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Washington College of Law Smith Research Paper Rethinking Prison Sex 2006

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American University Washington College of Law
Washington College of Law Research Paper No. 2008-31

Brenda V. Smith

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Copyright (c) 2006 Columbia Journal of Gender & Law
Columbia Journal of Gender and Law
15 Colum. J. Gender & L. 185
LENGTH: 18761 words
* Professor of Law, American University, Washington College of Law. Special thanks to my Research Associate,
Nairi Simonian, and Dean's Fellows, Emily Balogh, Elizabeth Flesher, and Joyce Kosak. I would also like to
thank the many advocates, inmates, researchers, and correctional practitioners who work to explain the lives and
experiences of persons in custody. The work of Anadora Moss, Professor Barbara Owen, and Dr. Allen Beck was
crucial in writing this Article.
... At the risk of buying into popular stereotypes about sex behind bars and the archetypes of the dyke prison matron
providing better treatment to women in prison in exchange for sex, or torrid sex between women in prison, or the burly
male prison rapist who creates prison wives, or the young man "turned out" in prison, I plan to explore the complexity
of prison sex and the challenges that it raises in the context of recently enacted federal legislation, the Prison Rape
Elimination Act ("PREA"). ... Part IV outlines six legitimate interests that prison officials have in expanding sexual
expression of inmates ---- such as furthering the goals of the Prison Rape Elimination Act. This Part concludes that in many
situations the prison does not have a legitimate interest in prohibiting prisoner sexual expression and would be better
served by using scarce resources to protect prisoners from nonconsensual and coercive sex by staff or other inmates. ...
The initial legislation, which was introduced with bipartisan support, focused primarily on prisoner--on--prisoner sexual
assault and provided for penalties only in cases of prison rape. ... The Prison Rape Reduction Act was reintroduced in
2003 with significant amendments ---- changing the name to the Prison Rape Elimination Act, adding coverage of staff
sexual abuse of persons in custody and grants to assist states in their efforts to prevent, reduce, and prosecute prison
rape. ... Correctional staff control every aspect of the prisoner and the prison experience: housing, recreation, discipline,
communication with the outside, and even the length of an inmate's sentence. ... Fifth, recognizing and granting inmates
a degree of sexual expression may enhance inmate safety by decreasing prison rape. ...
[*185] At the risk of buying into popular stereotypes about sex behind bars and the archetypes of the dyke prison
matron providing better treatment to women in prison in exchange for sex, n1 or torrid sex between women in prison, n2
or the burly male prison rapist who creates prison wives, n3 or the young man "turned out" in prison, n4 I plan to explore
the complexity of [*186] prison sex and the challenges that it raises in the context of recently enacted federal legislation,
the Prison Rape Elimination Act ("PREA"). n5
The primary focus of this Article is to begin to frame the discussion of prison sexuality and to chart an analytical
framework for examining it. This Article is by no means exhaustive and seeks primarily to mark the terrain ---- leaving
unexplored many areas that might prove fruitful for further research. n6 This is the beginning of a project that will
hopefully result in greater scholarship and analysis of prison sexuality from a multidisciplinary perspective.
In Part I, this Article briefly discusses the enactment of the Prison Rape Elimination Act and prior attempts to enact
legislation addressing the sexual abuse of persons in custody. Part II examines the historical underpinnings of prisons in

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15 Colum. J. Gender & L. 185, *186

the United States and how that framework has shaped attitudes toward the sexual expression of prisoners today. Part III,
using the narratives of prisoners, describes the range of motivations that prisoners have articulated in sexual expression
and attempts to disentangle prisoners' rights in sexual expression and from the state's legitimate interest in regulating that
expression. Part IV outlines six legitimate interests that prison officials have in expanding sexual expression of inmates ---such as furthering the goals of the Prison Rape Elimination Act. This Part concludes that in many situations the prison
does not have a legitimate interest in prohibiting prisoner sexual expression and would be better served by using scarce
resources to protect prisoners from nonconsensual and coercive sex by staff or other inmates. n7 This Article concludes
by acknowledging that the [*187] desire for sexual intimacy and sexual expression survive imprisonment and that
correctional authorities must find workable and humane approaches to balancing their interests in safety and security with
an inmates' interests in self--expression.
The moving force behind the first modem piece of legislation to address prison rape was the Women's Rights Division
of Human Rights Watch. In an effort to bring to light human rights abuses in the United States, the Women's Rights
Division had begun a project to document human rights abuses in women's prisons. The Women's Rights Division
published a series of reports documenting the sexual abuse of women in custody n8 and sought to follow--up those
reports with the enactment of legislation. In 1999, the Prevention of Custodial Sexual Assault by Correctional Staff Act
("Custodial Sexual Assault Act") was introduced by Congressman John Conyers (D--MI), as part of omnibus legislation
reauthorizing the Violence Against Women Act. n9
The Custodial Sexual Assault Act called for the establishment of a database of correctional employees previously
found to be involved in [*188] custodial sexual misconduct. n10 It also called for withholding federal law enforcement
funds from those states that failed to enact legislation criminalizing staff sexual misconduct with inmates. n11 While
VAWA eventually passed with specific prohibitions on using any of its funds for individuals in custody ---- even if they
were the victims of sexual abuse ---- the Prevention of Custodial Sexual Assault by Correctional Staff Act failed to be
included in the version of VAWA that was enacted into law. n12
Two years later, Human Rights Watch authored another report, "No Escape: Male Rape in U.S. Prisons," this time
documenting the sexual abuse of male prisoners. n13 Teaming with Stop Prisoner Rape, an organization originally
founded by male prison rape survivors, n14 Human Rights Watch pushed for the enactment of another piece of legislation,
the Prison Rape Reduction Act of 2002. n15 The initial legislation, which was introduced with bipartisan support, focused
primarily on prisoner--on--prisoner sexual assault and provided for penalties only in cases of prison rape. n16 While there
was bipartisan support for the bill, the failure to include [*189] the perspectives of accrediting organizations, such as the
American Correctional Association, the Association of State Correctional Administrators, and groups who had worked
primarily on issues related to sexual abuse of prisoners by staff, slowed enactment of the bill. n17
The Prison Rape Reduction Act was reintroduced in 2003 with significant amendments ---- changing the name to the
Prison Rape Elimination Act, adding coverage of staff sexual abuse of persons in custody and grants to assist states in
their efforts to prevent, reduce, and prosecute prison rape. n18 The legislation passed unanimously in the Senate on July
25, 2003. n19
As enacted, the Prison Rape Elimination Act establishes "a zero--tolerance standard" for rape in custodial settings,
n20 requires data collection on the incidence of rape in each state, and establishes the National Prison Rape Elimination
Commission. The Commission is required to issue a report on the causes and consequences of prison rape n21 and to
develop national standards on the prevention, detection and punishment of prison rape. n22 While PREA does not create
a private right of action for prisoners, n23 [*190] it does create a system of incentives and disincentives for states,
correctional agencies, and correctional accrediting organizations who fail to comply with its provisions. Each correctional
agency must, upon request by the Bureau of Justice Statistics ("BJS"), report the number of instances of sexual violence
in its facilities. n24 Each year, the three states with the highest incidence and the two states with the lowest incidence
of prison rape must appear before the Review Panel on Prison Rape to explain their [*191] designations as states with
either the lowest or highest incidence of prison rape. n25 States and accrediting organizations stand to lose five percent
of federal funds for criminal justice activities for failure to implement or develop national standards. n26 As an incentive
to comply, PREA provides for the withholding of grants from states that fail to adopt standards for reducing, preventing,
and eliminating prison rape. n27
While PREA does not substantially change the traditional definition of rape, n28 it recognizes that sexual assault

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15 Colum. J. Gender & L. 185, *191

can be accomplished not only by actual force, but by the "exploitation of the fear or threat of physical violence or bodily
injury." n29 Additionally, PREA gives the BJS authority to [*192] create another definition of rape for purposes of
conducting its annual statistical analysis and review. n30 That distinction is very important, because the BJS has chosen to
collect data on a broader range of sexual conduct ---- nonconsensual acts, abusive sexual contact, staff sexual misconduct,
and staff sexual harassment. n31 The BJS data collection includes inmate--on--inmate conduct as well as staff--on--inmate
conduct, and will include data collection from a variety of sources: records, reviews of correctional agencies, victim
self--reports while in custody, and surveys of former and soon to be released inmates. n32 Yet any discussion of rape
necessarily includes a discussion of consent. n33 Recognizing the complexity of sexual behavior in correctional settings,
the proposed BJS victim self--report survey asks about consensual sex as well. n34
[*193] The BJS data collection efforts have engendered a climate where a number of communities concerned about
prisoners are beginning to discuss whether there can be consensual sexual interactions in prisons between inmates and
between staff and inmates. While correctional officials, advocates, and prisoners are clear about the need to end prison
rape, there are other more complex agendas. Correctional authorities may have an interest in minimizing the number
of sexual interactions between inmates that can be defined as rape in order to lower their numbers for purposes of data
collection. n35
Human rights organizations are concerned that correctional authorities will respond to PREA by strictly enforcing
existing prison policies that prohibit sex between inmates, which could result in discipline or criminal prosecution for
prisoners who engage in consensual sex. n36 They are also concerned about the backlash against people who engage
in same--sex relationships in institutional settings, either because of their sexual orientation or because they engage in
situational same--gender sex. Furthermore, they are concerned that the acknowledgment of consensual sex in correctional
settings will allow prison authorities to cast actual rape as consensual, thereby reducing the number of rapes reported to
the BJS. Lastly, prisoners are rightfully concerned that this heightened scrutiny, [*194] while it may result in fewer
assaults, also gives correctional authorities a potent tool to selectively sanction inmates for any sexual expression. n37
Most advocates and correctional authorities agree in principle that sex between staff and inmates can never, from
a legal standpoint, be consensual. Nonetheless, there are many instances where consent is contested and the staff, the
inmate, and/or the Court believe that the prisoner and staff member engaged in a consensual sexual interaction. n38 The
situation of sex between inmates is just as complicated. Recent research among prisoners indicates that relations between
both men and women are much more complex than initially thought. n39 While there is some acceptance that women
are more amenable to same--sex relations, given their relational nature, n40 recent research seems to indicate that many
sexual [*195] interactions between male prisoners may be just as relational and not the brutal rapes that pervade the
media. n41
There has been a great deal of legal scholarship about rape and consent ---- particularly in analyzing acquaintance rape
n42 ---- and feminist scholarship about the inherent gender imbalance of power and the inability of women to consent to
sex with men. n43 Most legal scholarship addressing prison rape has focused on the unconstitutionality of sexual abuse
in institutional settings. n44 However, while there has been little scholarly legal discussion of consensual sex in prisons,
n45 there has been robust scholarly discussion by social scientists about consent and agency in institutional [*196]
settings, including prisons. n46 The lack of scholarly legal discussion in the area of prison sexuality conveys that there is
need to address this topic, as I have begun to do with this Article.
Prisons in the United States, like those in Europe, are a relatively recent phenomenon. The first U.S. prisons were
created shortly after the Revolutionary War. n47 Before these prisons were established, most punishments were meted
out by local authorities and involved physical punishment on a continuum that included beating, maiming, branding, or
even execution. n48 Other punishments entailed elements of public shaming and could even result in banishment from a
community. n49 Beginning in the 1800s, penitentiaries were created. n50 These institutions were formed largely [*197]
on the model that prisoners should repent for their crimes through hard labor, silence, studying the scriptures, and corporal
punishment. n51
While the majority of prisoners were male, women did find themselves in the first U.S. prisons. n52 Initially, women
were held in the same facilities as men. n53 Not surprisingly, male prisoners and jailers preyed upon women in these
early institutions. Conversely, some women traded sex for food, better treatment, and even their freedom. Either way, it
was routine for women to conceive in prison. n54 In fact, there was a well--known practice of women "pleading their

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bellies" ---- seeking lenient treatment because of their pregnancies. n55 Pregnant women were allowed to escape the most
severe punishments until after they delivered, at which point they typically were released to care for their infants. n56
Therefore, sexual exploitation has been a subtext of imprisonment since its inception.
Seeking to address the appalling conditions of prisons and the treatment of women in them, Elizabeth Gurney Fry,
an early English reformer, began visiting women and children in English prisons. She began a campaign to push for
better treatment for these women. n57 She saw this as a religious mission and recruited other religious women. n58 Not
surprisingly, the standard of behavior that many reformers sought to promote for women prisoners was one that mirrored
their own, particularly as it related to sexuality. During this period, women's sexuality was severely proscribed. n59 Good
women were not supposed to enjoy sex, n60 although they were obliged to have sex because it was their duty and because
they were expected to produce heirs for their husbands. Therefore, the way to start reforming women in prison was by
controlling their sexuality, training them for domesticity either as a wife or servant, and then saving their souls. n61
[*198] Women who found themselves in prison either because of sexual crimes ---- like prostitution ---- or who engaged in
sex in institutional settings ---- like prison ---- were thus prime targets for restrictions on sex in order to save them. Sex was
seen as the primary vector for sin, and the best way to address this issue was to prohibit sex in these institutions ---- both
for men and for women.
The reformist ideas of Elizabeth Fry soon gained ground in the United States. n62 Christian women, primarily
Quakers, looking to do their duty to God and country, set about caring for the poor and making visits at prisons. n63
What they found shocked them: women housed in male facilities were made available sexually for male inmates and male
jailers. n64 Several scandals involving women who had conceived while in prison caught the attention of reformers and
created the impetus for the Reform Movement in prison. n65
One of the major characteristics of the Reform Movement was the establishment of separate prisons for women. n66
These prisons were often directed and managed by all--female staff. n67 Women inmates were trained in the domestic
arts ---- cleaning, cooking, and needlework. n68 They were taught to be modest and to abandon behaviors that had brought
them into prison. Because most of these early reformers had religious ties to Christianity, there was a strong focus on
teaching the Bible and, of course, denial of the need for sexual expression for all women, particularly women prisoners.
Early reformers believed that sex was at the root of the problems that brought women into conflict with the law.
At the same time that the Reform Movement held sway, there was also a movement to look more into genetic or
hereditary markers for a number of illnesses. n69 Criminality was seen as a mental illness, almost a congenital problem
that affected criminals. There was a sense that it was possible to predict the behaviors of children by looking at the
trajectory for [*199] their parents. n70 Of course, this view was contested, n71 but it informed much of the correctional
practice in the early twentieth century.
It was only in 1942, with the Skinner v. Oklahoma decision, that the Supreme Court struck down statutes which
permitted states to involuntarily sterilize prisoners and recognized that an individual's procreative ability was a fundamental
right that deserved constitutional protection. n72 In Skinner, the defendant had been convicted of more than two felonies.
Under Oklahoma's Habitual Criminal Sterilization Act (the "Sterilization Act"), n73 the Court ordered Mr. Skinner's
sterilization. n74 Mr. Skinner claimed that the Sterilization Act violated the Fourteenth Amendment of the Constitution.
Ruling for Mr. Skinner, the Supreme Court held that the Sterilization Act failed to meet the requirements of the Equal
Protection Clause of the Fourteenth Amendment. The Court found that the Sterilization Act treated defendants convicted
of larceny and embezzlement the same, except that those convicted of larceny faced sterilization. n75 The Court found
that, while "the equal protection clause does not prevent the legislature from recognizing degrees of evil" and
the Constitution does not require things which are different in fact or opinion to be treated in law as though
they were the [*200] same . . ., when the law lays an unequal hand on those who have committed intrinsically
the same quality of offense . . . the equal protection clause would indeed be a formula of empty words if such
conspicuously artificial lines could be drawn. n76
The Court found that larceny and embezzlement were fundamentally the same except for the sterilization penalty, which
made for "invidious discriminations . . . in violation of the constitutional guaranty of just and equal laws." n77
Against this backdrop of religious proscription of sexual activity and foundational notions that criminality is in some
way inherited, it is not surprising that restrictions on sexual expression in prison remain today. At the same time, these
proscriptions that ostensibly prohibit sex create a system where prison staff are the gatekeepers of sexual expression,

