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University of Utah Sj Quinney College of Law Research Paper Sexual Punishments Ristroph a 2006

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UNIVERSITY OF UTAH
S.J. QUINNEY COLLEGE OF LAW

LEGAL STUDIES RESEARCH PAPER SERIES

Sexual Punishments
Alice Ristroph

15 COLUM. J. GENDER & L. 139 (2006)
Research Paper No. 05-36
This paper can be downloaded without charge from the
Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstracts=883737

SEXUAL PUNISHMENTS
ALICE RISTROPH*
The claim that incarceration is a sexual punishment—the central
claim of this Article—may be disputed with respect to both the adjective
and the noun. The challenge to the choice of noun is this: any sex, including
sexual assaults, that may occur in prison is “not part of the penalty.”1 Only
officially sanctioned deprivations of rights and liberties are properly called
“punishment,” and since no prisons officially sanction inmate sex and most
officially condemn it, sex in prison is not penal.2 In other words, the prison
rapist is not an arm of the state.
The challenge to the adjective is this: “sex” in prison is not really
“sexual.” The word “sexual” should be reserved to describe a realm of
erotic desire and physical gratification, and there is much evidence that the
physical interactions and threatened assaults that occur in prison, even the
ones that involve genitals, are expressions of dominance and power that
have little to do with desire. 3 In short, coerced intercourse in prison is
violent, inhumane, and illegal—it is not sexual, and it is not punishment.
* Associate Professor of Law, University of Utah, S.J. Quinney College of Law.
J.D., Harvard Law School; Ph.D., Harvard University; L.L.M., Columbia Law School.
1

“Being violently assaulted in prison is simply not ‘part of the penalty that
criminal offenders pay for their offenses against society.’” Farmer v. Brennan, 511 U.S. 825,
834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). For a detailed
discussion of the jurisprudential and political import of the claim that sexual abuse in prison
is “not part of the penalty,” see infra notes 95-100 and accompanying text.
2

As described below, some jurists would go even further and say that prison itself
is not punishment. The argument is that “punishment” describes only the legal deprivations
of rights and liberties. Incarceration, the means by which the state ensures the deprivation of
liberty, is only a collateral consequence of punishment, not punishment itself. On this
account, prison conditions are not regulated by the Eighth Amendment’s proscription of
“cruel and unusual punishments.” See infra Part II.
3

Many feminist scholars have argued that rape is better understood as an act of
violence than as a sexual act. See, e.g., Lynne N. Henderson, What Makes Rape a Crime?, 3
BERKELEY WOMEN’S L.J. 193, 225 (1987-88) (reviewing SUSAN ESTRICH, REAL RAPE (1987))
(“Rape does involve sexual organs, and is overwhelmingly a crime of one gender against the
other, but it is ludicrous to call it sexual . . . .”). Several commentators trace the claim that
rape is violence and not sex to SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN,
AND RAPE (1975). See, e.g., ANN J. CAHILL, RETHINKING RAPE 2 (2001) (discussing
Brownmiller and subsequent rape scholarship). But see Craig T. Palmer et al., Is It Sex Yet?
Theoretical and Practical Implications of the Debate Over Rapists’ Motives, 39 JURIMETRICS
J. 271, 271-72 (1999) (criticizing the claim that rape is “not sex,” and urging an evolutionary

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With specific reference to current American penal practices, this
Article defends both the adjective and the noun of the phrase “sexual
punishment.” The phrase prompts an array of questions about theory and
practice, about concept and strategy. It encourages us to probe the concepts
of sexuality and of punishment and the normative claims that pervade those
concepts; it encourages us to rethink strategic approaches to the problems of
penal and sexual abuse. Should we think of prison rape as a locationally
specific instance of rape, a form of sexual assault that happens to occur in
prison but is similar to sexual assaults that occur outside of prison? Should
we think of prison rape as an intrinsic aspect of the prison rather than a
species of rape? Might prison produce certain forms of sexual interaction
that differ in fundamental ways from rape (and consensual sex) outside
prison walls? Is sex severable from prison: will the right laws and
regulations help us eliminate the sexual aspects of incarceration? Would we
even want to eliminate the sexual aspects of incarceration? The
juxtaposition of sex and punishment, categories imbued with deeply held
and deeply contested normative commitments, prompts difficult but
important questions.
Some of these questions have discomforting answers. Most
discomforting, perhaps, is the strong indication that sexual coercion is
intrinsic to the experience of imprisonment. Prisoners’ rights advocates on
the left and right have labored to show that this is not the case, that we can
and should eliminate prison rape even though we have no intention of
eliminating the prison. 4 For much too long, the general attitude toward
prison rape was: “That’s just part of the penalty; those criminals deserve
whatever they get in prison,” or, only slightly better, “It’s too bad that such
rapes occur, but there’s nothing we can do about it.”5 To insist now that
coerced sex is inherent to incarceration would seem to take a step backward.
explanation of rape that recognizes that, “while numerous motives may be involved in any
given rape, sexual motivation is necessary and in some cases sufficient for a rape to occur”).
4

See, e.g., Eli Lehrer, Hell Behind Bars: The Crime that Dare Not Speak Its Name,
NATIONAL REVIEW, Feb. 5, 2001, at 24 (condemning prison rape while recognizing the
justice of imprisoning criminals, and noting liberal and conservative efforts to address prison
rape); Eli Lehrer, No Joke: Prison Rape Is Finally Taken Seriously, NATIONAL REVIEW
ONLINE,
June
20,
2002,
http://www.nationalreview.com/comment/commentlehrer062002.asp (praising federal legislation to reduce prison rape as “a sensible middleground solution” that would not “make it harder to run facilities”). The advocacy group Stop
Prisoner Rape, a self-defined human rights organization, also supports efforts to eliminate
sexual assault through changes in internal prison policy. See About SPR,
http://www.spr.org/en/about.html (last visited Dec. 8, 2005). For further discussion of
apparently bipartisan efforts to eliminate prison rape, see infra note 147.
5

At a presentation on prison rape to New York University Law students, Stephen
Donaldson, then president of Stop Prisoner Rape, was asked, “Isn’t fear of rape a good
deterrent to crime? And aren’t prisons supposed to be terrible places? When you talk about
using taxpayers’ money for these programs . . . . I couldn’t justify that.” See Josh Getlin,
“I’m Still Fighting,” L.A. TIMES, May 20, 1994, at E1. A third common response has been,

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And yet sex in prison is in many ways a peculiar product of the
carceral environment, and far more complicated than the paradigmatic
account of prison rape. That account posits predator and prey: a cruel,
sadistic perpetrator who manipulates or violently overpowers a vulnerable
victim.6 Much in that account is true of many prison rapes—there is a great
deal of cruelty, sadism, manipulation, violence, and exploitation of
vulnerability. At the same time, this account is misleading and radically
incomplete. It greatly overemphasizes direct physical violence: most
coerced sex in prison is not procured through an act or direct threat of
violence.7 And the paradigmatic narrative of prison rape does not situate
this sexual abuse as a problem of the prison, except to the extent that
prisons are blamed for not being prisonly enough: not surveilling enough,
not controlling inmates enough, not punishing cruel and sadistic men
enough. In the standard account of prison rape, the solution to the problem
is to expand and intensify imprisonment.8
The prison is so entrenched in our criminal justice system, and its
basic legitimacy so unquestioned, that to insist on an account of prison rape
that links it to the basic structure of the prison may seem foolish. But even
if we take for granted that prisons are here to stay, we should think carefully
about the ways in which the institution of mass confinement produces
sexual coercion. Sexual coercion in prisons probably can be reduced, but
that task will require changes to the character of the prison rather than a
mere intensification of imprisonment. Furthermore, to the extent that sexual
coercion in prison cannot be eliminated, we should make that fact part of
debates about the appropriate use of imprisonment as a penalty.

“How could one man rape another? They must be homosexuals; they must like it.” See, e.g.,
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS Part VIII (2001)
[hereinafter NO ESCAPE], available at www.hrw.org/reports/2001/prison (describing a
prisoner’s report that a prison official told him he “must be gay” for “letting them make you
suck dick”).
6

The epigraph to one recent article exemplifies the standard account of prison rape:

A rough, callused hand encircled his throat . . . . ‘Holler, whore, and you die,’ a hoarse voice
warned, the threat emphasized by the knife point at his throat . . . . He was thrown on the
floor, his pants pulled off him. As a hand profanely squeezed his buttocks, he felt a flush of
embarrassment and anger . . . because of his basic weakness . . . . A sense of helplessness
overwhelmed him and he began to cry, and even after the last penis was pulled out of his
abused bleeding body, he still cried . . . .
James E. Robertson, A Clean Heart and an Empty Head: The Supreme Court and
Sexual Terrorism in Prison, 81 N.C. L. REV. 433, 433 (2003) (quoting WILBERT RIDEAU &
RON WIKBERG, LIFE SENTENCES 73 (1992)) [hereinafter Robertson, A Clean Heart].
7

See infra Part I.

8

See infra Part III.

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Thus, the intersection of sex and punishment prompts new
questions and new doubts about the character and consequences of
incarceration. But this inquiry is useful not only for the study of punishment,
but also for the study of sex and gender, including analyses of sexual
inequality. To date, these inquiries have rarely merged: most of the scanty
literature on sex and rape among male prisoners makes no mention of the
extensive scholarship on non-carceral rape, 9 and most of that extensive
scholarship on rape addresses only rapes of women by men.10 Prison rape
researchers can learn much from feminist investigations of the concepts of
force and consent; in all-male prisons, as in free-world heterosexual
relationships, coerced sex is only rarely marked by bruises and blood.
Furthermore, some feminist accounts of rape may insist too much that rape
is something men do to women, and research on prison sex should inform
revised accounts of sexual violence. Of course, it is risky, and usually
inaccurate, to generalize about rape, and this is not to suggest that
heterosexual rape in the free world is easily comparable to same-sex prison
rape. Social inequalities between men and women produce unique abuses,
and the coercive conditions of incarceration produce different abuses. In
fact, a central claim of this Article is that sexual coercion in prison is a
distinctive product of the carceral environment. Nevertheless, prison sex
researchers can learn much from feminists, and vice versa.
The first part of this Article seeks to detail the sexualized nature of
incarceration in the United States. The focus is on male prisoners, who
constitute about ninety-three percent of the total American prison
population. 11 (This does not mean to discount the conditions of women
9
One scholar of prison rape embraces insights from feminist legal theory in a
recent article, but focuses on feminist analyses of the construction of gender rather than on
the specific analysis of rape. See James E. Robertson, A Punk’s Song About Prison Reform,
24 PACE L. REV. 527, 529 (2004). Other scholars have cited feminist theory to explain the
motivations of violent rapists, but have neglected or overlooked feminist scholars’ insistence
that rape is not usually physically violent. See Christopher D. Man & John P. Cronan,
Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop
for “Deliberate Indifference,” 92 J. CRIM. L. & CRIMINOLOGY 127, 148 (2001-2002)
(extending feminist explanations of violence against women to violence against male
prisoners). See also infra notes 45-46 and accompanying text.
10
For example, in her noted article and subsequent book on rape, Susan Estrich
commented on “the apparent invisibility of the problem of male rape,” but declined to
address the issue in her own study. Susan Estrich, Rape, 95 YALE L.J. 1087, 1089 n.1 (1986);
SUSAN ESTRICH, REAL RAPE 81, 108 n.8 (1987). On the general failure of feminists to
concern themselves with male rape, see Susanne V. Paczensky, The Wall of Silence: Prison
Rape and Feminist Politics, in PRISON MASCULINITIES 133-36 (Don Sabo et al. eds., 2001).
11

“As of December 31, 2004, 104,848 women were held in state and federal
prisons - up from 68,468 in 1995. Women constituted 7.0 percent of all inmates - up from
6.1 percent in 1995.” Press Release, Bureau of Justice Statistics, Prisoners in 2004 (Oct. 23,
2005), available at http://www.ojp.gov/bjs/pub/press/p04pr.htm.

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prisoners, a group growing in size and clearly worthy of consideration.)12
This account of sex in prison is based on a review of quantitative and
qualitative empirical studies. But the empirical work is, as is often the case,
already shaped by contestable normative assumptions.13 Since its inception
in the first half of the twentieth century, the study of prison sex has been
shaped by researchers’ own normative conceptions of gender, sexuality,
coercion, and consent. Many early studies assumed sexual intercourse to be
invariably a quest for gratification, and they assumed sexual orientation to
be fixed and polar.14 More recent studies are more flexible in their accounts
of sex and sexual orientation, but many assume without explanation a clear
distinction between coerced and consensual sex.15 Reviewing the empirical

12

Prisoner-on-prisoner abuse appears to be much less frequent in women’s prisons,
but women prisoners are more likely to be sexually abused by corrections officers. See, e.g.,
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, 868 n.29 (2001) (“Custodial sexual misconduct certainly occurs in men’s prisons [but]
is far less frequent than its corollary in women’s prisons. Furthermore, whereas most sexual
assaults on women prisoners are perpetrated by guards and staff, most sexual assaults on
male prisoners are committed by fellow prisoners.”). For recent social science research on
sexual coercion in women’s prisons, see Leanne Fiftal Alarid, Sexual Assault and Coercion
Among Incarcerated Women Prisoners: Excerpts from Prison Letters, 80 PRISON J. 391
(2000); Cindy Struckman-Johnson et al., Sexual Coercion Reported by Men and Women in
Prison, 33 J. SEX RES. 67 (1996); Cindy Struckman-Johnson & David Struckman-Johnson,
Sexual Coercion Reported by Women in Three Midwestern Prisons, 39 J. SEX RES. 217
(2002).
13
The legal academy has recently placed a greater (and in my view welcome)
emphasis on “empirical legal studies.” It is important to be careful not to accept a simplistic
dichotomy between empirical and normative claims, and it is necessary to remember not to
fail to investigate the ways in which normative assumptions structure empirical inquiries. On
the trend in law school scholarship, see Tracey E. George, An Empirical Study of Empirical
Legal Scholarship: The Top Law Schools (Vanderbilt Law Sch. Law & Econ., Working
Paper No. 05-20), available at http://www.ssrn.com/abstract=775864.
14

See infra notes 43-44 and accompanying text.

15

As Saum et al. note,

[p]erhaps the most perplexing methodological issue in examining sex frequency and sex type
among inmates involves the definitions of the sex-related incidents one is trying to measure.
A large majority of studies do not make any effort to define the sexual terminology either to
the inmates who are being interviewed or to the readers who must interpret the researchers’
findings.
Christine A. Saum et al., Sex in Prison: Exploring the Myths and Realities, 75
PRISON J. 413, 418 (1995). After observing this weakness of prior studies, Saum et al.
present their own research findings on prison sex, including the conclusion that “the
preponderance of the activity is consensual sex rather than rape.” Id. at 427. But, the study
authors define “rape” to inmate interviewees simply as “oral or anal sex that is forced on
somebody,” and consensual sex as “oral or anal sex that is agreed on before the act takes
place.” Id. at 420. Saum et al. “acknowledge that the consensual sex reported by our

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work with a critical eye, this Article is an attempt to build a fair description
of what we know, what we might know, and what we don’t know about
prison sex.
This much seems clear: incarceration is sexual to a much greater
extent than indicated by measures of violent male prisoner rape. In part, this
is because incarceration is so pervasively corporal—it involves state action
against the body and state control of the body to a degree unmatched in
other political contexts. Consequently, it provides innumerable
opportunities for officials to observe and regulate the sexual existences of
inmates, and for inmates to observe, regulate, and interact with each other.
Incarceration is also coercive, inegalitarian, and hierarchical, not only in
terms of the state-prisoner relationship, but also in terms of internal inmate
relationships. In this corporal and coercive environment, sexual roles are
used to establish and demarcate hierarchies within incarcerated
populations. 16 Most importantly, incarceration is total: It regulates
prisoners’ existences so thoroughly that the only way a prison could avoid
reaching prisoner sexuality would be to render prisoners non-sexual
beings. 17 In short, incarceration is (partly) sexual, and the sexuality of
prison is mostly if not entirely coerced.
Prisons shape the sexual activity that goes on within them, but
prisoners’ efforts to use law to gain sexual safety inside the prison have, so
far, been unsuccessful.18 This legal failure is due to a conceptual dichotomy
between legal punishment and penal practices, and a critique of that
dichotomy is the second aim of this Article and the focus of Part II. The
punishment/penal practices dichotomy underlies Eighth Amendment
respondents may instead be situations of sexual exploitation,” but suggest that more detailed
qualitative research would be required to assess this issue. Id. at 421.
16

See infra Part I.

