Engendering Rape

(59 UCLA L. Rev. 1630 (2012))

Kim S. Buchanan
USC Gould School of Law

Legal Studies Research Paper Series No. 12-20

September 4, 2012
 Engendering Rape
UCLA LAW REVIEW

Kim Shayo Buchanan

ABSTRACT

This Article highlights a systematic bias in the academic, correctional, and human rights
discourse that constitutes the basis for prison rape policy reform. This discourse focuses
almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by
fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey
and correctional data have indicated that the main perpetrators of prison sexual abuse seem
to be women. In men’s facilities, inmates report much more sexual victimization by female
staff than by male inmates; in women’s facilities, inmates report much higher rates of
sexual abuse by fellow inmates than by male or female staff. These findings contravene
conventional gender expectations, and are barely acknowledged in contemporary prison
rape discourse, leading to policy decisions that are too sanguine about the likelihood of
female-perpetrated sexual victimization. The selective blindness of prison rape discourse
to counter-stereotypical forms of abuse illuminates a pattern of reasoning I describe as
“stereotype reconciliation,” an unintentional interpretive trend by which surprising,
counter-stereotypical facts are reconciled with conventional gender expectations. The authors
of prison rape discourse tend to ignore these counter-stereotypical facts or to invoke alternative
stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that
tend to rationalize their neglect of counter-stereotypical forms of abuse and reconcile those
abuses with conventional expectations of masculine domination and feminine submission.

AUTHOR

Kim Shayo Buchanan is Associate Professor at USC Gould School of Law.

I am grateful to Scott Altman, Rebecca Brown, Alex Capron, Kimberlé Crenshaw,

Adrienne Davis, David Cruz, Mary Dudziak, Ron Garet, Ariela Gross, Melissa
Murray, Camille Gear Rich, Russell Robinson, Mike Shapiro, Marc Spindelman, Nomi
Stolzenberg, Nancy Staudt, Lara Stemple; the participants in the Duke Law School Culp
Colloquium; and the participants in a faculty workshop at the University of Southern
California, all of whom provided invaluable feedback that has helped to refine my ideas.
I am grateful for the able research assistance of Nick Shapiro and Josh McLeod, and
especially for the invaluable research support provided by law librarian Paul Moorman.

59 UCLA L. Rev. 1630 (2012)

TABLE OF CONTENTS

Introduction ..........................................................................................................1632
I. Counter-stereotypical Abuses: Empirics, Consent,
and Coercion .................................................................................................1645
A. Statistics and Definitions .........................................................................1645
B. Gender, Coercion, and Consent in Staff–Inmate Sex .............................1649
C. Gender Dynamics of Overt Sexual Coercion .........................................1655
II. Stereotype-Conforming Abuse: Male Staff Abusing
Female Inmates .............................................................................................1658
III. Counter-stereotypical Abuse: Women as Perpetrators .....................1667
A. Sexual Abuse by Inmates in Women’s Prisons ........................................1669
B. Sexual Abuse of Male Inmates by Women Staff .....................................1672
IV. Race as Stereotype Reconciliation: Sexual Abuse Among Men .........1681
Conclusion ..............................................................................................................1684

1631
1632 59 UCLA L. REV. 1630 (2012)

INTRODUCTION

Sociolegal scholarship, human rights advocacy, and correctional literature

form the backdrop for professional understandings of sexual abuse in detention
and offer frameworks for policy reform. In support of its goal of developing national
standards to prevent prison rape, the Prison Rape Elimination Act of 2003
(PREA)1 funded extensive research, mandated a series of nationwide surveys of
prisoners and ex-prisoners, and established consultations with correctional
officials, advocates, former prisoners, lawmakers, and other stakeholders. Lawyers,
policymakers, and correctional administrators thus depend on an interdiscipli-
nary body of knowledge to understand the dynamics of the sexual abuse they
seek to suppress. But this body of knowledge, which I describe collectively as
“prison rape discourse,”2 is systematically biased: It tends to highlight forms of
abuse that conform to conventional gender expectations, and to ignore or rationalize
more common forms of abuse that defy conventional understandings of gender.
If prison rape–prevention policy is to be effective, policymakers, scholars, advo-
cates, and correctional administrators must confront unexpected forms of sexual
abuse as well as those that are readily predictable in accordance with conven-
tional gender expectations.

1. 42 U.S.C. §§ 15601–15609 (2006). The PREA mandated, inter alia, that the U.S. Attorney
General adopt new regulations for the prevention of prison rape, based on a number of PREA-
funded surveys and analyses discussed in this Article. The PREA-created National Prison Rape
Elimination Commission (NPREC) issued a report and recommendations in 2009. NAT’L
PRISON RAPE ELIMINATION COMM’N, REPORT (2009) [hereinafter NPREC REPORT],
available at [Link] These reports and further consultations ultimately
resulted in the final regulations, which were released as this Article was in press: National Standards
to Prevent, Detect, and Respond to Prison Rape; Final Rule, 77 Fed. Reg. 37,106 (June 20, 2012)
(to be codified at 28 C.F.R. pt. 115), available at [Link]
[Link].
2. A note about terminology: In this Article, as in prison rape discourse more generally, “prison rape” is
a shorthand for sexual abuse more generally, whether or not it involves force or penetration. “Prison
rape” does not refer exclusively to forcible rape. The PREA aims to “standardize the definitions
used for collecting data on prison rape,” and authorizes the Bureau of Justice Statistics of the
Department of Justice (BJS) to define prison rape for the purpose of statistical review and analysis.
42 U.S.C. §§ 15602(5), 15603(a)(2)(A). In the sexual victimization surveys conducted as part of
its PREA-mandated National Prison Rape Statistics Program, the BJS defines “sexual victimization”
to include all “nonconsensual” or “unwanted” sexual touching or sexual acts by inmates or staff. The
BJS also counts all sex (or sexual touching) between inmates and staff as “victimization” because, it
points out, “all sexual contacts between inmates and staff are legally nonconsensual.” ALLEN J. BECK &
PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, NCJ 231169, SEXUAL VICTIMIZATION
IN PRISONS AND JAILS REPORTED BY INMATES, 2008–09, at 7 (2010) [hereinafter BECK &
HARRISON, PRISONS AND JAILS]. For more detail about definitions, see infra Part I.
Engendering Rape 1633

Beyond its implications for penal policy reform, greater attention to these
counter-stereotypical forms of abuse could contribute to scholarly understandings
of gender and sexual abuse more generally by revealing gender dynamics that have,
until now, been poorly understood. The PREA-mandated sexual victimization
surveys consistently indicate that, in jails and prisons, women staff and inmates
perpetrate sexual abuse at significantly higher rates than their male counterparts.3
These abuses, however, are barely acknowledged in prison rape discourse. The
disproportionate focus of this discourse on male-perpetrated sexual abuse misses an
opportunity to unsettle conventional gender expectations, leaving the more surprising
forms of sexual abuse unexamined, and largely unknown.
Prison rape discourse focuses almost exclusively on sexual abuse perpetrated
by men. A review of this discourse would suggest that, in men’s prisons, the threat
of rape comes mainly from other inmates,4 and that prison rape disproportionately

3. For a detailed discussion of the survey findings, see infra Part I.

4. See, e.g., Teresa A. Miller, Sex Surveillance: Gender, Privacy & the Sexualization of Power in Prison,
10 GEO. MASON U. C.R. L.J. 291, 296, 300–07 (2000) (portraying prisoners as establishing a
hierarchy by raping each other, portraying staff as facilitating such rapes to maintain control, and
finding that the greatest danger of sexual violence posed to most incarcerated men is from fellow
prisoners, not staff); Alice Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139, 148–56
(2006); James E. Robertson, The Prison Rape Elimination Act of 2003: A Primer, 40 CRIM. L. BULL.
270, 272 (2004) (“Some PREA proponents fault prison administrators [for prison rape]. . . . [B]laming
correctional employees tells only half the story. After all, the perpetrators are inmates.”); James E.
Robertson, A Punk’s Song About Prison Reform, 24 PACE L. REV. 527 (2004) (addressing prison rape
as a crime committed by other inmates); James E. Robertson, Cruel and Unusual Punishment in
United States Prisons: Sexual Harassment Among Male Inmates, 36 AM. CRIM. L. REV. 1 (1999);
James E. Robertson, Rape Among Incarcerated Men: Sex, Coercion and STDs, 17 AIDS PATIENT
CARE & STDS 423 (2003); James E. Robertson, “Fight or F . . .” and Constitutional Liberty: An
Inmate’s Right to Self-Defense When Targeted by Aggressors, 29 IND. L. REV. 339, 343 (1995); see also
U.N. Comm. Against Torture, Conclusions and Recommendations of the Committee Against
Torture: United States of America, ¶ 32, U.N. Doc. CAT/C/USA/CO/2 (July 25, 2006); ACLU
NAT’L PRISON PROJECT & ACLU OF S. CAL., CRUEL AND UNUSUAL PUNISHMENT:
HOW A SAVAGE GANG OF DEPUTIES CONTROLS LA COUNTY JAILS (2011), available at
[Link] MARK S. FLEISHER & JESSIE L.
KRIENERT, THE CULTURE OF PRISON SEXUAL VIOLENCE 11 (2006) (finding that 9.1 percent
of male and female inmates said they were aware of an inmate being raped by a staff member yet
analyzing only sexual abuse by inmates); HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN
U.S. PRISONS (2001) [hereinafter HUMAN RIGHTS WATCH, NO ESCAPE]; VALERIE JENNESS
ET AL., VIOLENCE IN CALIFORNIA CORRECTIONAL FACILITIES: AN EMPIRICAL EXAMINATION
OF SEXUAL ASSAULT (2007) (surveying only inmate-on-inmate sexual assault); NPREC REPORT,
supra note 1; JUST DETENTION INT’L, STILL IN DANGER: THE ONGOING THREAT OF SEXUAL
VIOLENCE AGAINST TRANSGENDER PRISONERS (2005), available at [Link]
pdf/[Link] (citing only examples of sexual violence perpetrated by inmates, and none by
staff); STOP PRISONER RAPE, TEXAS UPDATE (2008), available at [Link]
pdf/[Link] (acknowledging that staff also commit sexual abuse, but citing almost
exclusively examples of inmate-perpetrated sexual abuse); Shana Abraham, Male Rape in U.S. Prisons:
Cruel and Unusual Punishment, HUM. RTS. BRIEF, Fall 2001, at 5; Cheryl Bell et al., Rape and
1634 59 UCLA L. REV. 1630 (2012)

Sexual Misconduct in the Prison System: Analyzing America’s Most “Open” Secret, 18 YALE L. & POL’Y
REV. 195 (1999); Kevin R. Corlew, Congress Attempts to Shine Light on a Dark Problem: An In-Depth
Look at the Prison Rape Elimination Act of 2003, 33 AM. J. CRIM. L. 157 (2005); Robert W. Dumond,
Inmate Sexual Assault: The Plague That Persists, 80 PRISON J. 407, 410–11 (2000); Christopher Hensley
& Richard Tewksbury, Wardens’ Perceptions of Prison Sex, 85 PRISON J. 186 (2005) (surveying
prison wardens about their knowledge and perceptions of consensual and coercive sex among inmates,
but not of sex between inmates and staff); Olga Giller, Note, Patriarchy on Lockdown: Deliberate
Indifference and Male Prison Rape, 10 CARDOZO WOMEN’S L.J. 659, 675 (2004).
In a section on “prison rape,” Bennett Capers characterizes perpetrators exclusively as inmates, and staff
as complicit in prison rape, not direct perpetrators. Bennett Capers, Real Rape Too, 99 CALIF. L. REV.
1259, 1266–72 (2011). He explains: “In many circumstances, the perpetrator is not only a fellow
prisoner but also the victim’s administratively chosen cellmate. . . . Corrections officers may even
be complicit in facilitating rapes in order to punish certain prisoners and reward others.” Id. at 1269
(footnotes omitted). He concludes the section by acknowledging that “guards and other prison staff, not
just fellow prisoners, can be perpetrators,” though he does not discuss any such examples. Id. at 1272
(quoting ALAN MCEVOY ET AL., IF HE IS RAPED 59 (2003)) (internal quotation marks omitted);
see also MELISSA ROTHSTEIN & LOVISA STANNOW, IMPROVING PRISON OVERSIGHT TO
ADDRESS SEXUAL VIOLENCE IN DETENTION 4 (2009); Lara Stemple, Male Rape and Human
Rights, 60 HASTINGS L.J. 605, 608–14 (2009) (all examples of “prisoner rape” involve inmate-on-
inmate rape, but documenting widespread occurrence of guard-on-inmate rape in the context of armed
conflict). This perception continued even after 2007, when the first nationwide and statewide victimi-
zation surveys were released, showing that prisoners said they were more often victimized by staff
than by inmates. See, e.g., Kim Shayo Buchanan, Our Prisons, Ourselves: Race, Gender and the Rule
of Law, 29 YALE L. & POL’Y REV. 1, 13, 14 n.56 (2010) [hereinafter Buchanan, Our Prisons,
Ourselves] (noting that sexual abuse by staff is more common than sexual abuse by inmates, but
analyzing only sexual abuse by inmates); Kim Shayo Buchanan, E-race-ing Gender: The Racial
Construction of Prison Rape, in MASCULINITIES AND THE LAW: A MULTIDIMENSIONAL
APPROACH (Frank R. Cooper & Ann C. McGinley eds., forthcoming 2012) [hereinafter Buchanan,
E-race-ing Gender] (challenging the racialization of gendered sexual abuse among inmates in men’s
prisons); Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1,
11–19 (2011) (discussing “prison rape” exclusively with reference to sexual abuse by inmates, not staff);
Tess M.S. Neal & Carl B. Clements, Prison Rape and Psychological Sequelae: A Call for Research, 16
PSYCHOL. PUB. POL’Y & L. 284, 287, 292–93 (2010) (attributing men’s prison rape to a “prison
rape subculture” of compensatory masculinity particular to inmates and administrative toleration
of this inmate subculture. In spite of its acknowledgment that staff also commit sexual abuse,
none of its reform proposals addresses staff perpetration); Katherine Robb, What We Don’t Know
Might Hurt Us: Subjective Knowledge and the Eighth Amendment’s Deliberate Indifference Standard
for Sexual Abuse in Prisons, 65 N.Y.U. ANN. SURV. AM. L. 705 (2010); James E. Robertson, The
“Turning-Out” of Boys in a Man’s Prison: Why and How We Need to Amend the Prison Rape
Elimination Act, 44 IND. L. REV. 819 (2011) (acknowledging survey findings that staff sexual abuse
is more common, but continuing to focus exclusively on inmate-perpetrated sexual abuse); Russell K.
Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 CALIF. L. REV. 1309,
1350–57, 1388–89, 1404 (2011) (describing institutional complicity in sustaining an inmate
culture of masculinity that targets effeminate men for sexual abuse by other inmates); SpearIt,
Gender Violence in Prison and Hyper-masculinities in the ’Hood: Cycles of Destructive Masculinity, 37
WASH. U. J.L. & POL’Y 89 (2011) (analyzing only inmate rape while recognizing incidents of sexual
abuse by staff); Jeannie Suk, Redistributing Rape, 48 AM. CRIM. L. REV. 111 (2011) (reviewing
Dolovich, supra) (analyzing prison rape as though it occurred exclusively among inmates); 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 (2011).
Engendering Rape 1635

involves tough black men raping weaker whites.5 By contrast, a review of prison rape
discourse would suggest that, in women’s prisons, the main threat of sexual abuse
comes from male guards, and is not racialized.6 These dynamics seem plausible, in
light of common-sense intuitions or popular culture.7

But see Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender
People in Detention, 18 TEMP. POL. & CIV. RTS. L. REV. 515, 518 (2009) (arguing that staff,
rather than inmates, pose the greater threat of sexual abuse of transgender, intersex and gender-
nonconforming inmates); Julia Oparah, Feminism and the (Trans)Gender Entrapment of Gender
Nonconforming Prisoners, 18 UCLA WOMEN’S L.J. 239, 263–64 (2009) (noting that sexual
violence against transgender and gender-nonconforming inmates is “not limited to sexual assault by
other prisoners,” as it “occurs within an environment of objectification and dehumanization generated
by the institutionalized sexual violence of the prison regime itself”); Robinson, supra, at 1388–89,
1404 (acknowledging instances of staff sexual abuse and suggesting that institutional focus on inmate-
perpetrated sexual abuse may distract from the greater problem of sexual abuse by staff).
5. See Buchanan, Our Prisons, Ourselves, supra note 4, at 53 (challenging the racial account of prison
rape); Buchanan, E-race-ing Gender, supra note 4 (same). For recent examples, see JANET I. WARREN
ET AL., RISK MARKERS FOR SEXUAL PREDATION AND VICTIMIZATION IN PRISON 128 (2010)
[hereinafter WARREN REPORT] (“Prior research has indicated that white inmates, who are diminu-
tive in size, and who are physically attractive are at greater risk for being sexually assaulted while
imprisoned.” (citations omitted)); Neal & Clements, supra note 4, at 285–86 (claiming that in men’s
prisons, black inmates are overrepresented as perpetrators and white inmates as victims, and that this
“racial tension” associated with rape in men’s prisons may not extend to female facilities); Ristroph,
supra note 4, at 157–58 (asserting that “aggressors are disproportionately African-American; the
targets of sexual aggression are disproportionately white”); SpearIt, supra note 4, at 114–15 (claiming
that “the issue of ‘blacks exclusively raping whites’ is a documented occurrence that dates back to the
1960s” (citation omitted)).
6. The Office of Inspector General, for example, has noted that “[o]ne misconception about staff sexual
abuse of inmates is that it only involves male staff engaging in sexual relations with female inmates.”
OFFICE OF THE INSPECTOR GEN., DETERRING STAFF SEXUAL ABUSE OF FEDERAL
INMATES 6 (2005); see, e.g., Kim Shayo Buchanan, Impunity: Sexual Abuse in Women’s Prisons, 42
HARV. C.R.-C.L. L. REV. 45, 69–86 (2007) [hereinafter Buchanan, Impunity] (describing insti-
tutional responsibility for sexual abuse of women inmates by male staff); Deborah M. Golden, It’s
Not All in My Head: The Harm of Rape and the Prison Litigation Reform Act, 11 CARDOZO
WOMEN’S L.J. 37, 41 (2004) (asserting that “[w]omen are more likely than men to be raped by prison
guards or other correctional system employees,” and that “[m]en are more likely to be raped by fellow
prisoners”); Kristine Mullendore & Laurie Beever, Sexually Abused Women in State and Local
Correctional Institutions, 1980–2000, in WOMEN AND GIRLS IN THE CRIMINAL JUSTICE
SYSTEM: POLICY ISSUES AND PRACTICE STRATEGIES 5-2 (Russ Immarigeon ed., 2006) (noting
that the coercive nature of incarceration “all too often[] results in the sexual abuse of female inmates
by their male guards,” but not acknowledging the possibility of sexual threat from other inmates or
from female staff); see also Special Rapporteur on Violence Against Women, Its Causes and Conse-
quences, Report of the Special Rapporteur on Violence Against Women, Its Causes and
Consequences on Her Visit to the United States of America, U.N. Doc. A/HRC/17/26/Add.5, at
10–11 (June 1, 2011) (by Rashida Manjoo); U.N. Comm. Against Torture, Conclusions and
Recommendations of the Committee Against Torture: United States of America, supra note 4; U.N.
Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the
Covenant: Concluding Observations of the Human Rights Committee, U.N. Doc. CCPR/C/
USA/CO/3/Rev.1 (Dec. 18, 2006); U.N. Comm’n on Human Rights, Integration of the Human
Rights of Women and the Gender Perspective: Violence Against Women, U.N. Doc. E/CN.4/
1636 59 UCLA L. REV. 1630 (2012)

