47 Pages Posted: 21 Feb 2006
Sex in prison is a peculiar product of the carceral environment, and far more complicated than suggested by the paradigmatic account of prison rape. That account posits predator and prey: a cruel, sadistic perpetrator who manipulates or violently overpowers a vulnerable victim. This standard narrative exaggerates the extent to which prison sex is coerced through direct physical violence. Further, this account does not situate sexual abuse as a problem of the prison, except to the extent that prisons are blamed for not being prisonly enough: not surveilling enough, not controlling inmates enough, not punishing cruel and sadistic men enough. In fact, as argued in Part I of this Article, prisons produce sexual coercion in significant ways. Part II considers prisoners' efforts to use law to gain sexual safety inside the prison, efforts that have been largely unsuccessful. This legal failure is due in part to a conceptual dichotomy between legal punishment, conceived as an abstract deprivation of rights, and real-world prison practices. This dichotomy underlies Eighth Amendment doctrine and leaves prison conditions largely outside the reach of the constitutional prohibition of "cruel and unusual punishments." Furthermore, current discussions of male prisoner rape have paid little heed to the feminist scholarship on rape law reform. At least two broad insights of the feminist critique of rape law seem particularly critical: First, rape reform literature emphasizes that the wrong of rape is a violation of individual autonomy and personal agency. Second, attempts to protect sexual autonomy require attention to the context in which sex takes place and sexual choices are made. In the context of these feminist insights, Part III of this Article examines critically the Prison Rape Elimination Act and its approach to reform. Although the Act brings public attention to the most violent prison rapes and may produce marginal improvements, it fails either to recognize the complicated forms of sexual coercion or to address the underlying structural problems with the prison. Prosecutions of prison rapists and increased surveillance in prisons are central to the PREA's reform approach. But sexual coercion in prisons is a product of institutions that discipline and punish; we are unlikely to eliminate such coercion with still more discipline and still more punishment.
Keywords: punishment, criminal law, prisons, Eighth Amendment, rape, legal theory, feminism
Suggested Citation: Suggested Citation
Ristroph, Alice, Sexual Punishments. Columbia Journal of Gender and Law, Vol. 15, No. 139, 2006; Utah Legal Studies Paper No. 05-36. Available at SSRN: https://ssrn.com/abstract=883737