17

See Erving Goffman, Characteristics of a Total Institution, in DEVIANT
BEHAVIOR 464 (Delos Kelly ed., 1984). Federal courts have occasionally remarked on the
near-total control of prisoners by their keepers. See, e.g., O’Lone v. Estate of Shabazz, 482
U.S. 342, 354 (1987) (Brennan, J., dissenting) (noting that prisoners “are members of a ‘total
institution’ that controls their daily existence in a way that few of us can imagine”) (citing E.
GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER
INMATES 1-125 (1961)). In Morales v. Schmidt, 340 F. Supp. 544 (W.D. Wis. 1972), the
court remarked that
prison is a complex of physical arrangements and of measures, all wholly governmental, all
wholly performed by agents of government, which determine the total existence of certain
human beings (except perhaps in the realm of the spirit, and inevitably there as well) from
sundown to sundown, sleeping, waking, speaking, silent, working, playing, viewing, eating,
voiding, reading, alone, with others.
Id. at 550.
18

See infra Part II.

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doctrine and leaves prison conditions largely outside the reach of the
constitutional prohibition of “cruel and unusual punishments.” Punishments,
in U.S. constitutional law, are the abstract deprivations of liberty articulated
in statutes and in sentencing orders. The actual manifestations of those
abstractions, or real prison conditions, are largely beyond the scope of
“punishment” and of the law. The embrace by courts—and by many
punishment theorists—of this abstract account of punishment represents an
absurd denial of practice. As a theoretical sleight of hand, it obscures the
fact that prisoners, like all humans, are embodied beings who live in and
experience an empirical, physical world. As a matter of legal practice, it
eviscerates the Eighth Amendment by replacing a positive account of
punishment with a normative one. Part II addresses the failures of current
Eighth Amendment doctrine, but it also notes the limits of doctrine: given
that the sexualized character of imprisonment extends beyond violent rapes,
even a reformed Eighth Amendment jurisprudence is unlikely to render the
prison a non-sexual punishment.
Given the realities of sex in prison, Part III of this Article considers
strategies for reform. Surprisingly, and regrettably, current discussions of
male prisoner rape have paid little heed to the scholarship on rape law
reform by feminists and others over the past thirty years. 19 At least two
broad insights of the feminist critique of rape law seem particularly critical
in the context of this Article. First, rape reform literature emphasizes that
the wrong of rape is a violation of individual autonomy and personal
agency.20 Second, attempts to protect sexual autonomy require attention to
the context in which sex takes place and sexual choices are made.
Importantly, feminist scholars have repeatedly insisted that we should not
rely on physical injury or physical resistance to identify violations of sexual
autonomy.21 Many victims of sexual coercion will give in rather than resist
physically, and much coerced sex is not the product of a physical threat at
all. Each of these lessons is important to the issue of sexual coercion in
prison. Together, these insights suggest that an approach to prison rape that
fails to consider the coercive context of the prison is unlikely to serve
19

Literature addressing rapes of female prisoners, by contrast, tends to be more
attentive to feminist scholarship and to the difficult questions that feminists have raised
about the definition of rape. See, e.g., Deborah M. Golden, It’s Not All In My Head: The
Harm of Rape and the Prison Litigation Reform Act, 11 CARDOZO WOMEN’S L.J. 37, 39-42
(2004) (discussing the definition of rape and citing feminist theorists such as Susan Estrich,
Catharine MacKinnon, and Dorothy Roberts). Professor Teresa Miller has used feminist and
critical theory to argue for greater privacy protections for both male and female prisoners,
especially with respect to searches and surveillance by guards of the opposite sex. See Miller,
supra note 12; Teresa A. Miller, Sex & Surveillance: Gender, Privacy, & the Sexualization
of Power in Prison, 10 GEO. MASON U. CIV. RTS. L.J. 291 (2000).
20

See infra notes 167-176 and accompanying text.

21

See id.

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prisoners’ interests. Part III examines critically the Prison Rape Elimination
Act (“PREA”)22 and its approach to reform. Although the Act brings public
attention to the most violent prison rapes and may produce marginal
improvements, it fails either to recognize the complicated forms of sexual
coercion or to address the underlying structural problems with the prison.
Prosecutions of prison rapists and increased surveillance in prisons are
central to the PREA’s reform approach. But sexual coercion in prisons is a
product of institutions that discipline and punish; we are unlikely to
eliminate such coercion with still more discipline and still more punishment.
I. SEX AND SEXUALITY IN AMERICAN PRISONS
We often use the adjective “sexual” to refer to potentially
reproductive activity and the associated human anatomy—sexual
intercourse, sexual assault, sexual contact.23 But we also use the adjective to
describe an array of ideas, practices, norms, and identities that bear loose
and inconsistent connections to human anatomy. Gender falls within this
array of constructs that we typically call sexual. The term “sexual” is used
in its ordinary meaning: related to anatomical sex or constructed gender.
This is neither to conflate biological sex and gender nor to insist on a rigid
dichotomy between them. 24 It is clear that we use the adjective “sexual” to
describe matters related to both sex and gender: the concept of “sexual
discrimination” is a prime example. 25 The sexual is a category that
sometimes has physical referents—the bodies and particularly the genitalia
or external reproductive organs of human beings. But the sexual is not
defined exclusively by physical referents; it also captures an array of
22

Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2005).

23
The Oxford English Dictionary defines “sexual” as “of or pertaining to sex or
the attribute of being male or female.” THE COMPACT EDITION OF THE OXFORD ENGLISH
DICTIONARY 582 (1979). “Sex,” in turn, is defined as “either of the two divisions of organic
beings distinguished as a male and female respectively.” Id. at 577.
24

Feminist scholarship in the 1970s and 1980s debated the validity and utility of a
conceptual distinction between sex and gender. See MOIRA GATENS, IMAGINARY BODIES:
ETHICS, POWER, AND CORPOREALITY 3 (1996) (noting, and critiquing, the distinction).
25

Under Title VII, sexual discrimination is discrimination “because of sex.”
Litigants and courts have struggled with this phrase for some time. For a detailed overview
of key doctrinal developments as well as an account of the concept of “sexual,” see
Katherine M. Franke, What’s Wrong With Sexual Harassment?, 49 STAN. L. REV. 691 (1997)
(arguing that “sexual” harassment is a disciplinary practice that enforces “gender norms”);
Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation
of Sex from Gender, 144 U. PA. L. REV. 1 (1995). The Ninth Circuit recently held that sex
discrimination need not be “facially sex-specific” to violate Title VII. EEOC v. Nat’l Educ.
Ass’n, 422 F.3d 840 (2005) (reversing the grant of summary judgment to defendants in a
lawsuit alleging harsh, but not facially sex- or gender-related, behavior by the employer to
the female employees).

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constructs, identities, and norms that may themselves be related to physical
referents only indirectly if at all. Prison is often sexual in the (physical) way
that sexual assault is sexual, and it is almost always sexual in the (not
necessarily physical) way that sexual harassment is sexual.
One respect in which contemporary imprisonment is a sexual
punishment stems from the fact that incarceration is, first and foremost, a
physical experience. Prisons rely on the physical limitations of the human
body to restrain their captives; prisons restrain effectively because humans
cannot slip between narrowly spaced bars, or leap high walls, or survive a
spray of bullets.26 Besides being restrained, the prisoner’s body is nearly
always visible to others and very frequently subject to immediate and direct
regulation. The expansion of prison populations that has filled and overfilled penal facilities pushes prisoners’ bodies into ever closer proximity to
one another. 27 Outside of prison, humans do not necessarily think of
physical embodiment as a primary or central aspect of individual identity.
Inside prison, one cannot ignore one’s own physical embodiment or the
physical bodies of fellow prisoners.
Embodiment is not equivalent to sexuality, but in practice prison
relationships are structured according to the capabilities and functions of
prisoners’ bodies, including the sexual capabilities and functions of those
bodies. The sexualized nature of incarceration is a product not only of
prisoners’ corporeality, but also of the inevitably inegalitarian character of
punishment. Imprisonment is a practice rife with inequalities, not only the
obvious inequalities between prison officials and inmates, but also with
internal inequalities among the inmate population. Historically and socially,

26
The Supreme Court has emphasized the physical restraint aspect of
imprisonment in its Due Process jurisprudence. “Freedom from imprisonment -- from
government custody, detention, or other forms of physical restraint -- lies at the heart of
liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
27

In 2004, state prisons were estimated to be about sixteen percent above capacity
and federal prisons were estimated to be thirty-nine percent above capacity. See PAIGE M.
HARRISON & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISON
AND
JAIL
INMATES
AT
MIDYEAR
2004
(2005),
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim04.pdf. One commentator has read the PREA to
suggest that overcrowding may contribute to the incidence of prison rape. See Carla I.
Barrett, Note, Does the Prison Rape Elimination Act Adequately Address the Problems
Posed By Prison Overcrowding? If Not, What Will?, 39 NEW ENG. L. REV. 391, 427 (2005)
(“While nothing . . . in the PREA itself points to any potential causes of the high incidence of
prison rape, there is some suggest that prison conditions and the uncontrollable prison
population growth are partly to blame for prison officials’ current inability to curb prison
rape . . . .”) (citing Prison Rape Elimination Act of 2003, 42 U.S.C. § 15606(d) (2004)). In
my view, though prison overcrowding almost certainly increases incidents of sexual assault
in prison, to read the PREA as recognizing this fact is overly charitable. The PREA’s only
reference to the analysis of prison population growth appears in a provision establishing
grants to “safeguard communities” from released prisoners. See 42 U.S.C. § 15605(b)(2).

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sexual differentiation is a way of organizing inequality.28 This is true inside
the prison as much as, and perhaps even more than, it is true outside of
prison. Not surprisingly, the inequalities of punishment produce (and then
become reinforced by) a culture of intense, exaggerated masculinity.29 The
experience of imprisonment is a continual assault on one’s agency,
independence, and self-reliance—traits valuable to persons of any gender,
but culturally associated with male strength. In attempts to regain some
measure of agency and self-respect, many prisoners will reassert their
masculinity by dominating others.
That some prisoners force sexual contact with others has become
accepted wisdom in popular culture, though the public reaction to this fact
seems to be moving from mirth30 to outrage.31 Sexual assault in prison has
been the subject of considerable media attention,32 political advocacy33 and
numerous empirical studies. Some researchers estimate that more than one

28

This has been the claim of what is sometimes called the “dominance theory” of
feminism. See, e.g., CATHARINE A. MACKINNON, Feminism UNMODIFIED: DISCOURSES ON
LIFE AND LAW 40 (1987). Whether or not one accepts MacKinnon’s suggestion that gender
difference should always be understood as “a question of power, specifically of male
supremacy and female subordination,” id., it is clear that sexual and gender differences have
often been used to explain and justify inequality.
29
See Don Sabo et al., Gender and the Politics of Punishment, in PRISON
MASCULINITIES 3 (Don Sabo et al. eds., 2001) (“Prison is an ultramasculine world where
nobody talks about masculinity.”)
30
For a long time, and continuing to some degree today, prison rape has been
considered humorous. See, e.g., Sabrina Qutb & Lara Stemple, Selling a Soft Drink,
Surviving Hard Time: Just What Part of Prison Rape Do You Find Amusing?, S.F.
CHRONICLE, June 9, 2002 (describing and critiquing a television commercial for 7-Up that
depicts a man distributing the soft drink to inmates; when he drops a can, he refuses to bend
over to retrieve it). The rule against bending over is not a creation of advertisers’ or popular
imagination. See Hans Toch, LIVING IN PRISON: THE ECOLOGY OF SURVIVAL 203 (1992)
(quoting an inmate as saying: “I still keep my back to the shower, and I wash my back and
watch everything. It’s a weird thing, that if you drop something you don’t even bend down to
pick it up.”).
31
Barrett Duke, Vice President of Public Policy and Research for the Southern
Baptist Ethics & Religious Liberty Commission, stated that, “[w]hile prison rape is often
referred to flippantly in television and movies, there is nothing humorous about this barbaric
behavior. [. . .] Rape should not be part of the punishment, and it certainly doesn’t assist in
rehabilitation.” Tom Strode, Law Targeting Prison Rape Signed; Diverse Coalition Backed
Measure,
BAPTIST
PRESS
NEWS,
Sept.
8,
2003,
available
at
http://www.sbcbaptistpress.org/bpnews.asp?ID=16630.
32

See, e.g., Editorial, Sexual Slavery in Prison, N.Y. TIMES, Oct. 12, 2005, at A22.
See Prisoner Rape in the News, http://www.spr.org/en/news/main.html (last visited Dec. 23,
2005), for a compilation of news reports.
33

See supra note 4.

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in five prisoners will be the victim of a sexual assault while incarcerated,34
but the reported rates vary widely.35 The lack of consensus is not surprising,
for prisoners are often unlikely to report assaults and consequently prison
rape is a notoriously difficult thing to measure.36 In addition, researchers
and prisoners’ rights activists often fail to offer a clear and consistent
account of consent, so reports on nonconsensual sex do not always make
clear what is being measured. Notwithstanding the inadequate information,
advocacy groups such as Stop Prisoner Rape have successfully raised public
concern about sexual violence in prisons, and in 2003 President Bush
signed the Prison Rape Elimination Act.37
Without discounting the importance of these reform efforts, it is
important to suggest that the paradigmatic violent rapes are only a small
piece of the sexualization of incarceration.
Empirical prison research, limited as it is, and prisoners’ own
accounts describe a “prison subculture” which “fuses sexual and social roles

34
See, e.g., NO ESCAPE, supra note 5; Daniel Lockwood, PRISON SEXUAL
VIOLENCE 18 (1980) (reporting that twenty-eight percent of male inmates in two New York
prisons had been targets of sexual aggression); Toch, supra note 30, at 189-90 (reporting a
twenty-eight percent “victimization” rate among a random sample of prisoners from two
New York institutions, but apparently including not specifically sexual victimization in this
tally).
35
See, e.g., Christine A. Saum, Sex in Prison: Exploring Myths and Realities, 75
PRISON J. 413, 427 (1995) (less than one percent of inmates in a Delaware prison claimed to
have been raped); Cindy Struckman-Johnson & David Struckman-Johnson, Sexual Coercion
in Seven Midwestern Prison Facilities for Men, 80 PRISON J. 379, 383 (2000) (reporting that
twenty-one percent of male inmates had been targets of sexual aggression). See also Robert
W. Dumond, Inmate Sexual Assault: The Plague that Persists, 80 PRISON J. 407, 408 (2000)
(reviewing recent research and noting that “[t]he actual extent of prison sexual assault is still
unknown. The incidence of inmate sexual victimization is quite variable and difficult to
predict. . . .”). For examples of older but still frequently cited studies of prison rape, see LEE
BOWKER, PRISON VICTIMIZATION (1980); DONALD CLEMMER, THE PRISON COMMUNITY
(1940); ANTHONY M. SCACCO, JR., RAPE IN PRISON (1975); WAYNE S. WOODEN & JAY
PARKER, MEN BEHIND BARS (1982); Alan J. Davis, Sexual Assaults in the Philadelphia
Prison System and Sheriffs’ Vans, in MALE RAPE: A CASEBOOK OF SEXUAL AGGRESSIONS
107-20 (Anthony M. Scacco, Jr. ed., 1982). Since the older studies have been conducted, the
law and practice of imprisonment in America has changed dramatically.
36

See, e.g., Saum, supra note 35, at 418. Over-reporting or false reporting is also a

possibility.
37

Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2005). In July
2005, the Department of Justice released its first report on prison sexual violence pursuant to
the PREA. ALLEN J. BECK & TIMOTHY A. HUGHES, BUREAU OF JUSTICE STATISTICS, DEP’T OF
JUSTICE, PRISON RAPE ELIMINATION ACT OF 2003: SEXUAL VIOLENCE REPORTED BY
CORRECTIONAL
AUTHORITIES,
2004
(2005),
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf. This report counts only sexual assaults
reported to and recorded by corrections officials, a methodology that is (as the report
acknowledges) not likely to produce a reliable estimate of the extent of sexual victimization.

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and assigns all prisoners accordingly.” 38 Over thirty years of prison
litigation have produced records of prison life that confirm these accounts.39
Each inmate will probably experience prison as a partly sexual punishment,
even if he is neither raped nor rapist. He will receive extensive sexual
harassment, and will likely engage in sexual harassment toward others. He
will lose all privacy rights, including any semblance of sexual privacy, as
his body is monitored, restrained, and regulated. And he will hold a place in
a prison hierarchy based on his assignment to a sexual category.
By many accounts, a new male inmate’s first exposure to fellow
prisoners is likely to be a first-hand introduction to the sexualized character
of incarceration.40 As other male inmates get their first glimpse of a new
prisoner, they will shout sexual suggestions and speculate about where the
new inmate will fit into the sexual hierarchy of the prison: Is he a “top
man,” a “wolf,” a “jocker”—a sexual aggressor who will dominate other
inmates? Is he at least a “man” who will fight off any inmate who initiates
sexual contact? Is he a “fag” or a “queen” who will seek same-sex
intercourse with willing partners? Will he become a “punk,” a professedly
heterosexual male inmate who initially resists sexual contact but is unable
to withstand coercion and eventually submits?41
38
Stephen Donaldson, A Million Jockers, Punks, and Queens, Lecture at Columbia
University (Feb. 4, 1992), in PRISON MASCULINITIES 118 (Don Sabo et al. eds., 2001).
39

See supra Part II.

