Prison Rape by Men Needs a Strategic Lawsuit to Drive Reduction

Rape of men in prison leads to rape of women outside.

People, especially young people, tend to want to live forever. The nearest way is to make children. Women can become pregnant for that. Pregnancy does not physically require a woman’s voluntary choice. Men tell each other that they have the right and women the duty of sexual intercourse, the means toward eternity. Men tend to be stronger. Rape is easy, except for the resistance.

This is not always true. For example, we don’t all agree that choice is not vital.

But it is more often true of men in prison than of people out of prison. Prisons are different from the ouside. That the men are forced to stay is one difference. The rules are more extensive. The enforcement is different. The expected public social attitude toward former prisoners makes prison life different. The current public social attitude toward current prisoners is expressed politically and makes prison life different. Prisons are constrictive of men. Prisons, most of them, deny men access to the making of babies or to sexual intercourse with women for any purpose.

Functionality of Rape

However, it turns out the men will make do. Men will settle for symbolic impregnation by doing much the same sexual practices on men instead of on women. This includes rape. But when men leave the prison, they find women. The men won’t feel the same necessity to settle for men as sexual objects. They can now exploit women as sexual commodities. Rape is easy, except for the resistance.

Pain is painful. Empathy for other people’s pain has to be limited or all seven billion plus of Homo sapiens could die of grief in a few months. So, for many awful plights, if we can’t help, we look the other way. But, by looking the other way regarding rape in prison, we allow the spread of rape of women and to the eroding and, sometimes, destruction of women’s power, especially wherever murdering women because they were raped (to be technical, because they were adjudged to have committed adultery, so deemed because they said they were raped but were not believed) is accepted and practiced but also where women are allowed to hide the rapes and rebuild their lives, because even for the latter time is lost.

While looking at what male ex-cons do is important, as is looking at what women do in and out of prison, as is looking at how women resist men who rape, as is looking at the result of the resistance, as is looking at men anywhere who don’t rape, it is also important to look inside prisons.

That rape of women is worse than is rape of men is critical and is due to the multiple forms of invidious discrimination against women as such, causing compound consequences that harm women and society, rape of men in prison leads to rape of women on both sides of the prison gates.

We have to stop rape inside prisons.

We won’t achieve that without trade-offs that may be worse. Maybe chaining every man to a wall 24 hours a day for as many decades as they have to be there, preventing any contact, may make men even harder to welcome unsupervised into civil society when they leave. About 19 out of every 20 prisoners in the United States leave prison while still alive, so welcoming former prisoners into civil circles is needed. Not doing so will likely increase rape of outside women to be even more common.

But we can reduce rapes in prison.

Where the present system is to play Let’s Pretend, probably in most prisons, rapes get swept under the rug. I wish that were not a metaphor. There may not even be rugs. But rapes widely get ignored or disguised by officialdom. If rapes, instead, were acknowledged and confronted, a massive reduction in rapes would be within reach and that is beneficial.

Simply keeping men busy is unlikely to be enough. Classes, work assignments, administrative processing, legal case preparation, personal correspondence, and hearings are good anyway. But men who want sex with someone tend not to let being otherwise occupied get in the way. The men they’re with tend to approve of their making arrangements for sex. They’re not being helpful out of abstract principle. They’d like it, too. They’re simply engaging in mutual assistance against inconvenient guards. This makes detection harder. If mutual assistance includes falsifying records about where someone was, that alone may make detection harder.

Educating men to refrain from rape is, of course, a good idea. But it will largely be ignored, so it won’t be enough. It will be ignored because it is contradicted by most of society. If someone’s in prison for robbing a bodega, they’ll understand at least that most people think robbery is wrong. The robber may think they were right to do what they did because of some particular exception in their mind, and they’ll be wrong, but at least they’ll recognize that most people are against robbery. Likewise for arson or stock fraud. But not rape.

