
standard of professionalism).

n134. Ms. Moss is President of The Moss Group, Inc., a Washington, D.C.--based criminal justice consulting
firm. See Commission on Safety and Abuse in America's Prisons, hearing
1 witnesses moss.asp. Ms. Moss has a long history of work on sensitive correctional management issues. As an
assistant deputy commissioner in the Georgia Department of Corrections during the Cason v. Seckinger lawsuit in
the early 1990s, and as a Program Manager with the National Institute of Corrections (NIC) from September 1995
to February 2002, Ms. Moss was involved in the development of early strategies to address staff sexual misconduct
in the field of corrections. Id.

n135. Cason v. Seckinger, 231 F.3d 777 (11th Cir. 2000), The initial lawsuit claimed that prison conditions were
unconstitutional because there was, among other things:

(1) pervasive sexual abuse of female inmates by staff; (2) pervasive sexual harassment of female inmates by
staff; (3) an inadequate classification system; (4) use of excessive force, physical violence, and verbal abuse; (5)
the illegal use of stripping and restraints on mentally ill inmates; (6) violations of basic privacy rights and illegal

n136. According to statistics obtained from the NIC, forty--five of fifty states, Guam and Puerto Rico have
participated in training programs in addressing staff sexual misconduct with inmates. Telephone Interview with
Carol Bruce, NIC, Wash. D.C. (Jan. 31, 2006) (notes on file with the author.) Washington, D.C., Georgia, Nevada,
North Dakota and Utah have not participated in training. All statistics are current as of January 31, 2006.

n137. NIC reinforced its own efforts by completing two important studies, completed in 1996 and 2000,
respectively. The 1996 study sought to determine the sexual misconduct climate, as it were, in corrections agencies
throughout the country. The study determined in which agencies there was sexual misconduct activity, and also
noted which jurisdictions were involved in litigation at the time the study was conducted. See generally U.S. Dep't
of Justice, Nat'l Inst. of Corrections, Sexual Misconduct in Prisons: Law, Agency Response, and Prevention (Nov.
1996) [hereinafter U.S. Dep't of Justice, Law, Agency Response, and Prevention]. The second NIC study served as
a progress report, noting which corrections agencies had taken proactive steps to address sexual misconduct, and
how these agencies were responding to the problem (i.e., through legislation, internal policies, etc.). See generally
U.S. Dep't of Justice, Nat'l Inst. of Corrections, Sexual Misconduct in Prisons: Law, Remedies, and Incidence (May
2000) [hereinafter U.S. Dep't of Justice, Law, Remedies, and Incidence].

Page 28
33 Fordham Urb. L.J. 571, *607

n138. See U.S. Dep't of Justice, Law, Agency Response, and Prevention, supra note 137, at 8 (incorrectly
paginated in original as page 6).

n139. Several states have written provisions into their laws and prison policies that specifically provide for
penalties for inmate false reports. Typically, these states have been hostile to scrutiny related to staff sexual
misconduct. See generally Human Rights Watch, Nowhere to Hide: Retaliation Against Women in Michigan State
Prisons 14--17 (1998) [hereinafter Human Rights Watch, Nowhere to Hide] (detailing events surrounding the denial
of entry into Michigan prisons). Such prohibitions have an incredibly chilling effect on inmate reporting of sexual
abuse. Inmates fear that they will be subject to retaliation and further abuse by prison staff. They also believe that if
their complaints cannot be substantiated, they will be accused of making a false report. See generally Riley v. Olk-Long, 282 F.3d 592, 593 (8th Cir. 2002) (citing inmate's failure to report sexual assault as attributable to her fear
that prison officials would not believe her).

n140. See U.S. Dep't of Justice, Laws, Remedies, and Incidence, supra note 137.

n141. See United States v. Arizona, No. 97--476--PHX--ROS (D. Ariz. Mar. 11, 1999) (requiring inmate training
on sexual misconduct as a condition of the court's consent decrees); United States v. Michigan, No. 97--CVB-71514--BDT (E.D. Mich. Aug. 17, 1999); see also supra note 137 and accompanying text.

n142. See, e.g., Mich. Dept. of Corrs., 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) (providing inmates with an informational brochure on sexual assault within correctional facilities); Arlington
County Detention Facility, Sexual Misconduct Brochure (2000) (identifying for inmates specific behavior which
constitutes sexual misconduct and reporting procedures for inmates); see also California's Sexual Abuse in
Detention Elimination Act, Cal. Penal Code 2635 et seq. (West 2005).

n143. See generally Brenda V. Smith, An End to Silence, supra note 4 (updating the first edition to address
abuse of men in prison and addressing sexual abuse in prison as a violation of international human rights).