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using sex as a management tool by either allowing or prohibiting sexual expression as they wish. n78 In every state,
correctional policies prohibit sexual behavior by inmates, whether that conduct is with staff or other inmates. n79 In
many states, policies also prohibit any conduct that a prisoner may engage in for her own sexual gratification, whether that
is masturbation or the use of objects. n80 There is a sense among correctional leaders that, if [*201] sex were permitted,
it would compromise the safety and security of institutions, the core correctional mission. n81 While this may be true
for some sexual interactions, there is a range of legitimate prisoner interests in allowing sexual expression that do not
threaten this core correctional mission of safety and security.
While there are certain sexual interactions that clearly have the potential to affect safety and security in an institution,
there are others that are non--threatening. In particular, sexual interactions between inmates and staff have the clear
potential to affect prison safety and security. First, there is an inherent imbalance of power between staff and inmates.
Correctional staff control every aspect of the prisoner and the prison experience: housing, recreation, discipline,
communication with the outside, and even the length of an inmate's sentence. Second, there have been many reported
incidents of staff relationships with inmates that resulted in escapes, loss of life, and issues that compromised the safety
and security of not only staff but also other inmates. n82 Finally, as a policy matter, state recognition of relationships
[*202] between staff and inmates as "consensual" puts the legitimacy of the state's care and custody of inmates in
While there is abundant authority on the inappropriateness, inadvisability, or ethical concerns raised by sex between
lawyers and clients, n83 priests and parishioners, n84 physicians and patients, n85 and teachers [*203] and students,
n86 there is very little scholarly literature on consensual relations between prisoners and correctional staff. n87 That is
not surprising since the prisoner/prison staff pairing epitomizes the inequality of power and the potential for abuse of that
power. Seemingly, there is little to discuss or critique. However, viewing sexual expression in prison from the prisoner
perspective yields a different result. Prisoners have an interest in sexual expression separate from that of the state, even in
sexual interactions with staff. n88 Outlined below are various types of sexual expression that occur in penal settings, and
the respective interests of the state or correctional authorities and of prisoners in recognizing inmate sexual expression.
[*204] A. Sex for Pleasure
It was a complete surprise, therefore, when V., now known to Denise and Julie almost exclusively as Bubble Gum Man,
popped the lock of their cell during count one afternoon. This was how it always happened, Denise knew by now, and
the sound of that lock being undone prompted something close to panic. She'd allowed herself to chat with him for a few
minutes earlier that day, but she hadn't meant anything by it. She certainly didn't want to go out to him now. Didn't want
to fool around at all. Not with Bubble Gum Man. Julie, of course, was thrilled. It was safe, she kept saying. No one would
ever know. All the girls were locked in their rooms, and he was an officer, for chrissake. Didn't she want some? All she
had to do was walk out of her cell and across the corridor maybe five feet to the bubble, and there he'd be, waiting for her.
He was wicked good--looking, she said, even by outside standards (maybe), and his cute little earring? Just go! Go! n89
Notwithstanding the desire to think otherwise, individuals continue to have an affirmative interest in sexual expression
even during institutionalization. That is certainly the case in nursing homes, residential drug treatment facilities, juvenile
detention facilities, psychiatric institutions, and certainly in prisons. n90 Yet institutional policy in each of these settings,
including prisons, denies that this basic drive exists. A staple of institutional policy is the prohibition on sex between
residents n91 and between staff and residents. n92 Interestingly, this policy has shifted recently in some residential
settings. Both nursing homes and residential programs for the mentally retarded, for example, have begun to allow sex
between residents. n93 However, in psychiatric settings, drug treatment facilities, [*205] juvenile settings, and prisons,
the prohibition by and large remains. n94 One cannot help but wonder if a reason for this continued denial is the perceived
unworthiness or unreliability of these individuals in the expression of their sexuality.
In spite of society's sense of either the desirability or deservedness of prisoner sex, prisoners have an interest in sex
simply for pleasure, n95 and there are few outlets for expression in prison. In the last decade, "get tough on crime" has
meant removing recreation for prisoners, n96 cutting education programs, n97 and limiting opportunities for furlough.
n98 Tight state budgets [*206] have meant that there is tremendous idle time in prisons and jails, n99 leaving inmates
with few productive activities. Thus, prisoners find a way to occupy themselves and experience pleasure with tools that
they control ---- their bodies.
From my perspective, the state has little interest in regulating inmates' sexual expression for pleasure, except to the

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extent that it compromises safety and security or other legitimate penological goals. n100 While there is often an argument
that men and women cannot "program" because they are too interested in sex, n101 sexuality is a feature of life both
on the inside and in the free world. A more nuanced and informed reading of the correctional mission would recognize
the importance of assisting inmates to make responsible decisions about sexual engagement and about whether sex in
an institutional environment, with its limited range of choices, is wise. As described above, correctional authorities have
an interest in prohibiting sex between staff and inmates, but the value of prohibiting sex for pleasure ---- with appropriate
boundaries for inmates ---- is less clear. Indeed, in enforcing the prohibition, correctional authorities miss an opportunity to
educate inmates about violence in relationships, to talk about safe sex, and to encourage healthy relationships that could
offer support upon reentry.
B. Sex for Trade
I started talking real nice to the officer where I worked, in the laundry. [*207] He was married but I told him how his
old lady didn't pay him enough attention. You know that if he was my man how I would treat him. He started writing me
notes and cards. Pretty soon I got him to bring in eyeliner, perfume, and some cigarettes. I sold the stuff. Oh it was fun to
talk to him and stuff but I never it get any further. I mean I never let him touch me or anything. I used him to make my life
easier in here. Why not? You'd do the same thing. n102
In prison, sex is both a highly valued item and a relatively cheap commodity. In the prison environment, items that
are prohibited, such as sex, cigarettes, "street food," money, drugs, and commissary, n103 become extremely valuable.
Prisoners and staff engage in trade for items they want and cannot get. Prisoners, however, are limited in what they have
to exchange. For many prisoners, the only item they have to trade is themselves. In some institutions, there is a menu
of sexual practices that are bartered for common items like cigarettes, candy, chips, or a phone call. n104 In still other
iterations of the exchange, prisoners who have money are exploited sexually and intimidated for their commissary. n105
Certainly prisoners have an interest in using their resources to get what they want, even if that means using their
bodies. n106 However, the prison's interest in the safety and security of the institution suggests that sex for trade should
be prohibited. The potential for violence is great, particularly when people do not deliver what they agreed to in exchange
for either sex or the sought after item. n107 Moreover, this system of bartering [*208] often occurs because there are
not legitimate ways for inmates to gain access to those items or to decrease the desire for them, e.g., tobacco.
For example, in Women Prisoners v. D.C., n108 some of the incidents of sexual misconduct that fueled the litigation
developed in exchange for cigarettes, candy, food, and work assignments at the D.C. Correctional Treatment Facility.
n109 The D.C. Department of Corrections converted a facility that had initially been intended to do assessments and
provide drug and mental health treatment to a facility for general population inmates who needed jobs, recreation, and
contact with the outside. Because of the original mission of the facility, the facility was a smoke--free environment for
both staff and inmates. Staff continued to smoke and marketed their cigarettes to prisoners in exchange for sex. n110
Additionally, the lack of employment opportunities for women in the institution meant that women were more vulnerable
than men to sexual predation. Unable to buy commissary with money they would have earned had they been permitted to
work, women traded sex for candy, potato chips, and phone calls. n111
The harm to the municipality, the agency, and the prison facility was immense. In addition to civil litigation brought
by women prisoners against the District of Columbia, the D.C. Department of Corrections, corrections officials, and
individual officers, the culture fostered an environment where even female staff felt at risk for sexual abuse and ultimately
filed a Title VII suit against the District of Columbia Department [*209] of Corrections, alleging a pattern and practice
of sexual harassment that included behavior very similar to that which formed the basis for the female prisoners' claims
for constitutional protection. n112 Sex for trade therefore created an environment where both prisoners and staff had to
negotiate for items that should have been either readily available or entirely unavailable to both staff and inmates, such as
tobacco. These abuses resulted in several inmate pregnancies, some of which were carried to term and others which ended
in abortion. n113 For many women inmates who had long histories of physical and sexual abuse both as children and
adults by people in authority, it reinforced a pattern of behavior where sex was commerce and detached from self. This is
sexual expression that should be prohibited by corrections' authorities as it creates an environment where both staff and
inmates are at risk for sexual violence and harassment.
C. Sex for Freedom
The first time they touched, they were in the utility closet, shortly after she started to work on his crew, Julie told me.
She'd been trying to get down a box of mops and dropped them on his head by mistake. He made use of the confusion to

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grab the back of her jeans and turn her around to face him. Thinking, "Fuck it, why not?" she let him kiss her. From then
on they did it everywhere ---- in the basement where they keep the lawn mowers, in the broom closet right by the entrance
to the institution, even in the small chapel. n114
For many prisoners sexual expression is a corollary of freedom. Whether they are imprisoned for short or long
sentences, n115 sexual expression, though limited, is one of few acts within their control. There is a wealth of literature
on the "situational" sexuality that occurs in prison: men who have sex with men or women who have sex with women,
but do not [*210] consider themselves as gay or lesbian. n116 While incarcerated, those prisoners' sexual expression
has been constrained by the state, and thus in prison they are forced to pursue sex with partners who they may not have
sought in the community. Still other prisoners seek out staff members of either the same or opposite gender in order to
have sex. While prisoners' choices are constrained during incarceration, even making the choice to have sex when it is
prohibited is an expression of freedom, albeit in a situation of constraint.
D. Sex for Transgression
I've had sex with the wives of two different wardens. One night around Christmas, I went over the house of one warden
and his wife asked me to put her son's bicycle together. You know it was a Christmas present. Then she cooked dinner for
me and we had sex right there in the kitchen, on the floor. I can talk my way into any woman's panties. I did it cause I
could. You know what I'm saying? Man when they busted me for that, all hell broke loose. It was hilarious. Yeah, I lost
my outside trusty job but it was worth it cause I embarrassed the shit out of that warden and his family. I still can't stop
laughing bout it. n117
Just like in the world outside of prison, sexual expression can be an expression of freedom. This freedom of expression
is closely associated with transgression ---- breaking the rules and going against the normative structures imposed by
society, the state, and other institutions. Sexuality and gender are both normative structures imposed by society, n118 and
both are performative. n119 Individuals adopt behaviors and practices that are consistent with their performance as males
or females. Prisoners use sex to transgress these normative structures by performing in ways that defy society's constructs
of gender and sexuality.
[*211] First, the act of having sex is against set prison policies and rules, and therefore transgressive. n120 Second,
prisoners can have sex with staff, thereby jeopardizing security and putting the correctional mission at risk. n121 It is the
ultimate way to thwart the system, and often prisoners use this method of manipulation. n122 There are reams of training
materials written for correctional staff on avoiding prisoner manipulation, n123 yet to manipulate and try to change or
control a situation of powerlessness is normative behavior. n124 The prisoner and the state, symbolized by correctional
authorities, are constantly at odds. In the present environment, inmates will seek to gain power and control in any way
they can. If sex is an advantageous tool, then prisoners will use it to their advantage to thwart, control, embarrass, and
harm those who control them within the confines of prison. Therefore, prisoners use sexuality as a means of expressing
their autonomy, freedom, and transgression, because having sex with staff ---- a symbol of the state or prison ---- affects the
state and the prison's system of control.
E. Sex for Procreation
Young women without children doing life sometimes wonder if they will ever bear a child. Some truly pine for this
child--bearing, as if it proves that they are still alive. If a woman is a teenager when she comes to prison, she may actively
seek to become pregnant and have [*212] a child ---- in her mind, before she can't. She may see the child as something of
hers that she has created that is a good thing, a plus. She may have no concept of raising a child, or having a child with a
parent in prison; she may literally not have thought that far ahead. n125
Procreation is another aspect of sexual expression that survives imprisonment. n126 There are still clear vestiges of
the early reformer and eugenic sentiment that criminals should not bear children. n127 Recently, in two different settings,
professionals expressed shock that male and female prisoners might legitimately want to conceive children: the Feminism
and Legal Theory Project held at American University, Washington College of Law, in March, 2004, where the audience
was composed primarily of feminist scholars and students; and a training on Operational Practices in Women's Prisons
held in June, 2005, where the audience was mainly correctional professionals. n128
The audience at the Feminism and Legal Theory Project wondered if this was a responsible position given that
prisoners would not be able to parent the children they conceived. Correctional professionals wondered why these people
should be permitted to bear children given their crimes, [*213] i.e. that functional sterility was part of the penalty that

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prisoners should pay for their crimes. Both audiences were concerned that the state would be called upon to care for these
children conceived while the parents were in custody. Neither group recognized the desire to procreate as separate from
the desire to parent.
Yet both male and female prisoners desperately want to become parents ---- conceive, aid in conceiving, bear, and raise
children. Given the construct of U.S. prisons, where prisoners have very limited contact with their children or lose custody
of their children as a result of their imprisonment, n129 prisoners are left with merely conceiving or fathering children as
the their primary way of sexual expression through procreation.
Male and female prisoners accomplish these goals in a variety of ways. n130 Male inmates may impregnate their
partners from the community during conjugal visits or during routine prison visits. n131 Female inmates often have less
contact with their male partners during imprisonment and are less likely to have the opportunity for conjugal visits. n132
The availability [*214] of conjugal visits is quite limited. n133 In fact, only a few states permit conjugal visiting for
inmates n134 and even those severely limit that privilege. n135
A recent case, Gerber v. Hickman, n136 raised the issue of prisoners' desire to procreate. The prisoner, William
Gerber, sought permission from the California Department of Corrections to provide, at his own expense, a sperm sample
to his lawyer to take out to the community to impregnate his wife. n137 Mr. Gerber was serving life without parole as
a result of the "three strikes" law in California, n138 and thus was ineligible for California's [*215] conjugal visiting
program. n139 In denying Mr. Gerber's request to send sperm out of the facility, the prison cited three justifications:
(1) its policy of treating male and female prisoners the same, when possible; (2) the safety risks caused by prisoners
collecting semen; and (3) concerns about litigation relating the to the procedure. n140 The District Court found for the
California Department of Corrections, but the Ninth Circuit recognized that procreation was a fundamental right that
survived imprisonment and that Mr. Gerber's method of exercising that right did not unduly burden the prison. n141
The Ninth Circuit ruled that the fear that female prisoners would exercise their right to procreate was not a legitimate
penological interest that required the denial of Mr. Gerber's right to procreate. n142 However, an en banc Ninth Circuit,
over vigorous dissent, held 6--5 in favor of the California Department of Corrections, ruling that the right to procreate was
inconsistent with imprisonment and that Mr. Gerber had no interest in inseminating his wife, as he would never be able to
leave prison to assist in raising the child. n143
The Ninth Circuit's en banc decision fails to recognize that prisoners' interests are determined by their limited
opportunities. Given that Mr. Gerber was not allowed conjugal visits, his only remaining interest, as well as one of his
remaining ways to express his sexuality, was in providing the means for his wife to conceive a child. Certainly Mr. Gerber
would have raised the child if he had the opportunity, but his current situation precluded him from doing so. Mr. Gerber's
solution ---- which did not involve physical contact, but collection of biological material, his sperm ---- was an appropriate
and non--intrusive way to both accommodate the exercise of his constitutional right to procreate and maintain the prison's
interest in security.
Two of the arguments that the California Department of Corrections made are easily disposed of ---- that the right to
procreate is inconsistent with imprisonment and that Mr. Gerber's actions in collecting sperm and sending it out in some
way interfere with prison security. n144 [*216] Skinner v. Oklahoma stands for the proposition that the state cannot take
away the right to reproduce and that the right to procreate is consistent with imprisonment. n145 Instead, the question
Gerber confronted was whether the state needed to facilitate that right.
Gerber had not asked the state to do anything extraordinary, and in fact had proposed a scenario that would require the
state's minimal involvement. As Justice Kozinski's articulated in his dissent, whether the package that Mr. Gerber sent was
"used to inseminate Mrs. Gerber, to clone Gerber, or as a paperweight has no conceivable effect on the safe and efficient
operation of the California prison system." n146 Even if the state thought that Mr. Gerber might use sperm collection as
a pretext for smuggling contraband, it was free to create a process to make sure that the sperm collection took place in a
controlled setting. n147
There is also a parallel for this process in the female reproductive sphere. The state cannot prohibit female prisoners
from obtaining abortions. The state does not have to perform the abortions, but must permit prisoners to obtain abortions
at their own cost. n148 Comparing Gerber's situation, the only difference is that he is choosing to create life rather
than terminate it. Failure to support Mr. Gerber's efforts seems to suggest that the prison is willing to support prisoners'
reproductive decisions as long as they comport with its notions of the value of prisoner families. Yet, in this case, the state
[*217] intervened and made a decision that this arrangement did not comport with its notions of how a family should be

