United States

III. LEGAL CONTEXT

Prisoners are legally protected from human rights abuses under both U.S. and international law. Domestic legal protections include U.S. constitutional provisions, notably the Eighth Amendment, and statutory provisions such as the Civil Rights of Institutionalized Persons Act (CRIPA). International legal protections include binding treaty standards as well as a plethora of interpretative guidelines, the most comprehensive of which are the U.N. Standard Minimum Rules for the Treatment of Prisoners.

The weakness of these protections, both national and international, lies less in their substantive shortcomings than in the fact that they are not properly enforced.

National Legal Protections

Several U.S. constitutional provisions bar the abusive treatment of prisoners, primary among them the Eighth Amendment, which prohibits cruel and unusual punishment. In reviewing these protections, it is important to remember that their enforcement depends on the combined efforts of an array of governmental authorities, including the courts, Congress, and numerous federal and state executive officials. Unfortunately, actual practice in this area falls far short of authoritative pronouncements.

The rise and fall of federal court supervision of prison conditions

It was not until the late 1960s that U.S. courts began to take an active role in monitoring prison conditions and mandating their reform. Until then, the judicial branch had assumed an extremely deferential posture with regard to state and federal correctional authorities, leaving them to administer prisons as they saw fit.(95) As Supreme Court Justice Clarence Thomas once pointed out, in advocating a return to past practice: "For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration."(96) Indeed, the "hands off" approach advanced by Thomas held sway through the mid-twentieth century.

Nominal advances in the recognition of prisoners' rights were made in the 1940s and 1950s, but only in the 1960s and 1970s did the federal courts begin to make meaningful inroads against the abuses that plagued the nation's correctional institutions. The animating sentiments of the era, which tended to favor rehabilitation over punishment, made abusive prison conditions appear unjust, unnecessary, and counterproductive. Tragedies such as the 1972 rioting and subsequent killings at New York's Attica prison galvanized public attention to prison abuses. Following the pattern set with regard to school desegregation and other civil rights issues, a generation of prison reformers looked to the courts to rectify abuses, garnering an impressive string of legal victories.(97)

From the 1980s through the 1990s, in contrast, the pendulum swung back toward harsher, more punitive treatment of prisoners. Effective judicial oversight of conditions, in particular, was greatly reduced. Several factors encouraged this trend. In general, the rehabilitative view of incarceration was increasingly called into question by commentators who, focusing on high recidivism rates, advocated in its place a more explicitly retributive model of imprisonment.(98) At the same time, numerous conservative judges appointed by President Ronald Reagan joined the federal bench, most of them anxious to repudiate the "activist" approach represented by close judicial monitoring of prison conditions.(99) A series of Supreme Court rulings cut back on prisoners' rights, imposing difficult to meet requirements of showing intent and actual damages.

Meanwhile, public outrage over crime and criminals gave rise to the stereotype of the "pampered" prisoner living in a college campus-like setting, watching television all day, and filing frivolous lawsuits over petty grievances. Catering to such sentiments, officials shifted toward "tougher," more punitive forms of incarceration: building so-called supermax units, discontinuing inmate college programs, stripping prisons of weight equipment, even reinstituting chain gangs in several states.(100) Prisoners' right of access to the courts came under particular attack, as government officials vied with each to find the most outrageous legal claims to compile into lists of "Top Ten Frivolous Inmate Lawsuits."(101)

The backlash against prisoners' rights culminated in the 1996 passage of the Prison Litigation Reform Act (PLRA). The "reform" of the statute's title was a misleading reference to the severe limitations the PLRA placed on the possibility of challenging and remedying abusive prison conditions through litigation. A comprehensive set of constraints on prison litigation, the PLRA invalidates all settlements that do not include explicit findings that the challenged conditions violate federal law or the constitution. Since prison authorities are reluctant to admit to such findings, this requrement makes it much more difficult for the parties to a prison conditions suit to reach a negotiated settlement. In addition, the PLRA requires that prospective relief in prison conditions suits, such as consent decrees (judicial orders enforcing voluntary settlements), be "narrowly drawn."(102) It also arbitrarily terminates court orders against unlawful prison conditions after two years, regardless of prison authorities' degree of compliance with the orders. Further, it restricts the grant of attorneys' fees for successful prison conditions suits, severely reducing the financial viability of even the most sorely-needed prison reform efforts. Other objectionable provisions of the act limit prisoners' access to the courts by imposing court filing fees on certain indigent prisoners, and bar the recovery of damages for pain and suffering not accompanied by physical injury.(103) In short, without explicitly cutting back on prisoners' substantive rights, which are constitutionally protected, the PLRA creates formidable obstacles to the enforcement of these rights.

