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Regulating Prison Sexual Violence, Northeastern University School of Law, 2015

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Northeastern University Law Journal, Vol. 7, No. 1, pp. 71-130 (2015)

Gabriel Arkles
Northeastern University – School of Law

Electronic copy available at:

Vol. 7 No. 1

Northeastern University Law Journal


Regulating Prison Sexual Violence
Gabriel Arkles1
Abstract: An end to sexual violence requires bodily autonomy, sexual selfdetermination, 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 selfdetermination, 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.


Professor of Legal Skills at Northeastern University School of Law. I would
like to thank my wonderful research assistants Chelsea Brisbois, Shira Burton,
Molli Freeman-Lynde, Julie Howe, Sara Maeder, Amanda Montel, Stas Moroz,
Jenna Pollock, and Kyle Rapiñan for all of their work. I would also like to thank
Noa Ben-Asher, Owen Daniel-McCarter, Sharon Dolovich, Pooja Gehi, Betsy
Ginsberg, Susan Hazeldean, Valerie Jenness, Sylvia Law, Dori Lewis, Lynn Lu,
Jason Lydon, Deborah Malamud, Alison Mikkor, Danya Reda, Anna Roberts,
Giovanna Shay, Brenda Smith, Dean Spade, Chase Strangio, Tony Thompson,
Rebecca Widom, the members of the NYU School of Law Lawyering Scholarship
Colloquium, the LatCrit/SALT Junior Faculty Development Workshop, and the
Law and Society Association for their feedback and support in the development
of this piece.

Electronic copy available at:

Gabriel Arkles

Table of Contents

I. Understanding Sexual Violence
A. Critiques of Dominant Understandings of Power, Sex, and Violence
B. Sexual Violence in Carceral Contexts
1. Searches
2. Certain Nonsensual Medial Interventions
3. Prohibitions on Consensual Sex
II. Legal Support for, and Regulation of, Sexual Violence
A. Keeping Money and Power Out of the Hands of Prisoners
B. Gaming the Definitions
C. Defending Sexual violence as a Way to Stop Sexual Violence
II. Imagining Alternate Approaches to Regulating
A. Prevention
B. Mitigation
C. Compensation
D. Monitoring and Adjustment

In 2012, the Supreme Court’s decision in Florence v. Burlington2
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.3
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.4 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.


Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510
42 U.S.C.A. § 15602(3) (West, Westlaw through P.L. 113-234).
See Florence, 132 S. Ct. at 1514.

Electronic copy available at:

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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.5
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.7
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.8 As Alice Ristroph argues, incarceration



See generally Jaclyn Friedman & Jessica Valenti, Yes Means Yes!
Visions of Female Sexual Power and a World Without Rape
See Miriam Zoila Pérez, When Sexual Autonomy Isn’t Enough, in Yes Means Yes!
Visions of Female Sexual Power and a World Without Rape 141,
149 (Jaclyn Friedman & Jessica Valenti eds., 2008).
See Lee Jacob Riggs, A Love Letter from an Anti-Rape Activist to Her Feminist SexToy Store, in Yes Means Yes! Visions of Female Sexual Power and a
World Without Rape 107, 111 (Jaclyn Friedman & Jessica Valenti eds.,
2008) (“The prison-industrial complex, to which the mainstream rape crisis
movement is intimately and often unquestioningly linked, is an embodiment
of nonconsent used to reinforce race and class inequality.”); Maria Barile,
Individual-Systemic Violence: Disabled Women’s Standpoint, 4. J. Int’l Women’s
Stud. 1, 8 (2002), available at
Sharon Dolovich, Foreword: Incarceration American-Style, 3 Harv. L. & Pol’y
Rev. 237, 237-38 (2009) (noting restricted movement, limited access to media,
limited contact with family and friends, restricted access to property, and
lack of privacy among definitive techniques of incarceration); Brenda V. Smith,
Rethinking Prison Sex: Self-Expression and Safety, 15 Colum. J. Gender & L. 185,
200 (2006) (criticizing the overregulation of prisoners’ sexual activities); Alice
Ristroph, Sexual Punishments, 15 Colum. J. Gender & L. 139, 144 (2006)


Gabriel Arkles

is inherently a sexual punishment, because of the extent of corporal
control that carceral systems exert over prisoners.9 Incarceration
cannot be fully desexualized.10 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
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,12 but it remains controversial, and
therefore worth elaborating.



(“[Incarceration] involves state action against the body and state control of
the body to a degree unmatched in other political contexts”); Gabriel Arkles,
Correcting Race and Gender Prison Regulation of Social Hierarchy Through Dress, 87
N.Y.U.L. Rev. 859, 897 (2012) (reviewing detailed rules for the clothing, hair,
and appearance of prisoners).
See Ristroph, supra note 8.
See id. at 184 (“At best, it seems that extensive surveillance and strict control
of prisoners could reduce the incidents of physically violent rape, but such
measures come at the price of prisoners’ autonomy and may only increase
distortions of sexuality within the prison. However we define rape, however
we resolve the difficult issues of force and nonconsent, there remains ‘the
institution of confinement itself.’”); see also, Giovanna Shay, PREA’s Elusive Promise:
Can DOJ Regulations Protect LGBT Incarcerated People?, 15 Loy. J. Pub. Int. L. 343,
355 (2014) (“Most fundamentally, PREA does not address the root problem
that exposes too many people to prison sexual violence--over-incarceration”).
See Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation
of Transgender People in Detention, 18 Temp. Pol. & Civ. Rts. L. Rev. 515, 51922 (2009).
Angela Y. Davis, Abolition Democracy: Beyond Empire, Prisons,
and Torture 58 (2005); Cathy Pereira, Strip Searching as Sexual Assault,
27 Hecate 187, 188 (2001); Beth Richie, Arrested Justice: Black

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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.13 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


Women, Violence, and America’s Prison Nation 51 (2012) (“[B]
ecause pat searches and body cavity examinations are routine ‘security
procedures’ in most jails and prisons, women are exposed to potential
legitimate sexual exploitation”); Luana Ross, Inventing the Savage:
The Social Construction of Native American Criminality 114
(1998) (“Many incarcerated women experience assessment as rape, particularly
the debasing cavity searches.”).
See infra section III(A).

Gabriel Arkles


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.

Understanding Sexual Violence

Critiques of Dominant Understandings of Power, Sex,
and Violence

In this section, I review popular and dominant (mis)
understandings of sexual violence, including the role of race, gender,
and disability-based hierarchy; the conception of an evil perpetrator
and innocent victim; and the idea of sexual violence as something that
is individual, anomalous, illegal, and primarily about sex. Throughout,
I share critiques of these understandings, and I conclude with those
models I find both more realistic and more promising toward the goal
of ending sexual violence.
Law is more likely to recognize acts as sexual violence when
doing so supports social hierarchies related to race and gender.14 Under
slavery it was a legal impossibility for a white man to rape a Black
woman.15 It was a social, political, and interpersonal reality—sexual
violence against Black women was (and is) pervasive—but it was
legally sanctioned.16 Until the 1970s, it was also a legal impossibility
for a man to rape his wife.17 White people had legal access to the
bodies of Black slaves; husbands had legal access to the bodies of
their wives.18 While these laws have shifted, the dynamics persist.19



See Beverly J. Ross, Does Diversity in Legal Scholarship Make A Difference?: A Look
at the Law of Rape, 100 Dick. L. Rev. 795, 802-04 (1996).
See Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of, and Remedies
for, Prosecutorial Race-of-Victim Charging Disparities, 7 Nev. L.J. 1, 9 (2006).
See id.; Vernetta D. Young & Zoe Spencer, Multiple Jeopardy: The Impact of Race,
Gender, and Slavery on the Punishment of Women in Antebellum America, in Race,
Gender, & Punishment: from Colonialism to the War on Terror
65, 67 (Mary Bosworth & Jeanne Flavin eds., 2007) (noting rape as one
form of punishment used against enslaved Black women); Brenda V. Smith,
Sexual Abuse of Women in United States Prisons: A Modern Corollary of Slavery, 33
Fordham Urb. L.J. 571, 577 (2006) (“Sexual abuse was a prominent feature
of the enslavement of African women in the United States.”)
See Ross, supra note 14, at 812-13.
See id.; see also Pokorak, supra note 15.
See, e.g., Samhita Mukhopadhyay, Trial by Media: Black Female Lasciviousness and
the Question of Consent, in Yes Means Yes! Visions of Female Sexual

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Outside of prisons, sexual violence has been more easily
recognized when a Black man is alleged to have raped a white woman.20
While many people have resisted this conception of sexual violence
and have had some success in shifting these assumptions, racism is
too central to the formulation of ideas about sexual violence in the
U.S. for it to have faded away. Sexual violence perpetrated primarily
by white nontrans men against people of color, particularly Black,
Native, and immigrant women and trans people, has rarely provoked
much attention or outcry in U.S. society.21
In the sex-segregated carceral context, the figure of the
white woman gets replaced with the figure of the white man. As
Kim Shayo Buchanan has illustrated, this black-prisoner-on-whiteprisoner conception of carceral sexual violence has shown remarkable
resilience,22 even in light of empirical evidence that staff-perpetrated
sexual violence is more common than prisoner-perpetrated sexual




Power and a World Without Rape, 151-53 (Jaclyn Friedman & Jessica
Valenti eds., 2008).
See, e.g., Richie, supra note 12, at 15-16 (“The further a woman’s sexuality, age,
class, criminal background, and race are from hegemonic norms, the more
likely it is that they will be harmed—and the more likely that their harm will
not be taken seriously by their community, by anti-violence programs, or by
the general public”; Kimberlé Crenshaw, Mapping the Margins: Intersectionality,
Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1291
(1991) (noting persistent focus on white women as victims of Black male
violence even when pretending concern over Black women victims); James W.
Messerschmidt, “We Must Protect our Southern Women”: On Whiteness, Masculinities,
and Lynching, in Race, Gender, & Punishment: from Colonialism to
the War on Terror 77-89 (Mary Bosworth & Jeanne Flavin eds., 2007)
(“Lynching [of African American men] upheld white privilege and underpinned
the objectified figure of white women defined as ‘ours’ and protected by
‘us’ from ‘them’”); Kristin Bumiller, In an Abusive State: How
Neoliberalism Appropriated the Feminist Movement against
Sexual Violence. 22 (2008) (“Fascination with interracial rape, while
leading to the excessive attention to the threat of black men to white women,
also contributes to cultural conditions that allow the perpetuation of whiteon-black rape without notice or consequence.”).
See, e.g., Smith, Sexual Abuse of Women in United States Prisons, supra note 16,
at 604 n. 170; Andrea Smith, Conquest: Sexual Violence and
American Indian Genocide 15 (2005); INCITE! Women of Color
Against Violence, Immigration Enforcement Fact Sheet, available
Kim Shayo Buchanan, E-Race-ing Gender: The Racial Construction of Prison Rape,
in Masculinities and the Law: A Multidimensional Approach 187,
188 (Frank R. Cooper & Ann C. McGinley eds., 2012).


Gabriel Arkles

violence; that multiracial, not white, prisoners are particularly
targeted for prisoner-perpetrated sexual violence; and that Black, not
white, prisoners are particularly targeted for staff-perpetrated sexual
violence.23 Because of the extraordinarily high rates of incarceration
of people of color,24 even if rates of sexual violence were consistent
across race, the actual numbers of people of color victims of carceral
sexual violence would be greater than the numbers of white victims
of carceral sexual violence.
While men are usually imagined as the main targets of sexual
abuse in prison, it is primarily, but not exclusively, people perceived
as female, feminine, transgender, and/or gender nonconforming
who are targeted for carceral sexual violence. Empirical evidence
has indicated that sexual abuse is significantly more common in
women’s prisons than in men’s.25 Research has also resulted in a wide
consensus that transgender and gender nonconforming people are
much more likely than non-trans men to experience sexual violence
in men’s facilities.26 Numerous scholars have described the severe




See Michelle Alexander, The New Jim Crow: Mass Incarceration
in the Age of Color Blindness 7 (2010) (“In some states, black men
have been admitted to prison on drug charges at rates twenty to fifty times
greater than those of white men”); Silja J.A. Talvi, Women Behind Bars:
The Crisis of Women in the U.S. Prison System 47 (discussing the
disproportionate incarceration rates of Native and Latino men and women in
various states); Peter Wagner, Incarceration Is Not an Equal Opportunity Punishment,
Prison Policy Initiative (August 28, 2012),
articles/notequal.html (stating that as of 2004, there were 380 White people
incarcerated per 100,000 members of the population, compared to 966 Latino
people and 2207 Black people); Omar C. Jadwat, ACLU, The Arbitrary
Detention of Immigrants After September 11, at 1 (2014) available
at (last visited Feb. 12, 2015)
(describing arbitrary arrest and detention of Muslim men from South Asian
and Middle Eastern countries after September 11).
See, e.g., Paul Guerino & Allen J. Beck, U.S. Dep’t of Justice, Sexual
Victimization Reported by Correctional Authorities, 2007-2008
6 (Brian R. Higgens & Jill Duncan eds., 2011), available at http://bjs.ojp.usdoj.
gov/content/pub/pdf/svraca0708.pdf (“Females represent 7% of sentenced
prison inmates but accounted for 21% of all victims of inmate-on-inmate
sexual victimization in federal and state prisons. Similarly, females account
for 13% of inmates in local jails but 32% of all victims).
Valerie Jenness et al., Violence in Correctional Facilities: An
Empirical Examination of Sexual Assault 31 (2007), available at 2013/06/Executive_Summary_of_

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impact of carceral sexual violence on women of color and transgender
people of color, as well as the larger social hierarchies this violence
The empirical studies mentioned above use narrow definitions
of sexual violence, recognizing only certain forms of unlawful sexual
violence. In fact, all or almost all prisoners experience carceral sexual
violence.28 Nonetheless, the fact that popular conceptions of carceral
sexual violence remain so inaccurately racialized and gendered in the
face of even conservative research helps show just how entrenched
racism, sexism, and transphobia are in what seems like sexual violence.
Indeed, the focus on men’s prisons and male victims may have been
central to the passage of the Prison Rape Elimination Act.29
Disability rarely figures centrally in discussions of sexual
violence, but it is also core to constructions of “what counts” as
sexual violence. Perhaps the most common references to disability
and sexual violence involve vilifying disabled people—particularly
people with mental disabilities—as dangerous and likely to be




