Prison Sex

I've always had a less stringently minimalist reading of the Constitution than weblogger extraordinaire Radley Balko, and we've argued about it in the past, but I think he really goes off the rails in a recent TechCentralStation piece on federal legislation aimed at curbing prison rapes.

The argument for federal involvement is that the constitutional prohibition on "cruel and unusual punishment" (and perhaps also the "equal protection" requirement, to the extent that the discretion of prison officials or the character of the particular prison determines who shall be protected from his fellow inmates) as incorporated by the 14th Amendment empowers the feds to protect the civil rights of citizens against state incursion. Radley's counter runs as follows:

[T]he Eighth Amendment protects us from state-imposed cruel and unusual punishment. I'm relatively certain that no state explicitly sentences convicted felons to prison rape. Rather, felons are sentenced to prison, where rapes sometimes occur…. What the states are guilty of, then, is poorly policing an act that all of them have defined as a crime. At worst, they're guilty of looking the other way when the crime occurs.

This approach takes formalism just a notch too far. If the guarantees of the Bill of Rights apply only to the laws on the books, but are impotent in the face of abuses on the ground that states permit without explicitly authorizing, they are rendered quite toothless. Recall, after all, that the motive for the 14th Amendment was the protection of African Americans against state discrimination, which as often as not took the form of disparate enforcement of the laws. Does anyone think the demand for equal protection is satisfied if a state formally bans the murder of any person, but never enforces that law against the white killers of black citizens?

Certainly, there's a slippery slope objection for the federalist to offer here, and Radley makes it. But I think we can draw a distinction between the systematic failure to protect inmates against rape and the much more vague superset of instances of "bad policing." In the case of prisons, the state is at least a partial agent of the harm: It establishes the prisons in which convicts are confined and removes the ability of inmates to defend themselves against the felons with whom they're compelled to coexist. You don't get to throw someone naked into a pit of bengal tigers and then proclaim, with a look of wide eyed innocence, that it's nothing to do with you if the guy gets mauled to death.

Jesse Walker wrote about this issue back in August.

Comments

[Steve in CO]

It disgusts me to no end when prison rape jokes aren't seen for what they are. Condoning horrible violence because of the less-than-human perspective many have towards inmates. And when prosecutors and police use this implied "part of the punishment," idea of being sodomized while in jail to coerce cooperation from suspects, I feel that they themselves are criminally negligent.

[digamma]

I totally agree with Sanchez, and I posted a comment on TheAgitator which apparently got lost with all the other comments on that thread.

Balko's slippery slope argument makes very little sense to me, since the Eighth Amendment only applies to punishments. I'm not a fan of "positive rights", but if the government locks you in a place where you can't, for example, buy your own food, it's cruel not to provide it to you. Another of those rights is protection from violence.

But hey, it's not the most ridiculous thing written about prison rape this week.

[Radley Balko]

I'm not sure felons have the same set of rights regular citizens do, which is why I think this case is different from race-oriented civil rights cases. But to push the point a little, where do you draw the line? What if the states are policing a particular crime, but are only doing a lackluster job of it? Should the feds be able to press charges each time they don't like the outcome of a state criminal trial (Rodney King)?

The "state as an agent of the harm" point is a fair criticism of my position, and at least distinguishes prison rape from Morrison.

But are you prepared then to make prison rape a federal crime? If you're ready to bring U.S. attorneys in to prosecute prison assaults, then I'll concede the point.

But it seems awfully half-assed to merely set up a federal advisory panel, and throw more money at the states.

[fyodor]

Radley,

I don't understand. Are you saying that Federal involvement is entirely out of bounds constitutionally speaking, or are you just saying it's not a very effective solution?

[LauraN]

Simple, really - prisoners can be and often are charged with crimes they commit in prison. The charge may only result in a classification to a higher security facility (where they can then be the "fresh meat") but something is done. Rape is a crime. It should be punished. Frankly, it isn't that hard to know who the culprits are and they ought to be placed in their own "buggery" ward where they may do what they like to each other.

