SPOTLIGHT – Prison Rape is Corporal Punishment

The ‘Spotlight’ series is dedicated to highlighting civil and human rights concerns and abuses, at home and abroad.

The modern penitentiary was born out of a simple idea: remove inmates from society, isolate them from each other, and give them the opportunity for moral reflection. The system of “cellular isolation” had some aspects of what would later become “solitary confinement”, but with a more rehabilitative and less punitive bent. The warden of Eastern State Penitentiary, for example, was required to meet with each inmate daily. Prisoners were also routinely allowed to keep pets and were entitled to regular contact with staff.


The system broke down when confronted with the perennial enemies of public services: underfunding and overcrowding. From its inception as a less-punitive alternative to corporal punishment that also kept offenders away from bad influences, the penitentiary system has  since transformed into one characterized precisely by the prisoners’ minimally mediated relationships.

The experience of being in prison is now as much about who you are in with as it is about what you are kept away from. It is also about the conditions of your confinement.

It is no surprise that bad things happen when criminals are held together in an overcrowded and poorly controlled environment. Prison life is rampant with drug abuse, gang activity, and violence. You are probably less likely to be killed in prison than you are outside of it (depending a bit on who you are), but you are much likelier to experience a violent assault.

You are also significantly likelier to be raped.

Even if we put aside important questions about over-incarceration, and the wisdom of holding people in prisons that encourage criminal behavior while perversely referring to the whole thing as a system of ‘rehabilitation’, the phenomenon of prison rape raises uncomfortable questions. Namely, why is it so prevalent and why are we, as a society, so indifferent to it?

Estimates of sexual violence are difficult to obtain both in and out of prison, but surveys of prisoners seem to indicate that around one in five inmates has experienced a sexual assault during incarceration. Many of these prisoners will be repeatedly assaulted. Half of them report being assaulted by staff.

(Statistical Note: The extent of sexual abuse in prisons is usually measured by estimating the prevalence rate, or the percentage of inmates who have experienced a sexual assault, and then comparing that number to the prevalence rate in society. It is worth noting that this approach is very likely to underestimate the extent of the problem. Largely because, when compared when compared to people who are not imprisoned, people in prison settings are much likelier to be the victims of ongoing violent assaults. The prevalence rate does a poor job of capturing that dimension of the problem.)

Though some level of violence is perhaps to be expected in prison settings, it is difficult to believe that authorities are making a good faith effort to deal with the problem – not when staff members act as sexual predators, the prevalence of sexual assault is public knowledge, and teenagers are routinely sent to adult prisons.

Just Detention International is a non-profit group that works towards mitigating sexual assault in prisons; their tagline is “Rape Is Not Part of the Penalty”. As a descriptive statement, that assertion is worth debating.

The difficult truth is that it would seem that the public has actually come to accept sexual assault as a feature of criminal detention. Prison rape is a popular topic of humor (“don’t drop the soap”) and a familiar plot device in entertainment. Judges, prosecutors, lawmakers, and defendants are aware that part of what a person is sentenced to when they are assigned a detention facility is a corresponding risk of sexual assault.

While explaining to a young defendant in New Mexico why she was offering him probation with a suspended sentence, Judge Christina Argyres put it bluntly:

Do you know what would happen…to a young dumb person in prison? Do you have any idea what would happen to you?…You would probably be raped every day…[You’re] going to be somebody’s ‘bitch’.

The judge went on to tell the defendant that she was giving him a chance, and that if he blew it, it was on him. The implication is clear: if he violates his probation, he will be sent to prison where he will be raped, and it will be his fault. Only a thin veneer separates threatening a man with a prison sentence that you expect will include rape from sentencing that man to be raped as punishment.

The judge added, “Fair enough?”

Not really. One has to wonder how many people Judge Argyres hasn’t given a second chance to and how many of them she thought would be raped. Her comments from the bench are certainly unusual, but no participant in the criminal justice system can plead ignorance.

That includes the public. It isn’t uncommon for people in casual conversation or in media outlets to talk about prison rape as a sort of sentence enhancer – when the perpetrator is a pedophile, such comments are almost automatic – now he’ll see what it’s like seems to be a common sentiment. And that reaction isn’t limited to cases involving sexual predators. When violent criminals are sentenced, people often take solace or pleasure from the knowledge that their punishment will be unpleasant; with some frequency, that attitude extends to the knowledge that they will be raped. The idea that sexual violence is indeed part of the punishment seems prevalent and relatively well accepted – sometimes tacitly, and sometimes enthusiastically.

It would be nice to assert that it goes without saying that widespread prison rape is a social embarrassment, but it would seem that it very much bears repeating. It would also be useful to highlight that there is something particularly perverse about convicted men and women being subjected to violence in prisons, even at the hands of their own guards: prisons  represent the place where society has most fully asserted its right to total control. By design, prisoners are stripped of even their most basic agency. Whether or not this is an appropriate action for the state, even in the case of punishment, might make for interesting discussion, but what should appear immediately obvious is that in taking total control over a prisoner’s life, the state must be willing to take on a commensurate responsibility for their wellbeing. Clearly, it hasn’t.

People tend to think that what allows great evil to occur is a certain darkness in human nature – a darkness that appeals more to some than others. That is not true. The human propensity to commit and countenance horror is persistent and pervasive; what differs is our ability to check those impulses by summoning empathy. Evil occurs less often because we will it than it does because we have developed moral blindspots that allow it to grow unchecked. Such blindspots occur, not because we cannot see, but because we choose not to look.

Follow Pedro on Twitter @IamPedroA.

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