Sentenced to Rape

by Vivian Berger

While male custodians’ exploitation of female inmates has garnered publicity over the years, prisoners’ sexual abuse of other prisoners has generally been a taboo subject. But it attained a higher profile when Human Rights Watch issued a report last year: “No Escape: Male Rape in U.S. Prisons.”

Thanks in part to “No Escape,” the climate of indifference may eventually change enough to refute an inmate’s comment that nobody cares what happens to a prisoner. At least these expos?s might shame the people in charge into taking more effective remedial action.

Filled with horrifying letters from victims, the report describes in chilling detail Darwinian correctional institutions, where the strong prey on the weak and officials look the other way or, worse, facilitate oppression. Typically, predators check out the new arrivals and target those who appear vulnerable: the young, the small, first-time offenders, homosexuals or Caucasians. Once raped, the newcomer (dubbed a “turn out” or “punk”) becomes fair game for future assaults by the original assailant or others. Sometimes, he will be “sold” or “rented” to different inmates for sexual services; he may also be forced to perform a variety of menial tasks for his “owners.”


Psychic harms include great loss of self-esteem and serious depression: Raped prisoners are 17 times more likely to attempt suicide than inmates generally. In the words of a 16-year old inmate: “I don’t feel like a human being anymore. I’m a sexually abused animal.” “Punks” also frequently suffer physical injuries from sexual assaults.

Finally, rape propagates sexually transmitted diseases. In the worst-case scenario, the target may become infected with HIV. Kendell Spruce was raped by more than 20 assailants in one year while imprisoned in Arkansas on a fraudulent-check conviction; he ended up contracting AIDS. A misdemeanant, he got, as he noted, a sentence of death.

What is the incidence of these atrocities? Nobody really knows. Many states do not compile specific data on prison rape. Those that do publicize numbers so low that knowledgeable people give them no credit. Recent studies have found that, of 2 million inmates, more than one in five have suffered unwanted sexual conduct; one in 15, an estimated 140,000 according to Human Rights Watch, have been raped. And these shocking statistics may actually understate the problem. Prison officials, fearing lawsuits, have no desire to air their dirty linen in public. Victims remain quiet out of shame or fear of retaliation.

History gives prisoners no reason to believe that complaints will help. Many officials expect them to protect themselves. Investigations are largely perfunctory or nonexistent, with few charges referred for prosecution. Wardens tend to impose slap-on-the-wrist sanctions on perpetrators and often do not even transfer them away from their victims or place them in protective custody. Most prisons furnish scant medical care or counseling.

Guards may use sexual assault or its threat as a means of keeping inmates in line or retaliating against them. A form for a civil rights complaint quotes a unit sergeant as saying: “In a man’s prison, little boys get their asses busted, and your [sic] a fresh 16 and I know your going to get it good. Cause I’m going to help. I know who to put in the cell with you.”

Legal remedies provide too little, too late. Eighth Amendment damages actions compel plaintiffs to surmount the high hurdle of proving that prison administrators were “deliberately indifferent” to their plight. Injunctive suits to remedy prison conditions prospectively now confront new barriers imposed by the Prison Litigation Reform Act of 1996.

As pointed out by Stephen Donaldson, the late president of Stop Rape Now, we cannot afford to return to the community brutalized and enraged prisoners — for “today’s victim is tomorrow’s predator.” If not for reasons of simple humanity and legality, then on grounds of self-protection, society must commit to ending the present appalling situation.

Vivian Berger is professor emerita at Columbia Law School. This article originally appeared in The National Law Journal.

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