My other concern on this topic is that of AIDS and other disease - while we may not be entirely certain of how to stop prison rape, should we not be concerned that they at least be prevented from subjection to the infliction of a terminal disease while incarcerated? That would be the leg that I would stand on if I were to present the argument.

[John Coleman]

It seems to me the key to this argument is moderation. Certainly, as Julian (and I must admit I agree) would contend "you cannot throw someone naked into a pit of bengal tigers and then proclaim, with a look of wide eyed innocence, that it's nothing to do with you if the guy gets mauled to death." However, if you follow the slippery slope in the other direction you are still faced with a different dillemma. At some point, the cost of enforcing laws concerning prison rape becomes greater (in terms of dollars and escalated federal control) than the benefit, and like anything else, once we begin to federally legislate or otherwise centralize control of enforcement, additional powers are bound to be usurped at additional expense. While the state has some responsibility to the safety of prisoners, it is also safe to assume that a prison environent will always have increased risk, no matter what level of enforcement, and if we open the door too far (say, allowing lawsuits against the state should a prisoner be infected with the death sentence of AIDS, prison costs and controls could become even more unmanageable than they already are. I have to agree with Radley (or at least he alludes to believe) that to some extent, inmates are subject to a different set of rights, and I think that must be the case if we are to have any semblance of restraint in the criminal justice system. But then again, I am no expert on this and the entire topic is such a solemn subject and difficult situation to handle.

[joe]

Channeling my inner libetarian...

Human beings have the right to defend themselves, with rocket launchers and germ bombs if need be. When the State takes this right away from prisoners, it imposes on itself a responsibility (must be fuzzy reception to use that word, but you know what I mean) to take on that defense.

[EgoLadenDilettanteGuy]

digamma,
I'd like to know what so ridiculous about Derb's suggestion that **a** factor in the rise of prison rape has been the tearing down of the very strong social taboo on male-male buggery. It makes perfect sense to me--after all, we don't put men and women prisoners together for pretty obvious reasons. Or do you just not like people calling it buggery? Well substitute (happy, happy) gay sex for buggery, then explain.

[thoreau]

Well, I'm all for getting tougher on inmates who commit violent crimes against other people, including other inmates.

I confess to having doubts that a federal law to "study the problem", "examine programs", and (of course) "more funding" will do much to solve it. I'm not one of those federalists who lives in constant fear that the federal government might now and then force states to respect the basic liberties of their citizens (include the liberty to be free from rape). I'm just a pragmatist who doesn't say "Hey, problem solved!" whenever we appoint a commission to study the problem, recommend programs, and dole out funds.

That said, I'm not a priori against this law. I don't know enough to oppose it, but until I know more I am skeptical (and I'd say skepticism of a new law is a respectable libertarian position).

And I have no qualms about preventing prison rape. I'm not naive enough to think that cracking down on prison rape will change prisons from places of horror to models of rehabilitation, releasing into society people who have been purged of all violent and larcenous impulses. But rape (of any sort) has never made a person more emotionally stable, so prison rape certainly isn't going to make prisons any better at the task of rehabilitation.

[digamma]

But are you prepared then to make prison rape a federal crime?

No. But states should be required to have some semblance of equal enforcement. I feel fairly confident that if I get raped on my way home from work today, my state will take some actions on my behalf - cops will intervene if they see it happening, and if they don't, they'll put some effort into catching the perp. If I get imprisoned tonight, I have very little confidence that anyone will care if I get raped in prison.

I'd like to know what so ridiculous about Derb's suggestion that **a** factor in the rise of prison rape has been the tearing down of the very strong social taboo on male-male buggery.

Well, that "**a**" is a rhetorical trapdoor through which his argument can escape any scrutiny. I guess I thought it was funny because it was true to Derbyshire's absolute obsession with "buggery", as parodied in The Corndog.

[Don]

"Human beings have the right to defend themselves, with rocket launchers and germ bombs if need be. When the State takes this right away from prisoners, it imposes on itself a responsibility (must be fuzzy reception to use that word, but you know what I mean) to take on that defense."

