A Part of the Penalty

June 14, 1994|By ELLEN GOODMAN

BOSTON — It's tempting to describe this as the last taboo. But there is a new contender for that title every day. Taboos are falling across our culture like dominoes. What was unspeakable yesterday dominates talk shows today.

But last week the Supreme Court issued an opinion on a topic that's been as hidden from public view as the inside of a maximum security lockup. In a decision allowing an inmate to sue prison officials for failing to protect him, the court took on the subject of prison rape.

Justice David Souter wrote, ''Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offense against society.'' He added that having stripped inmates of ''virtually every means of self-protection and foreclosed their access to outside aid . . . the government and its officials are not free to let the state of nature take its course.''

The truth is that until now rape has been ''a part of the penalty'' paid by criminal offenders. Rape of men by men has been a penalty administered by the prisoner power structure. It's been the penalty ignored or tacitly accepted by many of those who call themselves corrections officials.

Many a prison has been reduced to a predatory ''state of nature'' in its most Darwinian sense. Indeed the fear of rape has been used to scare young, could-be offenders, straight.

In a recent, powerful series, the Boston Globe's Charles Sennott described the culture of rape in prison. It's a culture in which victims are often said to have ''asked for it'' because they wore tight pants or a fresh face. It's a culture in which the weaker may literally pay the stronger for protection.

In this culture a man who complains to officials is told, ''Toughen up, punk.'' Men who finally submit to one man to avoid rape by many are categorized as consenting homosexuals.

In California, one study showed that 14 percent of the prison population had been raped. Nationally, it's believed that some 200,000 or more have been assaulted out of the burgeoning population of 1.3 million male inmates.

Some of those assaults are not just grotesque add-on penalties nTC but death sentences. The percentage of inmates infected with the AIDS virus is now 14 times as high as in the population at large.

But these facts have produced more shrugs of acceptance than cries of outrage. A Massachusetts Department of Corrections spokesman asked about an assaulted prisoner who may have contracted HIVechoed the sentiment perfectly. ''Well,'' he said, ''that's prison.'' Boys will be boys, prisoners will be prisoners.

It's not surprising that we've ignored prison rape or accepted it as a side effect. The subject is charged with attitudes about homosexuality as well as criminals.

It's only within the past decade, after all, that we have begun to talk openly about sexual violence at all. We've peeled away layers of ''last taboos'' that inhibited talk about sexual abuse by parents, teachers, priests.

We are also painfully slow in acknowledging and dealing with violence by adult men against adult men. It's as if, according to the ''laws of nature'' Justice Souter decried, or the laws of war, men are supposed to duke it out themselves, even when one is 100 pounds stronger than the other. In or out of jail, we are at our worst in protecting men from each other.

Ironically, this prison-rape case, the first to come before the Supreme Court, a breakthrough case about male-on-male prison rape, was brought by a transsexual. The lawyers for Dee Farmer claim that the prison officials should have known better than to place a preoperative transsexual with silicone breasts who considers himself a woman in a population of men. They referred to Farmer as ''she.''

I have no idea how Farmer will fare when his/her lawsuit is heard in the lower court. But at last there is a small flashlight turned on this darkest of human corners.

Today Americans worry incessantly about crime. And we don't seem to care what criminals do to each other as long as they are locked away from us.

But what happens when the man convicted of a minor crime becomes the victim of a major crime?

What happens when the man given tacit permission to assault the weak, especially the ''effeminate,'' comes out of jail and into contact with the weak, especially the female?

No law and order advocate can condone order-by-sexual-assault in a so-called House of Corrections. As Bill Weld, the Massachusetts governor who prides himself on being tough on crime, said, ''Caning is a sentence. Rape is not a sentence.''

The most popular criminal law of the moment is ''three strikes and you're out.'' But there must be another crackdown on the unwritten code that warns, ''one strike and you're raped.''

Ellen Goodman is a syndicated columnist.

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