Cruel and unusual punishment in United States prisons: sexual harassment among male inmates.

• Author: Robertson, James E.

The minute I walked in[to the prison] there was this uproar. They [inmates] hollered obscenities and all sorts of names. They [officers] told me to walk down the middle of this line like I was on exhibition. I was shaking in my boots. They were screaming things like, "That is for me," and "This one won't take long, he will be easy." And, "Look at her eyes." I had no idea of what to do with that. I was scared.(1)

1. INTRODUCTION

   Sexual harassment is not locked out of prison. Among male inmates it is commonplace and often involves the doing of other inmates.(2) Like the sexual harassment of women,(3) sexual harassment among male inmates is unwanted, offensive, and frequently results in acute fear of sexual assault.(4) Consequently, one penal expert states that sexual harassment of inmates "constitute[s] one of the most crippling aspects of the prison climate."(5) Nonetheless, many prison officials are incapable or unwilling to reasonably safeguard targeted inmates.(6)

   Only in this decade have a few federal courts acknowledged that the sexual harassment of inmates by prison staff constitutes a constitutional tort.(7) They have yet to expressly address whether prison staff are constitutionally obligated to safeguard inmates from sexual harassment by other inmates.(8) The absence of case law is remarkable given the frequency of sexual harassment among male inmates,(9) its harmful consequences,(10) and the expansion of inmates' rights,(11)

   This Article advances the following theses: the Eighth Amendment(12) imposes upon prison staff a constitutional duty not to be deliberately indifferent to sexual harassment among male inmates;(13) and conditions within many prisons suggest that this duty is frequently ignored. Part II of the Article defines sexual harassment among male inmates, delineates its causes and frequency, and profiles the victims and victimizers. Part III reviews the extant case law on sexual harassment of male inmates, which thus far is factually limited to the targeting of inmates by correctional officers. After describing the constitutional duty to safeguard inmates from harm, Part IV demonstrates the following: sexual harassment among male inmates can inflict the type and degree of injury prohibited by the Eighth Amendment; and prison officials know of and often tolerate pervasive sexual harassment. Part V advances structural remedies for combating sexual harassment in prisons and closes with a summary of the Article.

2. A PORTRAIT OF INMATE SEXUAL HARASSMENT

   1. Defining Sexual Harassment in the Prison Setting

      1. Title VII and Inmate Sexual Harassment

      Title VII of the Civil Rights Act of 1964 defines sexual harassment as follows:

      Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose ... or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.(14) Title VII solely addresses workplace harassment and thus does not provide a remedy for inmates sexually harassed by other inmates.(15) Nonetheless, prisons and the workplace bear certain similarities that invite comparable definitions of sexual harassment.

      Like many corporate workplaces, prisons are highly stratified given the immutable distinction between the correctional staff ("the keepers") and the inmate population ("the kept").(16) Thus, prisons readily breed conduct resembling Title VII quid pro quo harassment, in which a superior pressures a subordinate to concede to his or her sexual demands.(17) The facts of Thomas v. District of Columbia(18) illustrate quid pro quo harassment in prison: a correctional officer allegedly sought to coerce the plaintiff-inmate into sexual relations by threatening to label him a "snitch."(19)

      Prisons, like the workplace, also create environments conducive to same-sex harassment.(20) Indeed, the inmate subculture includes sex roles grounded in aggression--such as the "pitcher" and "daddy"--and submission--such as the "punk" and "fag."(21) For inmates assigned to the latter roles,(22) prison life resembles the Supreme Court's' description of hostile environment harassment--an environment "permeated with discriminatory intimidation, ridicule, and insult."(23) The following is illustrative:

      Well, the guys [i.e., other inmates], all of them, they have to walk in a single file, and when they go by, it has to be my cell--at least three times a day. And so they would kiss at me and they would tell me they wanted to have me and some of them would really get right down on me and say they want to fuck me and everything like that.(24) 2. The Constituent Elements of inmate Sexual Harassment