1999/68/Add.2 (Jan. 4, 1999); AMNESTY INT’L, ABUSE OF WOMEN IN CUSTODY: SEXUAL

MISCONDUCT AND SHACKLING OF PREGNANT WOMEN (2001); AMNESTY INT’L, “NOT PART
OF MY SENTENCE”: VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY (1999)
[hereinafter AMNESTY INT’L, NOT PART OF MY SENTENCE]; LORI B. GIRSHICK, NO SAFE
HAVEN: STORIES OF WOMEN IN PRISON (1999); HUMAN RIGHTS WATCH, ALL TOO
FAMILIAR: SEXUAL ABUSE OF WOMEN IN U.S. STATE PRISONS (1996) [hereinafter HUMAN
RIGHTS WATCH, ALL TOO FAMILIAR] (detailing specific acts of abuse in prison); HUMAN RIGHTS
WATCH, NOWHERE TO HIDE: RETALIATION AGAINST WOMEN IN MICHIGAN STATE
PRISONS (1998) [hereinafter HUMAN RIGHTS WATCH, NOWHERE TO HIDE ]; JUST
DETENTION INT’L, THE SEXUAL ABUSE OF FEMALE INMATES IN OHIO (2005), available at
[Link] (all but one example of sexual abuse of female
inmates involved male staff perpetrators); CRISTINA RATHBONE, A WORLD APART: WOMEN,
PRISON, AND LIFE BEHIND BARS 42–65 (2005); STOP PRISONER RAPE, STORIES FROM
INSIDE: PRISONER RAPE AND THE WAR ON DRUGS 9 (2007) [hereinafter STOP PRISONER
RAPE, STORIES FROM INSIDE], available at [Link]
[Link]; SILJA J.A. TALVI, WOMEN BEHIND BARS: THE CRISIS OF WOMEN IN THE
U.S. PRISON SYSTEM (2007); Agnes L. Baro, Spheres of Consent: An Analysis of the Sexual Abuse and
Sexual Exploitation of Women Incarcerated in the State of Hawaii, 8 WOMEN & CRIM. JUST. 61
(1997); Avery J. Calhoun & Heather D. Coleman, Female Inmates’ Perspectives on Sexual Abuse by
Correctional Personnel: An Exploratory Study, 13 WOMEN & CRIM. JUST. 101 (2002); Martin A. Geer,
Protection of Female Prisoners: Dissolving Standards of Decency, 2 MARGINS 175 (2002); Lori B.
Girshick, Abused Women and Incarceration, in WOMEN IN PRISON: GENDER AND SOCIAL
CONTROL 95 (Barbara H. Zaitzow & Jim Thomas eds., 2003); Hope H. & Brenda L., “This Is
Happening in Our Country”: Two Testimonials of Survivors of Prison Rape, 42 HARV. C.R.-C.L. L.
REV. 89 (2007); Deborah Labelle, Bringing Human Rights Home to the World of Detention, 40
COLUM. HUM. RTS. L. REV. 79 (2008); Miller, supra note 4, at 296; Teresa A. Miller, Keeping the
Government’s Hands Off Our Bodies: Mapping a Feminist Legal Theory Approach to Privacy in Cross-
Gender Prison Searches, 4 BUFF. CRIM. L. REV. 861 (2001); Jennifer R. Weiser, The Fourth
Amendment Right of Female Inmates to Be Free From Cross-Gender Pat-Frisks, 33 SETON HALL L.
REV. 31, 32–33 (2002); Ashlie E. Case, Case Comment, Conflicting Feminisms and the Rights of
Women Prisoners, 17 YALE J.L. & FEMINISM 309 (2005); Cindy Chen, Note, The Prison
Litigation Reform Act of 1995: Doing Away With More Than Just Crunchy Peanut Butter, 78 ST.
JOHN’S L. REV. 203 (2004); Ashley E. Day, Comment, Cruel and Unusual Punishment of Female
Inmates: The Need for Redress Under 42 U.S.C. § 1983, 38 SANTA CLARA L. REV. 555, (1998);
Anthea Dinos, Note, Custodial Sexual Abuse: Enforcing Long-Awaited Policies Designed to Protect
Female Prisoners, 45 N.Y.L. SCH. L. REV. 281 (2001/2002) (discussing the inadequacy of remedies
available for custodial sexual abuse); Flyn L. Flesher, Note, Cross-Gender Supervision in Prisons and
the Constitutional Right of Prisoners to Remain Free From Rape, 13 WM. & MARY J. WOMEN & L.
841 (2007); Amy Laderberg, Note, The “Dirty Little Secret”: Why Class Actions Have Emerged as the
Only Viable Option for Women Inmates Attempting to Satisfy the Subjective Prong of the Eighth
Amendment in Suits for Custodial Sexual Abuse, 40 WM. & MARY L. REV. 323, 338 (1998); Katherine
C. Parker, Note, Female Inmates Living in Fear: Sexual Abuse by Correctional Officers in the District of
Columbia, 10 AM. U. J. GENDER SOC. POL’Y & L. 443, 473 (2002) (noting that female correctional
officers may also sexually abuse female inmates); Sarah K. Wake, Note, Not Part of the Penalty: The
Prison Rape Elimination Act of 2003, 32 J. LEGIS. 220 (2006).
As with discourse about sexual abuse in men’s prisons, the disproportionate focus on male-
perpetrated rape has persisted after the 2007 release of data indicating higher rates of perpetration
by women. NPREC noted in 2009 that “[c]ase law, policy, and common perceptions of sexual abuse in
correctional facilities have focused on male officers abusing their authority with female prisoners,”
but argues that “the risks are present whether the officers are female or male. . . . Some of the women
Engendering Rape 1637

who have joined corrections, like some of the men, are willing to cross the line to use their authority
in sexually abusive ways.” NPREC REPORT, supra note 1, at 62–63 (footnotes omitted). Nonetheless,
nearly all the cases of staff-on-inmate sexual abuse discussed in NPREC’s 213-page report involved
male staff abusing women inmates. See, e.g., id. at 36–37, 46, 51, 54–55, 62–64, 71, 92, 119, 125–27,
130, 161, 166–68, 175, 179. But see id. at 64 (discussing a case of inappropriate video surveillance of
newly arrived male prisoners by both male and female staff); id. at 125–26 (gender of staff perpetrator
not identified). For other examples, see JUST DETENTION INT’L, SUBMISSION TO MS. RASHIDA
MANJOO, U.N. SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN: VIOLENCE
AGAINST WOMEN IN CUSTODY IN THE UNITED STATES—A NATIONWIDE HUMAN RIGHTS
CRISIS (2011), [hereinafter JUST DETENTION INT’L, SUBMISSION TO SPECIAL RAPPORTEUR]
available at [Link] (acknowledg-
ing that incarcerated women and girls “frequently are abused by other inmates,” but addressing
only sexual abuse perpetrated by male staff); BARBARA OWEN ET AL., GENDERED VIOLENCE
AND SAFETY: A CONTEXTUAL APPROACH TO IMPROVING SECURITY IN WOMEN’S FACILITIES,
PART I OF III: GENDERED VIOLENCE AND SAFETY: IMPROVING SECURITY IN WOMEN’S
FACILITIES (2008) [hereinafter OWEN REPORT PART I]; Kelly Ann Cheeseman & Robert M.
Worley, A “Captive” Audience: Legal Responses and Remedies to the Sexual Abuse of Female Inmates,
43 CRIM. L. BULL. 439, 441 (2010); Beth Ribet, Naming Prison Rape as Disablement: A Critical
Analysis of the Prison Litigation Reform Act, the Americans With Disabilities Act, and the Imperatives of
Survivor Oriented Advocacy, 17 VA. J. SOC. POL’Y & L. 281 (2010); Tanyika Brime, Note, We Can
Do Better: The State of Custodial Misconduct by Correctional Staff in New York, 15 CARDOZO J.L. &
GENDER 303 (2009).
Only one law journal article, a student note, has analyzed women’s perpetration of sexual abuse in
men’s prisons. Lauren A. Teichner, Note, Unusual Suspects: Recognizing and Responding to Female Staff
Perpetrators of Sexual Misconduct in U.S. Prisons, 14 MICH. J. GENDER & L. 259, 276–89 (2008)
(based on a 2006 report on correctional disposition of “substantiated” sexual abuse (see infra note 161),
the author challenges judicial recognition of greater privacy rights against cross-gender search and
surveillance for female than for male inmates, which she contends is based on an erroneous assumption
that men pose a sexual threat to women, but not the reverse). A more recent student note cites the
high rates of woman-perpetrated sexual misconduct in men’s prisons in support of an argument against
cross-gender supervision. See Robyn Gallagher, Note, Constitutional Law—Cross-Gender Pat Searches:
The Battle Between Inmates and Correctional Officers Enters the Courtroom, 33 W. NEW ENG. L. REV.
567, 599–601 (2011).
In the same vein, academic discussion of juveniles’ susceptibility to sexual victimization in detention
tends to assume that staff perpetrators are male. See, e.g., U.S. GOV’T ACCOUNTING OFFICE,
GAO/GGD-99-104, REPORT TO THE HONORABLE ELEANOR HOLMES NORTON, HOUSE
OF REPRESENTATIVES, WOMEN IN PRISON: SEXUAL MISCONDUCT BY CORRECTIONAL STAFF
(1999); Anthony C. Thompson, Clemency for Our Children, 32 CARDOZO L. REV. 2641, 2665 (2011)
(“Girls are all too often subjected to sexual abuse and rape while in prison. Male corrections staff at
women’s prisons may use coercive methods to initiate sexual relationships with inmates, or may abuse
their position to obtain sexual favors.”).
While several scholars have noted that the disproportionate incarceration of women of color places
them at heightened risk of incarceration and thus of custodial sexual abuse, they do not suggest that
sexual abuse by male staff is racially targeted. See, e.g., VERNETTA D. YOUNG & REBECCA REVIERE,
WOMEN BEHIND BARS: GENDER AND RACE IN US PRISONS (2006); Buchanan, Impunity,
supra; Angela Y. Davis, Essay, Public Imprisonment and Private Violence: Reflections on the Hidden
Punishment of Women, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 339 (1998); Miller, supra,
at 873–74; Brenda V. Smith, Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225 (2003).
7. Inmate rape in men’s prisons is often the subject of pop culture drama and callous jokes. See, e.g.,
Buchanan, Our Prisons, Ourselves, supra note 4, at 12; Ristroph, supra note 4, at 148 (“That some prisoners
1638 59 UCLA L. REV. 1630 (2012)

Yet the results of several recent nationwide, methodologically rigorous victimi-

zation surveys,8 which, I have observed previously, offer “the best available evidence
of current patterns of sexual victimization in prison,”9 suggest that other, coun-
terintuitive forms of sexual abuse may actually be more common. In men’s facil-
ities, women generally constitute a minority of correctional staff,10 yet survey
respondents consistently report much higher rates of sexual victimization by women

force sexual contact with others has become accepted wisdom in popular culture, though the public
reaction to this fact seems to be moving from mirth to outrage.” (footnote omitted)); see also FLEISHER
& KRIENERT, supra note 4, at 128–29.
Meanwhile, staff sexual abuse in women’s prisons is often treated as expected, if not inev-
itable. See, e.g., RATHBONE, supra note 6, at 45 (suggesting that male staff may present an
“inevitable” risk of sexual abuse in women’s prisons); Mullendore & Beever, supra note 6, at 5-1,
5-2 (describing sexual assault as a “generally perceived and expected risk” of incarceration in
institutions for women).
8. The first National Inmate Survey (NIS), in 2007, surveyed 23,398 respondents in state and federal
prisons and 40,419 in local jails. ALLEN J. BECK & PAIGE M. HARRISON, BUREAU OF JUSTICE
STATISTICS, NCJ 221946, SEXUAL VICTIMIZATION IN LOCAL JAILS REPORTED BY INMATES,
2007, at 1 (2008) [hereinafter BECK & HARRISON, LOCAL JAILS]. The second NIS, in 2008–2009,
surveyed 81,566 respondents in jails, prisons, immigration, military, and Indian detention facilities. BECK
& HARRISON, PRISONS AND JAILS, supra note 2, at 6. In 2008–2009, the BJS also conducted a
nationwide victimization survey of 26,551 incarcerated youth. ALLEN J. BECK ET AL., BUREAU OF
JUSTICE STATISTICS, NCJ 228416, SEXUAL VICTIMIZATION IN JUVENILE FACILITIES
REPORTED BY YOUTH, 2008–09, at 2 (2010) [hereinafter BECK ET AL., JUVENILE FACILITIES].
The BJS also recently published the results of a 2008 survey of 18,526 recently paroled former state
prisoners. ALLEN J. BECK & CANDACE JOHNSON, BUREAU OF JUSTICE STATISTICS, NCJ
237363, SEXUAL VICTIMIZATION REPORTED BY FORMER STATE PRISONERS, 2008, at 7
(2012) [hereinafter BECK & JOHNSON, FORMER STATE PRISONERS]. All these surveys used
audio-based, computer-assisted, self-administered survey techniques, which social scientists consider
to be the ideal methodology for eliciting information about sensitive or stigmatized behavior. Unlike
any other surveys before or since, the BJS surveys “used randomized probability samples representative
of the entire jurisdiction surveyed; they had large sample sizes and . . . obtained high response rates;
they analyzed differences between survey respondents and nonrespondents and weighted their
statistical findings accordingly; [and] they used clear and precise questions that defined sexual
victimization consistently.” Buchanan, Our Prisons, Ourselves, supra note 4, at 59–60 (footnotes omitted).
9. Buchanan, Our Prisons, Ourselves, supra note 4, at 60. According to Gerald Gaes, “[t]he NIS overcomes
all of these problems [of earlier victimization surveys] and many others that are important when
measuring sensitive topics especially in a prison environment.” GERALD G. GAES, REPORT TO
THE REVIEW PANEL ON PRISON RAPE ON THE BUREAU OF JUSTICE STATISTICS STUDY
SEXUAL VICTIMIZATION IN STATE AND FEDERAL PRISONS REPORTED BY INMATES, 2007, at 2 (2008);
see also BECK & HARRISON, LOCAL JAILS, supra note 8; BECK & HARRISON, PRISONS AND JAILS,
supra note 2.
10. For example, in the Federal Bureau of Prisons, women constitute about 27 percent of the workforce.
OFFICE OF THE INSPECTOR GEN., THE DEPARTMENT OF JUSTICE’S EFFORTS TO PREVENT
STAFF SEXUAL ABUSE OF INMATES, at iv, viii (2009), available at [Link]
plus/[Link].
Engendering Rape 1639

staff than by fellow inmates.11 More than two-thirds of male12 victims of staff
sexual abuse say that their perpetrators were exclusively women.13
In women’s facilities, likewise, survey data show surprisingly high rates of
female sexual perpetration. Although, consistent with conventional gender expec-
tations, women respondents say that their staff abusers are overwhelmingly
male,14 incarcerated women also uniformly report that fellow inmates—women—
sexually abuse them much more often than male or female staff do.15

11. See infra notes 40–41 and accompanying text. For example, in the 2007–2008 National Inmate Survey
(the most recent available), respondents in men’s prisons reported 52.6 percent more sexual abuse by
staff than by other inmates. In men’s jails, respondents reported 61.5 percent more sexual abuse by staff
than by other inmates. These calculations are based on BECK & HARRISON, PRISONS AND JAILS,
supra note 2, at 12 tbl.6; see also BECK & HARRISON, LOCAL JAILS, supra note 8, at 2 (finding that
jail inmates in general reported 25 percent more sexual victimization by staff than by inmates);
ALLEN J. BECK & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, NCJ 219414,
SEXUAL VICTIMIZATION IN STATE AND FEDERAL PRISONS REPORTED BY INMATES, 2007, at
1 (2007) [hereinafter BECK & HARRISON, PRISONS] (finding that prisoners reported 40 percent
more sexual abuse by staff than by inmates); BECK & JOHNSON, FORMER STATE PRISONERS,
supra note 8, at 25 tbl.14 (reporting similar findings); WARREN REPORT, supra note 5, at 21–22.
Staff perpetrators of sexual victimization were overwhelmingly reported to be women. See, e.g., BECK
& HARRISON, LOCAL JAILS, supra note 8, at 7; BECK & HARRISON, PRISONS AND JAILS,
supra note 2, at 12 tbl.6, 24 tbls.18–19; BECK & JOHNSON, FORMER STATE PRISONERS, supra
note 8, at 15 tbls. 6–7. Warren found less “victimization” of male inmates by staff than by
inmates, WARREN REPORT, supra note 5, at 21–22 (5.9 percent reporting sexual victimization by inmates,
and 2.4 percent reported sexual victimization by staff), but, unlike the BJS, Warren excluded
“bartered” and “consensual” staff–inmate sex from her definition of “victimization.” Warren found
that 17.4 percent of male respondents reported “consensual” sex with staff, and 8.0 percent reported
“bartered” sex with staff, in addition to the 2.4 percent reporting staff sexual “victimization.” See id. at
22–26 tbls. 2–4. By the BJS definition, this staff–inmate sex would all count as “victimization.” For
a discussion of the characterization of staff–inmate sex as “victimization” by staff regardless of whether
the inmate was “willing,” see infra notes 45–75 and accompanying text.
12. Because the Federal Bureau of Prisons and most state correctional facilities house transgender
inmates on the basis of genital status rather than individual gender identity, not all inmates of men’s
prisons identify as men, and not all inmates of women’s prisons identify as women. See, e.g., Richael
Faithful, Transitioning Our Prisons Toward Affirmative Law: Examining the Impact of Gender Classification
Policies on U.S. Transgender Prisoners, MOD. AM., Spring 2009, at 3, 5–6; Oparah, supra note 4, at
260; Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender
Binarism, 6 MICH. J. GENDER & L. 499 (2000). Although, in this Article, I sometimes use “women”
or “men” as a shorthand for persons held in facilities for women or men, a more accurate descriptor
would be “persons incarcerated in prisons for men (or women).”
13. See infra note 40.
14. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 24 (revealing that among victims of staff
sexual abuse in women’s facilities, 71.8 percent reported only male perpetrators; 9.3 percent reported
only women perpetrators; and 18.9 percent reported sexual abuse by both male and female staff); BECK
& JOHNSON, FORMER STATE PRISONERS, supra note 8, at 15 tbl.7 (reporting similar findings).
15. See, e.g., BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 12 tbl.6 (showing that in women’s
prisons, 4.7 percent of inmates reported sexual abuse by other inmates, compared to 2.1 percent
who reported sexual abuse by staff; in women’s jails, 3.1 percent of inmates reported sexual abuse by
other inmates, compared to 1.5 percent who reported sexual abuse by staff); BECK & JOHNSON,
1640 59 UCLA L. REV. 1630 (2012)

All these findings confound common-sense expectations about gender and

prison rape. These expectations are not unique to prison: They pervade our culture.
“Most people . . . view the sexual assault of men by women as somewhat implausible,”
especially when the man is heterosexual.16 As Nancy Dowd and Ted Shaw have
observed of sexual abuse in the outside world, the “paradigmatic sex offender”
is “always a male . . . and the gender of the victim is always female.”17 Prison
rape discourse—which includes my own scholarship18—is largely consistent with
these expectations. By calling attention to forms of abuse that defy conventional
gender expectations, this Article seeks to lay the groundwork for an enriched
understanding of the role of gender in sexual abuse, and of the institutional features
that may tend to suppress or facilitate it.19
The main stereotype that seems to shape the selective attention of prison
rape discourse to expected forms of prison rape is the heterosexist and gendered
“sexual script” by which masculinity is understood to dominate femininity, and its
corresponding “pervasive societal belief that women are incapable of sexual

FORMER STATE PRISONERS, supra note 8, at 25 tbl.14 (among paroled women, 4.8 percent of
respondents reported sexual abuse by other inmates, compared to 2.4 percent who reported sexual
victimization by staff); see also BECK & HARRISON, LOCAL JAILS, supra note 8, at 7 tbl.6 (in jails for
women, 3.9 percent of respondents reported sexual abuse by other inmates, compared to 1.9 percent
who reported sexual abuse by staff); Nancy Wolff et al., Sexual Violence Inside Prisons: Rates of
Victimization, 83 J. URB. HEALTH 835, 841 (2006) (statewide survey finding that women respondents
reported inmate-on-inmate sexual victimization at a rate of 212 per 1000, compared to 76 per 1000
reporting staff-on-inmate staff sexual victimization). But one smaller study did not find higher rates
of sexual abuse by staff than by inmates in women’s prisons. See WARREN REPORT, supra note 5, at
23–24, 26 (finding that 6.6 percent of women inmates reported sexual victimization by other
prisoners, (and 3.8 percent reported “bartered” sex with other inmates), compared to a total of 6.5
percent reporting sexual misconduct by staff (2.7 percent reported “sexual victimization” by staff, 1.1 percent
reported “bartered” sex with staff, and 2.7 percent reported “consensual” sex with staff)).
16. Michelle Davies & Paul Rogers, Perceptions of Male Victims in Depicted Sexual Assaults: A Review of
the Literature, 11 AGGRESSION & VIOLENT BEHAV. 367, 372 (2006).
17. Nancy E. Dowd & Ted Shaw, Men and Sexual Abuse, in NANCY E. DOWD, THE MAN QUESTION:
MALE SUBORDINATION AND PRIVILEGE 125, 125 (2010).
18. See, e.g., Buchanan, Impunity, supra note 6 (addressing male-staff-on-female-inmate sexual abuse in
women’s prisons); Buchanan, Our Prisons, Ourselves, supra note 4 (addressing inmate-on-inmate
sexual abuse in men’s prisons); Buchanan, E-race-ing Gender, supra note 4.
19. The prominent role of women guards in the sexual abuse of male inmates at Abu Ghraib prison during
the Iraq war, as well as in domestic prisons, suggests that administrative policy and practice, or institu-
tional aspects of incarceration, may foster sexual abuse of inmates by both women and men. See, e.g.,
Seymour M. Hersh, Torture at Abu Ghraib, NEW YORKER, May 10, 2004, [Link]
archive/2004/05/10/040510fa_fact. Identification of these institutional features or policies, and of how
they might be changed, would require qualitative investigation. To date, conventional gender expec-
tations seem to have shaped academic inquiry into prison sexual abuse, obscuring this important aspect
of abuse in detention.
Engendering Rape 1641

aggression.”20 The sexuality of masculine men is stereotypically associated with

aggression, while women and other feminized people—gay and effeminate men
and transgender women—are stereotypically associated with sexual passivity.21
These expectations are not limited to conservative commentators: Dominance
feminists and critical theorists of masculinity have observed that sexual assault
may be used to enforce or constitute gender, enhancing the perpetrator’s
masculinity while feminizing the victim.22 While many feminist analyses have

20. Myriam S. Denov, The Myth of Innocence: Sexual Scripts and the Recognition of Child Sexual Abuse by
Female Perpetrators, 40 J. SEX RES. 303, 308 (2003); see id. (“Thinking of a woman as sexually aggressive,
or worse, as a sexual offender, is . . . contrary to traditional sexual scripts which are heterosexual and gen-
dered.”); see also Davies & Rogers, supra note 16, at 368.
21. See, e.g., Buchanan, Our Prisons, Ourselves, supra note 4, at 11 (finding that inmates target gay-
identified, weak, and vulnerable inmates for sexual abuse because of their perceived effeminacy); Denov,
supra note 20, at 312; Kay Levine, No Penis, No Problem, 33 FORDHAM URB. L.J. 357, 381–88 (2006)
[hereinafter Levine, No Penis, No Problem]; Kay Levine, When Gender Meets Sex: An Exploratory
Study of Women Who Seduce Adolescent Boys, 15 WM. & MARY J. WOMEN & L. 361, 362 (2009)
[hereinafter Levine, When Gender Meets Sex] (arguing that gendered expectations of statutory rape
presume “male exploitation [and] female vulnerability”); Teichner, supra note 6, at 276 (noting that a
“gender stereotype . . . [that] men are the sexual predators and women are the vulnerable or passive
victims . . . prevents the legal system from acknowledging the problem of staff-on-inmate sexual vio-
lence perpetrated by female staff against male inmates”); Robinson, supra note 4, at 1335–40
(discussing the association between gay and transgender identity and effeminacy and sexual vulnera-
bility); Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,
14 WOMEN’S RTS. L. REP. 151, 160 (1982) (arguing that “men were considered the natural and
proper initiators of sex,” while “[w]hat normal women did not, should not, do was to initiate sexual
contact, to be the sexual aggressor”); Alisa Graham, Note, Simply Sexual: The Discrepancy in Treatment
Between Male and Female Sex Offenders, 7 WHITTIER J. CHILD & FAM. ADVOC. 145, 146 (2007)
(challenging “the myth that women cannot be sexual predators”).
22. See, e.g., Janet Halley, Sexuality Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW 182,
190 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004); Elizabeth M. Iglesias, Rape, Race, and
Representation: The Power of Discourse, Discourses of Power, and the Reconstruction of Heterosexuality,
49 VAND. L. REV. 869, 949 (1996). Don Sabo and his coauthors have noted this convention with
respect to prison rape in particular: “The act of prison rape is clearly tied to the constitution of
intermale dominance hierarchies. Rapes between male prisoners are often described as if they
occurred between men and women and in terms of master and slave.” Don Sabo et al., Gender
and the Politics of Punishment, in PRISON MASCULINITIES 3, 11 (Don Sabo et al. eds., 2001).
The classic dominance-feminist statement of this position is that of Catharine MacKinnon, who
argues that rape is constitutive of masculinity and femininity:
Rape is a man’s act, whether it is a male or a female man and whether it is a man rela-
tively permanently or relatively temporarily; and being raped is a woman’s expe-
rience, whether it is a female or a male woman and whether it is a woman relatively
permanently or relatively temporarily. To be rapable, a position that is social not
biological, defines what a woman is.
CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 178 (1989)
(quoting Carolyn M. Shafer & Marilyn Frye, Rape and Respect, in FEMINISM AND PHILOSOPHY
333, 334 (Mary Vetterling-Braggin et al. eds., 1977)).
1642 59 UCLA L. REV. 1630 (2012)

challenged the notion that male sexual aggression is natural or normal,23 this
gendered frame remains influential.24
By characterizing the beliefs in male sexual aggression and female vulnera-
bility as “stereotypes,” I do not mean to argue that gendered vulnerability to sexual
violence is not real.25 In prison as in many other settings, the vulnerability of women,
young people, and effeminate men to sexual abuse by hypermasculine men is all too
concrete.26 Rather, my project here is to reveal the ways in which these conventional
gendered expectations structure prison rape discourse, highlighting the abuses that
conform to gender stereotype, and neglecting or rationalizing the abuses that
tend to unsettle them. As Kay Levine has argued in the context of statutory rape,
“Instances of abuse perpetrated by females, rather than against females, become hard
for people to see (let alone for feminists to handle).”27
The selective blindness of prison rape discourse to counter-stereotypical abuses
illustrates a pattern of reasoning I describe as “stereotype reconciliation.” Stere-
otype reconciliation describes an unintentional discursive pattern by which unexpected
facts are reconciled with conventional gender expectations. When the researchers,
advocates, and officials who participate in prison rape discourse encounter

