Forecasting sexual abuse in prison: the prison subculture of masculinity as a backdrop for "deliberate indifference".

• Author: Man, Christopher D.

INTRODUCTION

On August 9, 1973, Stephen Donaldson, a Quaker peace activist, was arrested for trespassing after participating in a pray-in at the White House. (1) Upon refusing to post a ten-dollar bond on moral grounds, Donaldson was sent to a Washington, D.C. jail. (2) In the days that followed, Donaldson experienced a terror that is far too common for tens of thousands of inmates in American correctional institutions. (3) In the course of Donaldson's two nights behind bars, he was gang-raped approximately sixty times by numerous inmates. (4) Upon his release, Donaldson did what few others have the strength and courage to do: he spoke out. Donaldson was among the first survivors of jailhouse rape to come forward publicly to describe his abuse, launching a personal crusade to save other inmates from sexual victimization. (5) Donaldson later became President of Stop Prisoner Rape, a nonprofit organization that advocates for the protection of inmates from sexual assault and offers support to victims. (6) Sadly, Stephen Donaldson was unable to witness the fruits of his heroism because, on July 18, 1996, at the age of forty-nine, he passed away from infections complicated by AIDS after he contracted HIV through prisoner rape. (7)

In prisons across the country, many inmates face similar horrors every day. Sexual abuse in prison is one of America's oldest, darkest, and yet most open, secrets. (8) One former inmate recounted, "It is the rare convict who will never engage in homosexual acts." (9) In the vast majority of cases, mutual attraction or affection does not drive prison sexual relationships; rather, most sexual acts in prison are the coerced products of dominance, intimidation, and terror (10) Although the precise extent of prisoner-on-prisoner rape and sexual assault remains unknown, it is hard to dispute that rape occurs at an alarming and unacceptable rate in our prisons. The highest estimates of prisoner sexual assault are simply staggering. (11) Even the most conservative estimates leave little doubt that sexual abuse is rampant. (12) Simply put, the threat of sexual abuse is a reality of prison life. (13)

Although sexual abuse exists as an actual pain of imprisonment for many inmates, a state could not constitutionally sanctions such acts as punishment. (14) Yet, most prisons have steadfastly ignored the many possible reforms that could combat prisoner rape. Rudimentary humanity compels our society to do something. Successful litigation against prisons that fail to take adequate preventive measures may be the most effective way to stimulate reform.

In this Article, we offer guidance for inmates seeking to litigate against prison officials who condone and fail to prevent this sexual victimization. We endeavor for the practical, rather than solely theoretical, side of this issue, as we aim to sketch a litigation strategy for inmates victimized by sexual assault. In the pages that follow, we set forth the prevailing legal standard for bringing such claims, and articulate how commonplace prison circumstances tie into that standard. Under current jurisprudence, an inmate must show that prison officials knew that the victim was at risk to be raped and acted with deliberate indifference to that threat. In recent years, such lawsuits have been increasingly successful and, if prudently constructed, more should succeed in the future. The ultimate goal of these lawsuits is to induce prisons to adopt reforms that protect the rights of all inmates and diminish, if not eradicate, the horror of prisoner rape.

Our Article is focused on coerced sex between male inmates. We acknowledge that men are not the sole victims of prisoner sexual assault. Female inmates also face horrifying sexual abuse, often from the very individuals charged with ensuring their safety, prison guards. (15) Our focus on male inmates does not mean to trivialize the plights of female inmates. Quite the contrary, the rampant sexual abuse in female correctional institutions is a horrendous problem that must be addressed.

