Christopher L. Peretti, Aligning the Eighth Amendment With International Norms to Develop a Stronger Standard for Challenging the Prison Rape Epidemic

• Citation: Vol. 21 No. 2
• Publication year: 2007

ALIGNING THE EIGHTH AMENDMENT WITH INTERNATIONAL NORMS TO DEVELOP A STRONGER STANDARD FOR CHALLENGING THE PRISON RAPE EPIDEMIC

INTRODUCTION

For an untold number of prisoners in our country, the punishment for committing a crime extends far beyond being locked away from the rest of society. Many of the United States' prisons and jails are dangerous places housing violent criminals,¹and often inmates suffer the additional punishment of becoming victims of sexual assault by other inmates. According to one Texas prisoner, his sentence unsuspectingly included being "savagely raped, and tortured, mentally, to the point of contemplating suicide."²Homosexual rape in prison may be one of the nation's oldest and darkest secrets, but it is alive and well in prisons, jails, and juvenile detention centers across the country.³Congress recently made an initial effort to address the problem with the passage of the Prison Rape Elimination Act of 2003.⁴While this Act demonstrates an acknowledgment of the prison rape crisis and a desire to end it, it fails to offer protection or redress for victimized inmates.⁵

In addition to implicating statutory initiatives like the Prison Rape Elimination Act, prison rape may violate the Eighth Amendment's prohibition on cruel and unusual punishment.⁶The Supreme Court has unequivocally declared that inmates have a right to be protected by prison officials from violent acts, including sexual assaults, committed by other inmates.⁷The

Court has ruled that the "deliberate indifference" standard will be used to determine whether a sexual assault by another inmate has violated an inmate's Eighth Amendment rights.⁸The Court's current interpretation of this standard requires a determination of the subjective mindset of prison officials.⁹

Unfortunately for inmates, this subjective standard encourages prison officials to ignore the risk of inmate-on-inmate rape and offers weak protections and difficulty obtaining redress for a victimized inmate.¹⁰

This Comment argues that international human rights norms and standards present an alternative guide to dealing with the prison rape epidemic, one that better captures the nature of prison rape not as an impermissible "punishment," but as a form of torture. Inmate rape is akin to torture because of its devastating effects on the mental and physical well-being of the victim, its purpose, and its execution, as defined by international standards.¹¹Were the

United States to develop a new interpretation of the Eighth Amendment incorporating international norms, it could develop stronger protections against prison rape.

Part I presents a general overview of male inmate-on-inmate prison rape.¹²

It is helpful to have an understanding about the types of inmates who are targeted and the severity of the harm rape inflicts on the victims before analyzing the latter issues. Part II details recent Eighth Amendment jurisprudence involving the interpretation and application of the "deliberate indifference" standard. This section demonstrates that the Supreme Court's present standard serves to promote ignorance on the part of prison officials toward the risks of sexual assault facing an inmate. Part III discusses international treaties and standards for the treatment of prisoners, focusing on the prevention of the torture of inmates and highlighting areas where other nations have taken steps to prevent prison rape. Part IV turns to the definition of rape as torture in the international community. This section contrasts the international interpretation of torture with the United States' view of both torture and the Eighth Amendment to show how the United States provides lesser protections for inmates. The United States should incorporate the international standards defining certain rapes as torture into its own Eighth Amendment jurisprudence, which would allow for stronger protections for inmates subjected to the risks of prison rape.

I. PRISON RAPE: A SERIOUS EPIDEMIC

According to the recently passed Prison Rape Elimination Act, thirteen percent of all prison inmates have been the victim of sexual assault at least once during their period of incarceration.¹³This is likely a conservative estimate, as rape in general, and particularly in prison, is an underreported crime.¹⁴A comprehensive study of three Nebraska prisons found that over twenty-two percent of male inmates in that state had engaged in sexual contact against their will.¹⁵A similar survey of inmates in seven prison facilities in four states showed that about one in five inmates had experienced at least one incident of pressured or forced sexual contact while behind bars.¹⁶