See, e.g., Smith, Sexual Abuse of Women in United States Prisons, supra note 16, at 604.
(“At base, both slave-owners and correction officers used sexual domination
and coercion of women to reinforce notions of domination and authority
over the powerless.”); see also, Andrea Ritchie, Law Enforcement Violence Against
Women of Color, in The Color of Violence: The INCITE! Anthology 138
(2006); Joey L. Mogul, Andrea J. Ritchie & Kay Whitlock, Queer
(In)Justice: The Criminalization of LGBT People in the United
States 12 (2011); S. Lamble, Transforming Carceral Logics: 10 Reasons to
Dismantle the Prison Industrial Complex Through Queer/Trans Analysis, in Captive
Genders: Trans Embodiment and the Prison Industrial Complex
235, 243-44 (Eric A. Stanley & Nat Smith eds., 2011); Richie, supra note 12,
at 41 and 91 (2012).
Jason Lydon, Oral Presentation at Columbia Law School: Convening for
Roadmap for Change (May 6, 2013) (commenting that “100% of your
[imprisoned] clients are survivors of sexual assault”). Prisoners routinely get
searched; in fact, agencies typically have policies requiring search of prisoners
at intake. See, e.g., N.H. Code Admin. R. Cor 402.01(b)(1); Minn. R.
2911.2525 (1)(c) (2013); 28 C.F.R. § 551.103 (2014); N.J. Admin. Code §
10A:31- 2.2, 2.3, 21 (a)(2) (2015); because, as I explain below in Section I(B)
(1), searches are a form of sexual violence, it follows that all--or at least almost
all--prisoners have experienced sexual violence in prison.
Brenda V. Smith, The Prison Rape Elimination Act: Implementation and
Unresolved Issues, 3 Am. U. Crim. L. Brf. 10, 10 (2008), available at http://


Gabriel Arkles

sexually violent,30 as well as lamenting sexual violence perpetrated
against individual people with intellectual or physical disabilities,
who are often portrayed as helpless or even infantile.31 These
portrayals exclude structural analysis or consideration of the role of
incarceration in sexual violence. But incarceration and institutional
subordination are central to much of the sexual violence directed
at disabled people, both because disabled people are so likely to be
targeted for incarceration and because unchecked sexual violence
is so prevalent in institutions specifically designed to incarcerate
disabled people, such as nursing homes and psychiatric hospitals.32
Ideas about the character of individual perpetrators and victims
of sexual assault also impact acknowledgment of sexual violence.
Doctrine that focuses on the perspective of individual perpetrators
and supports only certain types of victims cannot address largescale racial or gender subordination.33 Legal and popular conceptions




A number of states have statutes providing for indefinite involuntary
psychiatric commitment for people convicted of sex offenses after they have
served their sentences. See, e.g., Wash. Rev. Code Ann. § 71.09.025 (West
2009); Iowa Code Ann. § 229A.7 (West 2009).
See Deborah W. Denno, Sexuality, Rape, and Mental Retardation, 1997 U. Ill.
L. Rev. 315, 320 (1997); Tobin Siebers, A Sexual Culture for Disabled People, in
Sex and Disability 37, 44 (Robert McRuer & Anna Mollow eds., 2012)
(“Paralysis is also pictured easily as sexual passivity or receptiveness—an
invitation to sexual predators, since the erotic imagination thrives on clichéd
positions and gestures.”)
Robert A. Hawks, Grandparent Molesting: Sexual Abuse of Elderly Nursing
Home Residents and Its Prevention, 8 Marq. Elder’s Advisor 159, 160,164
(2006) (noting prevalence of sexual abuse against people in nursing homes);
Amenoma Hartocollos, Abuse is Found at Psychiatric Unit Run By the City, N.Y.
Times, Feb. 6, 2009, available at
nyregion/06kings.html (reporting pattern of sexual violence among patients
at Brooklyn psychiatric hospital); David Jackson & Gary Marx, Kids Sexually
Assaulted at Psychiatric Hospitals, Reports Say, Chicago tribune, Sept. 21,
2010, available at (reporting at least eighteen cases of sexual abuse in Chicago psychiatric
Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J.
1281, 1296 (1991); Alan David Freeman, Legitimizing Racial Discrimination
Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, in
Critical Race Theory: The Key Writings That Formed the
Movement 29 (Kimberlé Crenshaw et al. eds., 1995); Charles R. Lawrence
III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39
Stan. L. Rev. 317, 325 (1987); Pooja Gehi, Gendered (In)security: Migration and
Criminalization in the Security State, 35 Harv. J. L. & Gender 357, 391 (2012).

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of sexual violence tend to focus on the perspective of the alleged
perpetrator. Alan Freeman articulated and critiqued the perpetrator
perspective in the context of anti-discrimination law. 34 As Freeman
explains, doctrine that focuses on the intent of the perpetrator of
racist discrimination elides the impact on the victim.35 In taking an
individualized approach that values the thoughts and feelings of a
perpetrator of racism over the perspectives of people of color, the
law fails to consider or address the actual conditions people of color
live in.36 Catherine MacKinnon applies this analysis to law regarding
sexual violence.37 She argues that again, because the law tends to
focus on the understanding and motivation of perpetrators of sexual
violence, the law disregards and devalues the experience and opinions
of survivors of sexual violence.38
A perpetrator perspective limits acknowledgement of sexual
violence to those situations where an alleged perpetrator can be
conceived of as a terrible individual who set out to harm others for
his own power, pleasure, or sexual gratification.39 While some law
enforcement officers, correctional officers, health care professionals,
and others working in carceral settings do at times have these reasons
for their acts, many routine, lawful acts of sexual violence are likely
not the product of these motivations. Most of the time the staff
probably does what they do because it is a part of their job. The
individual perpetrator may be an eager, indifferent, or reluctant
participant in the act, and may be fired or otherwise punished for
refusal to participate in it.40 The line staff in many detention facilities
have few economic options other than these jobs and would lose their
jobs if they did not routinely conduct strip searches and comparable
acts.41 This reality is inconsistent with an image of a perpetrator of


Freeman, supra note 33, at 29.
See MacKinnon, supra note 33, at 1303-04.
Id. at 1304.
Gehi, supra note 33, at 391.
Hannah Arendt has demonstrated, in the context of the Holocaust, that many
of the individuals who engage in monstrous acts do not do so because they
derive pleasure from it. Hannah Arendt, Eichmann in Jerusalem: A
Report on the Banality of Evil 105 (1963) (“…the murderers were not
sadists or killers by nature; on the contrary, a systematic effort was made to
weed out all those who derived physical pleasure from what they did.”).
See King et al., The Sentencing Project, Big Prisons, Small Towns:
Prison Economics in Rural America 15-16 (2003), http://prison.ppjr.


Gabriel Arkles

sexual violence as a monstrous individual intent on his personal pride
and pleasure.
The counterpart to the image of the evil perpetrator is that
of the innocent victim. Prisoners tend to be dehumanized in a way
that reduces concern over the treatment they experience.42 Some
believe prisoners have brought sexual abuse on themselves through
committing a crime or otherwise becoming imprisoned.43 Even
among feminists and anti-violence advocates, particularly white
feminists and white anti-violence advocates, violence in prisons
has received little attention. “Slashing, suicide, the proliferation
of HIV, strip searches, medical neglect, and rape of prisoners have
largely been ignored by antiviolence activists.”44 This perspective is
consistent with longstanding minimization of the harms of sexual
violence to people of color and the blaming of victims perceived as
less than wholly innocent. These forms of victim blaming undermine
the goal of preventing sexual violence.45 The types of carceral sexual




coercive conditions should not necessarily absolve staff of responsibility for
their actions, but they should be acknowledged. Cf. Dena Al-Adeeb, Reflection
in a Time of War: A Letter to My Sisters in The Color of Violence: The
INCITE! Anthology 113 (INCITE! Women of Color Against Violence ed.,
2006) (arguing that coercive conditions of participation in imperialist military
forces do not absolve soldiers of their responsibility for military violence).
See Juanita Díaz-Cotto, Chicana Lives and Criminal Justice
188 (2006) (quoting imprisoned women saying that guards treated them
as “animals” and “nothing”); Dylan Rodriguez, Forced Passages 198
(2006) (“Death as logic implies … a necessary contradiction and impossibility
that simultaneously revises our conception of death by inscribing it onto
living bodies/subjects (here the imprisoned), while constituting a different
kind of absence, a ritualized finality that articulates through the statecraft of
imprisonment.”); Sharon Dolovich, Exclusion and Control in the Carceral State, 16
Berkeley J. Crim. L. 259, 288 (2011) (describing process by “which criminal
offenders become not just nonhuman but something inherently scarier and
more threatening”).
See Dolovich, supra note 8, at 251 (2009) (explaining that prison staff
sometimes tell prisoners who complain about sexual abuse to “fight or fuck.”).
Statement by Critical Resistance and INCITE! Women of Color Against
Violence, Gender Violence and the Prison-Industrial Complex, in The Color of
Violence: The INCITE! Anthology 223, 224 (INCITE! Women of Color
Against Violence ed., 2006).
See Richie, supra note 12, at 121-22 (discussing link between lack of response
to violence with victim-blaming, and likelihood of Black women experiencing
victim-blaming); Patricia Hill Collins, Black Feminist Thought:
Knowledge, Consciousness, and the Politics of Empowerment

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violence identified as worth stopping tend to be those where the
victim seems at least relatively innocent. Speaking in support of PREA,
Representative Wolf shared an example of the type of conduct he
expected PREA to address: “a 19-year-old college student in Florida,
in jail on marijuana charges, was raped by a cell mate who was being
held on charges of sexual battery… within hours of the student being
placed in his cell.”46
The evil perpetrator / innocent victim dyad reduces violence
to an individual act that occurs between two people. Women-of-color
feminists and critical theorists have problematized individualized
notions of violence.47 Sexual violence is a group-based phenomenon
that does group-based harm, including reinforcement of social
hierarchies, promotion of the idea that not all types of people deserve
to have control over their own bodies, and provocation of fear among
particular social groups.48
Popularly, sexual violence is also supposed to be relatively
rare, an aberration, and most certainly illegal. Despite a great deal
of feminist scholarship illuminating the pervasiveness of sexual
violence and the changes in law over time, views of sexual violence
as a consistently criminalized anomaly remain entrenched in



81–82 (2d ed. 2000) (noting the origins in slavery of stereotypes of sexual
aggression among Black women, and the concomitant rationale for sexual
abuse on enslaved women); Bumiller, supra note 20, at 11 (noting that
despite formal legal advances, prosecutors continue to selectively pursue cases
involving “’good victims,’ women whose behavior conforms to traditional
expectations and whose assaults involve unambiguous circumstances”).
Statement of Mr. Wolf, Prison Rape Elimination Act of 2003, 149 Cong. Rec.
H7764-01, H7766, 2003 WL 21726949, at *6 (July 25, 2003).
See, e.g., Haunani-Kay Trask, The Color of Violence, in The Color of Violence:
The INCITE! Anthology 81, 83 (INCITE! Women of Color Against Violence
ed., 2006) (describing incarceration, homelessness, and under education of
Native Hawaiians as violent); see Collins, supra note 45, at 134 (describing
the role of law and government in undermining Black women’s control of their
own sexuality).
See, e.g., Eric Rothschild, Recognizing Another Face of Hate Crimes: Rape As A
Gender-Bias Crime, 4 Md. J. Contemp. Legal Issues 231, 264 (1993); Eli
Clare, Stones in my Pockets, Stones in my Heart, in The Disability Studies
Reader 563, 566 (Lennard J. Davis ed., 3d ed. 1997) (“We live in a time of
epidemic child abuse, in a world where sexual and physical violence against
children isn’t only a personal tragedy and a symptom of power run amok, but
also a form of social control…these adults teach children bodily lessons about
power and hierarchy, about being boys, being girls, being children, being Black,
being working-class, being disabled.”).


Gabriel Arkles

many arenas.49 The legality and regularity of acts of carceral sexual
violence take these acts outside the realm of what many, including
the individuals involved in these acts themselves, consider sexual
Finally, many still assume that sexual violence is primarily
about sex and sexual desire, even though, again, feminists have
illustrated that sexual violence is at least as much about power as it
is about sex.51 Much official lawful carceral sexual violence imposes
power, coercion, and control common to multiple forms of sexual
violence on an institutional level; it may have little to do with sexual
desire and may not involve what the participants think of as sex.52
As alternatives to these limited frameworks for understanding
sexual violence, theorists have offered anti-subordination approaches,
which focus attention on power dynamics that systematically
disenfranchise one social group in favor of another, as well as
survivor-centered approaches, which focus attention on the opinions,
experiences, and demands of people who have experienced violence.53





Lidia Yuknavitch, Explicit Violence, The Rumpus (Aug. 22, 2012), http://
This tendency is consistent with Arendt’s theory of the banality of evil. See
Arendt, supra note 40, at 116 (“As Eichmann told it, the most potent factor
in the soothing of his own conscience was the simple fact that he could see no
one, no one at all, who actually was against the Final Solution.”); see Arendt,
supra note 40, at 135 (“Whatever he did he did, as far as he could see, as a lawabiding citizen.”); see also Dean Spade, Normal Life: Administrative
Violence, Critical Trans Politics, and the Limits of Law (2011).
See Riggs supra note 7, at 109 (“It is a truism in the anti-rape movement that
rape is not motivated by sexual desire; it is motivated by a desire for power and
control, working to uphold systems of oppression. To say that sex and rape are
unrelated, however, is to both ignore the deep scars across the sexual selves
of masses of people and avoid the dismantling of the symbiotic relationship
between a sex-negative culture and a culture that supports sex in the absence
of consent.”); Collins, supra note 45, at 135 (“[R]ape and other forms of
sexual violence act to strip victims of their will to resist and make them passive
and submissive to the will of the rapist.”).
Smith, Sexual Abuse of Women in United States Prisons, supra note 16, at 604 (“Like
women slaves, women prisoners are seen as untrustworthy, promiscuous, and
seductive.”); Richie, supra note 12, at 91 (“State violence and harmful public
policies could not fit into the everywoman analytical paradigm of the male
violence that focused on individual men.”).
See, eg., Linda G. Mills, Killing Her Softly: Intimate Abuse and the Violence of State
Intervention, 113 Harv. L. Rev. 550, 596 (1999) (proposing a survivor-centered
approach that “emphasiz[es] the importance of engaging the battered woman
in ways that do not replicate the violence of the battering relationship”); Ruth

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Sexual self-determination sometimes forms part of these demands.
“[A]s long as we continue to view it [rape] as a crime committed by
an individual against another individual, absent of any social context,
we will have little success in combating it. Women must feel fully
entitled to public engagement and consensual sex.”54 However, sexual
self-determination is not enough. “Immigrant women will not be free
from rape until we see economic justice, until all people have access
to living-wage jobs, education, healthcare services, and safe living
As I turn to considering forms of carceral sexual violence, I do
so operating from an anti-subordination, survivor-centered approach
that values bodily autonomy, sexual self-determination, an end to
racial, gender, and disability-based hierarchies, and economic justice.
I understand that an individual or an institution may perpetrate sexual
violence; that culture often promotes sexual violence; and that any
human being may experience sexual violence. I also understand the
motivation of the perpetrator should not be the focus in determining
whether sexual violence has occurred, and that power matters at least
as much as sex.