Rape is carefully distinguished by most rapists. Rape, according to some of them, is a highly unusual and circumscribed activity that someone else does. It may involve dark alleys or young children or guns at heads. But most rapists think they’re good people who are just negotiating from “no” or reacting like a normal man to the clothing or recognizing that it’s Saturday night at the club anyway or righting an imbalance after some claim of having been slighted by a woman, maybe the same woman or maybe not, or acting on his testosterone or other physical excuse or saying she’s his wife or girlfriend anyway or he can’t help it or whatever fits his fancy.

Carrots and sticks are likely what we need.

Classwork or therapy towards good is a carrot, but it has to be credible to the rapist we hope will become a former rapist, and therefore has to include assurance that he’ll still get to have sexual intercourse under this model that’s new to him. This creates a dilemma. Either we teach that there’s no entitlement to try impregnating and accept that this is philosophically an extremely heavy lift for the man who likely will fail to agree or take a path more agreeable to the man, avoid the subject of entitlement per se, focus on reducing his use of force in encounters, and teach that there’s someone for everyone, whch is not far from saying women have a collective duty to vaginally serve men as long as one they serve is sometimes nicer than one they didn’t serve.

We’ll work on that, but we also need a stick. Enforcement is that.

Some enforcement steps are obvious, even if they’re rarely done. Acknowledgment of the problem is one. Acknowledgment of the scale of the problem is another.

Maybe there are hundreds of thousands of rapes a week in men’s prisons nationwide; we may not be able to estimate a worldwide figure. But maybe it’s easier to focus on on a narrower case. I say there are thousands of rapes a year in a single highly populous high-security prison for men and meant for the serving of sentences totaling a decade or more and in which most prisoners spend some time together most days, even without overcrowding and almost no one even gets reported. A warden would likely say there are fewer than a dozen a year and all the rapists get caught and punished. Which claim is much closer to being right?

Feared most by most future prisoners is violence towards them by other prisoners, violence on a scale larger than they can suffer or deter. Many prisoners form or join alliances inside prisons, alliances not with law enforcement officers or prison staff but alliances with some prisoners against others, sometimes in gangs. Alliances mean not hurting your allies and even taking their word about a wrong they say was done to them so that you can certainly avenge the uncertain wrong. This assures protection that may be better than law enforcement officers can deliver. Part of the violence feared is sexual. Part of the price for the protection may be sexual. Are you young enough? Your mouth looks good.

The general public outside has heard that there’s lots of rape in prison. Are we to believe that the public is just imagining it? Literature over the years has had some recollections of it. As a child, I had a nice trip to a remake of a colonial village. Stocks were on display. Someone who misbehaved could be locked into the stocks, resting one’s head and wrists on half-holes while the upper wooden board was locked down, giving the prisoner not much room to move the head or either hand, while the prisoner stood in this position. We children got to try it for a moment. It was fun. I think we were told a sentence would be overnight, but we never tried standing that long. Many years later, I read that often a real prisoner in the stocks were found with their pants down around their ankles. If someone came from behind and didn’t speak, they might never be identified. Quantity didn’t much matter; the guy in the stocks (I don’t know if women were put into them) could not impose a limit. I assume the abuse the guy in the stocks got was without permission. I assume it was rarely prosecuted, since, as far as any prosecutor knew, no one saw a thing.

Developing countries don’t have much money and prison has to be worse than outside life, or people would not object to prison. So, prison is worse. To save money, living may be in group quarters. if someone misbehaved, isolation may be too expensive. Maybe the bad one is chained to a bed in the group quarters. Reportedly, some got raped while chained. But rapists should be easier to identify, unless one holds the guy down and his head in one position or blindfolds him with random cloth while others anonymously and serially rape him. He could report this, but if the prison wants chaining to a bed as a cheap punishment maybe they don’t want rape reports. And then the guy will continue living with his rapists, which, if he reported any of them, could be worse than just living with rapists.