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15 Colum. J. Gender & L. 185, *217

formed or operate. n149
More interesting is the state's angst about providing similar rights to female prisoners. It would be a compelling
argument if, in every other context, prisons had not consistently argued that men and women were not similarly situated
and therefore prisons did not have to provide them with similar opportunities. n150 In this circumstance, men and women
are different. n151 Biologically, it is easier for men to gather the material that they [*218] contribute for procreation ---sperm ---- than it is for women to harvest eggs, as the former is within the man's control of the man and the latter requires
medical intervention. Yet technology is such that male and female prisoners can maintain and exercise their right to
procreate without having sex. In the case of men, they can masturbate. In the case of women, they can harvest their eggs
and use the substantial reproductive technology that exists to impregnate a surrogate mother or other means. n152 The
question still remains whether prisoners are worthy candidates for reproduction. Thus far, the state has ruled that they are
not, and has limited their ability to reproduce through legitimate and transparent means, such as conjugal visits, artificial
insemination, or surrogacy. n153 As a result, both male and female inmates have used interactions with staff and other
prisoners as ways to accomplish that goal.
F. Sex for Safety n154
The person told me that if I did not do what he wanted he would make life [*219] bad here for me. He made me suck
on his penis and after doing this for about a week, he wanted more. He and his friends made me bend over the desk and
they took turns going in me from the back. I wish something could be done. This has happened more than once for me.
Imprisonment evokes our deepest fear ---- the fear of losing control over one's personhood. Upon imprisonment, men
and women lose the control over functions that are core to survival ---- eating, drinking, elimination, sleep, communication,
self--care. All of these functions are either controlled or limited by external authority. Often, concern for physical safety
and well--being is a key motivator for sex between inmates and between inmates and correctional staff. Social scientists
have identified the concept of "protective pairing," where inmates have sex or become involved with someone in order
to protect themselves from a greater harm from other inmates or staff. n156 Legal and other narratives are replete with
stories of prisoners having sex with other prisoners or with correctional staff in order to ensure their safety. n157
In large part, statutory law has developed to address the problem of sex for safety ---- at least between correctional
staff and inmates. Currently, every state except Vermont has a criminal statute which prohibits the abuse of persons in
custody. n158 Each state law's coverage varies based upon the respective state's legislative perception of who is a threat.
In particular, some statutes only cover conduct that occurs in prisons or involves [*220] correctional staff, specifically
exempting probation and parole settings. n159 Other states recognize that sex with a person in custody is an abuse of
authority and use language to cover "abuse of supervisory authority." n160 One of the sharpest divisions between states
is the acknowledgment of prisoner's ability to consent to sex and the consequences of that consent. The majority view is
that inmates cannot consent to sex with staff. n161
However, three states ---- Arizona, Nevada and Delaware ---- have enacted laws that penalize not only staff but also
inmates who "consent" to sex with staff. n162 The result, at least in Delaware, has been that staff who violate these laws
are reassigned while inmates receive both disciplinary and criminal penalties. n163 Unsurprisingly, this has created a
situation where inmates are reluctant to report for fear of not being believed and for fear of receiving additional criminal
and administrative sanctions.
Notwithstanding the passage of these laws, prisoners still receive little protection from forced and coerced sex. While
the full scope of sexual violence in prison is not known, n164 even what correctional officials do report n165 should
cause concern. The recent BJS study found that inmate [*221] perpetrators of sexual abuse were more likely to be
sanctioned and prosecuted than staff perpetrators. n166 Even when prosecuted, the sanctions that staff offenders receive
is minimal. n167 The most common sanction for staff perpetrators were discipline, discharge, or referral for prosecution.
n168 Given this environment, sex for safety with staff and other inmates is a reasonable response to the prospects, of
receiving protection from either the corrections agency or the state through either investigation, discipline, or prosecution.
The federal courts have been another venue to seek vindication of the constitutional right to be free from rape ---- if not
protection from rape itself. n169 The courts' protection of prisoners from rape has been inconsistent at best. The Supreme
Court laid out its standard for cruel and unusual punishment in a case involving rape of a transsexual prisoner by other
prisoners. n170 The prisoner, Dee Farmer, had been placed in a general population prison even though she presented as a
woman and was in the preoperative stages of her sex change. The Supreme Court ruled that placing Ms. Farmer in this

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15 Colum. J. Gender & L. 185, *221

setting showed deliberate indifference to her [*222] safety, and found that the prison had violated her Eighth Amendment
right to be free from cruel and unusual punishment. n171
However, the jurisprudence on prison rape has developed so that states, municipalities, and public officials are rarely
held liable for the rape of prisoners ---- even juveniles ---- by staff or other youth. n172 Rather, states, municipalities,
and officials have been granted immunity because they enacted policies and procedures, conducted staff training, and
took disciplinary action after the fact against staff or inmate perpetrators. n173 In this environment, more often than not
only the perpetrator is held liable. n174 The courts have not held states, municipalities, and public officials accountable
for preventing inmate rape. Hopefully, the Prison Rape Elimination Act, with its requirement for data collection and
accountability, will begin to do so.
G. Sex for Love
We met through the "word of God". Every day, we would share [*223] scriptures with one another and we bonded as
Christians. It took six to eight months before things became romantic and then sexual, if ya know what I'm talking bout.
We kept things very quiet from everyone. n175
Often prisoners engage in sex for love or desire. Even in the prison setting, where individuals are legally stripped of
their autonomy and dignity and face violence from other prisoners and staff, prisoners manage to establish meaningful and
sometimes loving relationships. n176 There is a great deal of literature on how women create families while imprisoned.
n177 These prison families include children, husband, wives, even grandparents. The process that male inmates use to
establish bonds is commonly perceived as violent and hierarchical, n178 though that characterization may not encompass
all male prison relationships. The literature suggests that in male settings, certain men are feminized in order to fulfill the
role of women. n179 This feminization often includes sex, cooking, and cleaning for the male partner. n180 Yet there is
little written about whether these relationships are all governed by force or if there is love or emotional attachment.
At the same time that these relationships develop among inmates, often complicated relationships develop among
prisoners and staff. n181 In any number of oppressive settings, there have been accounts of the powerless forming
emotional bonds with those in power. n182 During the period of U.S. [*224] slavery, there were many accounts of
male and female slaves bearing children and having long--term relationships with their owners. n183 The same is true
for women and men in custody. n184 In spite of modern feminist notions of equality of relationships as the basis for
love, n185 few relationships are equal. For prisoners, they may not see the inequality of their relationships in prison as
qualitatively different from relationships they may have had in the community.
However, prison authorities cannot be in the position of legitimizing relationships between staff and inmates, in the
same way that a school system would be hard--pressed to legitimate relationships between students and teachers. There
is an inherent imbalance of power that the institution relies upon for its legitimacy. Prisons depend on the fact that
correctional staff's interactions with inmates are based on achieving correctional goals ---- safety, security, discipline, and
rehabilitation ---- rather than on furthering an intimate or personal relationship. As a matter of meeting its mission of safety
and security, prisons must prohibit relationships between staff and inmates. That does not stop inmates from seeking out
these relationships, whether for pleasure, freedom, transgression, procreation, or love.
The role of the state in limiting sexual relationships based on love between inmates is less clear. Since most state
correctional policies prohibit any sex between inmates, they end up also limiting romantic or intimate [*225] relationships
between inmates. Certainly there are instances where relationships between inmates may threaten the correctional missions
of safety, security, rehabilitation, or discipline, either through inmate violence or inmate noncompliance with institutional
rules. The prison should be free to limit or regulate those relationships in the interest of providing a safe and secure
environment for staff and inmates.
Yet it is questionable that the prison has an interest in regulating those relationships that do not infringe upon
correctional goals. A logical response to this challenge might be, so what? Sexual conduct is prohibited anyway, so why
do we need to reach this? Isn't the absence of sex one of the penalties that you pay for committing a crime? Why should
we be concerned about prison sex when we don't even want to talk about sex in the free world? n186 The simple response
to these questions is that sexuality is a core feature of any social environment. Sex is a basic drive that does not dissipate in
prison. And finally, accounts of prison officials at all levels indicate that they are aware that sexual relationships between
inmates occur and are part of the fabric of the correctional experience for both staff and inmates. n187
Correctional staff accounts indicate that they have already developed tools to address these relationships ---- identifying,

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15 Colum. J. Gender & L. 185, *225

intervening, and disciplining where appropriate. n188 A clear recognition, expressed either in written policies or in
the procedures followed by prison officials, that intimate relationships between inmates occur would not only provide
opportunities for inmates to express those relationships, but also would offer opportunities for corrections' officials to
explicitly address them in a manner congruent with their correctional mission.
Having outlined a continuum of sexual expression in correctional environments, the basic legal inquiry concerns the
state's ability to regulate that expression. Taking as a given that sexual expression is a fundamental [*226] right, n189
should this fundamental right survive imprisonment? Unfortunately, the legal response is not promising. Court decisions
seem to set parameters for sexual expression that are marked by sterilization and abortion ---- the State cannot sterilize an
inmate, n190 and the State must allow an inmate to obtain an abortion to the same extent that the privilege is granted by
the holding state. n191 The terrain in between remains uncharted but seems terribly forbidding.
The courts have embraced small but important limitations on constitutional protections related to procreation, n192
visitation, n193 and the right to define one's family n194 as they relate to prisoners. As a result, notwithstanding my
view that states should recognize that these rights survive imprisonment, I am not hopeful that courts would decide to
recognize these rights to self--expression in prison, even if they have done so in contexts outside of prison. n195
[*227] The Supreme Court has made clear that any analysis of a regulation that infringes on the fundamental
rights of prisoners must undergo a four--part analysis, outlined in Turner v. Safley. n196 In Turner, a class of inmates
challenged state prison regulations that restricted correspondence between inmates at different penal institutions, with
exceptions for correspondence between immediate family members and correspondence by inmates on "legal matters."
n197 The challenged regulations also prohibited inmate marriage unless the prison superintendent determined that there
were "compelling reasons" for the marriage. n198 While "compelling" was not defined in the regulations, prison officials
testified in the lower court proceedings that "only a pregnancy or the birth of an illegitimate child would be considered
a compelling reason." n199 Ultimately, the correspondence regulations were upheld, but the marriage restrictions were
declared unconstitutional. n200
In reviewing the constitutionality of the prison regulations, the Court outlined a four--part test: 1) the existence of "a
valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify
it"; 2) the existence of "alternative means of exercising the right that remain open to prison inmates"; 3) the "impact that
accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally"; and 4) "the absence of ready alternatives as evidence of the reasonableness" of the regulation. n201
Turner has become the predominant standard for analyzing attempts to regulate conduct in prisons and has been used
by prison officials to limit inmate visitation, n202 justify cross--gender supervision of male [*228] inmates, n203
and limit reading material that prisoners can receive. n204 At the same time, prison officials have used Turner to enact
policies they deemed beneficial, such as same--sex supervision for female inmates, n205 rehabilitative programs for
particular categories of prisoners, n206 and enhanced opportunities for female staff. n207
Under Turner, states could enact policies that permitted a greater range of sexual expression for prisoners. I have
identified at least six legitimate penological interests that would be served by enhanced prisoner self--expression.
First, the Prison Rape Elimination Act requires correctional agencies to report all incidents of prison rape. n208
However, appropriately identifying acts that are consensual as opposed to coerced would permit corrections official to
more accurately report information to the Bureau of Justice Statistics and meet the data collection requirements of the
Act. This would in turn enhance national, state, and local interests in assessing prevalence and risk, with the goal of more
effectively deploying resources to eradicate rape in prisons altogether.
Second, making this appropriate distinction would assure that corrections officials effectively use scarce investigative,
medical, and [*229] administrative resources to address cases of forced or coerced sex between inmates and between
inmates and staff. Policies that recognize and allow greater sexual expression would provide a broader range of categories
in which correctional officials could situate sexual behavior, resulting in a significant improvement over current policies
which simply provide that all sexual conduct is prohibited. n209 Another outcome of this policy change would be
enhancing the credibility of the agency with staff and inmates. Currently, correctional staff ignores or selectively enforces
prison policies that prohibit sexual conduct. n210 Having policies that are honored more in the breach than in the
observance fosters a culture of disrespect by both staff and inmates and calls into question the necessity for following

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15 Colum. J. Gender & L. 185, *229

other rules.
Third, sex in prison, whether consensual or non--consensual, poses serious health risks to the community, which the
Prison Rape Elimination Act recognizes in its findings and purposes. n211 For example, recent studies estimate that the
rate of infection for hepatitis and HIV ---- both sexually transmitted diseases ---- among the prison population is three times
that of the general population, and affects female inmates at a higher rate than males. n212 It goes without saying that
treating these diseases exacts [*230] significant costs from state, local, and federal government. Acknowledging that a
broad range of sex occurs in correctional settings for a variety of reasons would enable prison officials to take appropriate
health measures such as condom distribution, n213 HIV/AIDS education programs, n214 clinical trials, and specific
interventions that target risk behavior in prison settings. The refusal to acknowledge sexual activity, both consensual and
non--consensual, means that correctional agencies have not initiated programs, services, and resources that could protect
the health of staff, inmates, and the communities to which they will return. n215
The fourth legitimate penological interest for recognizing and allowing for a broader range of sexual expression is
the impact on reentry [*231] or reintegration into the community. The Bureau of Justice Statistics estimates that over
600,000 inmates return to the community each year. n216 Research also indicates that the strongest indicator for success
upon reentry to the community is family support. n217 Strengthening and preserving family bonds, rather than enhanced
sexual expression, are the goals for most conjugal and family visiting programs. n218 These family visiting programs
result in enhanced family support for inmates while they are serving their sentences, and sustain important connections
and support which they can mine once they have served their sentences. Inmates who have family support are less likely
to re--offend and return to prison, straining limited correctional resources.
Many correctional agencies explicitly use family and conjugal visiting as an inmate management tool. n219 Inmates
who exhibit positive institutional behavior are rewarded with enhanced opportunities for intimate contact. n220 In the
case of conjugal or family visits, this can often implicitly mean greater opportunities for sexual expression. In addition,
correctional staff implicitly reward or punish prisoners by allowing or restricting their intimate contact with other
prisoners. By explicitly regulating this conduct, prison officials could control and implement it strategically, in furtherance
of correctional goals of safety, security, and rehabilitation.
[*232] Fifth, recognizing and granting inmates a degree of sexual expression may enhance inmate safety by
decreasing prison rape. n221 By explicitly recognizing and regulating the conduct, the state can further its interests
in preventing violence and disease associated with prison rape, and help prisoners learn healthy and responsible sexual
behavior prior to re--entering the community. n222 Examples of this kind of intervention have already been used in
situations involving illegal sex, namely prostitution n223 and prohibited sex in other institutional settings, such as nursing
homes, n224 homes for the mentally retarded, n225 and psychiatric settings. n226
Finally, permitting a greater degree of sexual expression recognizes the inherent dignity of human beings, which
survives imprisonment. n227 Increasingly, the courts have turned to international human rights law, which recognizes the
dignity of each and every person, to enrich our impoverished constitutional rights jurisprudence. n228 Both prevention
from [*233] sexual abuse and permitting greater sexual self--expression are congruent with international human rights
instruments and norms. n229 Many other countries recognize this and permit sexual expression in institutional settings.
n230 They permit sexual contact not only because they recognize that sexual identity and expression is core to personhood,
but also that permitting sexual expression accomplishes legitimate correctional goals. Corrections agencies in the United
States would enhance the safety of prisons and inmates by doing the same.
The desire for sexual intimacy and sexual expression is a powerful force that survives imprisonment. n231 Indeed, it
is a powerful human desire. Individuals in custody, despite society's view, maintain their humanity and personhood. As
Judge Posner has written, "we must not exaggerate the distance between us,' the lawful ones, the respectable ones, and
the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments
of humane consideration." n232 Inmates can and will find ways to express their desires for freedom, pleasure, and
love. n233 This expression can take the form of transgressive sex which, at base, is a desire to gain control of their
environment and those who control them and their environment. n234 Inmates have even found ways to conceive
[*234] or impregnate their partners in the community. n235 While correctional authorities have legitimate penological
interests in prohibiting the sexual interactions inmates engage in for safety, trade, and transgression, n236 they also have
compelling and legitimate penological interests in enhancing opportunities for sexual expression for inmates. n237 There

