Prisoner Rape is Torture Under International Law
Since it was clear that rape or other
forms of sexual assault . . . in detention were a particularly ignominious
violation of the inherent dignity and right to physical integrity of the
human being, they accordingly constituted an act of torture. -
United Nations Special Rapporteur on Torture, 1992 1
The sexual assault of prisoners, whether it is
perpetrated by corrections officers or by other inmates, is not only a
crime - in many cases, it is also a form of torture under international
Torture has long been prohibited under international
human rights law - a standard that has been characterized
as "one of the most basic principles of human rights,"
comparable to the right to right to life or the prohibition
of slavery. 2 More than 65 countries expressly
provide for the right to be free from torture or cruel
and unusual punishment,3 and international
customary law also bars the use of torture.4
Torture is a form of behavior that the United States
has denounced in other nations.5 But the
torture of American prisoners through sexual assault
has long been allowed to flourish.
This inattention to a widespread form of
institutionalized brutality is a violation of the United States' duty to
uphold basic standards of international human rights.
- Sexual assault in detention has
been explicitly mentioned as an act constituting torture
in several reports by U.N. Special Rapporteurs.6
The Inter-American Commission on Human Rights also
found rape to be torture in the case of Haitian women
attacked in their homes by soldiers during a coup;
and international legal bodies such as the International
Criminal Tribunal for the Former Yugoslavia and the
European Court of Human rights have made the same
determination in other cases of rape.7
- Torture is explicitly prohibited
by a number of international human rights instruments,
and particularly by the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment, (the Convention Against Torture).8 President
Reagan signed the Convention on Torture in 1988 and
President Clinton ratified it in 1994.9
As binding legal authority on the U.S., the Convention
Against Torture is applicable not only to the federal
government, but also is supreme over state law.10
- According to the Convention,11 the main
elements of torture are:
a. acts which intentionally inflict severe physical
or mental pain or suffering;
b. or an illicit purpose;
c. committed, consented, or acquiesced to by a public
d. not arising only from, inherent in, or incidental
to lawful sanctions.
- Acts which intentionally inflict severe physical
or mental pain or suffering: The devastating impact
of sexual assault behind bars clearly satisfies the
requirement of inflicting "severe physical or mental
pain." Victims of prisoner rape have been left beaten,
bloodied, and in some cases dead. They are also at
risk for contracting sexually transmitted diseases
such as HIV/AIDS, syphilis, gonorrhea, chlamydia,
and hepatitis A and B, and they frequently suffer
long-term psychological harm, including a risk of
post-traumatic stress disorder, depression, substance
abuse, and suicide.12
- For an illicit purpose: The Convention Against Torture
provides examples of purposes for which it is illicit
to inflict severe harm, which include punishment,
intimidation, coercion, and for "any discriminatory
purpose."13 Rape in detention is certainly
never undertaken for any licit, or legal, purpose.
- Committed, consented or acquiesced to by a public
official: Examples of officials' participation in
sexual assault behind bars or of officials' acquiescence
in the commission of sexual assault by others are
unfortunately common. In women's facilities, reports
of male corrections officers raping female inmates
and coercing sex from inmates have been extensively
documented.14 In many other reported cases,
corrections officers have been accused of "setting
up" inmate-on-inmate rape through intentionally celling
likely victims with known predators.15
Furthermore, the failure of corrections officials
to implement basic rape prevention measures may amount
to state acquiescence.16
- Not arising only from, inherent in, or incidental
to lawful sanctions: There is no question that rape
behind bars falls outside the bounds of lawful sanctions.
No one is sentenced to rape, and prisoner rape certainly
need not be inherent in or incidental to imprisonment,
as evidenced by facilities that have successful prevention
protocols in place.
- The International Covenant on Civil and Political
Rights, ratified by the United States in 1992, also
guarantees the non-derogable rights to be free from
"torture or . cruel, inhuman or degrading treatment
or punishment." 17
 Summary Record of
21st Meeting, U.N. ESCOR, Comm'n Hum. Rts, 48th Sess., para 35, U.N. Doc.