Indeed. And when the state takes the right of defense from normal citizens, it also takes on this responsibility, but then it ducks out of the responsibility--too expensive, dig? Can't assign a policeman to everyone, etc.

[dhex]

if there were an equal or even higher reportage of prisoner on prisoner rape in female prisons - seeing as even sexualized lesbianism of a certain stripe is extremely acceptable in the media, compared to it's asexually flamboyant male counterpart - there might be something to the notion. right now it seems more along the lines of that conservative sex magick theory that santorum and his occultnik pals dig so much - i.e. the sex practices of gays have a concrete effect on the population REMOTELY, and incidents of sodomy in texas negatively affect the lives of straight people in ohio, etc.

would another explanation would be to point to the increased rate of reportage as a result of less stigma against homosexuality, perhaps?

[fyodor]

Re the male-male buggery taboo thing. Maybe Derbyshire's being loose with his chronology, but as I understand a "generation" to mean 25 years, he's clearly off base to claim that prison rape was "unknown a generation ago." I know I first heard about it from a TV show called Scared Straight that aired sometime in the seventies. Unless it was 1979, that adds up to a full generation ago. Plus, just because it may have been unknown to the general populace before that, that doesn't mean it didn't in fact happen.

[EgoLadenDilettanteGuy]

"Well, that "**a**" is a rhetorical trapdoor through which his argument can escape any scrutiny. I guess I thought it was funny because it was true to Derbyshire's absolute obsession with "buggery", as parodied in The Corndog."

Bosh, digamma: "**a** factor" just means "a considerable factor but not the only factor".
So scrutinize it then. You still didn't tell me why it's ridiculous except, well, if he was parodied in The Corndog, (what?) a two years ago, he must have an absolute obsession. It seems sexual libertines always accuse people of having "obsessions" with sex, who don't necessarily think a good idea the untramelled right to go around boinking everyone and everything as fancy takes them. Who's obsessed with buggery--the guy who buggers his unwilling cellmate daily, or the columnist who writes about it once or twice a year?

[joe]

ELDG, do you read NRO at all? Derb is really in a league of his own.

[dhex]

a good portion of the population cannot understand the difference between consensual and non-consensual acts of sex. it is theorized the more obsessive of the sexual unlibertines are merely attemptly to deal with their own supressed desires but losing the overall battle to eros unbound.

i don't think every single person who opposes gay rights, for example, is a repressed homosexual. but there are certain voices, especially amongst very different christian groups, which have an obsessiveness with the topic and in particular details and practices in a manner not often found outside pornography. perhaps if they lived in a world or culture where they could suck a little dick here and there they might not be so obsessively interested in controlling the sex lives of others.

[joe]

chicken-egg

Did Christianity's sexual repression lead to a celibate clergy, or did the celibate clergy impose sexual repression?

[Mo]

The greed of the Catholic church led to a celibate clergy. They didn't want priests to have heirs to will their worldly possesions to, so celibacy became the rule.

[joe]

But it's my understanding that celibacy was at least encouraged among priests prior to its adoption as the rule, with celibates more likely to be promoted - as it still is in the Orthodox tradition.

[$.02 spender]

I don't know about all that, but I think they should take the weight training equipment out of prisons, and institute an all you can eat policy of ring dings, hohos, and Dr. Pepper, with manditory time each day in a Barka Lounger.

Horney or not, they'd all be easier to control if they were fat couch potatoes.

[Julian Sanchez]

(1) Lemme second that. Derb seems to spend far more time thinking about male-male anal intercourse than any of the gay men I know.

(2) It's silly because in societies /without/ open discussion of gay rights there's always been what's often termed "opportunistic homosexuality." If anything, the very concept of a homosexual identity, often alien in those cultures, might well deter such acts by men who worry that they'll be considered (or that they might in fact be) gay if they have gay sex.