      Sexual harassment among male inmates consists of uninvited sexual comments or conduct made by and directed at male inmates that would be perceived by reasonable male inmates as offensive and/or coercive.(25) Four key elements constitute the above definition. First, target selection is sexual in nature but not necessarily sex-based: while the subject matter is sexual--such as the overt or implicit references to fellatio and/or anal sex--the victim is usually not selected because of his sex.(26) Most sexual aggressors in prison are neither homosexual nor bisexual; they are heterosexuals who define sexual aggression as affirmation of heterosexuality even though their victims are of the same sex.(27) It is this component that fundamentally distinguishes sexual harassment among male inmates from opposite-sex harassment.(28)

      Second, sexual harassment in prison almost invariably arises from a premeditated desire to humiliate, intimidate, and/or coerce inmates.(29) Unlike opposite-sex harassment, it cannot be attributed to miscommunication born from gender socialization.(30)

      The third distinguishing feature is its non-consensual nature; the victim neither requests nor invites this conduct.(31) As unwelcome conduct, sexual harassment among male inmates parallels Title VII sexual harassment.(32)

      The final element posits that a reasonable male inmate would consider the words or conduct offensive and/or coercive. Because incarceration heightens a man's sensitivity to words and conduct that impugn his masculinity, sexual harassment in prison should not be gauged by a gender-neutral, reasonable person standard.(33) Correspondingly, the Ninth Circuit Court of Appeals employed a reasonable woman standard in a Title VII opposite-sex harassment suit because men and women can disagree as to what is offensive.(34)

   2. Types of Inmate Sexual Harassment

      1. Verbal Harassment

         1. Statements Which Feminize the Inmate

            The first type of sexual harassment consists of comments intended to feminize the target and are thus offensive to most inmates.(35) Such comments include: "Guys would whistle at me or say I got a nice ass ..."(36) and "You are cute."(37) Feminization of inmates allows predatory heterosexual inmates to rationalize the sexual victimization of other men.(38)

         2. Sexual Propositions

            Most inmates define themselves as heterosexual.(39) Consequently, propositions for sex, even if they are politely presented, are likely to be offensive to a reasonable inmate.(40) Unless they are forcefully rebutted, propositions can mark the targeted inmate as a homosexual.(41)

         3. Sexual Extortion

            One variation of sexual extortion occurs when an inmate pressures another inmate to pay a debt via a sexual act. As one inmate confided: "I owed this guy gambling losses and he has supplied me with some pot, cigarettes, and other things--now he told me I could settle the account by giving him some head."(42) First-time inmates are particularly susceptible to this type of sexual extortion; predatory inmates offer them "loans" upon their arrival and they soon find themselves unable to honor their debts.(43) Another variation of sexual extortion involves pressuring an inmate to submit to sexual acts in exchange for protection from other victimizers. In the parlance of the prison, these victims are "kids" or "punks"--heterosexual inmates who become "sex slaves."(44)

      2. Physical Harassment, i.e., Kissing, Touching, or Fondling Intimate Body Areas

         In an atmosphere charged with suspicion and fear of aggression,(45) inmates often perceive touching and grabbing as sexual. As one inmate recounted, "He kept putting his hands on me and he was touching my shoulder and arm, patting my hand and constantly around, ridiculous crap. But enough so it would be aggravating."(46) Acts such as these are rarely mistaken for expressions of genuine caring or concern: "You can't be sensitive in here. That or being kind is a sign of weakness. When you see someone who is emotional or kind, he is a mark.... You gotta be hard."(47) Furthermore, sexual aggressors sometimes communicate by bodily contact because of limited verbal skills and/or a reluctance to overtly display force.(48)

   3. Explaining Inmate Sexual Harassment

      Sexual harassment among male inmates, like other inmate behavior, can be attributed to the conditions of confinement as well as the cultural and subcultural values that inmates bring with them to prison.(49) These two causal factors share a common theme: that sexual harassment among male inmates is an act of sexual aggression born from a need to dominate others.(50)

      An inmate confined in California's Soledad Prison observed, "Not only is the State of California going to take away your freedom, but also your manhood ...."(51) Imprisonment represents more than the loss of freedom; it also diminishes you as an adult male. As one commentator wrote, "[T]he prisoner's masculinity is in fact besieged from every side...."(52)

      In his classic study of a maximum...