40
For accounts of new inmates’ initial contacts with their fellow prisoners, see
Toch, supra note 30, at 194. He quotes an inmate as saying:

Any new person, they hollered obscenities at them and all sorts of names . . . . They told me
to walk down the middle of this line like I was on exhibition. . . . They were screaming
things like, ‘That is for me’ and ‘This one won’t take long—he will be easy.’ And, ‘Look at
his eyes’ and ‘her eyes’ or whatever, and making all kinds of remarks.
Id.; see also id. at 198 (quoting another inmate: “Now, each and every inmate goes
through a trial period where someone is going to say, ‘I want your ass.’”); NO ESCAPE, supra
note 5, at Part V; Man & Cronan, supra note 9, at 153-54 (recounting an attorney’s
observations of Texas prisoners, including that “a prisoner typically would be assaulted on
his first day in prison” and “other inmates would observe the attack and evaluate the inmate
based on how he responded”).
41
For recent research on inmate roles and the labels used for various hierarchical
classifications, see Tammy Castle et al., Argot Roles and Prison Sexual Hierarchy, in PRISON
SEX: PRACTICE & POLICY 13 (Christopher Hensley ed., 2002); Christopher Hensley et al.,
The Evolving Nature of Prison Argot and Sexual Hierarchies, 83 PRISON J. 289 (2003)
[hereinafter Hensley et al., Evolving Nature]. The research presented by Castle et al. suggests
that three main sexual roles structure inmate interactions: those who take (or threaten) sex;
those who engage in it consensually; and those who have sex forced upon them. But the
relative position of certain subcategories may be changing; specifically, inmates who
describe themselves as homosexual or bisexual may have attained a higher position in the
prison hierarchy than they held when prison sex research began in the first half of the
twentieth century. See id. at 297-98; see also Castle et al., supra, at 18-20.

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The centrality of sexually defined roles to prison life has been
documented for about as long as research on prison sex has been conducted.
The inmate argot has changed little—apparently prisoners have been
speaking of punks and wolves for over fifty years.42 But what researchers
make of this argot has changed over time. Early studies of prison sex
approach the subject as one of the psychology of homosexual preferences,
distinguishing between “true” homosexuals (who would choose same-sex
interactions even if they had opportunities for opposite-sex ones) and
“situational” homosexuals (who choose same-sex interactions in
desperation after they have been deprived of heterosexual intimacy). 43
Many of these older studies advance some form of a “heterosexual
deprivation” thesis that assumes that 1) sexual orientation is fixed, 2) most
inmates’ fixed orientations are heterosexual, and 3) heterosexual males need
regular intercourse or they will suffer “deprivation” and turn to same-sex
intercourse as a poor but necessary substitute.44
More recent studies of prisoner sex seem to have accepted two
critical claims of gender theorists and feminists: first, the claim that sexual
42
See, e.g., DONALD CLEMMER, THE PRISON COMMUNITY (1940); JOSEPH FISHMAN,
SEX IN PRISON 81-82 (1934) (detailing terms used by inmates to describe each other’s sexual
roles); GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES: A STUDY OF A MAXIMUM SECURITY
PRISON (1958).
43

For an overview of early and mid-twentieth century research depicting prison
sex as an issue of (true or situational) homosexuality, see Helen M. Eigenberg, Correctional
Officers and their Perceptions of Homosexuality, Rape, and Prostitution in Male Prisons, 80
PRISON J. 415, 418-21 (2000).
44
Prisoner sex was viewed as a consequence of “sex starvation.” R. Lindner,
Sexual Behavior in Penal Institutions, in SEX HABITS OF AMERICAN MEN 207 (E. Deutsch ed.,
1948). Sexual deprivation rendered the prison “a giant faggot factory.” D. Lee, Seduction of
the Guilty: Homosexuality in American Prisons, FACT MAG., Nov. 1965, at 57. Legal
scholars advocating more prison rape prevention tactics generally dismiss the sexual
deprivation thesis and argue that prison rape is simply a matter of violent domination. See,
e.g., James E. Robertson, Cruel and Unusual Punishment in United States Prisons: Sexual
Harassment Among Male Inmates, 36 AM. CRIM. L. REV. 1, 14 (1999) (“As the premier act
of domination, prison rape is thus transformed into a statement of one’s masculinity and
strength: Rape is not primarily motivated by the frustration of sexual needs.”) (internal
quotation marks omitted) (quoting Donald J. Cotton & A. Nicholas Groth, Inmate Rape:
Prevention and Intervention, 2 J. PRISON & JAIL HEALTH 47, 50 (1982)). But many prisoners
claim that the absence of opportunities to have consensual sex with non-incarcerated partners
does increase the rate of sexual assault. See, e.g., Struckman-Johnson et al., supra note 12, at
76 (noting that many inmate participants in a research study believe prison rape is caused by
“sexual deprivation”). Several contemporary prison sex researchers advance the sexual
deprivation thesis and argue that prisons should increase opportunities for conjugal visits.
See CHRISTOPHER HENSLEY, LIFE AND SEX IN PRISON TO PRISON SEX: PRACTICE & POLICY
(Hensley ed., 2002). To some degree, the debate between deprivation theories and
domination theories of prison sex parallels the attraction versus power debate in theories of
workplace sexual harassment. See, e.g., Martin J. Katz, Reconsidering Attraction in Sexual
Harassment, 79 IND. L. J. 101 (2004).

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identities and the significance of those identities are social constructs rather
than natural categories based on incontrovertible biological differences,45
and second, the claim that sexual differentiation is often a site upon which
to ground inequality.46 Indeed, the use of differentiated sexual categories to
organize hierarchies in exclusively male prison populations gives
considerable support to these claims. Distinct sexual roles, especially roles
of dominance or submission, among biologically similar persons can hardly
be traced to biological distinctions. But it is important to note that the
reported constructions of sexuality inside the prison do not always
correspond to constructions of sexuality common outside the prison.
Prisoners do not view all participants in male-to-male sexual contact as
“homosexual.” 47 In prison, masculinity is typically equated with
domination. 48 Accordingly, the aggressor in prison rape is viewed as a
model of heterosexual masculinity, and the practice of prison rape actually
“reinforces heterosexual norms.” 49 By some accounts, “rampant
homophobia coexists with high levels of rape.”50
Prisoners are sorted into sexually defined categories such as the
previously mentioned “jockers,” “queens,” and “punks”; these categories
then structure ongoing inmate interactions.51 A rape is often “the first act
45
See, e.g., JUDITH BUTLER, GENDER TROUBLE (1990). The social construction
argument is buttressed by empirical research which seems to indicate that sexual preferences
are not always rigidly fixed on one or the other side of a hetero/homo dichotomy. Cf.
Michael B. King, Male Rape in Institutional Settings, in MALE VICTIMS OF SEXUAL ASSAULT
67 (Gillian C. Mezey ed., 1992) (“People are capable of a broad range of sexual
response . . . .”).
46
See, e.g., MICHEL FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION
(Robert Hurley trans., Vintage Books 1990) (1978) (describing sexuality as “an especially
dense transfer point for relations of power”); CATHARINE A. MACKINNON, FEMINISM
UNMODIFIED: DISCOURSES ON LIFE AND LAW 40 (1987)
47

“[T]he typical sexual aggressor does not consider himself to be a homosexual, or
even to have engaged in homosexual acts.” Davis, supra note 35, at 116. See also A.
NICHOLAS GROTH & JEAN BIRNBAUM, MEN WHO RAPE 123 (1979) (quoting a prison official
as saying that, “[i]f you are the sexual penetrator and make no effort to satisfy your sexual
partner or bring him to orgasm, then you retain your manhood”).
48

See Man & Cronan, supra note 9, 149-54. If masculinity is equated with
dominance, the very experience of being a prisoner, subjected to the control of prison
officials, is a constant assault on masculinity, and thus many inmates feel an intense need to
reassert their masculinity. See Robertson, A Clean Heart, supra note 6, at 440-41.
49

Ian O’Donnell, Prison Rape in Context, 44 BRIT. J. CRIMINOLOGY 241, 243

50

Id.

(2004).

51

Sexual activity is not the only way in which masculinity is asserted; scholars
have noted the importance of sports, body-building, and non-sexual physical violence to
prisoners. See, e.g., Don Sabo, Doing Time, Doing Masculinity: Sports and Prison, in

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in . . . a lengthy drama of conquest and control. For months or even years
afterward the victim may be required to provide for the needs of the
perpetrator in return for a measure of protection.”52 Aggressors often force
their victims to clean, do laundry, or even alter their appearances to seem
more feminine.53 Some victims are subsequently viewed as property, and
are often rented or sold as sexual slaves to other prisoners.54 If an accosted
inmate successfully resists the would-be aggressor, in contrast, he may gain
a measure of respect and relative peace. 55 Not all aggressors relish their
roles; researchers have found a considerable degree of what is sometimes

PRISON MASCULINITIES, supra note 29. Pornography and pin-ups can also signal masculinity.
Donaldson, A Million Jockers, supra note 38, at 120 (“A macho gay male who comes into
[prison] with considerable fighting ability may attempt to pass as a heterosexual jocker, since
the only evidence of heterosexuality required is a pinup on the cell wall.”).
52

O’Donnell, supra note 49, at 244.

53

Man & Cronan, supra note 9, at 151; see also Donaldson, A Million Jockers,
supra note 38; NO ESCAPE, supra note 5, at Part V (“Forced to satisfy another man’s sexual
appetites whenever he demands, [victims] may also be responsible for washing his clothes,
cooking his food, massaging his back, cleaning his cell, and myriad other chores.”). A few
commentators have noted the ways in which sexual relationships in prison can mimic the
gender roles of traditional heterosexual pairings. See, e.g., CHRISTIAN PARENTI, LOCKDOWN
AMERICA: POLICE AND PRISONS IN THE AGE OF CRISIS 188 (1999) (“In the big house, layers of
collective, individual, and institutional violence act in concert to culturally manufacture
prison’s ‘second sex’ and thus reproduce the binary gendered world of the outside.”);
Stephen Donaldson, A Million Jockers, supra note 38.
54
See, e.g., NO ESCAPE, supra note 5, at Part V (“Prisoners unable to escape a
situation of sexual abuse may find themselves becoming another inmate’s ‘property.’ The
word is commonly used in prison to refer to sexually subordinate inmates, and it is no
exaggeration. . . .” as these inmates “are frequently ‘rented out’ for sex, sold, or even
auctioned off to other inmates . . . .”); MICHAEL SCARCE, MALE ON MALE RAPE: THE HIDDEN
TOLL OF STIGMA AND SHAME 38-39 (1997); King, supra note 45, at 68 (noting many victims
of sexual assault in prison “later become the ‘property’ of the assailant”) (quoting W. Rideau
& B. Sinclair, Prison: The sexual jungle, in A CASEBOOK OF SEXUAL AGGRESSION (A.M.
Scacco ed., 1982)). In a widely publicized recent trial, a former Texas prisoner alleged that
he had been forced to serve as a sexual slave to a prison gang. See Adam Liptak, Inmate Was
Considered “Property” of Gang, Witness Tells Jury in Prison Rape Lawsuit, N.Y. TIMES,
Sept. 25, 2005, at 1:14; Adam Liptak, Ex-Inmate’s Lawsuit Offers View Into Sexual Slavery
in Prisons, N.Y. TIMES, Oct. 16, 2004, at A1.
55

See Daniel Lockwood, Issues in Prison Sexual Violence, in PRISON VIOLENCE IN
AMERICA 99 (Michael Braswell ed., 2d ed. 1994) (describing research findings that many
targets of sexual aggression successfully resist the aggressors).

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called preemptive aggression.56 “In essence, to avoid being a sexual victim
it may be necessary to sexually victimize others.”57
Sexual categories are a matrix in which to enforce masculinity and
organize inequality. The means by which the hierarchies are produced and
reinforced are complex. Discussions of prison rape in contemporary legal
scholarship tend to recite graphic tales of physical force and bloody
violation,58 but by prisoners’ own reports, these tales capture only a fraction
of the coerced sexual interactions in prison.59 Most empirical researchers
also report that sexual assaults accomplished through physical
overpowering the victim are not the norm.60 Two other patterns are far more
common: Repeated sexually harassing threats that do not culminate in a
physical assault, 61 and sexual contact that is coerced through some tactic
short of the direct exercise of force.62 A 2001 Human Rights Watch report
found that
overtly violent rapes are only the most visible and dramatic form
of sexual abuse behind bars. Many victims of prison rape have
never had a knife to their throat. They may have never been
explicitly threatened. But they have nonetheless engaged in
sexual acts against their will believing they had no choice.63

56
See Lockwood, supra note 34, at 49 (“Violence can be a simple matter of . . .
preemptive self-defense. At a certain point the target begins to believe that the aggressor is
on a course escalating toward a forceful attempt at sexual assault. He then fights to alter this
self-conceived prediction.”).
57

Hensley et al., Evolving Nature, supra note 41, at 292. Donaldson observed in
1993 that the growing fear of AIDS among inmates might provide a welcome “excuse” for
“men” prisoners who did not want to coerce sex from others. Donaldson, A Million Jockers,
supra note 38, at 119.
58

See, e.g., Robertson, A Clean Heart, supra note 6, at 433 (quoting an account of
prison rape from WILBERT RIDEAU & RON WIKBERG, LIFE SENTENCES 73 (1992)).
59

See, e.g., NO ESCAPE, supra note 5, at Part V.

60

See, e.g., Struckman-Johnson & Struckman-Johnson, supra note 35, at 382, 389
(distinguishing between “sexual coercion” and rape, and reporting much higher rates of
sexual coercion).
61

Toch, supra note 30, at 188.

62

NO ESCAPE, supra note 5, at Part I.

63

Id. (“Prisoners, including those who had been forcibly raped, all agree that the
threat of violence, or even just the implicit threat of violence, is a more common factor in
sexual abuse than is actual violence.”)