The PLRA has been challenged as unconstitutional in several jurisdictions, but to date the federal courts have upheld its restrictive provisions.(104)

Constitutional protections on prisoners' rights

Lawsuits challenging physical abuses against prisoners, including those in which prison authorities are sued for failing to protect inmates from attack by other inmates, usually rely upon the protection of the Eighth Amendment to the U.S. Constitution and its prohibition on "cruel and unusual punishments."(105) In cases involving pretrial detainees, as opposed to convicted prisoners, the Fifth Amendment's Due Process Clause is applicable; courts have ruled that it guarantees pretrial detainees similar protections as those provided convicted prisoners under the Eighth Amendment.(106)

In interpreting the Eighth Amendment, the courts have generally held that it requires prison officials to provide "humane conditions of confinement" and to take "reasonable measures to guarantee the safety of the inmates."(107) As the Supreme Court explained in 1989, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being."(108) Not every discomfort or injury suffered by prisoners is legally actionable, however. Instead, as the Supreme Court has emphasized, the Eighth Amendment only bars "punishments"--not just poor treatment in itself, but "the unnecessary and wanton infliction of pain."(109) Therefore, to prove an Eighth Amendment violation, plaintiffs must show not only objective injury, either physical or psychological, but also a subjective intent on the part of authorities to cause that injury.

To pass the requirement of objective injury, the prisoner's pain must be so serious that it violates contemporary standards of decency.(110) The subjective intent requirement--that the responsible prison official acted with a "sufficiently culpable state of mind"--is somewhat more complex.(111) To begin with, the applicable standard varies according to whether the suit alleges excessive physical force or abusive policies or conditions of incarceration. In cases alleging excessive physical force by correctional staff, a prisoner must prove that prison officials acted "maliciously and sadistically for the very purpose of causing harm."(112) In cases challenging abusive policies or conditions of incarceration, a prisoner must demonstrate that officials acted with "deliberate indifference" in subjecting him to such conditions.(113) The latter standard is normally applied in cases of prisoner-on-prisoner rape.

It is well established that the Eighth Amendment not only bars direct guard brutality, it also requires prison officials to protect prisoners from violence inflicted by fellow prisoners.(114) A number of federal courts have specifically examined the protections provided by the Eighth Amendment in the context of prisoner-on-prisoner sexual abuse. In Farmer v. Brennan, a 1994 decision involving the rape of a transexual inmate, the Supreme Court ruled that a prison official violates the Eighth Amendment if, acting with deliberate indifference, he exposes a prisoner to a substantial risk of sexual assault.(115) Confirming the previous holdings of a number of lower courts, the Farmer court acknowledged that prison rape is constitutionally unacceptable; indeed, the court stated explicitly that being sexually abused in prison is "not part of the penalty that criminal offenders pay for their offenses."(116)

While the Supreme Court's rhetorical stand against prisoner-on-prisoner violence and sexual abuse is encouraging as a statement of principle, it ignores the formidable legal barriers to the success of suits challenging such abuses. The primary obstacle to such cases is the subjective intent requirement, mentioned above. As will be described in greater detail in chapter VIII of this report, proving terrible conditions or terrible abuses is not enough; the prisoner must also prove that the prison official who is sued knew of and disregarded the conditions.(117)