Sexual Violence in Carceral Contexts


Searches that law enforcement officers and staff of carceral
institutions conduct constitute sexual violence. Nonetheless,
relatively few searches are unlawful.
The physical acts of searches and lack of consent mirror other
forms of sexual violence. They involve viewing, touching, or penetrating
a person’s body, including the genitals, anus, breasts, thighs, mouth,
and buttocks. While some searches may be “consensual” for Fourth
amendment purposes in that the person does not vocally object or
physically resist,56 not fighting back against a potentially dangerous



Colker, Anti-subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L.
Rev. 1003 (1986) (arguing for a stronger focus on anti-subordination in race
and sex discrimination cases).
Jill Filipovic, Offensive Feminism: The Conservative Gender Norms that Perpetuate
Rape Culture, and How Feminists Can Fight Back, in Yes Means Yes! Visions
of Female Sexual Power and a World Without Rape 13, 27 (Jaclyn
Friedman & Jessica Valenti ed., 2008).
Pérez, supra note 6, at 149.
See, e.g., Florida v. Bostick, 501 U.S. 429, 435 (1991).


Gabriel Arkles

aggressor is very different from giving full, free, knowing consent.
Angela Y. Davis explains that the role of guards and prisoners can
distract from the fundamental fact that guards do to prisoners just
what many of us would easily recognize as sexual violence in another
context: “[I]f uniforms are replaced with civilian clothes—the guard’s
and the prisoner’s—then the act of strip searching would look exactly
like the sexual violence that is experienced by the prisoner who is
ordered to remove her clothing, stoop, and spread her buttocks.”57
While not all people subject to these searches understand
them as sexual violence, many do. For example, David Gilbert
describes developments in New York prisons: “there is a new
form of humiliation of ‘pat frisks’ that are nothing short of sexual
molestation—which also serve as a provocation since a reaction can
set off a beating and ‘box’ (isolation) time.”58 Others think of the
experience as very similar to sexual violence, if not identical to it. One
woman describes her experience of a search as follows:
I honestly felt the only way to prevent the search
becoming more intrusive or sexual was to remain as
quiet and docile as possible. I later wondered why I
was so passive. All I could answer was that it was an
experience similar to sexual assault. I felt the same
helplessness, the same abuse by a male in authority,
the same sense of degradation and lack of escape.59
The impact of searches on individual survivors also corresponds
to the impact of other forms of sexual violence. While the impact of
sexual violence varies from person to person and incident to incident,
many people experience trauma. One woman who was strip searched
experienced paranoia, suicidal feelings, and depression afterward,
and would not undress anywhere but in a closet.60 Physical injuries
with long-term consequences also result, as in the case of the Black

See, e.g., Davis, supra note 12, at 58.
David Gilbert, Attica: Thirty Years Later, in The New Abolitionists:
(Neo) Slave Narratives and Contemporary Prison Writings 311,
314 (Joy James ed., 2005).
Pereira, supra note 12, at 188.
Herman Schwartz, How the Supreme Court Came to Embrace Strip Searches for
Trivial Offenses, The Nation (Aug. 16, 2012),

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teenager whose testicles were ruptured by police during a stop and
frisk.61 The fear and sense of powerlessness that can accompany
any sexual violence may be especially severe when the government
supports and perpetrates the act, because of the relative power of the
government as compared to an individual.62
Like other forms of sexual violence, searches cause not only
individual but also group-based harm, reinforcing social hierarchies.63
The racialized and gendered dynamics of incarceration aggravate
such harm.64 Cameo Watkins connects her experience of being strip
searched during initial prison processing to the legacy of slavery:
It was the worst thing that I have ever experienced.
I remember thinking at the time that this had to have
been close to what my ancestors had been through.
At that moment I remember thinking I am no longer
a person, that I had crossed the boundary, crossed
the line from human to not only animal but owned. I




Cop ‘Stops And Frisks’ African American Teen, Literally Destroying His Genitals,
Political Blindspot (Jan. 22, 2014),
See, e.g., Ritchie, Law Enforcement Violence Against Women of Color, supra note 27,
at 149 (describing hesitation of many women to come forward about a police
officer who raped, sexually assaulted, and/or inappropriately searched them
because of fear of police retaliation).
See, e.g., Andrea Smith, supra note 21, (explaining the role of sexual violence
in settler colonialism and other forms of hierarchy and domination); see Julie
Goldscheid, Gender-Motivated Violence: Developing A Meaningful Paradigm for Civil
Rights Enforcement, 22 Harv. Women’s L.J. 123, 124 (1999) (“rather than
being random and private matters, domestic violence, rape, and sexual assault
are violent expressions of discrimination much like other bias-related crimes
directed at individuals because of their race, color, religion, national origin,
sexual orientation, or disability”); Morgan Bassichis, Alexander Lee, and
Dean Spade, Building an Abolitionist Trans and Queer Movement with Everything
We’ve Got, in Captive Genders: Trans Embodiment and the Prison
Industrial Complex 15, 26-28 (Eric A. Stanley & Nat Smith eds., 2011).
Herman Schwartz, Shock and Humiliation: How People Are Being Strip-Searched
for Trivial Offenses, The Nation (Aug. 20, 2012),
article/169419/how-supreme-court-came-embrace-strip-searches-trivialoffenses (noting that people of color and political activists are particularly
vulnerable to practices of arrest for minor offenses and subsequent suspicionless
strip searching).


Gabriel Arkles
felt…it was worse than…it was the worst experience
I’ve ever had.65

Like other forms of sexual violence, searches are also a form
of exerting control.66 Laura Whitehorn describes pat searches in
prisons: “The point is not to locate contraband; it’s to reduce you
to a completely powerless person. If I had pushed a guard’s hands
away they would have sent me to the hole for assault. In fact, that
did happen once. It reduces you to an object, not worthy of being
defended.”67 Commentators including feminist author Naomi Wolf
and anti-violence organization Philly Survivor Support Collective
have criticized the political uses of forced stripping and sexual



Pereira, supra note 12, at 188 (“On the one hand you would feel great about
the visit but really raped and angry about the strip search afterwards. It was
impossible to ‘get used to it’ or ‘switch off from it’ or be objective to it. In fact
some women preferred not to have a visit because they couldn’t handle the
strip search afterwards.”).
Pat frisks that happen outside of custodial settings on the street can
also be a form of sexual violence. Michelle Alexander describes stop-andfrisk operations as “humiliating, demeaning rituals for young men of
color.” Alexander, supra note 24, at 136. These frisks are often even worse
for women and transgender people. Wendy Ruderman, For Women in Streets,
Deeper Humiliation, N.Y. Times, Aug. 7, 2012, at A1 (“When officers conduct
stops upon shaky or baseless legal foundations, people of both sexes often
say they felt violated. Yet stops of women by male officers can often involve
an additional element of embarrassment and perhaps sexual intimidation,
according to women who provided their accounts of being stopped by
the police.”); Amnesty Int’l Staff, Stonewalled: Police Abuse and
Misconduct Against Lesbian, Gay, Bisexual and Transgender
People in the U.S. 60, 81 (2005),
Marilyn Buck & Laura Whitehorn, Cruel but not Unusual, in The New
Abolitionists: (Neo) Slave Narratives and Contemporary Prison
Writings 259, 262 (Joy James, ed. 2005).
Naomi Wolf, How the US Uses Sexual Humiliation as a Political Tool to Control the
Masses, The Guardian, Apr. 5, 2012, available at
commentisfree/cifamerica/2012/apr/05/us-sexual-humiliation-politicalcontrol (drawing connections between U.S. chattel slavery, Nazi German
internment, and current U.S. law enforcement practices); Strip Searches Make
Us All Less Safe, Philly Survivor Support Collective (Apr. 23, 2002),
Florence v. County of Burlington Supreme Court decision is a way of scaring
all of us so that we don’t challenge state power for fear of being arrested and

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Certain Nonconsensual Medical Interventions

[H]ow can women of color rely on the Medical
Industrial Complex for care and respect? In fact, can’t
women of color instead expect re-victimization when
coming into contact with the MIC? Can’t we expect
our autonomy and self-determination to be inhibited,
and our safety to be threatened?
--Ana Clarissa Rojas Durazo69
Certain nonconsensual medical interventions, including
certain refusals to provide necessary medical care, also constitute
sexual violence. Some, but not all, of these interventions are lawful.
At common law, performing a medical procedure without the
consent of the patient is a battery.70 Nonconsensual gynecological
exams may, under certain circumstances, constitute criminal and
tortious sexual abuse.71 While some states have passed laws requiring
people seeking abortions to undergo a vaginal ultrasound72—another
form of nonconsensual penetration—advocates have had some



sexually humiliated.  This is another way that the state uses sexual violence
as a means of control.”).
Ana Clarissa Rojas Durazo, Medical Violence Against People of Color and the
Medicalization of Domestic Violence in The Color of Violence: The INCITE!
Anthology 179, 186 (INCITE! Women of Color Against Violence ed., 2006).
Sekerez v. Rush Univ. Med. Ctr., 954 N.E.2d 383, 394 (Ill. App. Ct. 2011),
reh’g denied (Aug. 2, 2011), appeal denied, 962 N.E.2d 489 (Ill. 2011).
See People v. Burpo, 647 N.E.2d 996, 998 (Ill. 1995) (upholding constitutionality
of statute prohibiting nonconsensual penetration when used to indict a
gynecologist for acts during gynecological exams); McNair v. State, 825 P.2d
571, 572 (Nev. 1992) (upholding conviction of gynecologist who penetrated
patients with his penis during examinations); Princeton Ins. Co. v. Chunmuang,
698 A.2d 9, 10, 18 (N.J. 1997) (finding that medical malpractice insurance
exemption of coverage for criminal acts applied to sexual abuse committed in
the course of gynecological exam).
See, e.g., Abortion by physician; determination of viability; ultrasound
test required exceptions; penalties, La. Rev. Stat. Ann. § 1299.35.2(d)
(2014); Va. Code Ann. § 18.2-76 (West 2012); Guttmacher Inst., State
Policies in Brief: Requirements for Ultrasound, at 1-2, http://www.guttmacher.
org/statecenter/spibs/spib_RFU.pdf (last updated Feb. 1, 2015) (providing
national review of related laws).


Gabriel Arkles

success persuading courts to strike down these laws on constitutional
grounds. 73
Prisoners retain a limited right to refuse treatment, but state
interests significantly constrain this right.74 For example, if certain
substantive and procedural thresholds are met, medical professionals
may medicate detained people with psychiatric disabilities against their
will.75 Courts have held that nonconsensual treatment with insulin
for diabetes,76 nonconsensual testing for AIDS,77 nonconsensual
vaccination for Hepatitis A,78 and nonconsensual artificial nutrition
and hydration79 do not violate prisoners’ constitutional rights. As I
will discuss further below, courts have also found some nonconsensual
gynecological and rectal exams to be lawful. However, nonconsensual
treatment may not always be permitted, particularly where the
prisoner objects based on sincerely held religious beliefs.80 Deliberate
denial of necessary medical care can also be unlawful.81
In or out of prison, people often do give full, free, knowing
consent to medical interventions. In some situations, providing
medical care to someone who cannot consent—someone who is,
for example, unconscious—may be appropriate. Here, I am only
considering those situations where a person could have consented
but did not, or where a person could not consent and no legitimate
medical need supported the intervention. I don’t argue that every
nonconsensual medical intervention is a form of sexual violence;
while nonconsensual medical interventions may always be violent,
the violence is not necessarily always sexual. I focus on those
nonconsensual medical interventions that involve stripping someone
or forcing someone to strip; touching or penetrating the genitals,


See, e.g., Texas Med. Providers Performing Abortion Services v. Lakey, 806 F.
Supp. 2d 942, 975 (W.D. Tex. 2011) vacated in part, 667 F.3d 570 (5th Cir. 2012).
White v. Napoleon, 897 F.2d 103, 113 (3d Cir. 1990).
Washington v. Harper, 494 U.S. 210, 225 (1990).
State ex rel. Schuetzle v. Vogel, 537 N.W.2d 358, 364 (N.D. 1995).
Dunn v. White, 880 F.2d 1188, 1196 (10th Cir. 1989).
Powers v. Snyder, 484 F.3d 929, 931 (7th Cir. 2007) (finding no constitutional
violation where defendants forced prisoner to work in dangerous conditions
and required him to receive a vaccination to prevent contraction of Hepatitis
A during work assignment).
Hill v. Dep’t of Corr., 992 A.2d 933, 939 (Pa. Commw. Ct. 2010); but see Thor
v. Superior Court, 855 P.2d 375, 378 (Cal. 1993).
Comm., of Pa., Dept. of Corr. v. Lindsey, 984 A.2d 573, 573 (Pa. Commw. Ct.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).