Guards may be too few in number. Their job is difficult. Prisoners are sometimes willing to kill guards without warning. Hiring more guards per hundred prisoners is politically unlikely, at least until some jurisdiction does it and has proportional, measurable, and sustainable success directly attributable to the increase. Until then, guards and their supervisors have to prioritize their work, perhaps even more tightly than wardens prefer. There are not enough guards to catch and punish every infraction. I heard a radio interview with a former member of organized crime who had spent time in prison and was now out. He said he had a hot plate in his cell. I can imagine why that might be illegal; it consumes a lot of electricity, which adds up cost-wise, but also it could be a fire hazard and deadly in the hands of someone you wouldn’t care to trust not to use it as a weapon on someone’s face. The interviewer asked, Big-time crooks can have hot plates? Answer: Small-time crooks can have hot plates; the guards have bigger things to worry about. Many guards likely would consider sex to be just normal and, even where institutionally barred, to be ignored. I understand some institutions distribute condoms, and they have no use other than for protection during sexual intercourse, consensual or not.

Men who say they’ve been raped are likely almost always heavily stigmatized. Being raped implies they’re no stronger than women. Men are supposed to be stronger than women; therefore, the implication is that they’re weaklings and whatever they have, including sexual facility, can simply be had without asking. If the men are in prison, being public about being raped is likely to increase how often they get raped. Therefore, reporting is counterproductive. The proportion of men in prison who have HIV/AIDS is higher than in general society. HIV/AIDS is sexually transmitted. Therefore, men reporting rape is harmful to their own health. HIV/AIDS if inadequately treated is deadly. Prisons reportedly are often inadequate in delivering health care, especially when expensive. HIV/AIDS life-saving treatment is expensive. Therefore, men reporting rape is disproportionately deadly. Reports of death by HIV/AIDS are unlikely to cite events that are uncertainly associated and much earlier and therefore are unlikely to cite rape as contributory. Therefore, statistics of reports of rape are inadequate for determining the scale of the problem of rape.

Families of the imprisoned and formerly imprisoned likely have more information on the incidence rates.

One former prisoner wrote a book, titled 053803. He wrote that there was little or no rape. He contradicted this in the same book. His experience was during nine years in a Florida prison in the s–s, not too long ago. He published the book himself, which means that no editor told him what he had to say in order for the publisher to print it. He wasn’t very apologetic about the crime that landed him in prison. Maybe he lied a lot. Whether you believe him is up to you. If you believe what he wrote on other subjects, then you should believe what he wrote about rape and sex. It is no less credible. How he contradicted his claim of rape being rare or absent is that he describes beatings in exchange for sex. Essentially, he called it sex. It’s rape.

Perhaps a contrast is in another book. I didn’t read it but I heard a book tour author radio interview. The author was a New York State corrections officer who got that position while being a reporter for The New Yorker magazine, a very credible journalistic source. In the interview, he said he didn’t find rape even though he looked for it in various places including stairwells. It’s worth reading simply as a point of view with doubtless solid reporting behind it even though I question whether he, too, had an overly narrow definition of rape.

No prison in the U.S., to my knowledge, mixes women and men as prisoners. One in Massachusetts has both genders in the same facility but they do not mix. They don’t use the yard at the same time or take classes in the same classroom together. It’s obvious to most people why the sexes are not allowed to mingle in prison, and it’s not just a risk of pregnancy and the expense to the state of having to help take care of a baby who has been convicted of nothing. It’s the virtual certainty of rape. If the general public thinks that being gay for the stay, so to speak, will prevent rape, the public is foolishly mistaken and it probably doesn’t think so, but considers gay rape to be a perfectly acceptable part of the punishment for the crime leading to the incarceration, without considering that it is a reward for the rapist. It is also possible that the public thinks that it is a punishment for the rapist because he is deprived of heterosexual sex for which gay sex is an insufficient substitute. This is bizarre as a justification for not stopping gay rape, since rape is still rewarding. Susan Brownmiller, doing research and preparing to be the author of Against Our Wills, a groundbreaking book on rape, interviewed a rapist who had been imprisoned. He said he had been interviewed by psychiatrists about why he raped, and he said they were very smart, but he thought they had all missed the main reason why he did it: He liked to. She and I took him at his word.