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15 Colum. J. Gender & L. 185, *234

is great benefit to acknowledging that inmates do not lose their sexuality once they enter prison, and that managing these
interactions is part of the work required of corrections agencies. Moreover, appropriate intervention in these interactions
can enhance the safety of inmates, staff and the community, help agencies realize their correctional goals of providing
safe and secure correctional environments, and encourage rehabilitation of inmates. n238 This approach also preserves
scarce correctional resources for serious incidents of sexual violence that occur in institutional settings. While there is
still much work to be done in outlining the parameters of a workable and humane approach to enhancing opportunities
for inmate sexual expression, this Article will hopefully serve as an initial step in that direction.
n1 See, e.g., QUEEN LATIFAH, When You're Good To Mama, on CHICAGO MOVIE SOUNDTRACK (Epic
Records/Sony Soundtrax 2002):
Ask any of the chickies in my pen, they'll tell you I'm the biggest mother hen, I love em all and all of them love me,
because the system works, the system called reciprocity. Got a little motto always sees me through, when you're
good to Mama, Mama's good to you. There's a lot of favors I'm prepared to do, you do one for Mama, she'll do
one for you. They say that life is tit for tat, and that's the way I live. So, I deserve a lot of tat, for what I've got to
give. Don't you know that this hand washes that one too. When you're good to Mama, Mama's good to you! If you
want my gravy, pepper my ragout. Spice it up for Mama, she'll get hot for you. When they pass that basket folk
contribute to, you put in for Mama, she'll put out for you. The folks atop the ladder are the ones the world adores.
So, boost me up my ladder, kid and I'll boost you up yours. Let's all stroke together like the Princeton crew. When
you're strokin' Mama, Mama's strokin' you. So what's the one conclusion, I can bring this number to? When you're
good to Mama, Mama's good to you!
See also generally Chicago (Miramax Films 2002); Fred Ebb & Bob Fosse, Chicago (Chapelle Music Co.
n2 See generally GAYL JONES, EVA'S MAN (1987) (offering a fictional account of an African--American
woman in prison and her sexual experiences with men and women inside and outside of prison); THE BIG BIRD
CAGE (New World Pictures, 1972) (using the marketing slogan, "women so hot with desire they melt the chains
that enslave them").
n3 See generally AMERICAN HISTORY X (New Line Cinema 1998) (detailing the story of the main
protagonist's journey away from extreme right--wing racist violence after being gang raped by white supremacists
while in prison).
n4 See generally GRANDMASTER FLASH, THE MESSAGE (Sugarhill Records 1982): Turned stickup kid,
look what you done did. Got sent up for a eight year bid. Now your manhood is took and you're a maytag. Spend
the next two years as an undercover fag. Being used and abused, and served like hell. Till one day you was find
hung dead in a cell.
n5 Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601--15609 (2003) [hereinafter "PREA"].
n6 For example, this Article does not address in depth the economic or other costs of acknowledging the full
range of sexual expression in prison ---- including conjugal visits, increased family visitation, prison nurseries, and
public health challenges. It also does not address the complex issues that lesbian, gay, bisexual, and transgender
inmates face in custodial settings and their vulnerability to sexual violence.
n7 This Article's discussion is confined to adult inmates. The issue of sexual expression among youth in custody
is beyond the scope of this Article. Curiously, most research on the sexual behavior of youth in custody has focused
on the outcome of sexual behavior ---- pregnancy, and sexually transmitted diseases ---- and not on sexuality and
sexual expression of juveniles in custody and how sexual conduct might occur in juvenile custodial settings. See,
e.g., Nadine Lanctot & Marc Le Blanc, Explaining Deviance by Adolescent Females, 2002 CRIME & JUST. 113,
168 (2002) (discussing girls who join gangs and their sexual exploitation, which often leads to pregnancy); Aracely
Munoz Contreras, Girls in America: Sex and Deviancy in the Age of HIV/AIDS, 7 J GENDER RACE & JUST.

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15 Colum. J. Gender & L. 185, *234

357, 358 (2003) (discussing how the juvenile justice system, particularly in Cook County, Illinois, ignores that
many adolescent girls are engaged in sexual activities that put them at risk for contracting STDs and HIV/AIDS);
Laurie Schaffer, Female Juvenile Delinquency: Sexual Solutions, Gender Bias, and Juvenile Justice, 9 HASTINGS
WOMEN'S L.J. 1, 20 (1998) (discussing gender--specific sexualization of the female experience as a way to uncover
explanations for some female delinquency, and explaining that "an urgent need exists for gender--specific research
on behalf of the plight of lesbian teenagers as they are processed in juvenile justice systems"). See generally, e.g.,
Diane M. Morrison et al., Sexual Risk Behavior, Knowledge, and Condom Use Among Adolescents in Juvenile
Detention, 23 J. YOUTH & ADOLESCENCE 271 (1994) (analyzing to what extent adolescents in juvenile
detention engage in sexual behaviors that put them at risk for AIDS and other STDs); Patricia J. Kelly et al., Risk
Behaviors and the Prevalence of Chlamydia in a Juvenile Detention Facility, 39 CLINICAL PEDIATRICS 521
(2000) (analyzing the prevalence of chlamydia and the association of selected behavioral risk factors in a population
of adolescents in two juvenile detention facilities).
STATES PRISONS (1996) (detailing sexual abuse of women in custody in D.C., Georgia, Illinois, Michigan,
and California as human rights violations); HUMAN RIGHTS WATCH, MODERN CAPITAL OF HUMAN
RIGHTS?: ABUSES IN THE STATE OF GEORGIA 99--119 (1996) (discussing the problem of sexual abuse in
HRW's exclusion from Michigan prisons and the retaliation suffered by female inmates who provided information
about sex abuse for the HRW report).
n9 See Violence Against Women Act of 1999, H.R. 357, 106th Cong. (1999) [hereinafter VAWA I]; Press
Release, Rep. John Conyers, Conyers Introduces Omnibus Bill to Stop Violence Against Women and Their Children
(May 12, 1999), available at The Custodial Sexual Assault Act is
found at §§ 341--346 of VAWA I.
n10 VAWA I at § 343. See also AFSCME Opposes Measure on Sexual Assault, AFSCME Corrections United
(1999), available at (voicing objection to the creation
of the national database and questioning its necessity since "corrections facilities do not hire officers convicted of
sexual misconduct").
n11 VAWA I § 344.
n12 The reauthorization of VAWA finally passed as part of the Victims of Trafficking and Violence Protection
Act of 2000, 22 U.S.C. §§ 7101--7110 (2000) [hereinafter VAWA II]. The Attorney General makes funds available
to assist victims of abuse pursuant to the Victims of Crime Act Victims Assistance Grant Program, which states that
"subgrantees cannot use VOCA funds to offer rehabilitative services to perpetrators or offenders. Likewise, VOCA
funds cannot support services to incarcerated individuals, even when the service pertains to the victimization of that
individual." 67 Fed. Reg. 56,444 (Sept. 3, 2002). It is notable that the Custodial Sexual Assault Act was included in
the VAWA omnibus legislation, but could not secure enough support for passage; yet VAWA II includes protections
for immigrant battered women and trafficked women.
n14 See Stop Prisoner Rape, (last visited Nov. 29, 2005). Stop Prison Rape was founded in
1980 by Russell D. Smith as People Organized to Stop the Rape of Imprisoned Persons. Smith was a survivor of
rape behind bars himself. Renamed Stop Prisoner Rape, the organization is now a national 501(c) (3) human rights
advocacy group that works to end sexual violence against men, women, and youth. The scope of its mission also
now includes all forms of custody, including immigration detention. Id. (follow "About" hyperlink; then follow
"History" hyperlink).
n15 H.R. 4943, 107th Cong. (2002).

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15 Colum. J. Gender & L. 185, *234

n16 See Hearing on the Prison Rape Reduction Act of 2002, 107th Cong. (2002) (statement of Wendy Patten,
U.S. Advocacy Director, Human Rights Watch), available at (discussing the organization's report, No ESCAPE: MALE RAPE IN U.S. PRISONS, and proposing
several changes to the legislation, none of which included expanding the Act's scope to address sexual abuse of
women prisoners); see also No ESCAPE: MALE RAPE IN U.S. PRISONS, supra note 13; Learn About Federal
Legislation, (last visited Dec. 23, 2005) (discussing PREA's
proposal to provide federal funding in order to investigate allegations, and its aim to prevent and impose punishment
for male rape).
n17 Interestingly, unions who had been quite vocal in their opposition to the Prevention of Custodial Sexual
Assault by Correctional Staff Act of 1999 took no position on PREA, likely believing that the initial bill's focus on
prisoner rape excluded custodial sexual abuse by correctional staff. Unions were not represented at Congressional
hearings on PREA, and the AFSCME Corrections United did not publicly take a stand on the bill. It appears that
unions were relatively unconcerned about PREA's impact on their members.
n18 S. 1435, 108th Cong. (2003). See also H.R. 1707, 108th Cong. (2003); H.R. 1765, 108th Cong. (2003).
n19 149 CONG. REC. S9659 (daily ed. July 21, 2003); 149 CONG. REC. H7764 (daily ed. July 25, 2003).
The speed of passage and the bi--partisan support for this legislation, when compared to the lack of support for
the Custodial Sexual Abuse Act of 1998 ---- which sought to address staff sexual abuse against primarily women
inmates ---- supports and reinforces gendered notions of the acceptability of violence against women.
n20 Prison Rape Elimination Act of 2003, 42 U.S.C. § 15602(1) (2003). PREA applies to prisons, jails,
immigration detention facilities, police lockups, and juvenile facilities. § 15606(3), (7).
n21 § 15606(d).
n22 § 15606(e).
n23 See Alexander v. Sandoval, 532 U.S. 275, 291 (2003) (holding that, in the absence of explicit authorization
by Congress, no private right of action is created simply by statute). However, in its purpose section, it notes that one
purpose of PREA is to "protect the Eighth Amendment rights of Federal, State, and local prisoners." § 15602(7).
n24 § 15603(a). The Bureau of Justice Statistics produces an annual comprehensive statistical review of prison
rape based on a representative sample of correctional facilities, departments of corrections, former inmates, and
10--12 (2005), available at (describing the methodology used to
produce the study); id. at 3 (stating that sexual violence was measured "by disaggregating sexual violence into two
categories of inmate--on--inmate sexual acts and two categories of staff sexual misconduct"). The methodology of
the survey was explained as follows:
The inmate--on--inmate categories reflected uniform definitions formulated by the National Center for Injury
Prevention and Control in "Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements,"
Center for Disease Control and Prevention. . . . Definitions of staff sexual misconduct and harassment were based
on "Training for Investigators of Staff Sexual Misconduct," prepared by the National Institute of Corrections.
Id. Nonconsensual acts are defined as:
contact of any person without his or her consent, or of a person who is unable to consent or refuse; and contact
between the penis and the vagina or the penis and the anus including penetration, however slight; or contact between
the mouth and the penis, vagina, or anus; or penetration of the anal or genital opening of another person by a hand,
finger, or other object.
Id. Abusive sexual contacts were defined as: "contact of any person without his or her consent, or of a person
who is unable to consent or refuse; and intentional touching, either directly or through the clothing, of the genitalia,

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15 Colum. J. Gender & L. 185, *234

anus, groin, breast, inner thigh, or buttocks of any person." Id. Staff sexual misconduct was defined as:
any behavior or act of a sexual nature directed toward an inmate by an employee, volunteer, official visitor, or
agency representative. Romantic relationships between staff and inmates are included. Consensual or nonconsensual
sexual acts include: intentional touching of the genitalia, anus, groin, breast, inner thigh, or buttocks with the
intent to abuse, arouse, or gratify sexual desire; or completed, attempted, threatened, or requested sexual acts; or
occurrences of indecent exposure, invasion of privacy, or staff voyeurism for sexual gratification.
Id. Staff sexual harassment is defined as: "repeated verbal statements or comments of a sexual nature to an
inmate by employee, volunteer, official visitor, or agency representative, including: demeaning references to gender
or derogatory comments about body or clothing; or profane or obscene language or gestures." Id.
n25 § 15606(b)(3)(A). A high incidence does not necessarily mean that a state does not address prison rape.
In fact the contrary may be true. A state with a credible grievance process and aggressive investigation may have
higher reporting than a state that does poor investigations and has a compromised grievance process. See Susan
W. McCampbell & Allen L. Ault, Lessons Learned: Miles to Go in Preventing Staff Sexual Misconduct with
Offenders, AMERICAN JAILS, Jan.--Feb. 2005, at 37. The information in this article is based on work done under
four National Institute of Corrections' Cooperative Agreements by the Center for Innovative Public Policies, Inc.
The article highlights how correctional agencies "believe that if there are no reported incidents of sexual misconduct
that no misconduct is occurring." Id. at 3. The article also discusses that
[a] key operational priority is the orientation of offenders to the agency's policies and how to report misconduct. . .
. Agencies who orient inmates find that there is an initial testing of the system ---- both by employees and inmates.
Complaints may be made to see if the agency is serious about accepting all allegations as well as investigating.

Id. at 8. See also generally Michele Deitch, Deitch: On Prison Rape, Texas Tries to Report it Right, AUSTIN
AMERICAN STATESMAN, Nov. 9, 2005, available at
tml (explaining that "we need to encourage the reporting of prison rape, and those states that take the problem
seriously enough to use expansive definitions of rape and broad data collection methodologies ---- despite the risk of
being penalized ---- should be applauded, not criticized").
n26 § 15607(c)(2).
n27 § 15608(a).
n28 PREA defines "rape" as:
(A) the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a person, forcibly or
against that person's will; (B) the carnal knowledge, oral sodomy, sexual assault with an object, or sexual fondling
of a person not forcibly or against the person's will, where the victim is incapable of giving consent because of his
or her youth or his or her temporary or permanent mental or physical incapacity; or (C) the carnal knowledge, oral
sodomy, sexual assault with an object, or sexual fondling of a person achieved through the exploitation of the fear
or threat of physical violence or bodily injury.
§ 15609(9).
n29 § 15609(9)(c).
n30 § 15603(a)(2)(A).
n31 See BECK, supra note 24, at 3.
n32 Id. at 2.
n33 See generally Cheryl Bell et al., Rape and Sexual Misconduct in the Prison System: Analyzing America's
Most "Open" Secret, 18 YALE L. & POL'Y REV. 195 (1999) (analyzing the shortcomings of current legal doctrine
on the issue of rape and sexual misconduct in prison, focusing on Farmer v. Brennan, 511 U.S. 825 (1994)); Kim

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15 Colum. J. Gender & L. 185, *234

Shayo Buchanan, Beyond Modesty: Privacy in Prison and the Risk of Sexual Abuse, 88 MARQ. L. REV. 751 (2005)
(discussing rape of women in U.S. prisons); Ian O'Donnell, Prison Rape in Context, 44 BRIT. J. CRIMINOLOGY
241 (2004) (comparing occurrences and magnitude of prison rape in the U.S. and the U.K.); Christine Peek,
Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment, 44 SANTA
CLARA L. REV. 1211, 1224--1229 (2004) (discussing whether some consensual sexual experiences in prison have
elements of coercion); James E. Robertson, A Clean Heart and an Empty Head: The Supreme Court and Sexual
Terrorism in Prison, 81 N.C. L. REV. 433 (2003) (discussing prison rape in male prisons and prison rape litigation);
Rachel Roth, "No New Babies?" Gender Inequality and Reproductive Control in the Criminal Justice and Prison
Systems, 12 AM. U. J. GENDER SOC. POL'Y & L. 391 (2004) (examining conflicts over the rights of prisoners and
probationers to have sex or to procreate).
RAPE ELIMINATION ACT OF 2003, OMB No. 1121--0303) (2005) (on file with author). Ninety percent of the
respondents are randomly routed to answer questions about consensual and non--consensual sex in the facility.
Section E of the questionnaire, entitled "Activity With Inmates," asks about both wanted and unwanted sex
or sexual contact the inmate has had with other inmates in the facility. Id. at 17--24; see also BUREAU OF
SYSTEMS 2, 5 (2004), available at (referencing non--consensual
sexual acts between inmates, thus implicitly recognizing that there can be consensual sexual acts as well, and
defining staff sexual misconduct as consensual or non--consensual sexual acts). Similar language appears in the
surveys given to the local jail jurisdictions and state juvenile systems. BUREAU OF JUSTICE STATISTICS,
(2004), available at; BUREAU OF JUSTICE STATISTICS, U.S.
available at; see also BUREAU OF JUSTICE STATISTICS, U.S.
REPORT 4 (2004), available at (discussing the Bureau's plans
to implement a project that includes cognitive testing of the questionnaire, conduct a national pretest, and deliver a
national implementation plan in 2006 on self--reports by inmates in adult correctional facilities).
supra note 34, at 1 ("Corrections administrators have concerns about legal liability, reliability of self--reports, and
potential disruption of facility operations.").
n36 See, e.g., Lara Stemple, Executive Director, Stop Prisoner Rape, Address at the Public Hearing before
the National Prison Rape Elimination Commission: The Costs of Victimization: Why Our Nation Must Confront
Prison Rape (June 14, 2005), available at Stemple
comments that the commissioner has heard me speak about the challenges of implementing the Prison Rape
Elimination Act at Notre Dame in March when I emphasized there the need to grapple realistically with prisoners'
sexuality and with the grim fact that rape is essentially the only socially acceptable sexual outlet in many men's
Id.; see also Cal. Sexual Abuse in Detention Elimination Act, § 2639(f), 2005 Cal. Adv. Legis. Serv. 303
(Deering) ("Consensual sodomy and oral copulation among inmates is prohibited by subdivision (e) of Section
286 and subdivision (e) of Section 288a, respectively. Without repealing those provisions, the increased scrutiny
provided by this article shall apply only to consensual sexual contact among inmates and custodial sexual
n37 See Derrick Corley, Prison Friendships, in PRISON MASCULINITIES 107 (Don Sabo et al. eds., 2001).
Derrick Corley is a writer and prisoner at Clinton Corrections Facility, Dannemora, New York. He queries, "If it is
true that healthy people have healthy relationships, and, if these relationships are systematically denied prisoners,
then how can we be expected to eventually live in society as normal, law--abiding, productive people?" Id.