The reason for our limited scope is simple. Our analysis of prisoner rape relies on the unique dynamics of the subculture that pervades many male penal institutions. This subculture, which relies on an aggressive conception of masculinity, places the quest for power and dominance at the forefront. (16) Behind prison walls, male inmates are stripped of most traditional means of asserting their masculinity and, consequently, turn to intimidation and aggression. To be sure, this mindset often is responsible for men raping women, but outside the confines of an all-male prison population it rarely results in men raping other men. In a prison society where each of its members is male, many inmates seek to reestablish their sense of dominance by using rape as a means of forcing other men to assume a submissive role that is perceived as feminine within that society. By better understanding this dynamic of all-male prison populations, it becomes much easier to identify would be rapists and to profile their most likely victims.

Comprehension of the dynamics of this unique male prison subculture is critical for any constitutional analysis of prison rape claims. In the seminal case, Farmer v. Brennan, (17) the Supreme Court established "deliberate indifference" as the appropriate legal standard for Eighth Amendment claims against prison officials in prisoner rape litigation. The subculture of aggressive masculinity, which is openly known by inmates and prison officials alike, is a paramount factor for assessing whether prison officials acted with "deliberate indifference." More importantly, sexually victimized inmates can rely on this widely acknowledged subculture to litigate successful claims against prisons and prison officials.

We begin, in Part I, by presenting the Farmer standard of "deliberate indifference." After showing how courts have interpreted this standard, we proceed to examine the prison subculture, a subculture that lends to a fairly straightforward application of the Farmer standard. In Part II, we discuss the psychological dynamics of rape, and more specifically prisoner rape. We explain the prison subculture of aggressive masculinity, and demonstrate what institutional factors grounded in this subculture promote prisoner rape. This subculture elucidates our understanding of which inmates will commit sexual abuse and which inmates will be victimized.

In Part III, we move to a more concrete analysis of prisoner rape. Here, we discuss the specific characteristics that can be used to predict the sexual roles an inmate is likely to assume, or be forced to assume. By and large, sexual assault in prisons is predictable. Certain obvious and easily identifiable personal characteristics determine whether an inmate will become a "man," the sexual predator, or be "turned out" as a "punk," the victim of sexual assault. We show the relevance of forecasting prisoner rape in Part IV. Prison officials, who are intimately familiar with the prison subculture, are well aware of these indicators of victimization. Immediately upon incarceration, an official often knows whether an inmate is likely to be an aggressor or a victim. This knowledge should compel action, for failure to take measures to protect endangered inmates constitutes "deliberate indifference" to a clear danger. Prison officials who fail to take adequate preventive measures at this stage should be liable under Farmer.

1. THE APPLICABLE LEGAL STANDARD: "DELIBERATE INDIFFERENCE"

   Since the Supreme Court decided Farmer v. Brennan in 1994, the applicable legal standard for Eighth Amendment. (18) claims in prisoner rape cases has been clear and generally favorable to prisoner rape victims. (19) To establish an Eighth Amendment violation, the rape victim must satisfy a two-part test. First, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." (20) Second, the inmate must demonstrate that the responsible prison officials acted with "deliberate indifference" towards his health or safety in allowing those conditions to exist. (21) The first part of the test never posed much of a legal obstacle in prisoner rape cases because rape plainly is a serious harm. (22) The more difficult legal hurdle, at least before Farmer, was determining what was required by the "deliberate indifference" standard. (23) The Farmer decision clarified that the "deliberate indifference" standard does not place an insurmountable burden on prisoner rape victims. (24)

   Although the Supreme Court rejected an objective test for determining deliberate indifference that was advocated by the prisoner in Farmer, the Court emphasized that the subjective test that it adopted would not leave prison officials "free to ignore obvious dangers to inmates." (25) The Supreme Court defined deliberate indifference by holding that liability requires a showing that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." (26) The Supreme Court emphasized that a prisoner "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." (27)

   Moreover, the Supreme Court clarified that the prison official need only know that there is a serious risk to an inmate's health or safety, even though the official may not be aware of the precise threat. (28) If the prison is aware that such a risk exists, "it is irrelevant to liability that the officials could not guess beforehand precisely who would attack whom." (29) The Supreme Court added that because the constitutional violation is complete upon being placed in an unsafe...