23. See, e.g., Terry A. Kupers, Toxic Masculinity as a Barrier to Mental Health Treatment in Prison, 61 J.
CLINICAL PSYCHOL. 713, 716 (2005) (challenging “toxic masculinity,” which is typified by “misogyny,
homophobia, greed, and violent domination”); Levine, No Penis, No Problem, supra note 21, at 102
(challenging “unwritten scripts” and societal “schemas [that] tend to illuminate acts of male perpetration
and female victimization while keeping underground the existence of female-perpetrated victimi-
zation”); Stemple, supra note 4, at 605–06 (questioning human rights challenges to gender and
sexual violence that focus exclusively on male violence against women); Williams, supra note 21, at 160.
24. See, e.g., Denov, supra note 20, at 308 (citing a number of surveys finding that adult–child sexual interac-
tions are viewed as less harmful and abusive when the adult is a woman and the child is a boy than when
the genders are reversed, so that most “people are unable to see women as potential sexual aggressors”).
25. Characterization of a belief or expectation as a “stereotype” does not necessarily imply that it is empir-
ically false. As Justice O’Connor recognized in Nguyen v. INS, 533 U.S. 53, (2001), the U.S. Supreme
Court’s Equal Protection jurisprudence
has long recognized . . . that an impermissible stereotype may enjoy empirical support
and thus be in a sense “rational.” . . . Indeed, the stereotypes that underlie a sex-
based classification “may hold true for many, even most, individuals.” But in num-
erous cases where a measure of truth has inhered in the generalization, “the Court
has rejected official actions that classify unnecessarily and overbroadly by gender
when more accurate and impartial functional lines can be drawn.”
Id. at 89–90 (O’Connor, J., dissenting) (citations omitted).
26. For a sample of the many studies exploring such abuses, see BECK & HARRISON, PRISONS AND
JAILS, supra note 2; BECK & HARRISON, LOCAL JAILS, supra note 8; HUMAN RIGHTS WATCH,
ALL TOO FAMILIAR, supra note 6; HUMAN RIGHTS WATCH, NO ESCAPE, supra note 4; HUMAN
RIGHTS WATCH, NOWHERE TO HIDE, supra note 6; JUST DETENTION INT’L, FACT SHEET:
LGBTQ DETAINEES CHIEF TARGETS FOR SEXUAL ABUSE IN DETENTION (2009); Buchanan,
Our Prisons, Ourselves, supra note 4; Dolovich, supra note 4; Robinson, supra note 4.
27. Levine, No Penis, No Problem, supra note 21, at 384–85.
Engendering Rape 1643

counter-stereotypical facts, they tend to ignore them, or to rationalize them by

invoking alternative stereotypes, such as notions of romance or of racialized sexual
aggression, to reconcile the unexpected facts with the governing stereotype of mas-
culine domination and feminine vulnerability.
An emerging body of scholarship has challenged this stereotype in the related
context of statutory rape. Several commentators have noted that gender stereotypes
of males as aggressive and women as passive have obscured the coercion and harm
involved in women’s statutory rape of boys and young men.28 However, as these
scholars acknowledge, in the outside world, women’s perpetration of sexual abuse
(though underreported) is probably less common than sexual abuse by men.29 By
contrast, in jails and prisons, sexual abuse perpetrated by women appears to be
the norm.30
Part I of this Article sets out the empirical basis for my claim that in prisons,
counter-stereotypical abuse is more common than sexual abuse that conforms to
conventional expectations. I address the survey methods, definitions used, and the
results found in the recent surveys, which reveal surprisingly high rates of sexual
abuse committed by women. Because male inmates describe much of their sex with
female correctional officers as “willing,” I also address questions of coercion and
consent in the context of staff–inmate sex. At a minimum, this Part demonstrates
that sexual victimization by incarcerated women, and unlawful sexual misconduct
by women staff with incarcerated men, constitute significant problems which to date
have not been seriously addressed in prison rape discourse or in prison rape policy.
Part II demonstrates how stereotype reconciliation works in prison rape
discourse with respect to the form of sexual abuse that most closely corresponds to
conventional gender expectations: sexual abuse of women inmates by male staff.
When researchers do not find as much evidence of this form of abuse as they
expect, they tend to doubt their results, and supplement their own findings with
outside sources that more closely conform to stereotypical expectations.
In Part III, I consider forms of sexual victimization that confound gendered
interpretation: sexual abuse committed by women, and sexual abuse in which

28. See id. at 386; Graham, supra note 21, at 156.

29. See, e.g., Denov, supra note 20, at 304–08; Levine, No Penis, No Problem, supra note 21, at 380–83.
Levine states that her empirical study of female-perpetrated statutory rape “in no way suggests . . . that
female-perpetrated statutory rape is as prevalent as male-perpetrated statutory rape, or that the two
types of crime merit similar levels of criminal justice resources, media attention, or public outrage. It
simply suggests that statutory rape crimes committed by women, against boys, are worthy of study.”
Levine, When Gender Meets Sex, supra note 21, at 363.
30. See infra notes 40–44 and accompanying text (showing that females comprise a majority of perpetrators
of the most common kinds of sexual abuse in men’s and women’s prisons).
1644 59 UCLA L. REV. 1630 (2012)

manly men are the victims. While conventional gender stereotype can be stretched
to accommodate sexual violence by criminalized women, sexual abuse by women
staff is particularly difficult for conventional gender stereotype to handle, espe-
cially when the victims are criminalized men. When surveyors uncover surprising
data suggesting that women staff are more likely than men to sexually abuse men
and boys in their custody, they tend either to ignore the counter-stereotypical
findings, or to reinterpret them in accordance with conventional gendered expec-
tations: Could male inmates be misinterpreting women guards’ authorized physical
searches31 as sexual assault? Another form of stereotype reconciliation is to redefine
staff–inmate sex as consensual, “romantic,” or even as sexual exploitation of the
female guard by the incarcerated man or boy.
In Part IV of this Article, I consider the use of racial tropes as a form of stere-
otype reconciliation for sexual abuse in men’s prisons. Conventional notions of mas-
culinity make it difficult to imagine that tough black or Latino gangsters, murderers
or rapists might want sex with each other. Stereotypes of white vulnerability to
the hypermasculine black rapist tend to reconcile the fact of sex among incar-
cerated men with conventional gender expectations. By contrast, when women staff
have sex with male inmates, racial tropes are worse than useless for stereotype rec-
onciliation: Racialized gender tropes make it harder, rather than easier, to see or
explain the vulnerability of criminalized black men. In prison rape discourse, the
forms of abuse that cannot readily be reconciled with conventional gender expec-
tations are almost completely ignored.

31. The physical searches routinely conducted by prison staff are extremely invasive. For a visual
representation of a strip search, see Prison Strip Search Is Sexually Abusive, [Link], https://
[Link]/prisoners-rights-womens-rights/prison-strip-search-sexually-abusive (last visited July
2, 2012).
A majority of the U.S. Supreme Court recently upheld the routine imposition of a strip search
procedure (described by the majority as “close visual inspection while undressed”). Justice Breyer’s
dissent describes the procedure as follows:
[A] visual inspection of the inmate’s naked body. This should include the inmate
opening his mouth and moving his tongue up and down and from side to side,
removing any dentures, running his hands through his hair, allowing his ears to be vis-
ually examined, lifting his arms to expose his arm pits, lifting his feet to examine the
sole, spreading and/or lifting his testicles to expose the area behind them and bending
over and/or spreading the cheeks of his buttocks to expose his anus. For females, the
procedures are similar except females must in addition, squat to expose the vagina.
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1525 (2012) (Breyer, J., dissenting) (citation
and internal quotation marks omitted). Cross-gender strip searches are prohibited in all facilities,
except for searches conducted by medical practitioners or in “exigent circumstances.” The National
Standards to Prevent, Detect, and Respond to Prison Rape; Final Rule, 77 Fed. Reg. 37,106, 37,130
(June 20, 2012) (to be codified at 28 C.F.R. pt. 115), ban most cross-gender strip searches, but
allow cross-gender “pat” searches of incarcerated men. See infra note 97.
Engendering Rape 1645

I. COUNTER-STEREOTYPICAL ABUSES: EMPIRICS, CONSENT,

AND COERCION

A. Statistics and Definitions

Until about 2007, empirical evidence of the prevalence and dynamics of

prison rape was relatively scanty, and methodologically unreliable.32 Scholars,
policymakers, correctional administrators, and advocates had to rely on this flawed
literature and on anecdotal evidence to set their priorities and inform their recom-
mendations for policy reform. In a 2004 meta-analysis of the extant prison sex litera-
ture, Gerald Gaes, a senior research scientist with the Bureau of Justice Statistics
(BJS), characterized its limitations as follows:
[They] included vague or unclear question wording; lack of detail in the
various types of potential sexual victimization; extremely small samples;
very low response rates that raised significant questions about bias in the
responses; survey methods that are not ideal to elicit responses on sensi-
tive subjects; and long time horizons that produce errors in recall.33
Moreover, while many earlier studies had attempted to estimate the incidence or
prevalence of prison sexual abuse, only one had used a randomly selected probabil-
ity sample that could represent an entire jurisdiction.34
The Prison Rape Elimination Act of 2003 sought to address these empirical
deficiencies. It mandated that the BJS conduct a “comprehensive statistical review
and analysis of the incidents and effects of prison rape” by surveying a “random . . . or
other scientifically appropriate sample of not less than 10 percent of all Federal,
State and county prisons, and a representative sample of municipal prisons.”35 The
objectives of the PREA-mandated surveys are to identify the common characteristics

32. See, e.g., GERALD G. GAES & ANDREW L. GOLDBERG, NAT’L INST. OF JUSTICE, PRISON RAPE:
A CRITICAL REVIEW OF THE LITERATURE (2004); see also Buchanan, Our Prisons, Ourselves, supra
note 4, at 55–57.
33. GAES, supra note 9, at 3 (summarizing GAES & GOLDBERG, supra note 32).
34. GAES & GOLDBERG, supra note 32, at 1 (“It is only with such a sample that we can ever attempt to
understand the scope of the problem.”). The only survey that involved a randomly selected sample
was likely unreliable because of other irregularities in its methodology. For example, it did not provide
“factor, cluster and reliability analyses” to back up the authors’ claims to high reliability for the survey
items, did not offer data or statistical evidence in support of its conclusions, and was conducted via
in-person interview by “an articulate, black ex-offender.” Id. at 13–14; see also Buchanan, Our Prisons,
Ourselves, supra note 4, at 56 n.317.
35. 42 U.S.C. § 15603(a)(4) (2006).
1646 59 UCLA L. REV. 1630 (2012)

of the victims and perpetrators of prison rape, and of the facilities with high inci-
dences of prison rape.36
As a result of surveys mandated, funded, or inspired by PREA, prison rape
scholars, advocates, and policymakers now have more data than ever before to
understand prison rape, and to shape policy responses to it. These studies provide a
trove of evidence about counter-stereotypical sexual abuse. For example, because
all the victimization surveys used virtually identical questions for male and female
respondents,37 incarcerated people were, by default, asked questions about both
counter-stereotypical and stereotype-conforming forms of sexual abuse. The
BJS victimization surveys and a statewide survey by health economist Nancy
Wolff asked about sexual abuse by both inmates and staff, in facilities for both
men and women. In a smaller study, forensic psychiatric researcher Janet Warren
asked about “consensual,” bartered, and coerced sex with both staff and other
inmates, and about respondents’ involvement in both sexual victimization and
predation in facilities for both men and women. By asking the same questions of
men and women, the surveyors elicited answers—remarkably consistent across
surveys—which raise important questions about the conventional wisdom about
the role of gender in prison rape.
As noted in the Introduction, despite the focus of prison rape discourse on
fellow inmates as the source of sexual threat in men’s prisons,38 these surveys
found that incarcerated men report much higher rates of sexual abuse by staff than
by fellow inmates,39 and found that a large majority of staff perpetrators of sexual

36. Id. §§ 15602(5), 15603(a)(2)(A).

37. See BUREAU OF JUSTICE STATISTICS, NATIONAL INMATE SURVEY: YEAR 1 QUESTIONNAIRE
SPECIFICATIONS (2007) [hereinafter BJS, SURVEY YEAR 1]; BUREAU OF JUSTICE STATISTICS,
NATIONAL INMATE SURVEY: YEAR 2 QUESTIONNAIRE SPECIFICATIONS (2008–09) [hereinafter
BJS, SURVEY YEAR 2]; WARREN REPORT, supra note 5, at 2; Wolff et al., supra note 15, at 841.
38. See supra note 4.
39. Although overall rates of victimization are low, disparities between sexual abuse perpetrated by staff
and by inmates are large. See supra note 11. For example, the 2008–09 NIS found that, in men’s
prisons, 2.9 percent of respondents reported sexual abuse by staff, compared to 1.9 percent who reported
sexual abuse by other inmates. In jails for men, the discrepancy was even greater: 2.1 percent
reported sexual abuse by staff, compared to 1.3 percent who reported sexual abuse by other inmates. BECK
& HARRISON, PRISONS AND JAILS, supra note 2, at 12 tbl.6; see also BECK & JOHNSON, FORMER
STATE PRISONERS, supra note 8, at 15 tbl.6 (finding that 4.2 percent of formerly incarcerated men
reported sexual victimization by other prisoners, compared to 5.4 percent who reported sexual victimi-
zation by staff); BECK & HARRISON, LOCAL JAILS, supra note 8, at 2 (showing that 2.0 percent
of all inmates reported sexual abuse by staff, compared to 1.6 percent who reported sexual abuse
by other inmates); BECK & HARRISON, PRISONS, supra note 11 (revealing that 2.9 percent of all prisoners
reported sexual abuse by staff, compared to 2.1 percent who reported sexual abuse by inmates). The
2007 Jails and Prisons Reports (BECK & HARRISON, LOCAL JAILS, supra note 8, and BECK &
HARRISON, PRISONS, supra note 11) do not break down their results by sex of inmate or staff, but
Engendering Rape 1647

abuse are women. In the most recent National Inmate Survey, more than two-
thirds of men who reported sex with staff—68.8 percent—said that their staff
perpetrators were exclusively women.40 Another 16.3 percent said that both male and
female staff had abused them. In total, 85 percent of male inmates who had had
sex with staff reported a female perpetrator.41 In women’s prisons, too, the BJS data
suggest that women are more likely than men to perpetrate sexual abuse. Although
the staff members who have sex with women inmates are overwhelmingly male,42
incarcerated women report much higher rates of sexual abuse by other women
inmates than by male staff.43 Moreover, incarcerated women also reported much
higher rates of sexual coercion by fellow inmates than imprisoned men did.44

since men comprise more than 90 percent of the prison population and of the survey samples, these
results are likely to closely approximate prevalence rates among male inmates. See also Wolff et al.,
supra note 15, at 841 (finding that 4.3 percent of male inmate respondents reported sexual victimi-
zation by other inmates, while 7.6 percent reported sexual victimization by staff); WARREN REPORT,
supra note 5, at 22–26 (finding that 5.9 percent of male respondents reported sexual victimization
by other inmates, and 2.4 percent reported “barter[ing]” sex with other inmates for goods or protection).
Of Warren’s male inmate sample, 2.4 percent described sex with staff as “victimization,” 8.0 percent
reported “bartered” sex with staff, while 17.0 percent considered their sex with staff to be “consensual.” Id.
40. See BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 24; see also BECK & HARRISON,
LOCAL JAILS, supra note 8, at 7 (reporting that among male victims of staff sexual misconduct, 61.5
percent of male inmates reported only female perpetrators; 14.4 percent reported only male perpetrators,
and 13.1 percent reported both); BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at
15 tbl.7 (reporting that of all former inmates reporting staff sexual misconduct, 78.7 percent were male
inmates reporting misconduct by female staff; 6.8 percent were males reporting sexual misconduct by
male staff; and 4.6 percent were males reporting sexual misconduct by both male and female staff).
In juvenile facilities, about 95 percent of staff perpetrators of sexual misconduct are reported to be
women. BECK ET AL., JUVENILE FACILITIES, supra note 8, at 11.
41. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 24 (only 14.9 percent of male victims of
staff sexual victimization reported that all their abusers had been men).
42. See supra note 14.
43. All nationwide and statewide surveys show that women reported about twice as much (or more)
sexual victimization by other inmates than by staff. See supra note 15.
44. The BJS observed, in its most recent survey report:
Past BJS surveys of confined prison inmates have consistently found higher rates of
inmate-on-inmate victimization among females than males. . . . This difference was
found to be statistically independent and largely unexplained by covariation with
other demographic characteristics. . . . The reports of former prisoners confirm the large
and statistically significant difference between male and female rates of inmate-on-
inmate sexual victimization. The rate of inmate-on-inmate sexual victimization among
former state prisoners was 3 times higher among females (13.7%) than males (4.2%).
BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 15 (citation omitted); see also
BECK & HARRISON, PRISONS AND JAILS, supra note 2; Wolff et al., supra note 15, at 841 (finding
that male inmates reported 43 per 1000 inmate-on-inmate victimizations, compared to women
inmates reporting 212 per 1000; male and female inmates reported similar rates of staff-on-inmate
sexual victimization (76 per 1000)); WARREN REPORT, supra note 5, at 23 tbl.2 (showing that
6.6 percent of women inmates, compared to 5.9 percent of men, reported sexual “victimization” by
1648 59 UCLA L. REV. 1630 (2012)

Before parsing these findings further, a note about definitions may be useful:
In prison, consensual, bartered, and coerced sex are not sharply differentiated.
Consensual sex among inmates is not treated by the BJS as sexual abuse, nor should
it be.45 Prisoners and staff tend to assume, though, that sex bartered for goods or
protection is consensual.46 Accordingly, “prison rape” as surveyed by the BJS is not
limited to forcible rape. Rather, it defines “sexual victimization” to include all forced,
pressured, or unwilling “oral, anal, or vaginal penetration; hand jobs; touching of
the inmate’s buttocks, thighs, penis, breasts, or vagina in a sexual way; . . . and
both willing and unwilling sexual activity with staff.”47 Its surveys ask respondents
in candid language about sexual touching,48 “handjobs,” “oral sex or a blowjob,” and
vaginal and anal penetration by the penis or with an object.49 If an inmate says he
or she has been sexually victimized, the survey asks whether he or she was physi-
cally forced, pressured, or “made to feel you had to” engage in these forms of sexual
activity.50 Finally, the BJS surveys also ask whether the victim was injured and
whether she or he sought medical treatment for her or his injuries.51
The surveys also ask inmates whether they have “willingly” engaged in these
sexual activities with members of prison staff, and whether they engaged in such activ-
ities with staff who “offered [them] favors or special privileges in exchange for sex
or sexual contact.”52 While the BJS does not count inmate–inmate sex or touching as
“victimization” unless the respondent was forced, threatened, pressured, or “made

other inmates). But cf. WARREN REPORT, supra note 5, at 24 tbl.3 (revealing that 3.8 percent of
women and 2.4 percent of men reported having had “bartered” sex with other inmates).
45. See BECK & HARRISON, LOCAL JAILS, supra note 8, at 11 (defining “sexual victimization” by
inmates to include only forced, pressured, or unwilling sex with inmates); Brenda V. Smith,
Rethinking Prison Sex: Self-Expression and Safety, 15 COLUM. J. GENDER & L. 185, 233–34
(2006) (arguing that consensual sex among inmates ought to be allowed).
46. See NPREC REPORT, supra note 1, at 113; OWEN REPORT PART I, supra note 6, at 4.
47. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 7.
48. BJS, SURVEY YEAR 2, supra note 37, at 21 (asking respondents about unwanted touching by inmates
or staff of the “butt, thighs or penis” or “butt, thighs, breasts or vagina”).
49. Id. at 21–48.
50. The survey further asks about the kind of pressure brought to bear on the inmate. When an inmate
says she or he was forced, pressured, or made to feel she or he had to have sex with another inmate,
the survey further asks whether she or he was “persuaded or talked into it,” bribed, blackmailed,
“given drugs or alcohol to get you drunk or high,” offered protection, settled a debt, threatened with
harm, physically restrained, physically harmed or injured, or threatened with a weapon. Id. at 38.
Where the alleged perpetrator is a staff member, the survey asks about all these forms of pressure,
as well as whether the inmate was “offered favors or special privileges,” “offered protection from
other inmates,” or “offered protection from another correctional officer.” Id. at 45.
51. Id. at 38–39, 46.
52. Id. at 43.
Engendering Rape 1649

to feel he or she had to” engage in the sexual activity, the BJS counts staff–inmate
sexual activity as “victimization” even if the inmate describes the sex as “willing.”53

B. Gender, Coercion, and Consent in Staff–Inmate Sex

Male inmates who reported staff sexual victimization were much more likely
than women inmates to describe at least some of their sex with staff as “willing”;
women were much more likely than men to describe at least some of their sex
with staff as “unwilling.”54 This finding is consistent with conventional gender
expectations, which might suggest that men want sex with women in virtually any
circumstances, and that heterosex cannot harm them.55 Nonetheless, other survey
findings suggest that this convention may not adequately capture what is hap-
pening between male inmates and female staff in prisons.
First, the surveys did not find that it was rare for women to report “willing”
sex with staff, or for men to report “unwilling” sex with staff: Around 30 percent
of currently incarcerated women reported having had sex with staff “without
pressure or force,” compared to 56 to 64 percent of men;56 among former pris-
oners, women were equally likely to say that their sex with staff had been “willing”

53. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 7.