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15 Colum. J. Gender & L. 185, *234

n38 See generally Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999) (prison inmate alleged that a sexual
encounter with the defendant ---- a former corrections officer at the prison ---- was not consensual, as defendant
contended, but was in fact a sexual assault that violated her constitutional rights); Phillips v. Bird, No. 03--247-KAJ, 2003 U.S. Dist. LEXIS 22418 (D. Del. Dec. 1, 2003) (inmate agreed to engage in sexual relations with prison
guard, and later claimed that the sexual relations were a violation of her right to be free from cruel and unusual
punishment); Fisher v. Goord, 981 F. Supp. 140 (W.D.N.Y. 1997) (the court held that there was no credible evidence
that the prisoner was raped, and that the evidence showed that the action was part of a plan by plaintiffs to get the
prisoner transferred out of the state facility to one closer to home); see also CRISTINA RATHBONE, A WORLD
APART, WOMEN, PRISON AND LIFE BEHIND BARS 49--54 (2005) (narrating non--fictional accounts of women
inmates in Framingham penitentiary and their relationships with male staff).
with author). According to the report,
Many also suggested that a large part of sexual victimization was tied to "domestic violence" in both male and
female institutions and rooted in relationships that may have begun as consensual and turned coercive over time.
While the relational component of violence has been well known in female facilities, the focus groups in the male
facilities also described this situation.
Id. at 15. See generally Corley, supra note 37, at 107.
WOMEN OFFENDERS 65--66, 69 (2003), available at (addressing
the needs of women inmates to have gender--specific policies, programs, and services by collecting and summarizing
multidisciplinary research and practitioner expertise on gender--responsive strategies).
n41 See OWEN, supra note 39, at 15, 17.
THE FAILURE OF LAW 254--73 (1998) (discussing what counts as consent in the context of dating/acquaintance
rape); ILENE SEIDMAN & SUSAN VICKERS, The Second Wave: An Agenda for the Next Thirty Years of
Rape Law Reform, 38 SUFFOLK U. L. REV. 467, 484--91 (2005) (discussing the definition of consent used in
acquaintance rape cases and the distinction between seduction and assault).
(1989) (explaining that no law explicitly gives men the right to rape women, yet no law has undermined men's
entitlement to sexual access to women); NICOLA LACEY, UNSPEAKABLE SUBJECTS: FEMINIST ESSAYS
IN LEGAL AND SOCIAL THEORY 104--24 (1998) (analyzing a woman's autonomy in the context of rape and
criminal law). But see Katharine T. Barlett, MacKinnon's Feminism: Power on Whose Terms?, 75 CAL. L. REV.
LIFE AND LAW (1987)) ("MacKinnon has given inadequate attention to how power should be used. Indeed, she
seems entirely uninterested in what women should do with power, should they ever get any."); Kathryn Abrams, Sex
Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304 (1995) (questioning how
feminists might formulate theories that highlight both women's oppression and the possibilities of women's agency
under oppression).
n44 See, e.g., Peek, supra note 33 (discussing transgender prisoners and the Eighth Amendment's prohibition
against cruel and unusual punishment); Jeffrey P. Brinkman, Veney v. Wyche: Not in My Cell ---- The Constitutionality
of Segregating Prisoners Based on Their Sexual Orientation, 12 LAW & SEXUALITY 375 (2003) (discussing
the implications of the Equal Protection Clause for a homosexual male inmate who was repeatedly denied the
right to move into a double occupancy cell based on his sexual orientation); Lisa Davie Levinson, Tenth Circuit
Survey: Prisoners' Rights, 75 DENV. U. L. REV. 1055 (1998) (discussing cases concerning the Eighth Amendment's
prohibition against cruel and unusual punishment and Fourth Amendment claims of unreasonable searches and
seizure as it applies to a prisoner's cell).

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15 Colum. J. Gender & L. 185, *234

n45 But see, e.g., Ronald G. Turner, Sex in Prison, 36 TENN. B.J. 12, 12 (Aug. 2000) (encouraging conjugal
visits for prisoners, stating, "Except for the vague notion that homosexuality sometimes happens behind bars,
we assume that once the gate clangs shut, inmates' sexuality and sexual needs do, too"); Danielle Dirks, Sexual
Revictimization and Retraumatization of Women in Prison, 32 WOMEN'S STUD. Q. 102, 110 (2004) (noting
that the legal system has "turned a blind eye" to discussing consensual and nonconsensual sex between staff and

n46 See, e.g., THE ARC, POSITION STATEMENT: SEXUALITY 1 (2004), available at
("People with mental retardation and related developmental disabilities, like all people, have inherent sexual rights
and basic human needs. These rights and needs must be affirmed, defended and respected."); Janet K. Feldkamp,
Navigating the Uncertain Legal Waters of Resident Sexuality, 52 NURSING HOMES: LONG TERM CARE
MANAGMENT 62 (2003) (discussing residents' rights to sexual expression and the complicated issues that the
topic creates for facilities and family members); Kathleen S. Mayers, Sexuality and the Demented Patient, 16
SEXUALITY & DISABILITY 219, 219 (1998) (stating that "the management of sexuality in this population
[individuals with dementia], including consensual sexual activity as well as forced sexual encounters, are topics
which merit attention and should be addressed by the facility and for individual patients"); Jamie P. Morano, Sexual
Abuse of the Mentally Retarded Patient: Medical and legal Analysis for the Primary Care Physician, 3 PRIMARY
CARE COMPANION J. CLINICAL PSYCHIATRY 126, 129 (2001) (noting that "according to a 1982 article in
Pediatric Annals, the mentally retarded adolescent is a sexual being, whose reproductive ability, sexual interests,
and sexual activity range from high to low, identical to the range in the general population.'"); Robert Worley et al.,
Prison Guard Predators: An Analysis of Inmates Who Established Inappropriate Relationships with Prison Staff,
1995--1998, 24 DEVIANT BEHAVIOR: AN INTERDISC. J. 175 (2003) (discussing how some inmates pursue
consensual, romantic relationships with correctional employees).
n50 As Banks explains,
After 1815, many states erected penitentiaries based on two competing models ---- the Pennsylvania system used
by Quakers, which isolated prisoners in individual cells and required complete silence both day and night; and the
Auburn model, named after a prison in New York that opened in 1817, where the inmates, although isolated in cells
at night, worked together in silence during the day and were subjected to extensive scrutiny and surveillance backed
up by a rigid system of discipline.
BANKS, supra note 48, at 4.
n51 Id.
n52 Id.
n53 RAFTER, supra note 47, at 10.
n54 Id. at xxiv.
n55 See Wikipedia, Pleading the Belly (2005), available at
n56 Id. In Britain, transportation to the colonies was another alternative. Id.

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15 Colum. J. Gender & L. 185, *234

AMERICA, 1830--1930, at 123 (1981).
n58 Id.
n59 Id. at 18--20.
n60 Id.
n61 BANKS, supra note 48, at 7.
n62 FREEDMAN, supra note 57, at 28.
n63 BANKS, supra note 48, at 6.
n64 See FREEDMAN, supra note 57, at 59.
n65 Id. at 60.
n66 Id. at 35, 47--52.
IN PRISON 123 (2002) (nineteenth century social reforms called for separate institutions, and in 1873 the first
institution with an all--female staff was founded).
n68 See RAFTER, supra note 47, at 39.
n69 FREEDMAN, supra note 57, at 41.
n70 RAFTER, supra note 49, at 10--13.
n71 Id.
n72 316 U.S. 535 (1942).
n73 See id. at 536 (defining a habitual criminal under Oklahoma's Habitual Criminal Sterilization Act as a
person who, having been convicted two or more times for crimes amounting to felonies involving moral turpitude, is
thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal
institution). The Act further provides that "a proceeding against such a person may be instituted for a judgment that
such person shall be rendered sexually sterile." Id.
n74 See id. at 537 (noting that the sterilization would be through "the operation of a vasectomy in case of a
n75 This is akin to the debate over differences in penalties for powder cocaine and crack cocaine. See Elizabeth
Tison, Comment, Amending the Sentencing Guidelines for Cocaine Defenses: The 100--to--1 Ratio is Not As
"Cracked" Up As Some Suggest, 27 S. ILL. U. L. J. 413, 431 (2003) (noting that "data suggests that it is possible
that African--Americans comprise the majority of crack--related offenses due to the simple fact that, statistically,
African--Americans use and sell crack more than Caucasians. Caucasians, in contrast, use and sell powder cocaine
more than African--Americans"); see also Deleso Alford Washington, "Every Shut Eye, Ain't Sleep": Exploring
the Impact of Crack Cocaine Sentencing and the Illusion of Reproductive Rights for Black Women From a Critical
Race Feminist Perspective, 13 AM. U. J. GENDER SOC. POL'Y & L. 123, 135 (2005) (stating that "the devastating
aspect of the 100--to--1 quantity ratio is the disproportionate impact on Blacks and people of color who become
incidental collateral in the so--called war on drugs'"). Then, as now, criminal penalties fell disproportionately on
poor people and on people of color.

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15 Colum. J. Gender & L. 185, *234

n76 Skinner, 316 U.S at 540--42.
n77 Id. at 542.
n78 See, e.g., Lucas v. White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999) (finding that Bureau of Prison officials
placed women in an otherwise all--male security housing unit, opened plaintiff female inmates' cell doors for
male prisoner's access, allowed the physical and sexual harassment of plaintiffs, allowed correctional officers
and male prisoners to assault and rape plaintiffs in retaliation for previous claims of wrongdoing, and failed to
properly evaluate, train, discipline, and supervise custodial personnel so as to prevent such occurrences); Cumbey v.
Meachum, 684 F. 2d 712, 713 (10th Cir. 1982) (alleging that cross--gender supervision where female staff can view
male inmates showering, undressing, and using the toilet is a violation of privacy).
ADDRESSING GENDER--BASED MISCONDUCT 11 (2001) (advising that "sex between prisoners and staff
document notes that the [California Department of Corrections] specifically forbids sexual activity between
inmates/parolees and staff, contractors, volunteers. The CDC will prosecute the staff regardless of your agreement.
The law, Penal Code Section 289.6, will not allow the employee to use your consent as a defense to prosecution.
There is no exception to this.
Id. (emphasis in the original).
masturbation when performed in such a way that others become aware that the offender is masturbating, and
designating the activity as sexual misconduct). Because the prison environment, by its very nature, provides
very little privacy to an inmate, it is more likely than not that someone would become aware that an inmate is
masturbating. See also CHRISTOPHER HENSLEY ET AL., Masturbation Uncovered: Autoeroticism in a Female
Prison, 81 PRISON J. 491, 499 (2001) (reporting that "masturbation in prison is almost always a rule infraction"
and that the proportion of females reporting that they do masturbate in prison is nearly twice the proportion of free
society women).
n81 See Mission of the Mississippi Department of Corrections, (last
visited Dec. 3, 2005) (stating its mission as "providing and promoting public safety through efficient and effective
offender custody, care, control and treatment consistent with sound correctional principles and constitutional
standards"); Agency Mission of the Arizona Department of Corrections,
(last visited Dec. 3, 2005) (seeking to recruit "a well--trained, professional work force to serve and protect our
communities and its crime victims by effectively employing the field's best security practices and proven pre--release
programming to prepare for the release and reintegration ex--offenders as civil, productive citizens"); WYOM.
DEPT. OF CORR., POLICIES AND PROCEDURES § IV, available at (last visited Dec. 3, 2005) (describing its goal to "contribute to public safety by exercising reasonable,
safe, secure and humane management, while actively providing offenders opportunities to become law--abiding
n82 See, e.g., Dragnet out for fugitive and wife, both escape in hail of gunfire that killed guard, CNN.COM,
Aug. 10, 2005, available at the manhunt for an
escaped prisoner liberated by former prison nurse who he had married and the death of a corrections officer shot
pursuant to the escape); McNairy County Sheriff found guilty of helping inmate escape, WBIR.COM, OCT. 28,
2005, available at (describing the sheriff's
conviction for early release of a female inmate after she was reportedly impregnated by a jailer).
n83 See MODEL CODE OF PROF'L RESPONSIBILITY R.1.8(j) (2005) (stating that "[a] lawyer shall not
have sexual relations with a client unless a consensual sexual relationship existed between them when the client--

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15 Colum. J. Gender & L. 185, *234

lawyer relationship commenced"). See generally In re Pellizzari, 726 A.2d 451 (R.I. 1999) (holding that engaging
in sexual relations with a client during divorce proceedings warranted public censure); In re Adams, 428 N.E.2d.
786 (Ind. 1981) (holding that grabbing a female client, kissing her, and raising her blouse warranted a public
reprimand pursuant to an agreement for discipline); Comm. on Prof. Ethics and Conduct of the Iowa State Bar
Ass'n v. Durham, 279 N.W.2d 280 (1979) (holding that sexual contacts between attorney and client in a manner
which does not constitute an illegal act and is not inherently wrong, not extending beyond caressing and fondling
between the female attorney and the male client, but occurring during the attorney's visits to client in penitentiary
in a professional capacity, warranted reprimand).
n84 See THE CODE OF CANON LAW, Book II, Part I, Tit. III, ch. III: The Obligations and Rights of Clerics
(1983), available at It states that clerics are to behave
with due prudence in relation to persons whose company can be a danger to their obligation of preserving continence
or can lead to scandal of the faithful. The diocesan Bishop has authority to establish more detailed rules concerning
this matter, and to pass judgment on the observance of the obligation in particular cases.
Id.; see also THE CODE OF CANON LAW, Book VI, Part II, Tit. V: Offenses Against Special Obligation,
available at The Code of Canon Law states that
a cleric living in concubinage, and a cleric who continues in some other external sin against the sixth commandment
of the Decalogue which causes scandal, is to be punished with suspension. To this, other penalties can progressively
be added if after a warning he persists in the offence, until eventually he can be dismissed from the clerical state. A
cleric who has offended in other ways against the sixth commandment of the Decalogue, if the crime was committed
by force, or by threats, or in public, or with a minor under the age of sixteen years, is to be punished with just
penalties, not excluding dismissal from the clerical state if the case so warrants.
Id. See generally Ellen Whinnett, Priest Sacked for Sex Proposals, Senior Catholic hit on' Two Men, THE
MERCURY, Oct. 25, 2003, at 2; Santa Fe Bishop Replaced After in Sex Scandal, CHI. TRIB., Aug. 18, 1993, at
3M; Patricia Corrigan, Belleville Diocese Removes Fourth Accused Priest, ST. LOUIS POST--DISPATCH, Mar.
31, 1993, at 3A; Jonathan Friendly, Roman Catholic Church Discusses Abuse of Children By Priests, N.Y. TIMES,
May 4, 1986, at 26.
n85 See AM. MED. ASS'N CODE OF ETHICS § E--8.14 (2005) (discussing sexual misconduct in the practice
of medicine); § E--8.145 (describing sexual or romantic relations between physicians and key third parties); § E-10.015 (discussing the patient--physician relationship); § E--3.08 (addressing sexual harassment and exploitation
between medical supervisors and trainees).
n86 See generally Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (seeking monetary damages
under Title IX for a teacher's sexual harassment of a student); see also generally Franklin v. Gwinnett County Public
Schools, 503 U.S. 60 (1992) (determining for the first time that discrimination on the basis of sex for purposes of
Title IX and its regulations included sexual abuse of a student by a teacher); Byanard v. Lawson, 112 F. Supp. 2d
524 (E.D. Va. 2000) (bringing an action against a school principal and school board after a teacher sexually abused
a student).
in April 2000 a guard at Albion Correctional Facility, a state prison, was charged with third--degree rape and official
misconduct. This resulted from a three--month sexual relationship with a female prisoner. According to information
submitted to the court from the victim's attorney, during the three--month period, the guard was alleged to have
attempted to rape the female prisoner and to sodomize her and commit acts of sexual abuse. The guard pleaded
guilty to official misconduct as the sex was seen as consensual'.
Id. at 1--2.
n88 Mumia Abu--Jamal, Caged and Celibate, in PRISON MASCULINITIES 139, 141 (Don Sabo et al. eds.,
2001). Abu--Jamal discusses two cases where prisoners attempted to give some expression to their sexuality:
One prisoner, struck by a nurse's gentle manner, badly misinterpreted a simple smile for genuine affection, and in