Notably, this "actual knowledge" requirement is imposed not only in cases in which prisoners seek damages for past abuses, but also in cases in which prisoners seek remedial action to prevent continuing abuses.(118) In other words, a court will allow the infliction of abusive conditions if such conditions cannot be shown to be the result of prison officials' deliberate indifference. As noted in the concurrence to the leading Supreme Court decision on this question, such a rule means that inhumane conditions can easily go unredressed due to the courts' "unnecessary and meaningless search for 'deliberate indifference.'"(119)

The failure of prison authorities to provide proper treatment for the physical injuries, communicable diseases, and psychological suffering that often accompany sexual abuse is also subject to scrutiny under the Eighth Amendment. The courts have held that the medical care a prisoner receives is just as much a "condition" of his confinement as the food he is fed, the clothes he is issued, and the protection he is afforded against other inmates.(120) Although the inadvertent failure to provide adequate medical care is not legally actionable, the deliberate deprivation of proper medical treatment is.(121)

The role of the U.S. Department of Justice in enforcing the U.S. Constitution

Constitutional protections on prisoners' rights may be enforced by the U.S. Department of Justice (DOJ) acting under statutory authority. The DOJ may criminally prosecute a person "acting under color of state law"(122) for violating a prisoner's constitutional rights, under Sections 241 and 242 of Title 18 of the United States Code.(123) The DOJ also may investigate allegations of unconstitutional conditions in a state's prisons under the Civil Rights of Institutionalized Persons Act and bring a civil suit against a state. In addition, the Violent Crime Control and Law Enforcement Act of 1994 added Title 42, United States Code, Section 14141, under which the DOJ also may enforce the constitutional rights of prisoners through civil suits. All of these statutes are, however, subject to prosecutorial discretion. The DOJ has no affirmative obligation to enforce them in every instance, nor, it should be emphasized, does it have the resources to do so.

Criminal Enforcement: Title 18, U.S. Code, Sections 241 and 242

The evidentiary burden imposed under Title 18, United States Code, Sections 241 and 242, makes it extremely difficult to convict someone under criminal law for violating a prisoner's constitutional rights. To convict a public official, the DOJ must not only prove beyond a reasonable doubt that a constitutional right has been violated, but also that the public official had the "specific intent" to deprive the prisoner of that right.(124) The specific intent requirement creates a substantial burden for the DOJ to meet because it must show that an official knowingly and willfully participated in violating a prisoner's constitutional right.(125)

The U.S. government has provided only limited resources for the prosecution of such suits.(126) According to official data, the DOJ's Criminal Section receives some 8,000-10,000 complaints annually, the majority involving allegations of official misconduct, and files charges in forty to fifty criminal cases--less than 1 percent of complaints.(127) Only some of these cases involve correctional officials; the rest involve other law enforcement officials.

Civil Enforcement under CRIPA

The DOJ may also institute civil suits for abuses in state and local prisons which violate the civil rights of prisoners under the Civil Rights of Institutionalized Persons Act (CRIPA).(128) Congress passed CRIPA in 1980 to enable the federal government to investigate and pursue civil suits against state institutions that the attorney general suspects of violating the U.S. Constitution. Prior to CRIPA's enactment, the government had only limited authority to intervene in private lawsuits alleging a violation of constitutional rights inside state institutions.(129) Before suing a state under CRIPA, the DOJ must have "reasonable cause to believe" that a state institution is engaging in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" that violate the U.S. Constitution. Reasonable cause may be obtained through an investigation of a prison. According to the DOJ, it decides to investigate when it acquires a "sufficient body of information" to indicate the existence of abuses that may rise to the level of a constitutional violation.(130) The DOJ receives information from a variety of sources, including individual prisoners, public interest and defense attorneys, and corrections staff.

