At the risk of buying into popular stereotypes about sex behind bars and the archetypes of the dyke prison matron providing better treatment to women in prison in exchange for sex, (1) or torrid sex between women in prison, (2) or the burly male prison rapist who creates prison wives, (3) or the young man "turned out" in prison, (4) I plan to explore the complexity of prison sex and the challenges that it raises in the context of recently enacted federal legislation, the Prison Rape Elimination Act ("PREA"). (5)
The primary focus of this Article is to begin to frame the discussion of prison sexuality and to chart an analytical framework for examining it. This Article is by no means exhaustive and seeks primarily to mark the terrain--leaving unexplored many areas that might prove fruitful for further research. (6) This is the beginning of a project that will hopefully result in greater scholarship and analysis of prison sexuality from a multidisciplinary perspective.
In Part I, this Article briefly discusses the enactment of the Prison Rape Elimination Act and prior attempts to enact legislation addressing the sexual abuse of persons in custody. Part II examines the historical underpinnings of prisons in the United States and how that framework has shaped attitudes toward the sexual expression of prisoners today. Part III, using the narratives of prisoners, describes the range of motivations that prisoners have articulated in sexual expression and attempts to disentangle prisoners' rights in sexual expression and from the state's legitimate interest in regulating that expression. Part IV outlines six legitimate interests that prison officials have in expanding sexual expression of inmates--such as furthering the goals of the Prison Rape Elimination Act. This Part concludes that in many situations the prison does not have a legitimate interest in prohibiting prisoner sexual expression and would be better served by using scarce resources to protect prisoners from nonconsensual and coercive sex by staff or other inmates. (7) This Article concludes by acknowledging that the desire for sexual intimacy and sexual expression survive imprisonment and that correctional authorities must find workable and humane approaches to balancing their interests in safety and security with an inmates' interests in self-expression.
THE PRISON RAPE ELIMINATION ACT OF 2003 AND ITS PRECURSOR
The moving force behind the first modern piece of legislation to address prison rape was the Women's Rights Division of Human Rights Watch. In an effort to bring to light human rights abuses in the United States, the Women's Rights Division had begun a project to document human rights abuses in women's prisons. The Women's Rights Division published a series of reports documenting the sexual abuse of women in custody (8) and sought to follow-up those reports with the enactment of legislation. In 1999, the Prevention of Custodial Sexual Assault by Correctional Staff Act ("Custodial Sexual Assault Act") was introduced by Congressman John Conyers (D-MI), as part of omnibus legislation reauthorizing the Violence Against Women Act. (9)
The Custodial Sexual Assault Act called for the establishment of a database of correctional employees previously found to be involved in custodial sexual misconduct. (10) It also called for withholding federal law enforcement funds from those states that failed to enact legislation criminalizing staff sexual misconduct with inmates. (11) While VAWA eventually passed with specific prohibitions on using any of its funds for individuals in custody--even if they were the victims of sexual abuse--the Prevention of Custodial Sexual Assault by Correctional Staff Act failed to be included in the version of VAWA that was enacted into law. (12)
Two years later, Human Rights Watch authored another report, "No Escape: Male Rape in U.S. Prisons," this time documenting the sexual abuse of male prisoners. (13) Teaming with Stop Prisoner Rape, an organization originally founded by male prison rape survivors, (14) Human Rights Watch pushed for the enactment of another piece of legislation, the Prison Rape Reduction Act of 2002. (15) The initial legislation, which was introduced with bipartisan support, focused primarily on prisoner-on-prisoner sexual assault and provided for penalties only in cases of prison rape. (16) While there was bipartisan support for the bill, the failure to include the perspectives of accrediting organizations, such as the American Correctional Association, the Association of State Correctional Administrators, and groups who had worked primarily on issues related to sexual abuse of prisoners by staff, slowed enactment of the bill. (17)
The Prison Rape Reduction Act was reintroduced in 2003 with significant amendments--changing the name to the Prison Rape Elimination Act, adding coverage of staff sexual abuse of persons in custody and grants to assist states in their efforts to prevent, reduce, and prosecute prison rape. (18) The legislation passed unanimously in the Senate on July 25, 2003. (19)
