Policies on Consensual Sexual Activity in State Prisons

Published date01 June 2021
Date01 June 2021
Subject MatterArticles
/tmp/tmp-17M12pmqAaEx6j/input 924097CJPXXX10.1177/0887403420924097Criminal Justice Policy ReviewGross and Stickle
Criminal Justice Policy Review
2021, Vol. 32(5) 546 –561
Policies on Consensual
© The Author(s) 2020
Article reuse guidelines:
Sexual Activity in State
DOI: 10.1177/0887403420924097
Sarah Gross1 and Ben Stickle1
During times of imprisonment, inmates have limited opportunities to relieve sexual
urges. Nearly all sexual behaviors (e.g., coerced, consensual, masturbation) are
restricted or outright banned in most prison systems. The restriction on sexual
behavior is implemented, in part, to maintain control and limit possible violence.
However, the policies set forth by prisons restricting sexual behavior do not remove
sexual urges and, by some estimates, between 2% and 60% of inmates engage in
consensual sexual activities during incarceration. This study explores 51 Department
of Correction (DOC) policies on sexual behavior in prisons and examines how DOCs
define and punish consensual sexual activity. Findings indicate that most DOCs have
policies, which do not differentiate between consensual and nonconsensual behaviors
and allow for the punishment of consensual and nonconsensual sexual activity with
the same penalties. These findings are evaluated considering current research, and
policy implications are discussed.
prison, correctional policy, sexual behavior, punishment, PREA
The prison population in the United States has increased drastically in the past 30 years,
increasing by over 430% (Tewksbury & Stickle, 2015). This increase has spurred
research into prisons examining overcrowding and the effects it has on inmates (Hanna,
2016; Salins & Simpson, 2013) and includes a renewed research focus on prisoner sex-
ual activity primarily focusing on nonconsensual (e.g., coerced, rape) sexual encounters
1Middle Tennessee State University, Murfreesboro, USA
Corresponding Author:
Ben Stickle, Department of Criminal Justice Administration, Middle Tennessee State University,
Murfreesboro, TN 37132, USA.
Email: Ben.stickle@mtsu.edu

Gross and Stickle
(Nielsen, 2017). However, little research has focused on consensual sexual behavior
such as two inmates holding hands, mutual masturbation, or even consensual sexual
intercourse (Borchert, 2016; Tewksbury & Connor, 2014). Even less attention has been
paid to the policies, procedures, and responses by prisons regarding these activities.
There are three primary reasons for the failure to study inmate consensual sexual
behavior. First, the understanding of how society views prison sexual behavior has
changed over time. Early views were that all sexual behaviors within prisons were
deviant and should be prohibited (see Borchert, 2016; Hensley et al., 2000; Kunzel,
2008) have shifted to the need to understand sexual behavior within current U.S. laws
such as Lawrence v. Texas, which provided legal standing for consulting adults to
engage in sexual behavior regardless of their gender. This relatively recent change in
cultural views and legal status has yet to be fully explored—from a policy perspec-
tive—inside the confines of prisons.
Second is the diverse nature of the prison systems in the United States. Each state
maintains its prison system, and the policies and procedures vary from state to state.
Finally, consensual sexual activity is difficult to study due to questions on whether an
inmate can genuinely consent to any sexual behavior while there is merit to the notion
that prisoners are not as free to consent to sexual activity as they would be if not incar-
cerated, failing to recognize or research prisoners’ consensual relationships—even
sexual ones—results in a missing component vital for active policy development, and
enforcement when the behavior is not consensual.
Prisoners remain sexual persons throughout the term of their sentence. The desire
for physical relationships and sexual experiences does not end when the bars close
behind them. Therefore, prisoners may seek sexual relief by masturbation, consensual
sexual contact with other inmates, or forced (nonconsensual) contact. The current
focus of research and policy development revolves around nonconsensual sexual
activity. While this is vital for the safe operation and functioning of a prison, little
research has focused on consensual sexual activity.
What is more, no research has examined the policies of prisons regarding consensual
sexual behavior. Regardless of whether a prison prohibits, permits, or is silent on policy
issues surrounding consensual sexual behavior, there are significant policy implications
to consider. The purpose of the present article is to examine the policies of inmate con-
sensual sexual behavior of the Department of Corrections (DOC) in each state.
Literature Review
Consensual Sex Among Inmates in Prisons
As inmates continue to experience sexual urges after incarceration, understanding the
full dynamics of the prison sex culture is essential. Tewksbury and West (2000)
stressed that sexual behavior in prison needs to be studied because it will help explain
the dynamics of and the construct and maintenance of institutional culture. Not only is
sex a psychological and biological human need, but it also influences the prison cul-
ture (Sykes, 1958). Inmates can become psychologically, emotionally, and potentially