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For targets of sexual aggression, the prison rule (often reiterated to
prisoners by corrections officers) is “fight or fuck.”64 Some prisoners do
fight: many incidents of “non-sexual” prison violence begin with an
unwelcome sexual advance.65 The suggestion of sexual activity so pervades
the prisoner’s experience that even seemingly platonic physical contact is
often interpreted sexually (and frequently, met with violence).66 But those
who end up as the victim of sexual abuse are more often inmates who are
unwilling to fight than they are inmates who fought and lost.
Sex coerced through an explicit or implicit threat of violence
constitutes rape under most statutory definitions of the crime. The Prison
Rape Elimination Act includes in its definition of rape “the carnal
knowledge, oral sodomy, sexual assault with an object, or sexual fondling
of a person achieved through the exploitation of the fear or threat of
physical violence or bodily injury.” 67 Many prisoners who recognize
themselves as vulnerable trade sex for protection—the “punk” seeks out and
pairs with a “man,” “Daddy,” or “jocker”68—and the PREA definition may
64
Toch, supra note 30, at 208-09; Davis, supra note 35, at 117. In one recent case,
a former prisoner alleged that, after he asked prison officials to protect him from rape, the
officials told him, “We don’t protect punks on this farm,” and “There’s no reason why Black
punks can’t fight and survive in general population if they don’t want to f***.” See Johnson
v. Johnson, 385 F.3d 503, 512-13 (5th Cir. 2004).
65

Toch notes that

[t]he apparent or superficial object of [inmate] victimization is sexual exploitation, and it is
sex that the aggressor most often demands of the victim. But . . . rape is an infrequent event.
Though it is possible that the aggressor’s hope springs eternal, irrespective of his past
experience, this interpretation is unlikely. It is more likely that the nature of the aggressor’s
threat is incidental to his real purpose, which is to be threatening.
Toch, supra note 30, at 197-98. For more on sexual harassment in prison, see
Robertson, supra note 44.
66

See Toch, supra note 30, at 212 (quoting an inmate who threatened to stab a
fellow prisoner after the other prisoner put his arm around the inmate’s shoulders); see also
Dan Pens, Skin Blind, in PRISON MASCULINITIES, supra note 29, at 150 (account by a former
prisoner of the taboo on platonic physical contact in all-male prisons).
67

42 U.S.C. § 15609(9)(C) (2005). For a lengthier discussion of the PREA’s
definition of rape, see infra Part III.
68
See Donaldson, A Million Jockers, supra note 38, at 120. Donaldson argues that
existing conceptions of coercion and consent fail to capture the complexities of prison sexual
relationships:

[An] area where current dualistic concepts based on legal distinctions fail to address actual
prisoner sexuality is that of coercion and consent. Writers divide all sexuality into that which
is coerced—rape and other forms of sexual assault—and that which is “voluntary.” But for
the passive prisoner in most acts and relationships, the punk, usually neither term applies. I
have coined the term “survival driven” as an intermediate category, and I suggest its
applicability in other concepts, including heterosexual ones, as well. From the typical punk’s

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target such activity. There is every reason to prevent such indirect forms of
sexual coercion from occurring, though, as discussed below, there is reason
to doubt that the PREA identifies useful ways to accomplish that goal.69
This is still not a full account of sex in prison. By prisoners’ own
direct reports and empirical studies based on interviews or surveys of
prisoners, many inmates choose to engage in sexual activity for reasons
other than fear of immediate or possible violence. They have sex—again,
this is by their own reports—for money, drugs, food, comfort, physical
gratification, and love. 70 It is worth emphasizing, for example, that
prisoners distinguish between “punks” (who submit to sex but do not
choose it) and “fags” (who actively seek sexual relationships in prison).
Here, then, is a crucial problem for policymakers and academics who
address prison rape: is all prison sex rape? There is a fine line to walk: on
one hand, we do not want to ignore or worse, romanticize, sexual activity
that is in fact coerced. On the other hand, prisoners have been stripped of so
much control over their own lives that their professed advocates would be
perverse to deny prisoners what shreds of agency or control they may retain.
Some scholars and prison officials would insist that no prison sex is
fully “consensual.”71 This claim may have some merit, but it is also too
point of view, none of his passive sexual activity is truly voluntary . . . . Many . . . liaisons
originate in the aftermath of gang rape or to counter the ever-present threat of gang rape.
Prison officials and researchers label such behavior as “consensual.” I, too, would treat it
legally the same as consensual activity, but fear on the part of the passive partner is certainly
the prime motivation. On the other hand, when a punk hooks up with someone, forming a
long-lasting relationship with a protector, often selected by the punk from among multiple
contenders, we are clearly dealing with something other than rape or sexual assault.
Id. at 125-26. Donaldson argued that prisons should “legalize nonassaultive
sexuality and encourage the formation of stable, mutually supportive pair bonds, while
reserving the full weight of administrative attention and punishment for instances of
coercion.” Id. at 123.
69

See infra Part III.

70

See, e.g., Donaldson, A Million Jockers, supra note 38, at 122 (“The punks, who
retain a desire for an insertive role . . . sometimes reciprocate with one another in a mutual
exchange of favors . . . .”); Helen M. Eigenberg, Correctional Officers and Their
Perceptions of Homosexuality, Rape, and Prostitution in Male Prisons, 80 PRISON J. 415,
422-23 (2000) (prison prostitution for money, food, and drugs); Hensley et al., Evolving
Nature, supra note 41, at 293 (identifying as “canteen punks” prisoners who traded sexual
activities for goods and services); id. at 297 (some inmates pair into “true love”
relationships); Terry A. Kupers, Rape and the Prison Code, in PRISON MASCULINITIES, supra
note 29, at 115 (“There is even consensual sex in prison. Many men find partners, have sex
as a sexual outlet in an all-male world, and do not consider themselves gay before or after
release . . . . There is even affection—sometimes great affection—but this kind of innovation
in male intimacy does not attract the kind of media attention that rape receives.”); NO
ESCAPE, supra note 5, at Part II (prostitution); Saum, supra note 15 (consensual sex).
71
See, e.g., Iman R. Soliman, Male Officers in Women’s Prisons: The Need for
Segregation of Officers in Certain Positions, 10 TEX. J. OF WOMEN & L. 45, 59 (2000)

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simplistic to see all prison sex as equally coerced. Beyond prison walls, the
law assumes that most adult sex is consensual as long as nobody
complains.72 In prison, there are clearly many rapes; there also are reports
of instances in which inmates choose to have sex though they could easily
abstain.73 And a substantial percentage of sex in prison appears to be sexual
encounters of a third kind: sex that is produced by the overwhelmingly
coercive environment of prison, sex sought or agreed to under ambiguous
circumstances, sex that may constitute prostitution or “sexual extortion,” or
just a conflicted quest for a measure of safety in an inherently dangerous
environment.74 Because even egregiously violent prison rapes were so long
ignored by free society, it bears reiterating that much of the sexual
interaction in prison is violent, cruel, and void of comfort, desire, or
reciprocity. It is tempting to insist that every instance of prison sex is like
this, but prisoners’ own accounts suggest otherwise.
The key point here is that sex in prison extends far beyond the
violent assault. This, as elaborated in Part III below, complicates attempts to
eliminate sexual coercion among inmates; the policies and legal tactics that
we use to address non-carceral rape are not necessarily well-suited to the
prison. A few further points about sexuality and prison hierarchies are
worth noting. First, there appear to be complex relationships between prison
sex and more general social inequalities. Several studies have reported
racial disparities among the various sexual roles. Aggressors are
disproportionately African-American; the targets of sexual aggression are

(quoting a Michigan corrections official as saying, “There’s no such thing as consensual sex
in prison, period”).
72

Of course, as the continued controversies over date rape, prostitution, and
“unwanted sex” demonstrate, the categories of coercion and consent are not unproblematic
even beyond prison walls. Usually, among non-institutionalized adults we draw the line
between coerced and consensual sex by allowing victims of coerced sex to identify
themselves. For a further discussion of attempts to assess consent in non-carceral sexual
relationships, see Part III.
73
See Saum, supra note 15, at 427 (characterizing a “preponderance” of sexual
activity in prison as consensual); but see supra note 15 (noting that Saum and other
researchers often fail to define consent). As with rape, consensual sex among inmates is
probably underreported—in fact, inmates may be even less likely to report consensual sex
than coerced sex. Further complicating attempts to measure consensual sex in prison is the
fact that many corrections officers (and doubtless, many researchers) cannot tell whether
specific instances of inmate sexual activity are coerced or consensual. See Eigenberg, supra
note 43, at 429.
74
See supra note 69. Eigenberg seems to view all sex in exchange for goods or
services as “coercive.” See id. at 429 (“Most of the literature on rape and consensual
homosexuality fails to address prostitution at all, and when it is mentioned, the coercive
element is rarely discussed.”). Whether or not prostitution should be understood as
consensual sex, it is not clear that it is in the inmates’ interests to prohibit such acts.

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disproportionately white. 75 These disparities appear to be particular to
American prisons, although little research has been conducted on prison
rape in other countries.76 Some scholars have suggested that sex in U.S.
prisons must be understood in the context of social inequalities and
America’s history of race relations.77
That sexual roles and corresponding inequalities are central to
prison life is also evident in the treatment of openly homosexual prisoners.
As sentencing judges have often recognized, such prisoners are likely to be
targets of immediate and extensive violent assaults by other inmates. In fact,
some trial courts have found the likely abuse of homosexuals in prison to be
a basis for downward departure at sentencing,78 and some appellate judges
have similarly noted the specific vulnerability of homosexual or transsexual
prisoners. 79 It should be noted, however, that normative assessments of
sexual orientation appear to be shifting somewhat in the prisons (as they are
outside the prisons). While no one would assert that homosexuals have an
easy time in prison, research in some prisons suggests that the status of
75

See, e.g., NO ESCAPE, supra note 5, at Part IV; see also Lockwood, supra note
34, at 2 (“In prison, most aggressors are black; most targets are white.”). The racial
dimensions of prison rape were noted by advocates for the Prison Rape Elimination Act. See,
e.g., Eli Lehrer, Hell Behind Bars: The Crime that Dare Not Speak Its Name, supra note 4
(“The wolves [serial rapists] are almost all black, while punks are almost all white.”).
Congress included notice of “the frequently interracial character of prison sexual assaults” in
the factual findings section of the Prison Rape Elimination Act, 42 U.S.C. § 15601(9) (2005).
76
See O’Donnell, supra note 49, at 248 (noting that “[w]e know little about the
racial dimension of prison violence in the UK,” but reporting that one victimization survey
found no evidence that black offenders were more likely to commit sexual assaults in prison).
77
See, e.g., Gordon J. Knowles, Male Prison Rape: A Search for Causation and
Prevention, 38 HOW. J. CRIM. JUST. 267 (1999); E. Megargee, Psychological Determinants
and Correlates of Criminal Violence, in CRIMINAL VIOLENCE (Marvin E. Wolfgang & Neil
Alan Weiner eds., 1982).
78

United States v. Blarek, 7 F. Supp. 2d 192, 211-12 (E.D.N.Y. 1998)
(vulnerability of two homosexual defendants to abuse in prison warranted downward
departures in their sentences); United States v. Ruff, 998 F. Supp. 1351, 1357 (1998)
(granting downward departure to an HIV-positive, homosexual defendant based on his
vulnerability to sexual victimization in prison); United States v. Shasky, 939 F. Supp. 695 (D.
Neb. 1996) (granting downward departure to a homosexual defendant who would be
especially vulnerable to abuse in prison). See also United States v. Rabins, 63 F.3d 721, 74344 (8th Cir. 1995) (noting the high costs of providing health care to HIV-infected prisoners,
and suggesting that these costs might serve as the basis for a downward departure in
sentencing).
79

See, e.g., United States v. Wilke, 156 F.3d 749, 754 (7th Cir. 1998) (district
court could consider a prisoner’s “sexual orientation and demeanor” as a basis for downward
departure based on vulnerability to abuse in prison); Taylor v. Michigan Dep’t of Correction,
69 F.3d 76, 87 (6th Cir. 1995) (Wellford, J., dissenting) (describing “feminine mannerisms
or homosexual orientation” as information about a prisoner that would “raise a red flag” to
prison officials that the prisoner was especially vulnerable to sexual assault).

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“fags” in prison has “progressed upwardly to equal that of the wolves.”80
There is no indication that transsexual prisoners enjoy a similar increase in
status. Such prisoners are usually classified on the basis of their genitalia
and, should their genitalia not correspond to their gender identity, subject to
substantially increased rates of sexual abuse from fellow inmates.81
Two other categories of prisoners, and their typical treatment in
prison, are worth mentioning here. First, HIV-positive prisoners confront a
unique array of challenges and are often subjected to outright discrimination.
These inmates are sometimes physically segregated from other prisoners,82
required to wear distinctive uniforms or face masks,83 or denied visitation
rights or other privileges. 84 The medical confidentiality rights of all
prisoners are circumscribed, but reported cases suggest that HIV-positive
inmates have had particular difficulties protecting the privacy of their
medical information.85 Of course, inmates with HIV and AIDS are faced
with an array of other, often more serious challenges, including access to
necessary medical care. But most important to the argument here is the fact
that, to be identified with this particular disease, associated as it is with
sexual activity, bears specific and deleterious consequences for inmates.86
Similarly, sex offenders are a distinct and disfavored category within prison
populations, subject to heightened abuse from both corrections officers and

80

Castle et al., supra note 41, at 19; see also NO ESCAPE, supra note 5, at Part IV.

81
See generally Christine Peek, Comment, Breaking Out of the Prison Hierarchy:
Transgender Prisoners, Rape, and the Eighth Amendment, 44 SANTA CLARA L. REV. 1211
(2004).
82
See, e.g., Carter v. Lowndes County, 89 Fed. Appx. 439, 441-42 (5th Cir. 2004)
(finding that segregation of an HIV-positive prisoner served a “legitimate penological
interest”); Camarillo v. McCarthy, 998 F.2d 638 (9th Cir. 1993). See generally Scott Burris,
Prisons, Law and Public Health: The Case for a Coordinated Response to Endemic Disease
Behind Bars, 47 U. MIAMI L. REV. 291, 314-15 (1992) (discussing courts’ initial deference to
prison administrators on the question whether to segregate HIV-positive prisoners).
83
See Perkins v. Kansas Dep’t of Corrections, 165 F.2d 803 (10th Cir. 1999);
Parker v. Proffitt, 1995 WL 681250 (W.D. Va. July 20, 1995).
84

See Bullock v. Gomez, 929 F. Supp. 1299 (C.D. Cal. 1996).

85
See, e.g., Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999); Baez v. Rapping, 680
F. Supp. 112 (S.D.N.Y. 1988). See generally Jin Hee Lee, Excerpts from a Jailhouse
Lawyer’s Manual, Fifth Edition—Chapter 22: AIDS in Prison, 31 COLUM. HUM. RTS. L. REV.
355, 377-80 (2000).
86

At the same time, one benefit of being identified to the prison population as
HIV-positive may be a reduced risk of rape. See Saum, supra note 15, at 425 (noting that
some “inmates felt that fear of contracting HIV has curtailed rape or at least made it a less
spontaneous act”).

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fellow inmates. 87 By many reports, sex offenders are themselves
disproportionately likely to be the target of sexual assault in prison.88
This Article has been arguing that sex and sexual identities
structure the prison experience in profound ways. There is one further
aspect in which prison is inherently sexualized, and this form of
sexualization would persist even if all coerced sex and all internal inmate
hierarchies were eliminated. Prison is sexualized to the extent that prisoners
remain sexual beings, for the internal publicity of the institution precludes
almost any degree of privacy. The prison is a “total institution,” a “closed,
single-sex society” in which the inhabitants “have essentially all decisions
about the structure and content of their daily lives made for them, and they
share all aspects of their daily lives.”89 All of a prisoner’s outwardly visible
being, including any outward manifestations of sexuality, is subject to
substantial scrutiny and control by the institution and its inhabitants. All
sexual activity, coerced or not, is difficult to conceal from other inmates
even on the limited occasions that it is successfully concealed from guards.
Even aside from sexual interaction or masturbation, the general absence of
bodily privacy contributes to the sexualized atmosphere. Much of the time,
prisoners’ bodily functions, including toilet use, showering, and hygiene are
visible to corrections officers as well as other prisoners.90 Not only are daily
bodily functions rendered public, but prison security measures often subject
inmates to intrusive examinations such as body cavity searches.
(Unsurprisingly, these searches are typically perceived as further assaults on
the prisoner’s masculinity. 91 ) Inevitably, the ways in which corrections
87

See Philip H. Witt & Natalie Barone, Assessing Sex Offender Risk: New Jersey’s
Methods, 16 FED. SENT’G. REP. 170 (2004) (noting that sex offenders are likely to receive
abuse and harassment from other inmates in prison).
88

Marsha Weissman & Richard Luciani, Sentencing the Sex Offender: A Defense
Perspective, 150 PLI/CRIM. 259, 272-73 (1989); but see Lockwood, Issues in Prison Sexual
Violence, supra note 55, at 99 (noting and rejecting the “popular notion” that those who
commit sex crimes against children are more likely to be raped in prison; “at least according
to my research, the crime one commits has little to do with one’s selection as a target”).
89
Hensley et al., Evolving Nature, supra note 41, at 290. See also supra note 17
and accompanying text.
90

Scatology and sexuality are not the same, but they are closely related, as
evidenced by prisoners’ many complaints of surveillance by opposite-sex guards of toilet or
shower activities.
91

See, e.g., TED CONOVER, NEWJACK: GUARDING SING SING 135 (Vintage Books
2001) (2000) (“Vivid to me . . . was the refusal of my inmate to submit to a strip-frisk. By
refusing this small violation of his privacy, he’d earned himself a big violation. . . .
Eventually, it occurred to me that self-respect had required him to refuse.”); LORNA A.
RHODES, TOTAL CONFINEMENT: MADNESS AND REASON IN THE MAXIMUM SECURITY PRISON
70 (2004) (quoting a prisoner as saying: “They use body cavity searches against the most
rebellious, [saying] ‘We’re gonna degrade you to where you don’t want to break the rules.’
The only way I can feel like I’m living and I’m a man is to fight [them] for what I have.”).