One Soviet prison did mix the sexes. When I was a schoolchild, I was taught how fearsome were the Soviet police, the KGB, and the KGB policed the prisons. A Cold War-era political dissident was imprisoned in this mixed-sex prison. Typically, a man who was a prisoner would take a woman who was a prisoner as his wife and announce this to everyone present. This was accepted among prisoners. It was not official, but England and the U.S. used to have common-law marriages requiring no paperwork or wedding by a government official or religious minister and they were still valid. When the man in prison grew unhappy with his claimed wife, he’d kill her, maybe by cutting her throat. Then he’d select a new wife. She’d go to other women prisoners and ask for advice. What should she do? They’d praise her for having been chosen for this honor. They’d encourage her to become his wife. And she likely would. I don’t know if any refused and lived. I wonder if any survived the honor. I doubt Soviet statistics are available. I doubt the KGB was ale to prevent it. I doubt the KGB was able to prevent many rapes whether under cover of functional marriage or not. I doubt that, on balance, mixing the genders was a good idea. I guess most nations would agree.

As difficult as antirape enforcement is, the Soviet case being a good example, hardly bothering to enforce is dangerous. We won’t get to zero. We haven’t gotten to zero for rapes or murders or arson or financial fraud or consumer fraud in any large society. However, when we’ve kept the pressure on and had some enforcement success we’ve generally improved lives. So, the question is how to enforce when present methods are not enough.

Judicial Scrutiny

It’s time for a court case against an entire state’s criminal custodial system for a systemic failure to enforce through several prison administrations and several gubernatorial administrations despite the rape of many prisoners. Jails are considered in this article as if prisons; both are custodially similar and under closely related management, although the statistics on rape may possibly differ. Legally, whether a criminal custodial facility is publicly or privately run, for profit or not, does not matter. The case should be civil, not criminal, so that the standard of a preponderance of the evidence can inform the verdict. The lawsuit concept should be replicable in other states. This would be expensive to mount. The preparation would consume a lot of a prosecutor’s time. Not many organizations would give the prosecutor awards for the good work, since prisoners are considered the bottom of society and almost everyone can name the so-called “real crimes” the prosecutor and the judge should have gone after. But there are many prosecutions where society agrees on the law being on the books even though we don’t think highly of the beneficiaries of those prosecutions. Society does not generally support prison guards who, according to news reports, help themselves to het sex with women prisoners in exchange for cigarets, for example. And, of course, prosecutions on murder, contract fraud, and a host of other offenses would continue.

The expense can be justified on grounds additional to the acts in the complaint being unlawful. When women are raped, even when they don’t report the rapes to the police, the effects on the women likely include various impairments in their lives, at least temporary impairments, such as loss of productivity in employment and therefore, often, loss of employment, difficulty in familial relationships, and psychological conditions, e.g., depression. Some of these effects may have been quantified and converted into dollar costs to society. Measuring the macroeconomic benefit of a lawsuit of the type discussed herein as proportional to the micro- and macroeconomic costs of women being raped is difficult, but available data of scholarly quality may suffice to be worth attempting a financial cost-benefit analysis.

Federal prosecutions are likelier to succeed, because fewer holds would be barred. The States that could best do their own prosecutions would likely be those in which a prosecutorial authority, such as an attorney general, is elected separately from whoever runs the prison system, generally the governor, and in which those two electeds are from different parties or, in a virtually one-party state, from decidedly different factions of the party, factions few voters confuse. Fewer holds would be barred because the State government would have less power to restrain the prosecution.