Criminal Justice Policy Review 32(5)
physically distressed if they are deprived of sex; therefore, sexuality is expressed
within institutions, either in acceptable ways or in unacceptable ways (Tewksbury &
Connor, 2014; Tewksbury & West, 2000).
A vast amount of research has been conducted examining sexual assaults in prisons;
however, sparse research had examined consensual sex in prison (Hensley, 2020;
Hensley & Tewksbury, 2002). Perhaps, one reason researchers neglected conducting
studies on consensual sex and focused more on sexual coercion is that nonconsensual
sexual behavior is viewed as serious corrections’ issue (Hensley et al., 2001, 2003).
However, sexual coercion may not be as prevalent in prisons as it is often perceived
(Srivastava, 1974). Saum et al. (1995) examined the frequency and nature of sexual
behavior among male inmates in Delaware and found that 52% of prisoners had heard of
consensual sexual activity occurring and 25% reporting to have witnessed consensual
sexual actives, whereas 34% of inmates said they had heard of a rape occurring in prison
and 4% who claimed to have seen a rape. The study concluded that the “preponderance
of the activity is consensual sex rather than rape” (p. 427). Similarly, Hensley and
Tewksbury (2002) found that fear of rape is much higher than the actual occurrences of
sexual assault.
Consensual sexual behavior appears to be much more common than nonconsen-
sual. Early studies in the late 1980s found that between 25% and 40% of inmates were
involved in consensual sexual behaviors (Tewksbury, 1989). Wooden and Parker
(1982) found an even higher rate, 65%, in their study. A study in Australia by Richters
et al. (2012) found nearly 3% of men who considered themselves heterosexual had
consensual sexual contact with another male innate. Moreover, the rates for inmates
who had same-sex experiences before prison were considerably higher after incarcera-
tion, around 20%. Furthermore, Warren and Jackson (2013), in the most extensive
study on the topic, to-date found that 6% indicated they have participated in consen-
sual sexual behavior while incarcerated.
An extensive study by Warren and Jackson (2013) found a high proportion of
inmates admitted to consensual sexual activity with other inmates, around 45%. When
asked their motivation for engaging in these activities, most inmates indicated love,
affection, pleasure, warmth, and comfort. A much smaller percentage (2%–3%) indi-
cated consensual sex was to gain or keep status in a group. These findings indicate that
inmates can engage in consensual sexual encounters, and many do.
While these studies offer a significant difference in results, between 2% and 65%,
it is clear that many prisoners have sexual urges while incarcerated and seek to relieve
this pressure by either masturbation, consensual sexual behavior with other prisons, or
nonconsensual sexual violence against other inmates. Each of these behaviors affects
and shapes the prison culture and safety of prisoners. As a result, there is a legitimate
penological interest, and prison officials should develop policies and procedures to
address these behaviors to maintain control.

Gross and Stickle
Administration and Guard Perception of Consensual Sex in Prisons
In an early study, Ibrahim (1974) explored the rate of sexual behaviors among prison-
ers and the impact on the prison culture. Ibrahim found many consensual sexual
behavior administrators, wardens, and inmates tolerated. Some prison authorities uti-
lized sex as a way to control inmates’ behavior believing sex relieved tensions among
inmates prevented other physical violence.
More recently, a study by Borchert of 26 prison executives across the United States
revealed how some views on consensual sexual activity have changed. Borchert (2016)
conducted interviews with prison officials to gain insight into consensual sexual activ-
ities in prisons and the administrators understanding the historical nature of prohibit-

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