Once the DOJ decides to investigate, it must first file a letter with the state and the prison's director stating its intention to investigate and giving state officials seven days' notice. During an investigation, DOJ investigators--attorneys with the DOJ and consultants--conduct personal interviews with prisoners, tour the facilities, and review documentation and institutional records to determine whether unconstitutional conditions exist. The DOJ takes the position that its authority under CRIPA to determine whether unconstitutional conditions exist necessarily includes the right to enter state prisons to examine such conditions.(131) In 1994, one federal court in Michigan refused to issue a court order giving the DOJ access to investigate.(132) This decision, however, appears to reflect the exception rather than the rule.(133)

Once the on-site investigation is complete, the DOJ must issue a letter to the state that summarizes its findings and sets forth the minimum steps necessary to rectify any unconstitutional conditions found. Under CRIPA, forty-nine days after this letter is received by the state, the DOJ may sue the state to remedy the constitutional violations. The U.S. attorney general must personally sign the complaint and, according to DOJ representatives, all possibility of a settlement must be exhausted. As a result, suits are generally filed well after the forty-nine-day period has passed. The DOJ has said that CRIPA contemplates that the state and the DOJ will attempt an amicable resolution of the problem and that many cases are, in fact, resolved through negotiated settlements and consent decrees.(134)

The Special Litigation Section of the Civil Rights Division of DOJ, the unit responsible for enforcing CRIPA, does not have nearly enough staff to fulfill its mandate.(135) Made up of twenty-six lawyers (including supervisors), it handles a handful of cases involving a tiny minority of the country's prisons.(136) In all, in fiscal year 1999, the Special Litigation Section opened three new jail investigations; sent findings letters to seven correctional facilities, including two prisons; and settled three cases involving prisons or jails.(137)

The role of civil litigation in enforcing the U.S. Constitution

Unsurprisingly, given the inadequacies of official enforcement efforts, most attempts to prevent or redress prison abuses are initiated by prisoners. The usual method for challenging abusive practices or conditions is via civil litigation under Section 1983 of Title 42 of the U.S. Code. Because of constitutional rules barring suits under federal law against states as such, individual corrections authorities are generally named as defendants in Section 1983 actions.(138)

Section 1983 is a civil rights statute dating from the post-Civil War era that was revived in the 1960s as a tool for enforcing the U.S. Constitution.(139) A 1964 Supreme Court decision confirmed that prisoners could rely upon Section 1983 in challenging conditions that violated their constitutional rights.(140) All or nearly all of the landmark prison conditions precedents that followed were litigated under the statute.

Prisoners' lack of legal representation

Because most prisoners are indigent and unable to afford the costs of litigation, they must look either to public interest lawyers who work for free or private lawyers who work on a contingency fee basis to obtain legal representation in suits challenging prison abuses.(141) Both options are exceedingly limited.

A 1996 law greatly reduced the number of public interest lawyers available to litigate on behalf of inmates by barring the federal Legal Services Corporation from funding legal aid organizations that represent prisoners, adding prisoners to a list of forbidden clients (along with undocumented aliens and women seeking abortions).(142) Those public interest organizations that continue to handle prison cases are generally so overburdened that they rarely accept individual suits, focusing instead on reforming overall prison policies via class action litigation.(143) A few states have legal services organizations specifically directed toward inmate lawsuits, such as New York's Prisoners' Legal Services, but these too are normally short-staffed and often suffer chronic funding shortages.(144)

Nor do private lawyers handle many cases involving prison abuses. The difficulties of winning such cases and of obtaining reasonable damages awards, given popular animosity toward prisoners, has meant that the field of prison litigation has never been very lucrative, and thus never very attractive to private lawyers.(145) In addition, the fact of incarceration--especially with so many prisons located in remote rural areas--makes attorney-client communications more difficult and expensive, requiring attorneys to travel long distances to interview their inmate clients. The passage of the PLRA, with its additional disincentives to litigation, has made private lawyers even less willing to represent inmates on a contingency fee basis.