54. For example, the BJS found that, among former state prison inmates, 4.8 percent of men said that they
had “willing” sex with staff, compared with only 2.6 percent of women. 2.5 percent of women said
they had been subjected to “unwilling” sex with staff, compared to only 1.1 percent of men who said so.
BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 15 tbl.6. Likewise, the BJS found
that, among current inmates who said they had had sex with staff, men were significantly more likely
than women to say that the sex had occurred “without pressure or force.” BECK & HARRISON,
PRISONS AND JAILS, supra note 2, at 23 tbl.17.
55. This assumption, for example, is salient in the context of statutory rape when the adult perpetrator is
female and the victim is male: Such incidents are often dismissed as harmless or as positive expe-
riences for the boy, and popular coverage of such incidents often features a salacious focus on whether
the adult female perpetrator was “hot.” See, e.g., Denov, supra note 20, at 311–12; Levine, No Penis, No
Problem, supra note 21, at 385–86; Davies & Rogers, supra note 16, at 372; Graham, supra note 21, at
156. Gendered stereotypes of male hypersexuality and sexual indiscriminateness may be particularly
salient with regard to men who are black or gay (or both), who are also more likely to report sexual
victimization by staff. See BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 18 tbls.12, 91
app. tbl.10 (finding that nonstraight (“bi-sexual, homosexual or other”) sexual orientation and black
racial ascription are associated with significantly higher risk of sexual victimization by staff); BECK &
JOHNSON, FORMER STATE PRISONERS, supra note 8, at 28 tbl.16 (finding that black and mul-
tiracial ascription are associated with significantly higher risk of sexual victimization by staff, but
finding that in men’s jails and prisons, bisexuals are at significantly higher risk of staff sexual victimi-
zation than gay- or straight-identified inmates).
56. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 23 tbl.17.
1650 59 UCLA L. REV. 1630 (2012)

as that it had been “unwilling;”57 and a plurality—42.2 percent—of former prisoners

who said they had any “unwilling” sex with staff were men whose perpetrators had
been exclusively women.58 Furthermore, although most men who said they had sex
with female staff described the sex as “willing,” many of these men also said they
had been “pressured” into it.59
The coercive nature of “willing” sex between women staff and men inmates
may not be self-evident—even though, under federal law and in all fifty states,
staff–inmate sex is a criminal offense whether the inmate consents to it or not.60
As is frequently pointed out in the literature with respect to male guards’ sexual
abuse of female inmates,61 correctional staff wield enormous power over the lives
of inmates. They can tell inmates when to get up, when to go to sleep, whether
and where they can work or study, where and with whom they will live, and
whether and how they may have contact with their families. Staff are authorized
to use physical force to subdue inmates when they consider it necessary. Most
importantly, staff are empowered to make disciplinary decisions about people in
their custody: If a staff member says that an inmate has broken institutional rules,
the inmate may be put in solitary confinement (administratively known by the
euphemism “segregation”) for an extended period—a traumatic sanction that can
lead to mental breakdown so severe that many rape survivors prefer to take their

57. BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 15 tbl.6 (finding that 2.6 percent
of women reported “willing” sex with staff, compared to 2.5 percent who reported “unwilling” sex
with staff).
58. BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 15 tbl.7.
59. See infra note 59. Among male respondents who said they had had sex with staff, 54.8 percent in pris-
ons and 61.7 in jails said that they had ever been “pressured” into it. BECK & JOHNSON, FORMER
STATE PRISONERS, supra note 8, at 23 tbl.17. The BJS defines “pressured” sex as “incidents in
which the perpetrator, without using force, pressured the inmate or made the inmate feel they had to
participate.” Id. at 9 tbl.3. The number who reported sex with staff under “pressure” greatly exceeded
the number who said that any of their perpetrators had been men. In jails, 35.7 percent of men who
reported sex with staff said that all or some of their staff perpetrators had been male; in prisons, 31.2
percent of men who reported sex with staff said so. Id. at 24 tbl.18. Thus, although the BJS report
does not break down reports of sexual pressure by the gender of the staff perpetrator, some of the
men who reported sex with women staff did so under pressure at least some of the time.
60. NIC/WCL PROJECT ON ADDRESSING PRISON RAPE, FIFTY-STATE SURVEY OF CRIMINAL
LAWS PROHIBITING SEXUAL ABUSE OF INDIVIDUALS IN CUSTODY (2009), available at http://
[Link]/sites/default/files/library/[Link].
NPREC has taken the position that the “power imbalance between staff and prisoners vitiates the
possibility of consent.” NPREC REPORT, supra note 1, at 123.
61. For a discussion contrasting the treatment of unforced sex involving female staff and male inmates
with unforced sex between male staff and female inmates, see infra notes 101, 181–185 and
accompanying text.
Engendering Rape 1651

chances in the general population rather than be isolated in solitary confinement.62

Moreover, by issuing disciplinary tickets for misconduct or by placing an inmate
in segregation (thereby cutting off his or her access to work, educational, and
rehabilitative programs), staff can prevent inmates from earning the “good time”
that is required to win parole.63 Furthermore, as I have pointed out previously,
these staff powers are also effectively unreviewable in court.64
An inmate who faces unwanted sexual contact or overtures from a staff mem-
ber is unlikely to receive institutional protection if he or she asks for it, so most of

62. “Colloquially named ‘ad-seg’ or the ‘hole,’ administrative segregation is also where prisoners viewed
as disruptive or violent are sent for punishment and stricter supervision.” Oparah, supra note 4, at
265. “In a typical protective custody unit, individuals are placed in maximum-security cells. Priv-
ileges are greatly reduced, with as little as an hour a day outside the cell for exercise, extremely limited
contact with other prisoners, and reduced or no access to educational or recreational programs.”
NPREC REPORT, supra note 1, at 79; see also JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH,
CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN
AMERICA’S PRISONS 57–59 (2006); Arkles, supra note 4, at 538–39. On the psychological effects
of solitary confinement, see, for example, NPREC REPORT, supra note 1, at 79–80. Craig Haney &
Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,
23 N.Y.U. REV. L. & SOC. CHANGE 477, 483 (1997); Elisabeth Vasiliades, Solitary Confinement and
International Human Rights: Why the U.S. Prison System Fails Global Standards, 21 AM. U. INT’L L. REV.
71 (2005).
Arkles notes that “[t]wo basic premises can make solitary confinement seem like a reasonable
measure to increase safety . . . . The first is that that isolation and control, rather than relationships and
freedom, reduce violence. The second is that other prisoners rather than facility staff are the primary
perpetrators of violence from whom [transgender and other vulnerable] people need protection within
detention systems.” Arkles, supra note 4, at 517–18 (footnote omitted). Both of these premises, he
notes, “are false.” Id.; see also Robinson, supra note 4, at 1404 (“Interviews with persons who were
incarcerated in K6G suggest that Jail staff are a greater threat to sexual minority inmates than other
inmates.”). Arkles notes that supportive friendships, relationships, and alliances with fellow inmates
in the general population are often essential to protection against violence by correctional staff.
Placement in solitary confinement against their wishes may expose vulnerable inmates to further
violence. Arkles, supra note 4, at 518.
63. Oparah, supra note 4, at 265.
64. Buchanan, Impunity, supra note 6, at 86. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme
Court denied the existence of any protected liberty interest in not being placed in solitary
confinement for thirty days, in part because conditions in punitive segregation were identical to those
in “administrative segregation” and “protective custody.” Id. at 486. Because prison administrators
use solitary confinement for administrative and protective purposes as well as for punishment,
punitive placement in solitary confinement did not, the majority held, constitute the kind of
“atypical, significant deprivation” which might engage a protected liberty interest. Id. Although the
Supreme Court mandates periodic administrative review of placement in solitary confinement, see
id.; Hewitt v. Helms, 459 U.S. 460 (1983), the reviews are often perfunctory. See, e.g., Angela A.
Allen-Bell, Perception Profiling and Prolonged Solitary Confinement Viewed Through the Lens of the
Angola 3 Case: When Prison Officials Become Judges, Judges Become Visually Challenged, and Justice
Becomes Legally Blind, 39 HASTINGS CONST. L.Q. 763, 799–802 (2012).
1652 59 UCLA L. REV. 1630 (2012)

them do not.65 According to a recent BJS survey of former state prisoners, when
an inmate does report staff sexual misconduct to institutional authorities, the most
common institutional response is that the victim is “written up” for a disciplinary
infraction. More than 46 percent of inmates who reported sexual victimization by
staff said they were written up.66 The next most common institutional responses
also tend to be punitive: 41.2 percent of victims who reported staff sexual
misconduct were placed in solitary confinement, 35.2 percent were confined to
their cells, and 26.6 percent were reassigned to a more restrictive custody level.
14.5 percent of inmates who reported staff sexual victimization received no insti-
tutional response at all. 67 Their accounts are largely corroborated by official
accounts of institutional responses to reports of inmate sexual abuse.68 The Office

65. Obviously, inmates are unlikely to report “willing” sex with staff to correctional authorities: Only 2.5
percent of former inmates who said they had had willing sexual activity with staff reported it. But
among those whose sex with staff was “unwilling,” only 20.7 percent reported it. BECK & JOHNSON,
FORMER STATE PRISONERS, supra note 8, at 30 tbl.17. The BJS asked former inmates why they
had not reported staff sexual misconduct. Over 70 percent of nonreporters said they had not reported
the sex because it was willing, or because they did not want the staff members to get in trouble. On the
other hand, 38.3 percent of nonreporting victims said they were afraid of being punished for making
a report, 25.4 percent of nonreporting victims said they were afraid of being charged with making a false
report, and 21.9 percent said they thought staff would not investigate. Id. at 31 tbl.18. These concerns
were well founded. See infra notes 66–70 and accompanying text.
66. Other than “Victim spoke to an investigator” (reported by 53.9 percent of reporting victims), which
BJS counts as a facility “response” but I do not, the most common institutional response received by
victims who reported staff sexual misconduct by staff was “Victim written up,” reported by 46.3
percent. BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 31 tbl.19.
67. Id. Additionally, 39.1 percent reported that they were offered a transfer to another facility, which
they may have experienced as either punitive or protective, depending on their circumstances. Id.; see
OFFICE OF THE INSPECTOR GEN., supra note 10, at iv.
68. ALLEN J. BECK & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, NCJ 214646,
SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2005, at 8 (2006)
[hereinafter BECK & HARRISON, CORRECTIONAL AUTHORITIES, 2005], available at [Link]
[Link]/content/pub/pdf/[Link] (“The most common response following a reported
incident of sexual violence was to place the victim in administrative segregation or protective custody
(44%) or to transfer the victim to another facility (11%).”); ALLEN J. BECK ET AL., BUREAU OF
JUSTICE STATISTICS, NCJ 218914, SEXUAL VIOLENCE REPORTED BY CORRECTIONAL
AUTHORITIES, 2006, at 6 (2007) [hereinafter BECK ET AL., CORRECTIONAL AUTHORITIES, 2006],
available at [Link] (similar); (“Among victims of
inmate sexual violence reported in the 2006 survey, 40% were placed in administrative segregation or
protective custody; 13% were placed in a medical unit; and 16% were transferred to another
facility.”); see also PAUL GUERINO & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, NCJ
231172, SEXUAL VICTIMIZATION REPORTED BY ADULT CORRECTIONAL AUTHORITIES, 2007–
2008, at 23 app. tbl.17 (2011) [hereinafter GUERINO & BECK, CORRECTIONAL AUTHORITIES,
2007–2008], available at [Link] (reporting that 25
percent of victims of “substantiated” incidents of sexual victimization by staff were placed in segre-
gation, and 10 percent were transferred; no statistics provided for disposition of reports from
victims of “substantiated” sexual victimization by inmates).
Engendering Rape 1653

of the Inspector General acknowledges that “segregation and transfer can have
negative effects on the victims and can reduce their willingness to report abuse and
to cooperate in investigations,” but federal and state prison officials continue to
rely heavily on segregation and transfer in response to inmate reports of sexual
abuse.69 Thus, when a victim of staff sexual misconduct reports it, most of the
time, either the victim is punished, or nothing is done.70 The institutional incen-
tives to comply with the sexual desires of a correctional officer are powerful, whether
the inmate is attracted to the officer or not.
In the outside world, federal sexual harassment jurisprudence recognizes that
the institutional incentives established within schools and workplaces can make
voluntary-but-unwelcome sexual touching civilly actionable even though it involves
no use of force.71 Just as our legal system recognizes the coercion that may
constrain sexual decisionmaking in these contexts—the implied, “Cooperate and
you’ll get an A,” or “Cooperate, or you’ll be fired”—it rightly acknowledges that
inmates’ “willing” sex with staff may involve the implied threat: “Cooperate, or
you’ll never be paroled.”
This is not to claim that the violence of incarceration necessarily precludes
mutual sexual attraction, or even love, between inmates and staff: It is not difficult
to imagine that an incarcerated person (male or female) might become attracted to
one of the only different-sex potential partners that he or she might encounter for

69. OFFICE OF THE INSPECTOR GEN., supra note 10, at iv.

70. The 46.3 percent of reporting inmates who are disciplined, added to the 14.5 percent who receive no
response, account for 59.9 percent of all reports. BECK & JOHNSON, FORMER STATE PRISONERS,
supra note 8, at 31 tbl.19. The BJS does not report on the degree of overlap between the 46.3
percent who receive a disciplinary “writeup” and the substantial proportion of reporting inmates who
report being confined to their cells, placed in solitary confinement, or moved to a higher custody
level, but it seems reasonable to assume that at least a few reporting inmates who were subjected to
these other sanctions were not also “written up.” Id.
71. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 69 (1986) (establishing sexual harassment
as an unlawful employment practice of sex discrimination in violation of Title VII: “[T]he fact that
sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate
against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen
of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’”); see also Gebser
v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 278 (1989) (finding Title IX violation in case involv-
ing repeated “sexual intercourse” between teacher and middle-school student, with no suggestion
that sex was forced); Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 63, 75 (1992) (finding Title
IX violation based on sexual harassment involving “coercive intercourse” between high school teacher
and student. No force was alleged; teacher was alleged to have “coerced” the sex by threatening to
tell the student’s mother and boyfriend about their “relationship,” see Brief for Petitioner, Franklin,
503 U.S. 60 (No. 90-918), 1991 WL 526268, at *3).
1654 59 UCLA L. REV. 1630 (2012)

years.72 The dating options of incarcerated people are limited.73 Moreover, sexual
desire and pleasure can sometimes thrive in spite of, or because of, steep power
disparities.74 However, in prison as in the outside world, sexual rejections or
romantic disappointments may often result in resentment, anger, or, in the worst
case, violence. Where one potential partner is authorized to use force against
the other, and has power to extend the other’s stay in prison, it is not safe to
assume that the incarcerated partner’s purported “willingness” to have sex is free
and uncoerced.
Thus this Article takes the position that staff–inmate sex is rightly counted
as sexual “abuse” or “victimization” even if no force is used, and the inmate seeks
or agrees to it. Readers who remain unconvinced of this might nonetheless
agree that the gender of the “willing” inmate or staff partner does not resolve
questions of consent. It is not safe to assume that staff–inmate sex is necessarily
benign when the inmate is a man and the staff member is a woman. Yet, as I
note in Part IV, this assumption is quite common in prison rape discourse. It is
only in the context of sex between male inmates and female staff that the
inmate’s presumed willingness is proffered as a reason to ignore or discredit
inmates’ allegations of sexual abuse.75 In any case, the survey data demonstrate
that, at a minimum, women staff are taking sexual advantage of incarcerated
men and boys to a degree that seems surprising, in light of conventional gender
expectations. Regardless of whether it is as coercive as sex between male staff
and women inmates, sex between women staff and men inmates warrants more
attention than it has received in prison rape discourse to date.

72. Bans on staff–inmate sex may “deprive people of perhaps the single most promising avenue available
for securing sexual partners,” as Vicki Schultz has observed of prohibitions on workplace dating.
Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2069 (2003).
73. In light of all the dangers, deprivations, and humiliations of prison life, the dearth of sexual oppor-
tunities for incarcerated heterosexuals does not seem to me to be one of the most pressing human
rights violations in prison. To the extent that inmates’ sexual frustration is identified as a policy
priority, a more appropriate, and effective, solution might be to allow conjugal visits with partners
or friends (see, e.g., Suk, supra note 4, at 118), not to authorize guards to have sex with them.
74. See, e.g., Ian Halley (this author usually writes as Janet Halley), Queer Theory by Men, 11 DUKE J.
GENDER L. & POL’Y 7, 37–38 (2004) (advocating a “sex-positive, shame/abjection affirmative, irra-
tionalist” analysis of sexuality divorced from the feminisms of Catharine MacKinnon and Robin
West which, Halley argues, unduly emphasize women’s sexual subordination to men); Schultz, supra
note 72, at 2121–28 (noting the ubiquity of dating relationships between supervisors and subordinates).
75. See infra notes 101, 181–185 and accompanying text (contrasting discussion of cross-gender staff
sexual victimization of male and female inmates).
Engendering Rape 1655

C. Gender Dynamics of Overt Sexual Coercion

Furthermore, the survey data provide considerable evidence of coercion in

both “willing” and “unwilling” sex between staff and inmates of all genders. Con-
ventional gender expectations might suggest that sexual abuse of men by women
would be less coercive, less violent, or less harmful than the reverse.76 The BJS
victimization survey reports present abusers’ use of force and pressure by the
gender of the victim, not the perpetrator. However, knowing that prison popu-
lations are segregated by gender, we may assume that virtually all inmate
perpetrators are (at least by institutional classification) of the same gender as
their victims. Similarly, we may draw tentative inferences about staff
perpetrators’ gender from data on the gender of victims: Most staff perpetrators
in men’s prisons are women, and most staff perpetrators in women’s prisons are
men.77 If female perpetrators were less violent than male perpetrators, their
victims would report lower rates of violence, threats, and injury than were
reported by the victims of male perpetrators. The BJS data do not closely fit
this assumption.
Firstly, as mentioned above, women inmates are reportedly much more likely
than male inmates to sexually victimize each other.78 This “large and statistically
significant difference” is “statistically independent and largely unexplained by covar-
iation with other demographic characteristics,” and has been consistently found in
all BJS surveys to date.79 This robust finding defies stereotypes that associate
sexual aggression with men and not with women.
Nonetheless, conventional gender expectations might predict that male
inmate perpetrators would be more violent than female inmate perpetrators. If so,
male victims of inmate-on-inmate sexual abuse would report higher rates of vio-
lence, threats, and injury than their female counterparts did. The BJS data partly
bear out this expectation: In prisons and jails, male victims of inmate-on-inmate
sexual abuse are more likely than their female counterparts to report that they
were physically threatened, were offered protection, had sex to settle a debt, were
bribed or blackmailed, or were given drugs or alcohol to secure their compliance.80

76. See, e.g., Denov, supra note 20; Levine, No Penis, No Problem, supra note 21, at 385–86; Teichner,
supra note 6, at 277; Graham, supra note 21, at 161.
77. Most staff sexual abuse is cross-gender. See supra notes 14, 40.
78. See supra note 44.
79. See supra note 44.
80. See BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 21 tbl.15 (finding that in prisons and
jails, men were significantly more likely to report that they were bribed or blackmailed, given drugs,
offered protection, offered to settle a debt, or physically threatened; in jails, men were significantly
1656 59 UCLA L. REV. 1630 (2012)

Women and men reported roughly equal rates of being “persuaded/talked into”
unwanted sex.81 But, contrary to gendered expectations, male and female victims
(in prisons, but not in jails) were equally likely to say that they had been physically
held down or that their inmate assailants had injured them.82
Similarly, if female staff perpetrators were less violent than male staff
perpetrators, female victims of staff sexual abuse (whose staff abusers are mostly
male) would report higher rates of violence, threats, and injury than their male
counterparts did. Again, the BJS data are only partly consistent with this expec-
tation. Consistent with gender expectations, the majority of incarcerated males
who had sex with staff say that the sex occurred “without pressure or force,”83
compared to only about 30 percent of incarcerated women who had sex with
staff. 84 However, not all sex that the BJS characterizes as occurring “without
pressure or force” was defined by inmates as “willing.” The BJS definition of
“without pressure or force” conflates staff–inmate sex that the inmate says was
“willing” with staff–inmate sex that the inmate “exchanged for favors or privi-
leges” offered by the staff member.85 Depending on the favors or privileges that
were exchanged, the level of coercion involved in such a bargain could range from
exploitation that is arguably mutual (for example, sex in exchange for contraband)
to very abusive (for example, an inmate having sex in exchange for food, showers,
or contact with family members). The BJS reports provide no information about
the gender distribution of inmates who characterized sex as “willing” as opposed
to bartered, and the National Inmate Survey (NIS) questionnaires did not ask for
particulars of the favors or privileges that inmates paid for with sex. It is thus
impossible to determine, based on the gender disparity in inmate reports of unpres-
sured, unforced sex, whether there is a gender disparity in the coerciveness of
staff–inmate sex.
Moreover, most male and female inmates who reported sex with staff felt
that staff had “pressured” them into it. In prisons, women were significantly more

more likely than women to say they had been physically held down or restrained, or that they had been
physically harmed or injured).
81. Id. (showing that gender differences in being “persuaded/talked into it” were not significant).
82. Id. at 22 tbl.16 (showing that in jails, 37.2 percent of men and 8.2 percent of women victimized by
other inmates said that they had been physically injured, but that in prisons, the difference between
men (20.7 percent) and women (17.2 percent) who said they had been physically injured was not
statistically significant).
83. Id. at 23 tbl.17 (showing that 64.1 percent of men in prisons and 56.3 percent of men in jails who
had sex with staff say it took place “without pressure or force”).
84. Id. (showing that 29.8 percent of women who had sex with prison staff and 31.0 percent who had sex
with jail staff say it took place “without pressure or force”).
85. Id. at 51 app. tbl.3.
Engendering Rape 1657

likely than men to say they had been “pressured” by staff—81 percent of women
as compared to 55 percent of men—but in jails, the gender difference in staff
“pressure” was not significant.86 In all carceral environments, most inmates, of
both sexes, who had had sex with staff said that they were pressured.
Furthermore, contrary to gender expectations, staff perpetrators were as
likely to use force against male victims as against women. More than 35 percent
of men and women in prison, and about 50 percent of jailed men and women,
said that their sex with staff had involved force or threats of force.87 Since these
percentages are considerably higher than the proportion of male victims who
reported any sex with male staff, at least some female staff perpetrators
apparently used force or threats of force to have sex with male inmates.
Finally, the BJS data with respect to physical injury caused by staff sexual
abuse do not support the conventional gender expectation that women’s sexual abuse
of men would be less injurious. In prisons, men and women reported about equal
rates of physical injury resulting from staff sexual abuse.88 In jails, men (whose
staff abusers were mostly women) reported significantly higher rates of physical
injury resulting from sexual victimization by staff: 17.4 percent of jailed men
reported injury from staff–inmate sexual victimization, compared to 7.5 percent of
jailed women (whose staff abusers were mostly men).89
These findings raise important questions about conventional gender expecta-
tions in the context of sexual assault. As mentioned above, only 31 to 36 percent
of male victims of staff sexual victimization reported any sexual abuse by male
perpetrators, and less than a fifth reported that all their staff perpetrators had
been male.90 Even on the improbable assumption that all sex between male staff
and male inmates involved force or threats of force, the BJS survey results suggest

86. Id. at 23 tbl.17. In jails, 70.1 percent of women who had had sex with staff said that it had been
“pressured,” compared to 61.7 percent of men. This gender difference was not statistically signif-
icant. Id.
87. See id. at 23 tbl.17 (showing that in prisons, 35.4 percent of men and 38.8 percent of women said
that sex with staff involved force or threats of force and that in jails, 51.4 percent of men and 47.7
percent of women reported that sex with staff involved force or threats of force, differences that were
not statistically significant).
88. See id. (finding that in prisons, women were considerably more likely than men to say they had been
physically injured by staff sexual victimization—19.2 percent of imprisoned women reported such
injury, compared to 9.3 percent of imprisoned men—but this difference was not statistically significant).
89. Id. Since overall injury rates from staff sexual victimization are low, it is conceivable that all or almost
all injuries resulting from staff sexual victimization were inflicted by male staff, and none by female
staff, but the data on pressure and force do not point toward this explanation: Women staff are clearly
implicated in at least some pressured and forcible sexual victimization. A breakdown of injury statis-
tics by gender of the staff perpetrator could resolve this issue, but none is provided in the BJS report.
90. See supra note 40.
1658 59 UCLA L. REV. 1630 (2012)

that a considerable amount of sex between female staff and male inmates is
physically forced, pressured, or demanded in exchange for favors or privileges.
The survey data suggest that women are perpetrators of a considerable amount
of sexual coercion of male victims, and that some of this coercion is violent.
As the BJS notes in its 2010 study, “Regardless of whether an inmate
reported being willing or unwilling, any sexual contact between inmates and staff
is illegal; however, the difference may be informative when addressing issues of
staff training, prevention, and investigation.”91 Recommendations for staff training,
prevention, and investigation may be inappropriate or even counterproductive
if they are based on categorical gendered assumptions, like those visible in prison
rape discourse, that staff–inmate sex is by definition willing when the officer is
female and the inmate male.