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anus, breasts, or reproductive organs; or harming a person’s capacity
for sexual pleasure, sexual acts, or reproduction.
Like searches, the physical acts of nonconsensual medical
interventions are often indistinguishable from other forms of sexual
violence. Mandatory medical exams are widely imposed in prisons
and jails, including gynecological exams.82 “[Women prisoners] have
experienced sexual violence in their private lives, in their domestic
lives, in their intimate lives. And then they go to prison where their
bodies are handled by so-called doctors who are sticking things into
their vaginas and their anuses and it feels exactly like the sexual
abuse that they have already experienced.”83 One imprisoned woman
describes her physical pain and the doctor’s denial of her experience
during an exam as follows: “[He] is the biggest man with the biggest
hands... [H]e tried to force his way into my cervix and he kept telling
me it wasn’t painful while I was crying and tears were streaming
down my face.”84
Some prisoners experience nonconsensual vaginal and anal
exams as sexual violence. Michann Meadows sued over a doctor nonconsensually penetrating her vagina.85 She cried out during the exam
and demanded that the doctor stop “jiggling [his] fingers in and out
of [her].”86 He refused to stop and pushed his fingers inside of her




See, e.g., Testing, Mich. Dep’t of Corr.,
corrections/0,4551,7-119-9741_9742-23414--,00.html (last visited Feb. 20,
2015) (“All prisoners are given a TB test and a physical, including a blood
test for HIV and venereal disease…Offenders are also given psychological
testing”); Juanita Díaz-Cotto, Chicana Lives and Criminal Justice
200 (2006) (“They do a pap smear…that’s mandatory when you go in”); ODOC
Intake & Assessment, Or. Dep’t of Corr.,
pages/intake_and_assessment.aspx (last visited Feb. 20, 2015) (“During this
process, which may last several hours, individuals undergo an abbreviated
medical/mental health evaluation and are given a tuberculosis skin test.”).
Interview with Angela Y. Davis, DVD: Visions of Abolition: From
Critical Resistance to a New Way of Life, Gender Violence
and the Prison Industrial Complex (2012), MVD Entertainment
Group, available at
Beth Richie also acknowledges that survivors of sexual violence can be
re-traumatized by “insensitive medical examinations.” Richie, supra note 12,
at 49.
Human Rights Program at Justice Now, Prisons as a Tool of Reproductive Oppression,
5 Stan. J. C.R. & C.L. 309, 328 (2009).
Meadows v. Reeves, 1:11-CV-00257-GBC PC, 2012 WL 1583023, at *2 (E.D.
Cal. May 4, 2012).


Gabriel Arkles

even harder, claiming that he needed to do what he was doing to
“get around her uterus.”87 The exam caused her pain and bleeding.88
Afterward, a nurse gave Meadows a menstrual pad and privately
advised her to file a complaint against the doctor for his conduct.89
In her complaint, Meadows said she felt sexually violated.90
Jessie Hill sued over a doctor non-consensually penetrating
his anus and rectum.91 Guards took Hill to a prison doctor after he
complained of rectal pain.92 He told the doctor that he consented
only to a visual examination and specifically told the doctor not to
stick anything in his rectum.93 The doctor stuck his finger in Hill’s
rectum over his protests.94 When Hill called for the guards to help
him, they laughed at him instead.95 Hill said that he experienced the
penetration as rape.96
Also like searches, nonconsensual medical interventions
infringe on the same interests in bodily integrity, privacy, dignity,
self-determination, and autonomy as in sexual violence more broadly,
and can cause similar types of harm.97 Forced exams to investigate
sexual violence, which typically involve penetration of the mouth,
vagina, and/or anus and come on the heels of other sexual violence,
can be particularly harmful. “Almost all interviewees in a recent study
of survivors of sexual abuse said they were re-traumatized by the
medical examination procedures…. [B]ecause there is an underlying
assumption that they are not to be believed, material evidence must
be collected from their bodies as they are objectified and invaded,
penetrated a second time by medical intervention.”98 A prisoner in a



Hill v. Rectenwald, 5:10CV00030JMM/JTK, 2010 WL 2610667, at *1-2 (E.D.
Ark. June 17, 2010), report and recommendation adopted, 5:10CV00030JMM/JTK,
2010 WL 2610659 (E.D. Ark. June 28, 2010).
Id. at *1.
Id. at *1-2.
See, e.g., Camille Gear Rich, What Dignity Demands: The Challenges of Creating
Sexual Harassment Protections for Prisons and Other Non-Workplace Settings, 83 S.
Cal. L. Rev. 1, 5 (2009) (identifying the dignitary harm involved in sexual
harassment in prisons).
See Durazo, supra note 69, at 187.

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California women’s facility said, “Ninety-nine percent of the women
have been abused or raped. To have a man take us into an office the
size of a closet . . . stripped down . . . rough and hurts us . . . it takes
us right back to the beginning.”99
Other forms of nonconsensual medical interventions,
such as sterilization, also violently control people’s sexuality and
reproduction.100 As one Black trans man subjected to a hysterectomy
in a California prison said, “I felt coerced. I didn’t understand the
procedure….I never planned on having children but I would have liked
the option to be mine.”101 The history of nonconsensual sterilization
in prisons—including psychiatric institutions—is extensive. These
practices have tended to target disabled people, low-income people,
indigenous people, queer people, gender nonconforming people,
Black people, immigrants, and sexually active women.102 While
these practices have often targeted people with a uterus, they have
certainly not spared people with testicles. Nonconsensual castration
has been used as a punishment for alleged sexual violence, a
treatment for homosexuality, and a part of medical experimentation.103
Nonconsensual sterilization practices are not over. Justice Now
recently documented extensive practices of nonconsensual
sterilization in California women’s prisons, which seemed to target
non-trans women of color and trans men of color.104 Like other forms
of sexual violence, these nonconsensual sterilizations invade people’s
See Human Rights Program At Justice Now, supra note 84, at 327.
“Because of the way they impact and manipulate women’s sexual and
reproductive lives, coercively sterilizing women, forcing them through
economic incentives (like the threat of being fired) to terminate pregnancies,
and offering them long-term birth control at no or low cost are all forms of
sexual violence against immigrant women.” Pérez, supra note 6, at 146.
101 See Human Rights Program At Justice Now, supra note 84, at 322.
102 Tony Platt, The Frightening Agenda of the American Eugenics Movement (July 7,
103 Harriet Washington, Medical Apartheid: The Dark History of
Medical Experimentation on Black Americans from Colonial
Times to the Present 244 (2008).
104 See, Human Rights Program At Justice Now, supra note 84, at 32; see also
Victoria Law, Resistance Behind Bars: The Struggles of
Incarcerated Women 32 (2009) (describing the nonconsensual removal
of most of a woman’s cervix); Salimah Hankins, Advancing Human
A Status Report on Human Rights in the United States 61 (2014),


Gabriel Arkles

bodies against their will and cause serious harm. Hysterectomy and
castration can cause not only medical complications and dramatic
curtailment of reproductive possibilities, but also limit capacity for
sexual pleasure.105
Nonconsensual medical interventions not directly targeted at
genitals or reproductive organs can also be used as a way to support
other forms of sexual violence. When a transgender woman in a
Pennsylvania prison went on a hunger strike to demand protection
from sexual assault, the prison responding by force-feeding her.106
Forced psychiatric treatment has been used to punish those who
report rape107 and those who show consensual affectionate or sexual
connection with other prisoners.108 Forced psychiatric treatment can
also be a form of sexual violence in and of itself, such as when staff
members keep watch on prisoners whom they have forced to go
naked.109 When one woman reported that a guard raped her, she was
immediately transferred to a psychiatric hospital for prisoners, where
she was harassed.110 When she attempted suicide, three male guards
stripped her naked and tied her spread-eagle to a bed, forcing her to
stay there for nine hours.111
Denial of medical care112 can also be sexual violence, in a very
similar way. Refusal to treat cancer, sexually transmitted diseases,
and other conditions, as well as refusal to provide gender-affirming


Nara Schoenberg, Ladies, Scientists Have Found Out Some Very Interesting Details About
Your Sex Life, Chicago Tribune, Sept. 19, 2012 http://articles.chicagotribune.
com/2012-09-19/health/sc-health-0919-lady-parts-20120919_1_medicalresearch-anatomy-cervix; Barry R. Komisaruk, Eleni Frangos, & Beverly
Whipple, Hysterectomy Improves Sexual Response? Addressing a Crucial Omission in
the Literature, 18 J. Minim. Invasive Gynecol. 288 (2011), http://www.ncbi.
Lori Falce, Corrections Department Sues to Force Treatment of Transgender
Inmate, Centre Daily Times, July 11, 2014, http://www.centredaily.
See Law, supra note 104, at 67.
Nikki Lee Diamond, Behind These Mascaraed Eyes: Passing Life in Prison, in
Nobody Passes: Rejecting the Rules of Gender and Conformity
197, 202 (Mattilda, a.k.a. Matt Bernstein Sycamore, ed. 2006).
White v. Marshall, CIV. 208CV362-CSC, 2008 WL 4826283 (M.D. Ala. Nov.
5, 2008) (describing practice of placing prisoner in a “strip cell” on suicide
Law, supra note 104, at 155-56; see also Gabriel Arkles, Gun Control, Mental Illness,
and Black Trans and Lesbian Survival, 42 Sw. L. Rev. 855, 885 (2013).
See Arkles, supra note 110.
See Durazo, supra note 69, at 186.

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care to trans prisoners, shortens life spans, curtails reproductive
capacity, and limits possibilities for sexual activity and pleasure.113
For example, one imprisoned woman needed a mammogram and
biopsy to investigate a lump in her breast. 114 Her prison refused to
provide it for years.115 By the time she got the test, the cancer had
spread and she needed to have both breasts removed.116 She also had
heavy vaginal bleeding for 18 months before getting treated with
a hysterectomy.117 Many prisoners have reported inadequate HIV
treatment, which among other things makes sex more dangerous.118
Some trans women denied gender-affirming hormone treatments
have performed castration surgeries on themselves.119 Many trans
people denied gender-affirming treatment find it more difficult to
have sex at all, or in the ways they want to, or in ways that bring
them as much pleasure as possible.120
Deliberate denial of necessary medical treatment and forced
sterilization without medical reasons are often unlawful,121 even
if not recognized as sexual violence. Many of the other forms of
nonconsensual medical interventions I have described, however, are



See Human Rights Program At Justice Now, supra note 84, at 329.
See Law, supra note 104, at 31.
Gus Cairns, No-one With an Undetectable Viral Load, Gay or Heterosexual, Transmits
HIV in First Two Years of PARTNER Study, NAM, Mar. 4, 2014, http://www. (finding
virtually no risk of HIV transmission in sero-mixed couples where the HIVpositive partner received effective anti-retroviral treatment).
George Brown, Autocastration and Autopenectomy as Surgical Self-Treatment in
Incarcerated Persons with Gender Identity Disorder, 12 Int’l J. Transgenderism
31, 33-35 (2010).
Griet De Cuypere et al., Sexual and Physical Health After Sex Reassignment Surgery,
34 Archives of Sexual Behavior 679, 679 (2005) (finding that 80% of
trans people reported improvement in sexuality after gender affirming surgery).
See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Skinner v. State of Okla. ex
rel. Williamson, Atty. Gen. of Okla., 316 U.S. 535, 541-43 (1942).

Gabriel Arkles


Prohibitions on Consensual Sex
n there are times
when i want to love without fear
i just want to love without fear
don’t you?
--Maiana Minahal122

Almost all U.S. prisons prohibit consensual sexual relationships
between prisoners.123 Many prisons also prohibit other forms of
affectionate physical contact, like kissing, hugging, or handholding, as
well as solitary expressions of sexuality, like masturbation.124 Courts
have consistently upheld these restrictions against challenge.125
Carceral prohibitions on consensual sex are a form of sexual violence
because they violently, non-consensually, control people’s sexuality.
These restrictions also often lead to other forms of sexual violence.

Maiana Minahal, Poem On Trying to Love Without Fear in The Color of
Violence: The INCITE! Anthology 267, 268 (INCITE! Women of Color
Against Violence ed., 2006).
123 See, e.g., Smith, Rethinking Prison Sex, supra note 8, at 200 (“In every state,
correctional policies prohibit sexual behavior by inmates, whether that
conduct is with staff or other inmates.”); Or. Admin. R. 291-105-0015(2)
(m) (2015) (prohibiting consensual sex among prisoners); N.J. Admin.
Code § 10A:9-2.13 (d)(5) (2015) (same); Kan. Admin. Regs. 44-12-314(a)
(2015) (same); Abby Wilkerson, Disability, Sex Radicalism, and Political Agency, in
Feminist Disability Studies 193, 194 (Kim Q. Hall, ed. 2011) (describing
limitations on sex, relationships, and masturbation in nursing homes and other
institutions); Siebers, supra note 31, at 43 (same).
124 See, e.g., Arkles, supra note 11, at 534-535; Ken Picard, A Gay Transgender Inmate
Sues for Passion in Prison, Seven Days (Feb. 26, 2014), (quoting Paul Wright),
available at (“Most prisons also have
rules against masturbation. […] If you think that one’s not being violated on
a regular basis, denial isn’t just a river in Egypt.”).
125 See Arkles, supra note 11, at 534-35.

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Prohibitions on consensual sex devalue consent. “[R]ape
culture works by restricting a person’s control of hir body, limiting hir
sense of ownership of it, and granting others a sense of entitlement to
it.”126 Prohibitions on consensual sex always seek to control intimate
bodily acts, and assert government power over what one may do with
one’s body. Prohibitions on consensual sex infringe on interests of
bodily integrity, privacy, dignity, self-determination, and autonomy.127
Many feminists argue that increasing sexual autonomy,
particularly for women, trans people, and queer people, is a central
part of ending sexual violence—although alone it is not enough.128
Self-defining and self-determining sexuality, and forming intimate
connections with other people, can fuel survival and resistance.
“[A]ll systems of oppression rely on harnessing the power of the
erotic…when self-defined by Black women ourselves, Black women’s
sexualities can become an important place of resistance. Just as
harnessing the power of the erotic is important for domination,
reclaiming and self-defining that same eroticism may constitute one
path toward Black women’s empowerment.”129

Hazel/Cedar Troost, Reclaiming Touch: Rape Culture, Explicit Verbal Consent, and
Body Sovereignty, in Yes Means Yes! Visions of Female Sexual Power
and a World Without Rape 171, 171 (Jaclyn Friedman & Jessica Valenti,
ed. 2008).
127 See Smith, Rethinking Prison Sex, supra note 8, at 232 (“[P]ermitting a greater
degree of sexual expression recognizes the inherent dignity of human beings,
which survives imprisonment.”); Smith Tiloma Jayasinghe, When Pregnancy Is
Outlawed, Only Outlaws Will be Pregnant in Yes Means Yes! 265, 269 (“someone
else’s paternalistically taking away her choice to have sex…renders her…less
than human.”).
128 See Pérez, supra note 6, at 142.
129 See Collins, supra note 45, at 128.


