Tuesday, August 31, 2004

The Cause of Oz

I recently finished watching Season 1 of “Oz” on DVD, which got me thinking about the rape penalty again. I’m still appalled that prison rape is not taken at least as seriously as the death penalty, given that (a) it’s imposed without regard to the severity of your offense, (b) no judge or jury officially approves of the sentence, (c) it’s systematically inflicted on the weakest and most vulnerable of prisoners, (d) the transmission of HIV can make it a de facto death penalty, and (e) it occurs at least an order of magnitude more often than the death penalty. Why isn’t allowing prisoners to be raped considered cruel and unusual punishment?

When I presented my position to a group of college students this summer, most of them libertarians or libertarian-leaning, I was surprised by their willingness to defend prison rape. They relied primarily on a loosely intent-based argument: that while prisoners may unfortunately get raped, that is not the state’s intent when it jails them. In a sense, they pointed to point (b), above, as an excuse: nobody officially sanctions rapes; they just happen.

That argument, in my opinion, fails. Consider an analogy. What if the state imprisons a man in the same cell with a rabid dog? Let’s give the state the benefit of a doubt by assuming the intent is merely to imprison, not to expose him to attack by a vicious and diseased animal. Nonetheless, it’s easily predictable that the prisoner will get bitten and possibly infected. I hope this would be considered cruel and unusual punishment by most reasonable people.

But, it might be objected, the dog attack verges on certainty, which is not true of prison rape. Okay, fine. Let’s suppose we have ten prisoners and one rabid dog. The prisoners draw straws, and the one with the short straw gets put in the dog’s cell. Does that free the state from blame?

I will grant that the state cannot, at any cost, guarantee 100% safety in the prisons. Take the above example and continue increasing the number of prisoners, while keeping only one rapid dog. Assume for some reason we cannot remove the dog at low cost (a reasonable assumption, given that the dog plays the role of a rapist prisoner). For some sufficiently high number of prisoners, I would concede that the likelihood of attack for any given prisoner becomes low enough not to constitute an unconscionable risk.

But based on the numbers that I’ve seen, the actual risk doesn’t come close to being that low. The survey I cited in my previous post indicates that one in ten prisoners gets raped; hence the ten prisoners in my analogy above. Surveys can be unreliable, but in this case, I’ll bet the number is conservative, since some prisoners would be inclined not to admit having been raped (because of shame or fear of reprisal).

Moreover, I think the risk is probably much greater than one in ten for some prisoners. For instance, what if I went to prison? For those readers who don’t know me, I’m a slight guy (5’11”, about 160 pounds) with what a hard-up convict might consider “a purty face.” I figure my chance of getting raped would approach certainty. If prosecutors put me behind bars without some kind of protective custody, they would pretty much know I was going to get raped, or at least badly beaten.

My point is that the notion of intent is not – or should not be – limited to the primary goal of the state’s policies. When the agents of the state can predict with relative certainty that a given prisoner, or some substantial fraction of all prisoners, will suffer a peculiarly brutal and demeaning form of attack, they cannot plausibly pretend innocence on grounds of not “intending” for it to happen.


Anonymous said...

I always find it ironic when feminists jump in and wish this on others because they are in general the first to start a holy crusade against any rape perpetrated against a woman. Ironically, by not jumping in hard against the prison rape culture, they are in fact creating a place where we just accept rape as a given, which makes rape socially acceptable on some level. And let's face it, to a lot of people, prison rape is de fact socially acceptable. It is seen as just deserts, but I personally fail to see how two wrongs make a right.

Prison rape should automatically get any felon the death penalty. Stop, don't pass go. A guard catches you raping someone, you get sent to the gallows that afternoon in full view of every prisoner. Anyone on a misdemeanor charge automatically gets booked for another twenty five years without any legal right to parole for good behavior.

It has to be stopped. We cannot afford to tolerate something like this in the institutions that are supposed to be executing justice.

Anonymous said...

I see both sides of the argument. Do I agree with prison rape? No. I might even be biased to take sides with miket, because rape done to either sex takes away life, whether emotionally or physically. On the other hand, perhaps even the threat of getting raped in prison would keep a person out of prison in the first place. I guess it's kind of a back door to justice. Is it right that rape occurs in prisons and is not punished? No, but in addition to having the majority of your rights taken away, the threat of rape would keep you good.

I'm not sure if I agree with the saying in the military "Taking you out to the woodline." What it means is if you beat your wife, kids, dog, etc. and the MP's are at your door, not only will your commander hear about it, he will take measures into his own hands to make sure it never happens again. This is done by making sure that the powers-to-be, when on a field training exercise, take the soldier out to the woodline and proceed to beat the living tar out of him without showing any bruises. The threat of this happening to a soldier is generally enough to keep him on the straight and narrow. Is is right? No, but it's very effective. I've been on military installations wherein the woodline discipline is common practice, and installations wherein it is frowned upon. There is a huge increase of domestic disturbances on military installations that do not have so-called woodline discipline.

Anonymous said...

I disagree with the previous anonymous poster's opinion that "perhaps even the threat of getting raped in prison would keep a person out of prison in the first place". It seems that it is commonly known in this country that prison rape happens, and yet we don't seem to have a reduction in crime. This is probably because criminals assume they will not be caught and imprisoned.