Scientific studies perhaps should precede trials. Some of what should be proven in court may be more easily so proven if consistent with what a consensus of scholarship has already developed. This may add a year or two, or so, to case preparation and may require leadership independent of and cooperation with a prosecutorial office, so that, e.g., study designs are more compatible with litigation goals and availability of raw data is not a problem (if it’s better to await destruction of raw data that might add about five years to a prelitigation stage). What follows focuses on trials rather than on scholarship; how to separate the two will depend on the current state of scholarly knowledge, and that’s likely more fluid than case law on point.

Children being raped, rape between guards and prisoners, and rape outside of prison should not be part of this case any moore than minimally necessary and preferrably not at all. All of these are so enraging to likely jurors that these issues could become distractions overwhelming the main point, the far more frequent rape of men who are prisoners. The other issues can be dealt with by using other cases or they can be stipulated to. In addition, children who are prisoners (typically teenagers) tend to be housed in separate facilities (viz., juvenile facilities) with some separate staffing and some separate laws and policies, which would tend to lead to liability being found against different parties and a failure to find liability regarding rape of men. More likely is that both kinds of cases can be brought and won, one with respect to juveniles and the other with respect to adults.

The approach at trial should not be to prove each individual rape (beyond what’s necessary for the court to have jurisdiction over the core of this case) but to show a pattern and practice. This is more difficult, but an individualized approach is not good for much more than relief for the individuals individually proven to have been raped, and that is often subject to the desire and skill of people who can cooperate to conceal or destroy evidence. Individualization therefore can defeat the goal of reform and encourage further care in preventing such cases from being provable to judicial satisfaction, resulting in greater opportunity for rape. That can increase the incidence of rape.

Establishing a pattern usually relies on counts of events. Counts of rapes should be based not on convictions of rapists, which are artificialy few relative to experienced incidence, but on statistical methods used in social sciences. A law enforcement agency can determine whether car drivers tend to speed on some highways more than on other highways by using social science methods to observe masses of cars being driven even without knowing the names of drivers being observed. Law enforcement agencies often receive unverified tips of what may or may not be violations of law from unidentified members of the public, often accept those tips, and often investigate some of those tips; and some of those tip investigations lead to arrests and convictions that are upheld on appeal. And it is not necessary to rely on unproven tips or hunches to make the case. Statistically valid sampling of a representative population and neutrally surveying of members of each such sample is part of scientific study methodology applicable to a case like this. The United States Department of Justice, through its Bureau of Justice Statistics, has done studies of this nature even though the results, of at least some studies, do not identify any suspect, and from some such studies has found that crime is higher than is known from numbers of convictions alone.

High statistics, however, won’t be enough to show institutional liability. Part of the pattern is in how what prisoners do causes and contributes to rape across the penal institutions. Showing that the criminal methods used by prisoners are reasonable from the prisoners’ viewpoint as ways to achieve what the prisoners want will make the case more understandable to a jury. This can be done without presenting what prisoners do as good, just methodical and generally frequent enough for some consistency.

A large number of witnesses may be required. Hopefully, the evidence can be arranged so as to keep the jury engaged throughout. Jurors who are engaged will likely find this painful.

The relationship between prisoners and guards would seem obvious but should be made part of the record. One prisoner and one ex-prisoner should testify. The current prisoner should be one who is being punished (likely meaning is already in solitary confinement for a long time) for assaulting more than one guard) and who did not deny the assault but whose claim of innocence, if any, is patently absurd (like if he testified at a disciplinary hearing that he wanted to consume his heroin in peace and the guard wouldn’t let him). In his testimony, he should be presented with each anti-guard infraction and his contemporary response so that he can either agree or be impeached. Then, while this might seem chancy, he should be asked a provocative question about his feelings toward most guards, and he should be allowed to yell and rant until he gets irrecoverably incoherent, repetitive, or irrelevant.

The ex-prisoner can testify as an expert on prisoners generally from his observations, and should be calmer in demeanor, but testifying to approximately the same effect about the hatred prisoners tend to harbor against most guards. Some prisoners have started and completed college educations while inside, some in sociology, and such a prisoner might be the most articulate and respected on point.