n144. Dorothy Q. Thomas is an independent consultant on human rights in the United States. From 1990--1998
she served as the founding director of the Human Rights Watch, Women's Rights Division. See Human Rights
Watch, http://www.hrw. org (search "Dorothy Thomas"). In 1998, she received the Eleanor Roosevelt Human
Rights Award from President Clinton. See Wikipedia, (search "Elanor Roosevelt Award for
Human Rights").

n145. See, e.g., Human Rights Watch, All Too Familiar, supra note 24; Human Rights Watch, Human Rights
Violations in the U.S.: Modern Capital of Human Rights? Abuses in the State of Georgia 99--119 (1996) [hereinafter
Human Rights Watch, Abuses in the State of Georgia] (discussing the problem in Georgia); Human Rights Watch,
Nowhere to Hide, supra note 139 (detailing events surrounding the denial of entry into Michigan prisons).

n146. See U.S. ECOSOC, Report of the Special Rapporteur, supra note 52, para. 11.

Page 29
33 Fordham Urb. L.J. 571, *607

n147. Id.

n148. See, e.g, Plenary Presentation, Building the Case -- Why Focus on Women Offenders? -- Women in Conflict
with the Law in the International Context, National Symposium on Women Offenders, Dec. 1999 (Washington.

n149. See Violence Against Women Act, H.R. 357, 106th Cong. (1999) [hereinafter VAWA Omnibus
Reauthorization Bill]; Press Release, Rep. John Conyers, Conyers Introduces Omnibus Bill to Stop Violence
Against Women and Their Children (May 12, 1999), available at
The Custodial Sexual Assault Act is found at sections 341--346 of VAWA I.

n150. See AFSCME Opposes Measure on Sexual Assault, 6 AFSCME Corrections United News 1 (1999),
available at 19907.htm (voicing objection to the creation of the
national database, and questioning its validity, since "corrections facilities do not hire officers convicted of sexual

n151. See VAWA I, supra note 102. The bill that was the precursor to the Prison Rape Reduction Act also
encouraged withholding federal funds from organizations that did not comply with the provisions of the act. See
Stop Prisoner Rape,

n152. VAWA II, supra note 102. It is ironic that the Act was included in VAWA omnibus legislation, but could
not secure enough support for passage. Yet, VAWA II includes protections for immigrant, battered, and trafficked
women. Id.

n153. Wendy Patten is the director of research and programmatic development at Central European and
Eurasian Law Initiative. See American Bar Association, Central European and Eurasian Law Initiative (CEELI),

n154. See generally Human Rights Watch, No Escape, supra note 38.

n155. See Stop Prisoner Rape, (last visited Jan. 31, 2006). SPR was founded in 1980 by
Russell D. Smith as People Organized to Stop the Rape of Imprisoned Persons (POSRIP). Smith himself was a
survivor of rape behind bars. Renamed "Stop Prisoner Rape", the organization is now a national 501(c)(3) human
rights advocacy group that works to end sexual violence against men, women, and youth. Id.

n156. Lara Stemple is the Director of Graduate Studies at UCLA School of Law. See UCLA School of Law, (search "faculty profiles").

Page 30
33 Fordham Urb. L.J. 571, *607

n157. H.R. 4943, 107th Cong. (2002).

n158. See Hearing on the Prison Rape Reduction Act of 2002 Before the Senate Committee on the Judiciary,
107th Cong. (2002) (statement of Wendy Patton, U.S. Advocacy Director, Human Rights Watch), available at (discussing the organization's study, No Escape:
Male Rape in U.S. Prisons, supra note 38, and proposing several changes to the legislation, none of which included
expanding the act's scope to address sexual abuse of women prisoners).

n159. See Hearing on the Prison Rape Reduction Act of 2003 before the Subcommittee on Crime, Terrorism,
and Homeland Security of the Committee on the Judiciary House of Representatives, 108th Cong. (2003) (in
particular, the testimony of Ashbel T. Wall, II, Director of the Department of Corrections in Rhode Island, and
Charles J. Kehoe, President of the American Correctional Association), available at
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 the PREA, likely believing that the initial bill, which focused 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. See id.

n160. H.R. 1707, 108th Cong. (2003).

n161. Pub. L. 108--79 (codified at 42 U.S.C.S. 15601, et. seq. (2005)). The speed of passage and bipartisan
support for this legislation, when compared to the lack of support for the Custodial Sexual Abuse Act, which sought
to address staff sexual abuse primarily against women inmates, supports and reinforces gendered notions of the
acceptability of violence against women.