Page 23
15 Colum. J. Gender & L. 185, *234

his mind there arose the belief that she was his wife. He went so far as to argue with and threaten fellow prisoners
who dared to talk with her. This grew into a fixation so pointed that, after several suicide attempts, which were
probably staged in order to gain her sympathy or access her nursing skills, he was committed to a regional mental
facility for several weeks. After his return, he no longer claimed that the female staffer was his wife, but his fingers
fidgeted constantly and his tongue perpetually darted in and out of his mouth. . . . Another prisoner, imprisoned for
more than a decade, since his midteens, developed a jailhouse reputation for flashing au naturel whenever a female
staffer, usually a nurse, came to his cell. Orders and repeated misconduct reports failed to deter his practice. The
administration finally assigned a male nurse to attend to his medical needs. The flashings and many of his illnesses
n89 RATHBONE, supra note 38, at 64.
n90 See supra note 46 and accompanying text.
n91 See, e.g., Mayers, supra note 46, at 219 (reporting on a study to obtain information, through surveys of
nursing staff, about the extent of sexual behavior among geriatric patients with dementia, nurses' desire for training,
and their views about the effectiveness of varying management approaches).
n92 See Peter B. Gruenberg, Boundary Violations, in ETHICS PRIMER OF THE AMERICAN PSYCHIATRIC
ASS'N 3, 4 (2001), available at fellows/ep/DL01.pdf (discussing the American
Psychiatric Association's longstanding principle against a doctor engaging in sexual activity with a former or
current patient and the patient's inability to provide informed consent to such a relationship).
n93 See generally Dirk Johnson & Julie Scelfo, Sex, Love and Nursing Homes, NEWSWEEK, Dec. 15, 2003, at
54 (reporting on how nursing homes are coping with the desire for sex and intimacy among residents); Feldkamp,
supra note 46 (focusing on sexuality among elders in long--term care facilities in the United States, rights of nursing
homes residents, the role of facility personnel in teaching safe sex among residents, and tips in handling the sexual
activities of a resident). See generally THE ARC, POSITION STATEMENT: SEXUALITY, supra note 46 ("People
with mental retardation and related developmental disabilities, like all people, have inherent sexual rights and basic
human needs. These rights and needs must be affirmed, defended and respected.").
n94 But see Henry E. Cauvin, Hinckley Wants Girlfriend, Psychologist Says in Court, WASH. POST, Sept. 20,
2005, at A10 (reporting on John Hinckley's request for more freedom in order to seek out intimate relationships and
the psychologist's assessment that Hinckley's desire for such a relationship was natural).
n95 See Stephen "Donny" Donaldson, A Million Jockers, Punks, and Queens, in PRISON MASCULINITIES
118, 125 (Don Sabo et al. eds., 2001). According to Donaldson,
These prisoners, who are perhaps focused more on the physical and less on the psychological dimensions of sexual
activity than are members of the middle class, insist that the difference between the experience of entering a female
mouth and of entering a male mouth is not significant, that the experiential difference between entering a vagina
or female anus and a male anus is not significant. In all of these cases, they are aggressive, thrusting, dominating,
stimulating the nerves in their own penis in quite similar fashion, inserting their energy and themselves into another
body, and obtaining orgasms for themselves.
n96 See Carl M. Cannon, Punishment, Not Rehabilitation, NAT'L L. J., Aug. 15, 1998, at 1910 (discussing
California's removal of weight--lifting equipment from prisons).
n97 See id. ("Congress has cut educational opportunities in prison by eliminating Pell Grants for inmates."). See
generally, Charles B. A. Ubah, Abolition of Pell Grants for Higher Education of Prisoners: Examining Antecedents
and Consequences, J. OFFENDER REHAB. 39, 73 (2004) (discussing how rehabilitative and reintegrative

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15 Colum. J. Gender & L. 185, *234

correctional philosophies view prison inmate college education as an effective approach to reduction of inmate
recidivism rate); see also Bobbie L Huskey, Think Twice Before Abolishing Inmate Privileges, 57 CORR. TODAY
6 (1995):
Studies have shown that inmates who have obtained their GED and a marketable skill while in prison have a lower
recidivism rate. In Illinois, for example, inmates who earned their GED while incarcerated have a return--to--custody
rate of only 4.5 percent ---- compare this to the 40 to 50 percent rate that some states have reported for inmates who
have not obtained their GED.
n98 See generally George M. Anderson, Parole Revisited, AM. MAG., Mar. 4, 2002, available at &issueID=363 (describing how, in
the last thirty years, the opportunities for prisoners to obtain early release has decreased dramatically because of
get--tough--on--crime laws).
n99 See Huskey, supra note 97. Huskey comments,
Unfortunately, because of budget constraints, we don't have enough productive work and treatment programs
throughout the prison and jail system. Often, we are left with inmates who are lying in their cells doing nothing or
are doing unproductive work. Idleness and mindless work many times lead to trouble. Trouble then can translate
into injury not only to other inmates but especially to corrections staff.
n100 See Turner v. Safley, 482 U.S. 78, 92 (1987) (finding that the correspondence regulation was reasonably
related to legitimate security interests, while the marriage regulation did not satisfy the reasonable relationship
standard because it was an exaggerated response to rehabilitation and security concerns and there were obvious,
easy alternatives to the regulation).
n101 In correctional parlance, "program" is often used to refer not to a particular program or activity, but as a
verb to refer to inmates' participation in programs and activities. Often "programming" is tied to reduced sentences
or greater privileges in institutional settings.
n102 See Worley, supra note 46, at 186.
n103 Commissary is essentially a canteen where prisoners can purchase non--prison food and items with
their personal funds. Prisoners with more money can purchase food, shoes, toiletries, and phone cards from the
commissary. See Memorandum from Richard L. Shiffrin, Office of Legal Counsel, to the Assistant Attorney
General, Civil Division § 1 (May 22, 1995), available at
n104 See OWEN, supra note 39, at 23 (reporting the staff's belief "that when inmates were victimized sexually,
they were also more likely to be exploited in other ways," and discussing the fact that "reports of sexually victimized
inmates giving their assaulter money, clothes, food, commissary items and other commodities appeared in several
of the focus groups"); c.f. Ice v. Dixon, No. 4:03CV2281, 2005 U.S. Dist. LEXIS 13429 (N.D. Ohio July 6, 2005)
(alleging that defendant Dixon promised to arrange for Ice's release if she performed oral sex and other sex acts
upon him).
n105 See Worley, supra note 46, at 185--89 (discussing "exploiters," or inmates who aggressively forge
inappropriate relationships with staff members to make illicit profits in the underground prison economy).
n106 See Susan E. Thompson, Prostitution--A Choice Ignored, 21 WOMEN'S RTS. L. REP. 217 (2001)
(supporting women using their bodies through prostitution as an acceptable means of obtaining care for themselves
and their families).
n107 See Worley, supra note 46, at 186. He quotes one inmate as follows:
If a boss wants to stop, I'll give her a couple of months. But you never let them quit. An inmate can always threaten

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15 Colum. J. Gender & L. 185, *234

to go to rank, and if that don't work then I tell him something like, "I ain't got but 15 months to go before I discharge.
I know you love your kids. I'd hate to see them get hurt." Bosses with kids won't want anything to happen to their
n108 877 F. Supp. 634 (D.D.C. 1994), vacated and modified in part on other grounds, 899 F. Supp. 659 (D.D.C.
1995), rev'd in part and remanded on other grounds, 320 U.S. App. D.C. 247, 93 F.3d 910 (D.C. Cir. 1996), cert.
denied, 520 U.S. 1196 (1997), on remand, 968 F. Supp. 774 (D.D.C. 1997) (order regarding sexual harassment,
medical care, programs, environmental health, and fire safety).
n109 Id. at 664--67.
n110 The author was co--counsel in this litigation, which challenged a pattern and practice of sexual abuse of
women incarcerated in a D.C. correctional facility and unequal educational, vocational, and religious opportunities
for female inmates. The litigation was dismissed with prejudice with the consent of the parties in 2004. See also
RATHBONE, supra note 38, at 59--61 (describing sex--for--cigarettes scandal where women inmates agreed to
correctional staff's fondling in exchange for cigarettes).
n111 See Women Prisoners, supra note 108; see also RATHBONE, supra note 38, at 47 (explaining that "giving
a [correctional officer] a blow job could get you a couple of cigarettes, or a box of matches, or an order of take--out
Chinese food, delivered direct from the restaurant and still hot").
n112 See generally Neal v. District of Columbia, No. 93--2420 (RCL), 1995 U.S. Dist. LEXIS 11461 (D.D.C.
Aug. 9, 1995) (finding for female employees in a Title VII suit alleging that the employer engaged in a pattern of
sexual harassment by creating a hostile working environment, by making job benefits conditioned upon the grant of
sexual favors, and by retaliating against those who challenged the harassment).
n113 Women Prisoners, 877 F. Supp. at 641.
n114 RATHBONE, supra note 38, at 51.
DEPT. OF JUSTICE, WOMEN OFFENDERS 10--11 (1999) (indicating types of sentences served by women);
PRISONERS IN 2004, at 4 (2005) (indicating in Table 4 prisoners sentenced to one or more or one or less years in
prison according to the jurisdiction of State or Federal correctional authorities under which they are sentenced).
n116 See also James E. Robertson, The Prison Rape Elimination Act: A Primer, 40 CRIM. L. BULL. 5
(recounting prison guards' accounts that some inmates will fight sexual advances because if they did not, they would
risk being considered gay). See generally DANIEL LOCKWOOD, PRISON SEXUAL VIOLENCE 124 (1980).
n117 Worley, supra note 46, at 190.
n118 See Janet Shibley Hyde & Sara R. Jaffee, Becoming a Heterosexual Adult: The Experiences of Young
Women, 56 J. Soc. ISSUES 283 (2000) (reviewing research about girls' transition from adolescent to adult
heterosexuality and emphasizing the influence of messages about sexuality from their peer group, family, and
their culture more broadly). See generally JUDITH P. BUTLER, GENDER TROUBLE: FEMINISM AND THE
SUBVERSION OF IDENTITY (1990) (discussing how gender and sexuality are hegemonic).
n119 See generally BUTLER, supra note 118 (originating the idea that sexuality and gender are "performative").
n120 See Worley, supra note 46, at 178 ("Rather, prisoners can, through staff manipulation, actively exert
control over their personal situation to mediate or lessen the pains of imprisonment.").

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15 Colum. J. Gender & L. 185, *234

n121 See id. at 190 ("These respondents admitted that they actually thrived on putting staff members into
situations that compromised their jobs as well as the facility's security.").
n122 See id. ("As one offender explained, having an inappropriate relationship with a prison staff member was
the ultimate way to out--con the law.'").
n123 See generally James Topham, Sting!, CORRECTIONS TECH. MGMT. MAG. (2000) (discussing the three
steps that inmates use to manipulate staff: techniques, tools, and turnouts. The first two stages are used to catch
the staff member to be victimized, while the turnout is when the inmate receives the payoff for his or her ability to
manipulate the victim); Gary Cornelius, THE ART OF THE CON: AVOIDING OFFENDER MANIPULATION
43--68 (2001) (describing inmate tools of manipulation with case examples); BUD ALLEN & DIANA BOSTA,
manipulation of staff through sex and emotion).
n124 See Kelly D. Askin, A Decade in Human Rights Law: A Decade of Gender Crimes in International Courts
and Tribunals: 1993 to 2003, 11 HUM. RTS. BR. 16, 17 (2004) (chronicling findings of international tribunals on
the use of rape of women in conflict to "create an atmosphere of fear and powerlessness").
n125 See Interview by Tracye Payne Wilson with Elaine Lord, Warden, Bedford Hills Correctional
Facility (Oct. 2003). A transcript is available in Our Place, 4 Finding Our Place (2003) at 23, available at pdf.
n126 Sentenced men and women may initially think of the separation from family and of the age they will be
when they are released. However, they may not consider the impact of imprisonment on fertility. In that sense, loss
of fertility becomes a collateral consequence of imprisonment. See Donald Braman, Families and Incarceration,
(Marc Mauer & Meda Chesney Lind eds., 2003) (discussing how the incarceration system is "intricately involved"
in the dissolution of the family organization). See generally Federal Resource Center for Children of Prisoners,
Child Welfare League of America, (last visited Dec. 20,
existing research and presenting findings from visits and from discussions with fathers who participate in programs
such as the Incarcerated Fathers Initiative, and with program directors, prison administrators, and social service
n127 Brenda V. Smith, Spoken Remarks at Panel on Intimacy, Sexuality and Fertility with Specific Reference to
Women Prisoners: Animating the Feminist Body at the Feminism and Legal Theory Project: Celebrating 20 Years
of Pedagogy, Praxis and Prisms, Mar. 19, 2004 (Washington, D.C.) (discussing intimacy, sexuality and fertility for
women in custody and its challenge to feminist theory); Brenda V. Smith, Spoken Remarks at Panel on Legal Issues
at the U.S. Dept. of Justice, National Institute of Corrections Training Session: Operational Practices in Women's
Prisons, June 9, 2005 (Alexandria, VA) (presentation to correctional leaders on legal issues affecting women in
prison including issues of fertility and procreation).
n128 Id.
n129 See DONALD BRAMAN, Families and Incarceration, in INVISIBLE PUNISHMENT: THE
eds., 2003) (discussing the strain that incarceration places on the family organization). See also Beth E. Richie, The
IMPRISONMENT 139--40 (Marc Mauer & Meda Chesney--Lind eds., 2003) (discussing the obstacles to parenting
posed by confinement, such as sudden and forced separation, long distances between urban neighborhoods and
correctional facilities, lack of accessible public transportation, obscure visiting hours, and long waits at visiting

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15 Colum. J. Gender & L. 185, *234

n130 See Interview by Tracye Payne Wilson with Elaine Lord, supra note 125. Some women have voluntarily
engaged in sexual relations with staff in order to conceive, either because they are serving long sentences and fear
they will not be able to bear children once they have finished serving their sentences, or because they are attempting
to "replace" children that have been lost due to their incarceration or termination of parental rights. Id. at 23.
n131 Turner, supra note 45, at 26 ("Even without conjugal visits many inmates and their spouses find ways to
be sexually intimate in visitation settings. Sexual contact in visiting rooms ranging from fondling to intercourse is
not uncommon.").
n132 See, e.g., CAL. CODE REGS. tit. 15, § 3177 (2002) (specifying California prisoners' rights with respect
to visitation of family members and setting forth several institutional guidelines to regulate the visitation process).
According to these regulations, "persons with only a common--law relationship to the inmate will not be recognized
as immediate family members for the purpose of family visiting. Only those immediate family members as defined
in section 3000 are authorized for family visits." Id. California state regulations define immediate family members
as legal spouse; natural parents; adoptive parents, if the adoption occurred and a family relationship existed prior to
the inmate's incarceration; step--parents or foster parents; grandparents; natural, step, or foster brothers or sisters;
the inmate's natural and adoptive children; grandchildren; and legal stepchildren of the inmate. Aunts, uncles and
cousins are not immediate family members unless a verified foster relationship exists.
n133 See Hernandez v. Coughlin, 18 F.3d 133, 138 (2d Cir. 1994) (holding that the inmate did not have a
constitutionally protected interest in conjugal visitation).
n134 In 1993, seventeen states allowed sexual visits between inmates and their spouses. See Turner, supra note
45, at 25. Many foreign governments provide for conjugal visits, including Canada, Belgium, Denmark, Germany,
Great Britain, Holland, Russia, Sweden, and numerous Asian and Latin American countries. Id. See Abu--Jamal,
supra note 88, at 140 (explaining how Dutch prison officials have operated "sex cells" for long term convicts in
order to keep inmates mentally and emotionally intact).
n135 See Gerber v. Hickman, 264 F. 3d 882, 891 (9th Cir. 2001) (according to California regulations, conjugal
visits are prohibited for inmates sentenced to life without the possibility of parole), reh'g en banc granted and
vacated, 273 F.3d 843 (9th Cir. 2001), reh'g en banc granted and aff'd, 291 F.3d 617 (9th Cir. 2002). See generally
Rebecca L. Miles, Criminal Consequences for Making Babies: Probation Conditions that Restrict Procreation, 59
WASH. & LEE L. REV. 1545, 1546 (2002) (discussing the right to procreate for individuals under probation).
n136 291 F.3d 617 (9th Cir. 2002).
n137 See id. Mr. Gerber attempted to inseminate his wife through legitimate means, though others have not.
See Gangster Sentenced in Sperm Smuggling Plot, L.A. TIMES, Aug. 22, 2003, at 16 (reporting on New York
gangster who was sentenced for an additional sixteen months for smuggling his sperm out of federal prison to his
wife); Greg B. Smith, Mobster Has On His Face in Sperm Scam, DAILY NEWS, Dec. 15, 2000, at 7 (reporting on
a New Jersey mob associate who bribed guards to smuggle sperm to his wife outside of prison); Pregnant Pause for
Sperm Smuggling Wife, N.Y. POST, Mar. 2, 2002, at 6 (reporting that a federal judge will not allow the wife of an
incarcerated New York mobster to use her husband's smuggled sperm to conceive).
n138 See Marguerite A. Driessen & W. Cole Durham, Jr., American Law in a Time of Global Interdependence:
U.S. National Reports to the XVITH International Congress of Comparative Law: Section V Sentencing Dissonances
in the United States: The Shrinking Distance Between Punishment Proposed and Sanction Served, 50 AM. J.
COMP. L. 623, 637 (2002):
California['s] three--strikes law enhances punishment for felony offenders who have previously been convicted of
felonies. Crimes that count as previous "strikes" are violent felonies or any other crimes listed in the code as serious
felonies. However, the enhancement applies whenever the current conviction is for any felony--not just those listed
as violent or serious.