Gabriel Arkles

In her groundbreaking work on prison sex, Brenda V. Smith
explores prisoners’ interests in sex, including sex for pleasure,
trade, freedom, transgression, procreation, safety, and love.130 Many
prisoners have described the importance of sexual self-expression
while incarcerated. One formerly incarcerated woman said, “The
incarceration experience is brutal and lonely, and I believe that it is only
natural for women to seek to alleviate feelings of loneliness through
nonsexual or sexual intimacy during the stay.”131 Regina Diamond, an
incarcerated lesbian, asked, “How and why would anyone
be expected
and forced to live without love from a significant other regardless
of the environment? It’s insane!”132 A formerly incarcerated man
said, “Sex is like drinking down an ocean of cloudless Montana sky,
soaring, expansive, ever onward.”133 A Pennsylvania study found that
“Some respondents [in a study of trans and gender variant prisoners]
describe the ways in which having sex and/or creating partnerships
supported their resilience by providing companionship, protection,
and access to resources.”134

See generally Smith, Rethinking Prison Sex, supra note 8.
CraneStation, What Happens to Sexuality in Prison: Frog Gravy 79, The Smirking
Chimp Blog (Jan. 19, 2012, 8:43 PM),
132 Toshio Meronek with Regina Diamond, Faith Phillips, & Lala, How We Get
By: Resisting Gender Regulations When “You Have No Right to Be Who You Are,” The
Abolitionist, Summer 2012, at 5, available at http://abolitionistpaper.files.
133 Neil Edgar, Inside the Box, in That’s Revolting! Queer Strategies for
Resisting Assimilation 139 (Mattilda Bernstein Sycamore ed., 2004).
134 Pascal Emmer, Adrian Lowe, and R. Barrett Marshall, This is
a Prison, Glitter is Not Allowed: Experiences of Trans and
Gender Variant People in Pennsylvania’s Prison Systems 36

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The enforcement of prohibitions on consensual sex often
involves physical and sexual violence. Detecting sex requires
extensive surveillance, which may involve viewing the naked body
or even touching or penetrating the body through searches or medical
exams. Punishing people for consensual sex also often involves direct
intrusion on the body, including forcibly removing people from where
they are and placing them in solitary confinement. “In both jails and
in the prison I was in, sexual contact was punishable by time in the
hole.”135 Loss of good time credits, another common punishment for
consensual sex, forces people to remain in prison for longer periods of
time. Lin Elliot said, “Even in states—such as here in Washington—
where there are no laws against homosexuality, consensual sex
between prisoners is against prison rules and can result in severe
punishment—even loss of ‘good time,’ thereby extending a person’s
sentence.”136 Placement in solitary confinement, as well as longer
terms of confinement in prison, in turn make people more vulnerable
to other forms of sexual violence, including rape. Other penalties
for consensual sex include forced labor, and forced separation from
one’s lover.137 Punishments are not always equal: they can be worse
for trans people and for HIV positive people.138




CraneStation, supra note 131; see also Toshio Meronek with Regina Diamond,
Faith Phillips, & Lala, supra note 132, at 5 (“Sex was forbidden, and if people
were caught, they would get a blue sheet [a disciplinary write-up], and were
often sent to ‘lock’ [solitary confinement].”).
Karen Moulding & National Lawyers Guild, 2 Sexual
Orientation and the Law § 15:26 (2013) (quoting Lin Elliott, Building
Bridges, Breakthrough, Spring 1993, at 46.).
CraneStation, supra note 131; Prince, A Story… About Me Inside Prisons in Prison
Officials Stop at Nothing to Separate Lovers in PAC, Sylvia Rivera Law Project,
Jan. 29, 2014, available at (“Then, they sent me to the box for a bullshit ass ticket,
and moved me out the jail just to separate us.”).
“[S]ince both the guy I was with and I are both on paper for having HIV, now
we are both sitting in Ad-Seg without being allowed to attend the hearing….
This is my first time ever receiving a case of this manner and now I’m being
treated as though I’ve been repeatedly written up for this….They lied on the
paperwork- they don’t care! …They don’t want us Gay and Transgenders in
population in the first place.” Trans Folks Down for the Fight, Black and Pink
Newspaper, Oct. 2013, at 4, available at


Gabriel Arkles

Prohibitions on consensual sex perpetrate homophobia
and transphobia, which can increase the level of sexual and other
violence targeting people perceived as trans or queer. While trans
and queer people are far from the only people having sex in prison,
they are often assumed to be having sex and get punished for it.139
Historically, concerns about sexuality in prison have focused at least
as much on homosexuality as on sexual assault.140 Courts continue
to accept stopping or discouraging homosexuality and homosexual
relationships as “legitimate penological objectives.”141 Because
prisons tend to conflate queer and trans identity, consensual sex in
prison, and sexual assault, prison officials have at times interpreted
measures against rape to express zero tolerance for queer and trans
people.142 Some prison officials expressed confusion about the PREA
regulation stating that prisons may not treat consensual sex the same
as sexual assault.143 This confusion speaks to the deeper issue—that
prison officials still see queer sex as the problem, not sexual assault—
or they see the two as indistinguishable and identically bad. Jason
Lydon, a formerly incarcerated gay man and founder of Black and
Pink, explains, “[u]nfortunately, it is against the rules, and in many
states against the law, for prisoners to have sex with each other
(and in some places prisoners even get in trouble for masturbating).
The Prison Rape Elimination Act (PREA) has also increased guard
harassment of prisoners in romantic relationships with each other.
Black and Pink has gotten reports of prisoners getting disciplinary
tickets for simply holding hands.”144


Arkles, supra note 11, at 534-35.
See generally, Regina Kunzel, Criminal Intimacy: Prison and the
Uneven History of Modern American Sexuality (2008).
See generally Thornburgh v. Abbott, 490 U.S. 401 (1989); Willson v. Buss, 370
F. Supp. 2d 782 (N.D. Ind. 2005).
See Arkles, supra note 11.
National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed.
Reg. 37,106, 37,174 (June 20, 2012) (codified at 28 C.F.R. pt. 115).
Jason, Message from Jason, Black and Pink Newspaper, Oct. 2013, at 2,
available at

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Martin Morales, in her pro se complaint challenging Vermont
prohibitions on consensual sex in prison, identified a host of problems
that the prohibitions caused, including “sexual assaults within the
incarceration system…homophobia…hatred…and bigotry.”145 Citing
Romer v. Evans, she explained that these prohibitions are rooted
in anti-LGBT prejudice.146 As another author explains, teaching
homophobic, transphobic, and sexist sexual shame can make people
more vulnerable to abuse in relationships. “If that little girl has
learned that her queer longings and desires are sinful … and dirty,
and that she should expect to be beaten and raped by the upstanding
citizens … then how will she know when the things her lover does to
her are abusive? If that non-gender-conforming child has never been
allowed to name hir own body, and learned everyone but hirself has
the right to name, manipulate, and modify hir body, then how will
ze know when a touch is invasive?”147
Others have also pointed out that prohibitions on consensual
sex keep prisoners from learning positive relationship skills. Paul
Wright says, “If most prisoners are going to be getting out, how are
you helping to make them better people from when they came in?
[…] If you accept the fact that relationships are a normal part of
human existence, what are you doing to normalize that?”148 Derrick
Corley, a writer and prisoner in New York, said, “If it is true that
healthy people have healthy relationships, and, if these relationships
are systematically denied prisoners, then how can we be expected
to eventually live in society as normal, law-abiding, productive


Complaint ¶ 13, at 4, Morales v. Pallito, 2014 WL 1758163 (D. Vt. Apr. 30,
2014) (No. 2:13-cv-00271).
Id. at 23-24.
Toni Amato, Shame is the First Betrayer, in Yes Means Yes! Visions of
Female Sexual Power and a World Without Rape 221, 224 (Jaclyn
Friedman & Jessica Valenti, eds., 2008).
Ken Picard, A Gay Transgender Inmate Sues for Passion in Prison, Seven Days,
Feb. 26, 2014, available at
Smith, Rethinking Prison Sex, supra note 8 at 185, n. 37 (quoting Derrick Corley,
Prison Friendships, in Prison Masculinities 107 (Don Sabo et al. eds., 2001).


Gabriel Arkles

The focus on preventing consensual sex can lead prison
officials to put prisoners in unnecessarily dangerous situations. A
prisoner named Steven said, “They will put you in a 12 X 8 cell with
a homophobe and expect you to get along with your cellmate. Heaven
forbid they put you in a cell with another bisexual, transgender, or
gay individual because they will automatically assume that ya’ll are
having sex. What do they care if we have consensual sex?”150 A stud151
in a women’s state prison agrees: “If you want to have a relationship
with somebody or cell up with them that should be your business.
This would create a much safer environment for everybody.”152
The prohibitions on consensual sex can also deter prisoners
from coming forward about sexual assault, for fear that they will be
punished for having sex. That is exactly what happened to one of my
former clients, who was disciplined for having sex when she told a
staff member that another prisoner had raped her.
Brenda V. Smith points out that if prisons permitted
consensual sexual expression, they could improve in several ways. For
example, they could “appropriately identify[] acts that are consensual
as opposed to coerced … to more accurately report information to the
Bureau of Justice Statistics and meet the data collection requirements
of the [Prison Rape Elimination] Act.”153 This shift in focus would
also lead officials to devote their limited resources to focus on
preventing, investigating, and responding to sexual violence, rather
than consensual sex.154 She acknowledges that “recognizing and
granting inmates a degree of sexual expression may enhance inmate
safety by decreasing prison rape” and agrees with those described
above that it would also “help prisoners learn healthy and responsible
sexual behavior prior to reentering the community.”155



Steven, Letters to Our Family, Black and Pink Newspaper, Jan. 2014, at 3,
available at
“Some people of color assigned female at birth with a masculine gender
presentation identify with the term stud.” Arkles, Correcting Race and Gender,
supra note 8, at 873 n. 61.
Pascal Emmer et al., The Hearts on a Wire Collective, This Is a
Prison, Glitter Is Not Allowed: Experiences of Trans and
Gender Variant People in Pennsylvania’s Prison Systems 45
Smith, Rethinking Prison Sex, supra note 8, at 228.
Id. at 228-29.
Id. at 232.

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Prohibitions on consensual sex also make sex riskier,
contributing to transmission of HIV and other STDs. “Acknowledging
that a broad range of sex occurs in correctional settings for a variety
of reasons would enable prison officials to take appropriate health
measures such as condom distribution.”156 Lawmakers use the
prohibitions on consensual sex as a justification for prohibiting
condoms.157 Even in those rare situations where a prison provides
condoms, if it still prohibits sex, then sex is less likely to be planned
and more likely to occur when an unsupervised moment arises--even
if no condom is available.158 This state-created vulnerability to HIV
and STDs also constitutes sexual violence.

Legal Support for, and Regulation of, Sexual Violence

The law not only permits, but also often requires or perpetuates,
these and other forms of sexual violence. To maintain perceptions of
legitimacy, to ease discomfort of those charged with carrying out its
functions, and to appease dissenters, the legal system must at least
appear to fight sexual violence. Indeed, fighting sexual violence is one
of the justifications for having laws at all, particularly criminal laws.159
As people seek to fight sexual violence through the law, but
fail to change fundamental functions of the law that create sexual
violence, contradictions inevitably emerge in doctrine that lawmakers
must either resolve or hide. Three maneuvers they use to do so in
prison law include keeping money and power away from prisoners
in enforcement schemes related to sexual violence, crafting selective
definitions of sexual violence, and justifying sexual violence in the
name of preventing, investigating, or responding to it.

Id. at 230.
See id. at 229-30; Susan Abram, Condoms for Prisoners and Porn Stars Debated
by Legislature, Los Angeles Daily News (May 16, 2013), http://www. (quoting an Assemblywoman opposed to a bill
for condom distribution in prisoners as saying, “This bill aids and abets illegal
sexual activity by inmates”).
158 Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration,
99 Cal. L. Rev. 1309, 1367 (2011).
159 Theories of Criminal Law, Stanford Encyclopedia of Philosophy 20
(2014), available at

Gabriel Arkles


Keeping Money and Power Out of the Hands of

One category of legal maneuvers to support sexual violence
without appearing to do so involves creating procedural and
substantive barriers to prisoners seeking redress about sexual
violence. Keeping power away from particular groups of people is
also intrinsic to sexual violence generally.
These types of maneuvers arise particularly when prisoners
seek accountability or damages for unlawful acts of sexual violence.
Outlawing sexual violence does little good when prisoners who
experience sexual violence have little power to do anything about it.
The Prison Rape Elimination Act (PREA) serves as a key
example. Most strikingly, PREA does not create a private right of
action, which would have allowed prisoners to sue prison officials
who failed to comply with PREA in a way that harmed them. 160
Instead, Congress left enforcement entirely in the hands of DOJ.161
As I have discussed elsewhere,162 courts have used the lack of private
right of action to eliminate consideration of PREA, not only as its
own cause of action, but also for purposes of the constitutional claims
prisoners bring.

See, e.g., Monts v. Greer, No. 5:12-CV-258-MP-GRJ, 2013 WL 5436763, at *3
(N.D. Fla. July 15, 2013), report and recommendation rejected sub nom. Monts v.
Dep’t of Corr., No. 5:12-CV-00258-MP, 2013 WL 5436758 (N.D. Fla. Sept. 27,
2013) (noting lack of private right of action in PREA); Brown v. Parnell, CIV.A
No. 5:09CV-P159-R, 2010 WL 1418735, at *5 (W.D. Ky. Apr. 7, 2010) (same);
Faz v. North Kern State Prison, No. CV-F-11-0610-LJO-JLT, 2011 WL 4565918
at *5 (E.D. Cal., Sept. 29, 2011) (same).
161 42 U.S.C.A. § 15607 (West); Attorney General Enforcement of PREA National
Standards to Prevent, Detect, and Respond to Prison Rape, giving the DOJ
enforcement responsibility,
162 Gabriel Arkles, A Decade of Disservice with the Prison Rape Elimination Act, N.Y.U.
J. Legis. & Pub. Policy (forthcoming 2015).