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officers perceive inmates and the ways in which inmates perceive each
other and themselves will be shaped by the widespread lack of privacy in
both ordinary personal hygiene and in prison searches.
It is sometimes argued that the modern prison represents a shift in
the target or punishment from bodies to souls.92 Whatever the aspirations of
the criminal justice system vis-à-vis the minds of prisoners, the prison’s
most immediate form of control is corporal. It operates through direct
physical restraint, threats of immediate force, and surveillance of inmates’
bodies. A prisoner thus experiences his own embodiment directly and
nearly constantly. Furthermore, prisons are realms of very obvious
inequalities in which the struggle for status becomes a crucial concern.
Masculine norms are continually assaulted and reasserted, and the corporal
and inegalitarian aspects of incarceration intersect to create a realm of
sexualized power relationships.
II. IMPRISONMENT AS A NON-CORPORAL PUNISHMENT
Notwithstanding prisons’ immediate and invasive regulation of
bodies, modern incarceration is frequently portrayed as an alternative to
“corporal punishments.”93 In fact, currently accepted philosophical accounts
of punishment’s legitimacy often emphasize that modern punishment avoids
the physical violence of past penal practices. This Part traces the legal
construction of punishment that has rendered the law blind to the sexualized,
and indeed the corporal, aspects of incarceration. Prisoners seeking legal
remedies for sexual abuse in prison have relied primarily on the Eighth
Amendment’s prohibition of cruel and unusual punishments.94 Most prison
sex, however, fails to meet the constitutional conception of “punishment,”
and so courts often conclude that however cruel or unusual a prison rape
may be, the victim cannot recover under the Eighth Amendment. This Part
focuses on the failures of Eighth Amendment doctrine, but it is worth
noting the limits of that doctrine as well: even if Eighth Amendment law
were reformed to recognize more prison rapes as punishment, as this Article
argues that it should be, constitutional doctrine is probably incapable of
addressing the far more widespread problem of sexual coercion that does
not constitute legal rape.
92

See discussion of Foucault, infra notes 136-142 and accompanying text.

93

See, e.g., GRAEME NEWMAN, JUST AND PAINFUL: A CASE FOR THE CORPORAL
PUNISHMENT OF CRIMINALS (2d ed. 1995) (arguing for corporal punishment as an alternative
to imprisonment); see also Edward L. Rubin, The Inevitability of Rehabilitation, 19 LAW &
INEQ. 343, 353 (2001) (“Why should a society replace an administratively simple and
intuitively appealing device like corporal punishment with something as elaborate and
expensive as the modern prison?”).
94

The typical Eighth Amendment claim by a prisoner is based on 42 U.S.C. §
1983, which establishes a right of action for any individual deprived under color of law of
“rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983 (2005).

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Scholarly discussions of prison as well as legal doctrines tend to
deny or ignore the sexualized and corporal character of incarceration. This
denial is captured in an oft-repeated five-word phrase: acts of physical
violence in prison, including sexual assaults, are “not part of the penalty.”
The phrase comes from Farmer v. Brennan,95 a Supreme Court decision
addressing the liability of prison administrators for rapes and physical
assaults committed by inmates against a transsexual prisoner.96 According
to the majority opinion, “Being violently assaulted in prison is simply not
‘part of the penalty that criminal offenders pay for their offenses against
society.’”97 By this claim, the Farmer majority clearly meant to establish
that violent assaults in prison were cognizable under the Eighth Amendment
prohibition of cruel and unusual punishments. 98 And since the Farmer
decision, prisoners’ rights organizations have adopted the phrase “not part
of the penalty” or similar language to insist on protection of inmates.99 The
rhetoric may initially seem appealing, but the claim that violence in prison
is “not part of the penalty” is both conceptually flawed and, given our
constitutional text, strategically unfortunate. As the Farmer Court noted,
and as Justice Thomas has repeatedly insisted, the text of the Eighth
Amendment bans cruel and unusual punishments—it does not prohibit all
cruel and unusual acts that might be in some way associated with stateinflicted punishment. 100 The Farmer majority’s insistence that sexual
violence is not part of the penalty has become part of a broader Eighth
Amendment jurisprudence based on an overly narrow conception of
punishment, one that obscures the details of real prison practices.
The question of whether prison conditions constitute “punishment”
arose implicitly in Rhodes v. Chapman, the first U.S. Supreme Court
decision to confront directly the question of whether the Eighth Amendment
95

511 U.S. 825 (1994).

96

See id. at 828-31.

97

Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

98

See id. at 832 (stating that the Eighth Amendment requires prison officials to
“take reasonable measures to guarantee the safety of the inmates” (quoting Hudson v. Palmer,
468 U.S. 517, 526-27 (1984)).
99

Stop Prisoner Rape, the advocacy group described supra note 4, uses the
following phrase in its email listserv address: notpartofthepenalty@topica.com. Borrowing
language from a prison rape survivor, Amnesty International used a similar phrase in the title
of a report on sexual abuse of women prisoners. See AMNESTY INTERNATIONAL, “NOT PART
OF MY SENTENCE”: VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY (1999),
available at http://web.amnesty.org/library/Index/engAMR510011999.
100

“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it
outlaws cruel and unusual ‘punishments.’” Farmer, 511 U.S. at 837. Justice Thomas’s
reading of the Eighth Amendment is discussed infra.

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regulates conditions of confinement. 101 On one hand, the Rhodes Court
stated that many harsh conditions of confinement are not prohibited by the
Eighth Amendment, for these conditions are simply “part of the penalty that
criminal offenders” must pay.102 At the same time, the Court found other
unpleasant attributes of the prison experience—such as diminished job
training and educational opportunities—to be unregulated by the Eighth
Amendment precisely because such deprivations “simply are not
punishments.” 103 In short, the Eighth Amendment permits some harsh
conditions because they are part of the intended penalty, and the Eighth
Amendment permits other harsh conditions because they are not part of the
intended penalty.
Given this equivocation, it would seem important to clarify what
constitutes “punishment” under the Eighth Amendment. The Court has
addressed this question in contexts other than the regulation of prison
conditions,104 but has not explicitly stated a rule for assessing whether a
condition of incarceration constitutes punishment. Only Justice Thomas (in
opinions frequently joined by Justice Scalia) has addressed the issue
101

Rhodes v. Chapman, 452 U.S. 337 (1981). The Court had previously considered
whether the denial of medical care to a prisoner could violate the Eighth Amendment, see
Estelle v. Gamble, 429 U.S. 97 (1976), but the Rhodes Court apparently distinguished access
to medical care from general conditions of confinement. See Rhodes, 452 U.S. at 344-45
(“We consider here for the first time the limitation that the Eighth Amendment . . . imposes
upon the conditions in which a State may confine those convicted of crimes.”); but see id. at
368 (Blackmun, J., concurring) (“Despite the perhaps technically correct observation that the
Court is considering here for the first time the limitation that the Eighth Amendment imposes
on [the conditions of confinement], it obviously is not writing upon a clean slate.”) (internal
quotations omitted). Two years prior to Rhodes, the Court had considered Eighth
Amendment challenges to conditions of confinement in Hutto v. Finley, 437 U.S. 678, 68586, 689 (1979), but the issues for appellate review involved remedies rather than the scope of
the Eighth Amendment.
102
Rhodes, 452 U.S. at 347. “[T]he Constitution does not mandate comfortable
prisons.” Id. at 349.
103
104

Id. at 348.

See, e.g., Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2662 (2004) (Scalia, J.,
dissenting) (“It is unthinkable that the Executive could render otherwise criminal grounds for
detention noncriminal merely . . . by asserting that it was incapacitating dangerous offenders
rather than punishing wrongdoing.”); Smith v. Doe, 538 U.S. 84, 92-96 (2003) (considering
whether a retroactive sex offender notification and registration requirement constituted
punishment and thus violated the Ex Post Facto Clause); Bajakajian v. United States, 524
U.S. 321, 328 (1998) (assessing when a currency forfeiture constituted punishment); Austin
v. United States, 509 U.S. 602, 619 (1993); Bell v. Wolfish, 441 U.S. 520, 535-40 (1979)
(evaluating whether restrictions imposed on pretrial detainees constitute punishment);
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167-70 (1963) (assessing whether automatic
forfeiture of citizenship provisions in immigration laws imposed punishment); Trop v.
Dulles, 356 U.S. 86, 94-99 (1958) (assessing whether statutory denationalization constituted
punishment).

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directly. 105 Justice Thomas has argued that punishment is essentially
whatever a state government says or intends to be punishment: “States are
free to define and redefine all types of punishment, including imprisonment,
to include various types of deprivations.”106 Such state-defined punishment
is subject to the Eighth Amendment limitation that it must not be “cruel and
unusual,” but only acts falling under the state’s own definition of
punishment are governed by that limitation. 107 On this account, a
punishment is the abstract deprivation of liberty (or life, or property)
authorized by a legislature and imposed by a sentencing judge or jury.108
Particular details of that deprivation not clearly specified by statute or
judicial order are not “punishment.” One commentator has referred to this
approach as a “strictural” definition which equates punishment with “the

105
See Overton v. Bazzetta, 539 U.S. 126, 138-145 (Thomas, J., concurring in the
judgment, joined by Scalia, J.); Farmer v. Brennan, 511 U.S. 825, 858-859 (1994) (Thomas,
J., concurring); Helling v. McKinney, 509 U.S. 25, 37-42 (1993) (Thomas, J., dissenting,
joined by Scalia, J.); Hudson v. McMillian, 503 U.S. 1, 18-19 (1992) (Thomas, J., dissenting,
joined by Scalia, J.).
106

Overton v. Bazzetta, 539 U.S. 126, 139 (2003) (Thomas, J., concurring in the

judgment).
107

Hudson v. McMillian, 503 U.S. 1, 18-19, 28 (1992) (Thomas, J., dissenting). In
his Hudson dissent, Justice Thomas suggested that abuse of prisoners may be actionable
under legal provisions other than the Eighth Amendment. “In my view, a use of force that
causes only insignificant harm may be immoral, it may be tortious, it may be criminal, and it
may even be remediable under other provisions of the Federal Constitution, but it is not cruel
and unusual punishment.” See id. at 18; see also id. at 28 (“Abusive behavior by prison
guards is deplorable conduct that properly evokes outrage and contempt. But that does not
mean it is invariably unconstitutional. The Eighth Amendment is not, and should not be
turned into, a National Code of Prison Regulation.”). As limited as Eighth Amendment
protection may be, Justice Thomas has argued that the Eighth Amendment is the only basis
for a constitutional challenge to a prison sentence. “Prisoners challenging their sentences
must, absent an unconstitutional procedural defect, rely solely on the Eighth Amendment.”
Overton, 539 U.S. at 140 (Thomas, J., concurring).
108

See Helling, 509 U.S. at 40 (Thomas, J., dissenting) (“[A]lthough the evidence
is not overwhelming, I believe that the text and history of the Eighth Amendment … support
the view that judges or juries—but not jailers—impose ‘punishment.’”); Hudson, 503 U.S. at
18 (Thomas, J., dissenting) (noting that the Eighth Amendment was historically understood
to apply “only to torturous punishments meted out by statutes or sentencing judges, and not
generally to any hardship that might befall a prisoner during his incarceration”. Justice
Thomas’ account of punishment has affirmative as well as negative consequences. That is, a
condition of confinement is not punishment if it is not specified by statute or sentencing
order, but states are also able to label deprivations of rights and privileges as “punishment” if
they so choose. Justice Thomas refers to a state’s “prerogative” to define punishment, see
Overton, 539 U.S. at 141 (Thomas, J., concurring in the judgment), but since punishment is
subject to greater limitations than other deprivations, it is unclear why a state would call an
imposition or deprivation “punishment” if it could avoid it.

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superficial intent of the sentencer, expressed in the language of the sentence
as pronounced.”109
Though no majority has joined Justice Thomas’ view that
“punishment” is only those abstract deprivations or impositions prescribed
by statutes and sentencing orders,110 the Court’s current Eighth Amendment
doctrine goes a considerable distance toward Justice Thomas’ position.
Justice Thomas’ approach could be understood as a rule that only if a
legislature or sentencing judge intends a given deprivation or imposition as
punishment, and documents that intent in a stated pronouncement of
sentence, will that deprivation or imposition be subject to the limitations of
the Eighth Amendment. Thus, actions by prison officials constitute
punishment only when the prison officials act within the discretion
implicitly delegated to them by the formal sentence. 111 A jailer cannot
decide sua sponte to inflict punishment. 112 The approach adopted by a
majority of the Court also requires a showing of official intent, but expands
the set of intentional actors to include prison officials. “If the pain inflicted
is not formally meted out as punishment by the statute or the sentencing
judge, some mental element must be attributed to the inflicting officer
before it can qualify” as punishment subject to Eighth Amendment
regulation.113 Thus, for a challenge to ongoing prison conditions to succeed,
the plaintiff prisoner must show a requisite degree of intent on the part of
one or more prison officials.114 The necessary intent varies depending on the
109

Thomas K. Landry, “Punishment” and the Eighth Amendment, 57 OHIO ST. L.J.
1607, 1613 (1996).
110
Justice Scalia, and only Justice Scalia, has joined several of Justice Thomas’
opinions addressing this issue. See supra note 105.
111

Overton, 539 U.S. at 140, n.* (Thomas, J., concurring in the judgment).

112

Helling, 509 U.S. at 40 (Thomas, J., dissenting) (“[J]udges or juries—but not
jailers—impose ‘punishment.’”)
113

Wilson v. Seiter, 501 U.S. 294, 300 (1991). The Court’s opinion in Wilson was
authored by Justice Scalia less than one year before Clarence Thomas joined the Court. It
seems unlikely that Justice Scalia would adhere to the Wilson holding today. Since Justice
Thomas has been on the Court, he has repeatedly stated that conditions of confinement are
not “punishment” within the meaning of the Eighth Amendment, and Justice Scalia has
frequently joined Justice Thomas’ opinions on this point. See supra note 105.
114

In addition to the requisite official intent, a successful Eighth Amendment claim
must show that the prisoner suffered some objective harm. See Wilson, 501 U.S. at 298
(distinguishing between “the objective component of an Eighth Amendment claim (Was the
deprivation sufficiently serious?)” and “the subjective component (Did the officials act with
a sufficiently culpable state of mind?)”). In Hudson v. McMillian, the Court held that, while
“extreme deprivations” are required to satisfy the objective component in the context of a
challenge to conditions of confinement, 503 U.S. 1, 9 (1992), “serious injury” is not
necessary to satisfy the objective component of an Eighth Amendment excessive-force claim,
id. at 8-10. Mere “de minimis uses of physical force” do not satisfy the objective component
of the Eighth Amendment inquiry, but injuries falling between “de minimis” and “serious”

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context: a challenge to a corrections officer’s use of force in response to a
prison disturbance must show the officer acted “maliciously and sadistically
for the very purpose of causing harm,” 115 while other challenges to
conditions of confinement must show “deliberate indifference to inmate
health or safety.”116
In practice, this “deliberate indifference” standard protects prison
officials from liability for most inmate-on-inmate assaults. As the Court
explained the standard in Farmer v. Brennan, a case brought by a
transsexual prisoner who was severely beaten and raped by other inmates,
“a prison official may be held liable for denying humane conditions of
confinement only if he knows that inmates face a substantial risk of serious
harm and disregards that risk by failing to take reasonable measures to abate
it.”117 The Court rejected Dee Farmer’s request for an objective standard
that would impose liability if prison officials should have known the risks to
a prisoner; instead, the Court insisted on a standard of “actual
knowledge”—“the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.”118 A prison official could escape liability,
the Court conceded, if he could “show that the obvious escaped him.”119 As
several commentators have noted, this required showing of actual
knowledge has often proven to be an insurmountable hurdle for inmate
plaintiffs.120
could satisfy that requirement. See id. at 9-10. In the specific context of inmate-on-inmate
sexual abuse, the objective harm must be “conditions imposing a substantial risk of serious
harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The Farmer Court declined to state the
point at which “a risk of inmate assault becomes sufficiently substantial for Eighth
Amendment purposes.” Id. at 834 n.3.
115

Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

116
Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Wilson v. Seiter, 501
U.S. 294, 302-03 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore
conclude that deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain.’”) (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)).
117

Farmer, 511 U.S. at 847.

118
Id. at 837 (emphasis added). The Farmer Court explicitly adopted the criminal
law standard of recklessness, which requires that the defendant disregard a risk of which he
or she has actual knowledge, rather than the civil standard of recklessness, which is satisfied
upon a showing of actual or constructive knowledge of the risk. See id. at 836-40.
119
120

Id. at 843 n.8.