n162. See Prison Rape Elimination Act of 2003, 42 U.S.C.S. 15609 (defining prisons, jails, police lockups, and
juvenile facilities).

n163. Id. 15606(d)(3).

n164. Id. 15602(3), 15606(e).

n165. In its purpose section, it notes that one purpose of PREA is "to protect the 8th Amendment rights of
prisoners." See id. 15602(7). But 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 statute).

n166. See Allen J. Beck & Timothy A. Hughes, Bureau of Just. Stat., Prison Rape Elimination Act of 2003 1,
10--12 (July 2005) (describing the methodology used to produce the study); see Beck & Hughes supra, at 3 (stating
that sexual violence was measured "by disaggregating sexual violence into two categories of inmate--on--inmate
sexual acts and two categories of staff sexual misconduct. The inmate--on--inmate categories reflected uniform

Page 31
33 Fordham Urb. L.J. 571, *607

definitions formulated by the National Center for Injury Prevention and Control in Kathleen C. Basile & Linda
E. Saltzman, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements (Center for
Disease Control and Prevention 2002).

n167. See 42 U.S.C. 16503(b)(3)(A) (2000). A high incidence of prison rape does not necessarily mean that
a state does not address the issue. 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 generally Michele Deitch, Deitch: On Prison Rape, Texas Tries to Report it Right, Austin
Am. Statesman, Nov. 9, 2005; see also McCampbell, supra note 107, at 38, 42. 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 are "believing that if there are
no reported incidents of sexual misconduct that no misconduct is occurring." Id. The article also discusses that
"[a] key operational priority is the orientation of offenders to the agency's zero tolerance position on misconduct,
definitions, and how they can report misconduct ... . Agencies who orient inmates find that there is an initial testing
of the system--both by employees and inmates. Complaints are made to see if the agency is serious about accepting
all allegations as well as investigating." Id.

n168. See 42 U.S.C. 15607(c)(2)(2003).

n169. Id. 16505.

n170. See U.S. Dep't of Justice, Office Of The Inspector General: Deterring Staff Sexual Abuse of Federal
Inmates 3 (2005) (noting that sexual abuse of female inmates is both underreported and alarmingly prevalent); see
also Amnesty Int'l USA, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women
15 (2001); U.S. Gov't Accounting Office (GAO), Women in Prison: Sexual Misconduct by Correctional Staff,
Report to the Honorable Eleanor Holmes Norton, House of Representatives, GAO/GGD--99--104 at 8 (Jun. 1999)
[hereinafter U.S. GAO, Staff Misconduct in Female Prisons] (finding that despite increasing legislation, inmates
in the jurisdictions studied made at least 506 allegations of staff--on--inmate sexual misconduct between 1995 and
1998, of which only eighteen percent resulted in administrative sanctions); Dinos, supra note 51, at 284--85 (citing
several decisive factors that keep female inmates from reporting sexual abuse: the inmate's own lack of credibility,
the specter of "protective segregation" from the rest of the prison population, fear of the accused's retaliation, and
the unlikelihood of a favorable outcome in litigation).

n171. See supra note 8 and accompanying text (discussing this archetype and common ideas about women

n172. See generally Kathryn Abrams, From Autonomy to Agency: Feminist Perspectives on Self--Direction, 40
Wm. & Mary L. Rev. 805 (1999) (examining the ways in which the law has been used to either add to or detract from
women's agency, and using those trends to suggest manners in which women can use the law in their favor to fight
oppression); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against
Women of Color, 43 Stan. L. Rev. 1241 (1993) (discussing the impact that race and gender have on women of color
in their experiences with violence); Kapur, supra note 106 (discussing the various definitions of victimhood).

Page 32
33 Fordham Urb. L.J. 571, *607

n173. See Harriet A. Jacobs, Incidents in the Life of a Slave Girl, supra note 33, at 57 (Jean Fagan Yellin ed.,
1987) (recounting the mixed emotions she felt when she learned of her master's plan to build her a cottage: "other
feelings mixed with those I have described. Revenge, and calculations of interest, were added to flattered vanity and
sincere gratitude for kindness.") (emphasis added); see also Cristina Rathbone, A World Apart, Women, Prison and
Life Behind Bars 64 (2005) (describing a female inmate's mixed emotions concerning a male correctional officer:
"Part of it was guilt. He was a good officer and a good guy, and she'd given him the come--on and then bailed. He
wasn't the kind to mess around, she berated herself, and he'd seemed genuinely to like to her."). But see Africans in
America, Modern Voices: Margaret Washington on Harriet Jacobs, (last
visited Jan. 31, 2006) (explaining how Harriet Jacobs chose to be with a white lawyer, Mr. Sands, who comforted
her when her master was pursuing her and essentially took her life into her own hands by "deciding" to become
involved with Mr. Sands).