A. Certain Inmates Face a Particular Risk of Rape

From the day he sets foot in the penitentiary, the male inmate faces the possibility of sexual assault at the hands of another inmate or group of inmates.¹⁷There are certain inmates, however, who have a higher probability of being attacked. Sexual predators look for vulnerable inmates upon whom to prey.¹⁸The most vulnerable inmates usually are "young, nonviolent, first-time offenders who are small, weak, shy, gay or effeminate, and inexperienced in the ways of prison life."¹⁹The classic example of an obvious sexual assault target is Dee Farmer, the inmate whose litigation led to the current Supreme Court's definition of the "deliberate indifference" standard.²⁰Farmer was a preoperative transsexual with breast implants who looked young and had many feminine characteristics.²¹Within two weeks of arriving at a maximum- security federal prison, Farmer was savagely beaten and raped in his own cell by another inmate.²²

Often an inmate's physical characteristics immediately indicate to a predator that an inmate is particularly vulnerable.²³As in Farmer's case, inmates who have feminine characteristics are at a severe risk of sexual assault.²⁴An inmate's "aura of femininity," which may include a high-pitched voice, youthful look, small build, feminine clothing or hairstyle, or open homosexuality,²⁵suggests to a predator prisoner that the inmate is available for sex.²⁶Younger prisoners also face a greater risk. Because these inmates' youthful features may correlate with femininity, physical weakness, or inexperience with respect to prison life, they are extremely vulnerable to sexual assault.²⁷Physically smaller inmates are also in great danger of being victimized in prison, as they are less able to defend themselves against any physical attack.²⁸

An inmate's prior prison experience and personal history are also strong factors in determining whether he will be the target of a sexual assault. New "fish"²⁹entering prison for the first time might not know the system and are often unaware of the unwritten "rules of the game."³⁰A sexual predator may give a new inmate some cigarettes or candy with the expectation of sexual favors in the future. The new inmate, unaware that there is nothing free in prison, may unsuspectingly take the "gift."³¹Or, lacking friends and allies for protection, a new inmate may be threatened with physical violence if he does not submit to sexual acts.³²Describing what life is like for a new inmate, an Arkansas prisoner told Human Rights Watch that "[u]nless the new arrival is strong, ugly, and efficient at violence, they are subject to get seduced, coerced, or raped."³³Additionally, inmates who come from middle- or upper-class backgrounds usually are not "street-wise," do not possess personal combat skills, and are unfamiliar with life in confinement,³⁴making them even more vulnerable.

Prisoners who possess any one of these physical characteristics or personal histories are generally more likely than other inmates to be subject to prison rape.³⁵Inmates who possess multiple characteristics are significantly more likely to be targeted by sexual predators.³⁶Prison officials who witness prison life daily understand these inmate dynamics, as well as the reality that there are some prisoners who are more susceptible to rape than others.³⁷Based on the common victim profile, prison officials-and even outside observers with minimal understanding of life behind bars-can predict with a high degree of accuracy which inmates will be victims of sexual assault.³⁸

Sheriff's Vans, in MALE RAPE: A CASEBOOK OF SEXUAL AGGRESSIONS 107, 115 (Anthony M. Scacco, Jr. ed.,

B. How Rapes in Prison Take Place

Sexual predators employ several different techniques to trap their victims.³⁹

The violent rape sensationalized by the media-the gang of inmates holding down a victim, taking turns forcibly sodomizing him while holding a prison- made shank to his throat-is perhaps most pervasive in the public imagination.⁴⁰Unfortunately, rapes involving inmate violence and weapons take place in prisons across the country and may leave victims "beaten, bloody and in the most extreme cases, dead."⁴¹Such rapes, however, are in the minority. Much more common are sexual assaults where violence is either threatened or implied or where inmates use coercion and psychological manipulation.⁴²

Sexual predators will often target inexperienced and vulnerable inmates and make them the victims of their psychological coercion and "mind games."⁴³A typical example occurs when a new inmate arrives at the detention center and a prisoner befriends him and offers him drugs, alcohol, or commissary items.⁴⁴The new inmate accepts these items, unaware that they come at a cost-potentially carrying a 100% weekly compounded interest rate.⁴⁵Once the new inmate has amassed a significant enough debt, the "friend" may allow the new inmate to submit to sexual acts in order to pay what he owes.⁴⁶A prisoner may also befriend a new inmate and allege that he is protecting him from other inmates, when in fact he has arranged with other inmates to claim this new "fish" as his property. The predator assumes a position of power over the new inmate and uses this power to coerce or force him to engage in sexual acts. Commonly, the predator will threaten to cease...