SPR files Brief in Farmer v. Brennan
January 11, 1994
As the United States
Supreme Court hears oral arguments in Farmer v. Brennan tomorrow,
it will also consider written arguments submitted in a "friend of the
court" brief by Stop Prisoner Rape, a national organization, that the
rape of male prisoners is widespread, repetitive, deadly, devastating,
predictable, and preventable. Prisoner sexual assault, the Court was told,
is seldom reported because it is "ingrained in the culture of confinement,
both among prisoners and prison officials."
In concluding a 43-page
argument summarizing the current state of knowledge on prisoner rape,
Stop Prisoner Rape, which is headquartered in Ft. Bragg, California, urged
the high court to use the Farmer case to "encourage officials to
take positive steps to deal with the problem systematically" and to allow
maximum possible access to the courts for prisoners raped behind bars.
The brief, submitted
to the Court by Annapolis attorney Frank M. Dunbaugh, outlines seven areas
where the organization, which is led by survivors of rape in confinement,
believes that new administrative policies or practices would "contribute
to ending or minimizing rape and its damage to the prisoner-victim." Among
these are realistic orientation programs to inform new prisoners of avoidance
tactics, institution-wide staff training on rape issues, classification
of all prisoners by rape risk factors "and appropriate placement, both
within an institution and among a jurisdiction's facilities," and trained
counseling for prisoner rape survivors.
The brief also lists
eleven areas where the organization believes that administrative policy
or practice tends to "increase the rate of sexual victimization and damage
to the prisoner-victim." These include "protective custody" facilities
"which penalize their residents, fail to protect them, and are commonly
indistinguishable de facto from punitive disciplinary quarters."
Also condemned is "staff stigmatization of rape victims and...overt discrimination
against rape survivors."
"If confinement administrators
are to make a serious effort to bring to the prison, jail and reform school
setting some measure of America's modern sensibilities to sexual abuse,"
the Supreme Court was told, "a systematic effort involving all aspects
of institutional life will be required."
The context of the
Stop Prisoner Rape brief is a case filed by a federal prisoner which seeks
to determine under what circumstances prison officials are liable for
preventing prisoner rapes because they constitute "cruel and unusual punishment"
under the Eighth Amendment to the U.S. Constitution. The prisoner is represented
by the National Prison Project of the American Civil Liberties Union,
while the Justice Department represents the prison officials.
"The widespread failure
to protect non-violent prisoners" from sexual assault is a "national disgrace"
which has changed little since first documented in 1826, said Stephen
Donaldson, New York-based president of the organization, in a separate
statement. He said the Supreme Court, in accepting the civil case for
review, had gained an opportunity to declare "the practice of tolerating
widespread rape" behind bars "repugnant to American concepts of justice."
Donaldson said: "The Court here has a splendid opportunity to signal wardens
and sheriffs around the country that they can no longer turn a blind eye
to the customary horrors inflicted on the youngest, most vulnerable, and
least hardened of all those locked up."
Almost all the perpetrators
and most of the victims of prisoner rape are heterosexual outside confinement,
Donaldson said, though the relatively few known homosexuals in jail are
more likely to be attacked. The rapists consider their victims to be substitutes
for women, he reported, so he considers the term "homosexual rape" to
be highly misleading.
Donaldson said he
himself had been repeatedly gang-raped in 1973 in the Washington (DC)
jail following an arrest at a Quaker prayer demonstration at the White
House, and that he had subsequently been acquitted of the charge by a
jury. The case gained wide news coverage after Donaldson was bailed out
and held a press conference at Quaker House, becoming, he says, the first
victim of jail rape to discuss it in public. "After twenty years of speaking
out on such outrages," he said, "it looks like rape victims behind bars
have finally gained our day in court." The organization he heads was founded
in 1979 by an African-American prisoner, Russell D. Smith, he said, and
is the only organization in the country dealing with prisoner rape issues.
Its executive director, Tom Cahill, is also a survivor of jail gang-rape.
A "friend of the
court" (amicus curiae) brief is a way for organizations concerned
with issues raised in a case to which they are not a party to call a court's
attention to how possible decisions would affect people not directly involved
in the litigation, and thus not otherwise represented. An amicus
often marshals generally accepted background information on a subject
for a court's consideration while avoiding the specific factual issues
of the case before the court.
Stop Prisoner Rape's
amicus brief begins by citing studies indicating that 14 per cent
of prison and over 3 per cent of jail residents had been sexually assaulted.
Both studies believed these figures were underestimates. Survivors, the
brief continues, are marked out for continued rape as long as they remain
locked up. Their only alternatives, according to the brief, are suicide,
solitary confinement, or exchanging use of their bodies for protection
from other rapists.
The brief, which
cites 27 articles and 7 books in support of its depiction, notes that
"the combination of rape and HIV can turn a sentence for a non-violent
offense, an inability to make bail, and even a status offense for a juvenile
into a potential death penalty decreed by no legislature and no judge."
The brief describes
the devastating effects of rape trauma syndrome but notes that institutional
mental health staff are generally not trained to deal with it. The organization
hailed federal courts in Florida for enjoining the Glades Correctional
Institution to adopt a staff-wide rape awareness training program, unanimously
upheld last summer by the Eleventh Circuit Court of Appeals in LaMarca
Very few prisoner
rapes (3.2 per cent of those uncovered in one major study) are reported
to officials, Stop Prisoner Rape maintains, because it is dangerous to
become known as an informer, very humiliating to admit a supposed "loss
of manhood," victims are often mistakenly classified as homosexual, and
formal reports are frequently discouraged by staff. "The usual attitude
of wardens and sheriffs," the Court was told, "towards pervasive rape
is to look away. That is why the state and federal systems are generally
characterized by the absence of staff training, no orientation to the
danger for incoming prisoners, no follow-up care for victims, and usually
no standard procedures for investigation of sexual assaults." Sexual assault
is even "commonly used as a management tool by administrators," according
former prisoners quoted in the brief.
cited a wide range of studies to support its thesis that characteristics
such as youth, small size, and race are singled out for special attention
by prisoner rapists and together with other factors make it possible to
predict who is most likely to be targeted. Other vulnerable traits cited
in the brief are relatively minor criminal charges, newness to incarceration,
first offenses, lack of gang affiliation, middle-class background, lack
of fighting experience. Knowledge of these factors should allow administrators
to recognize their most vulnerable wards and give them particular protection,
according to the brief.
"Prisoner rape is
most akin to sexual abuse of children," Dunbaugh told the court, "in that
we have always disapproved of it, but have only recently come to recognize
the extent of it, and we as a nation are beginning to face these problems
The brief also urges
reduction of prisoner idleness and open dormitories, attacks disciplinary
codes which penalize non-assaultive sex among prisoners and fighting in
self-defense, decries administrative harassment of what it calls "protective
pairing," and opposes discrimination against or involuntary segregation
Included with the
brief is a lengthy appendix containing excerpts from the Overview/Manual
of the Prisoner Rape Education Project, published last August by Safer
Society Press, covering rape trauma syndrome, administrative policy, "protective
pairing," and bibliographical references. The project kit, which includes
a 27-minute audio tape designed for prisoner orientation programs and
a 90-minute tape with advice for victims, should be available in all confinement
institutions, according to Donaldson, who suggested that prisoners press
libraries, wardens, and mental health staff to acquire the kits, which
SPR helped prepare, from Safer Society at PO Box 340, Brandon, Vermont