Possibly, an academic expert should testify to much the same effect, but briefly.

That even the worst of prisoners may like one particular guard should be dealt with by noting the number of guards likely encoountered on almost any day, showing that the number disliked vastly overwhelms the number liked.

Guards and guard supervisors should testify about their authorized use of violence to control prisoners and to influence prisoners’ unsupervised behavior through fear of official consequences. When selecting as expert witnesses a guard and one supervisor at each level of supervision directly above the guard, the choices should be made from nonrookies who have each been accused, investigated, and exonerated at least once of use of excessive force and never found to have used excessive force. They should make clear that all of their past use of force was authorized by law and supervision and then should never again bring up the differentiation of their authorization vs. the prisoners’ nonauthorization for use of similar force. This should be done by treating these most often as demands for behavioral compliance rather than legal compliance, both being within guards’ authority, the legal premise being established early. The corrections personnel should each explicitly and graphically describe at least two such uses of force, generally the more violent but still authorized the more persuasive in court.

If available, a prisoner against whom such force was applied and who came to agree with, or at least no longer disagree with, its use should be invited to testify. Be clear when inviting about the scope of the examination or the testimony could easily be inconveniently discrepant from the objective of the testimony.

An eminent child psychologist should describe how normal children learn behavioral standards, especially their mimicry of their parents, including their negative mimicry, such as during the “terrible twos”, when children around two years old start saying “no” and hitting people with little apparent justification. The prosecution would not be excusing prisoners for doing so, but would be laying the groundwork for making visible some ways in which prisoners, who are convicted criminals, think: if they can be hit for the sake of discipline, they can do the hitting, too, especially to discipline someone considered junior to them, regardless of whether guards agree.

Instances of prisoners mimicking for good purposes should be introduced, to show that mimickry is accepted as educational.

Then, mimickry for bad purposes should become the subject. A prisoner ineligible for parole and convicted of multiple assaults in prison should testify as to his use of violence in each event in which the bar to double jeopardy, the expiration of the statute of limitations, or other law protects the prisoner from further charges on point (and he should agree on his legal protection so he can feel freer to testify on point). He should be neutrally asked to justify, insofar as he remembers, using violence per se. The questions should be neutral in order to avoid explicitly approving what the prisoner did but to let the jury consider the answers not as invalid excuses but as justifications, as intended by the witness.

In one maximum-security prison, new prisoners were admitted on Thursdays and had to walk past other prisoners in an area without guards. They were beaten. There may have been no stated reason. However, it likely was meant as a general softening of new prisoners’ resistance; and it likely worked most of the time. In other highly secure prisons, prisoners with more years of incarceration in the same prison may have established or continued practices with similar effects. These should be testified to, preferably by prisoners who so practiced, one prisoner-witness per prison. This should be followed by an academic expert, perhaps in psychiatry, on the effect, especially if the expert has interviewed prisoners on the receiving end of the practice but even if not.

Some former prisoners assist defense attorneys by advising the lawyers’ clients on how to survive imprisonment. This may be more common for white-collar defendants who have been sentenced but have not started serving in confinement yet. Such advisors likely are articulate and might be good as calm expert witnesses who often know about several kinds of prisons. They probably need not disclose whom they advised or what they said to lawyers’ clients but can still testify in general terms.

The next round of testimony should focus more on instances of closer proximity between violence and relief therefrom through sexual service. This can start with cases of rape already found, with testimony from both rapist and the raped. If the same prisoner was raped in one instance and was a rapist in another, the testimony should be in the order of having been raped followed by being the rapist, in order to imply or show consistency with the testimony on child psychology about the child experiencing and then mimicking and in order to show that the failure effectively to intervene after that prisoner was raped likely contributed to that prisoner’s decision to rape. If the prisoner is willing, such as if he is legally immune from consequences of his own violence and if any prisoner whose violence he describes is deceased, he can describe the role of violence in gaining compliance with either rape. He might also discuss the benefit of raping in terms of power gained, for example, that the person raped was resistant before but morew compliant in general afterwardsa, in order to show a nonsexual effect of rape from which he should not have benefitted. Rapists who are protected from prosecution or in-prison punishment for raping even if they testify to all the details could be the most informative witnesses.