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Additionally, PREA provided funding and power only to
entities neither made up of nor controlled by prisoners. Millions
of dollars flowed from the federal government as a result of PREA,
none of it earmarked to go to survivors of carceral sexual violence.
Instead, the money went to fund “personnel, training, technical
assistance, data collection, and equipment to prevent and prosecute
prisoner rape.”163 PREA also created and funded the National Prison
Rape Elimination Commission (NPREC) to conduct research and
hold hearings about prison rape and to develop recommended
national standards to detect, prevent, reduce, and respond to prison
rape, which the Attorney General would then consult to develop
regulations.164 Congress and the President, not prisoners, had the
opportunity to appoint Commissioners.165 Nonetheless, NPREC did
an unusually good job of seeking prisoner participation in developing
the standards.166 NPREC also did unusually well at taking that
participation seriously in formulating their original draft standards.
Unfortunately, the ultimate regulations depart substantially from
those original draft standards.167 Much of what is good about the
PREA regulations likely results from NPREC’s solicitation and
consideration of prisoner input, but Congress did not require such
accountability in creating the law.



Grants To Protect Inmates and Safeguard Communities, 42 U.S.C. § 15605(a)
Cindy Struckman-Johnson & Dave Struckman-Johnson, Stopping Prison Rape:
The Evolution of Standards Recommended by PREA’s National Prison Rape Elimination
Commission, 93 Prison J. 335, 341 (2013), available at
See Shay, supra note 10.
See infra Section III.B.


Gabriel Arkles

Another, older legislative maneuver to keep money and power
out of the hands of prisoners is the Prison Litigation Reform Act
(PLRA), a 1996 law designed to keep prisoners’ claims out of courts.168
The PLRA has been discussed extensively elsewhere.169 For these
purposes, suffice to say that it is probably the single most effective
legislative intervention to prevent prisoners from bringing meritorious
lawsuits about sexual violence.170 It requires physical injury before
prisoners may sue for damages; some courts have found that sexual
violence has not resulted in physical injury.171 It requires proper
exhaustion of administrative remedies, which effectively reduces
statutes of limitation to mere weeks and creates significant, often
counterintuitive procedural hurdles that survivors must navigate to
preserve their right to sue.172 It also requires even prisoners with
no money to pay in order to file their claims.173 Prisoners may put
off payment if they have not yet had three law suits dismissed, but
even deferred payment creates an enormous financial burden for
people who have no access to jobs except possibly for prison labor
compensated at less than a dollar an hour.174


See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1557-60
See generally Human Rights Watch, No Equal Justice: The Prison
Litigation Reform Act in the United States (2009).
Id. at 2-4.
Prison Litigation Reform Act, 42 U.S.C. § 1997e(e) (2000); see generally
Hancock v. Payne, No. CIV.A.103CV671JMRJMR, 2006 WL 21751, at *3 (S.D.
Miss. Jan. 4, 2006).
Human Rights Watch, supra note 169, at 3
See Schlanger, supra note 168, at 1628, 1645–49.
See id. at 1645–49 (“A hundred and fifty dollars is a lot of money in prison
- months or more of wages for those whose money comes from prison
employ ment.”).

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Other aspects of prison law also work to deprive prisoners
of power and money. For example, under Supreme Court precedent,
courts must defer to prison officials on a wide range of issues.175
Courts have gutted prisoners’ constitutional rights in order to
support “legitimate penological interests.”176 Doctrine on qualified
immunity and supervisory immunity erect further barriers to holding
officials accountable, even when courts find they have violated the


Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Beard v. Banks, 548 U.S. 521, 528 (2006) (“[T]he Constitution sometimes
permits greater restriction of such [constitutional] rights in a prison than it
would allow elsewhere”).
See Barbara E. Armacost, Qualified Immunity: Ignorance Excused, 51 Vand. L.
Rev. 581, 584 (1998); Schlanger, supra note 168, at 1606–07.


Gabriel Arkles

Alexis Raeshaun Bell’s claim is representative of many
complaints about searches that may be unlawfully sexually violent.
These complaints involve being groped and fondled during searches,
searched repeatedly as a form of harassment, penetrated during
searches other than physical body cavity searches, publicly strip
searched, and verbally harassed during searches.178 When Bell, a
transgender woman, was in line to get medications in a Los Angeles
county jail, a deputy ordered her to follow him down a hall.179 He
made her take off all of her clothes, bend over, and spread her cheeks.180
He then “tapped and rubbed [Bell’s] buttocks with a flashlight” and
made comments about her gender, anatomy and sexuality in a way
that she found harassing and degrading.181 Finally, he kicked her
clothing away and told her to return to her cell naked.182



See, e.g., Kimberly v. State, 116 P.3d 7 (Haw. 2005); Richie, supra note 12, at
51 (“it is not uncommon, therefore, for women to complain about a guard
groping rather than ‘pat searching,’ forcefully inserting foreign objects in them
as a way to conduct a ‘cavity search,’ or ‘taunting them in sexually explicit
terms’ while observing them during bathing and dressing routines.”); Watson
v. Sec’y Pa. Dept. of Corr., 436 F. App’x 131, 136 (3d Cir. 2011) (finding that
allegations that guard grabbed prisoner’s penis and testicles during a strip
search and told him he would enjoy it raised a Fourth Amendment claim);
Meriwether v. Faulkner, 821 F.2d 408, 411 and 418 (7th Cir. 1987) (noting
that while the trans woman plaintiff alleged she was forced to strip in front
of prisoners and guards as a form of harassment, her rights to privacy were
curtailed in the prison environment); Sylvia Rivera Law Project, It’s
War in Here: A Report on the Treatment of Transgender and
Intersex People in New York State Men’s Prisons 21-22 (2007)
(documenting the experiences of trans women in men’s prisons in New York,
many of whom report sexual violence by correction officers via searches).
Verdict and Summary Statement, Bell v. Cnty of L.A, WL 4375768 (C.D.Cal.
2008) (No. CV-07-81872009), 2009 WL 6407941, [hereinafter Bell Verdict and
Summary Statement].
Motion for Summary Judgment at 1, Bell v. Cnty of L.A, WL 4375768 (C.D.Cal.
2008) (No. CV-07-8187), 2009 WL 6407941.
Bell Verdict and Summary Statement, supra note 180.

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Bell brought a claim about the deputy’s conduct during the
search and about the failure of supervisory officials to respond to her
complaints, using PREA and the First, Fourth, Eighth, and Fourteenth
Amendments.183 Early in the case, the court granted the motion for
summary judgment of the supervisory defendants.184 The court held
that PREA did not affect its analysis because it lacked a private right
of action.185 The court further held that Bell did not have any right
to have her complaints addressed and that without allegations of
personal involvement the supervisory defendants were not liable.186
While her case against the individual officer did continue at that time,
later she withdrew the case with permission of the court for reasons
not clear in the record.187
When Jessie Hill challenged the nonconsensual rectal
examination he underwent in court, he also lost.188 The court ruled
that brief digital penetration of the rectum when performed by a
physician on a patient who complained of rectal pain did not rise to
the level of conduct prohibited by the Eighth Amendment.189

See supra, note 180, at 2.
Id. at 7.
Id. at 6.
Id. at 4-5.
Bell Verdict and Summary Statement, supra note 180.
Hill v. Rectenwald, No. 5:10CV00030JMM/JTK, 2010 WL 2610667, at *2-4
(E.D. Ark. June 17), report and recommendation adopted, No. 5:10CV00030JMM/
JTK, 2010 WL 2610659 (E.D. Ark. June 28, 2010).
189 Rectenwald, aff ’d, No. 11-3012, 2012 WL 2580185 (8th Cir. July 5, 2012).


Gabriel Arkles


In Florence, the Supreme Court moved power even further
away from prisoners. While the legality of suspicionless strip searches
was already largely accepted for people incarcerated pursuant to a
conviction or held as felony pre-trial detainees, prior to Florence a
number of Circuits had ruled that suspicionless strip searches were
illegal for misdemeanor pre-trial detainees.190 In Florence, the Supreme
Court ruled that these searches were not unreasonable under the
Fourth Amendment. Florence failed to overcome the deference
accorded to jail officials.191 The Court not only condoned strip searches
without any individualized suspicion to support the need for them,
but also approved general purposes for strip searches in addition to
contraband detection: identification of wounds or infections on the
body and identification of gang tattoos or other physical signifiers
of gang affiliation.192 The Court thus accepted stripping arrestees in
part in order to determine their medical needs,193 even though the
staff seeing them naked would presumably not have any medical
training and even though, in virtually all situations, there would be
other ways to detect medical needs of arrestees, including arrestees’
own statements of need for care for their wounds. The Court sends
the message that prisoners’ voices need not be taken seriously even
at the level of saying when they are hurt.
Together, the procedural, substantive, and financial hurdles to
litigation, not to mention the risk of retaliation, permits prison staff
to operate without accountability even when they engage in unlawful
sexual violence.

Gaming the Definitions

Another striking way that lawmakers support sexual violence
is manipulating definitions. Because many official carceral acts are
sexual violence under many general definitions, redefining them as
not-sexual violence sometimes requires complicated maneuvering.
PREA provides one prime example of such maneuvering.

See, e.g., Hartline v. Gallo, 546 F.3d 95, 100-02 (2d Cir. 2008); Way v. Cnty. of
Ventura, 445 F.3d 1157, 1161-62 (9th Cir. 2006); Wilson v. Jones, 251 F.3d
1340, 1343 (11th Cir. 2001); Roberts v. Rhode Island, 239 F.3d 107, 113 (1st
Cir. 2001).
191 See Florence, 132 S. Ct. at 1518.
192 Id.
193 Id.

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PREA specifically excludes official sexual violence from its
purview. PREA uses a fairly conventional definition for rape, focusing
on the acts committed and the absence of or incapacity for consent
on the part of the survivor. PREA addresses not just forcible rape,
but also other forms of sexual violence.194 For example, one set of
acts that the statute includes as rape is “the carnal knowledge, oral
sodomy, sexual assault with an object, or sexual fondling of a person
achieved through the exploitation of the fear or threat of physical
violence or bodily injury.”195 On its face, this definition includes
many searches and nonconsensual medical examinations. However,
PREA then limits its sweep with a set of exemptions. Specifically, the
statute exempts:
custodial or medical personnel gathering physical evidence,
or engaged in other legitimate medical treatment, in the
course of investigating prison rape; the use of a health care
provider’s hands or fingers or the use of medical devices in
the course of appropriate medical treatment unrelated to
prison rape; or the use of a health care provider’s hands or
fingers and the use of instruments to perform body cavity searches in order to maintain security and safety within
the prison or detention facility, provided that the search
is conducted in a manner consistent with constitutional
The balance the statute creates thus indicates that some acts
constitute prison rape unless they are conducted for the purpose of
investigating prison rape or for other medical or correctional reasons.
Thus, it formulates sexual abuse with an object achieved through the
exploitation or the fear or the threat of physical violence or bodily
injury as not-rape when a healthcare provider is doing it for the “right”
sort of reasons.


42 U.S.C.A. § 15609 (9) (West 2003).
42 U.S.C.A. § 15609(12) (West 2003).


Gabriel Arkles

PREA authorized the DOJ to develop an alternative definition
of prison rape,197 which it did. This definition evolved over time.
In both the original draft of recommended standards from NPREC
(“original NPREC proposal”) and the final rule that DOJ promulgated,
looking at prisoners naked is defined as voyeurism—which in turn is
defined as sexual abuse—only when not related to official duties.198 The
original NPREC proposed definition of sexual abuse did, however,
appear to encompass many searches that involved touching. Sexually
abusive contact was defined as “[t]ouching without penetration by a
staff member of an inmate with or without his or her consent, either
directly or through the clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks.”199
The final rule ultimately defined sexual abuse differently.
The relevant provision states: “Any other intentional contact, either
directly or through the clothing, of or with the genitalia, anus, groin,
breast, inner thigh, or the buttocks, that is unrelated to official duties
or where the staff member, contractor, or volunteer has the intent to
abuse, arouse, or gratify sexual desire.”200 This definition, in contrast
to the original proposal, creates an exception that makes conduct
something other than sexual abuse depending on the relationship of
the act to official duties and the motivations of the actor, thus relying
on a perpetrator perspective.


42 U.S.C.A. § 15603(A)(2)(a) (West 2005) (charging the Bureau of Justice
Statistics with defining prison rape for purposes of research); 42 U.S.C.A. §
15607(a)(1) (West 2013) (requiring Attorney General to promulgate national
standards for “detection, prevention, reduction, and punishment of prison
Nat’l Prison Rape Elimination Commission, Standards for the
Prevention, Detection, Response and Monitoring of Sexual Abuse in Prisons
and Jails and Supplemental Standards for Facilities with Immigration Detainees
14; 28 C.F.R. § 115.6 (2012).
199 Nat’l Prison Rape Elimination Commission, supra note 198, at 14.
200 28 C.F.R. § 115.6 (2012).

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The original NPREC proposal would have imposed some
specific limits on when searches could be conducted, even those not
within the definition of sexual abuse. In the glossary section, NPREC
defined different types of searches, including a pat-down search, a
strip search, a visual body cavity search, and a physical body cavity
search. For each of these types of searches, NPREC incorporated
different restrictions into the definition. The restrictions were lightest
for pat-downs, but even there pat-downs were to be done “in order
to determine whether he or she is holding an illegal object or other
dangerous contraband” and involved only a “superficial” running of
the hands over the body.201
Strip searches202 and visual body cavity searches,203 however,
were only permissible “when necessary to protect the overriding
security needs of the facility” “on reasonable suspicion that the
inmate is secreting drugs or weapons or if his or her appearance
and conduct suggests a likelihood of having engaged in prohibited
behavior.”204 Under the original proposal, these searches had to be
done in private, could not involve touching, and could only be done
by staff of the same gender as the prisoner.205



Nat’l Prison Rape Elimination Comm’n, Standards for the
Prevention Detection, Response, and Monitoring of Sexual
Abuse in Adult Prisons and Jails and Supplemental Standards
for Facilities with Immigration Detainees 12 (2008).
Id. at 15 (“A search that requires a person to remove or arrange some or all
of his or her clothing so as to permit a visual inspection of the underclothing,
breasts, buttocks, or genitalia of such person.”).
Id. (“A visual inspection of a body cavity, defined as stomach, rectal cavity,
vagina, mouth, nose, or ears, for the purpose of discovering any drugs, weapons,
or other dangerous contraband concealed in the body cavity.”).