II. STEREOTYPE-CONFORMING ABUSE: MALE STAFF ABUSING

FEMALE INMATES

Despite the emergence of empirical evidence showing higher rates of sexual

abuse by other inmates than by staff, contemporary literature on women’s prisons
continues to focus disproportionately on sexual abuse by staff.92 This literature
typically cites only examples in which the staff perpetrators are male.93 By
contrast, only a handful of surveys or research articles have inquired about sexual
abuse by inmates in women’s jails or prisons.94
When incarcerated women are guarded by men, the risk of sexual abuse is
obvious to most commentators. Cristina Rathbone, for example, suggests: “Perhaps

91. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 7.

92. See supra note 6.
93. See supra note 6.
94. A 2006 victimization survey by Nancy Wolff and her coauthors surveyed twelve men’s prisons, one
sex offender treatment center for men, and one female prison in a single state. Nancy Wolff et al.,
Understanding Sexual Victimization Inside Prisons: Factors That Predict Risk, 6 CRIMINOLOGY &
PUB. POL’Y 535, 536 (2007); see also Leanne Fiftal Alarid, Sexual Assault and Coercion Among
Incarcerated Women Prisoners: Excerpts From Prison Letters, 80 PRISON J. 391 (2000); Kimberly R.
Greer, The Changing Nature of Interpersonal Relationships in a Women’s Prison, 80 PRISON J. 442, 442
(2000) (finding that interviews with women prisoners suggest the primary motivation for sex
between inmates is economic manipulation); Christopher Hensley et al., Inmate-to-Inmate Sexual
Coercion in a Prison for Women, 37 J. OFFENDER REHAB. 77 (2003); Angela Pardue et al., Sex and
Sexuality in Women’s Prisons: A Preliminary Typological Investigation, 91 PRISON J. 279, 282 (2011)
(providing a five-type taxonomy of sexual activity in women’s prisons: “suppressed sexuality, autoerot-
icism, true homosexuality, situational homosexuality, and sexual violence”); Cindy Struckman-Johnson
& David Struckman-Johnson, Sexual Coercion Reported by Women in Three Midwestern Prisons, 39 J.
SEX RES. 217 (2002).
Engendering Rape 1659

there is something inevitable about guard-on-inmate sex when you have a building
full of constitutionally disempowered women being ruled over by uniformed male
guards.”95 Because this risk is so apparent, most commentators urge that institu-
tions should take it into account by banning male staff from contact positions with
women prisoners, or by restricting the authority of male correctional officers to
search or supervise women.96 Thus the 2012 PREA regulations protect women
and juvenile detainees, but not men, against physical “pat” searches by staff of the
opposite sex.97
Qualitative and anecdotal findings suggest that many male staff members do
sexually abuse women when allowed this kind of access, and that restricting it
may reduce sexual abuse. 98 Restrictions on cross-gender staffing might have
protected many of the approximately two-thirds of female victims whose staff
perpetrators were exclusively male.99 It would not, however, protect the 28 to
38 percent who were sexually abused either by women only, or by both men and
women staff. 100 The conventional gender frame for this problem generates a

95. RATHBONE, supra note 6, at 45.

96. See, e.g., NPREC REPORT, supra note 1, at 215 (making recommendations on cross-gender
staffing); see also Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C,
U.N. Doc. E/3048 (July 31, 1957); Buchanan, Impunity, supra note 6. Silja Talvi’s chapter
on “Abuse Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C, U.N. Behind the
Wall” typifies this narrative approach. TALVI, supra note 6, at 54–78. She portrays male staff as
the perpetrators and female staff as the solution to custodial sexual abuse. In all her examples,
prison staff members who abuse women are male. She quotes Trine Christensen, an Amnesty
International human rights researcher:
“[T]here are ways to prevent sexual abuse. . . . Always have men accompanied by
women; never allow them to do crossgender pat-downs; never allow them unsu-
pervised access to women’s living quarters. . . . [T]he fact is that when you have
situations like this[,] . . . having unsupervised males in female facilities and giving
them full access to females at night, or in intimate situations [such as when women] use
showers or the bathroom—[these are] situations that are conducive to sexual abuse.”
Id. at 57–58 (some alterations in original) (internal quotation marks omitted).
97. National Standards to Prevent, Detect, and Respond to Prison Rape; Final Rule, 77 Fed. Reg.
37,106, 37,108 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115) (banning cross-gender searches
in women’s and juvenile facilities, except in “exigent circumstances or when performed by medical
practitioners, in which case the [cross-gender] searches must be documented”).
98. See, e.g., HUMAN RIGHTS WATCH, NOWHERE TO HIDE, supra note 6 (“In addition to engaging
in sexual relations with prisoners, male officers used mandatory pat frisks or room searches to grope
women’s breasts, buttocks and vaginal areas and to view them inappropriately while in a state of
undress in the housing or bathroom areas.”); NPREC REPORT, supra note 1, at 62–63.
99. On the other hand, most state prison systems already restrict cross-gender “pat” searches of women
inmates (although the federal system does not). National Standards to Prevent, Detect, and Respond
to Prison Rape; Final Rule, 77 Fed. Reg. at 37, 132. This new rule would presumably have little
effect in those facilities.
100. See supra note 14.
1660 59 UCLA L. REV. 1630 (2012)

solution that responds only to the stereotype-conforming part of the harm, ignor-
ing harms that do not fit the stereotype.
Legal and social commentators readily identify the coercion inherent in sex
between male staff and female inmates. When women inmates claim that they
are sexually exploiting male staff by exchanging sex for food, goods, contraband,
or privileges, many analysts are skeptical. They point out that such an exchange
between prisoner and guard is so unequal that it ought not to be understood as
truly consensual.101
By contrast, many commentators see it as obvious that women’s supervision
of male inmates does not pose a similar risk of sexual abuse. For example, the
National Prison Rape Elimination Commission (NPREC) notes, “Many experi-
enced corrections professionals believe . . . that women officers have a calming
effect in male units.”102 Some observers suggest that the presence of female staff
may “humanize” the men’s prison environment, so that incarcerated men do not
require the protections against cross-gender search that are routinely granted to
women.103 Thus, as Brenda Smith notes in this Issue, women correctional officers

101. See, e.g., Girshick, supra note 6, at 108–10. Girshick notes that officers have access to inmates’ files
and can find out about inmates’ vulnerability and past abuses. As abuse survivors, many inmates are
accustomed to sexual exploitation or do not know how to resist or complain about sexual abuse.
Additionally, staff may assign an inmate to administrative segregation for displeasing them.
Furthermore, the grievance process is “more likely to lead to harassment and retaliation than redress
for a wrong done to [the prisoner].” Id. at 109. Retaliation may include solitary confinement, being
labeled a snitch, being handcuffed for repeated interrogation, repeated cell searches, lost work
assignments, and being targeted for disciplinary reports. See also U.N. Comm’n on Human Rights,
Integration of the Human Rights of Women and the Gender Perspective: Violence Against
Women, supra note 6 (noting that “women prisoners sometimes accept sexual advances to ensure
their access to phone calls, visits, or basic supplies such as food, shampoo, or soap”); RATHBONE,
supra note 6, at 59–62; TALVI, supra note 6, at, 69 (observing that women in ostensibly willing rela-
tionships with male guards “were willing to ignore the obvious fact that they were being taken
advantage of in exchange for items they could buy easily and cheaply outside prison gates”); Buchanan,
Impunity, supra note 6, at 56.
102. NPREC REPORT, supra note 1, at 63.
103. See Weatherall v. Canada (Att’y Gen.), [1993] 2 S.C.R. 872, 878 (upholding constitutionality of
cross-gender pat-searches of male prisoners in part on the basis that “[t]he important government
objectives of inmate rehabilitation and security of the institution are promoted as a result of the
humanizing effect of having women in these positions”); see also NPREC REPORT, supra note 1, at
63; LYNN E. ZIMMER, WOMEN GUARDING MEN 151–53 (1986). Brenda Smith points out that
institutional defenses to male prisoners’ Equal Protection challenges to cross-gender search rely on
the stereotypical assumption that “men do not experience trauma, threat, or embarrassment from
routine viewing or touching of their bodies by female staff in the same way women inmates would
experience that same conduct by male staff.” Smith, supra note 6, at 274. The PREA regulations’
prohibition of cross-gender search for women and young people, but allowing it for incarcerated
Engendering Rape 1661

become “utility players”104 assigned to guard both men and women.

Like the legal and social commentary, empirical research on the facts and
incidence of prison rape also tends to focus on the kinds of abuse that conform to
stereotype, while overlooking the kinds that do not. For example, the extensive
research funded by the U.S. Department of Justice pursuant to PREA has
included a large study that sought to analyze the gender dynamics of physical and
sexual abuse in women’s prisons, and to offer gendered responses to it.105 In their
study, Gendered Violence and Safety: A Contextual Approach to Improving Security in
Women’s Facilities (the Owen Report), Barbara Owen and her team of researchers
sought to “investigate[] the context of gendered violence and safety in women’s
correctional facilities,” and concluded that “[t]he data support our original hypoth-
esis that sexual violence is embedded in the broader context of violence and safety
and that this context is gender-based. . . . We also suspected that prior victimization
often contributes to a cycle of future and repeated victimization among women.”106
The results of the Owen Report did not support the stereotype-conforming
expectation that sexual violence by male staff is one of the most common or
pressing forms of violence in prisons for women. This study involved inmate
focus groups, which discussed many aspects of violence in women’s prisons. The
participants did not identify staff sexual misconduct as one of the most urgent
priorities for violence reduction. Rather, the women expressed much more
concern about physical harm from inadequate health care, hygiene, and nutrition
than from physical or sexual violence.107 “Staff sexual misconduct was a signif-
icant theme in the inmate interviews but most was at the lower end of the
continuum, involving verbal and other forms of harassment. . . . Our focus groups
with female inmates provided few descriptions of sexual violence perpetrated by

men, enact a similar presumption. National Standards to Prevent, Detect, and Respond to Prison
Rape; Final Rule, 77 Fed. Reg. 37,106, 37,310 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115).
104. Brenda V. Smith, Uncomfortable Places, Close Spaces: Female Correctional Workers’ Sexual Interactions
With Men and Boys in Custody, 59 UCLA L. REV. 1690, 1698 (2012).
105. OWEN REPORT PART I, supra note 6. A smaller study also explored physical violence among
inmates in women’s prisons, and mentioned sexual violence in passing. See M. Dyan McGuire,
Doing the Life: An Exploration of the Connection Between the Inmate Code and Violence Among Female
Inmates, 2011 J. INST. JUST. INT’L STUD. 145 (a qualitative study of the cultural values underlying
physical violence in two Missouri women’s prisons based on interviews with fifty-two women).
106. OWEN REPORT PART I, supra note 6, at v.
107. “Health concerns eclipsed worries about sexual or physical safety in every focus group and these
concerns were related to lack of medical care and cleaning supplies, deteriorating physical plant
conditions, substandard food, and the lack of rehabilitative programs. Idleness and an inability to
earn money were also said to undermine women’s sense of well­being.” Id. at 52–53.
1662 59 UCLA L. REV. 1630 (2012)

staff.”108 The main concerns identified by these incarcerated women did not reso-
nate with gender stereotype, and fit uneasily with a research literature that identifies
sexual abuse by male staff as a preeminent concern about women’s incarceration.
Rather than presenting this somewhat counter-stereotypical finding at face
value, the Owen Report deployed an interpretive shift that helped reconcile its
results with stereotypical expectations.109 On this question, unlike any of the
other kinds of violence Owen’s focus groups explored, the Owen Report
supplemented its focus group findings with a four-page “content analysis” section
appended to its chapter on sexual abuse, which provided what the Report called
its “most serious and significant detail about staff sexual misconduct.”110 This
section summarized allegations received earlier by prisoners’ rights advocacy group
Stop Prisoner Rape (now Just Detention International). In each of the Stop
Prisoner Rape examples, if the gender of the staff perpetrator was identified, he
was always a man.111 In no other chapter (for example, the chapter on physical
violence by inmates or staff, or sexual violence among inmates) did the Owen
Report supplement its findings with a “content analysis” documenting others’
findings of abuse more severe than that disclosed in its focus groups.
It would be reasonable for Owen and her team to suspect that inmates who
had experienced more serious sexual assaults by staff might hesitate to disclose it
in the group interviews they conducted. But the incentives for such hesitation
would seem to apply as much to sexual assaults by other inmates as by staff. As
with sexual abuse by staff, the Owen respondents’ accounts of sexual abuse by
other inmates did not suggest high rates of violent rape, and the sexual abuse they
did describe tended to take forms that were less severe: “mild forms of sexual coer-
cion, involving flattery, verbal pressure, and unwanted touching,” as well as “[v]er-
bal threats of sexual violence.”112 Owen’s respondents reported that “[a]t the most

108. Id. at 85.

109. As I have noted previously, Wolff used a similar interpretive technique with respect to a different
stereotype. Although her own findings were inconsistent with the notion that white inmates of
men’s prisons are disproportionately raped by black inmates (she found no statistically significant
racial variation in sexual victimization by inmates), she cited two thirty-year-old studies in support of
a claim that “inmate-on-inmate sexual victimization has an interracial bias, with victims most likely
being White and sexual aggressors most likely being Black.” Wolff et al., supra note 15, at 836; see
also Buchanan, Our Prisons, Ourselves, supra note 4, at 54 n.312.
110. BARBARA OWEN ET AL., GENDERED VIOLENCE AND SAFETY: A CONTEXTUAL APPROACH
TO IMPROVING SECURITY IN WOMEN’S FACILITIES PART II OF III, FOCUS GROUP
METHODOLOGY AND FINDINGS 85 (2008) [hereinafter OWEN REPORT PART II].
111. See id.
112. OWEN REPORT PART I, supra note 6, at 42.
Engendering Rape 1663

serious end of the coercion continuum, forced sex occurs. Most women had only
heard of rapes or assaults in prison; very few had seen a rape personally.”113 The
Owen Report did not supplement these findings with evidence of more severe
sexual abuse that had occurred elsewhere, as it had done with sexual abuse by staff.
By contrast, the Owen Report discussion arguably minimized the impor-
tance of sexual abuse by inmates, characterizing it as avoidable violence linked to
abusive “personal relationships.”114 “Most women indicated that they eventually
learned how to avoid these situations and those women known to be sexually
aggressive. Accounts of sexual violence between female inmates were almost
always grounded in personal relationships, following the pattern of interpersonal
violence in the community.”115 In contrast to its enhancement of findings about
stereotype-conforming sexual abuse by male staff, the Owen Report spent less
than half a page describing the less stereotype-conforming relationship violence it
characterized as “the most serious”: sexual abuse committed by fellow inmates.116
Although sexual abuse in men’s facilities is also linked to gender-role expec-
tations117 and correlates strongly with prior victimization,118 no similar empirical
study of the gender dynamics of physical or sexual abuse has been conducted in
institutions for men.119 As I have argued previously, sociolegal scholarship rarely
frames sexual abuse in men’s prisons as a practice of gender role enforcement,
focusing more often on stereotypical racial dynamics.120 Prison rape discourse

113. Id. at 45.

114. Id. at 42.
115. Id.
116. Id. at 45.
117. See generally BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 18 tbl.12, 91 app. tbl. 10;
Buchanan, Our Prisons, Ourselves, supra note 4; Sabo et al., supra note 22.
118. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 18 tbl.12, 91 app. tbl. 10 (finding that
the second-most-powerful predictor of sexual victimization was nonstraight sexual orientation).
119. Physical violence among criminalized men is unremarkable in light of gender stereotypes that frame
men, but not women, as aggressive and violent. As Angela Harris has recently observed, “We are
familiar with the use of ‘gender violence’ to mean male violence against women. . . . Less well recog-
nized is the fact that male-on-male violence is also gender violence.” Angela P. Harris, Heteropatriarchy
Kills: Challenging Gender Violence in a Prison Nation, 37 WASH. U. J.L. & POL’Y 13, 16–17 (2011)
(footnote omitted).
120. But see Buchanan, Our Prisons, Ourselves, supra note 4 (offering empirical challenge to black-on-white
stereotype of sexual abuse among male inmates, and offering critical gender analysis of male inmate
sexual abuse); see also Robinson, supra note 4 (offering critical race and gender analysis of segregation
of LGBT inmates as ostensible protection against sexual abuse); Elizabeth F. Emens, Inside Out, 2
CALIF. L. REV. CIRCUIT 95 (2011) (a supportive commentary on Robinson, id.); Arkles, supra
note 4 (offering critical gender analysis of sexual vulnerability of transgendered and gender-
nonconforming inmates to institutional abuse); Sabo et al., supra note 22 (offering critical mascu-
linities analysis of prison sexual abuse).
1664 59 UCLA L. REV. 1630 (2012)

thus tends to frame women’s experiences as gender-not-race, and men’s as race-

not-gender.
Thus, while scholarship, advocacy, and correctional discourse with respect to
staff sexual abuse in women’s prisons almost always identify perpetrators’ gender
as male, this literature does not typically investigate or discuss the racial distribu-
tion of abusive male staff or female victims.121 In contrast to the racialized frame
for inmate rape in men’s prisons, violence in women’s prisons is not typically
framed as racially motivated. While many commentators recognize that gender
and race structure women’s likelihood of imprisonment and inform legal and
institutional indifference to their fate while in prison,122 race is not generally
presented—as it is with sexual abuse in prisons for men—as a factor that influ-
ences the abuser’s selection of victims.123 To the limited extent that the sociolegal
literature has addressed physical violence in women’s facilities, race has been
largely absent from the analysis.124
I am not suggesting here that race ought to be an important focus of prison
rape discourse about sexual abuse by staff in women’s prisons; the racial data
available from the BJS reports do not suggest that race is an important factor

121. See, e.g., U.N. Comm’n on Human Rights, Integration of the Human Rights of Women and the
Gender Perspective: Violence Against Women, supra note 6; AMNESTY INT’L, NOT PART OF MY
SENTENCE, supra note 6; HUMAN RIGHTS WATCH, ALL TOO FAMILIAR, supra note 6;
HUMAN RIGHTS WATCH, NO ESCAPE, supra note 4; NPREC REPORT, supra note 1. In the rare
instances in which the race of a victim is mentioned, she tends to be white. See, e.g., RATHBONE,
supra note 7, at 42–65 (describing the race of two victims of staff sexual abuse, Denise and Julie, as
white, while the race of other victims is unidentified); McGuire, supra note 105, at 150.
122. See, e.g., BARBARA BLOOM ET AL., NAT’L INST. OF CORR., GENDER-RESPONSIVE STRATEGIES:
RESEARCH, PRACTICE, AND GUIDING PRINCIPLES FOR WOMEN OFFENDERS (2003), available
at [Link] [hereinafter BLOOM ET AL.,
GENDER-RESPONSIVE STRATEGIES]; BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER
ENTRAPMENT OF BATTERED BLACK WOMEN (1996) (arguing that poverty, racism, violence,
and addiction entrap black women in criminal activity); TALVI, supra note 6, at 58; YOUNG &
REVIERE, supra note 6; Buchanan, Impunity, supra note 6; Davis, supra note 6, at 346 (noting that black
women were excluded from carceral efforts to “domesticate” criminalized white women); Miller,
supra note 6, at 873–74 (noting that racial, class, and sexual identities of incarcerated women and
custodial staff may influence their perceptions of privacy).
123. See supra note 6. But see WARREN REPORT, supra note 5, at 146–47 (finding that among women
inmates, whites were overrepresented relative to black and other women in all measures of prison
sexual activity, including predation, victimization, bartered sex, and consensual sex); Miller, supra
note 6, at 886–87 (noting that in upstate New York, the cultural meaning of sexual “abuses of
authority” is shaped by the contrast between the mainly poor, black, urban women, and the mainly
rural, white guards).
124. See, e.g., BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES, supra note 122, at 25–28, 60, 118–
23 (providing no mention of race in discussions of staff sexual misconduct and of policy reforms to
address it); WARREN REPORT, supra note 5; OWEN REPORT PART I, supra note 6; McGuire, supra
note 105 (offering no racial analysis of physical violence in women’s prisons).
Engendering Rape 1665

driving sexual abuse in jails or prisons for men or women,125 although the BJS’s
2008 survey of former state prison inmates, did find some significant racial dif-
ferences among women.126 The absence of race from discourse about staff sexual
abuse in women’s prisons is notable largely because it contrasts with the centrality
of race in discussions about sexual abuse by inmates in facilities for men.127 The
dominant expectation in prison rape discourse has been that race is “not critical to
prison culture” among women, while racial and gang identity is “the basis for prison
social organization” among men.128
The questions asked in the BJS surveys correspond to conventional gendered
assumptions about the kinds of sexual abuse that occur in men’s and women’s
prisons. To the extent that the perpetrators of sexual abuse in women’s prisons are
expected to be male staff, conventional gender expectations provide a presumptive
explanation: feminine vulnerability to masculine aggression. On the other hand,
because racial violence in prison is typically—and stereotypically—understood

