'Regulating Prison Sexual Violence' by Gabriel Arkles in (2015) 7(1)
Northeastern University Law Journal 71-130
argues
An end to sexual violence requires bodily autonomy, sexual self- determination, redistribution of wealth and power, and an end to subordination based on gender, race, disability, sexuality, nationality, and class. Because the project of incarceration does not align with bodily autonomy, sexual self- determination, redistribution, or anti-subordination, tensions arise within areas of law that purport to prohibit sexual violence in or through prisons. This article examines these tensions, analyzing the ways in which constitutional, statutory, and administrative law permit or require correctional staff, medical personnel, and law enforcement officers to control, view, touch, and penetrate bodies in nonconsensual, violent, and intimate ways—sometimes while using the rhetoric of ending sexual violence. In particular, the article focuses on searches, nonconsensual medical interventions, and prohibitions of consensual sex as ways that prison systems perpetrate sexual violence against prisoners while often complying with First, Fourth and Eighth Amendment law and the Prison Rape Elimination Act. While these practices harm all prisoners, they can have particularly severe consequences for prisoners who are transgender, women, queer, disabled, youth, or people of color. This article raises questions about the framing of sexual violence as individual acts that always take place outside or in violation of the law, suggesting that in some contexts the law still not only condones sexual violence, but also acts as an agent of sexual violence.
Arkles states
In 2012, the Supreme Court’s decision in Florence v. Burlington permitted agents of the government to conduct strip searches of misdemeanor arrestees without reasonable suspicion. Within a month, the Department of Justice (DOJ) promulgated federal regulations for the Prison Rape Elimination Act (PREA), providing guidance to federal, state, and local carceral agencies pursuant to a statutory mandate to detect, prevent, reduce, and punish prison rape. The PREA regulations purport to—and to some extent do— limit circumstances where prisoners experience touching, viewing, or other manipulation of their genitals, anus, buttocks, or breasts against their will. Florence, on the other hand, expands circumstances where prisoners undergo searches of their naked bodies. These contemporaneous legal developments reveal doctrinal and normative questions about the nature of sexual violence and the role of the government in preventing, perpetrating, and punishing it.
In this article, I argue that a fundamental tension arises in efforts to curb carceral sexual violence. Preventing sexual violence requires an expansion of bodily autonomy for prisoners, in that to be free from sexual violence one must have at least the ability to prevent certain nonconsensual acts upon the body. Also, sexual self-determination, including not only the freedom to say “no,” but also to say “yes,” is an integral part of preventing sexual violence. And as many women-of-color feminists and critical theorists have established, freedom from sexual violence requires redistribution of wealth and power6 and an end to gender, racial, class, sexuality, nationality, and disability-based subordination.
However, imprisonment demands major infringements on the bodily autonomy and self-determination of prisoners that courts, regulators, and legislatures frequently hesitate to curtail. For example, carceral agencies routinely require their staff and contractors to perform strip searches, body cavity searches, and nonconsensual medical interventions on prisoners: acts that have much in common with other forms of sexual violence. Carceral agencies and their staff control the movements, activities, clothing, sexual expression, basic hygiene, nutrition, and virtually every other aspect of the biological and social lives of prisoners. As Alice Ristroph argues, incarceration is inherently a sexual punishment, because of the extent of corporal control that carceral systems exert over prisoners. Incarceration cannot be fully desexualized. Carceral mechanisms also aggravate inequitable distribution of wealth and power, as well as subordination on the basis of race, gender, class, disability, nationality, religion, and sexuality.
A reluctance to frankly confront the tension between protection of autonomy and maintenance of control has diminished possibilities for meaningfully and transparently addressing carceral sexual violence. In this article, I begin that frank confrontation.
In Part I, I examine how we identify certain acts as sexual violence or not-sexual violence. Race, gender, the motivation of the perpetrator, and the role of law and government have an enormous, and unjustifiable, impact on which acts U.S. legal systems and the public consider sexually violent. I then discuss certain forms of official carceral sexual violence, particularly searches, certain nonconsensual medical interventions, and prohibitions on consensual sex, explaining why we should consider them forms of sexual violence. Lawmakers have made most, but not all, of these forms of official carceral sexual violence lawful. The claim that searches, in particular, are a form of sexual violence is not new, but it remains controversial, and therefore worth elaborating.
Next, in Part II, I explain maneuvers that lawmakers, including legislatures, courts, agencies, and individuals who work for these parts of the government, use to promote forms of carceral sexual violence. Lawmakers do not necessarily form a specific conscious intent to defend sexual violence; they may believe their own rationalizations. Nonetheless, these maneuvers support sexual violence.
With one key maneuver, they create legal schemes that prevent prisoners from having the power or money to effectively contest what happens to them. This maneuver reduces the chance not only that prisoners will successfully challenge which acts are defined as lawful, but also that they will have meaningful recourse regarding the many acts of sexual violence that are already defined as unlawful. Another maneuver manipulates definitions of sexual violence to create exclusions for acts that would otherwise fall into those definitions, but which lawmakers wish to protect or promote. This maneuver is what makes so much official carceral sexual violence lawful. The last maneuver I examine involves defending forms of sexual violence in the name of ending sexual violence, a particularly contradictory but peculiarly powerful way to diffuse opposition to carceral sexual violence and to maintain the appearance of legitimacy for sexually violent government actions.
Finally, I offer an imagined alternative statutory scheme that would contest these maneuvers. Instead of manipulating definitions, this scheme would candidly address both lawful and unlawful sexual violence. Instead of keeping power and money away from prisoners, it would create a compensation scheme and empower a committee elected by prisoners to make further changes. Instead of pretending that sexual violence could help prevent sexual violence, it would address prevention of sexual violence by reducing incarceration. I offer this alternative more as a thought experiment than as a serious proposal to work toward for policy reform; I cannot defend it against a host of constitutional and moral objections, except to say that it is somewhat better than what we have now. However, I think it helps
to open up thinking about what it would mean to be honest about what we do with our carceral systems, and what we could do with attempts to reform them.