Inmate pro se litigation

Because of the many obstacles to obtaining legal representation, the vast bulk of prison conditions litigation arises via complaints filed by prisoners acting pro se, that is, without professional legal counsel.(146) Indigent inmates file many thousands of pro se lawsuits each year.(147) Indeed, much of the case law pertaining to prisoner-on-prisoner sexual abuse is the result of suits initiated by pro se plaintiffs.(148)

Like all persons lacking legal training, pro se inmate plaintiffs face a very difficult time in court. Not only are they unfamiliar with the law, both substantively and procedurally, and often uneducated, but being incarcerated makes it much harder for them to do the factual and legal research necessary to successfully litigate a case. Most inmates even lack access to a typewriter on which to draft their pleadings, instead filing handwritten--or scrawled--documents with the court.(149) More fortunate prisoners have the aid of do-it-yourself legal manuals that sketch out the legal rules applicable in the prison context and walk the prisoner through the relevant legal procedures.(150) Others obtain assistance from "writ writers" or "jailhouse lawyers"--inmates who have trained themselves in law and procedure. Yet all too many prisoners have no knowledge of the law, no legal assistance, and no possibility of successfully pursuing a legal case, no matter how egregious the abuses they suffer while incarcerated. While a few inmate plaintiffs manage to negotiate monetary settlements with prison authorities or even win their cases, most of them fail in their efforts.(151) Their complaints are often dismissed for procedural errors or other legal shortcomings in the early stages of litigation. Their legal failures, however, may have little to do with the validity of their underlying claims.(152)

Under the U.S. Constitution, prisoners are guaranteed a right of access to the courts. The landmark case of Bounds v. Smith, decided in 1977, was an important step toward making this guarantee more than a hollow one: it purported to insure that inmate access to the courts was "adequate, effective, and meaningful."(153) Specifically, it held that prisons must provide inmates with adequate law libraries or adequate assistance from persons trained in the law. Yet more recent judicial decisions--in particular the case of Lewis v. Casey--have greatly eroded the constitutional duty imposed on prison authorities to facilitate prisoners' legal efforts.(154) The passage of the PLRA, designed in part to hinder "frivolous" inmate litigation, has placed additional burdens on inmate plaintiffs. Finally, numerous state legislatures have passed similar laws to limit prisoner lawsuits by, for example, requiring inmates to pay filing fees or sanctioning inmates found to have filed frivolous suits.(155) While such laws may discourage unnecessary and groundless litigation, they are equally likely to prevent inmates with valid claims from asserting their rights in court.

International Legal Protections

The overriding weakness of the national legal protections described above--the lack of effective enforcement--is even more glaring with regard to international legal protections. International human rights law reflects ample concern for prisoners' rights. Even more than U.S. domestic law, international legal norms are directed toward the humane treatment and rehabilitation of prisoners. Yet, no mechanism exists to ensure their enforcement in U.S. prisons and jails, and there are very few official avenues even for monitoring their implementation.

Treaties and authoritative guidelines

The chief international human rights documents binding on the United States clearly affirm that the human rights of incarcerated persons must be respected. The International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both ratified by the United States, prohibit torture and cruel, inhuman, or degrading treatment or punishment, without exception or derogation. The ICCPR mandates that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."(156) It also requires that the "reformation and social rehabilitation" of prisoners be an "essential aim" of imprisonment.(157)

Several additional international documents flesh out the human rights of persons deprived of liberty, providing guidance as to how governments may comply with their obligations under international law. The most comprehensive such guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the Economic and Social Council in 1957. Other relevant documents include the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, adopted by the General Assembly in 1988, and the Basic Principles for the Treatment of Prisoners, adopted by the General Assembly in 1990. Although these instruments are not treaties, they provide authoritative interpretations as to the practical content of binding treaty standards.(158)

These documents reaffirm the tenet that prisoners retain fundamental human rights. As the most recent of these documents, the Basic Principles, declares:

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.(159)

Endorsing this philosophy in 1992, the United Nations Human Rights Committee explained that states have "a positive obligation toward persons who are particularly vulnerable because of their status as persons deprived of liberty" and stated:

[N]ot only may persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment], including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment.(160)

No international law provisions specifically pertain to rape in prison, but international tribunals and other bodies have established that rape is covered by international prohibitions on torture or cruel, inhuman or degrading treatment.(161) Although there is no general definition of rape in international human rights law, rape has been authoritatively defined as "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."(162) It is important to note, in addition, that sexual abuse that falls short of rape--aggressive sexual touching, etc., that does not involve physical penetration--may also violate international protections against ill-treatment.(163)