125. The available data on the racial distribution of sexual abuse in women’s prisons do not suggest that
sexual abuse is often targeted by race. The BJS surveys do not ask inmates about the racial ascription
of sexually abusive staff, so racial findings about staff-perpetrated victimization are difficult to
interpret. See infra note 130. With respect to inmate-on-inmate sexual abuse, the BJS reports on the
National Inmate Surveys do not break down their racial findings by gender, leaving racial patterns in
women’s facilities unclear. See BECK & HARRISON, LOCAL JAILS, supra note 8, at 6 tbl.7 (presenting
prevalence of sexual abuse by race and gender separately, without breaking down gender findings by
race or vice versa); BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 12 tbl.6 (same). But
see BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8 (discussed infra note 126).
Wolff found that race was not a significant predictor of sexual abuse by inmates in the women’s
prison she studied. Wolff et al., supra note 94, at 546–47, 551. Barbara Owen, whose 2008 study
of violence in women’s facilities asked inmates about racial and gang dynamics, found that although
some younger women were involved with gangs, either individually or through their male partners,
fights resulted from interpersonal dynamics rather than gang affiliation. Owen also found “an
element of racial tension in women’s prisons, but by no means to the same degree as in prisons
for men.” OWEN REPORT PART II, supra note 110, at 45.
126. The BJS survey of former state prisoners found no significant racial differences in the prevalence of
inmate-on-inmate sexual victimization among women, see BECK & JOHNSON, FORMER STATE
PRISONERS, supra note 8, at 16 tbl.8. The only significant racial difference in the prevalence of staff-
on-inmate sexual victimization was that multiracial women were at higher risk than black, white,
Latina or “Other” women. Id. The BJS’s “final multivariate logistic regression model,” though, did
reveal significant racial differences in risk of sexual victimization: Controlling for other factors, this
analysis found that black women inmates were at significantly lower risk of inmate-on-inmate sexual
victimization than were their white, Hispanic, or multiracial counterparts (calculating predicted
percent victimization at 2.8 percent for black women, 3.9 percent for white women, 4.6 percent for
Latinas and 8.7 percent for women of “two or more races”), and confirmed that multiracial women
inmates were at significantly higher risk of sexual abuse by staff, compared to other ethnic groups (6.1
percent, compared to less than 2 percent for all other racialized groups of women). Id. at 28 tbl.16.
127. See generally Buchanan, E-race-ing Gender, supra note 4; Buchanan, Our Prisons, Ourselves, supra note 4.
128. See, e.g., BARBARA OWEN, “IN THE MIX”: STRUGGLE AND SURVIVAL IN A WOMEN’S PRISON
151 (1998).
1666 59 UCLA L. REV. 1630 (2012)

to involve male inmates, specifically black and Latino criminal gang members,129
conventional wisdom would suggest that race is relevant to sexual abuse by inmates.
Consistent with these race and gender assumptions, the BJS surveys ask victims
of sexual abuse about the perpetrator’s racial ascription and Hispanic origin if the
perpetrator is a fellow inmate, but do not ask for the race or ethnicity of staff perpe-
trators.130 As a result, if sexual abuse by staff is racialized, the BJS surveys do not
allow scholars, advocates, correctional administrators, or policymakers to see its

129. See Johnson v. California, 543 U.S. 499, 502 (2005) (California racially segregated institutions for
new or transferred inmates, but not females; its “rationale for this practice is that it [was] necessary to
prevent violence caused by racial gangs”); Kathleen Engel & Stanley Rothman, The Paradox of Prison
Reform: Rehabilitation, Prisoners’ Rights, and Violence, 7 HARV. J.L. & PUB. POL’Y 413, 435 (1984)
(attributing prison violence to the rise of racial gangs); Craig Haney, Counting Casualties in the War
on Prisoners, 43 U.S.F. L. REV. 87, 127–28 (2008) (arguing that staff enforcement of racial categori-
zation and staff encouragement of racial hostility stoke racial hatred and violence in prisons); James
E. Robertson, “Separate but Equal” in Prison: Johnson v. California and Common Sense Racism, 96 J.
CRIM. L. & CRIMINOLOGY 795 (2006) (challenging the racism of the “common sense” assumption
that segregation of men’s prisons will suppress racial violence); Hans Toch & James R. Acker, Racial
Segregation as a Prison Initiation Experience, 40 CRIM. L. BULL. 466 (2004) (challenging the empir-
ical basis for the assumption that male prisoners cannot live together peacefully unless segregated);
Chad Trulson & James W. Marquart, The Caged Melting Pot: Toward an Understanding of the
Consequences of Desegregation in Prisons, 36 LAW & SOC’Y REV. 743 (2002) (comparing the rates of
violence in racially segregated and racially integrated double cells in two Texas prisons for men); Ahmed
A. White, The Concept of “Less Eligibility” and the Social Function of Prison Violence in Class Society, 56
BUFF. L. REV. 737, 767 (2008) (attributing prison violence to racial gangs); Rachel C. Grunberger,
Note, Johnson v. California: Setting a Constitutional Trap for Prison Officials, 65 MD. L. REV. 271, 294
(2006) (arguing in favor of racial segregation on the basis that black, Latino, and white “[g]ang members
in the California prison system routinely murder and rape other prisoners who are not gang mem-
bers”); SpearIt, Note, Manufacturing Social Violence: The Prison Paradox & Future Escapes, 11 BERKELEY
J. AFR.-AM. L. & POL’Y 84, 110 (2009) (noting that racial segregation in California men’s prisons
“often aids in the construction of super-gangs”); Sarah Spiegel, Note, Prison “Race Riots”: An Easy
Case for Segregation?, 95 CALIF. L. REV. 2261, 2285 (2007) (challenging judicial deference to lockdown
and to adverse treatment of “Southern Hispanics” as a method of restraining individual violence at
Pelican Bay, a prison for men, as well as the dominant discourse on prison race riots and prison racial
violence that frames “prison violence as stemming from the personal prejudices of individual inmates”);
An Update on the California Prison Crisis and Other Developments in State Corrections Policy, 14 BERKELEY
J. CRIM. L. 143, 164 (2009) (noting that, despite Johnson v. California and a state desegregation plan,
California prisons for men remain racially segregated).
130. BJS, SURVEY YEAR 2, supra note 37, at A11–13, D2, F7, F7A, G28a, 29a. The survey inquires
into the respondent’s gender, race, and Hispanic origin; the race and Hispanic origin of the inmate
assailant; and the gender of the staff perpetrator. But the survey does not inquire into the race or
Hispanic origin of the staff perpetrator. No questions are asked about the gender of inmate perpe-
trators, presumably because prisons and jails are segregated by gender. Id.; see also BJS, SURVEY
YEAR 1, supra note 37, at A5–7, D2, F7–F7a, G18. On the other hand, penal institutions do tend
to collect such data. See, e.g., GUERINO & BECK, CORRECTIONAL AUTHORITIES, 2007–2008,
supra note 68, at 21 app. tbls.13–14 (showing that of “substantiated” perpetrators of staff sexual
misconduct, about 63 percent were white; 24 percent were black; 9 percent were Hispanic; and 4
percent identified as Other, including American Indians, Alaska Natives, Asians, Native Hawaiians,
and Other Pacific Islanders).
Engendering Rape 1667

dynamics. I have not been able to find any systematic academic investigation of the
racial dynamics of physical or sexual violence in women’s prisons. In general, aca-
demics, officials, and prison reformers typically analyze what happens to impris-
oned women as feminized harm, understood in terms of gender, not race.131

III. COUNTER-STEREOTYPICAL ABUSE: WOMEN AS PERPETRATORS

Women’s perpetration of sexual abuse confounds conventional gender expec-

tations, especially when the victims are men. Essentialized gender stereotypes
frame women as passive, rather than aggressive; vulnerable, rather than violent.
Racialized gender stereotypes frame black women as stronger, more masculine,
more sexual, and more physically aggressive than white women.132 Although
these stereotypes could plausibly be deployed to portray black women as posing a
sexual threat, historian Regina Kunzel has noted that prison sex research has tradi-
tionally portrayed the supposed masculinity of black women as alluring, rather
than threatening, to white women inmates (who, as working-class criminals, hardly
fit idealized norms of femininity themselves).133 Twentieth-century researchers
read “white women’s desire for black women in particular, as essentially hete-
rosexual,”134 asserting that white women “associat[ed] masculine strength and
virility with dark color.”135 In maintaining this heterosexist interpretation of sex

131. But see Buchanan, Impunity, supra note 6; Davis, supra note 6; Miller, supra note 6; Smith, supra
note 6; Jenni Vainik, The Reproductive and Parental Rights of Incarcerated Mothers, 46 FAM. CT.
REV. 670, 672–74 (2008).
132. See, e.g., Regina Austin, Sapphire Bound!, 1989 WIS. L. REV. 539, 540, 550–58 (noting that black
women are stereotyped as hypersexual as well as “tough, domineering, emasculating, strident, and
shrill”); Philip Atiba Goff et al., “Ain’t I a Woman?” Towards an Intersectional Approach to Person
Perception and Group-Based Harms, 59 SEX ROLES 392, 394 (2008) (finding that black women are
perceived as more masculine than white women, and that “stereotypical blackness” is associated with
masculinity for both black men and black women).
133. See, e.g., REGINA KUNZEL, CRIMINAL INTIMACY: PRISON AND THE UNEVEN HISTORY OF
MODERN AMERICAN SEXUALITY 129–32 (2008) (noting that twentieth-century researchers,
determined to read women’s same-sex sexual activities through a heteronormative lens, interpreted
relationships between white and black women as consensual and traditional, with supposedly mas-
culine black women replacing absent white men); see also NICOLE HAHN RAFTER, PARTIAL
JUSTICE: WOMEN IN STATE, PRISONS 1800–1935, at 153–54 (1985) (noting that New York
prison administrators racially segregated a women’s prison to prevent inmates from acting on the
“peculiar attraction that has been found to exist between colored and white women in confinement”
and prevent “the unfortunate attachments formed by the white women for the negroes” (internal
quotation marks omitted)).
134. KUNZEL, supra note 133, at 29.
135. Id. at 249 n.63.
1668 59 UCLA L. REV. 1630 (2012)

among incarcerated women, Kunzel notes, these researchers had to disregard

what the women had actually said about it. Many of the imprisoned women
told researchers they preferred sex with women to sex with men, and, Kunzel
observes, they reported far more “pre-prison lesbian experience” than researchers
were comfortable acknowledging.136 The researchers’ racialized interpretation of
the women’s experiences—arguably itself a form of stereotype reconciliation—
“tamed [researchers’] anxieties about race mixing and lesbianism,” allowing them
to reassure themselves that imprisoned “white women were not really lesbians, for
they were attracted to men, for whom Black women temporarily substituted.”137
Familiar racialized gender tropes do not frame black women—or any
women—as rapists, as they do black men. The notion that black male criminals—
stigmatized inside and outside prison as hypermasculine rapists138—might be
sexually abused by law-enforcing women contravenes every intuition race and
gender stereotypes have to offer. I do not argue here that the gender dynamics of
sexual abuse by staff are the same in men’s and women’s prisons—or, for that
matter, that they are different. The available evidence does not allow us to know
what is really going on.
Still, in spite of mounting evidence of female perpetration, Janet Warren
recently observed that “[r]esearch on male sexual activity in prisons has primarily
focused on sexual coercion whereas the research on female sexual activity in pris-
ons has primarily focused on consensual sex. . . . [I]t is difficult to determine
whether these differences in research orientation reflect reality or whether they
reflect researchers’ personal attitudes toward sex in prison.”139 In this Part, I dem-
onstrate that the gaps and elisions in prison rape discourse conform to conventional
gender expectations by obscuring sexual abuse perpetrated by women. Moreover,
scholars who acknowledge counter-stereotypical findings seem to rely on unexa-
mined assumptions about romantic relationships to reconcile that abuse with
conventional gender expectations.

136. Id. at 130. “The best predictor of women’s participation in homosexuality during incarceration,
these investigators found, was previous homosexual experience,” contradicting researchers’ conclu-
sions that women’s same-sex sex was “essentially heterosexual.” Id. at 131.
137. Id. at 29, 128.
138. See, e.g., GAIL BEDERMAN, MANLINESS & CIVILIZATION: A CULTURAL HISTORY OF GENDER
AND RACE IN THE UNITED STATES, 1880–1917, at 45–76 (1995); Buchanan, Our Prisons,
Ourselves, supra note 4; N. Jeremi Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the
Bestial Black Man, 25 CARDOZO L. REV. 1315 (2004).
139. WARREN REPORT, supra note 5, at 19.
Engendering Rape 1669

A. Sexual Abuse by Inmates in Women’s Prisons

Despite repeated and consistent survey findings that incarcerated women

sexually victimize fellow inmates at much higher rates than men do,140 academic
and correctional literature on sex in women’s prisons has tended to focus on consen-
sual sex.141 Despite indications that sex among incarcerated women often involves
“subtle coercion and cooptation, the fuzzy gray area between consensual and
coerced sex inside of prison,”142 this literature tends to gloss over sexual coercion
unless it is by male staff.
Recently, a few commentators have noted the BJS findings of women’s
disproportionate involvement as inmate perpetrators of sexual abuse, but they have
not explored it. Dyan McGuire, for example, has noted, “While it has historically
been assumed that female inmates were non-violent, recent empirical research
documenting the existence of significant violence among female inmates makes
continued belief in such assumptions untenable.”143 But McGuire does not ana-
lyze the role of gender expectations in obscuring this reality.144 Just Detention
International (JDI), likewise, recently noted that, “women and girls in detention fre-
quently are [sexually] abused by other inmates.”145 However, JDI did not ela-
borate on the dynamics of this abuse, simply noting that inmate-on-inmate sexual
abuse and sexual abuse against nonstraight and gender-nonconforming women
were “trends that need to be further examined.”146
Conventional gender expectations do not predict that normal, feminine
women would commit sexual abuse, although criminal women might be imagined
to be more likely to deviate from that norm than (presumptively law-abiding)
female staff are. Conventional gender stereotypes can be stretched to make sense
of consensual sex between women inmates: By breaking the law, women prisoners

140. See supra note 44.

141. GAES & GOLDBERG, supra note 32, at 27; WARREN REPORT, supra note 5, at 19 (revealing
that research on sexual activity in women’s prisons has “primarily focused on consensual sex”); see
also Joanna E. Saul, Of Sexual Bondage: The “Legitimate Penological Interest” in Restricting Sexual
Expression in Women’s Prisons, 15 MICH. J. GENDER & L. 349 (2009); Smith, supra note 45, at 233
(noting that prisoners’ interest in sexual expression is a way to maintain their humanity and some
control over a dehumanizing environment).
142. GAES & GOLDBERG, supra note 32, at 27; see also WARREN REPORT, supra note 5.
143. McGuire, supra note 105, at 147. While McGuire’s study was primarily concerned with physical
violence among women inmates, she noted “a gang rape where the victim was vaginally violated with
a variety of instruments.” Id. at 155.
144. McGuire’s study of physical violence among women prisoners mentions only one example of sexual
violence. Id.
145. JUST DETENTION INT’L, SUBMISSION TO SPECIAL RAPPORTEUR, supra note 6, at 5.
146. Id. at 1.
1670 59 UCLA L. REV. 1630 (2012)

have already transgressed traditional gender norms by acting in ways stereotypically

associated with men. Their unfeminine criminal behavior is arguably consistent
with the notion that such women might also transgress normative gender scripts
by having sex with other women.147 Conventional, heterosexist gender norms do
not make it difficult to imagine that criminalized women might be lesbians.148
Thus, stereotypical understandings do not require that sex among them would have
to be forced.
Research touching on sexual abuse among women inmates seems to support
the notion that sexual coercion among women is linked to emotional relationships.
Nonetheless, the researchers who find that connection neglect or decline to explore
it, echoing a longstanding legal tradition of treating relationship violence, and
same-sex relationship violence in particular, as less worthy of legal attention or
intervention than violence between strangers or platonic acquaintances.149
Journalist Silja Talvi, for example, interviewed roughly half a dozen women
prisoners who experienced pressure to enter a sexual relationship with either a
female prison guard or a dominant inmate. Dominant prisoners, she notes, are
usually known as “studs” or “aggressive butches,” 150 implying that straight-
identified women are disproportionately at risk of sexual abuse by more mas-
culine women. The BJS findings indicate, by contrast, that nonstraight women
may be disproportionately victimized by both inmates and staff.151

147. See, e.g., Mary Anne C. Case, Disaggregating Gender From Sex and Sexual Orientation: The Effeminate
Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 54–55 (1995) (explaining that unfeminine
behavior and demeanor are stereotypically conflated with lesbian identity); Andrew Koppelman, Why
Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197, 235
(1994) (noting that “sex-inappropriateness and homosexuality[] are virtually interchangeable, and each
is readily used as a metaphor for the other”); KUNZEL, supra note 133, at 134 (noting that twentieth-
century prison sex researchers equated “butch” gender presentation with “natural” lesbian identity).
148. Thus, “lesbian” sex among incarcerated women is a recurrent theme of pornography and of sensa-
tionalistic B-movies featuring “obligatory group shower scenes and catfights” exploited for their
appeal to a presumedly male heterosexual audience. KUNZEL, supra note 133, at 138–48, 147.
149. See, e.g., Reva B. Siegel, “The Rule of Love”: Wife-Beating as Prerogative and Privacy, 105 YALE L.J.
2117, 2150 (1996) (noting historical and contemporary resistance of police, prosecutors, and judges
to treating wife beating as a crime); Michelle Aulivola, Note, Outing Domestic Violence: Affording
Appropriate Protections to Gay and Lesbian Victims, 42 FAM. CT. REV. 162, 167 (2004) (noting lesser
protections accorded to lesbian and gay victims of partner violence); Satoko Harada, Comment,
Additional Barriers to Breaking the Silence: Issues to Consider When Representing a Victim of Same-Sex
Domestic Violence, 41 U. BALT. L.F. 150 (2011).
150. TALVI, supra note 6, at 64.
151. The BJS Former State Prisoners report found that bisexual women reported significantly higher rates
of sexual abuse by other inmates (about 18 percent) than either straight-identified or lesbian women
(each about 13 percent). BECK & JOHNSON, FORMER STATE PRISONERS, supra note 8, at 16
tbl.8. Lesbian and bisexual women reported rates of sexual victimization by staff that were more than
double the rates reported by straight-identified women: 8.0 percent for lesbians, 7.5 percent for bisexual
Engendering Rape 1671

Although Talvi contends that “[w]hen it occurs, female-on-female assault

should certainly be taken as seriously as any other type of assault,”152 she does not
describe any such incidents. Instead, she urges, “[I]t must still be emphasized
that the vast majority of sexual contact and overt sexual violence in women’s pris-
ons happens when male correctional employees decide to exploit the gender and
power differential inherent in a female custodial setting.”153 By contrast, Talvi
characterizes sexual relationships among prisoners as noncoercive, “tak[ing] the
form of supportive camaraderie and intimacy, helping women to survive the prison
experience.”154 While relatively healthy, nonabusive relationships among inmates
certainly provide support and comfort to the women who are in them, Talvi provides
no information about the circumstances in which her respondents say they were
sexually pressured by other women.
Several other commentators share this lack of curiosity about coercion in
relationships between incarcerated women. The Owen Report, for example, found
that accounts of sexual violence between female inmates were almost always
grounded in “personal relationships, following the pattern of interpersonal violence
in the community,”155 but it offered few, if any, illustrations of relationship
violence among inmates. In her study of the “inmate code” governing physical vio-
lence, Dyan McGuire found that her interview subjects thought that the “primary
cause of violence” among incarcerated women was what McGuire called “violence
associated with homosexual relationships.”156 Nonetheless, she omitted rela-
tionship violence from her analysis of women inmates’ “normative code,” without
explaining why.157 Similarly, Janet Warren’s 2010 report (the Warren Report)

women, and 3.7 percent for heterosexual women. Id.; see also NPREC REPORT, supra note 1, at 74
(noting lesbian and bisexual inmates were overrepresented among sexual abuse victims, and that male
staff may deliberately target nonstraight women for sexual abuse: NPREC reports that a staff rapist
guard told a lesbian inmate she “need[ed] a good man” before raping her).
152. TALVI, supra note 6, at 65.
153. Id.
154. Id. at 64.
155. OWEN REPORT PART I, supra note 6, at 42.
156. McGuire, supra note 105, at 149.
157. She characterized her study as an effort to identify “the most commonly mentioned causes of violence
that appeared to be associated with norms.” Id. at 154. Among her interviewees, she found that
“Janice Joplin, for example, cited snitching as the primary cause of fights between inmates after
violence associated with homosexual relationships.” Id. at 151 (emphasis added). “Siobhan sug-
gested that aside from violence associated with homosexual relationships,” disrespect was also a factor.
Id. at 149 (emphasis added). Another inmate, Maria, said that “failure to pay for drugs was the
primary cause of violence in her prison aside from violence associated with homosexual rela-
tionships.” Id. at 152 (emphasis added). Owen found that women in prison will not intervene in
relationship violence—surely a cultural norm that contributes to the persistence of such violence. See
OWEN REPORT PART I, supra note 6, at 39.
1672 59 UCLA L. REV. 1630 (2012)

found that sexual behavior in men’s and women’s prisons—whether predatory,

victimized, bartered, or consensual—was associated with what she characterizes
as “engagement in a turbulent set of interpersonal relationships that are sexual,
aggressive, and occasionally violent.”158 The finding that relationships among
incarcerated women may be more violent and less consensual than stereotype
would predict deserves more systematic exploration than it has received so far.