An academic-level expert analysis of in-prison rape complaints and dispositions by prison authorities empirically showing the evidence of rape generally necessary for finders of fact to have concluded that rape happened should be presented. This should not be based on what the law says but on patterns of facts that, in the views of finders, suppported or failed to support findings of rape. An example would be whether other prisoners who were present during an alleged rape testified about whether the event was a rape; perhaps the lack of such testimony means that rape was not found. As another example, if prison adjudicators appear to apply a standard of reasonable doubt in rape cases but preponderance of evidence on drug cases, that should be brought out.

Sexual relationships that are said not to be grounded in rape should be introduced, in order to cast doubt on the alleged freedom from rape. The best might be those in which the partners are strongly dimorphic (only one being both at least six feet tall and larger around the waist), the partner with the larger body is not monogamous (monandrous) but the one with the smaller body is, and there are reports of many disputes between them. One witness shoud suffice to describe such a relationship, the one who is smaller. A large photograph of the nonsmiling couple in front of height rulers and with a guard who is no bigger than the smaller partner standing in between should be introduced; the witness can identify himself and his partner in the photograph. The questioning should raise the possibility that the primary purpose of the relationship is safety from violence from other prisoners or from the same prisoner who is the partner, the safety being due to the protective service to be provided by the larger partner as needed. Should he deny that without an effective counter explanation, the prosecutor can ask whether, in the witness’s experience, guards usually provided adequate deterrence against prisoner-vs.-prisoner violence and, if he says yes, this can be impeached with records of undeterred violence among prisoners that was reported by guards, while explaining that funding does not allow staffing sufficient to preclude most violence that still occurs.

If prisoners who are gay, bi, or trans are known as gay to other prisoners because the prison administration deliberately collects and disseminates that information (reportedly one California prison required gay male prisoners to wear blue uniforms instead of the usual color), that doing so increases the danger to GBTQ prisoners (it likely does) should be introduced, including why it increases that danger, even if the deliberatude is for other purposes or applies to other process for which this consequence is merely incidental but still reasonably predictable.

If prisoners label each other as gay or close enough to being gay, especially if such labels are recorded, such as if prisoners scar or tattoo each other with such a meaning, especially if the scarring or tattooing is against the will of the newly labeled prisoner, that should be the subject of testimony, both eyewitness and expert.

Condom distribution serves health purposes, but it also seems to signal voluntariness. However, it also helps conceal evidence of rape, just as raping a woman and tossing her ten dollars conceals rape and allows presenting apparent prostitution. Testimony on the invidious role of a condom (not against the health value), and of official condom distribution by the institution, should be provided.

An official should testify that their firm policy is to punish all rape. At this stage of the trial, this could seem ironic, naive, or unbelievable. To emphasize the vapidity of that policy, since rapists convicted even in prison should serve to deter others, the witness should have no hesitancy naming all the rapists convicted under the policy in the preceding year, and that will likely be few or none and the circumstances of the rapes will likely not match those of the usual rapes in prison, showing that rapists who rape outside of what the prison administration will convict for will almost certainly get away with it. If the prison considers the identities of convicted in-prison rapists to be confidential, that could appear as the prison administration not caring about deterrence.

A large prisoner should testify on his service in protecting other prisoners from violence because of the frequent failure of the prison’s formal security system to do so. This might involve either being a peacemaker, as a neutral interventionist, or taking a side. He can be asked whether he believes that his size by itself was persuasive in some cases of achieving peaceful outcomes between prisoners; that sounds sufficiently noninculpatory that he might be willing to answer in the affirmative. If a prisoner is unwilling so to testify, an ex-prisoner should be invited. This service can be presented as altruistic, because, even as such, the service is not supposed to be needed and probably, if violent, is not supposed to be provided. Self- and group defense may generally be allowed but punishment probably is not and deterrence is often through punishment, a point confirmed daily by the correctional establishment itself.

