Copyright (c) 2003 North Carolina Law Review
North Carolina Law Review
ARTICLE: A CLEAN HEART AND AN EMPTY HEAD:* THE SUPREME COURT AND SEXUAL TERRORISM IN PRISON
81 N.C.L. Rev. 433
James E. Robertson**
A commentator recently characterized male rape as the "most closely guarded secret activity of America's prisons.
" 2 This proposition belies many facts of prison life: sexual assault victims have brought numerous civil rights actions since the demise of the hands-off doctrine; 3 commentators have produced a large body of scholarly work on the subject; 4 the media has sporadically "exposed" the secret; 5 and Human Rights Watch has advanced a host of measures for safeguarding inmates from rape. 6
In truth, prison rape is the most tolerated act of terrorism in the United States. As one inmate stated, "Sexual assaults ... have become unspoken, de facto parts of court-imposed punishments." 7 Moreover, perpetrators of prison rape rarely face criminal prosecution 8 or severe intra-prison disciplinary sanctions. 9
While judicial intervention brought many improvements in prison conditions and practices, 10 prison rape - the most widely and deeply feared aspect of imprisonment 11 - has been left to fester. 12 In the meantime, the exploding prison population 13 has diminished monitoring of inmates and created what Human Rights Watch describes as "a stronger incentive to pacify - rather than challenge - the more dangerous prisoners who may be exploiting others." 14 For a male behind bars, 15 the bottom-line reads: "Prison authorities cannot protect his body's privacy." 16
The real secret about prison rape concerns its resistance to the deterrent effects of civil rights litigation brought under 42 U.S.C. 1983. 17 This Article contends that ...
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