Sexual punishments.

• Author: Ristroph, Alice
• Position: Sexuality and the Law

The claim that incarceration is a sexual punishment--the central claim of this Article--may be disputed with respect to both the adjective and the noun. The challenge to the choice of noun is this: any sex, including sexual assaults, that may occur in prison is "not part of the penalty." (1) Only officially sanctioned deprivations of rights and liberties are properly called "punishment," and since no prisons officially sanction inmate sex and most officially condemn it, sex in prison is not penal. (2) In other words, the prison rapist is not an arm of the state.

The challenge to the adjective is this: "sex" in prison is not really "sexual." The word "sexual" should be reserved to describe a realm of erotic desire and physical gratification, and there is much evidence that the physical interactions and threatened assaults that occur in prison, even the ones that involve genitals, are expressions of dominance and power that have little to do with desire. (3) In short, coerced intercourse in prison is violent, inhumane, and illegal--it is not sexual, and it is not punishment.

With specific reference to current American penal practices, this Article defends both the adjective and the noun of the phrase "sexual punishment." The phrase prompts an array of questions about theory and practice, about concept and strategy. It encourages us to probe the concepts of sexuality and of punishment and the normative claims that pervade those concepts; it encourages us to rethink strategic approaches to the problems of penal and sexual abuse. Should we think of prison rape as a locationally specific instance of rape, a form of sexual assault that happens to occur in prison but is similar to sexual assaults that occur outside of prison? Should we think of prison rape as an intrinsic aspect of the prison rather than a species of rape? Might prison produce certain forms of sexual interaction that differ in fundamental ways from rape (and consensual sex) outside prison walls? Is sex severable from prison: will the right laws and regulations help us eliminate the sexual aspects of incarceration? Would we even want to eliminate the sexual aspects of incarceration? The juxtaposition of sex and punishment, categories imbued with deeply held and deeply contested normative commitments, prompts difficult but important questions.

Some of these questions have discomforting answers. Most discomforting, perhaps, is the strong indication that sexual coercion is intrinsic to the experience of imprisonment. Prisoners' rights advocates on the left and right have labored to show that this is not the case, that we can and should eliminate prison rape even though we have no intention of eliminating the prison. (4) For much too long, the general attitude toward prison rape was: "That's just part of the penalty; those criminals deserve whatever they get in prison," or, only slightly better, "It's too bad that such rapes occur, but there's nothing we can do about it." (5) To insist now that coerced sex is inherent to incarceration would seem to take a step backward.

And yet sex in prison is in many ways a peculiar product of the carceral environment, and far more complicated than the paradigmatic account of prison rape. That account posits predator and prey: a cruel, sadistic perpetrator who manipulates or violently overpowers a vulnerable victim. (6) Much in that account is true of many prison rapes--there is a great deal of cruelty, sadism, manipulation, violence, and exploitation of vulnerability. At the same time, this account is misleading and radically incomplete. It greatly overemphasizes direct physical violence: most coerced sex in prison is not procured through an act or direct threat of violence. (7) And the paradigmatic narrative of prison rape does not situate this sexual abuse as a problem of the prison, except to the extent that prisons are blamed for not being prisonly enough: not surveilling enough, not controlling inmates enough, not punishing cruel and sadistic men enough. In the standard account of prison rape, the solution to the problem is to expand and intensify imprisonment. (8)

The prison is so entrenched in our criminal justice system, and its basic legitimacy so unquestioned, that to insist on an account of prison rape that links it to the basic structure of the prison may seem foolish. But even if we take for granted that prisons are here to stay, we should think carefully about the ways in which the institution of mass confinement produces sexual coercion. Sexual coercion in prisons probably can be reduced, but that task will require changes to the character of the prison rather than a mere intensification of imprisonment. Furthermore, to the extent that sexual coercion in prison cannot be eliminated, we should make that fact part of debates about the appropriate use of imprisonment as a penalty.

