Prisoner Rape is Torture Under International Law

Since it was clear that rape or other forms of sexual assault . . . in detention were a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constituted an act of torture. - United Nations Special Rapporteur on Torture, 1992 ¹

The sexual assault of prisoners, whether it is perpetrated by corrections officers or by other inmates, is not only a crime - in many cases, it is also a form of torture under international law. 

Torture has long been prohibited under international human rights law - a standard that has been characterized as "one of the most basic principles of human rights," comparable to the right to right to life or the prohibition of slavery. ² More than 65 countries expressly provide for the right to be free from torture or cruel and unusual punishment,³ and international customary law also bars the use of torture.⁴ Torture is a form of behavior that the United States has denounced in other nations.⁵ But the torture of American prisoners through sexual assault has long been allowed to flourish.

This inattention to a widespread form of institutionalized brutality is a violation of the United States' duty to uphold basic standards of international human rights.

THE FACTS

• Sexual assault in detention has been explicitly mentioned as an act constituting torture in several reports by U.N. Special Rapporteurs.⁶ The Inter-American Commission on Human Rights also found rape to be torture in the case of Haitian women attacked in their homes by soldiers during a coup; and international legal bodies such as the International Criminal Tribunal for the Former Yugoslavia and the European Court of Human rights have made the same determination in other cases of rape.⁷
• Torture is explicitly prohibited by a number of international human rights instruments, and particularly by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (the Convention Against Torture).⁸ President Reagan signed the Convention on Torture in 1988 and President Clinton ratified it in 1994.⁹ As binding legal authority on the U.S., the Convention Against Torture is applicable not only to the federal government, but also is supreme over state law.¹⁰



• According to the Convention,¹¹ the main elements of torture are:

a. acts which intentionally inflict severe physical or mental pain or suffering;
b. or an illicit purpose;
c. committed, consented, or acquiesced to by a public official;
d. not arising only from, inherent in, or incidental to lawful sanctions.

• Acts which intentionally inflict severe physical or mental pain or suffering: The devastating impact of sexual assault behind bars clearly satisfies the requirement of inflicting "severe physical or mental pain." Victims of prisoner rape have been left beaten, bloodied, and in some cases dead. They are also at risk for contracting sexually transmitted diseases such as HIV/AIDS, syphilis, gonorrhea, chlamydia, and hepatitis A and B, and they frequently suffer long-term psychological harm, including a risk of post-traumatic stress disorder, depression, substance abuse, and suicide.¹²
• For an illicit purpose: The Convention Against Torture provides examples of purposes for which it is illicit to inflict severe harm, which include punishment, intimidation, coercion, and for "any discriminatory purpose."¹³ Rape in detention is certainly never undertaken for any licit, or legal, purpose.
• Committed, consented or acquiesced to by a public official: Examples of officials' participation in sexual assault behind bars or of officials' acquiescence in the commission of sexual assault by others are unfortunately common. In women's facilities, reports of male corrections officers raping female inmates and coercing sex from inmates have been extensively documented.¹⁴ In many other reported cases, corrections officers have been accused of "setting up" inmate-on-inmate rape through intentionally celling likely victims with known predators.¹⁵ Furthermore, the failure of corrections officials to implement basic rape prevention measures may amount to state acquiescence.¹⁶
• Not arising only from, inherent in, or incidental to lawful sanctions: There is no question that rape behind bars falls outside the bounds of lawful sanctions. No one is sentenced to rape, and prisoner rape certainly need not be inherent in or incidental to imprisonment, as evidenced by facilities that have successful prevention protocols in place.
• The International Covenant on Civil and Political Rights, ratified by the United States in 1992, also guarantees the non-derogable rights to be free from "torture or . cruel, inhuman or degrading treatment or punishment." ¹⁷

[1] Summary Record of 21st Meeting, U.N. ESCOR, Comm'n Hum. Rts, 48th Sess., para 35, U.N. Doc. E/CN.4/1992/SR.21 (1992), reprinted in Deborah Anker, Law of Asylum in the United States, 3rd Ed., 490 (Refugee Law Center, Inc., 1999) [hereinafter Summary Record].    

[2] Deborah Anker, Law of Asylum in the United States, 3rd Ed., 465 (Refugee Law Center, Inc., 1999).

[3] Suzanne M. Bernard, An Eye for An Eye: The Current Status of International Law on the Humane Treatment of Prisoners, 25 Rutgers L.J. 759, 789 (1994) (providing an overview of customary international law as defined by the International Court of Justice in Article 38(1)(b) as "evidence of a general practice accepted as law," thus combining two elements necessary to establish an international customary norm: conscious state practice combined with a sense of legal obligation, or opinion juris.)

[4] See, Nigel S. Rodley, The Treatment of Prisoners Under International Law 65-67 (2nd ed. 1999).

[5] One of the allegations made by the United States against Iraq, for example, was that Saddam Hussein's regime tortured political opponents. U.S. Department of State, Country Reports on Human Rights Practices, Feb. 2001., at http://www.state.gov/g/drl/rls/hrrpt/2000/648.htm (last visited Mar. 18, 2004).

[6] Summary Record, supra note 1.      

[7] Anker, supra note 2, at 490-491. 

[8] Evelyn Mary Aswad, Torture by Means of Rape, 84 Geo. L.J. 1913, 1922 (1996).

[9] Kristen B. Rosati, The United Nations Convention Against Torture: A Self-Executing Treaty that Prevents the Removal of Persons Ineligible for Asylum and Withholding of Removal, 26 Denv. J. Int'l L. & Pol'y 533, 536 (1998).

[10] The Convention Against Torture's supremacy over state law derives from its status as a form of federal common law based on Article VI of the Constitution. See Kathleen M. Keller, A Comparative and International Law Perspective on the United States (Non)Compliance with its Duty of Non-Refoulement, 1 Yale Hum. Rts. Dev. L.J. 2, 51 (1999).

[11] The Convention defines torture as "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating him or a third person, or for any other reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, 93rd mtg., U.N. Doc. A/Res/39/46 (1984).

[12] Robert W. Dumond & Doris A. Dumond, The Treatment of Sexual Assault Victims, in Prison Sex: Practice & Policy 82 (Christopher Hensley ed., Lynne Rienner Publishers, Inc., 2002).

[13] Anker, supra note 2, at 499. Most scholars agree that the "illicit purpose" component of the torture definition should be de-emphasized since the infliction of severe suffering on another individual is never legitimate under any circumstances, regardless of the purpose for which the suffering is inflicted

[14] See, e.g., Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, December 1996, at http://hrw.org/reports/1996/Us1.htm (last visited November 12, 2003).

[15] One of the most infamous examples of this phenomenon occurred in 1993, when Corcoran State Prison inmate Eddie Dillard was put in a cell with convicted murderer and known prisoner rapist Wayne Robertson, a man 100 pounds heaver than Dillard. Dillard was raped repeatedly over the next two days and was not given medical treatment after he reported the attack. Brian Skoloff, Alleged Calif. Prison Rape Incident Brings Guards Back to Court, Associated Press, Sept. 23, 2003, at http://www.spr.org/en/news/2003/0923-1.html (last visited Oct. 20, 2003).

[16] The United States has interpreted the "acquiescence" requirement to mean that a public official must, "prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to protect such activity." Anker, supra note 2, at 500.

[17] International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, S. Treaty Doc. No. 95-2, 95th Cong., 2D Sess. (1977), art. 7, 999 U.N.T.S. 171.