Somewhat more complicated is the question of prison authorities' responsibility for preventing prisoner-on-prisoner abuses such as rape. On this point, the language of the Convention against Torture is instructive. In defining torture and cruel, inhuman or degrading treatment or punishment, it includes not only acts committed by public officials, but also acts committed with their "acquiescence."(164) That is, international human rights law bars the state from tolerating rape and perpetuating conditions conducive to its occurrence. In the prison context, where most conditions are directly attributable to the state, and where inmates have been deprived of their liberty and the means of self-protection, the prohibition on torture and other ill-treatment translates into an affirmative duty of care. With regard to rape, as with other inter-prisoner abuses, correctional authorities must take reasonable measures to protect inmates from other inmates.(165) Although not every incident of prisoner-on-prisoner rape necessarily proves a failure to fulfill this duty, a pattern of rape indicates that the official response to the problem is inadequate.

The prohibition on slavery

Sexual slavery is a form of slavery recognized as such under international law and prohibited under both treaty law and customary international law.(166) Notably, "[t]he crime of slavery does not require government involvement or State action, and constitutes an international crime whether committed by State actors or private individuals."(167)

The 1926 Slavery Convention, to which the United States is a party, describes slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised," a definition that includes, as modern commentators have noted, "sexual access through rape or other forms of sexual violence."(168) The Convention specifically calls on states to impose "severe penalties" for instances of slavery in order to accomplish the goal of eradicating the abuse "in all of its forms."(169) Other international treaties ratified by the United States also bar slavery, including the ICCPR.(170)

In its more extreme cases, prisoner-on-prisoner sexual abuse can constitute a form of sexual slavery. As is described in detail below, some prisoners have been raped on a repeated basis; forced to work for other prisoners by cleaning their cells, washing their clothes, cooking and running errands for them; deprived of almost all independence and autonomy; forced into prostitution, and even bought and sold by other prisoners. Each of these abuses, let alone all of them at once, suggests a situation of slavery.(171)

Barriers to the implementation of international protections

The United States has long been resistent to subjecting itself to scrutiny under international human rights law, demonstrated both by its failure to ratify numerous key human rights treaties, and by its insistence on attaching limiting reservations, declarations and understandings to any instruments that it does ratify. The limiting provisions that the U.S. attached to its ratification of the ICCPR and the Convention against Torture--which are among the longest and most detailed of any country that has ratified the two instruments--work both substantively, by restricting the scope of the treaties, and procedurally, by restricting their usefulness in court proceedings.(172) In all, they are indicative of U.S. reluctance to allow international protections to make any real impact in broadening or extending the rights granted its citizens.

The primary substantive limitations on prisoners' rights are the U.S. reservation to Article 7 of the ICCPR, by which it declares that the treaty's prohibition on torture and cruel, inhuman or degrading treatment or punishment applies only to the extent that the provision covers acts already barred under the U.S. Constitution, and its similar reservation to Article 16 of the Convention against Torture.(173) In effect, the U.S. government has chosen to nullify these standards to the extent that they grant broader rights than those already guaranteed under the U.S. Constitution. Such reservations are extremely controversial. Indeed, several other governments have explicitly protested them.(174) As these governments have pointed out, reservations like these, which are incompatible with the object and purpose of a treaty, are void.(175) In 1995, the U.N. Human Rights Committee, charged with monitoring the implementation of the ICCPR, also found the U.S. reservation to Article 7 of that instrument to be incompatible with its object and purpose.(176)

Human Rights Watch agrees with this analysis, finding that the U.S. attempt to narrow these treaties' coverage is incompatible with the treaties' goal of preventing a wide range of human rights abuses.(177) We therefore hold the U.S. to the full scope of the prohibition on torture and other ill-treatment contained in the ICCPR and Convention against Torture. Notably, this broad prohibition--which bars abusive treatment as well as punishment--lacks the stringent intent requirement that U.S. courts have found in the Eighth Amendment, which bars only abusive punishments. The distinction is of particular relevance in cases of prisoner-on-prisoner sexual assault, where prison authorities are frequently exonerated because they lacked the necessary intent.