[Warren]

digamma,
Thanks for posting the Corndog link. Great piece of parody that helps me laugh at the otherwise terrifying folks at NRO

[dhex]

speaking of which, when is reason going to blog about the whole down low bareback thing?

[Dan]

When the State takes [the right of self-defense] away from prisoners, it imposes on itself a responsibility (must be fuzzy reception to use that word, but you know what I mean) to take on that defense.

We all have a right to use force, whether against people or property, under certain circumstances (typically in self-defense). What is the appropriate punishment for abusing our right to use force? It has been argued, and I mostly agree, that the reasonable punishment is that we forfeit the right to use force, either permanently or for a period of time.

I would argue that neither thieves nor violent criminals have any right to self-defense; thus, the state has not taken away any of their rights, and is under no obligation to provide a replacement for those rights. We, as a society, choose to provide prisoners with some degree of protection purely out of compassion and self-interest.

The state still has an obligation to protect perpetrators of "victimless crimes", however. In my opinion either by establishing separate prisons for them, or better yet by repealing the laws that made their conduct illegal.

In any event, I fail to see how prison rape can be dealt with without spending a great deal more money. I don't think it's worth it; if we're going to spend more money to prevent crime, I'd prefer we spent it on police, not prison guards.

Maybe in the near future we'll have a safe, effective, and reversible means of rendering men impotent for the duration of their prison stay. That would solve the problem with out too much hassle, I imagine. Or make all in-prison violent crime punishable my death, maybe.

[Dan]

i don't think every single person who opposes gay rights, for example, is a repressed homosexual. but there are certain voices, especially amongst very different christian groups, which have an obsessiveness with the topic and in particular details and practices in a manner not often found outside pornography.

In the 18th and 19th centuries, anti-slavery tracts and books typically went into exhaustive, repetitive detail about the conditions slaves lived under; about the beatings, the torture, the forced sex, the backbreaking work, etc.

Does that mean those people secretly wanted to keep slaves? Or does it perhaps mean that the writers found slavery morally repugnant, and wanted to display it, in all its horrifying detail, for like-minded people to see?

I don't think there's anything the slightest bit wrong with homosexuality; disliking homosexuals makes as much sense to me as disliking people for having green eyes. But people like John Derbyshire and Pat Robertson think homosexuality is deeply morally repugnant. There are a lot of people who agree with them, and for those people hearing the "dirty details" on a regular basis serves as a daily reminder of the (from their point of view) utter moral depravity of anyone who supports "the homosexual agenda". It has nothing whatsoever to do with repressed homosexuality.

[thoreau]

Dan said:
I would argue that neither thieves nor violent criminals have any right to self-defense; thus, the state has not taken away any of their rights, and is under no obligation to provide a replacement for those rights. We, as a society, choose to provide prisoners with some degree of protection purely out of compassion and self-interest.

Are you saying that it doesn't matter if inmates are raped?

I think I can agree that inmates lose their right to use force, at least during their time in prison. (I can hear all sorts of people objecting right now, something thinking the qualifiers in that sentence mean I'm too soft on criminals and others saying I'm too mean, but just bear with me for a moment.)

Losing the right to use force does not automatically give somebody else the right to use force on you. The government has the right to use force on somebody convicted of a crime, coercing him to go to a prison cell and remain there for some duration (insert caveat that I'm talking about real crimes against people and property, not defending some of our bad laws). That doesn't mean you or I can walk into the prison and assault the prisoners. And it certainly doesn't mean that a prisoner can use force on another prisoner.

So you could argue that prison rape isn't even about an inmate's rights or lack of rights. Rather, it's about the other inmate not having the right to commit rape. (I can hear all sorts of objections, "What? No right not to be raped?" I'm just arguing from Dan's premise that inmates have no right to self-defense and pointing out that the other inmates still have no right to rape.)

Anyway, seems to me that cracking down on prison rape isn't a purely compassionate act (although there is a compassionate element), it's also just a basic law-and-order stance: The inmate had no right to commit rape, and on the off-chance that he's ever going to be released from prison we certainly don't want him acquiring the notion that rape is OK.

