Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop for "Deliberate Indifference"
Man, Christopher D., Cronan, John P., Journal of Criminal Law and Criminology
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.
The reason for our limited scope is simple. Our analysis of prisoner rape relies on the unique dynamics of the subculture that pervades many male penal institutions. This subculture, which relies on an aggressive conception of masculinity, places the quest for power and dominance at the forefront. (16) Behind prison walls, male inmates are stripped of most traditional means of asserting their masculinity and, consequently, turn to intimidation and aggression. To be sure, this mindset often is responsible for men raping women, but outside the confines of an all-male prison population it rarely results in men raping other men. In a prison society where each of its members is male, many inmates seek to reestablish their sense of dominance by using rape as a means of forcing other men to assume a submissive role that is perceived as feminine within that society. By better understanding this dynamic of all-male prison populations, it becomes much easier to identify would be rapists and to profile their most likely victims.
Comprehension of the dynamics of this unique male prison subculture is critical for any constitutional analysis of prison rape claims. In the seminal case, Farmer v. Brennan, (17) the Supreme Court established "deliberate indifference" as the appropriate legal standard for Eighth Amendment claims against prison officials in prisoner rape litigation. The subculture of aggressive masculinity, which is openly known by inmates and prison officials alike, is a paramount factor for assessing whether prison officials acted with "deliberate indifference." More importantly, sexually victimized inmates can rely on this widely acknowledged subculture to litigate successful claims against prisons and prison officials.
We begin, in Part I, by presenting the Farmer standard of "deliberate indifference." After showing how courts have interpreted this standard, we proceed to examine the prison subculture, a subculture that lends to a fairly straightforward application of the Farmer standard. In Part II, we discuss the psychological dynamics of rape, and more specifically prisoner rape. We explain the prison subculture of aggressive masculinity, and demonstrate what institutional factors grounded in this subculture promote prisoner rape. This subculture elucidates our understanding of which inmates will commit sexual abuse and which inmates will be victimized.
In Part III, we move to a more concrete analysis of prisoner rape. Here, we discuss the specific characteristics that can be used to predict the sexual roles an inmate is likely to assume, or be forced to assume. By and large, sexual assault in prisons is predictable. Certain obvious and easily identifiable personal characteristics determine whether an inmate will become a "man," the sexual predator, or be "turned out" as a "punk," the victim of sexual assault. We show the relevance of forecasting prisoner rape in Part IV. Prison officials, who are intimately familiar with the prison subculture, are well aware of these indicators of victimization. Immediately upon incarceration, an official often knows whether an inmate is likely to be an aggressor or a victim. This knowledge should compel action, for failure to take measures to protect endangered inmates constitutes "deliberate indifference" to a clear danger. Prison officials who fail to take adequate preventive measures at this stage should be liable under Farmer.
I. THE APPLICABLE LEGAL STANDARD: "DELIBERATE INDIFFERENCE"
Since the Supreme Court decided Farmer v. Brennan in 1994, the applicable legal standard for Eighth Amendment. (18) claims in prisoner rape cases has been clear and generally favorable to prisoner rape victims. (19) To establish an Eighth Amendment violation, the rape victim must satisfy a two-part test. First, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." (20) Second, the inmate must demonstrate that the responsible prison officials acted with "deliberate indifference" towards his health or safety in allowing those conditions to exist. (21) The first part of the test never posed much of a legal obstacle in prisoner rape cases because rape plainly is a serious harm. (22) The more difficult legal hurdle, at least before Farmer, was determining what was required by the "deliberate indifference" standard. (23) The Farmer decision clarified that the "deliberate indifference" standard does not place an insurmountable burden on prisoner rape victims. (24)
Although the Supreme Court rejected an objective test for determining deliberate indifference that was advocated by the prisoner in Farmer, the Court emphasized that the subjective test that it adopted would not leave prison officials "free to ignore obvious dangers to inmates." (25) The Supreme Court defined deliberate indifference by holding that liability requires a showing that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." (26) The Supreme Court emphasized that a prisoner "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." (27)
Moreover, the Supreme Court clarified that the prison official need only know that there is a serious risk to an inmate's health or safety, even though the official may not be aware of the precise threat. (28) If the prison is aware that such a risk exists, "it is irrelevant to liability that the officials could not guess beforehand precisely who would attack whom." (29) The Supreme Court added that because the constitutional violation is complete upon being placed in an unsafe condition, the prisoner can seek judicial relief before any physical injury actually is inflicted. (30)
Although this subjective standard is in theory more difficult to satisfy than an objective standard, as a practical matter it should not and has not prevented prisoner rape claims from being presented to juries. (31) The Supreme Court clarified that:
[W]hether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. (32)
