Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop for "Deliberate Indifference"

Article excerpt


On August 9, 1973, Stephen Donaldson, a Quaker peace activist, was arrested for trespassing after participating in a pray-in at the White House. (1) Upon refusing to post a ten-dollar bond on moral grounds, Donaldson was sent to a Washington, D.C. jail. (2) In the days that followed, Donaldson experienced a terror that is far too common for tens of thousands of inmates in American correctional institutions. (3) In the course of Donaldson's two nights behind bars, he was gang-raped approximately sixty times by numerous inmates. (4) Upon his release, Donaldson did what few others have the strength and courage to do: he spoke out. Donaldson was among the first survivors of jailhouse rape to come forward publicly to describe his abuse, launching a personal crusade to save other inmates from sexual victimization. (5) Donaldson later became President of Stop Prisoner Rape, a nonprofit organization that advocates for the protection of inmates from sexual assault and offers support to victims. (6) Sadly, Stephen Donaldson was unable to witness the fruits of his heroism because, on July 18, 1996, at the age of forty-nine, he passed away from infections complicated by AIDS after he contracted HIV through prisoner rape. (7)

In prisons across the country, many inmates face similar horrors every day. Sexual abuse in prison is one of America's oldest, darkest, and yet most open, secrets. (8) One former inmate recounted, "It is the rare convict who will never engage in homosexual acts." (9) In the vast majority of cases, mutual attraction or affection does not drive prison sexual relationships; rather, most sexual acts in prison are the coerced products of dominance, intimidation, and terror (10) Although the precise extent of prisoner-on-prisoner rape and sexual assault remains unknown, it is hard to dispute that rape occurs at an alarming and unacceptable rate in our prisons. The highest estimates of prisoner sexual assault are simply staggering. (11) Even the most conservative estimates leave little doubt that sexual abuse is rampant. (12) Simply put, the threat of sexual abuse is a reality of prison life. (13)

Although sexual abuse exists as an actual pain of imprisonment for many inmates, a state could not constitutionally sanctions such acts as punishment. (14) Yet, most prisons have steadfastly ignored the many possible reforms that could combat prisoner rape. Rudimentary humanity compels our society to do something. Successful litigation against prisons that fail to take adequate preventive measures may be the most effective way to stimulate reform.

In this Article, we offer guidance for inmates seeking to litigate against prison officials who condone and fail to prevent this sexual victimization. We endeavor for the practical, rather than solely theoretical, side of this issue, as we aim to sketch a litigation strategy for inmates victimized by sexual assault. In the pages that follow, we set forth the prevailing legal standard for bringing such claims, and articulate how commonplace prison circumstances tie into that standard. Under current jurisprudence, an inmate must show that prison officials knew that the victim was at risk to be raped and acted with deliberate indifference to that threat. In recent years, such lawsuits have been increasingly successful and, if prudently constructed, more should succeed in the future. The ultimate goal of these lawsuits is to induce prisons to adopt reforms that protect the rights of all inmates and diminish, if not eradicate, the horror of prisoner rape.

Our Article is focused on coerced sex between male inmates. We acknowledge that men are not the sole victims of prisoner sexual assault. Female inmates also face horrifying sexual abuse, often from the very individuals charged with ensuring their safety, prison guards. (15) Our focus on male inmates does not mean to trivialize the plights of female inmates. Quite the contrary, the rampant sexual abuse in female correctional institutions is a horrendous problem that must be addressed. …