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"NOT PART OF THE PENALTY": Judicial Abdication Of Responsibility For Protecting Prisoners From Rape


Thursday, Apr. 19, 2001

Rape in prison is a terrifying and traumatic experience. It is an abuse that no inmate, whatever the reason for his incarceration, should have to endure. As the Supreme Court has emphasized, rape is simply "not part of the penalty that criminal offenders pay for their offenses."

Unfortunately, our justice system offers scant relief to sexually abused prisoners. Although inmates are, in principle, granted a degree of constitutional protection from harm, they face daunting obstacles to the assertion of their legal rights.

Rights Against Rape in Theory, But Not In Practice

In Farmer v. Brennan, a 1994 decision involving a transsexual inmate who sued prison authorities for failing to provide protection from rape, the Supreme Court recognized that prisoner-on-prisoner sexual exploitation is constitutionally unacceptable. Confirming the prior holdings of a number of lower courts, the Supreme Court held that a prison official violates the Eighth Amendment if, acting with deliberate indifference, he exposes a prisoner to a substantial risk of sexual assault.

Justice Clarence Thomas dissented. (Which came as no surprise. In his retrograde view, the Eighth Amendment should not be interpreted to cover any prison abuses. Instead, it only prohibits torturous punishments meted out by statute or by sentencing judges.) Justice Thomas apparently believes that rape in prison is inevitable. In his dissent, he stated that "[p]risons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, some level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated." (quotations omitted)

Although the law is set by the Court's majority, many lower court judges appear to hold views approaching those of Justice Thomas. Notwithstanding the relevant legal rules, many judges seem eager to abdicate responsibility for protecting prisoners from abuse. While they may be less explicit than Thomas in justifying their disregard of prisoners' claims of abuse, their actions, in case after case, reflect a similar bias.

Courts' Toleration of Prison Rape, and Official Indifference

Prisoners seeking recourse for violations of their constitutional rights — include the Eighth Amendment violations that occur if officials are deliberately indifferent to a prisoner's risk of rape — can file civil actions in federal court. Yet such cases rarely succeed. Having reviewed dozens of prisoners' legal filings in the course of research on prisoner-on-prisoner rape, I can attest that even the most compelling cases are unlikely to survive judicial scrutiny.

Why is that so? To begin with, prisoners are among the least lucrative of clients, and certainly the least sympathetic to juries, so that few lawyers are willing to litigate on their behalf. The vast majority of cases challenging prison abuses are thus filed by inmates acting pro se — in other words, on their own behalf. Often filing handwritten complaints that are scribbled and hard to decipher, and lacking knowledge of legal procedure, prisoners are easily tripped up and tricked by the law's procedural complexities. As a result, even cases challenging serious abuses in prison are frequently dismissed in the early stages of litigation.

Moreover, as Justice Thomas's words show, many federal judges view prisoners' legal claims with an extremely cynical eye. Perhaps they entirely disbelieve prisoners' complaints of abuse, preferring to focus their concern on the constraints under which correctional authorities operate. Perhaps they simply are — as Justice Thomas seems to be — resigned to tolerating prison violence and exploitation as somehow inevitable.

Their caution may, to some extent, reflect their belief that crucial policy and budgetary decisions affecting prison conditions are made elsewhere, and that guards and other officials should not be blamed for the predictable abuses that result. But the buck must stop somewhere. By such reasoning, the courts have ensured near-complete impunity for abuses.

Judicial Rationalizations for "Inevitable" Abuse

The reasoning behind the 1988 decision in Chandler v. Jones is indicative of the tendency — although in that case, the court's comments were more candid than most. The case involved an inmate who was sexually pressured and harassed after being transferred to a dangerous housing unit. The federal district court dismissed the case, explaining that "sexual harassment of inmates in prisons would appear to be a fact of life."

Absolving prison officials of responsibility for the prison's poor conditions, the court said that the officials at least "made the best of a bad situation." The decision reflects the notion — apparently deeply ingrained — that prison abuse is an inevitable truth officials cannot change.

The decision in Kish v. County of Milwaukee, issued in 1971 by the Seventh Circuit Court of Appeals, reflects similar thinking. Ruling against two inmates who were sexually assaulted, the court suggested that sexual assaults were frequent in the overcrowded jail under consideration, but that prison officials could not be blamed for the problem. As the court explained: "the assaults were a result of the physical layout and overcrowding of the jail, both matters beyond the control of the defendant."

The courts' tendency to overlook abuses is strongly reinforced by the requirement in such cases that prison officials have "actual knowledge" of the problem. Under this standard, unless the court finds that a prison official was personally aware of the plaintiff's risk of rape, it must rule in favor of the defendant. In other words, the legal standard allows court to dismiss even those cases in which the risk of rape would have been obvious to any reasonable person in the official's position.

Prisons as a Barometer

Not all federal judges are insensitive to prison abuses. Indeed, a few worthy efforts have been made to put a stop to prisoner-on-prisoner sexual abuse — most notably, the rulings in LaMarca v. Turner, issued in 1987 by a federal district court in the Southern District of Florida, and Redman v. County of San Diego, issued in 1990 by the Ninth Circuit Court of Appeals. Yet it is fair to say these rulings are the exception.

As many have noted, the state of a country's prisons is a telling indicator of its level of civilization. The barbarity of sexual assault in prison reflects poorly on our society, and on our courts.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She has visited scores of penal facilities in the United States and Latin America. Human Rights Watch's Report on prison rape, entitled No Escape: Male Rape in U.S. Prisons, was published today. More information on prison rape can also be found on Human Rights Watch's website.

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