To illustrate this point, the Court explained that knowledge of a substantial risk of inmate assaults could be inferred from the fact that such a risk was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past" and the circumstantial evidence suggests that the prison officer must have known of that risk. (33)
Although a "prison official may show that the obvious escaped him" under this standard, the Supreme Court explained that "he would not escape liability if the evidence showed that he ... strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." (34) For example, a prison official who is alerted to the fact that one inmate was preparing to attack another could be held accountable for the failure to investigate and confirm that threat. (35)
In applying the standard that it had formulated, the Supreme Court remanded Farmer's case that previously had been dismissed by the District Court. (36) The lower court inappropriately had assumed that Farmer could not prove that prison officials were aware of the risk because Farmer had not given them any advance warning. (37) The Supreme Court explained that no advance warning from Farmer was required because knowledge could be established through "any relevant evidence." (38) Applying the victim profile, which is described in more detail in Section III, the Court explained that adequate evidence did exist for a jury to infer deliberate indifference. (39) Dee Farmer was a twenty-one year old transsexual who had breast implants, had taken female hormones, and had a youthful and feminine appearance when she was placed in the general male population at a high-security prison. (40) Farmer also was a non-violent offender. (41) The Supreme Court appropriately recognized that a jury could infer from those facts that prison officials must have known that Farmer was at risk. (42)
After Farmer, prison officials have continued to assert the ignorance defense, but it seldom has been effective in preventing prisoner rape cases from being presented to a jury. The problem for prison officials is that their past failures to protect the constitutional rights of inmates has made many of this country's judges virtual experts in applying the prisoner rape victim profile. Although persons who are unfamiliar with prison dynamics may find the stories of prisoner rape so foreign and bizarre that they may conclude, or at least want to believe, that such events must be unpredictable fluke occurrences, judges know better and routinely allow prisoners the opportunity to present their case to the jury. Of course, judges also know that prison officials are well aware of prison dynamics and the accuracy of the prisoner rape profile. (43)
In fact, judges are so well acquainted with the reality of prisoner rape that they often anticipate that the constitutional rights of those whom they sentence will be violated in prison. As the Eleventh Circuit appropriately recognized, in the prison environment, "[h]omosexual rape is commonplace." (44) Entire prison systems have been held unconstitutional where prisoner rape is rampant. (45) Therefore, courts will use the prisoner rape victim profile in making downward departures from the sentencing guidelines where they find that a defendant is particularly vulnerable to rape. (46)
Although every rape is different, courts have held that a jury can infer deliberate indifference based upon any of a multitude of factors that are typically present. In most cases, common-sense alone serves as an adequate guide. For example, Wilson v. Wright (47) provides a stark, but all too common, example of a prison official's deliberate indifference to the safety of its inmates. (48) The prison housed a 6'1", 290 pound Black man who was serving a lengthy sentence for abducting and raping a twelve-year-old White boy. (49) The inmate was classified as a high-risk prisoner, had a history of violence and disciplinary problems within the prison, and his prison file indicated that he had sexually assaulted a fellow inmate in a county jail. (50) A new inmate was transferred to the prison upon turning nineteen. (51) He was a 5'8", White, non-violent offender, who weighed 136 pounds--roughly one-third the weight of the man with whom he would share a cell. (52) The new inmate also had a deformity of his spine that caused his buttocks to protrude and invited abusive and often sexually-oriented remarks by fellow inmates. (53) A report by a prison psychologist noted that the inmate was afraid that he was at risk of being sexually assaulted and the psychologist added that "`[d]ue to his impulsivity, immaturity, and small stature he may well be victimized as he fears.'" (54) Despite the extreme lack of parity between these two prisoners, they were forced to share a cell together. (55) Not surprisingly, the new inmate was raped his first night in the cell. (56) The court had no difficulty finding that a jury could conclude that the prison official who made the cell assignment would have seen these facts in the inmates' files and could be found deliberately indifferent in placing them in a cell together. (57)
Although many of the courts' conclusions regarding what can be considered evidence of deliberate indifference is obvious, they are worth repeating because the same pattern of cases is constantly repeating itself. (58) Courts have found that deliberate indifference can be inferred from the following circumstances: guards raping or sexually harassing inmates; (59) guards sexually assaulting inmates to coerce them into signing statements exonerating them from wrong-doing; (60) prison officials setting inmates up to be raped or attacked by other prisoners as a form of discipline; (61) knowingly placing an inmate in a cell with an HIV positive inmate who has a history of rape; (62) housing inmates with aggressive homosexuals that have a history of coercing their cellmates for sex; (63) the failure to consider the rape victim profile in making cell assignments; (64) guards watching a rape in progress and not doing anything to stop it; (65) failure to transfer known or likely sexual predators to areas where they could be controlled; (66) officials