Gabriel Arkles

Further restrictions were proposed for physical body cavity
searches.206 Only authorized medical practitioners could do the
searches and the conditions for them had to be sanitary in addition
to private.207 The word “absolutely” was also added before “necessary”
in describing when they could be conducted.208 Taken together, the
original NPREC proposal seemed to acknowledge that many searches
could be a form of sexual abuse. The proposal nonetheless would have
permitted searches, but under limited circumstances. While far from
perfect, this approach offered advantages in that it acknowledged
to some extent the nature and seriousness of the acts that carceral
agencies and their staff engaged in and took that into account in
determining when these acts could be conducted.
The final rule, however, eliminated the definition of physical
and visual body cavity searches altogether, eliminated the term
“superficial” from the pat-down definition, and eliminated virtually
all the restrictions described above from the definition of strip
searches.209 The PREA regulations did incorporate substantial
limitations on cross-gender searches.210 However, while these limits
on who can conduct a search are important to many people and have
a significant body of case law and research to support them,211 the
PREA regulations leave virtually unregulated when, where, how, and
whether a search may be conducted.


Id. at 13 (“A physical intrusion into a body cavity, defined as stomach, rectal
cavity, vagina, mouth, nose, or ears, for the purpose of discovering drugs,
weapons, or other dangerous contraband concealed in the body cavity.”).
28 C.F.R. § 115.5 (2012).
28 C.F.R. §§ 115.15, .115, .215, .315 (2012).
Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (“In short, we are
satisfied that the cross-gender clothed body search policy constituted ‘infliction
of pain.’”); Colman v. Vasquez, 142 F. Supp. 2d 226, 233-34 (D. Conn. 2001)
(denying motion to dismiss concerning cross-gender pat frisks); Brenda V.
Smith, Watching You, Watching Me, 15 Yale J.L. & Feminism 225, 229 (2003)
(“One of the most often called for remedies for sexual misconduct has been
to end the cross-gender supervision of female inmates.”). However, the
regulations do not adequately address the crucial issue of how the limitations
on cross-gender searches apply to trans prisoners.

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The PREA regulations also leave the area of nonconsensual
medical interventions virtually unregulated. It appears that, according
to the regulations, nonconsensual medical interventions would
consist of sexual abuse only where the healthcare provider “has the
intent to abuse, arouse, or gratify sexual desire,” which would not
cover most of the forms of sexually violent medical interventions
described above.212 DOJ thus chose not to clarify the statutory
language creating exemptions for certain acts of medical personnel,
such as what medical care if any is “appropriate” without the consent
of the patient.213 The only references to medical care in the PREA
regulations involve ensuring that prisoners who have experienced
sexual abuse have access to it.214
Constitutional case law also dances around the issue of official
carceral sexual violence, avoiding acknowledging it and permitting
prison officials to engage in it. The majority in Florence minimized
the harm to Albert Florence and did not consider strip searches as a
form of sexual violence. The dissent gave greater acknowledgment
to the level of violation involved, stating that “[e]ven when carried
out in a respectful manner, and even absent any physical touching,
such searches are inherently harmful, humiliating, and degrading.”215
However, they too avoided the language of sexual violence.216

Defending Sexual Violence as a Way to Stop Sexual

As discussed above, PREA created an exemption from
the definition of prison rape for acts committed in the course of
investigating prison rape. This type of reasoning—sexual violence is
justified if it is committed in order to fight other sexual violence—is
not restricted to Congress. Courts also employ it with some regularity.


28 C.F.R. § 115.6 (2012).
42 U.S.C.A. § 15609(12)(B) (2013).
See 28 C.F.R. § 115.82 (2012).
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1526 (2012) (Breyer,
J., dissenting).
216 Albert Florence said the strip searches made him feel wronged and belittled
Am. Constitution Soc’y & Nat’l Constitution Ctr., The Story Behind Florence
v. Burlington, Vimeo 02:30-02:45 (Oct. 6, 2011, 6:36 PM), http://vimeo.


Gabriel Arkles

Even for people not incarcerated, the law sometimes not only
permits, but also requires, highly invasive, nonconsensual medical
interventions performed on the genitals of survivors of sexual assault.
For example, a number of courts have compelled complaining
witnesses in child sexual abuse cases to undergo gynecological
examinations against their will.217 In other words, these courts
compel young children to submit to someone forcing them to undress,
looking at their genitals, and penetrating their vaginas with fingers, a
swab, or a speculum against their will, in the name of investigating
sexual assault allegedly committed against them.
Law enforcement officials also at times think these sorts of
tactics make sense to use on alleged perpetrators. In the course of
an investigation of “sexting,” Virginia police recently demanded
a teenager strip, get injected with drugs to cause an erection, and
permit police to take pictures of his erect penis.218

See Clark v. Commonwealth, 31 Va. App. 96, 102, (1999) vacated on reh’g en banc,
33 Va. App. 536 (2000) aff ’d, 262 Va. 517 (2001) (surveying relevant state and
federal decisions); see also BUMILLER, supra note 20, at 32-33 (describing the
retraumatizing and voyeuristic aspects of these examinations).
218 Annie-Rose Strasser, Virginia Police Want to Force a 17 Year-Old Boy to Have an
Erection, and Then Take Pictures of It, Think Progress (July 9, 2014, 1:00 PM)


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The case of Lowry v. Honeycutt gives a particularly clear
example of how the various maneuvers and official forms of carceral
violence work against prisoners. A guard caught Lenny Dean Lowry
engaging in consensual sexual activity with another prisoner.219 Lowry
described the behavior as “horseplay” and the prison later classified
it as “sodomy.”220 According to the guard, another prisoner was
pressing his penis against Lowry’s buttocks.221 While Lowry explained
that no intercourse had occurred, the activity was consensual, and
he did not want to have a rape exam, guards forced him to get a rape
exam in the prison clinic.222 They told him that he had no choice
because the exam was required under PREA.223 They then forced
him to go to a hospital in shackles to get examined again. While a
nurse examined him, a guard laughed and made jokes about him.224
The facts recited in the opinion do not describe the acts involved in
the examination, but typically a rape exam includes a penetrative
examination of the rectum to collect semen for possible DNA
identification of a perpetrator.225 The guard and the nurse also took
pictures of Lowry’s penis and anus.226 Lowry described it as ‘“the
most degrading, humiliating, and debasing experience I’ve ever had
to endure.”’227 Afterward, the prison disciplined him for engaging in
consensual sodomy and charged him $672.18 for the expense of the
exam and investigation.228



Lowry v. Honeycutt, 211 F. App’x 709, 710 (10th Cir. 2007).
Lowry v. Honeycutt, 05-3241-SAC, 2005 WL 1993460, at *1 (D. Kan. Aug. 17,
Lowry, 211 F. App’x at 710-11.
Linda E. Ledray, Sexual Assault Resource Service, Sexual
Assault Nurse Examiner Development & Orientation Guide
64, 73, 75 (1999), available at
saneguide.pdf; see also Durazo, supra note 71, at 187 (describing retraumatizing
nature of sexual assault examinations).
Lowry, 211 F. App’x at 710-11.
Id. at 711.


Gabriel Arkles

PREA does not, in fact, require prisoners to submit to forensic
exams.229 The statute does not speak to the subject. The regulations
were not in force at the time. However, they indicate: “The agency
shall offer all victims of sexual abuse access to forensic medical
examinations, whether on-site or at an outside facility, without
financial cost, where evidentiarily or medically appropriate.”230
The verb offer does not suggest that carceral agencies should or
may, much less must, force detainees to undergo such exams (and
explicitly prohibits charging them for the exam). In rejecting Lowry’s
claim, the district court complained: “The court is not cited to any
provision in the Prison Rape Elimination Act or other federal law or
even in Kansas prison regulations setting forth minimum conditions
which must exist before a prisoner thought to have been involved
in prohibited sexual activity may be required to undergo a medical
sexual abuse exam.”231 Of course Lowry could not have cited any
law or regulation setting forth when a forced rape exam could occur,
because neither PREA nor any other statute or regulation authorized
such an exam in the first place.
The Tenth Circuit nonetheless affirmed the dismissal of
Lowry’s claims. The court concluded that “in light of prison officials’
legitimate concerns about the health risks of sexual abuse and
sexually transmitted diseases, Mr. Lowry’s allegations do not indicate
that requiring a rape examination was inconsistent with legitimate
medical and penological objectives.”232 The court did not question
the connection between these interests and the exam, despite the
undisputed fact that the sexual interaction was consensual and the
lack of any assertions that Lowry was tested, treated, or offered postexposure prophylaxis for any potential sexually transmitted diseases.


Prison Rape Elimination Act, 42 U.S.C. §§ 15601-15609 (2003).
28 C.F.R. § 115.21(c) (2012).
Honeycutt, 2005 WL 1993460, at *4.
Lowry, 211 F. App’x at 712.

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Thus, staff deprived Lowry of power over his own body
through disciplining him for consensual sex and penetrating and
photographing his naked body against his will; they also deprived
him of money by forcing him to pay for this nonconsensual procedure.
Through the PLRA, he no doubt also lost money for filing his lawsuit.
However, no one involved identified what he experienced as sexual
violence; only the consensual sexual activity he shared with another
prisoner was referred to as sexual violence. The court also accepted
illogical justifications for the prison officials’ sexual violence toward
Lowry, justifying their actions as a way of fighting sexual violence.
III. Imagining Alternate Approaches to Regulating Carceral
Sexual Violence
Faced with the knowledge that law enforcement and carceral
systems use sexual violence as a way to control prisoners, one is left
with the question of what to do about it.
Some may conclude that these forms of sexual violence
are necessary to effectively incarcerate people, and that because
incarceration is important, sexual violence should still be permitted.
These people may think that it is best to continue without change.
Others may believe that it is possible and desirable to
incarcerate people without sexual violence. They might seek reforms
that would eliminate searches, certain nonconsensual medical
interventions, prohibitions on consensual sex, and the wide array of
other forms of sexual violence in prisons.


Gabriel Arkles

Others, and I count myself among them, agree with the
first group that to some extent these forms of sexual violence may
be necessary to incarcerate people. While effective incarceration
does not require the extent of invasive searches and other sexual
violence currently conducted, if prisons stopped searching anyone at
all, I expect that at least some prisoners would sneak in contraband
that they would use to oppose prison officials’ control over them,
and possibly escape. However, I do not agree that incarceration is
important enough to justify sexual violence. Ultimately, I concur with
others who believe that community accountability, cultural change,
anti-subordination, transformative justice, and prison abolition will
lead us to ending sexual violence.233 We should work toward those
goals at all times in all the ways available to us, including supporting
organizations already doing this work.234
See generally, e.g., Angela Y. Davis, Are Prisons Obsolete? 10, 107 (2003)
(on prison abolition); Generation Five, Toward Transformative
Justice: A Liberatory Approach to Child Sexual Abuse and Other
Forms of Intimate and Community Violence 2, 15, 23 (2007), available
Transformative_Justice-Document.pdf (on transformative justice); Anthony
C. Thompson, What Happens Behind Locked Doors: The Difficulty of Addressing and
Eliminating Rape in Prison, 35 New Eng. J. on Crim. & Civ. Confinement
119, 123 (2009) (on cultural change); Creative Interventions, Creative
Interventions Toolkit: A Practical Guide to Stop Interpersonal
Violence (2012), (on
transformative justice and community accountability); Bassichis, supra note
63, at 15 (on prison abolition and transformative justice); Rochelle Robinson,
Speaking The Unspeakable: The Pervasive Nature of Male Oppression and Rape Culture,
Black Girl Dangerous (March 26, 2014), http://www.blackgirldangerous.
org/2014/03/speaking-unspeakable-pervasive-nature-male-oppression-rapeculture/ (on cultural change).
234 See, e.g., About INCITE!, INCITE! Women of Color Against Violence,, (last visited Mar. 4, 2015)
(describing INCITE! movement projects on police violence, reproductive
justice, and media justice); Safe Neighborhood Campaign, Audre Lorde
Project, (last visited Mar. 4,
2015) (describing the goals of the Safe Neighborhood Campaign in ending
violence against the lesbian, gay, bisexual, Two-Spirit, transgender, and
gender nonconforming community); About, Critical Resistance, http:// (last visited Mar. 4, 2015) (describing mission of
building a movement to end the prison industrial complex); Prostitutes’
Education Network, (last visited
Mar. 4, 2015) (compiling information about organizing around sex work
and decriminalization); Purpose and Analysis, Black and Pink, http://www. (last visited Mar. 4, 2015) (describing


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However, here I would like to explore a different path. Traditional
law reform cannot end carceral sexual violence. Criminalizing all the
forms of sexual violence I have just identified would only lead to
absurd results if carceral practices stayed fundamentally the same:
any time anyone got arrested and searched, someone else would have
to arrest and search the person who just conducted the search, who
would then have to get arrested and searched in turn, and so on. Even
if every carceral agency repealed its rules against consensual sexual
expression, that formal legal change might have little practical impact.
Even now, people are often punished for consensual sexual expression
under different guises. Prison officials disciplined Morales for “misuse
of mail” when she wrote a romantic letter to another prisoner.235
When staff saw Nikki Lee Diamond and her friends hugging, they
didn’t formally charge her with anything at all; they just turned her
down for a job and transferred her to a close custody psychiatric unit
for an “evaluation.”236 Prisons might even try to manipulate the new
absence of rules to excuse rape—in fact, they already sometimes try
to cast rape as consensual sex as a way of escaping blame.237
Accepting these limitations, and inspired by Derrick Bell’s
racial realist thought experiments,238 I want to consider alternative
ways of regulating sexual violence. What might candid legal
interventions look like that did not bother trying to end carceral
sexual violence, but instead accepted that sexual violence—some of it
lawful and some of it unlawful—will occur routinely in prisons, and
nonetheless tried to provide some support to survivors and reduction
in the frequency of sexual violence? Below I outline some aspects of
a statutory scheme about carceral sexual violence in an attempt to
answer this question.



abolition as goal and strategy of organization); Accountability Processes, Philly
Stands Up!, (last visited
Mar. 4, 2015) (describing the accountability work the organization does with
perpetrators of sexual assault).
Complaint ¶ 13, at 4, Morales v. Pallito, 2014 WL 1758163 (D. Vt. Apr. 30,
2014) (No. 2:13-cv-00271).
Diamond, supra note 108 at 202.
Parker Marie Malloy, Activists Call for Release of Trans Immigration Detainee
Raped in Custody, (Aug. 01, 2014, 4:13 PM), http://www.
Derrick Bell, Faces at the Bottom of the Well: The Permanence
of Racism 43 (1993).