In ratifying the ICCPR and the Convention against Torture, the U.S. government did not limit itself to attempting to impose substantive restrictions. Procedurally, the U.S. government attempted to limit the effectiveness of both treaties by declaring that their provisions are "non-self-executing." In other words, the government declared that the treaties cannot be directly relied upon in U.S. courts, but require enabling legislation before violations of their provisions can serve as the basis of a lawsuit. To date, no U.S. court that has considered the issue has found either treaty to be self-executing, nor has legislation been passed to fully implement their provisions within the United States.(178) The effect of the declarations, therefore, has been to greatly diminish the practical usefulness of the treaties in prison litigation.

The Slavery Convention, in contrast, was ratified without any restrictions, and was not declared non-self-executing. As far as Human Rights Watch has been able to ascertain, however, no one has ever filed suit under the Convention for prisoner-on-prisoner rape.

International monitoring of conditions

A number of official U.N. bodies are charged with monitoring the implementation of human rights treaties. The Human Rights Committee and the Committee against Torture monitor states' compliance with the ICCPR and the Convention against Torture, respectively.(179) The Slavery Convention, drafted decades earlier, does not contain a reference to any particular official monitoring body, but responsibility for monitoring the problem of slavery has been generally assigned to the U.N.'s Working Group on Contemporary Forms of Slavery.(180)

Both the ICCPR and the Convention against Torture require states parties to submit periodic compliance reports describing the extent to which the treaty provisions are applied and explaining any obstacles to the full implementation of the instruments. In 1994, the U.S. presented its first report on compliance with the ICCPR, and in 1999--four years after it was due--the U.S. submitted its first report on compliance with the Convention against Torture. Both reports contain detailed descriptions of the constitutional and legal structures existing for the protection of prisoners' rights, and the rules applicable in state and federal prisons, but they included little factual information on conditions and violations. Nor did either document address the question of prisoner-on-prisoner sexual abuse.(181)

The U.N. committees that review these reports do not actually visit countries to conduct factual investigations of conditions. Their assessment of compliance is therefore based on the information provided by governments, supplemented by the reports of nongovernmental groups. Although they do release a short written statement evaluating the government's progress in implementing the human rights treaty at issue, these reports appear to have little impact on human rights conditions in the United States.(182)

For the past several years, a U.N. working group has been meeting annually to hammer out a draft treaty that would establish a U.N. subcommittee authorized to make periodic and ad hoc visits to places of detention in states party to the treaty, including prisons, jails, and police lockups. Based on the information obtained during its visits, the subcommittee would make detailed recommendations to state authorities regarding necessary improvements to their detention facilities. The goal of the subcommittee would be to prevent torture and other ill-treatment. Such a body, which already exists within the European human rights system, might be able to make a practical impact in improving prison conditions in the countries it visits. U.S. membership in such a body if and when it is established--although unlikely, given the U.S. record of avoiding such scrutiny--would be of great benefit.





95. Typical of this view were the words of a federal court in 1949:

    This Court . . . is not prepared to establish itself as a "co-administrator" of State prisons along with the duly appointed State officials . . . . [I]t is not the function of a Federal Court to assume the status of an appellate tribunal for the purpose of reviewing each and every act and decision of a State official.

Siegel v. Ragen, 88 F. Supp. 996 (D.C. Ill. 1949).

96. Hudson v. McMillian, 503 U.S. 1, 17 (1992) (Thomas, J., dissenting).

97. See, for example, Estelle v. Gamble, 429 U.S. 97 (1976); Dothard v. Rawlinson, 433 U.S. 321 (1977).

98. See, for example, Francis A. Allen, "The Decline of the Rehabilitative Ideal in American Criminal Justice," Cleveland State Law Review, Vol. 27, 1978, p. 147.