See, e.g., NO ESCAPE, supra note 5, Part VIII (describing the effects of the
actual knowledge/deliberate indifference standard, and noting that it “creates an incentive for
correctional officials to remain unaware of problems”); Julie Samia Mair et al., New Hope
for Victims of Prison Sexual Assault, 31 J.L. MED. & ETHICS 602, 605 (2003) (describing
criticism of the actual knowledge component of the deliberate indifference standard, and

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In short, Eighth Amendment doctrine’s focus on official intent
counts very little as “the penalty.” It is based on a conception of punishment
as (in most cases) a mere deprivation of liberty, and the means by which
this deprivation is to be implemented are themselves excluded from the
account of “the penalty.” This approach allows us to view punishment as
non-corporal, for the general pronouncements of sentences by legislatures
and judges never touch the prisoner’s body. The things that officials do to
the prisoner’s body to carry out the sentence—the handcuffs, the shackles,
the cells—are just collateral consequences. 121 Unless specifically
contemplated by statute or sentencing order, these incidental corporal
encounters are not themselves “part of the penalty.”
This parsing of the concept of punishment is arbitrary and
incoherent. 122 Contemporary punishment is a complex set of practices
noting that “litigation has failed to serve as a tool for protecting many inmates from sexual
assault”). For a comprehensive discussion of federal courts’ application of the deliberate
indifference test in prison rape cases, see Robertson, A Clean Heart, supra note 6, at 453-73.
One recent opinion illustrates especially well the difficulty of satisfying the deliberate
indifference standard, and the ease with which prison officials and courts can use that
standard to deny prisoner plaintiffs relief. In Riccardo v. Rausch, 375 F.3d 521 (7th Cir.
2004), the Seventh Circuit reversed a jury award of $1.5 million in compensatory damages to
a prisoner who had been raped by his cellmate. Anthony Riccardo had expressed to at least
two different prison officials “fear for his life” if celled with a specific fellow inmate; one of
those officials, Lt. Larry Rausch, nonetheless assigned Riccardo to a cell with the inmate of
whom Riccardo complained. Two days later, Riccardo’s new cellmate forced him to perform
oral sex. Id. at 525. A jury found that Rausch had subjected Riccardo to cruel and unusual
punishment and awarded $1.5 million in damages. Id. at 523. The Seventh Circuit reversed
the award, finding that “no reasonable juror could have concluded . . . that Rausch actually
recognized that placing [the alleged rapist] and Riccardo together exposed Riccardo to
substantial risk.” Id. at 526. Judge Easterbrook reasoned that, though “it might seem like
Rausch had to appreciate the risk,” Riccardo’s statement of fear for his life did not alert
Rausch to the risk of mere sexual assault for the cellmate’s personal gratification. Id. at 52627.
121
The phrase “collateral consequences” is used most frequently in the criminal
justice context to refer to formally civil legal burdens imposed on convicted criminals, such
as registration requirements, disenfranchisement, and immigration consequences. See Nora
V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral
Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153, 154 (1999) (“[C]ollateral
sentencing consequences encompass all civil restrictions that flow from a criminal
conviction.”). Because collateral consequences are classified as civil, not punitive, they are
not subject to constitutional restrictions on punishment such as the Ex Post Facto Clause or
the Eighth Amendment prohibition of cruel and unusual punishment. The narrow definition
of punishment underlying prison law, this Article suggests, renders many aspects of prison
similarly “collateral” and beyond the scope of constitutional protection.
122
For a critique of the Court’s and Justice Thomas’ accounts of “punishment” that
is somewhat different from the one offered here, see Landry, supra note 109. Only a few
other commentators have examined the definition of “punishment” in the context of Eighth
Amendment prison conditions jurisprudence. See James J. Park, Redefining Eighth
Amendment Punishments: A New Standard for Determining the Liability of Prison Officials
for Failing to Protect Inmates From Serious Harm, 20 QUINNIPIAC L. REV. 407 (2001)

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carried out by a number of official actors and institutions. The use of
official intent to circumscribe the category of “punishment,” both in the
strong version advocated by Justice Thomas and in the weaker version
endorsed by a majority of the Court, denies both the complexity of
punishment and its status as a set of practices. Some penal practices will
trigger others: for example, legislative authorizations of sentencing ranges
will lead some judges to impose sentences in those ranges; in turn, the
judicial imposition of sentences will lead law enforcement officers and
prison officials to take defendants to prisons and confine them there; the
need to confine and control a large number of inmates will generate a set of
practices internal to the prison. With so many different actors and
institutions engaged in penal practices, intent standards become simply a
means for the state to avoid accountability. Complex institutions act, but
they rarely “intend” in the individualistic way contemplated by the Court’s
Eighth Amendment intent requirements.123
The “penal” status of an act or practice should depend not on
specific legislative designation or individual intent, but on whether the act
or practice is a necessary element or direct consequence of the state’s
response to an individual’s criminal conviction.124 This approach accords
with common usage and common understanding (including the common
understanding at the time of the Founding 125 ): “punishment” is the state
(tracing and critiquing the development of the knowledge and intent requirements of Eighth
Amendment “punishment” in federal law); Sara L. Rose, Comment, “Cruel and Unusual
Punishment” Need Not Be Cruel, Unusual, or Punishment, 24 CAP. U.L. REV. 827 (1995)
(critiquing the “deliberate indifference” standard as too broad and arguing that a prison
official’s disregard of a known risk should not be considered punishment).
123

Whether institutions intend in any way is a matter of some debate. Justice
Scalia argues that they do not, in order to defend textualism over “legislative intent” as the
preferable approach to constitutional interpretation. See Antonin Scalia, A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 16-18, 29-32 (1997). To pretend that
legislative intent “exists,” Scalia argues, is “contrary to all reality.” See id. at 32. See also
William D. Araiza, Courts, Congress, and Equal Protection: What Brown Teaches Us About
the Section 5 Power, 47 HOW. L.J. 199, 222 (2004) (suggesting that “institutional intent”
may be “fictional”); but see Charles Tiefer, The Reconceptualization of Legislative History
in the Supreme Court, 2000 WIS. L. REV. 205, 211-12 (discussing “what it means for an
institution to have intent”).
124

On this account, some legal restrictions that are currently classified as
“collateral” (and non-penal) consequences of a criminal conviction, such as felon
disenfranchisement or deportation, should be understood as punishment. See, e.g., INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (holding that deportation is a “purely civil
action” and not punishment). See also supra note 121.
125
According to Justice Thomas, the Founders considered punishment to be “[a]ny
infliction imposed in vengeance of a crime,” or “[a]ny pain or suffering inflicted on a person
for a crime or offense.” Helling v. McKinney, 509 U.S. 25, 38 (1993) (Thomas, J.,
concurring) (quoting 2 T. SHERIDAN, A GENERAL DICTIONARY OF THE ENGLISH LANGUAGE
(1780) and 2 N. WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). It is
not entirely clear how Thomas reaches his conclusion that these early American definitions

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response to crime. 126 When a person is sentenced to prison as criminal
punishment, the standard and foreseeable conditions of incarceration are
part of that punishment. Thus, random aberrations (such as a guard’s
accidental breaking of an inmate’s toe 127 ) are not “punishment,” but the
standard and expected conditions of confinement are certainly “part of the
penalty.” This account of punishment is positive, not normative; it does not
assume that punishment is a priori just. 128 But for the Eighth Amendment to

preclude the inclusion of prison conditions in our modern concept of punishment. The
Founders did not mention prisons in the Eighth Amendment, to be sure, but this omission
hardly evidences an intent to exclude prison conditions from the definition of punishment:
prisons did not really come into being in the United States until after the adoption of the
Eighth Amendment. See David J. Rothman, Perfecting the Prison: United States, 1789-1865,
in THE OXFORD HISTORY OF THE PRISON 100-16 (Norval Morris & David J. Rothman eds.,
1995).
126

Were the state action doctrine less confused, it might provide a useful resource
for Eighth Amendment analysis—it might be useful to ask with respect to challenges to
prison conditions whether the alleged harm is a result of state action. But the state action
requirement is famously muddled and widely criticized, see Charles L. Black, Jr., The
Supreme Court 1966 Term—Foreword: “State Action,” Equal Protection, and California’s
Proposition 14, 81 HARV. L. REV. 69, 95 (1967) (labeling the state action doctrine “a
conceptual disaster area”), so suffice it to note that in constitutional contexts beyond the
Eighth Amendment and the Equal Protection Clause, official intent is not the sole
determinant of whether a violation constitutes “state action.” For example, under the “public
function” analysis of First Amendment doctrine, an ostensibly private actor performing a
public function may be treated as a state actor. See, e.g., Marsh v. Alabama, 326 U.S. 501
(1946). And the racially discriminatory use of peremptory challenges by a private litigant has
been found to constitute “state action,” based in part on the fact that “[b]y their very nature,
peremptory challenges have no significance outside a court of law.” Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 620 (1991). A common criticism of the state action doctrine in
the equal protection context is, like the critique of Eighth Amendment doctrine presented
here, that it focuses too heavily on intent. See, e.g., Reva Siegel, Why Equal Protection No
Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV.
1111, 1129-35, 1143-44 (1997).
127
See Wilson v. Seiter, 501 U.S. 294, 300 (1991) (quoting Duckworth v. Franzen,
780 F.2d 645, 652 (7thtCir. 1985)).
128

Of course, the distinction between positive description and normative theory is
often exaggerated, as noted in Part I, which discusses the empirical scholarship on prison sex.
See supra note 13; see also Erik Luna, Punishment Theory, Holism, and the Procedural
Conception of Restorative Justice, 2003 UTAH L. REV. 205, 261 (questioning “the attempt to
divide the entire field of criminal justice into positive and normative branches, with the
former offering an ordered explanation for the actual, real-world distribution of punishment
and the latter providing ordered propositions for the way criminal sanctions should be
allocated”). Nevertheless, it is possible to define punishment in a way that does not presume
its normative legitimacy, and the Eighth Amendment, by contemplating the possibility of
“cruel and unusual” punishments, clearly assumes such a definition.

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make any sense at all, it must entail a positive account of punishment, since
a normatively just punishment could never be “cruel and unusual.”129
Punishment understood positively, the standard and expected
conditions of confinement are corporal in many respects, as argued in the
first part of this Article. Punishment involves physical restraint, invasions to
bodily integrity, and (often but not always) physical pain. Sentencing judges
know this, as evidenced by sentencing orders that take into account the
impact that the physical deprivations and impositions concomitant to
incarceration will have on a particular defendant. 130 Sentencing
commissions seem to recognize the corporal aspects of imprisonment as
well, as demonstrated by guidelines that permit departures based on an
individual defendant’s physical condition. 131 Prison administrators know
that incarceration is a corporal punishment, 132 as do inmates. 133 Those
involved in key penal practices—all the practices that follow the legislative
authorization of criminal sentences—seem to acknowledge uniformly that
129

In my view, the phrase “cruel and unusual” necessarily requires a normative
assessment, but the term “punishment” should be understood positively. Justice Scalia has
read the Cruel and Unusual Punishments Clause in almost exactly the opposite fashion. He
has suggested that the phrase “cruel and unusual” means simply, “not authorized by law” or
“illegal.” See Harmelin v. Michigan, 501 U.S. 957, 969-75 (1991) (analyzing historical
evidence and concluding that the Cruel and Unusual Punishments Clause contains no
proportionality requirement but instead prohibits punishments not authorized by statute or
common law). This interpretation renders the inquiry into cruelty and unusualness a positive,
empirical one, and also seems to render the Cruel and Unusual Punishments Clause
superfluous, since illegal punishments are already, well, illegal. As noted above, Justice
Scalia has frequently joined opinions by Justice Thomas that impute to Eighth Amendment
“punishment” a fair degree of normative legitimacy. See supra note 105 and accompanying
text.
130

E.g., Koon v. United States, 518 U.S. 81, 111-12 (1996) (upholding downward
departure in sentence based on “susceptibility to abuse in prison”); United States v. Gonzalez,
945 F.2d 525, 527 (2d Cir. 1991) (upholding departure based on defendant’s extreme
physical vulnerability while in prison).
131
See, e.g., U.S.S.G. § 5H1.4 (2005) (“[E]xtraordinary physical impairment may
be a reason to impose a sentence below the applicable guidelines range.”).
132

Prison administrators frequently distinguish between the tasks of “custody” and
“treatment.” The corporal or bodily element of incarceration is part of the custodial task. See,
e.g., JOHN J. DIIULIO, JR., GOVERNING PRISONS 40 (1987) (discussing prison officials’
perceptions of their “custodial” obligations, which require them to—figuratively and
sometimes literally—“tie [the] legs” of inmates); RHODES, TOTAL CONFINEMENT, supra note
91, at 133:
For both custody and treatment workers it is axiomatic that friction between them results
from their differential possession of power and knowledge. Custodial staff state as a brute
fact of their capacity to inflict punishment: “It’s about power.” Treatment workers take their
stand on psychiatric categories and approaches . . . that sometimes skirt and sometimes
support, but are always enmeshed in, custodial power.
133

See supra Part I.

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punishment entails extensive impositions on, and regulations of, the
prisoner’s body.
But our constitutional doctrine nevertheless embraces an ephemeral
abstraction as the only “punishment” regulated by the Eighth Amendment.
Punishment is described negatively—as “legal deprivation”—and not as a
series of affirmative acts by state actors. Legal scholars and philosophers
may be partly to blame for this gulf between the legal conception of
punishment and the reality of penal practices. In striving to legitimate state
punishment and to distinguish it from violence, they have carefully defined
away the realities of penal practices. For example, consider John Rawls’s
much-quoted definition of punishment:
[A] person is said to suffer punishment whenever he is legally
deprived of some of the normal rights of a citizen on the ground
that he has violated a rule of law, the violation having been
established by trial according to the due process of law, provided
that the deprivation is carried out by the recognized legal
authorities of the state, that the rule of law clearly specifies both
the offense and the attached penalty, that the courts construe
statutes strictly, and that the statute was on the books prior to the
time of the offense. This definition specifies what I shall
understand by punishment.134

This account of punishment is custom-made for the project of
philosophical justification—unsurprisingly, it focuses much more on the
procedural constraints that allegedly distinguish punishment from violence
than on the sanction itself. To the extent that Rawls describes the sanction,
there is only an oblique reference to “legal deprivation.” Rawls is not alone:
many modern philosophies of “punishment” focus on the processes through
which laws are made, obligations are imposed, and guilt is determined.135
The sanction at the end of that process tends to drop out of the picture.
The notion that punishment, even in the form of incarceration, is
non-corporal can be traced also to apparent ambiguities in the work of
Michel Foucault, who is probably the theorist most frequently associated
with the study of modern penal practices and their relation to the body.136 A
superficial reading of Foucault’s Discipline and Punish would see the
134

John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 10 (1955).

135
See, e.g., James F. Doyle, Justice and Legal Punishment, in THE PHILOSOPHY OF
PUNISHMENT 159-64 (H.B. Acton ed., 1969) (arguing that a theory of punishment must be
situated in an account of legitimate legal authority). H.L.A. Hart’s definition of punishment
is also too abstract to say much about the sanction itself, but at least Hart cautions against
building assumptions about normative legitimacy or justification into the definition of
punishment. See H.L.A. HART, PUNISHMENT AND RESPONSIBILITY 4-6 (1968).
136
MICHEL FOUCAULT, DISCIPLINE
Books 1977) (1975).

AND

PUNISH (Alan Sheridan trans., Vintage

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book’s entire argument encapsulated in the contrasting penal practices
described in the first few pages: in Foucault’s first example, a man
convicted of regicide is tortured to—and past—death in a public spectacle
that vividly displays the vulnerabilities of the human body; in his second
example, a set of prisoners follow a regimented schedule of work, study,
and prayer that appears to be void of any physical suffering.137 The first
anecdote could be seen to represent the old way of punishing, which acted
directly on the body and exploited its physical vulnerabilities (including but
not limited to its susceptibility to pain). The second anecdote illustrates the
modern way of punishing, “the gentle way,” an ordering of activity in a
certain architectural environment, an effort to discipline souls rather than to
hurt or destroy bodies.138 And so the lesson that some readers have taken
from Foucault is that the prison is the consequence of a turn from the body
to the soul, and prison is a “non-corporal” punishment.
There are isolated passages of Foucault’s text that support this
reading (mostly in the first twenty pages or so of Discipline and Punish).139
However, it is unlikely that the book as a whole supports the thesis that
prison is non-corporal, nor is it probable that Foucault intended to make
such an argument. Rather, he is careful to note that “imprisonment—mere
loss of liberty—has never functioned without a certain additional element of
punishment that certainly concerned the body itself: Rationing of food,
sexual deprivation, corporal punishment, solitary confinement . . . It is
difficult to dissociate punishment from additional physical pain. What
would a non-corporal punishment be?” 140 Even to the extent that
incarceration represents an increased focus on the minds of prisoners,
Foucault argues, it attempts to reach minds through the close regulation of
bodies.141 In fact, it is through the regulation of bodies that prisons construct
the souls of prisoners. The practice of incarceration restrains prisoners’
bodies; it brings them together in close quarters; it requires officials to
watch, touch, and search prisoners’ bodies; it provides opportunities for
prisoners to watch and touch (and maybe search) each other; it regulates the
137

See id. at 3-7.

