Undue Punishment: Rape in Prison, The PCAR Pinnacle, Fall 2004/Winter 2005.

Randy Payne, 21, convicted of breaking into a warehouse and stealing liquor, was placed in a maximum security Texas prison. Eight days later, he was dead. He was killed because he wouldn't pay convict gangs for protection. The currency demanded, as most new inmates were informed, was sex. So the gangs jumped him. He was beaten for over two hours by 20 different inmates in a prison day room. The guards claim they never saw a thing. Randy got the death penalty for a non-violent offense. Had he submitted to the demands of his attackers, he might have lived, but at what cost? Should a prisoner's debt to society include repeated rapes, gang rapes or even sexual enslavement?

No one deserves to be raped, but it seems a special exception is reserved for those raped while behind bars. How else do we explain matter-of-fact jokes about prison showers and amorous cellmates? These attitudes minimize the stark reality for male and female inmates who are manipulated or physically forced into sex with other prisoners or the officers who guard them. Their grievances are often ignored, and the perpetrators go unpunished. When released into society, these victims, usually young prisoners convicted of non-violent crimes, bring a new host of threats to their communities from HIV to the potential for committing violent crimes.

No Way Out

One Texas inmate's account of prison rape, summarized from the 2001 Human Rights Watch report No Escape: Male Rape in U.S. Prisons, illustrates the lack of response among prison officials. After reporting being raped by his cellmate, he and the perpetrator were interviewed together and the charges were dismissed as a "lovers' quarrel." The inmates returned to their cell where the victim was violently raped again. He filed more grievances, but they were ignored. Months later, when a guard stumbled upon a rape in progress, the cellmates were finally separated, but the incident was never investigated. The perpetrator gained access to him again in a prison day room, this time threatening to kill him with a combination lock. A room full of prisoners watched as the victim was beaten and raped. He suffered a broken neck, jaw, left collarbone and finger, a dislocated left shoulder, two major concussions and lacerations to his scalp that caused bleeding on the brain. Four years later, as he recounted the story for HRW, the impression of the combination lock was still visible on his head. The rapist was never criminally prosecuted despite the victim's efforts to press charges.

Testimony from other male victims in the HRW report suggests a widespread problem that includes gang rapes as a "welcome" to prison and an inmate hierarchy where certain prisoners are forced into "consensual sex" in exchange for their safety or even their lives.

A 1996 HRW report on women's prisons depicts guards not only using or threatening physical force but using their authority to provide or deny goods and privileges to female inmates. The report also reveals that women impregnated as a result of sexual misconduct were placed in segregation or even pressured to get an abortion.

Both HRW and Stop Prison Rape, a non-profit organization seeking to end sexual violence in prisons, contend that some prison guards take advantage of "pat down" and room searches to molest and assault female prisoners. They are also able to watch female inmates dress, shower or use the toilet, and some regularly engage in verbal degradation and harassment of women prisoners.

The Prevalence of Prison Rape

There are no nationwide statistics about the prevalence of prison rape. However, rape among men tends to be prisoner to prisoner; female prisoners are most likely to be raped by male prison guards.

The HRW report uses small-scale studies to estimate that 140,000 male prisoners are raped each year. Stop Prison Rape cites a 1996 statewide survey of male prisoners in Nebraska that reveals approximately one in five inmates faced pressured or forced contact in custody and that one in 10 were raped.

The rates of rape against women vary among institutions. According to SPR, in one facility, 27 percent of women reported a pressured or forced sex incident, while in another facility, seven percent of women reported sexual abuse.

Why the Situation Persists

Chronic under-reporting of rape enables prison officials to deny it occurs. Most accounts from prison-insiders, both employees and inmates, reveal that under-reporting is partly because complaints are either ignored or handled improperly, and perpetrators almost never face criminal charges.

Male victims who spoke to HRW said their claims were often met by insensitive guards who told them to "be a man" and protect themselves or insinuated that the victims were willing, homosexual participants. If their claims were acknowledged, they faced seclusion, a devastating outcome in the aftermath of abuse and one that emboldens perpetrators who know victims are discouraged from speaking out. Victims said consequences were even worse if the perpetrator/s found they had been "ratted out."

Advocates for women prisoners say many inmates are afraid to complain. With no medical or physical evidence and no witnesses, allegations come down to so-called "he said," "she said" situations where inmates are reminded that their word is no good against an officer's. In addition, guards can thwart access to family, friends, cigarettes and other goods the inmates need or crave.