Rapes of prisoners occurring in prison tend to ramify in the lives of the people raped before and after they leave prison and in other people’s lives, and this should be the subject of witnesses, expert first and eyewitness second. The expert testimony should be based on academic or academic-quality social surveys, studies in criminology and in psychiatry, psychotherapeutic clinical work, and the work of peer counselors, who are generally likely to be former prisoners who were good at listening to prisoners or former prisoners and good at sharing or exchanging advice as peers rather than directing advice as authoritarian leaders. How rehabilitation proceeded in prison toward post-release integration into society, whether raped prisoners tended more than others to commit more forms of self-destruction or marginally dubious behavior such as voluminous recreational consumption of Schedule I drugs, how raped prisoners fared after transfers to other prisons, how they fared after completion of all confinement, how family members reacted to learning of the rapes and how they fared, and how immediate communities reacted and fared should be shown in terms of psychology, physical health, employability, and the creation of new intimate relationships and families. While post-traumatic stress disorder (PTSD) could be expected, it is possible that some people who were raped suffered no apparent psychological damage, which could mean that they consider being raped to be normal and something to accept, and from that they might conclude that rape is something they may inflict for their own pleasure. That normality could be worse than PTSD and should be presented not as damage to the individual but as harm or danger to the society, or to the part of society with which this individual tends to have contact; a sociologist or criminal justice expert could testify on that. An individual who considers being raped so normal that no damage is apparent but who does not believe in committing rape against anyone else might be someone who is not self-assertive in ways generally considered acceptable and normal, and that might be rape-induced damage of him, worthy of expert testimony.

The need for institutions to receive more security resources from the State government should be addressed. Wardens of prisons, for example, and their relevant executives should be asked about their efforts to secure additional resources, generally funding and perhaps legal authorities, including asking them to produce correspondence and records of other communications to governors’ offices and legislative offices and the replies. For many needs, wardens may have been unwilling to press such requests because of perceived likely prospective rejections and hostile reactions from politicians just for having asked, especially if a warden serves at the pleasure of the governor and can be fired at will, so it may appear to finders of fact that the wardens were unwilling to protect the safety of their prisoners and thence to protect the safety of women outside of prison, when all anyone had to do was write one letter.

That the public generally believes that rape is common in prisons and has been common there for decades should be discussed, first about the public living in high-crime neighborhoods where imprisonment rates are high enough that most adults know a family or household with a member who was imprisoned, then about the larger public, including both family members who object to prisoner rape and those who consider it part of just deserts of the arrested. Statistical surveys could be the focus of this testimony. If a witness testified that rape is good as a deterrent to crime, this should be followed by expert testimony that more effective deterrence is available by other means and the legal and social harm in using rape for deterrence.

The financial costs to society of allowing these rapes to continue may not be a subject that can be introduced at trial, if it is unlawful to ground law enforcement decisions on such a factor, especially if the decision to prosecute appears to be so grounded. However, if it is introduceable, perhaps it should be, depending on the complexity and the effect on the jury, perhaps early in the case or near the end of the case.

The Prospect

Prison can never be pleasant. And probably most prisoners believe they should not have been convicted or that the convictions may have been justified but the sentences should be less than what they have already served, so that most prisoners believe they should be let out immediately. For still serving nonetheless, they would like compensation, and sex is part of that, so telling them they shouldn’t will likely get nowhere. Thus, while education is helpful, it is not enough, and laws against rape cannot be left for dead, even in prison.

Rape anywhere is difficult to reduce; some argue that it is impossible, or have resigned themselves to hopelessness, which has some empirical basis. But so is murder and some societies have reduced that. Perfection won’t be achieved but progress can be. And progress can be a model.