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15 Colum. J. Gender & L. 185, *234

n139 See CAL. CODE REGS. Tit. 15, § 3177 ("Family visits shall not be permitted for inmates who are in any
of the following categories: sentenced to life without the possibility of parole; sentence to life, without a parole
date established by the Board of Prison Terms. . . .").
n140 See Gerber, 264 F. 3d at 890.
n141 Id. at 892.
n142 Id. at 891.
n143 See id. at 623. Here the court did not recognize the right to procreate as separate from the right to parent.
See supra notes 126--129 and accompanying text.
n144 Id.
n145 See id. at 887. Though factually distinct, Gerber raises many of the same issues the court addressed in
Skinner over sixty years ago. California's three strikes law disproportionately affects people of color and in this
case has the effect of "legally sterilizing" Mr. Gerber and other three strikes inmates. See also PollyBeth Proctor,
Procreating from Prison: Evaluating British Prisoners' Right to Artifiically Inseminate Their Wives Under the
United Kingdom's New Human Rights Act and the 2001 Mellor Case, 31 GA. J. INT'L & COMP. L. 459 (2003)
(examining the body of English law surrounding the prisoner's right to procreation before the passage of the Human
Rights Act and how the prisoner's right to procreate will develop in light of the United Kingdom's passage of the
Human Rights Act).
n146 See Gerber, 264 F.3d at 629 (Kozinski, J., dissenting) (arguing that "production of the semen and delivery
to a laboratory neither compromises security, nor places a strain on prison resources beyond that required to mail
any other package").
n147 See id. ("Sure, the prison is entitled to make sure it doesn't contain prison escape plans, but Gerber is not
claiming an exemption from routine security checks.").
n148 See Gibson v. Matthews, 926 F.2d 532, 536--37 (6th Cir. 1991) (discussing the Sixth Circuit's decision
that there was no violation of the Fifth, Eighth, or Ninth Amendments when prison officials' delays resulted in
the inability of a female prisoner to have an abortion); Monmouth County Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 354 (3d Cir. 1987) (Mansmann, J., concurring) (discussing the Third Circuit decision that there was
an Eighth Amendment violation in a prison policy that required a court order before permitting elective non-therapeutic abortions); see also FED'L BUREAU OF PRISONS, P.S. 6070.05, § 551.23 (1996) ("The inmate has
the responsibility to decide either to have an abortion or to bear the child.").
n149 See generally Overton v. Bazzetta, 539 U.S. 126 (2003) (holding that restrictions on visits by children
were properly related to maintaining prison security and protecting the children, and the prohibition of visits by
former inmates bore a self--evident connection to the state's interest in maintaining prison security and preventing
future crimes).
n150 See Klinger v. Dep't of Corr., 107 F.3d 609, 613--16 (8th Cir. 1997) (determining that, because the women
prisoners' comparison of the educational opportunities at the women's prison to those at the men's prison failed
to provide a meaningful comparison of educational opportunities for male and female prison system as a whole,
there was not a violation of Title IX of the Education Amendments); Women Prisoners v. District of Columbia,
93 F.3d 910, 927--28 (D.C. Cir. 1996) (noting that "an inmate has no constitutional right to work and educational
opportunities" and that "idleness does not violate the Eighth Amendment protection against cruel and unusual
punishment, indeed, idleness does not even constitute punishment.'"); Teresa A. Miller, Sex and Surveillance:
Gender, Privacy and the Sexualization of Power in Prison, 10 GEO. MASON U. CIV. RTS. J. 291, 337 (2000) ("The
problem inherent in the search for symmetry [in men and women's prisons] is that it ignores the unique problems of
sex and power in men and women's prisons, which are similar to those arising in the context of equal protection for

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15 Colum. J. Gender & L. 185, *234

whites and blacks . . . Judicial insistence upon formal symmetry fails to recognize that men and women experience
unwanted intimate physical contact and nudity before members of the opposite sex differently."); Brenda V. Smith,
Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225, 273--76, 275 n.336 (2003) (noting that, though
judicial application of equal protection has resulted in female inmates receiving greater privacy protection than
male inmates, female inmates receive less recognition of their right to educational and vocational opportunities in
comparison to male inmates).
n151 See Jospeh J. Bozzuti, Judicial Birth Control?: The Ninth Circuit's Examination of the Fundamental Right
to Procreate in Gerber v. Hickman, 77 ST. JOHN'S L. REV. 625, 637, n.72 (discussing the difference in difficulty
between sperm and egg donation, declaring that "though occasions have called for recognizing the inherent different
between the sexes, and thus permitting different treatment of the sexes, if and how much such recognition would
be made in this case remains unknown"); Richard Guidice, Jr., Procreation and the Prisoner: Does the Right to
Procreate Survive Incarceration and Do Legitimate Penological Interests Justify Restrictions on the Exercise of the
Right, 29 FORDHAM URB. L.J. 2277, 2309 (2002). Guidice comments:
For instance, female inmates cannot avail themselves of the same method of procreation that male inmates can,
which is to simply provide a semen sample to their spouses so that they may be artificially inseminated. Unlike
male inmates, female inmates would necessarily require outside medical attention or facilities to procreate via
artificial means. Male inmates, however, could complete the semen collection procedure from inside their own
prison cells. Because of their differences, male prisoners could claim that the narrow right to provide semen to
artificially inseminate one's spouse does not apply to female inmates. Therefore, the policy of treating male and
female inmates equally, to the extent possible, is not furthered by a blanket restriction on inmate procreation.
NATIONAL SUMMARY AND FERTILITY CLINIC REPORTS 37 (2004) (describing the various methods of
Assisted Reproduction Technology that exist, such as artificial insemination, in vitro fertilization ("IVF"), gamete
intrafallopian transfer ("GIFT'), and zygote intrafallopian transfer ("ZIFT"). See generally Sarah L. Dunn, Note,
The "Art" of Procreation: Why Assisted Reproduction Technology Allows for the Preservation of Female Prisoners'
Right to Procreate, 70 FORDHAM L. REV. 2561, 2563 (2002) (arguing that courts should protect a male prisoner's
right to procreate by donating his semen and should also protect a female prisoner's procreative rights by allowing
her to harvest her eggs while incarcerated).
n153 See generally Gerber v. Hickman, 264 F. 3d 882, 892 (9th Cir. 2001) (declaring that the right to procreation
generally survives incarceration); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (recognizing that
"inmates possess the right to maintain their procreative abilities for later use once released from custody," and
emphasizing "later use").
n154 See Donaldson, supra note 95, at 125. The author, Stephen "Donny" Donaldson, was a former prisoner
who was brutally raped while incarcerated, and coined the term "survival driven" as an intermediate category to
describe a homosexual's experience of rape in prison. According to Donaldson, from the typical punk's point of
view, none of his passive sexual activities is truly voluntary, since, if he had his own way, he would not need to
engage in them. Many continuing and isolated liaisons originate in the aftermath of gang rape or to counter the
ever--present threat of gang rape. Prison officials and researchers label such behavior as "consensual."
n155 See Cindy Struckman--Johnson et al., Sexual Coercion Reported by Men and Women in Prison, 33 J. SEX
RES. 67, 74 (1996) (discussing the lack of studies on prison sexual coercion by social scientists and providing a
research study to determine the occurrence of sexual coercion in prison).
n156 See Barbara Owen, The Mix: The Culture of Imprisoned Women, in THE INMATE PRISON EXPERIENCE
157--58 (2004) (discussing how some inmates new to the system find a "mentor" in an effort to adjust, and that those

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15 Colum. J. Gender & L. 185, *234

women who are "left to their own devices are women who do not possess the skills for negotiating a bureaucracy,
the prison smarts to work the system, nor a protector' who watches out for them"). See generally Struckman-Johnson, Sexual Coercion Reported by Men and Women in Prison, supra note 153; Cindy Struckman--Johnson &
David Struckman--Johnson, Sexual Coercion Reported by Women in Three Midwestern Prisons, 39 J. SEX RES.
217 (2002) (reporting on a study of an anonymous self--report survey of coercive sexual experiences of women
incarcerated in three Midwestern prisons).
n157 See Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988) (describing an incident in which a victim of
prison rape was informed that his assailant "had sold' him" to another inmate who subsequently raped him); No
ESCAPE: MALE RAPE IN U.S. PRISONS, supra note 13, at 87--89 (discussing various types of coerced sexual
abuse within the prison system).
n158 See generally BRENDA V. SMITH, 50 STATE SURVEY 2005 (on file with author) (providing a detailed
analysis of each state's sexual misconduct in prisons laws, as well as those codified at the federal level).
n159 Id.
n160 See id. at 9--10. For example, Colorado law states that any actor who knowingly subjects a victim to any
sexual contact commits unlawful sexual contact if: . . . (f) the victim is in custody of law or detained in a hospital
or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of
authority, unless incident to a lawful search, to coerce the victim to submit.
n161 See SMITH, supra note 158 (indicating that twenty--two states declare that staff and inmates cannot
consent to sex). See, e.g., ALA. CODE § 14--11--31(e) (1975) (prohibiting the use of consent as a defense in cases
where custodial officers are accused of rape); CAL. PENAL CODE § 289(e) (2005) (banning the consent defense
for officials accused of rape in custodial settings); 11 DEL. CODE ANN. § 1259 (2005) (disallowing consent as a
defense to accusations of staff raping individuals in custody).
n162 SMITH, supra note 158, at 5, 12, 38.
n163 Telephone Interview with Lee Williams, Investigative Reporter, The News Journal of Wilmington,
Delaware, in Wilmington, Del. (Nov. 1, 2005).
n164 See generally BECK, supra note 24, at 2 (noting that there are no truly reliable figures on the prevalence
of prison rape); Struckman--Johnson, Sexual Coercion Reported by Men and Women in Prison, supra note 155,
at 67--68 (noting a conspicuous silence on the subject of sex in prison and sexual coercion in prison from social
scientists); Struckman--Johnson, Sexual Coercion Reported by Women in Three Midwestern Prisons, supra note
155, at 379 (commenting on the lack of reliable numbers on prevalence of prison rape).
n165 See BECK, supra note 24, at 1 (indicating that forty--two percent of the allegations of sexual
violence reported nationwide in 2004, involved staff sexual misconduct; thirty--seven percent, inmate--on--inmate
nonconsensual sexual acts; eleven percent, staff sexual harassment; and ten percent, abusive sexual contact, but
that numbers are suspect due to varying definitions, poor recordkeeping, poor investigations, and compromised
STAFF SEXUAL ABUSE OF FEDERAL INMATES 3 (2005) (noting that sexual abuse of female inmates is both
underreported and alarmingly prevalent). U.S. GEN'L ACCOUNTING OFFICE: WOMEN IN PRISON, SEXUAL
NORTON, HOUSE OF REPRESENTATIVES 7--8 (1999) (reporting that the full extent of staff sexual misconduct
is unknown and underreported nationally due to the fear of retaliation and vulnerability felt by female inmates, and
that jurisdictions do not have readily available, comprehensive data on the number, nature, and outcome of sexual
misconduct allegations).

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15 Colum. J. Gender & L. 185, *234

n166 See BECK, supra note 24, at 9 (reporting that a variety of legal sanctions, including arrest, referral for
prosecution, or a new sentence, were imposed on perpetrators of inmate--on--inmate sexual violence in eighty--six
percent of the thirty--six prison systems, seventy--six percent of the forty--two jail facilities, seventy percent of the
twenty--seven State--operated juvenile systems and fifty percent of the forty local, private juvenile facilities whereas
ninety percent of staff perpetrators of sexual misconduct were discharged or referred for prosecution).
n167 Id.
n168 See id. at 10 (Table 10) (reporting that of the 508 substantiated incidents of staff sexual misconduct and
staff sexual harassment, only a 193 were referred for prosecution).
n169 See, e.g., Calderon--Ortiz v. Laboy--Alvaro, 300 F.3d 60, 64 (1st Cir. 2002) (holding that a prison official's
failure to prevent rape of a pre--trial detainee in a state prison constituted deliberate indifference to his safety); Ware
v. Jackson County, Missouri, 150 F.3d 873, 883 (8th Cir. 1998) (holding that an inmate's Eighth Amendment rights
had not been violated when officials were deliberately indifferent to risks of harm eventually resulting in a prison
guard raping the inmate).
n170 Farmer v. Brennan, 511 U.S. 825, 832--51 (1994).
n171 See id. (holding that a prison official may be held liable under the Eighth Amendment for acting with
deliberate indifference to inmate health or safety only if he knows that inmates face a substantial risk or serious
harm and disregards that risk by failing to take reasonable measures to abate it).
n172 See Ice v. Dixon, No. 4:03CV2281, 2005 U.S. Dist. LEXIS 13429 (N.D. Ohio July 6, 2005) (finding the
county immune in its official capacity, the sheriff immune in both his official and individual capacity, the perpetrator
immune in his official capacity, but not immune in his individual capacity, on claims of sexual assault and battery
against Ice, the plaintiff inmate incarcerated at Mahoning County Jail). But see generally Monell v. Dep't of Social
Services, 436 U.S. 658, 694 (1978) (finding that, when a government's policy or custom is the source of the injury,
a municipality or government can be held liable).
n173 See Ice, 2005 U.S. Dist. LEXIS 14329 (concluding that the county's specific policy ---- including the training
it had given to staff within forty--eight hours of the incident, videotaping the plaintiff in an interview, taking the
plaintiff to the hospital for a rape kit, calling the Ohio Bureau of Criminal Investigation, suspending Dixon, getting
the Internal Affairs involved and sending the incident to the Mahoning County Prosecutor's Office ---- were sufficient
to find immunity).
n174 But see generally Riley v. Olk--Long, 282 F.3d 592, 597 (8th Cir. 2002) (holding prison officials personally
liable for rape of female prisoner by male corrections officer); Morris v. Eversley, 282 F. Supp. 2d 196, 208--09
(S.D.N.Y. 2003) (discussing the elements of claim for personal involvement where the guard who committed the
assault on the inmate was found personally liable, but granting immunity to the two female supervisors).
n175 See Worley, supra note 46, at 183.
n176 See id. at 185 (describing "heart--breakers" as inmates who insisted that they were truly in love and never
intended to take advantage of their relationships with correctional staff).
OF WOMEN IN PRISON 196 (2002) (describing the network of relationships at the Central California Women's
Facility that provided prisoners with support and help in avoiding negative prison influences).
n178 See Donaldson, supra note 95, at 118--26 (discussing the male prison classification system which includes
"men," "queens," "jockers," and "punks").
n179 See Peek, supra note 33, at 1226--30 (discussing masculinity and where it places an individual on the