As enacted, the Prison Rape Elimination Act establishes "a zero-tolerance standard" for rape in custodial settings, (20) requires data collection on the incidence of rape in each state, and establishes the National Prison Rape Elimination Commission. The Commission is required to issue a report on the causes and consequences of prison rape (21) and to develop national standards on the prevention, detection and punishment of prison rape. (22) While PREA does not create a private right of action for prisoners, (23) it does create a system of incentives and disincentives for states, correctional agencies, and correctional accrediting organizations who fail to comply with its provisions. Each correctional agency must, upon request by the Bureau of Justice Statistics ("BJS"), report the number of instances of sexual violence in its facilities. (24) Each year, the three states with the highest incidence and the two states with the lowest incidence of prison rape must appear before the Review Panel on Prison Rape to explain their designations as states with either the lowest or highest incidence of prison rape. (25) States and accrediting organizations stand to lose five percent of federal funds for criminal justice activities for failure to implement or develop national standards. (26) As an incentive to comply, PREA provides for the withholding of grants from states that fail to adopt standards for reducing, preventing, and eliminating prison rapes
While PREA does not substantially change the traditional definition of rape, (28) it recognizes that sexual assault can be accomplished not only by actual force, but by the "exploitation of the fear or threat of physical violence or bodily injury." (29) Additionally, PREA gives the BJS authority to create another definition of rape for purposes of conducting its annual statistical analysis and review. (30) That distinction is very important, because the BJS has chosen to collect data on a broader range of sexual conduct--nonconsensual acts, abusive sexual contact, staff sexual misconduct, and staff sexual harassment. (31) The BJS data collection includes inmate-on-inmate conduct as well as staff-on-inmate conduct, and will include data collection from a variety of sources: records, reviews of correctional agencies, victim self-reports while in custody, and surveys of former and soon to be released inmates. (32) Yet any discussion of rape necessarily includes a discussion of consent. (33) Recognizing the complexity of sexual behavior in correctional settings, the proposed BJS victim self-report survey asks about consensual sex as well. (34)
The BJS data collection efforts have engendered a climate where a number of communities concerned about prisoners are beginning to discuss whether there can be consensual sexual interactions in prisons between inmates and between staff and inmates. While correctional officials, advocates, and prisoners are clear about the need to end prison rape, there are other more complex agendas. Correctional authorities may have an interest in minimizing the number of sexual interactions between inmates that can be defined as rape in order to lower their numbers for purposes of data collection. (35)
Human rights organizations are concerned that correctional authorities will respond to PREA by strictly enforcing existing prison policies that prohibit sex between inmates, which could result in discipline or criminal prosecution for prisoners who engage in consensual sex. (36) They are also concerned about the backlash against people who engage in same-sex relationships in institutional settings, either because of their sexual orientation or because they engage in situational same-gender sex. Furthermore, they are concerned that the acknowledgment of consensual sex in correctional settings will allow prison authorities to cast actual rape as consensual, thereby reducing the number of rapes reported to the BJS. Lastly, prisoners are rightfully concerned that this heightened scrutiny, while it may result in fewer assaults, also gives correctional authorities a potent tool to selectively sanction inmates for any sexual expression. (37)
Most advocates and correctional authorities agree in principle that sex between staff and inmates can never, from a legal standpoint, be consensual. Nonetheless, there are many instances where consent is contested and the staff, the inmate, and/or the Court believe that the prisoner and staff member engaged in a consensual sexual interaction. (38) The situation of sex between inmates is just as complicated. Recent research among prisoners indicates that relations between both men and women are much more complex than initially thought. (39) While there is some acceptance that women are more amenable to same-sex relations, given their relational nature, (40) recent research seems to indicate that many sexual...