Gabriel Arkles



To help reduce the incidence of unlawful carceral sexual
violence, the statute would reduce the incarceration of people likely
to experience unlawful sexual violence. This portion of the statute
might involve provisions like the following.
•	 Courts must suspend any sentence of incarceration in its
entirety if the person sentenced is highly likely to be unlawfully
sexually assaulted in detention or has actually been unlawfully
sexually assaulted in detention. Any sentence of incarceration
must be reduced by half if the person sentenced is moderately
likely to be unlawfully sexually assaulted in detention or has
been a witness to unlawful carceral sexual violence.239
•	 Courts will presume that anyone who is transgender, female,
disabled, and/or young is highly likely to be unlawfully
sexually assaulted in detention unless the government proves
•	 A court may not order any person to be held pending trial or
civilly committed without first finding by clear and convincing
evidence that the person would perpetrate more violence
while released on their own recognizance than they would
perpetrate or experience while incarcerated.241


A similar proposal appeared in the original draft NPREC standards for
immigration detention. NPREC, National Prison Rape Elimination
Commission Standards for the Prevention, Detection, Response,
and Monitoring of Sexual Abuse in Lockups and Supplemental
Standards for Lockups with Immigration Detainees 62 (2008) (on
file with author).
240 Disability, youth, and a trans and/or female gender are already widely
acknowledged as characteristics of people targeted for unlawful sexual violence
in prison. See, e.g., 28 C.F.R. § 115.41(d)(1)-(10) (2012).
Some mechanisms for incarceration already require an assessment of
dangerousness. For example, the state may not involuntarily commit someone
for psychiatric treatment without finding by clear and convincing evidence
that the person is dangerous to self or others as a result of mental illness,
and commitment would be the least restrictive alternative. See O’Connor v.
Donaldson, 422 U.S. 563, 575-76 (1975); Addington v. Texas, 441 U.S. 418,
430-33 (1979). However, that test tends to devalue the safety of prisoners.
What I propose here is an additional test that, unlike the existing one, requires
a relative assessment of dangerousness. Thus, even if a person were dangerous,
the state would not be permitted to incarcerate that person unless the violence
would be greater if they were released than if they were confined. This test

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Some aspects of incarceration could change to reduce some
forms of lawful and unlawful sexual violence. Such measures would
seek to modestly increase the control that prisoners have over their
own bodies, create a paper trail for later compensation (see below),
prohibit certain forms of sexual violence, and reduce situations where
prisoners are particularly vulnerable to both unlawful and lawful
sexual violence.
•	 Solitary confinement and involuntary protective custody must
be eliminated entirely.242
•	 Consensual sexual or affectionate activity among prisoners
may not be prohibited or punished.243
•	 Single cells and facilities to shower and use the toilet privately
must be available to anyone who requests them.244

would refuse to devalue the safety of people who are incarcerated compared
to the safety of those who are not.
242 This proposal emerges from persistent demands of many currently and formerly
incarcerated people. See, e.g., Sarah Shourd, The Iranian Government Locked Me in
Solitary Confinement for 410 Days. Today, My Thoughts are with the Hunger Strikers,
ACLU (July 17, 2013, 1:10 PM),
iranian-government-locked-me-solitary-confinement-410-days-today-mythoughts (“With nearly 30,000 prisoners on hunger strike in California last
week and 80,000 prisoners who remain in solitary confinement nationwide,
the time is now to end this practice in our country.”); Anthony Graves, When
I Was on Death Row, I Saw a Bunch of Dead Men Walking. Solitary Confinement Killed
Everything Inside Them, ACLU (July 27, 2013, 11:03 AM), https://www.aclu.
org/blog/prisoners-rights-capital-punishment/when-i-was-death-row-i-sawbunch-dead-men-walking-solitary (“You start to play tricks with your mind
just to survive. This is no way to live.”); Take Action: Demand Safer Housing for
Trans People in New York State Prisons!, Sylvia Rivera Law Project, http:// (last visited Feb. 18, 2015); Prisoners’ Demands, (Apr. 03,
243 See supra Section II(B)(3).
244 These facilities would permit prisoners slightly greater control over who can
see their naked bodies, and would not necessarily cost anything more than
a curtain. Many have made this recommendation for trans prisoners, but all
prisoners could benefit from it. See, e.g., Emmer et al., supra note 152, at 21;
Sylvia Rivera Law Project, supra note 178, at 36.


Gabriel Arkles
•	 No prisoner, contractor, or staff member may be disciplined
or retaliated against for reporting sexual abuse, under any
•	 Strip searches and body cavity searches may only be conducted
upon probable cause to believe a prisoner has a weapon that
could not be discovered with less intrusive means. They may
only be conducted in private with no more people present
than those necessary to conduct the search, and they must
be documented.246
•	 No staff member or contractor may be disciplined or
retaliated against for refusing to search a prisoner, conduct a
nonconsensual medical intervention on a prisoner, or punish
a prisoner for consensual sexual activity.247
•	 Prisoners who wish to create support, accountability, or
education groups related to sexual violence must receive the
permission and resources necessary to do so.248


PREA already insists on some measures on this point. In particular, the
regulations state that the agency may not discipline prisoners for making
good faith reports of sexual abuse, even if the agency “does not establish
evidence sufficient to substantiate the allegation.” 28 C.F.R. § 115.78(f) (2012).
However, agencies may still discipline prisoners for reporting sexual violence
if the agencies determine the prisoners did not act with “good faith.” That
exception is too susceptible to abuse.
246 The proposal reflects some of the language from the original draft PREA
standards, See Nat’l Prison Rape Elimination Comm’n, Standards
for the Prevention Detection, Response, and Monitoring of
Sexual Abuse in Adult Prisons and Jails and Supplemental
Standards for Facilities with Immigration Detainees (2008). See,
e.g., New York Police Dep’t, Interim Order, Revision to Patrol
Guide 208-05 (May 25, 2011).
247 Staff members and contractors should not face the prospect of losing their jobs
or other adverse actions if they decide that they are not willing to participate
in sexual violence. See supra text accompanying notes 41-42.
248 Prisoners organizing among themselves can be an important way to promote
safety, but prisons currently often try to disrupt any such organizing. See, e.g.,
Robert “Rabi” Cepeda, True Gay Gangstas, SRLP PAC. Blog (April 24, 2014),; Arkles, supra note 11, sections III and IV.

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•	 Quality, respectful mental and physical health care must be
made available to any prisoner, contractor, or staff member
who requests or needs it. No medical care or exams may
be conducted on anyone who is capable of giving consent
without first obtaining their consent. Outside of an emergency,
no medical care or exams may be conducted on anyone who
is not capable of giving consent without first obtaining
permission from the person’s health care power of attorney,
if one exists. No medical care or exams may be conducted
on anyone who is not capable of giving consent without a
legitimate medical reason.249
In addition to the above, the PLRA should be repealed in its
entirety, which would remove one of the greatest barriers to prisoners
holding prison officials accountable for unlawful sexual violence and
other violations of their legal rights.250


To provide a financial incentive to minimize sexual violence,
and to provide some measure of support for survivors of prison
sexual violence, prisoners should receive compensation from the
government when the government subjects them to sexual violence.
Because ranking which forms of sexual violence are worse than
others is distasteful, the same amount for every type of act might
be most appropriate. Another option would be to create a schedule
for different types of sexual violence ranked on the basis of level
of invasiveness, legality, and identity of perpetrator. Whatever the
amount is, it should be adjusted annually for inflation. The schedule
option might look something like this:
•	 $10,000 for each instance of lawful nonconsensual touching
of the genitals, buttocks, or breasts through clothing (e.g. pat
•	 $20,000 for each instance of lawful nonconsensual viewing of
the genitals, buttocks, or breasts (e.g., strip searches, certain
nonconsensual medical interventions);


See supra section II(B)(2).
See supra section III(A); Human Rights Watch, No Equal Justice: The
Prison Litigation Reform Act in the U.S. (2009).


Gabriel Arkles
•	 $30,000 for each instance of lawful nonconsensual penetration
of any body part (e.g., physical body cavity searches, certain
nonconsensual medical interventions);
•	 $50,000 for each instance of unlawful sexual violence
perpetrated by another prisoner; and
•	 $100,000 for each instance of unlawful sexual violence
perpetrated by a contractor or staff member (e.g., rape;
involuntary sterilization; deliberate denial of necessary
medical care).

Prisoners should be able to opt to have the funds released to them
at once, or to have the funds placed in an interest-yielding account
and released to them at the end of their term of imprisonment. These
funds should not be subject to seizure for court fees, debts, or Son
of Sam laws,251 and should be in addition to compensation received
from other sources, such as law suits and insurance.
The process for getting compensation should be simple, likely
administrative, and accessible to all prisoners (people who don’t
speak English, illiterate people, disabled people, deaf people, and
others would all have to be accommodated). If a prisoner filed a
claim for compensation asserting facts that, if true, would support
the claim, and if she also submitted any corroborating evidence, such
as a witness statement, a letter from an outside agency for survivors
of sexual violence, or information about evidence in the control of
the agency, then the burden should shift to the prison to prove that
sexual violence did not occur. If the agency contested the claim and
the claim was substantiated, the agency should pay 150% of the
original amount.


Son of Sam laws permit crime victims to recover money from prisoners
convicted of crimes against them. See, e.g., N.Y. Exec. Law § 632-a (McKinney)
(“any crime victim shall have the right to bring a civil action in a court of
competent jurisdiction to recover money damages from a person convicted of a
crime of which the crime victim is a victim…within three years of the discovery
of any profits from a crime or funds of a convicted person”); N.J. Stat. Ann. §
52:4B-64 (West); Wyo. Stat. Ann. § 1-40-303 (West).

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Northeastern University Law Journal


Monitoring and Adjustment

Finally, to reduce carceral sexual violence or to support
communities affected by carceral violence, and to create some
accountability to prisoners and their communities, a different sort
of monitoring entity should form.
•	 A Committee on the Regulation of Prison Sexual Violence
will be convened.
•	 The Committee will consist of twenty-four members elected
every two years.
•	 Twelve members will be elected by majority vote in a secret
ballot. Eligible voters will include all those currently
incarcerated in facilities within the borders of, funded, or
controlled by the U.S.
•	 People held in particular carceral settings will elect twelve
members. Thus, in separate elections, people currently held
against their will in 1) state and territorial prisons, 2) federal
prisons (under the authority of the Bureau of Prisons), 3)
immigration and customs detention facilities (under the
authority of the Department of Homeland Security), 4)
detention facilities for enemy combatants (under the authority
of the CIA), 5) military prisons and brigs (under the authority
of the Department of Defense), 6) juvenile detention facilities,
7) nursing homes, 8) court-mandated residential drug
treatment facilities, 9) psychiatric hospitals, 10) city and
county jails, 11) police lock-ups, and 12) prisons operated
by the Bureau of Indian Affairs252 will elect a representative
by secret ballot.
•	 To be eligible to run for the committee, a person must be
currently incarcerated, formerly incarcerated, or a survivor of
law enforcement violence.


Of course, none of these provisions would govern facilities run by tribes
themselves, any more than they would govern the facilities of any other
sovereign nations.


Gabriel Arkles
•	 The committee must have substantial representation of
people particularly likely to be targeted for carceral sexual
violence. Thus, at all times, the members of the committee
must be at least one third women; one third trans or gender
nonconforming people, one third Black people; one third gay,
lesbian, bisexual, or queer people; one third disabled people or
people with chronic illness, one third immigrants, one third
youth, and two thirds people of color, and must include at
least two members who are convicted sex offenders.253
•	 The government must provide funding for the committee
to carry out its functions, including funding for research,
outreach, technical assistance, elections, meetings, and
salaries for members.
•	 The committee may issue guidelines for actions carceral
institutions should take to reduce sexual violence in addition
to or instead of the rules in the statute. If those guidelines
reflect a consensus opinion of participating committee
members, within 30 days, every carceral and law enforcement
agency must elect to opt in or opt out of compliance.
o Those agencies that opt out of compliance must pay a
fee in an amount set by the committee.
o Those agencies that opt in to compliance must pay a
fine in an amount set by the committee for any failure
to abide by their consensus guidelines.


People convicted of sex offenses are likely to get targeted for sexual violence
in prisons. See, e.g., 28 C.F.R. § 115.41(d)(6) (2012).

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The agencies must pay such fees and fines to
the committee. The committee must donate all
such funds in full within 30 days of receipt to any
community-based nongovernmental organization
with a majority of its leadership from a group or
groups disproportionately targeted for carceral sexual
violence (such as current or former prisoners, people
of color, immigrants, disabled people, currently or
formerly homeless people, or trans people) that does
work to support survivors, promote bodily autonomy
and sexual self-determination, create community
accountability, end subordination, redistribute wealth
and power, implement transformative justice, change
rape culture, or abolish prisons. To preserve the
independence of the organizations, the committee
must make the donation anonymously and may make
no attempt to influence or control the activities of the
organizations. Additionally, the committee should not
make any contributions that would amount to more
than 10% of an organization’s budget for the prior
fiscal year.254

I do not offer this idea as a serious proposal, but to give an
example of what it would mean to be honest about the situation
we are in right now. Political feasibility and constitutionality aside,
I think aspects of the ideas I just offered are morally repugnant and
not the best way to use energy and resources. For example, I do not
think it is acceptable to condone sexual violence or pretend that a
few thousand dollars could ever compensate for the damage it causes.
But, I still think it would be superior to what we have now. For the
best alternatives, we should look at what affected communities have
already developed,255 and support those efforts instead.


In this way, hopefully organizations will not become overly dependent on
funding from carceral sexual violence. See generally INCITE! Women of
Color Against Violence, The Revolution Will Not be Funded:
Beyond the Non-Profit Industrial Complex (INCITE! Women of
Color Against Violence ed., 2006).
255 See supra notes 248-49.

Gabriel Arkles


A frank look at our current carceral practices reveal rampant
sexual violence—much of it lawful, and much of it not. Rather than
contend candidly with those realities, our lawmakers have generally
chosen to smooth over them by manipulating definitions of sexual
violence, defending sexual violence as a way to stop sexual violence,
and keeping power and money away from those most likely to
challenge current conditions. Fundamentally, incarceration probably
cannot work without at least some level of sexual violence. That does
not, however, make searches, nonconsensual medical interventions,
prohibitions on consensual sex, or any of the other forms of carceral
sexual violence any more normatively acceptable or just. To contend
with these issues, we must shed some of the racist, sexist, transphobic,
ableist, xenophobic, and homophobic frames we have learned for
recognizing what is “real” sexual violence, and take seriously not only
decarceration, but also the cultural change, community accountability,
and mutual support that we need to build a world without sexual