Prison Rape

[Rick Duncan]

On the 8th Amendment claim, the problem is that the "deliberate indifference" standard for prison officials to be held liable makes this a very poor remedy for prisoners. Ghali's article is very persuasive on this point.

Another problem for prisoner-victims is that anything that requires them to inform on their fellow prisoners--and thus become "rats" and risk further brutality--is unlikely to be a very useful remedy.

What I like about the Equal Protection claim is that, at least in theory, it gives someone facing imprisonment an opportunity to litigate without having to wait for an attack to happen. The harm under the EPC is the gender-based classification at the time of sentencing, and separate facilities are permissible only if they are equal. Lower court cases involving vocational programs are far different from a gender-based system in which young and weak male prisoners are forced to live without protection in a world of predator male inmates and prison gangs. No reasonable person would choose to be imprisoned in a male facility rather than a female facility, even if there are more vocational programs in the former.

The remedy, of course, is not to require co-ed prisons, but rather to require all prisons to be controlled so that they are equally safe. This may mean spending more resources on security in male prisons, because more security may be required to make them equally safe given the violent prison gangs and predators that must be controlled.

The real problem with any constitutional theory is that no one cares about inmates, and thus it is unlikely that most judges will be open to a theory that would require major reforms to the system as it presently exists.

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902


"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting 
the vote."--Ben Franklin
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)     "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

--- On Tue, 2/3/09, Margo Schlanger <mschlanger at wulaw.wustl.edu> wrote:
From: Margo Schlanger <mschlanger at wulaw.wustl.edu>
Subject: RE: Prison Rape
To: nebraskalawprof at yahoo.com, conlawprof at lists.ucla.edu
Date: Tuesday, February 3, 2009, 10:25 PM

I'm wondering how it would be helpful to a litigator to pursue either of
these two theories -- the 13th Amendment or the Equal Protection Clause.  Sexual
slavery in prison is already unconstitutional under the 8th Amendment, if it is
known to one or more prison officials and they fail to respond reasonably.  See
Farmer v. Brennan.  So am I missing something?  It seems to me that the 13th
Amendment argument doesn't add much.  Perhaps the avoidance of conscious
disregard as part of the standard?  It's an interesting issue; could a
lawsuit against a state actor for enslavement by a non-state actor succeed in
the absence of conscious disregard by the state actor.  What would be the
required mental state, if any?  Or is the fact that the state's decision to
incarcerate is the but-for cause of the harm enough, without any culpable
conduct by a particular state actor.
 
In addition, the courts haven't been terribly friendly to the argument that
conditions in a women's prison should be as good as conditions in a
men's prison.  In what is probably the leading case, the D.C. Circuit held
that provision of way fewer vocational opportunities in a women's prison was
constitutionally permissible, because men and women prisoners were not similarly
situated given the women's prison's smaller population.  Presumably
there'd be equal or greater skepticism towards an equality claim in favor of
men.  So I don't see much upside to a litigation strategy that adds to the
huge burden of demonstrating the existence and redressibility of prison sexual
slavery the additional hurdles that would be required by an equal protection
theory.  
 
On the idea that constitutional law might profitably include some prison
issues, I entirely concur.  
 
Margo
___________________________________ 
Margo Schlanger
Visiting Professor of Law
UCLA Law School 
Professor of Law & Director, Civil Rights Litigation Clearinghouse 
Washington University in St. Louis, School of Law
e-mail: mschlanger at wulaw.wustl.edu <mailto:mschlanger at wulaw.wustl.edu>  
web: http://schlanger.wustl.edu <http://schlanger.wustl.edu/>  

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Tue 2/3/2009 4:58 PM
To: conlawprof at lists.ucla.edu
Subject: Prison Rape


In my Con Law Seminar this week, we are discussing the problem of prison rape
and sexual slavery in prison, an issue to which I believe we have not paid
sufficient attention.

I have assigned an excellent article for the seminar to read--Kamal Ghali, No
Slavery Except as a Punishment For Crime: The Punishment Clause and Sexual
Slavery, 55 UCLA L.Rev. 607 (2008)(link
<http://www.uclalawreview.org/articles/?view=55/3/1-2> ).

Ghali's arguments are well presented, however I am not optimistic that the
13th Amendment will likely prove helpful. Although I haven't written an
article on the subject, my own view is that there may be a claim of gender
discrimination (separate but equal prisons must be, well, equal) under the EPC.
In other words, if there is evidence that the risk of sexual violence and
enslavement is greater in men's prisons than in women's prisons (and I
think there is at least some evidence and a great deal of informed intuition
about this), the EPC may provide a remedy to a male prisoner assigned to an
unequal prison on the basis of his gender.

In any event, I heartily recommend this issue and Ghali's article to those
of you looking for something new and interesting to bring into the classroom.


Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902



"Democracy is two wolves and a lamb voting on what to have for lunch.
Liberty is a well-armed lamb contesting 
the vote."--Ben Franklin 

"It's a funny thing about us human beings: not many of us doubt
God's existence and then start sinning. Most of us sin and then start
doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
 
"Once again the ancient maxim is vindicated, that the perversion of the
best is the worst." -- Id.







      
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