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15 Colum. J. Gender & L. 185, *234

prison hierarchy).
n180 See id. (describing stereotypically feminine tasks undertaken by "queens" and other submissive inmates,
like doing laundry, cleaning the cell, straightening bunks, and making coffee).
n181 See Worley, supra note 46, at 182 (describing "heart--breakers" as inmates who initiate relationships with
security officers, forming strong emotional bonds, preceded by lengthy courtships).
n182 See generally Chungee Sarah Soh, Lecture at the Institute for Korean--American Studies (May 1,
2000), available at (discussing the complex, "masculinist sexual
culture," and both the men and women who ascribe to its tenets, including the idea that men have superior sexual
needs to those of women, and therefore, deserve to be "comforted" both in premarital and extramarital sexual
n183 See Compton v. Prescott, 12 Rob. 56 (La. 1845), in GENDER AND LAW: THEORY, DOCTRINE,
COMMENTARY 47--48 (Katherine T. Bartlett & Angela P. Harris eds., 1998) (detailing a relationship between a
white man and his freed slave partner, whom he never married, but with whom he lived and fathered two children
that he acknowledged as his and to whom he bequeathed the majority of his estate upon death).
n184 See Worley, supra note 46, at 182--85 (discussing the romantic relationships that inmates form with
correctional staff).
n185 Frances E. Olson, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV.
1497, 1573--74 (1983) (analyzing the feminist theories of Shulamith Firestone and Elizabeth Rapaport, which
discuss sexual equality as the means to achieve meaningful and healthy love). For an alternative commentary on
the power relations at stake in such relationships, see generally CATHERINE A. MACKINNON, TOWARD A
FEMINIST THEORY OF THE STATE (1989) (proposing an alternative interpretation of gender difference ---- or
sameness ---- by suggesting that equality between men and women be analyzed in terms of how power is distributed
between them). MacKinnon calls this the "dominance approach," and uses it to study not only sex discrimination in
employment, but also trends of rape, sexual abuse, and domestic violence. Id. at 493. In suggesting that there is an
imbalance of power in male/female relationships, there is the implication that there is some give and take of power
between the two sexes. In reality, MacKinnon seems to assert that women are always on the giving end; i.e., they are
the ones who either voluntary or involuntary relinquish some or all of their power in their interactions with men. Id.
n186 See Press Release, Kaiser Family Foundation, Number of Sexual Scenes on TV Nearly Double Since
1998 (Nov. 9, 2005), available at A study by the Foundation
found that the number of sexual scenes on television has nearly doubled since 1998, that seventy percent of all
shows include some sexual content, and that primetime television content is seventy--seven percent sexual. Id.
While Americans may not want to talk about sex or teach about sex, they seem to want to watch programs with
high sexual content.
n187 See OWEN, supra note 39, at 15 (noting that many correctional officials believe that encounters of sexual
violence between staff and inmates begin as consensual relationships that become coercive over time).
n188 Id. at 28--29.
n189 See Lawrence v. Texas, 539 U.S. 558, 565 (2003) (noting that "after Griswold, it was established that
the right to make certain decisions regarding sexual conduct extends beyond the marital relationship"); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (recognizing the right to "bear or beget a child" as
n190 See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that the right to procreate is a fundamental
right guaranteed by the constitution).

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15 Colum. J. Gender & L. 185, *234

n191 See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 330 (3d Cir. 1987) (holding that
prisoners have a right to get needed medical treatment, including abortions).
n192 See Gerber v. Hickman, 291 F.3d 617, 622 (9th Cir. 2002) (contrasting the general right to "procreate while
incarcerated" with "the right to be free from surgical sterilization by prison officials"); Hernandez v. Coughlin, 18
F.3d 133, 136 (2d Cir. 1994), (recognizing that the right to maintain procreative ability survives imprisonment, but
can only be exercised upon release from custody) Goodwin v. Turner, 908 F.2d 1395, 1400 (8th Cir. 1990) (holding
"that the Bureau's restriction on inmate procreation is reasonably related to furthering the legitimate penological
interest of treating all inmates equally, to the extent possible").
n193 See Overton v. Bazzetta, 539 U.S. 126, 130 (2003) (discussing Michigan's policy for contact visits where
inmates are allowed limited physical contact with their visitors in a large visitation room and non--contact visits
where inmates must communicate with their visitors through a glass panel).
n194 See id. at 169 ("Outside the prison context, there is some discussion in our cases of a right to maintain
certain familial relationships, including association among members of an immediate family and association
between grandchildren and grandparents."). The court made it clear that it did not intend to "imply that any right to
intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners."
Id. at 170.
n195 See, e.g., Overton, 539 U.S. at 136 (holding that visitation regulations limiting prisoners' contact with their
visitors were rationally related to a penological objective and therefore valid); Gerber, 291 F.3d at 623 (holding that
prisoner had no constitutional right to artificially inseminate his wife); Goodwin, 908 F.2d at 1400--01 (holding that
a regulation disallowing prisoners to artificially inseminate their non--incarcerated wives is valid, even assuming
that the right to procreate survives imprisonment); Hernandez, 18 F.3d at 138 (holding that an inmate does not
have a constitutionally protected right to conjugal visits). But see Lawrence v. Texas, 539 U.S. 558, 578--79 (2003)
(holding unconstitutional the criminalization of private consensual sodomy).
n196 See Turner v. Safley, 482 U.S. 78, 89 (1987) (applying a four--part reasonableness test to prison regulations
that infringed on inmates' rights to send mail amongst themselves ---- a First Amendment right ---- and to marry
without the prison superintendent's permission ---- a fundamental privacy right).
n197 Id. at 81.
n198 Id. at 82.
n199 Id.
n200 Id. at 81.
n201 Id. at 89--90 (internal quotations removed).
n202 See Overton v. Bazzetta, 539 U.S. 126 (2003) (holding that restrictions on visits by children were rationally
related to maintaining prison security and protecting the children, and the prohibition of visits by former inmates
bore a self--evident connection to the state's interest in maintaining prison security and preventing future crimes).
n203 See generally Timm v. Gunter, 917 F.2d 1093, 1102 (8th Cir. 1999) (finding that cross--sex surveillance
of male inmates is "not unreasonable" under the Turner test); Oliver v. Scott, 276 F.3d 736, 746 (5th Cir. 2002)
(finding that cross--sex surveillance was not a violation of male prisoner's equal protection rights, according to the
Turner test).
n204 See Rice v. State, 95 P.3d 994, 997 (Kan. 2004) (holding regulations that limited inmates' subscriptions to
periodicals were reasonably related to penological interests and were therefore valid).

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15 Colum. J. Gender & L. 185, *234

n205 See Torres v. Wisconsin, 859 F.2d 1523, 1529 (7th Cir. 1986) (holding that defendants were required
to meet an unrealistic, and therefore unfair, burden in displaying the validity of their bona fide occupational
qualification theory, and that, under Turner, "prison administrators have always been expected to innovate and
experiment"); see also Everson v. Michigan, 391 F.3d 737, 747--48 (6th Cir. 2004) (holding that female gender was
a bona fide job qualification for the positions in housing units at female prisons because the plan would enhance
security and protect privacy for female inmates).
n206 See Smith v. Bingham, 914 F.2d 740, 742 (5th Cir. 1990) (denying sex discrimination claims by male
inmates challenging their exclusion from vocational programs open only to female prisoners).
n207 See BLOOM, supra note 40, at 114 ("Although courts have given deference to decisions of prison
administrators in a Title VII context, they balance the rights of employees. Therefore, the Turner standard appears to
play a role in the analysis of whether sex discrimination is a BFOQ, even though it is not directly determinative.").
n208 Prison Rape Elimination Act of 2003, 42 U.S.C.S. § 15603 (2005).
n209 OWEN, supra note 39, at 8, 10. See generally SMITH, supra note 155.
n210 OWEN, supra note 39, at 9.
n211 PREA is replete with references to the public health impacts of prison rape. See, e.g., § 15601(7):
HIV and AIDS are major public health problems within America's correctional facilities. In 2000, 25,088 inmates
in federal and state prisons were known to be infected with HIV/AIDS. In 2000, HIV/AIDS accounted for more
than 6 percent of all deaths in federal and state prisons. Infection rates for other sexually transmitted diseases like
tuberculosis and hepatitis B and C are also far greater than for the American population as a whole. Prison rape
undermines the public health by contributing to the spread of these diseases, and often giving a potential death
sentence to its victims.
See also § 15601(14)(C) (discussing how the high incidence of prison rape "increases health care expenditures,
both inside and outside of prison systems, and reduces the effectiveness of disease prevention programs by
substantially increasing the incidence and spread of HIV, AIDS, tuberculosis, hepatitis B and C, and other
diseases"); § 15601(15)(B) (prison rape also affects interstate commerce because of "the incidence and spread
of HIV, AIDS, tuberculosis, hepatitis B and C, and other diseases, contributing to increased health and medical
expenditures throughout the nation").
IN PRISONS, 2003 BULLETIN 1 (2005) available at (stating
that "the overall rate of confirmed AIDS among the prison population (0.51%) was more than 3 times the rate in
the U.S. general population (0.15%)" and "at yearend [sic] 2003, 2.8% of all female State prison inmates were HIV
positive, compared to 1.9% of males."). See generally NAT'L COMM'N ON CORRECTIONAL HEALTH CARE,
report notes that that some of the serious diseases affecting inmates, including STDs, HIV/AIDS, hepatitis B and C,
and tuberculosis can be transmitted to other inmates, correctional employees, daily visitors, and to the community
once inmates are released. Inmates who are released with untreated conditions can become a financial burden on
community health care systems. Id. at vii.
n213 See Michael L. Closen, The Decade of Supreme Court Avoidance of AIDS: Denial of Certiorari in HIV-AIDS Cases and its Adverse Effects on Human Rights, 61 ALB. L. REV. 897, 904 (1998) (discussing how the
Supreme Court did not address the prevalence and modes of transmission of HIV/AIDS in prison); Brent Staples,
Fighting the AIDS Epidemic by Issuing Condoms in the Prisons, N.Y. TIMES, Sept. 7, 2004, at A1 (noting that
"condoms are banned or simply unavailable in more than 95 percent of the nation's prisons"); Fighting AIDS Behind
Bars, N.Y. TIMES, June 10, 2005, at A1 (noting that "the United States will never contain deadly diseases like
AIDS and hepatitis C until it prevents them from spreading behind bars, where infection levels are many times as
high as in the world outside and the diseases spread easily, thanks in part to unprotected sex among inmates").

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15 Colum. J. Gender & L. 185, *234

n214 One model for such programs is Our Place DC, which has implemented a program to educate women while
they are incarcerated and upon their release about HIV/AIDS, including methods of transmission, prevention, and
care. See Our Programs and Services, Our Place DC Website, (last
visited Dec. 3, 2005). Another model is The Women's Collective, which runs "Sisters Helping Sisters to Survive,"
a peer education program that seeks to educate women about safer sex and empowerment, provide safer sex tools,
encourage HIV testing among women, and help HIV positive women receive care. See Prevention Programs,
Women's Collective Website, (last visited Dec. 3, 2005).
n215 Indeed, studies are being conducted to determine if the alarming rise of HIV among heterosexual
African American women is linked to the large number of African American men who are imprisoned and
return to the community. See HIV/AIDS AMONG AFRICAN AMERICANS, CDC FACT SHEET, available at (last visited Dec. 3, 2005) ("African American women are most likely to
be infected with HIV as a result of sex with men. They may not be aware of their male partners' possible risks for
HIV infection such as unprotected sex with multiple partners, bisexuality, or injection drug use."); Jonathan E.
Briggs, New Law to Focus on HIV in Blacks; Infection Rate Tied to Prison Population, CHICAGO TRIBUNE, Aug.
19, 2005, at C4. See also Illinois Governor Signs Law Focusing on HIV Prevention Among African--Americans,
THE ADVOCATE, Aug. 23, 2005, available at (stating that "the
legislation, called the African--American HIV/AIDS Response Act, requires the state Department of Corrections
and all county jails in the state to offer free HIV antibody tests to all inmates when they arrive at prison, during their
imprisonment, and before they complete their sentences and are released").
n216 See Reentry Trends in the US: Releases From Prison,
(last visited Dec. 3, 2005) (noting that, in 2001, 592,000 state prison inmates were released from prison).
(noting that studies have supported the idea that increased contact between inmates and their families contribute to
an inmate's re--integration into the community).
n218 Id. at 6 (indicating that policies and programs focus "on supportive family relationships or benefiting the
children of inmates").
n219 See generally Bellamy v. Bradley, 729 F.2d 416, 420 (6th Cir. 1984) (noting that conjugal visits may
alleviate sexual tension, reduce homosexuality, and serve as an incentive for good behavior).
n220 See MISS. DEP'T OF CORR., CONJUGAL VISITS, available at
(last visited Dec. 8, 2005).
Inmates that qualify for conjugal visits are those that are A' or B' custody (minimum custody levels) and maintain
an acceptable level of good behavior. In addition, eligible inmates cannot have a rule violation report (a report that
is written after a rule is broken such as fighting, swearing, etc.) in the last 6 months.
& Frank P. Williams, III eds., 1996) (noting that conjugal visits may alleviate sexual tension, reduce homosexuality,
and serve as an incentive for good behavior).
n222 Prison Rape Elimination Act of 2003, 42 U.S.C.S. § 15601(14)(A)--(F) (2005).
n223 See Thompson, supra note 106, at 227 (noting that one benefit of legalized prostitution is the
corresponding health regulations designed to prevent disease outbreak); Ashley Bollinger, Regulating the World's
Oldest Profession: Criminalization, Decriminalization or Legalization ---- What is Best for Working Women vs.
What Will Work in the United States? 34 (2005) (unpublished student paper) (discussing how legalization of
prostitution in Nevada has created an environment where the "incidence of disease among licensed prostitutes is

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15 Colum. J. Gender & L. 185, *234

virtually zero") (on file with author); Jenna Casper, Prostitution: A Celebration or Degradation of Women 10, 11
(2005) (unpublished student paper) (discussing legalization of prostitution and the argument of liberal feminists that
prostitution should be treated as an occupation that women should have the right to pursue) (on file with author).
n224 Feldkamp, supra note 46.
n225 THE ARC, POSITION STATEMENT, supra note 46.
n226 Mayers, supra note 46.
n227 See International Covenant on Civil and Political Rights art. 10 § 1, Dec. 16, 1966, 999 U.N.T.S. 171
("All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of
the human person."). See generally The Special Rapporteur of the Commission on Human Rights, Report of the
Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment,
P 23, delivered to the members of the General Assembly, U.N. Doc. A/56/156 (July 3, 2001), available at (expressing concern about reports of sexual abuse of sexual
minorities in detention); Brenda V. Smith, Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225, 276--88
(2003) (lauding the use of human rights norms and instruments as way of analyzing prisoners' claims for vindication
of rights insufficiently protected by U.S. Constitution).
n228 See, e.g., Roper v. Simmons, 541 U.S. 1040, 1198 (2004) (citing international law standards in finding that
execution of individuals under eighteen years of age violates the Eighth Amendment); Lawrence v. Texas, 539 U.S.
558, 572--73 (2003) (using international law in holding that a Texas statute making it a crime for two persons of the
same sex to engage in consensual sodomy in privacy was unconstitutional).
n229 See Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc. A/CONF/611, annex I
(adopted Aug. 30, 1955); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984),
(entered into force June 26, 1987) [Part I Only]; Hearing on the Prison Rape Reduction Act of 2002 Before
the Senate Committee on the Judiciary, 107th Cong. (2002) (statement of Dr. Scott Long), available at (discussing the international laws against discrimination
for sexual orientation and commenting that "every day the lives and the physical integrity of lesbian, gay, bisexual
and transgender people are at stake within our prison systems, and what they face is torture, and our government is
complicit in it and in many cases responsible for it").
n230 See Abu--Jamal, supra note 88, at 140 (explaining that Dutch prison officials facilitate sex for prisoners in
an effort to improve mental health).
n231 See supra note 37 and discussion Part III.
n232 Johnson v. Phelan, 69 F.3d 144, 152 (1995) (Posner, J., dissenting) (dissenting from the majority decision
upholding cross--gender viewing of nude male inmates by female correctional staff).
n233 See supra Part III.A, C, G.
n234 See supra Part III.D.
n235 See supra Part III.E.
n236 See supra Part III.B, D, F.
n237 See supra Part IV (outlining six legitimate interests that prison officials have in expanding sexual
expression of inmates).

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15 Colum. J. Gender & L. 185, *234

n238 See supra Part III.G, notes 186--188 and accompanying text, and Part IV, notes 208--229 and accompanying


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