knowing that one inmate had attacked the same inmate before and failing to protect the victim from further attacks; (67) officials knowing that threats of rape were made against an inmate and failing to provide protection; (68) victim's appearance, traits, or mannerisms fits the profile for prisoner rape victims; (69) where prison officials previously had acknowledged an inmate's vulnerability and failed to protect him; (70) where formal requests to be removed from a cell because the inmate is being raped are denied; (71) refusing requests to be placed in solitary confinement where there is a genuine risk to safety; (72) where the prison official calls the inmate a "faggot" in rejecting his pleas for help; (73) dismissing a substantial threat of rape on the theory that heterosexual men can protect themselves; (74) identifying a prisoner as HIV positive, if knowing that the label would make the inmate a target for violence; (75) guards branding a prisoner a "snitch"; (76) failure to control inmate movement; (77) failure of guards to patrol dormitories, particularly at night; (78) allowing a prevalence of weapons; (79) allowing inmates to obstruct vision into their cells by hanging sheets; (80) and possibly even where a prison has failed to take adequate steps to stop the spread of AIDS by segregating HIV positive prisoners. (81)
In addition, courts recognize that prisons actually foster rape through policies that fail to punish rapists or fail to assist rape victims. In holding the entire penal system of the State of Texas unconstitutional, Judge Justice explained:
[T]he combination of inmates who are routinely subjected to violence, extortion, and rape, of officers who are aware of inmate-on-inmate victimization but fail to respond to the victims, of high barriers preventing inmates from seeking safekeeping or protective custody, and of a system that fails to accurately report, among other data, instances of requests for safekeeping and sexual assaults, and, as well, the obviousness of the risk to prison officials, when all are considered together, have the mutually enforcing effect of rendering prison conditions cruel and unusual by denying inmates safety from their fellow inmates. (82)
Likewise, in finding a Florida prison unconstitutional, the Eleventh Circuit explained that "the procedures for investigating rapes, to the extent such procedures existed, were not followed; some of the reported incidents were not investigated at all. The lack of such procedures created an atmosphere of tolerance of rape which enhanced the risk that incidents would occur." (83)
Courts have held that "prison officials should, at a minimum, investigate each allegation of violence or threat of violence" (84) and prison officials cannot dismiss an inmate's allegations as improbable when the facility has had a significant history of inmate on inmate violence. (85) Similarly, the failure of prisons "to compile and report data on such assaults evidences disregard by prison officials for a crime that rips at the dignity and humanity of its victims." (86) Nevertheless, prison officials often fail to conduct adequate investigations.
In far too many cases, prison officials respond with deliberate indifference to the pleas of rape victims or those who have been threatened with rape. (87) Courts have held that a jury can find prison officials deliberately indifferent if after being informed of a rape they do the following: advise that it is an inmate's own responsibility to prevent rape by fighting; (88) adopt a policy that no rape really occurred if the inmate did not fight back after being threatened with physical harm; (89) tell an inmate that he would have to solve his own problems and that prison officials do not want to be bothered by "cry babies;" (90) advise a prisoner to consent to sexual demands for his own safety; (91) tell a retarded inmate to go back to his cell and to stop being a whore after reporting that he was forced to pay for protection by having sex; (92) joke that "here's another one  the booty bandit got" or laugh at an inmate for being sold for cigarettes. (93)
Moreover, when investigations do take place they are often inadequate. Homosexual or bisexual inmates often report that prison officials refuse to investigate their claims seriously because the officials presume that any sex that these inmates engage in is consensual. (94) In addition, courts have noted that at some prisons "there appears to be a strong presumption on the part of prison officials that, in the absence of outward physical harm to assaulted inmates, such as cuts, abrasions, and bruises, no sexual assault occurred." (95) Prisoners often inform Stop Prisoner Rape that they have difficulty persuading officers to investigate or to investigate thoroughly, particularly when there are no signs of a brutal fight. (96) Many prisoners perceive that prison officials refuse to confirm their rapes because they do not want to take a more active role in protecting them. (97) Prisoners are often told that it is essentially their fault if they failed to fight--even if there are multiple attackers or the attackers are armed--and that they will have to deal with the problem on their own by fighting or agreeing to be a "punk." (98) Inmates see the refusal to investigate thoroughly, or to conclude formally that a rape occurred, as the prison officials confirming what their attackers frequently tell them in crass and simple terms: they have two options--"fuck or fight." (99)
At many prisons, rape victims are discouraged from seeking protective custody or administrative segregation because it is not protective and often forces the inmates to live in worse conditions. In many prisons, inmates who are segregated for …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop for "Deliberate Indifference". Contributors: Man, Christopher D. - Author, Cronan, John P. - Author. Journal title: Journal of Criminal Law and Criminology. Publication date: Fall 2001. Page number: 127+. © 1998 Northwestern University, School of Law. COPYRIGHT 2001 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.