Homosexual Rape in Prison

June 14, 1994

It is an open secret that homosexual rape in prisons by inmates of other inmates is widespread and, in many cases, taken lightly if not ignored by wardens and guards. A judiciary that has attempted to deal with brutality by prison guards and with cell size, prison menus and even passive tobacco smoke has yet to deal with this much more serious problem in a forceful and effective way. Until now -- maybe.

The Supreme Court ruled last week in a case involving rape that "a prison official cannot be found liable under the Eighth Amendment unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw that inference." The ruling was welcomed by state officials because it seemed to protect prison officials except when they were recklessly irresponsible or unconcerned.

But as we read it, Justice David Souter, who wrote the opinion of the court, could as easily have said can for cannot and if for unless in the above quote [our italics in both instances] without changing the opinion's meaning. Read that way, and considering the fact that the Supreme Court overturned a lower court decision that made it even harder for inmates to sue when brutalized by other inmates, the Souter ruling could coerce prison officials to be much more assertive in trying to prevent this sort of behavior.

The justice, in effect, invited suits from inmate victims and warned wardens that trial jurors would be second-guessing them in the future.

Only Justice Clarence Thomas did not sign the Souter opinion. He concurred with the judgment, he said, only because he believed he had to accept the precedents the court invoked. Except for stare decisis, he said, this case would be "an easy one for me." He said if it were up to him, he would rule that "conditions of confinement" that are not specified as part of a sentence are never "punishment" and therefore can't be a violation of the Eighth Amendment's ban on "cruel and unusual punishment," no matter how inhumane. His loneliness on the court seems to be increasing.

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