Thus, the intersection of sex and punishment prompts new questions and new doubts about the character and consequences of incarceration. But this inquiry is useful not only for the study of punishment, but also for the study of sex and gender, including analyses of sexual inequality. To date, these inquiries have rarely merged: most of the scanty literature on sex and rape among male prisoners makes no mention of the extensive scholarship on non-carceral rape, (9) and most of that extensive scholarship on rape addresses only rapes of women by men. (10) Prison rape researchers can learn much from feminist investigations of the concepts of force and consent; in all-male prisons, as in free-world heterosexual relationships, coerced sex is only rarely marked by bruises and blood. Furthermore, some feminist accounts of rape may insist too much that rape is something men do to women, and research on prison sex should inform revised accounts of sexual violence. Of course, it is risky, and usually inaccurate, to generalize about rape, and this is not to suggest that heterosexual rape in the free world is easily comparable to same-sex prison rape. Social inequalities between men and women produce unique abuses, and the coercive conditions of incarceration produce different abuses. In fact, a central claim of this Article is that sexual coercion in prison is a distinctive product of the carceral environment. Nevertheless, prison sex researchers can learn much from feminists, and vice versa.

The first part of this Article seeks to detail the sexualized nature of incarceration in the United States. The focus is on male prisoners, who constitute about ninety-three percent of the total American prison population. (11) (This does not mean to discount the conditions of women prisoners, a group growing in size and clearly worthy of consideration.) (12) This account of sex in prison is based on a review of quantitative and qualitative empirical studies. But the empirical work is, as is often the case, already shaped by contestable normative assumptions. (13) Since its inception in the first half of the twentieth century, the study of prison sex has been shaped by researchers' own normative conceptions of gender, sexuality, coercion, and consent. Many early studies assumed sexual intercourse to be invariably a quest for gratification, and they assumed sexual orientation to be fixed and polar. (14) More recent studies are more flexible in their accounts of sex and sexual orientation, but many assume without explanation a clear distinction between coerced and consensual sex. (15) Reviewing the empirical work with a critical eye, this Article is an attempt to build a fair description of what we know, what we might know, and what we don't know about prison sex.

This much seems clear: incarceration is sexual to a much greater extent than indicated by measures of violent male prisoner rape. In part, this is because incarceration is so pervasively corporal--it involves state action against the body and state control of the body to a degree unmatched in other political contexts. Consequently, it provides innumerable opportunities for officials to observe and regulate the sexual existences of inmates, and for inmates to observe, regulate, and interact with each other. Incarceration is also coercive, inegalitarian, and hierarchical, not only in terms of the state-prisoner relationship, but also in terms of internal inmate relationships. In this corporal and coercive environment, sexual roles are used to establish and demarcate hierarchies within incarcerated populations. (16) Most importantly, incarceration is total: It regulates prisoners' existences so thoroughly that the only way a prison could avoid reaching prisoner sexuality would be to render prisoners non-sexual beings. (17) In short, incarceration is (partly) sexual, and the sexuality of prison is mostly if not entirely coerced.

Prisons shape the sexual activity that goes on within them, but prisoners' efforts to use law to gain sexual safety inside the prison have, so far, been unsuccessful. (18) This legal failure is due to a conceptual dichotomy between legal punishment and penal practices, and a critique of that dichotomy is the second aim of this Article and the focus of Part II. The punishment/penal practices dichotomy underlies Eighth Amendment doctrine and leaves prison conditions largely outside the reach of the constitutional prohibition of "cruel and unusual punishments." Punishments, in U.S. constitutional law, are the abstract deprivations of liberty articulated in statutes and in sentencing orders. The actual manifestations of those abstractions, or real prison conditions, are largely beyond the scope of "punishment" and of the law. The embrace by courts--and by many punishment theorists--of this abstract account of punishment represents an absurd denial of practice. As a theoretical sleight of hand, it obscures the fact that prisoners, like all humans, are embodied beings who live in and experience an empirical, physical world. As a matter of legal practice, it...