[Eric the .5b]

Dan:
I would argue that neither thieves nor violent criminals have any right to self-defense; thus, the state has not taken away any of their rights, and is under no obligation to provide a replacement for those rights. We, as a society, choose to provide prisoners with some degree of protection purely out of compassion and self-interest.

One could just as easily argue that a convict's right to eat has evaporated. However, in a constitutional society where punishments like executation by starvation or brutality and rape are both forbidden to the government to use upon thieves and other criminals, such an argument has absolutely no application.

[Skeptikos]

Having a number of law enforcement employees here in Illinois as well as on the fed level as freinds, I can say that over beer, I have had it admitted to me, in excess of well over 40 times in the last 2 years alone, that law enforcement personal regularly use the ?we?ll put you in a cell with Bruno, see how you like that? in interrogations on a regular basis. In essence making the prison rape issue a punishment rather than a random, accidental occurrence. I cannot find it in my archives at present, but within the past 3 years I have a number of quotes from states attorneys, in which they were even willing to make similar statements to the press. It is a rather short step to wonder, possibly even believe that prison rapes may be an encouraged part of the penal system. Which definitely does make it a constitutional violation. But perhaps more importantly is the reason that we should worry, not just because of the old Aristotelian reference that we should fear it happening to us, but, most prisoners are eventually released, and do we really want our prisons to be Universities for violent sexual behavior? While I personally appreciate violent sex, I am het, and believe it is only in a voluntary placement of such behaviors that it becomes acceptable, inflicting that on the unwilling creates dangerous cases of sociopathy and psychosis, which will, eventually, be inflicted on society at large. We live in a closed system, and shitting in your ?bedroom? is never a good idea, unless you have installed a toilet. Unfortunately most humanoids still revel in the joy of revenge and brutality, without realizing the potential results.

[digamma]

The magnum opus on buggery.

[Anonymous]

Derbyshire's magnum opus on buggery.

[dhex]

dan:

the jimmy swaggart phenomenon didn't exist for slavery. and slavery, unlike homosexuality, isn't something people can dabble in (though i wouldn't be very surprised if there were some undertones of miscentagation and S&M in more than a few minds.)

the reason i think it's a motivation for some is the utterly insane fixation on anal sex, on poop, fringe stuff like fisting, etc. it's the squeamishness of the voyeur...breathless moral outrage. verbally sadistic forplay for the closet set.

or perhaps i am just so completely unable to understand why anyone could give a rats ass about the consensual sex acts of others, regardless of their tone. it's like being very angry about what color car your neighbor buys.

and derbyshire's crazy - lesbians have had the biggest impact -at least on american culture- of any fringe sex group ever. we can blame howard stern for that, in part. (or thank him - it may be the only useful thing he's ever accomplished, if only by accident)

[joe]

dhex, I think repressed homosexuality explains very little of the homophobia that's out there (though it probably plays a role in the most violent, fringe stuff). Far more common is guilt over how one treats/perceived women, and fear that being the object of male desire will lead to one being treated that way. Feminist men are very rarely homophobes.

[Don]

"dhex, I think repressed homosexuality explains very little of the homophobia that's out there (though it probably plays a role in the most violent, fringe stuff)."

I sorta agree. I would say that there really isn't a phobia called homophobia, at all. Frankly, I don't buy the "repressed homosexuality argument at all.

"Far more common is guilt over how one treats/perceived women, and fear that being the object of male desire will lead to one being treated that way."

Again, I sorta agree. I'd say that it is disgusting for a male to be the sexually submissive partner. There just is something about that that isn't right to me. It isn't a fear, but a feeling of disgust. Consequently, it isn't anal sex or homosexuality that the issue; its male sexual submission.

"Feminist men are very rarely homophobes."

Well, they damn well understand that they are not supposed to be--so you would expect them to not act like "homophobes". I suppose that it also might be that "feminist men" don't have any feelings of the female partner being submissive.

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