E/CN.4/1992/SR.21 (1992), reprinted in Deborah Anker, Law of Asylum in the
United States, 3rd Ed., 490 (Refugee Law Center, Inc., 1999) [hereinafter
 Deborah Anker,
Law of Asylum in the United States, 3rd Ed., 465 (Refugee Law Center,
 Suzanne M. Bernard,
An Eye for An Eye: The Current Status of International Law on the Humane
Treatment of Prisoners, 25 Rutgers L.J. 759, 789 (1994) (providing an
overview of customary international law as defined by the International
Court of Justice in Article 38(1)(b) as "evidence of a general practice
accepted as law," thus combining two elements necessary to establish an
international customary norm: conscious state practice combined with a
sense of legal obligation, or opinion juris.)
 See, Nigel S.
Rodley, The Treatment of Prisoners Under International Law 65-67 (2nd
 One of the
allegations made by the United States against Iraq, for example, was that
Saddam Hussein's regime tortured political opponents. U.S. Department of
State, Country Reports on Human Rights Practices, Feb. 2001., at
http://www.state.gov/g/drl/rls/hrrpt/2000/648.htm (last visited Mar.
 Summary Record,
supra note 1.
 Anker, supra
note 2, at 490-491.
 Evelyn Mary Aswad,
Torture by Means of Rape, 84 Geo. L.J. 1913, 1922 (1996).
 Kristen B.
Rosati, The United Nations Convention Against Torture: A
Self-Executing Treaty that Prevents the Removal of Persons Ineligible
for Asylum and Withholding of Removal, 26 Denv. J. Int'l L. & Pol'y
533, 536 (1998).
 The Convention
Against Torture's supremacy over state law derives from its status as
a form of federal common law based on Article VI of the Constitution.
See Kathleen M. Keller, A Comparative and International Law
Perspective on the United States (Non)Compliance with its Duty of Non-Refoulement,
1 Yale Hum. Rts. Dev. L.J. 2, 51 (1999).
 The Convention
defines torture as "Any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has
committed, or intimidating him or a third person, or for any other
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions." Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, 93rd
mtg., U.N. Doc. A/Res/39/46 (1984).
 Robert W.
Dumond & Doris A. Dumond, The Treatment of Sexual Assault Victims, in
Prison Sex: Practice & Policy 82 (Christopher Hensley ed., Lynne
Rienner Publishers, Inc., 2002).
 Anker, supra note
2, at 499. Most scholars agree that the "illicit purpose" component of the
torture definition should be de-emphasized since the infliction of severe
suffering on another individual is never legitimate under any
circumstances, regardless of the purpose for which the suffering is
 See, e.g.,
Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S.
State Prisons, December 1996, at
http://hrw.org/reports/1996/Us1.htm (last visited November 12,
 One of the most
infamous examples of this phenomenon occurred in 1993, when Corcoran State
Prison inmate Eddie Dillard was put in a cell with convicted murderer and
known prisoner rapist Wayne Robertson, a man 100 pounds heaver than
Dillard. Dillard was raped repeatedly over the next two days and was not
given medical treatment after he reported the attack. Brian Skoloff,
Alleged Calif. Prison Rape Incident Brings Guards Back to Court,
Associated Press, Sept. 23, 2003, at
http://www.spr.org/en/news/2003/0923-1.html (last visited Oct. 20,
 The United States
has interpreted the "acquiescence" requirement to mean that a public
official must, "prior to the activity constituting torture, have awareness
of such activity and thereafter breach his legal responsibility to
intervene to protect such activity." Anker, supra note 2, at 500.
Covenant on Civil and Political Rights, adopted Dec. 16, 1966, S.
Treaty Doc. No. 95-2, 95th Cong., 2D Sess. (1977), art. 7, 999 U.N.T.S.