138

See id. at 104-31.

139
Others have noted this ambiguity in Foucault’s text. See, e.g., ALAN HYDE,
BODIES OF LAW 187 (1997):

Foucault, momentarily forgetting his own methodological prescripts, called [the]
disappearance of public executions “a slackening of the hold on the body” and modern penal
practice as “non-corporal,” but I think it much more accurate (and perhaps more Foucauldian)
to see modern criminal punishment as profoundly holding the body, profoundly corporal.

135-69.

140

FOUCAULT, supra note 136, at 15-16.

141

See id. at 294-95; see generally Foucault’s discussion of “Docile bodies,” id. at

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basic functions of prisoners’ bodies; and often (but not always or
continuously), it inflicts physical pain on those bodies.142
We tend to forget all of this when we speak of punishment as “legal
deprivation” or in other abstract formulations. Such abstractions have
disconnected the legal conception of punishment from the penal practices
that the law authorizes and produces. The split between punishment in legal
doctrine and actual penal practices is correlated with a denial of the corporal
nature of punishment, a denial that has in turn produced a failure to
scrutinize the sexual aspects of modern incarceration. To extent that, as a
nation, we are concerned about sex in prison, it is rape—and, perhaps, the
particularly disturbing notion of same-sex rape—that we worry about. Even
to the extent that we have adopted such measures as the Prison Rape
Elimination Act, we do not view the incidence of rape or of other sexual
domination as a blemish on the institution of punishment. We have instead
replaced the positive understanding of punishment in the Eighth
Amendment (what the state does in response to crime, be it “justified” or
“legitimate” or not) with a normative one.143
Turning from punishment generally to speak specifically of prison
rape—what if we reformed constitutional doctrine to recognize conditions
of confinement as “punishment” regulated by the Eighth Amendment?
Would we then be able to eliminate the sexual character of incarceration?
Doctrinal reforms would be an important improvement, and they would
certainly help the victims of violent sexual assaults in prison show that they
had suffered cruel and unusual punishment.144 But, as emphasized in Part I,
142

In insisting that incarceration acts on the body, this assumes that there is such a
thing as “the body” which exists prior to social or state actions against it. Some
contemporary feminist or gender theories question this assumption. See, e.g., JUDITH BUTLER,
BODIES THAT MATTER (1993). For Butler and some other gender theorists, the political
consequence of “the materiality of the body” has been the entrenchment of sex and gender
norms based on bodies’ (allegedly natural and pre-political) sexes and genders. While
sympathetic to the efforts to disrupt such norms, I do not believe that such efforts require a
denial of the corporeality of human beings.
143

The Supreme Court’s approach to prison conditions could be understood as an
application to domestic law of international law’s doctrine of collateral damage: The state is
not liable for foreseeable but not specifically intended harm that results from an otherwise
justified infliction of force. See, e.g., Jefferson D. Reynolds, Collateral Damage on the 21st
Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for
Moral High Ground, 56 AIR FORCE L. REV. 1, 89 (2005) (defining “voluntary collateral
damage” as “any anticipated incidental damage or other effect of an attack that is justified
under the principle of proportionality”).
144

Reforms to Eighth Amendment doctrine might not be enough to ensure prison
rape victims legal success. As Roderick Johnson recently learned, the obstacles to recovery
extend beyond the difficulty of showing “deliberate indifference.” Johnson’s lawsuit against
Texas prison officials gained national attention for its vivid (and seemingly well-documented)
allegations of abuse and slavery. See Liptak, Inmate Was Considered “Property,” supra note
54; Liptak, Ex-Inmate’s Suit, supra note 54. Johnson’s case prompted a New York Times
editorial; Editorial, Sexual Slavery in Prison, supra note 32. Imprisoned for burglary,

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the sexual nature of incarceration is not limited to violent sexual assaults.
Prison sex is far more complicated than indicated by the image of the brutal
rapist and the powerless victim. Even if we begin to recognize prison rapes
as cruel and unusual punishment—and if we use legal judgments to
compensate victims and reduce the incidence of prison rape—sexual
coercion is likely to remain an intrinsic feature of the experience of
incarceration. Distinct from the failures of the Supreme Court’s Eighth
Amendment doctrine described in this Part, there may exist unavoidable
limits on the utility of the Eighth Amendment as a tool to reform prisons:
The concept of “cruel and unusual punishment” is probably too blunt an
instrument to regulate the prison environment in a manner that will
eliminate all coerced sex. Perhaps fortuitously, recent efforts to address
sexual assaults in prisons have not centered on the Eighth Amendment, but
on the development of better prison administrative policies.
III. POLICING (THROUGH) THE SEXUAL
Notwithstanding the doctrinal evasions of the issue of prison rape,
at this moment the nation seems ready to condemn the practice and to look
Johnson was quickly identified by fellow inmates as a “free-world homosexual,” renamed
Coco, and classified as the property of a prison gang. See Liptak, Inmate Was Considered
“Property,” supra note 54. For a time, Johnson was “a sort of wife” to one gang member,
who forced Johnson to cook, clean, and sexually service him. Later, Johnson would be sold
to other gangs and rented out as a prostitute. See Liptak, Ex-Inmate’s Suit, supra note 54.
Johnson repeatedly sought protection from prison officials, to no avail. Liptak, Inmate Was
Considered “Property,” supra note 54 (“Richard E. Wathen, an assistant warden, testified
that there was nothing in Mr. Johnson’s seven written pleas for help that warranted moving
him to what prison officials call safekeeping . . . .”). At trial in federal district court, an
inmate witness testified that prison officials “turned a blind eye” to the abuse. Id.
Nevertheless, in October 2005, a jury in Wichita Falls, Texas found for the defendants on all
counts. Mike Ward, Inmate’s Case Raises Profile of Rapes, AUSTIN AMERICAN-STATESMAN,
Oct. 24, 2005, at A1.
News reports suggest that Johnson lost for some of the same reasons that
prosecutions for non-carceral rape fail: there was insufficient evidence of physical resistance,
and the victim was “put on trial” so jurors would consider unsavory but irrelevant aspects of
the victim’s character. See Angela K. Brown, Jurors Reject Texas Prison Rape Lawsuit,
ASSOCIATED PRESS, Oct. 18, 2005 (quoting a juror as acknowledging that Johnson
“probably” was raped, but criticizing Johnson’s failure to introduce a rape test); Prison
Workers Not Liable in Lawsuit, HOUSTON CHRON. ONLINE, Oct. 18, 2005,
http://www.chron.com/disp/story.mpl/metropolitan/3402785.html (defense argued that
Johnson “wore tight pants and flirted with a corrections officer”); Sarah Etter, Inmate’s Rape
Case Fails, But Silver Lining Found, CORRECTIONS.COM, Oct. 24, 2005,
http://www.spr.org/en/sprnews/2005/1024-02.htm (noting that defense lawyers emphasized
the lack of physical evidence and alleged that Johnson was simply trying to manipulate
prison officials to be moved closer to his lover); id. (jurors believed Johnson was using
cocaine); Liptak, Inmate Was Considered “Property,” supra note 54 (quoting testimony
from one defendant that Johnson’s rape claims were not credible given Johnson’s failure to
resist physically).

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for solutions. In fact, the current tide of support for prison rape reform has
surprised some prisoners’ rights advocates. 145 One noteworthy recent
development is the federal Prison Rape Elimination Act of 2003,146 widely
supported by left- and right-wing coalitions.147 The PREA passed the House
and Senate unanimously, and was signed into law by President Bush in
2003. 148 Even since the PREA has become law, popular media has
continued to publicize and condemn sexual brutality in prisons. 149
Unfortunately, as noted in Part I, the conception of prison rape that has
dominated discussions of the PREA and subsequent media coverage is a
conception of a violent, cruel aggressor who physically overpowers a
hapless victim. The current “solutions” to prison rape are solutions to a
problem that seems to be quite rare, and these proposed solutions are likely
to exacerbate the less violent but still deeply coercive sex that is much more
characteristic of imprisonment in America.
Let us not exaggerate the likely effects of the PREA. 150 It is a
mostly hortatory statute, seemingly intended primarily to express
condemnation of physically violent sexual aggression. Rape is defined
relatively broadly, as “carnal knowledge, oral sodomy, sexual assault with
an object, or sexual fondling of a person” in any of three situations:
145
See, e.g., Julie Samia Mair et al., New Hope for Victims of Prison Sexual
Assault, 31 J.L. MED. & ETHICS 602, 603 (2003) (“The speed by which Congress passed the
Prison Rape Elimination Act is surprising.”).
146
Prison Rape Elimination Act of 2003, Pub. L. No. 109-79, 117 Stat. 972 (2003)
(codified at 42 U.S.C. §§ 15601-15609).
147

See supra note 4; Adam Cohen, Editorial Observer: Charles Colson and the
Mission That Began with Watergate, N.Y. TIMES, July 25, 2005, at A18 (noting that Charles
Colson deserves credit for mobilizing evangelical Protestants and their allies in Congress in
support of prison reform and the PREA); James E. Robertson, A Punk’s Song About Prison
Reform, 24 PACE L. REV. 527, 553-57 (2004) (recounting the history of the PREA and noting
evangelical Christians’ support for the law); James E. Robertson, Compassionate
Conservatism and Prison Rape: The Prison Rape Elimination Act, 30 NEW ENG. J. CRIM. &
CIV. CONFINEMENT 1, 3-8 (2004); Robert Weisberg & David Mills, Violence Silence: Why
No One Really Cares About Prison Rape, SLATE, Oct. 1, 2003,
http://www.slate.com/id/2089095/ (“Congressional sponsors of [PREA] included the most
improbable political allies, and support for the bill ranged from the ACLU and Human
Rights Watch to conservative evangelical organizations.”).
148
See Cohen, supra note 147 (noting unanimous Congressional vote); see also
President Signs Prison Rape Reduction Measure, 12 CORRECTIONS F. 16 (2003).
149

See, e.g., Christopher Hitchens, The Scandalous Brutality of U.S. Prisons,
VANITY FAIR.COM, http://www.vanityfair.com/commentary/content/articles/050912roco02
(last accessed Dec. 9, 2005).
150

For another critical assessment of the PREA, see Weisberg & Mills, supra note
147. See also Robertson, A Punk’s Song, supra note 147, at 556 (“Like other symbolic
legislation, [PREA] may have a limited impact.”).

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“Forcibly or against that person’s will,” “where the victim is incapable of
giving consent because of his or her youth or . . . mental incapacity,” or
“through the exploitation of the fear or threat of physical violence or bodily
injury.”151 To eliminate or reduce rape so defined, the PREA mandates data
collection, review of existing practices, and the development and eventual
promulgation of national rape-prevention standards.152 The PREA has few,
if any, immediate effects on prison administrators. In fact, the statute
includes a specific limitation that prohibits the establishment of any national
prevention standards that “would impose substantial additional costs
compared to the costs presently expended by Federal, State, and local
prison authorities.”153
To the extent that the Act does contemplate actual solutions to
prison rape, it proposes that we police this form of sexual violence in the
ways we police most crime: more punishment and more surveillance.
Perpetrators of prison rape are to prosecuted (the Act suggests a “zerotolerance” standard154); and a National Prison Rape Commission is directed
to study, among other things, “the feasibility and cost of conducting
surveillance, undercover activities, or both, to reduce the incidence of
prison rape.”155 The solutions to prison rape, apparently, lie in still more
prison (time) and still less privacy.
Indeed, much of the literature on prison rape takes the same
approach: build more, and better, panopticons. 156 The new County Jail
Number 3 in San Bruno, California, a clover-leaf shaped building that
151

42 U.S.C. § 15609(9)(A)-(C) (2005).

152
See § 15603(a)-(c) (setting out data to be collected by the Bureau of Justice,
establishing a “review panel on prison rape” within the Bureau of Justice, and mandating
regular reports on prison rape); § 15606(a)-(e) (establishing a National Prison Rape
Elimination Commission and directing the Commission to develop and promulgate standards
for rape prevention).
153
§ 15607(3). The PREA authorizes $15,000,000 for each fiscal year from 2004
through 2010 for research on prison rape, see id. at § 15603(e), and $40,000,000 per year for
the same period to fund grants to states for inmate protection efforts, see id. at § 15605(a),
(g).
154

§ 15602 (1).

155

§ 15606(d)(2)(H).

156

See, e.g., Robertson, Cruel and Unusual Punishment, supra note 44, at 48
(“[P]rison staff should undertake direct and continuous supervision of inmates. Historically,
inmate control has been based on the intermittent surveillance of inmates, and approach that
falsely assumes that prison architecture and visual surveillance can control inmates with
limited direct supervision by correctional staff.”). Robertson’s more recent work is less
optimistic about surveillance as a solution and more attentive to efforts to restore dignity and
a measure of autonomy to prisoners. See Robertson, A Punk’s Song, supra note 147, at 55762.

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evokes Jeremy Bentham’s design for the ideal prison, is the result of years
of litigation stemming from a 1989 prisoner rape.157 (Bentham’s panopticon
was, of course, famously critiqued in Foucault’s Discipline and Punish.)
The new San Bruno jail has four leaves, or “pods,” and will place a deputy
sheriff in the center of each pod where he can “view all the inmates all the
time.”158 Another new San Francisco jail, also built in the panopticon model
with funds allotted after the rape lawsuit, is already operating. The
“elevated guard station” at the center of one pod is “a bit like the bridge of
the Starship Enterprise.”159 From the guard station one can see into each cell,
and “[i]nstead of bars, the cell doors [have] large glass windows.”160
Beyond more punishment and increased surveillance, other possible
mechanisms to address prison rape identified by the PREA include more
careful classification of prisoners to ensure that likely targets are not housed
with likely aggressors, better guard training, prisoner education, and victim
treatment and counseling. 161 Each of these measures is likely to help
alleviate the problem of violent rape. That is certainly a problem worth
addressing, but as suggested in Part I, it is hardly the most characteristic
sexual interaction among inmates. Far more common are non-violent rapes
tantamount to what Susan Estrich labeled “simple rape,”162 as well as sex
157
See Daniel Brook, The Problem of Prison Rape, 2004 LEGAL AFFAIRS 24, 28; cf.
Besk v. City and County of San Francisco, 1993 WL 181496 (N.D. Cal. 1993) (recording
settlement terms between inmate plaintiffs and the administrators of the San Bruno jail).
158
Carol Pogash, Jail As Old As Alcatraz, With Own Brand of Infamy, Has Done
Its Time, N.Y. TIMES, Jan. 5, 2004, at A12. Christopher Hitchens sings the praises of the San
Francisco jail in a recent article on prison rape. See Hitchens, supra note 149. A series of
incidents at the old San Bruno jail (where inmates are still being held because the new
building is not ready) earlier this year should prompt questions about whether supersurveillance will not produce its own problems. A gay prisoner complained of several
incidents of abuse by guards in February and March 2005. The complaints (later
corroborated by a second prisoner) accused the guards of making sexually explicit and other
inappropriate comments, drawing breasts onto the prisoner’s shirt, and using a cell phone
camera to take and transmit “tasteless” pictures of the prisoner. Phillip Matier & Andrew
Ross, Gay Inmates’ Complaints of Abuse at San Bruno Jail Being Investigated, S.F. CHRON.,
May 25, 2005. The San Francisco sheriff subsequently called for an FBI investigation into
the abuse allegations. Phillip Matier & Andrew Ross, Deputy Given Notice for “Failing to
Cooperate” in Jail Probe, S.F. CHRON., July 3, 2005.
159

Brook, supra note 157, at 29.

160

Id. In a recent discussion of prison rape, John Moriarty, inspector general of the
Texas Department of Criminal Justice, noted that after an inmate “reported being attacked
200 times . . . we’ve got a camera on him now 24/7.” See Ward, supra note 144.
161
162

42 U.S.C. § 15606(e)(2) (2005).

SUSAN ESTRICH, REAL RAPE 4-5 (1987) (defining “simple rape” as rape without
violence or other aggravating circumstances; a “simple rape” is one “of a single defendant
who knew his victim and neither beat her nor threatened her with a weapon”).