"The reality is that corrections officials have often used sexual violence as a tool of control," said Lara Stemple, executive director of Stop Prisoner Rape. "It has been used as a form of discipline - with inmates set up for attacks when they have angered officers - and it has been used as a reward to curry favor with powerful inmates. The fact that this type of violence is often kept secret or denied altogether only makes it more effective, and more brutal, as a way of delivering punishment."

Prison overcrowding compounds the problem. Changes in criminal policy over the last few decades have led to longer prison terms, greater incarceration of non-violent criminals and an over-burdened prison system. The strain on prison resources means more prisoners share space with potential perpetrators, and fewer guards can protect or address victims' concerns.

What Happens In Prison, Doesn't Stay There

Approximately 600,000 inmates are released from prison each year. A prisoner who has been raped brings a unique set of threats to the non-prison community including HIV, higher instance of substance abuse and underlying rage.

The rate of HIV in prison, where "safe sex" is not typically an option, is at least three times that of the general public, and inmates who contract HIV while in prison speak of receiving a "life sentence." Other communicable diseases such as Hepatitis C are also more prevalent among inmates.

Because of their silence or the indifference of caregivers, prison rape victims do not receive proper treatment and counseling. They also face continued exposure to the perpetrator/s. Without assistance, they suffer the typical consequences of rape: vaginal or rectal bleeding, soreness and bruising, insomnia, nausea, shock, disbelief, withdrawal, anger, shame, guilt and humiliation. Over the long-term, including after their release, they can experience post traumatic stress disorder, rape trauma syndrome, ongoing fear, nightmares, flashbacks, self-hatred, substance abuse, anxiety, depression and suicide. In addition to these concerns, consider that the typical rape victim is a young person convicted of a non-violent crime. Male victims are likely to be first-time offenders who are small, weak, shy and inexperienced with prison life. Typical female victims include first-time offenders, young women, mentally disabled women and lesbians and transgendered persons.

Yes, these are people serving time for crimes they have committed (in most cases), but no judge has handed down a sentence that includes sexual abuse. In fact, the U.S. Supreme Court has held that rape in prison can violate an individual's constitutional right to be free from cruel and unusual punishment.

What Can Be Done?

Is rape an acceptable part of a criminal's sentence? Should imprisonment give some people the right to rape without consequence? Can we ignore a prison rape victim's potential to spread HIV, abuse drugs and even commit rape or other violent crimes once released into society?

Unsuccessful in attempts to get prison officials to protect him, one suicidal victim of repeated sexual assault wrote to HRW, "the opposite of compassion is not hatred, it's indifference."

"To ignore this situation is to condone it," says Delilah Rumburg, executive director of the Pennsylvania Coalition Against Rape. "As anti-sexual assault activists, we must bring attention to prison rape and give voice to its victims both for their protection and that of future victims both inside and outside prison walls."

In its 2001 report, HRW recommends classification methods (to keep potential perpetrators from sharing space with potential victims), inmate and staff orientation and training, staff vigilance, serious investigation of all rape allegations and prosecution of justified allegations as major steps toward preventing male prison rape. Appropriate controls and balances of power in female prisons are also imperative.

Toward those ends, the Prison Rape Elimination Act signed into law by George W. Bush in September 2003, provides a good start. The act calls for gathering national statistics about the problem, developing standards for states to use to address prison rape, providing grants to support state and local programs to prevent and punish prison rapists and creating a review panel to hold states accountable for making progress.

But prison rape will not be wiped out with legislation alone.

Anti-sexual assault advocates can help by becoming aware of the rights of prisoners in their state and working to assure that they receive the appropriate protection against prison rape. A good resource is SPR's Web site, www.spr.org, which gives an overview of the laws currently in place. Review these to see what additional work is left to be done in your state.

We can also reach out to victims of prison rape. An issue not addressed with the legislation is provision of counseling services to help survivors of prison rape deal with their feelings of isolation, humiliation and anger. Stop Prisoner Rape has spoken with rape crisis centers around the country about the importance of serving incarcerated populations and hopes to develop models for collaboration between service providers and departments of corrections.

And we must help the public understand that prison rape has an impact on our communities, even when we live miles away from prisons and jails. "If we reject prison rape and set a tone of intolerance, prison officials will be forced to be responsive, perpetrators will be punished and victims will get the care they need," Rumburg says. "A good first step is encouraging others to replace jokes and cavalier attitudes with more appropriate reactions of outrage and concern."