B. Sexual Abuse of Male Inmates by Women Staff

Sex between women staff and incarcerated men is almost entirely absent from
prison rape discourse. Many researchers and advocates note that staff members
may be complicit in sexual abuse by male inmates,159 and many articles on inmate-
on-inmate rape offer some brief discussion of sexual abuse committed by staff, but
the staff perpetrators who are described in these accounts are almost always male.160
For several years, scholars, advocates, and correctional administrators have
had access to information that suggested that women might be the usual perpe-
trators of sexual abuse in men’s prisons. For example, in spite of stereotypical
expectations, correctional authorities investigating allegations of prison rape have
often found more “substantiated” cases involving female than male staff; national
data to this effect have been publicly available since 2005.161 Correctional

158. WARREN REPORT, supra note 5, at 30.

159. See, e.g., ACLU National Prison Project and ACLU of Southern California, supra note 4, 3–8, 16
(reporting on staff perpetration of physical violence and staff facilitation of sexual violence by inmates,
but citing only one example of staff perpetration of sexual violence); HUMAN RIGHTS WATCH, supra
note 4; NPREC REPORT, supra note 1, at 46, 69–70, 78–79, 125–26, 129; STOP PRISONER
RAPE, STORIES FROM INSIDE, supra note 6, at 8 (“Although there are many different prisoner
rape scenarios, a majority of male victims are assaulted by one or several fellow inmates, often
with the complicity of corrections staff.”); Robert W. Dumond, The Impact of Prisoner Sexual
Violence: Challenges of Implementing Public Law 108-79—the Prison Rape Elimination Act of 2003, 32
J. LEGIS. 142, 150 (2006) (“[S]ome officers were less likely to respond to incidents involving
homosexual victims, or involving apparently consensual acts. Some officers even believed that
certain inmates deserved to be raped.” (footnote omitted)); Helen M. Eigenberg, Prison Staff and
Male Rape, in PRISON SEX: PRACTICE AND POLICY 49, 50 (Christopher Hensley, ed., 2002)
(characterizing staff as part of the prison rape problem because they facilitate rape by other
inmates, and stigmatize the victims); SpearIt, supra note 129; supra note 4 and accompanying text.
160. See supra note 4.
161. A 2004 BJS survey of correctional administrative records revealed surprisingly high levels of female
perpetration in allegations of staff sexual misconduct that prison investigators found to be “substan-
tiated.” ALLEN J. BECK & TIMOTHY A. HUGHES, NCJ 210333, SEXUAL VIOLENCE REPORTED
BY CORRECTIONAL AUTHORITIES, 2004, at 8 (2005), available at [Link]
content/pub/pdf/[Link] (noting that in state prisons, 67 percent of “substantiated” perpe-
trators of staff sexual misconduct were female, and 69 percent of “substantiated” victims were male,
although in jails, “substantiated” cases of staff sexual misconduct were overwhelmingly male-on-female);
Engendering Rape 1673

administrators, scholars and other commentators would not necessarily infer that
a gender imbalance in the minority of incidents that prison officials hear about and
deem to be “substantiated” would indicate much about the underlying incidence
of sexual abuse.162 But since the publication of the first methodologically rigorous
victimization surveys in 2007 and 2008, the results have consistently pointed to
women staff as the main perpetrators of sexual victimization in jails and prisons for
men.163 Still, until Brenda Smith’s article in this symposium, only one law review
article, a student note, has focused primarily on sexual victimization perpetrated
by female staff.164 Instead, when researchers encounter surprising, counter-
stereotypical results, their explanations reveal interpretive tendencies that reconcile
those results with stereotypical expectations.
The first such interpretive impulse is to ignore or dismiss the findings.
Human Rights Watch, for example, has issued two reports on sexual abuse by
staff in women’s prisons and one on sexual abuse by inmates in men’s prisons,165
but none on sexual abuse by staff in men’s prisons, or on sexual abuse perpetrated
by women (inmates or staff). In the preface to a 2001 report on men’s prisons, it
expressed some skepticism about male inmates’ allegations of sexual abuse by
staff: “As to custodial sexual misconduct against male prisoners, we decided not

see also BECK & HARRISON, CORRECTIONAL AUTHORITIES, 2005, supra note 69, at 1 (similar);
BECK ET AL., CORRECTIONAL AUTHORITIES, 2006, supra note 69, at 7 (similar); GUERINO &
BECK, CORRECTIONAL AUTHORITIES, 2007–2008, supra note 69, at 9 tbl.7 (similar).
162. But see Teichner, supra note 6, at 280–81 (drawing this inference based on the 2006 report, BECK
ET AL., CORRECTIONAL AUTHORITIES, 2006, supra note 69, and arguing for greater attention
to female-perpetrated staff sexual abuse in men’s prisons). In general, though, prison sexual abuse
is widely acknowledged to be underreported. See, e.g., NPREC Report, supra note 1, at 102, 118;
see also supra notes 65–70 and accompanying text. Of the allegations that prison staff do receive, only
a tiny percentage—often, less than 15 percent—are deemed by investigators to be “substan-
tiated.” Prison officials deem most prisoner allegations of sexual abuse to be either “unsubstantiated”
(unproven), or “unsubstantiated” (false), if they complete their investigations at all. See, e.g., GUERINO
& BECK, CORRECTIONAL AUTHORITIES, 2007–2008, supra note 69, at 5 tbl.5; BECK ET AL.,
CORRECTIONAL AUTHORITIES, 2006, supra note 69, at 3 tbl.2; BECK & HARRISON,
CORRECTIONAL AUTHORITIES, 2005, supra note 69, at 3. NPREC reports that substantiation
rates in some prison systems are even lower. NPREC REPORT, supra note 1, at 117–18. NPREC
attributes low substantiation rates to administrative shortcomings and well-founded prisoner fears
of exposure and retaliation, adding that there is “no reason to believe” that low substantiation rates
reflect a high level of false reporting of sexual abuse. Id. at 118. Thus, the BJS reports caution that
counts of reported or “substantiated” incidents “reflect variations in definitions, reporting capaci-
ties, and procedures for recording allegations, as opposed to differences in the underlying incidence
of sexual victimization.” GUERINO & BECK, CORRECTIONAL AUTHORITIES, 2007–2008, supra
note 69, at 2.
163. See supra notes 40–41.
164. See Teichner, supra note 6.
165. HUMAN RIGHTS WATCH, ALL TOO FAMILIAR, supra note 6; HUMAN RIGHTS WATCH, NO
ESCAPE, supra note 4; HUMAN RIGHTS WATCH, NOWHERE TO HIDE, supra note 6.
1674 59 UCLA L. REV. 1630 (2012)

to include that topic within the scope of this report even though some prisoners
who claimed to have been subject to such abuse did contact us. An initial review
of the topic convinced us that it involved myriad issues that were distinct from
the topic at hand, which is complicated enough in itself.”166 In response to its
notices seeking input from prisoners, no women alleged sexual abuse by other
inmates. Human Rights Watch concluded, “If the problem of prisoner-on-
prisoner sexual abuse exists in women’s institutions—a possibility we do not
exclude—it is likely to take somewhat different forms than in men’s prisons.”167
In spite of the release of survey findings confirming the prevalence of these counter-
stereotypical forms of prison sexual violence over the past five years, Human
Rights Watch has not yet investigated them.
More recently, a few commentators have acknowledged the BJS findings
that women staff may be having sex with incarcerated men. Robert Dumond,
for example, notes that “the large number of female prison staff responsible for
staff sexual misconduct against male inmates” offers “much food for thought,”168
but, like other observers, offers no analysis of this phenomenon.169
A second interpretive impulse that tends to reconcile unexpected findings
with gendered expectations is to doubt the survey results. The BJS’s initial response
to its counter-stereotypical findings about staff sexual abuse was to question them.
It reported on the 2007 NIS:
Nearly 62% of all reported incidents of staff sexual misconduct
involved female staff with male inmates; 8% involved male staff with
female inmates. Female staff were involved in 48% of incidents reported
by male inmates who said they were unwilling and in 79% of incidents
with male inmates who said they were willing. In an effort to better
understand the allegations of staff sexual misconduct, the 2008 NIS
will include questions to determine how often sexual contact reported
as unwilling occurred in the course of pat downs or strip searches.170
Could male prisoners be reporting routine physical or strip searches as sexual
misconduct?171 The results of the most recent BJS survey suggest that this does

166. HUMAN RIGHTS WATCH, NO ESCAPE, supra note 4, at xvi.

167. Id. at xvii.
168. Dumond, supra note 159, at 158.
169. Id.; see also JUST DETENTION INT’L, supra note 26; Thompson, supra note 4, at 133–34.
170. BECK & HARRISON, LOCAL JAILS, supra note 8, at 7.
171. The forms of pat, strip, and body searches that are routinely used in U.S. prisons are excluded by
the BJS from its definition of staff sexual misconduct, even though they involve touching that can
fairly be regarded as degrading and sexually abusive. See supra note 31.
Engendering Rape 1675

not account for the unexpected findings. In the second NIS, as in the first, male
inmates continued to report disproportionate rates of sexual misconduct by female
staff, and it was not confined to authorized physical searches. While about 40
percent of male and female victims reported that staff had touched them sexually
during a “pat down” (physical search) or strip search, 86 percent of male victims
(and 91 percent of female victims) reported sexual touching by staff outside the
context of strip or physical search.172 The BJS reported these findings without com-
ment, but presented them under the heading, “Reports of staff sexual misconduct
were linked to strip searches and pat downs.”173
Similarly, Dyan McGuire acknowledged the BJS finding that “male inmates
are at substantial risk of sexual exploitation by female correctional personnel,”174
but she reframed the findings in accordance with conventional gender expecta-
tions that sexual abuse of men by women is neither likely nor harmful. She
cautions that it would be “misleading” to read the BJS data as “impl[ying] that
the abuse of male inmates by female guards is a larger or more serious problem
than the abuse of female inmates by male guards.”175 She characterizes women
guards’ sexual abuse of male inmates as “qualitatively different” and less serious than
sexual abuse of women inmates by male guards, which she characterizes as
“confirmed instances of serious rape or forcible sexual assault.”176 She speculates
that sexual abuse by women staff may be overreported,177 and she claims that male
inmates allege minor indignities such as “inappropriate viewing and other ‘passive’
sexual impositions” (even though the BJS surveys ask only about sexual abuse that
involves touching).178 Her only example of a male inmate’s allegation of sexual
abuse by female staff is a frivolous claim that “sought to have the federal court
fire all of the female guards at his prison alleging that their presence encouraged
sexual misconduct by inmates and male guards.”179 Ignoring the BJS findings
that male inmates say they have been forced, pressured, and injured by staff sexual

172. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 24 tbl.19.
173. Id. at 24.
174. M. Dyan McGuire, The Empirical and Legal Realities Surrounding Staff Perpetrated Sexual Abuse of
Inmates, 46 CRIM. L. BULL. 428, 434 (2010).
175. Id.
176. Id. at 434–35.
177. Id. at 434 (“[G]iven the reality of patriarchy in our society, male inmates tend to be far more willing
to complain and seek legal redress against female guards than female inmates are against male guards
[so that] a larger proportion of female-perpetrated offenses probably make it into the BJS data.”).
178. Id. at 435.
179. Id.
1676 59 UCLA L. REV. 1630 (2012)

assailants, McGuire claims that allegations of “rapes or other serious assaults by

female guards against male inmates are exceedingly rare, if not non-existent.”180
A third way some commentators have reconciled sexual abuse by women
staff with gendered expectations is to reframe it as consensual sex. As noted in
Part II, when male correctional officers have unforced sex with women prisoners,
many commentators are quick to point out that the sexual relationship is inherently
coercive, as well as illegal.181 For example, NPREC describes a situation in which
a male parole officer visited a parolee “to discuss her failure in a drug treatment
program, [and] instead requested and had sex with her.”182 NPREC then points
out that parolees are especially vulnerable to correctional exploitation, as they are
“typically desperate to avoid being incarcerated.”183 “Staff may explicitly or impli-
citly threaten to revoke an offender’s community status and return them to prison
or jail by falsely reporting that the offender has not complied with the terms and
conditions of their release,” the NPREC points out, and there are no witnesses.184

180. Id. The results of the second NIS discussed in Part I, supra, were likely not available at the time
McGuire’s summer 2010 article was being written, and the December 2007 BJS report on the
NIS that McGuire cites (BECK & HARRISON, PRISONS, supra note 11) does not provide any detail
about its findings of staff sexual victimization. Another, more detailed BJS report on the first NIS was
available at the time, but McGuire did not cite it: BECK & HARRISON, LOCAL JAILS, supra note
8, was published in June 2008. The findings of the 2008 report omitted from McGuire’s article
might have raised questions about her characterization of men’s allegations of staff sexual victimi-
zation by women as mere complaints of “inappropriate viewing and other ‘passive’ sexual impositions,”
not “rapes or other serious assaults.” This survey report found that large numbers of victims reported
forcible compulsion by staff: 24.6 percent of victims of staff sexual victimization reported being
threatened with harm or a weapon; 22.1 percent were offered protection against other inmates; 15.0
percent were physically held down or restrained, and 11.4 percent said they were physically harmed
or injured. Id. at 7 tbl.8. Even larger proportions reported nonforcible forms of sexual coercion by staff
perpetrators: 52.1 percent of victims of staff sexual victimization said they were bribed or blackmailed,
and 24.7 percent reported being given drugs or alcohol to secure their compliance. Id.
The omitted 2008 BJS report did not break down these findings by gender of victim or staff
perpetrator, but since nearly 90 percent of respondents who reported staff sexual victimization were
men, and the sexual activity they reported was overwhelmingly cross-gender (61.5 percent of all
victims were men reporting sexual activity with female staff; another 13.1 percent were men alleging
sexual activity with both female and male staff), it is likely that the overall patterns reported by BJS
were influenced most heavily by reports of sex between female staff and incarcerated men. It seems
unlikely, though not impossible, that the relatively small numbers of male-on-female and male-on-
male staff sexual victimization could have accounted for all the force and coercion reported to BJS
surveyors: 7.7 percent of all victims were women reporting sexual activity with male staff, and
another 1.5 percent were women alleging sexual activity with both male and female staff. 14.4 percent
of all victims were men reporting sexual activity exclusively with male staff, and 13.1 percent were men
reporting sexual activity with both male and female staff. Id.
181. See supra note 101 and accompanying text.
182. NPREC REPORT, supra note 1, at 167–68.
183. Id. at 168.
184. Id.
Engendering Rape 1677

By contrast, when the NPREC describes a situation in which “two women

officers were arrested for having sexual relations with a man on house arrest,” it
notes cautiously that although state law and corrections policy both “deemed the
women officers to have supervisory authority,” it was “unclear if either woman had
actual supervisory authority over the man.”185
Some researchers and correctional authorities have succumbed more fully to
stereotype, reconciling their findings with conventional gender expectations by
characterizing sex between female staff and male inmates as “romantic.” For
example, in an early special report pursuant to the PREA, a 2005 nationwide
survey of administrative records of prison rape, the BJS featured a headline on the
first page: “Half of inmate-on-inmate sexual violence involved physical force or threat
of force; two-thirds of staff misconduct was romantic.”186 This characterization
suggested that, while inmate-on-inmate sexual abuse was often violent, staff–inmate
sex was generally quite pleasant.
The findings of this survey, however, were more nuanced than the headline
suggests. The two-thirds figure applied only to the less than 15 percent of staff
sexual misconduct allegations that prison investigators found to be “substan-
tiated.”187 Moreover, the characterization of staff–inmate sex as “romantic” reflected
judgments by staff investigators, not necessarily by the inmates involved.188
In response to criticism, the BJS wisely rejected this characterization the fol-
lowing year: “To address concerns about the reporting and interpretation of data
in the 2005 survey, BJS changed the item related to the nature of the incidents in
2006. The option ‘Romantic’ was replaced by ‘Sexual relationship between inmate
and staff appeared to be willing.’ The options ‘Other’ and ‘Level of coercion unknown’
were added.”189 Patricia Caruso, a Director of the Michigan Department of
Corrections who was appointed after a federal investigation and settlement of a class
action against the Department, also challenges the characterization of staff–inmate
sex as romantic or consensual:
“I know that sometimes people feel that parties may be in love or that it
is ‘consensual.’ There may be things in the world that fit that criteria. In
prison they do not. . . . For a long time, it was more acceptable for

185. Id. at 167.

186. BECK & HARRISON, CORRECTIONAL AUTHORITIES, 2005, supra note 69, at 1.
187. Id. at 9. No comparative statistics were provided for the approximately 85 percent of sexual abuse
allegations received by prison staff which were deemed to be “unsubstantiated” or “unfounded.”
188. “In two-thirds of these incidents, correctional authorities determined that staff had a romantic rela-
tionship with the inmate.” Id. at 9 (citation omitted).
189. Id. at 6.
1678 59 UCLA L. REV. 1630 (2012)

women [than men] to resign and go on with their life. That is not
acceptable in this department.”190
Nonetheless, official and academic commentators persist in characterizing
nonforcible staff-on-inmate sex as “romantic” or harmless, especially when women
are the perpetrators. In 2010, for example, the Warren Report cited the BJS’s
2005 “romantic” characterization in justifying their decision to count inmate reports
of unforced, unbartered sex with staff as “consensual,” even though it is illegal.191
Similarly, in 2010, the Review Panel on Prison Rape responded to the BJS National
Youth Survey’s finding that 95 percent of staff sexual abusers were women by
asking, “What are the factors that lead female staff to become involved emotionally
or sexually with male juveniles?”192 Articles about sexual abuse of women inmates
by male staff, by contrast, tend not to assume that male staffers’ sex with women
inmates is necessarily linked to romantic interest or emotional involvement. On
the contrary, commentators tend to portray male staff sexual abusers as uncaring.193
In 2008, the Department of Justice (DOJ) identified eight “common charac-
teristics of staff perpetrators of jail rape,” which included “Romantically Attracted
to Inmate (More Likely to be Female Officer).”194 In identifying this risk fac-
tor, the DOJ relied exclusively on the testimony of correctional administrators
from the two jails with the highest and the third-highest surveyed rates of staff-
on-inmate sexual victimization in the United States.195 It is possible that admin-
istrators at facilities with high rates of staff-on-inmate victimization are particularly
well placed to identify the characteristics of staff who are likely to sexually abuse
inmates. On the other hand, it may be that in institutions where administrators
believe that staff-on-inmate sex is often “romantic,” it is more likely to occur.

190. NPREC REPORT, supra note 1, at 120 (alterations in original) (some internal quotation marks omitted).
191. Warren argues that this characterization is “supported by the research published by the BJS which
identifies two thirds of the staff on inmate incidents as being romantic in nature.” WARREN
REPORT, supra note 5, at 72 (citation omitted). The citation referenced in Warren’s text, Correctional
Authorities, 2006, does not support her characterization. Since that citation is printed twice in the
bibliography, it seems that this is a typographic error, and that Warren intended to refer to Correctional
Authorities, 2005, which does support this claim.
192. U.S. DEP’T OF JUSTICE, REVIEW PANEL ON PRISON RAPE, REPORT ON SEXUAL VICTIMIZATION
IN JUVENILE CORRECTIONAL FACILITIES 35 (2010), available at [Link]
reviewpanel/pdfs/panel_report_101014.pdf.
193. See, e.g., RATHBONE, supra note 6, at 65.
194. U.S. DEP’T OF JUSTICE, REVIEW PANEL ON PRISON RAPE, REPORT ON RAPE IN JAILS
IN THE U.S. 10–11 (2008), available at [Link]
report_081229.pdf.
195. Id. at 4–5, 11 n.44.
Engendering Rape 1679

While nonforcible sex between male staff and female inmates is more readily
characterized as abusive,196 conventional gender stereotype can frame women
staff as vulnerable to male inmates, rather than the other way around. The U.S.
Supreme Court predicted in 1977 that sex offenders and “other inmates, deprived
of a normal heterosexual environment, would assault women guards because
they [are] women.”197 More recently, the Warren Report, which treats unforced,
unbartered sex between staff and inmates as “consensual,” 198 presented its
counter-stereotypical finding that male inmates reported much more sex with
staff than women inmates did199 as evidence that male inmates must have
been sexually exploiting women guards, rather than the other way around:
“These gender differences . . . underscore the particular vulnerability of female
correctional officers to becoming sexually involved with male inmates.”200
Of course, incarcerated men—or women—may seek to exploit sexual rela-
tionships with staff “to obtain drugs; use unmonitored phones; communicate with
other prisoners while in isolation; learn sensitive information about other pris-
oners, such as who may be acting as an informant; or access information that could
help them escape.” 201 But although women prisoners’ sexual trades are often
framed as exploitation by male staff,202 men prisoners’ sexual trades are more readily
framed as security threats. Thus Patricia Caruso, in her effort to “strictly
prohibit” sex between female staff and male inmates in Michigan, seems to find
it necessary to deploy stereotypes of dangerous, threatening masculinity in order to
get prosecutors to take such cases seriously. In her testimony before the NPREC,
she stressed the importance of “educating prosecutors and juries about how female
staff have helped male prisoners escape, brought dangerous contraband into the facil-
ity, and put other prisoners’ lives in danger by sharing confidential information.”203
The fixity of the notion that men dominate women, and not the reverse,
persists even when the sexual misconduct involves an adult woman guard and an
incarcerated boy. For example, a 2010 report of the Review Panel on Prison Rape

196. See supra notes 101, 181–185 and accompanying text.

197. Dothard v. Rawlinson, 433 U.S. 321, 335 (1977).
198. See supra note 191.
199. WARREN REPORT, supra note 5, at 25 (finding that 24 percent of male respondents reported “consensual”
noncontact sexual interaction with staff, and 17 percent reported “consensual” contact sexual interaction
with staff, compared to 14 percent and 3 percent among women respondents, respectively).
200. Id.
201. NPREC REPORT, supra note 1, at 123.
202. See supra note 101.
203. NPREC REPORT, supra note 1, at 120.
1680 59 UCLA L. REV. 1630 (2012)

noted the “high incidence of female staff having inappropriate sexual encounters
with male youth offenders,” and it identified “two competing narratives that try
to make sense of the data.”204 Both of these narratives frame female correctional
officers as emotionally vulnerable to sexual exploitation by sex-hungry crimi-
nalized male youth. “One narrative is that sophisticated older youth manipulate
young, vulnerable female staff into emotional relationships that evolve into sexual
ones. The other narrative is that female staff members who are unable for a variety
of reasons to build satisfying personal relationships with men gravitate, by design or
by default, to juvenile facilities, where they find young men who are only too ready
under the circumstances to enter into relationships with them that have a sexual
component.”205 The notion that men (and boys) are threats to women, and that
women are not threats to them, is strong enough to overcome not only the power
disparity between staff and inmates, but also the disparity between adults and
children in their custody.
Women correctional officers are alert to male inmates’ attempts to “con” them
into providing sex or contraband by flirting with them.206 The Office of Inspector
General, for example, reports a case in which a federal prisoner “seduced the female
Executive Assistant because the inmate was the leader of a gang and was looking
for an edge in the power struggle with other inmate gangs. The inmate had reported
the relationship to authorities in hopes of having his sentence reduced.”207 Moreover,
male inmates are reported to sexually harass women staff by masturbating in front
of them.208 These realities offer some plausibility to the conventional gendered
account of sex between incarcerated men and female guards.
It is also possible that male survey respondents may be lying about sex with
female guards. Such an explanation would require some theory as to why they are
more likely to lie about sex with women officers than with male officers or inmates,
and more likely than women inmates to lie about cross-gender sex with officers.
Conventional understandings of gender could provide one such account: Male
inmates might fabricate accounts of sex with women staff to aggrandize their
masculinity to surveyors, to others in the prison, or to themselves. They might be
more willing to disclose sex with female staff than with male staff because it bolsters

204. U.S. DEP’T OF JUSTICE, supra note 192, at 35.

205. Id.
206. DANA M. BRITTON, AT WORK IN THE IRON CAGE: THE PRISON AS GENDERED ORGANIZATION
138 (2003).
207. OFFICE OF THE INSPECTOR GEN., supra note 6, at 6 (footnote omitted).
208. See BRITTON, supra note 206, at 139–43.
Engendering Rape 1681

their heterosexual identity, or because they think that the lower status of women
officers means that allegations against them are more likely to be believed.209
If conventional gender expectations do not explain the entire disparity,
though, another fairly obvious explanation of these counter-stereotypical findings
might be that women staff members are actually more likely than men to take sexual
advantage of prisoners in their custody. Further research is needed to assess what is
happening between women staff and male inmates, but it has not yet been done.

IV. RACE AS STEREOTYPE RECONCILIATION: SEXUAL ABUSE

AMONG MEN

As noted above, the discourse of prison rape highlights race in men’s prisons,
but tends to disregard it in discussions of sexual abuse in prisons for women. The
notion of stereotype reconciliation may account for the striking disparity in discur-
sive attention to race in the two contexts.210 As shown in Parts II and III, interpretive
conventions in prison rape discourse tend to highlight and normalize a heterosexist
understanding of sexuality by which males and the masculine dominate females
and the feminine. Conventional gender norms supply an intuitive explanation for
the sexual vulnerability of women prisoners to male staff, while heterosexist cultural
notions about romance and relationship seem to help reconcile women’s perpe-
tration of sexual abuse to conventional gender expectations. These cultural intui-
tions are less useful for stereotype reconciliation of sex among men: Male prisoners
are stereotyped as hypermasculine,211 and a central feature of conventional
masculine identity is that it is neither feminine nor gay.212 The notion that male
inmate rapists are black and their victims are white helps to frame some incar-
cerated men as vulnerable, reconciling the notion of male victimization to
stereotypes that masculine men are perpetrators and not victims.