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that may not satisfy any contemporary legal definition of rape but is
nonetheless coerced.
That coerced sex is not usually violent is a familiar claim in
scholarship addressing the rapes of women by men.163 In fact, several key
insights of scholarship on non-carceral rape are potentially important to any
reform efforts in the prison context. (The following distills only a few
relevant themes from an expansive literature—and future scholarship on
prison rape should certainly consult the non-carceral rape literature for
lessons which this Part overlooks.) Briefly, feminist critiques of rape law of
the 1970s and 1980s often began by examining what problems rape laws
seemed designed to address—in other words, scholars asked what
conceptions of the wrong of rape were implicit in the language and
enforcement practices of American rape law. Rape, many commentators
argued, was punished not to protect women but to protect men’s property
rights in women.164 In part because rape law was not designed or applied to
ensure women’s safety, the law effectively induced women to seek safety in
monogamous pairings.165 Furthermore, the history of rape law was closely
163

See, e.g., Christina E. Wells & Erin Elliott Motley, Reinforcing the Myth of the
Crazed Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U. L. REV. 127, 128-30
(2001) (arguing that the Violence Against Women Act, sex offender registration statutes, and
sexual predator civil commitment statutes “substantially undermine feminist efforts . . . by
reinforcing the myth that men who rape are brutish male aggressors,” and noting that “only a
small portion of rapes involve violence extrinsic to the rape itself”) (internal quotation marks
omitted).
164

See, e.g., Susan Brownmiller, AGAINST OUR WILL 376 (1975):

[B]y tracing man’s concept of rape as he defined it in his earliest laws, we now know with
certainty that the criminal act he viewed with horror . . . had little to do with an actual act of
sexual violence that a woman’s body might sustain. . . . [M]odern legal conceptions of rape
are rooted still in ancient male concepts of property.
See also Donald Dripps, Beyond Rape: An Essay on the Difference Between the
Presence of Force and the Absence of Consent, 92 COLUM. L. REV. 1780, 1782 (1992)
(“Until the twentieth century, . . . female sexual autonomy had little to do with the law of
rape. The law instead struck a balance between the interests of males-in-possession and their
predatory counterparts.”); Nicola Lacey, Unspeakable Subjects, Impossible Rights: Sexuality,
Integrity, and Criminal Law, 11 CAN. J.L. & JURIS. 47, 53 (1998) (“[T]he history of the
offense of rape expresses a commitment not so much to sexual autonomy as to property
rights: its essence was damage to the proprietary value of virginity or chastity to an ‘owning’
male rather than any recognition of a woman’s interest in her own sexual freedom.”).
165

Robin West remarks:

As most women know, being accompanied by a man on the street is the only sure way to
avoid street hassling, and in a directly analogous way, being accompanied by a man, through
marriage, in life, and in the home, is the ‘best way’ to avoid more dangerous and damaging
forms of sexual assault. This is the sense in which all men, even safe men who would never
dream of touching a woman who does not want to be touched, benefit from rape; rape makes
the practice of consensual heterosexuality and the institution of marriage desirable measures
of safety.

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intertwined with history of race relations and racial domination; no one was
more likely to be punished severely for rape than a black man accused of
assaulting a white woman.166 One could say that rape law was used to police
the sexual—to police virginity, chastity, and monogamy—and to police
through the sexual—to enforce gender and racial hierarchies as well as
codes of public morality. 167 Under all this policing, women’s sexual
autonomy was simply not part of the program.
After levying these criticisms against the history and enforcement
practices of rape law, scholars proposed a range of reforms. Most
commentators agreed that the requirements of force and absence of consent,
elements of most rape statutes, effectively prevented many rapists from
being convicted, for the use of force was relatively rare and consent was
notoriously difficult to assess. “Virtually all modern rape scholars want to
modify or abolish the force requirement as an element of rape,” David
Bryden notes, “[b]ut there is no consensus about the rest of the reform
agenda.” 168 Some scholars proposed abolishing the physical force
requirement altogether and clarifying the concept of consent to ensure that
“no means no” (and that nonverbal expressions of resistance also mean
no).169 In an alternative approach, men would have an affirmative obligation
to secure “clearly communicated” consent before beginning sexual

Robin L. West, Legitimating the Illegitimate: A Comment on Beyond Rape, 93
COLUM. L. REV. 1442, 1454 (1993) (internal citations omitted).
166

See, e.g., Estrich, supra note 162, at 6 (“The history of rape in the United States
is clearly a history of both racism and sexism. It is impossible to write about rape without
addressing racism . . . .”). Martha Chamallas has stated that
[o]ne need only recall the famous Scottsboro Boys case and the lynching of Emmett Till to
realize that the ideology of racism made it easier for whites to believe the myths that black
men were prone to rape and that white women could not voluntarily consent to have sex with
black men.
Martha Chamallas, Lucky: The Sequel, 80 IND. L.J. 441, 454-55 (2005); see also id.
(noting reports from social scientists that “stricter sentences are meted out to black
defendants and those convicted of raping white women”); Dorothy Roberts, Rape, Violence,
and Women’s Autonomy, 69 CHI.-KENT L. REV. 359, 364-68 (1993) (describing the “racial
construction of rape” and the criminal law’s enforcement of that construction).
167

Along similar lines, Martha Chamallas describes the “traditional view” of
sexual conduct as one that regulates non-marital sex to “express[] moral values and
maintain[] a morally decent society.” Martha Chamallas, Consent, Equality, and the Legal
Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 781 (1988).
168

David P. Bryden, Redefining Rape, 3 BUFF. CRIM. L. REV. 317, 322 (2000).

169
See, e.g., Estrich, supra note 162, at 102-03; see also Lynne Henderson, Getting
to Know: Honoring Women in Law and in Fact, 2 TEX. J. WOMEN & L. 41 (1993).

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intercourse. 170 Still another reform proposal would retain the analogy of
rape to a property crime, but would place the property right in a woman’s
body with the woman herself rather than in a male counterpart. 171 This
“commodity theory” of rape is based upon the claim that “autonomy” and
“consent” are incoherent, unstable concepts that cannot serve as the basis of
rape law.
For those concerned with sexual coercion in prisons, one of the
most important contributions of feminists writing on rape was the emphasis
that the problem is not only “rape”—that conditions of gross inequality lead
women to engage in sexual activity that we may not wish to criminalize, but
which is surely something less than fully consensual. As argued by Dorothy
Roberts, “women engage in unwanted sex . . . [out of] women’s desire to
please men because of cultural expectations of feminine conduct, and
women’s economic and emotional dependence on men.” 172 Moreover,
social expectations and economic dependence may intersect with implicit
threats of violence. 173 Along similar lines, Robin West criticizes the
commodity theory of rape for failing to question the conditions of
inequality that might induce women to trade away their bodies for reasons
other than pleasure or procreation. 174 “[E]ven in the absence of ‘duress’
emanating from him, there is plenty of duress emanating from the social,
cultural, and institutional forces that have influenced her.”175 West argues
that, though we may not want to classify sex produced by social or
institutional duress as rape, we should certainly not label it legitimate or
morally unproblematic:
I am not sure that anyone has thought systematically about what
all of these unenjoyed and unpleasant sexual invasions of
women’s bodies, followed, often enough, with a lot of lies about
how great it all was, have done to women’s sense of physical
170

STEPHEN J. SCHULHOFER, UNWANTED SEX 271 (1998) (“Sexual intimacy
involves a profound intrusion on the physical and emotional integrity of the individual. . . .
For such intrusions actual permission—nothing less than positive willingness, clearly
communicated—should ever count as consent.”); see also id. at 283 (setting forth a model
criminal statute for sex offenses that defines consent as “actual words or conduct indicating
affirmative, freely given permission to the act of sexual penetration”).
171

See Dripps, supra note 164, at 1789 (“[I]ndividuals have a property right to the
use of their bodies . . . . If Clyde had stolen Dawn’s purse while she slept, instead of her
body, the violation of her rights would be similar but less severe.”). For a critique of
Dripps’s proposal, see generally West, supra note 165.
172

Roberts, supra note 166, at 380.

173

Id.

174

See West, supra note 165, at 1452-58.

175

Id. at 1456.

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security, personal competency, self-esteem, and moral integrity.
It surely is not unduly harsh to suspect that the cumulative effect
has been quite damaging.176

Which reform proposals are most likely to protect women from
rape by men is beyond the scope of this Article; and this Article only
ventures guesses as to which approaches will best protect male prisoners
from rape. But even if the question of a prescription for reform remains
unsettled, several lessons from the analysis of non-carceral rape produced
over the past thirty years should not be overlooked.177 First, an approach to
rape that focuses on physically violent assault will leave many victims
unprotected. Second, even rare instances of rape, alongside selective
prosecution of rapists, can produce a world in which potential victims,
aware of their own vulnerability, seek safety by pairing with a protector.
(Hence the “punk-man” relationship.) 178 Third, consent is an ambiguous
concept, in need of legal specification if nonconsent is to be an element of
rape. Fourth, the sexual autonomy of rape victims has historically been
overlooked by rape law. And perhaps most importantly, under conditions of
inequality, the criminal law is not necessarily the most effective tool to
ensure sexual autonomy. (In fact, given the racial history of rape
prosecutions in the United States, a primarily punitive approach to prison
rape reform may simply ensure that even more black men stay in jail even
longer.) 179 Feminist scholars urged attention to social, cultural, and
institutional conditions that lead women to have sex they do not really want.
Similarly, instead of expanding our reliance on prison as a favored solution
to a myriad of problems, we should consider the ways in which prison
might be, or at least produce, the problem.
The proposals to reduce or eliminate prison rape described at the
beginning of this Part can be understood as further efforts to police the
sexual, and to police through the sexual; they are clearly not aimed at
obtaining for prisoners greater autonomy. Even aside from the PREA and
similar reform efforts, prisons police through the sexual in the sense that
176

Id. at 1457.

177
As noted in the Introduction, this is not to equate heterosexual rape in the free
world with same-sex rape in prison. Nevertheless, the construction of binary gender
relationships in the prison environment, see supra note 53 and accompanying text, and the
fact that male victims of prison rape face many of the same legal obstacles that have
confronted female rape victims, see supra note 144, suggest that prison rape reform needs to
be attentive to the insights of feminist analysis of heterosexual rape.
178
179

See supra note 68 and accompanying text.

Cf. Roberts, supra note 166, at 387-88 (“[T]he singleminded mission of
enhancing individual women’s security by ensuring that offenders are punished conflicts
with the antiracist interest in protecting the Black community’s freedom from excessive and
biased state power.”).

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sexual interaction or sexual norms are a medium through which to ensure
discipline. By many reports, officials exploit the hierarchy of sexual roles.
In the most extreme cases, they may actually orchestrate a sexual assault.180
Less egregiously, they simply perpetuate the hierarchy to keep peace, as by
appeasing the demands of the most powerful prisoners.181 Prisons may also
punish through the sexual in the sense that control over an individual’s
sexual activities may be essential to a thorough punishment of the person.
Incarceration as conceived in the United States seeks near-total control of
the prisoner, and to allow a realm of privacy that could include consensual,
unmonitored sexual intimacy would allow some of the person to escape
unpunished.
Reform proposals in the PREA and elsewhere do not attempt to end
prison’s control of prisoner sexuality; if anything, they seek to expand that
control. The PREA is clearly not aimed at protecting sexual autonomy; it
carefully avoids any suggestion of permissiveness toward same-sex
intimacy in prison. Further, the PREA does not contemplate the measures
that prisoners and several activists and researchers have identified as most
important to reducing sexual assaults in prison and their devastating
consequences: opportunities for conjugal visits; condom distribution;182 the
elimination of regulations against “non-assaultive” sexual relations among
prisoners; and most generally, “any measures which can give prisoners a
feeling of more control over their own life” without breaching institutional
security.183
Perhaps even more significantly, the PREA (along with much of the
prison reform literature) protects other dearly held normative assumptions
about sexual aggression, and, more generally, the appropriate response to
180
See Christian Parenti, LOCKDOWN AMERICA: POLICE AND PRISONS IN THE AGE OF
CRISIS 182-184 (1999) (describing “the semi-official use of rape as a disciplinary tool”); id.
at 185 (“[R]ape almost seems like a central part of prison management.”); Donald Tucker, A
Punk’s Song, in MALE RAPE, supra note 35, at 62. Donald Tucker is the pen name of Stephen
Donaldson.
181

See Parenti, supra note 180, at 193 (“[G]uards do not unilaterally control
prisoners but, rather, broker control with inmates.”); Robertson, A Punk’s Song, supra note 9,
at 533.
182

PREA seems carefully drafted to avoid any suggestion of condom distribution.
See 42 U.S.C. § 15606(e)(2)(G) (2005) (recommending national standards on “post-rape
prophylactic medical measures for reducing the incidence of transmission of sexual diseases”)
(emphasis added).
183
Stephen Donaldson, Administrative Policy and Prisoner Rape, STOP PRISONER
RAPE, http://www.spr.org/en/stephendonaldson/doc_01_policy.html (last visited Dec. 20,
2005); see also Stephen Donaldson, The Rape Crisis Behind Bars, N.Y. TIMES, Dec. 29,
1993, at A11 (advocating condom distribution); Christopher Hensley et al., Conjugal
Visitation Programs: The Logical Conclusion, in PRISON SEX, supra note 41, at 155-56
(recommending conjugal visits); Struckman-Johnson et al., supra note 12, at 76 (reporting
that prisoners view conjugal visits as a likely means of reducing sexual coercion in prison).

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crime. The PREA assumes a “bad man”184 (a very, very bad man) account
of prison rape: there is a clear aggressor and a clear victim, and the
aggressor is an evil and brutal character who deserves still further
punishment. Prison rape, like all rape and indeed all crime, is a problem that
can be traced to individual agency, to the evil choices of a particular
individual. This description of the problem of prison rape and its
corresponding solutions do not question, and in fact reassert, the basic logic
and legitimacy of the prison.
To identify institutional or structural causes of crime is not to
exclude the possibility of agency in the criminal. Nevertheless, a likely
reaction to the argument presented here is an accusation that this “excuses”
rapists. To be clear: perpetrators of sexual coercion exercise a good deal of
choice, even in prison walls. This does not mean that we must insist
individual choice is the exclusive explanation for sexual coercion in prison.
We sometimes equate causation (an empirical issue) with blameworthiness
(a normative one). And sometimes we act as though causation/blame were a
scarce resource, so that if we identified social or institutional causes of
crime we would be forced to diminish the blame that we assign to
individual wrongdoers. In fact, moral disapprobation is a normative
construct of seemingly infinite capacity. Blame away, but keep in mind the
potential drawbacks of primarily punitive responses to prison rape. If we
care not only about punishment of sexual coercion but also about its
prevention, then we must be attentive to every contributing cause.
And indeed, as detailed in Part I, not every instance of coerced sex
has a clear perpetrator, an individual aggressor who is the source of the
coercion. A great deal of sex in prisons stems not from a direct exercise or
threat of superior physical force, but from a bargain made under the
coercive conditions that are intrinsic to prison. Prisoners are denied almost
every opportunity for agency, which is why some commentators are
reluctant to call any prisoner sex consensual. And it seems impossible to
restore a significant measure of agency to prisoners and still maintain
security and inflict the pain or harm that we see as essential to punishment.
To regulate the most obvious physical coercion, the graphically violent
rapes, is an important improvement, but it will not address much of the sex.
Or, we could ban sex altogether, which seems fruitless and probably
undesirable. In short, it would be very difficult to disaggregate coercive sex
from imprisonment.
IV. CONCLUSION
The first two parts of this Article attempt to identify and clarify two
problems: Part I seeks to clarify the extent to which the experience of
imprisonment in all-male institutions is sexual, and Part II illustrates that
184

Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1987).

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contemporary Eighth Amendment doctrine fails to recognize most prison
experience—including the sexual aspects of it—as constitutionally
regulated “punishment.” In this final Part, where ambitious reform
proposals belong, this Article offers little but pessimism. At best, it seems
that extensive surveillance and strict control of prisoners could reduce the
incidents of physically violent rape, but such measures come at the price of
prisoners’ autonomy and may only increase distortions of sexuality within
the prison. However we define rape, however we resolve the difficult issues
of force and nonconsent, there remains “the institution of confinement
itself.”185 In the words of Stephen Donaldson:
[T]his is by far the most important issue, for all the coercion,
trauma, the demasculinization, the degradation are inherent in
this abomination, with only differences of degree—important as
they may be to us inside—between one human zoo and another.
Part of that confinement is what confines us to each other, barring
us from sexual and emotional contact with those on the Outside.
There is, ultimately, no prison rape issue. There is only the prison
issue.186

Donaldson wrote these words while in jail in November 1980. Later,
after his release, he would lead the organization Stop Prisoner Rape. As
Donaldson later seemed to acknowledge, it is probably too extreme to insist
that there is literally “no prison rape issue.” But it seems fair to insist that
prison rape, alongside all the ambiguously coercive forms of sex that occur
in prison, is a prison issue. It is produced by the prison, endemic to it, and
certainly unlikely to be remedied by efforts to make the prison still more
punitive and still more invasive.

185

Tucker, supra note 180, at 71-72.

186

Id. (paragraph breaks omitted).

 

 

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