n174. See Franke, supra note 47, at 181 (commenting that characterizing women's sexuality in terms
of dangerousness ignores the complex and positive reasons why women want to have sex); Sylvia A. Law,
Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 225 (1988) ("People have a strong,
affirmative interest in sexual expression and relationships.").

n175. See Franke, supra note 47 and accompanying text (encouraging the use of different characterizations of
women's sexuality, outside the constraints of reproduction).

n176. See Barbara Owen, Overview Report: Facility Focus Groups 23 (forthcoming 2006) (on file with author)
(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 "reports 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 if she performed oral sex and other sex acts upon him); see also Worley, supra note 45, at
185--89 (discussing "exploiters," or inmates who aggressively forge inappropriate relationships with staff members
to make illicit profits in the underground prison economy).

n177. See Dinos, supra note 51 and accompanying text (remarking on many women prisoners' reliance on
correctional officers for the basic necessities, thus obviating all of the alternatives to compliance when faced with
"quid pro quo" sexual activity); see also Jacobs, Incidents in the Life of a Slave Girl, supra note 33, at 55 (calculating
the pros and cons of becoming the mistress of a white man who was not her master, and weighing the loss of her
master's gift of a soon--to--be completed cottage against the prospective receipt of the boon of freedom for herself
and her children).

n178. See Hooks, Ain't I A Woman?, supra note 99 and accompanying text (discussing Sojourner Truth's -- and
others' -- exclusion from the women's rights movement, even while advocating for the same rights).

n179. See generally Gwen Rubenstein & Debbie Mukamal, Welfare and Housing -- Denial of Benefits to Drug
Offenders, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 37--58 (Marc Mauer
& Meda Chesney--Lind eds., 2002) (discussing the impact that denial of public assistance can have on women
offenders); Patricia Allard, The Unintended Victims of the Lifetime Welfare Ban, 3 Women, Girls & Crim. Just.
33 (2002) (discussing the impact of the Welfare Reform Act's lifetime ban of welfare benefits to women who are
convicted of a state or federal drug--related offense).

Page 33
33 Fordham Urb. L.J. 571, *607

n180. Compare supra note 101 and accompanying text (discussing cases where courts held that gender--based
assignments in Corrections Officer and Resident Unity Office positions were considered a BFOQ even though
they constituted gender--based discrimination) with Jordan v. Gardner, 986 F. 2d 1521, 1530--31 (9th Cir. 1992)
(holding that clothed body searches by male guards on female inmates constitutes cruel and unusual punishment in
violation of the Eighth Amendment) and Torres v. Wis. Dep't. of Health and Soc. Svcs., 859 F.2d 1523, 1529--32 (7th
Cir. 1988), cert. denied, 489 U.S. 1017 (1989) (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") and Colman v. Vasquez,
142 F. Supp. 2d. 226, 239 (D. Conn. 2001) (refusing to dismiss -- on qualified immunity grounds -- a woman inmate's
Fourth and Eighth Amendment claims regarding a cross--gender pat search).

n181. See U.S. Dep't of Justice, Deterring Staff Sexual Abuse of Federal Inmates 3 (2005); U.S. GAO, Staff
Misconduct in Female Prisons, supra note 170; U.S. GAO, Women in Prison: Issues and Challenges Confronting
U.S. Correctional System, A Report to the Honorable Eleanor Holmes Norton, House of Representatives,
GAO/GGD--00--22, Dec. 1999.

n182. See Beck & Hughes, supra note 166, at 2 (reporting that most correctional staff are discharged when they
are accused of allegations of sexual misconduct or sexual harassment by an inmate).

n183. But see 42 U.S.C. 15602 (6)(2003) (providing that one of PREA's purposes is to "increase the
accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape").

n184. See supra notes 100--05 and accompanying text.

n185. Sexual abuse of women in custody is a sex offense and correctional offenders should be subject to registry
like other sex offenders. Offenders of laws prohibiting sexual abuse of individuals in custody must register as sex
offenders in Florida, Colorado, New York, and California, for example. See Smith, Fifty State Survey, supra note 4
(enumerating various state penalties for violations of sexual misconduct against prisoners).

n186. See U.N. ECOSOC, Report of the Special Rapporteur, supra note 52, para. 75--77 (discussing impunity
and corrections officers as it relates to women in United States prisons).

n187. See supra section IV.A and notes 100--02, 112--23 and 130--33 and accompanying text.

n188. See supra note 2.



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