209. McGuire, supra note 174, at 434 (incorrectly attributing this argument to Buchanan, Impunity,
supra note 6).
210. I have argued previously that the discursive focus on black-on-white sexual assault is unwarranted
by the empirical data. See Buchanan, Our Prisons, Ourselves, supra note 4; Buchanan, E-race-ing
Gender, supra note 4.
211. “Popular representations and cultural stereotypes of prisoners as large, menacing Black men or as
muscular, tattooed Latinos feed conceptualisations of aggressive masculinity that must be contained
within prison walls.” Cassandra Shaylor, Neither Kind Nor Gentle: The Perils of ‘Gender Responsive
Justice,’ in THE VIOLENCE OF INCARCERATION 145, 154 (Phil Scraton & Jude McCulloch
eds., 2009); see also Buchanan, Our Prisons, Ourselves, supra note 4, at 76; Harris, supra note 119.
212. See, e.g., DOWD, supra note 17, at 62 (“The two most common pieces defining masculinity are, at
all costs, not to be like a woman and not to be gay.”); see also Michael S. Kimmel, Masculinity
as Homophobia, in RECONSTRUCTING GENDER: A MULTICULTURAL ANTHOLOGY 103
(Estelle Disch ed., 3d ed. 2003); Koppelman, supra note 147.
1682 59 UCLA L. REV. 1630 (2012)

Conventional gender stereotype cannot readily make sense of the notion

that hypermasculine, nonwhite male criminals might seek consensual sex with
each other—that is, that black or Latino tough guys might like men.213 On the
other hand, the stereotype of prisoners as violent black murderers and rapists makes
it relatively easy to envision that a “dark abyss of sexual predation . . . pervades
the culture of men’s prisons.”214 Thus historian Regina Kunzel notes that, since the
1970s, academic research on sex in men’s prisons has focused on rape and disre-
garded consensual sex, to the point that rape has become the “primary” represen-
tation of male prison sex.215
Most literature on sexual abuse in men’s prisons acknowledges that transgen-
der and gay inmates, those who have been previously victimized, and other men
who are considered weak or effeminate face high risk of sexual victimization.216
Prison rape scholars tend to treat the vulnerability of these inmates as a given that
does not need to be explained.217 As Sharon Dolovich observes, “in th[e] hypermas-
culine culture [of Los Angeles County Men’s Central Jail], gay men and trans
women are regarded as female by definition and are thus automatic targets for
sexual assault . . . . This is true even for those gay men who take the dominant sexual
role in their consensual sexual relationships.”218 Thus prison populations are ste-
reotyped as containing a large number of hypermasculine nonwhite men and a
smaller group of vulnerable, effeminate inmates.

213. Robinson, supra note 4, at 1344–45 (explaining that low-income black and Latino men do not fit
the culturally white schema for gay identity applied for admission to the segregated gay and
transgender unit at the Los Angeles Men’s County Jail).
214. Miller, supra note 4, at 299.
215. KUNZEL, supra note 133, at 188–89; see AULI EK, RACE AND MASCULINITY IN CONTEMPORARY
AMERICAN PRISON NARRATIVES 66 (2005); GAES & GOLDBERG, supra note 32, at 27; WARREN
REPORT, supra note 5, at 87 (noting that prior to 2002, only six studies had investigated consen-
sual sex among male inmates).
216. See, e.g., FLEISHER & KRIENERT, supra note 4; JUST DETENTION INT’L, supra note 26; Buchanan,
Our Prisons, Ourselves, supra note 4, at 11; Ristroph, supra note 4, at 158–59; Robinson, supra note
4; U.N. Comm. Against Torture, Conclusions and Recommendations of the Committee Against
Torture: United States of America, supra note 4, ¶¶ 32, 34.
217. See, e.g., JUST DETENTION INT’L, supra note 26; Capers, supra note 4, Ristroph, supra note 4. But
cf. NPREC REPORT, supra note 1, at 73 (attributing the targeting of gay, bisexual, and transgender
inmates to the fact that “[m]en’s correctional facilities tend to have very rigid cultures that reward
extreme masculinity and aggression and perpetuate negative stereotypes about men who act or appear
different,” and noting that staff often erroneously assume that gay or presumedly gay inmates consent
to sexual abuse). As Jeannie Suk explains, the removal of (presumptively vulnerable) gay and transgen-
der inmates, and not others, from a general population characterized by pervasive physical and sexual
violence, redistributes the risk of rape from nonstraight inmates to other vulnerable inmates, without
articulating a defensible reason as to why it is preferable that straight-identified, rather than gay or
transgender inmates, should be subjected to this risk. Suk, supra note 4, at 114–15.
218. Dolovich, supra note 4, at 18 (footnote omitted).
Engendering Rape 1683

Accordingly, as with sexual violence in women’s prisons, prison rape discourse

tends to address the sexual abuse of gay and transgender inmates in ways that are
attentive to gender, but are not usually integrated with a critical race analysis.219
With the important exceptions of Russell Robinson and Julia Oparah,220 academic
research that addresses the sexual abuse of gay and transgender inmates tends to
not analyze it in terms of racialization.221 Gay and transgender identity is ste-
reotypically marked as white.222 Even straight-identified white men are stereotyped
as effeminate by comparison with black criminals.223 Racial stereotype can fill in
the gaps for which gender stereotype cannot account.
Like criminals, male prison guards are stereotyped as hypermasculine,224 but
unlike most prisoners, they are not necessarily stereotyped as nonwhite. Their iden-
tity as law enforcers confers upon their violence a legitimacy that is not accorded
to violence by inmates.225 Academic or correctional discussion of sexual abuse by
staff, whether in men’s or women’s prisons, generally does not address the staff
member’s race, perhaps in part because no BJS data is available about the race of

219. See, e.g., Arkles, supra note 4; Anita C. Barnes, The Sexual Continuum: Transsexual Prisoners, 24
NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 599 (1998); Richael Faithful, (Law)Breaking
Gender: In Search of Transformative Gender Law, 18 AM. U. J. GENDER SOC. POL’Y & L. 455
(2010); Rosenblum, supra note 12 (focusing on issues of gender placement, medical treatment for
gender identity disorder, and segregation of transgender inmates); Sydney Tarzwell, Note, The Gender
Lines Are Marked With Razor Wire: Addressing State Prison Policies and Practices for the Management
of Transgender Prisoners, 38 COLUM. HUM. RTS. L. REV. 167 (2006). But see Oparah, supra note 4;
Julia Sudbury, Maroon Abolitionists: Black Gender-Oppressed Activists in the Anti-Prison Movement
in the U.S. and Canada, MERIDIANS, Spring 2009, at 1.
220. Robinson, supra note 4; Oparah, supra note 4.
221. Sharon Dolovich, for example, describes the gay- and trans-friendly atmosphere of K6G in nonracial
terms, and contrasts it with the racialized violence and gang politics of the general population, which
she describes as “a notoriously volatile and even dangerous institution in which severe over-crowding,
coupled with racial divisions imposed and rigidly policed by the prisoners themselves, frequently leads
to riots or other forms of violence.” Dolovich, supra note 4, at 20 (footnotes omitted); see also id. at
11–19, 48–54.
222. Robinson, supra note 4, at 1315.
223. See BEDERMAN, supra note 138, at 86; Angela P. Harris, Gender, Violence, Race, and Criminal Justice,
52 STAN. L. REV. 777, 784 (2000).
224. Dana Britton asks,
Imagine a prison guard. Whom do you see? If you are like most people, the
vision in your mind’s eye is probably that of a hulking man in uniform carrying a
nightstick or even a gun. Perhaps you imagine him as brutal and sadistic; at the very
least, you see someone who would be able to deal easily with unruly inmates, to meet
violence with violence, to “bang heads” if necessary.
BRITTON, supra note 206, at 1.
225. See Buchanan, Our Prisons, Ourselves, supra note 4, at 44 (noting that lawbreaking and law
enforcement are both stereotyped as hypermasculine, but only law-enforcing violence is socially
legitimized); Harris, supra note 223, at 780 (arguing that both lawbreaking and law-enforcing
violence are gendered practices which are used to demonstrate “the perpetrator’s manhood”).
1684 59 UCLA L. REV. 1630 (2012)

staff perpetrators. Conventional stereotype does not readily accommodate the

possibility that male prison inmates might be especially vulnerable to rape by their
keepers, nor that staff would be unusually inclined to commit it. Where, as with
sexual abuse of male inmates by staff, widely held cultural intuitions (such as race
or romance) do not help to reconcile sexual abuse with conventional gender expec-
tations, the abuse is largely ignored. I have been able to find no article that focuses
primarily on the sexual abuse of male inmates by staff.
Moreover, maleness, prior sexual victimization, black racial ascription, and
(in prisons, but not in jails) nonstraight sexual orientation are all significant predic-
tors of sexual victimization by staff.226 It thus seems that male victims of staff
sexual abuse may disproportionately be (or be seen as) weak, gay or effeminate
black men. These data are in many ways inconsistent with racialized gender ste-
reotypes that frame black criminals as violent and threatening, and raise many
questions that researchers and commentators have not answered. Who is doing
what to whom? Within men’s or women’s prisons, are the victims of male perpe-
trators similar to victims of female perpetrators? Do their abusers target them
for similar reasons? Stereotype might suggest that male staff would target
less masculine victims, while female staff might have “romantic” liaisons with
more masculine male prisoners—or be conned into sex with them. But we cannot
assess these stereotypical intuitions against reality until researchers, advocates,
and correctional observers uncover more information about the counter-
stereotypical abuses that have yet to be thoroughly investigated.

CONCLUSION

The prominence of race in the discourse of male inmate rape, and its absence
from discourse about other forms of prison sexual abuse, highlights the degree to
which conventional gender expectations establish the priorities and boundaries of
prison rape discourse. When male correctional officers sexually abuse female
inmates, conventional gender expectations can make sense of the abuse without
supplementation by other cultural tropes: Where race and romance are not useful,
they are not prominent. On the other hand, race is especially salient in prison rape
discourse where it is helpful in reconciling sexual abuse with conventional gender
expectations. By contrast, neither racial tropes nor heterosexist assumptions about
romance can easily reconcile women employees’ sexual abuse of male inmates with

226. BECK & HARRISON, PRISONS AND JAILS, supra note 2, at 91 app. tbl.10.
Engendering Rape 1685

conventional gender expectations. In prison rape discourse, male inmates’ self-

reported vulnerability to female staff is largely ignored—even though it seems to
be the most common form of prison sexual abuse.
Victimization survey data raise questions about gendered understandings of
prison rape, but they cannot answer them. It is, as yet, impossible to know how
the dynamics of women’s sexual abuse of inmates (of either gender) differ from
sexual abuse perpetrated by men. The dearth of qualitative investigation and crit-
ical analysis leaves little empirical knowledge to guide policy intervention. The
gaps and elisions of prison rape discourse leave policymakers with little to rely on
apart from common-sense intuitions, which, judging from the current state of the
discourse, are likely to be both stereotypical and inaccurate.
Since the body of knowledge about prison rape conforms closely to racia-
lized gender expectations, it presents a real risk that policy solutions may reflect
a bias toward addressing sexual harms that conform to gender stereotype, and
disregarding the sexual harms that defy understanding in conventional gendered
terms. A fuller exploration of the policy effects of this stereotype-conforming
bias is beyond the scope of this Article, but I conclude with a few observations
about some of them. Many policy proposals rely on gendered tweaks to carceral
business as usual, based on unexamined assumptions that only women and effem-
inate men need protection, and that only masculine staff and inmates pose a
sexual threat. For example, policy reforms designed to address staff sexual abuse
tend to focus on the gendered assignment of search and surveillance responsibil-
ities among staff, on the assumption that male staff pose the greatest risk to incar-
cerated women.227 Similarly, many reformers and correctional administrators
have recommended the segregation of gay and transgender inmates into protec-
tive housing within men’s jails and prisons.228 This could arguably help to protect

227. See supra note 96 and accompanying text; see also National Standards to Prevent, Detect, and Respond
to Prison Rape; Final Rule, 77 Fed. Reg. 37,106, 37,310 (June 20, 2012) (to be codified at 28
C.F.R. pt. 115) (allowing cross-gender searches of male inmates, but not female inmates).
228. For example, although NPREC recommended against automatic segregation of inmates based on
their sexual orientation, gender identity or genital status, see NPREC REPORT, supra note 1, at 80,
the Department of Justice proposed in its February 2011 draft PREA regulations that institutions
be permitted to do this. National Standards to Prevent, Detect, and Respond to Prison Rape, 76
Fed. Reg. 6248, 6257 (Feb. 3, 2011), available at [Link]
[Link]. Fortunately, the 2012 final rules forbid institutions to maintain segregated units for
LGBTI (lesbian, gay, bisexual, transgender or intersex) inmates (except where they are required to do
so by court order), and forbid the automatic placement of LGBTI-identified inmates in such
units solely on the basis of their sexual orientation or gender identification. National Standards to
Prevent, Detect, and Respond to Prison Rape; Final Rule, 77 Fed. Reg. at 37,110, 37,152, 37,153.
Instead, LGBTI inmates’ housing assignments, like those of other inmates, must be made “on a
case-by case basis.” Id. at 37,110, 37,152–54. If followed, this rule will require changes at many
1686 59 UCLA L. REV. 1630 (2012)

them against the risk of inmate rape,229 but it does nothing to protect them
against the greater risk of sexual abuse by correctional officers or other staff.230

facilities: For decades, many prisons have adopted segregation of gay and transgender inmates into
separate housing as a way of protecting them against sexual abuse by male inmates. See, e.g.,
Johnson v. Johnson, 385 F.3d 503, 512–13 (5th Cir. 2004) (upholding denial of summary
judgment for defendants on a gay black man’s challenge to his exclusion in a Texas prison from the
“safekeeping” unit, which houses “inmate[s who are] at risk of victimization, ha[ve] enemies in
the population, ha[ve] a history of homosexuality, or possess[] other characteristics that mark the
offender as vulnerable to predation”); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1444–45
(9th Cir. 1991) (describing an official policy whereby “young and tender” and “passive homosexual”
detainees needed protection and were kept in separate units, while “aggressive homosexual”
prison rapists were placed in the general population pursuant to the assumption that “heterosexual
inmates could protect themselves”); KUNZEL, supra note 133, at 204–05 (discussing the
segregation of butch women into a punitive “Daddy Tank” at a Los Angeles women’s jail in the
early 1970s); Dolovich, supra note 4, at 19–43 (describing segregation of gay and transgender
inmates in the K6G unit of Los Angeles Men’s County Jail); Robinson, supra note 4 (challenging
and critiquing segregation of gay and transgender inmates in the K6G unit); Assoc. Press, Va.
Women’s Prison Segregated Lesbians, Others: Institution Managers Accused of Harassment, Violating
Prisoners’ Rights, [Link] (June 6, 2009, 4:53 PM), [Link]
ns/us_news-crime_and_courts/t/va-womens-prison-segregated-lesbians-others (describing segregation
of “inmates who had loose-fitting clothes, short hair or otherwise masculine looks, sending them
to a unit officers derisively dubbed the ‘butch wing’” in order to “split up relationships and curb
illegal sexual activity” at the Fluvanna Correctional Center for Women).
229. See Dolovich, supra note 4, at 45 (noting that her “in-depth qualitative interviews with a random
sample of approximately ten percent of K6G’s residents . . . overwhelmingly confirm the effectiveness
of total segregation as a protective measure”). But see Robinson, supra note 4, at 1361 (challenging
evidentiary basis for assumption that gay and transgender inmates are safer in segregated housing,
and noting additional harms caused by segregation based on sexual orientation or transgender iden-
tity). Jeannie Suk questions why gay-identified inmates would be assumed not to pose the risk of
abusiveness toward each other that straight-identified inmates do. Suk, supra note 4, at 115–16; see
also Robinson, supra note 4, at 1363. Russell Robinson also points out that the distinctive powder-
blue uniforms assigned to inmates in the gay and transgender wing at Los Angeles Men’s County
Jail (LAMCJ) identify the segregated inmates in ways that may “out” them when they are later spotted
by former jail inmates in state prisons or in the community. Id. at 1383.
230. Gabriel Arkles, for example, initially “assumed that naturally trans people, particularly trans women
in men’s facilities, would prefer the ‘safety’ of protective custody over the dangers of general popu-
lation,” but discovered that, of the incarcerated trans people he worked with, “including trans women
in men’s prisons who had been beaten, raped, and/or stabbed by other prisoners in the past, most
(but not all) have not wanted to be placed in protective custody.” Arkles, supra note 4, at 537. He notes
that the solitary confinement of “protective” custody isolates gay and transgender inmates from the help
of friends and allies in the general population. He offers an anecdote in which a group of male inmates
in the general population defended a transgender prisoner against sexual assault by another inmate, and
another in which fellow inmates in the general population organized a successful mass protest to force
prison officials to allow an HIV-positive transgender inmate to receive medical care. Id. at 527–28.
KUNZEL, supra note 133, at 211–12, also documents a radical inmate organization that defended
“gay and other vulnerable inmates from sexual harassment and violence” and “worked to release gay
prisoners from protective custody and helped integrate them safely into the general population.”
Lori Girshick observes that all the transgender and gender-nonconforming inmates she interviewed
in women’s prisons opposed segregation of gay and transgender prisoners, in part because of “the
complete access staff would have to harass and abuse them.” Lori Girshick, Out of Compliance:
Engendering Rape 1687

Furthermore, the “gender-responsive strategies” proposed for women’s incarcer-

ation231 more generally emphasize women’s vulnerability to sexual abuse by male
staff,232 but this rather traditional, feminized frame for governing incarcerated
women233 may underrate the risk of sexual abuse by other inmates.

Masculine-Identified People in Women’s Prisons, in CAPTIVE GENDERS: TRANS EMBODIMENT

AND THE PRISON INDUSTRIAL COMPLEX 189, 203 (Eric A. Stanley & Nat Smith eds., 2011).
231. The authors of the seminal Gender-Responsive Strategies report advocate a “gender-responsive”
penology for women, but not for men. BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES,
supra note 122. Its basic premise is that “the current correctional system is not gender neutral but
is responsive to male inmates,” id. at 113, betraying an unfortunate assumption that contemporary
correctional practices are appropriate for incarcerated men. See, e.g., Shaylor, supra note 211, at 153–54
(noting that the “masculinist approach” of mainstream penology “does not benefit men in prison any
more than women or transgender people,” and advocating an abandonment of this approach). Advo-
cates of gender-responsiveness define it in a rather traditional way, framing women lawbreakers as
less violent, less criminally responsible, more vulnerable, and more attached to their families than
men. The “Guiding Principles” of gender responsiveness assert that “gender makes a difference,” so
that “[a]n effective system for female offenders [must be] structured differently from a system for
male offenders.” BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES, supra note 122, at ix, 78.
The guiding principles affirm that women offenders pose a “low risk to public safety”; they need “an
environment based on safety, respect, and dignity”; correctional supervision of women offenders must
“[a]ddress . . . substance abuse, trauma, and mental health” issues; and that “relationships, especially
those with their children” are more important to incarcerated women, so that policies and programs
for women must be “relational and promote healthy connections to children, family, significant others,
and the community.” Id. at 78–79. The authors do not explain why safety, respect, dignity, mental
health treatment, and relationships with family, friends, or children should be understood as needs
unique to women and not shared by men.
Correctional authorities have embraced gender responsiveness as a policy touchstone for women’s
incarceration. See, e.g., CAL. DEP’T OF CORR. & REHAB., PILOT STUDY REPORT: FEMALE
OFFENDER PROGRAMS AND SERVICES (FOPS): RISK AND NEEDS ASSESSMENT OF WOMEN
OFFENDERS IN CALIFORNIA PRISONS: AN EVALUATION OF COMPAS REENTRY AND
NIC’S GENDER-RESPONSIVE APPROACH 2 (2008) (noting California’s establishment of a
“Gender Responsive Strategies Commission (GRSC) to assist in the development of a Master Plan
for female offenders” and seeking to develop a gender-responsive classification tool for incarcerated
women); OHIO DEPT. OF REHAB. AND CORR., BEST PRACTICES TOOL-KIT: GENDER-
RESPONSIVE STRATEGIES (2006) (identifying gender-responsive correctional “best practices”);
Myrna R. Raeder, A Primer on Gender-Related Issues That Affect Female Offenders, CRIM. JUST.,
Spring 2005, at 4 (advising on gender-responsive penal administration). Abolitionist and academic
critics have denounced gender-responsive prison reform as paternalistic and essentialist, and as an
excuse for unwarranted expansion of women’s incarceration. See, e.g., Rose Braz, Kinder, Gentler,
Gender Responsive Cages: Prison Expansion Is Not Prison Reform, WOMEN, GIRLS & CRIM. JUST.,
Oct./Nov. 2006, at 87; Cynthia Chandler, The Gender-Responsive Prison Expansion Movement, in
INTERRUPTED LIFE: EXPERIENCES OF INCARCERATED WOMEN IN THE UNITED STATES
332 (Rickie Solinger et al. eds., 2010); Kelly Hannah-Moffatt, Losing Ground: Gendered Knowledges,
Parole Risk, and Responsibility, 11 SOC. POL. 363 (2004); Shaylor, supra note 211.
232. See, e.g., BLOOM ET AL., GENDER-RESPONSIVE STRATEGIES, supra note 122, at 12, 25–27
(characterizing women’s “vulnerability to staff sexual misconduct” as a “gender-based difference”
between incarcerated women and men).
233. See generally Kelly Hannah-Moffatt, Gendering Dynamic Risk: Assessing and Managing the Maternal
Identities of Women Prisoners, in GENDERED RISKS 229, 237–41 (Kelly Hannah-Moffatt & Pat
1688 59 UCLA L. REV. 1630 (2012)

Because staff members seem to commit more sexual abuse than inmates do,
and because neither men nor women can be presumed safe, neither intensified
staff surveillance powers nor gendered tweaks to search and surveillance respon-
sibilities can be trusted, on their own, to make prisoners safer. To effectively
address sexual abuse by staff, policymakers and administrators need to make more
fundamental institutional changes, such as reevaluating the routine use of phys-
ical, strip, and body cavity searches, and introducing meaningful external moni-
toring and accountability.
The gaps and elisions of prison rape discourse reveal the grip of unexamined
gender and racial stereotypes on our understanding of prison rape and of sexual
abuse more generally. Prison realities demonstrate that, at least in some circums-
tances, women may be more sexually aggressive, and men more sexually vulnerable,
than conventional gender expectations would predict. Greater attention to the
counter-stereotypical dynamics of prison rape could unsettle conventional gender
expectations, illuminating our understanding of the dynamics of race, gender, and
violence in the outside world as well as in prison.

O’Malley, eds. 2007) (noting that “gender-responsive” risk assessment tends to punish women who
fail to conform to traditional stereotypes of femininity and maternity).