SPR files Brief in Farmer v. Brennan

January 11, 1994

As the United States Supreme Court hears oral arguments in Farmer v. Brennan tomorrow, it will also consider written arguments submitted in a "friend of the court" brief by Stop Prisoner Rape, a national organization, that the rape of male prisoners is widespread, repetitive, deadly, devastating, predictable, and preventable. Prisoner sexual assault, the Court was told, is seldom reported because it is "ingrained in the culture of confinement, both among prisoners and prison officials."

In concluding a 43-page argument summarizing the current state of knowledge on prisoner rape, Stop Prisoner Rape, which is headquartered in Ft. Bragg, California, urged the high court to use the Farmer case to "encourage officials to take positive steps to deal with the problem systematically" and to allow maximum possible access to the courts for prisoners raped behind bars.

The brief, submitted to the Court by Annapolis attorney Frank M. Dunbaugh, outlines seven areas where the organization, which is led by survivors of rape in confinement, believes that new administrative policies or practices would "contribute to ending or minimizing rape and its damage to the prisoner-victim." Among these are realistic orientation programs to inform new prisoners of avoidance tactics, institution-wide staff training on rape issues, classification of all prisoners by rape risk factors "and appropriate placement, both within an institution and among a jurisdiction's facilities," and trained counseling for prisoner rape survivors.

The brief also lists eleven areas where the organization believes that administrative policy or practice tends to "increase the rate of sexual victimization and damage to the prisoner-victim." These include "protective custody" facilities "which penalize their residents, fail to protect them, and are commonly indistinguishable de facto from punitive disciplinary quarters." Also condemned is "staff stigmatization of rape victims and...overt discrimination against rape survivors."

"If confinement administrators are to make a serious effort to bring to the prison, jail and reform school setting some measure of America's modern sensibilities to sexual abuse," the Supreme Court was told, "a systematic effort involving all aspects of institutional life will be required."

The context of the Stop Prisoner Rape brief is a case filed by a federal prisoner which seeks to determine under what circumstances prison officials are liable for preventing prisoner rapes because they constitute "cruel and unusual punishment" under the Eighth Amendment to the U.S. Constitution. The prisoner is represented by the National Prison Project of the American Civil Liberties Union, while the Justice Department represents the prison officials.

"The widespread failure to protect non-violent prisoners" from sexual assault is a "national disgrace" which has changed little since first documented in 1826, said Stephen Donaldson, New York-based president of the organization, in a separate statement. He said the Supreme Court, in accepting the civil case for review, had gained an opportunity to declare "the practice of tolerating widespread rape" behind bars "repugnant to American concepts of justice." Donaldson said: "The Court here has a splendid opportunity to signal wardens and sheriffs around the country that they can no longer turn a blind eye to the customary horrors inflicted on the youngest, most vulnerable, and least hardened of all those locked up."

Almost all the perpetrators and most of the victims of prisoner rape are heterosexual outside confinement, Donaldson said, though the relatively few known homosexuals in jail are more likely to be attacked. The rapists consider their victims to be substitutes for women, he reported, so he considers the term "homosexual rape" to be highly misleading.

Donaldson said he himself had been repeatedly gang-raped in 1973 in the Washington (DC) jail following an arrest at a Quaker prayer demonstration at the White House, and that he had subsequently been acquitted of the charge by a jury. The case gained wide news coverage after Donaldson was bailed out and held a press conference at Quaker House, becoming, he says, the first victim of jail rape to discuss it in public. "After twenty years of speaking out on such outrages," he said, "it looks like rape victims behind bars have finally gained our day in court." The organization he heads was founded in 1979 by an African-American prisoner, Russell D. Smith, he said, and is the only organization in the country dealing with prisoner rape issues. Its executive director, Tom Cahill, is also a survivor of jail gang-rape.

A "friend of the court" (amicus curiae) brief is a way for organizations concerned with issues raised in a case to which they are not a party to call a court's attention to how possible decisions would affect people not directly involved in the litigation, and thus not otherwise represented. An amicus often marshals generally accepted background information on a subject for a court's consideration while avoiding the specific factual issues of the case before the court.

Stop Prisoner Rape's amicus brief begins by citing studies indicating that 14 per cent of prison and over 3 per cent of jail residents had been sexually assaulted. Both studies believed these figures were underestimates. Survivors, the brief continues, are marked out for continued rape as long as they remain locked up. Their only alternatives, according to the brief, are suicide, solitary confinement, or exchanging use of their bodies for protection from other rapists.

The brief, which cites 27 articles and 7 books in support of its depiction, notes that "the combination of rape and HIV can turn a sentence for a non-violent offense, an inability to make bail, and even a status offense for a juvenile into a potential death penalty decreed by no legislature and no judge."

The brief describes the devastating effects of rape trauma syndrome but notes that institutional mental health staff are generally not trained to deal with it. The organization hailed federal courts in Florida for enjoining the Glades Correctional Institution to adopt a staff-wide rape awareness training program, unanimously upheld last summer by the Eleventh Circuit Court of Appeals in LaMarca v. Turner.

Very few prisoner rapes (3.2 per cent of those uncovered in one major study) are reported to officials, Stop Prisoner Rape maintains, because it is dangerous to become known as an informer, very humiliating to admit a supposed "loss of manhood," victims are often mistakenly classified as homosexual, and formal reports are frequently discouraged by staff. "The usual attitude of wardens and sheriffs," the Court was told, "towards pervasive rape is to look away. That is why the state and federal systems are generally characterized by the absence of staff training, no orientation to the danger for incoming prisoners, no follow-up care for victims, and usually no standard procedures for investigation of sexual assaults." Sexual assault is even "commonly used as a management tool by administrators," according former prisoners quoted in the brief.

The organization cited a wide range of studies to support its thesis that characteristics such as youth, small size, and race are singled out for special attention by prisoner rapists and together with other factors make it possible to predict who is most likely to be targeted. Other vulnerable traits cited in the brief are relatively minor criminal charges, newness to incarceration, first offenses, lack of gang affiliation, middle-class background, lack of fighting experience. Knowledge of these factors should allow administrators to recognize their most vulnerable wards and give them particular protection, according to the brief.

"Prisoner rape is most akin to sexual abuse of children," Dunbaugh told the court, "in that we have always disapproved of it, but have only recently come to recognize the extent of it, and we as a nation are beginning to face these problems directly."

The brief also urges reduction of prisoner idleness and open dormitories, attacks disciplinary codes which penalize non-assaultive sex among prisoners and fighting in self-defense, decries administrative harassment of what it calls "protective pairing," and opposes discrimination against or involuntary segregation of homosexuals.

Included with the brief is a lengthy appendix containing excerpts from the Overview/Manual of the Prisoner Rape Education Project, published last August by Safer Society Press, covering rape trauma syndrome, administrative policy, "protective pairing," and bibliographical references. The project kit, which includes a 27-minute audio tape designed for prisoner orientation programs and a 90-minute tape with advice for victims, should be available in all confinement institutions, according to Donaldson, who suggested that prisoners press libraries, wardens, and mental health staff to acquire the kits, which SPR helped prepare, from Safer Society at PO Box 340, Brandon, Vermont 05733.