99. The criticisms of Supreme Court Justice Clarence Thomas--who complained that prisons conditions rulings from the 1970s effectively "transform federal judges into superintendents of prison conditions nationwide"--are emblematic of this attitude. Farmer v. Brennan, 511 U.S. 825, 839 (1994) (Thomas, J., concurring).

100. See, for example, Amnesty International, "United States of America: Florida Reintroduces Chain Gangs," AMR 51/02/96, January 1996; Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997), pp. 17-20 (describing national trend toward super-maximum security prisons); Amnesty International, "Rights for All. Cruelty in Control? The Stun Belt and Other Electro-Shock Equipment in Law Enforcement," AMR 51/54/99, June 1999 (discussing the use of stun weapons in prisons and jails). An indicator of the strength of continuing public antipathy toward prisoners can be found on the website of the Florida Department of Corrections. The site includes the results of a public opinion poll on prison issues and a page called "Eight Misconceptions about Florida Prisons." The poll concludes that 96 percent of Florida's public approve of requiring prisoners to do unpaid work and that 73 percent approve of the use of prison chain gangs. The "misconceptions" that the page forcefully dispels include the notion that prisoners are not made to work, that they are allowed cable television, and that prisons are air-conditioned.

101. In the mid-1990s, in particular, it seemed that politicians' outrage over inmate litigation knew no bounds. Ignoring real prison abuses, they publicized only the most factually absurd lawsuits, creating what one commentator described as "the meta-narrative of the frivolous." Henry F. Fradella, "A Typology of the Frivolous: Varying Meanings of Frivolity in Section 1983 Prisoner Civil Rights Litigation," Prison Journal, December 1998, p. 470. See, for example, Paula Boland, "Prisoners Deserve Punishment, Not Perks," July 1996 (position paper by member of the California Assembly, complaining that "inmates receive three meals a day, free medical, dental and vision care, free stationary, postage and free laundry services!"), available: http://www.calgop.scvcr/pb0796.htm (September 1996); "Lance to Testify against Frivolous Inmate Lawsuits," January 1996 (position paper by Idaho attorney general), available: http://www.state.id.us/ag/middle/releases/0126friv.htm (September 1996); Gregg Birnbaum, "Vacco wants restrictions on inmates' petty suits," New York Post, October 19, 1995 (on attempts by New York Attorney General Dennis Vacco to impose filing fees on inmate lawsuits).

As generally portrayed in the media, inmate litigation was reduced to stories of prisoners who went to court over broken cookies and lukewarm soup. See, for example, Sandra Ann Harris, "Crime: Inmate Lawsuits Costly to Taxpayers," Detroit News, October 23, 1995. Especial emphasis was placed on the cost to taxpayers of defending against frivolous lawsuits filed by inmate litigants. The NBC Nightly News reportedly aired a segment in 1996 on the "The Fleecing of America," focusing on this issue, while the April 1996 issue of Reader's Digest contained a similar piece. D. Van Atta, "The Scandal of Prisoner Lawsuits," Readers's Digest, April 1996, p. 65; Nat Hentoff, "Our 'Overprivileged' Prisoners," Washington Post, March 29, 1997. Unfortunately, stories of legitimate inmate lawsuits--challenging horrendous conditions of incarceration, unchecked violence, and custodial sexual abuse--rarely received such coverage.

102. See 18 U.S.C.A. 3626.

103. The PLRA provision on filing fees provides that if a prisoner has brought three or more lawsuits that have been dismissed as frivolous, malicious, or as having failed to state a claim, that prisoner is barred from obtaining in forma pauperis (indigent) status, a prerequisite for the reduction of filing fees. As the courts have explained it, "Congress enacted the PLRA with the principal purpose of deterring frivolous prison litigation by instituting economic costs for prisoners wishing to file civil claims." Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997). Yet it is clear to Human Rights Watch that numerous prison suits are dismissed as frivolous because prisoners lack legal skill and, in some case, because judges simply lack interest in their claims, not because the prisoners' claims actually lack merit. By imposing filing fees on prisoners who have no money to pay them, the provision has the effect of creating a class of poor prisoners for whom the courthouse door is closed.

104. See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Plyler v. Moore,100 F.3d 365 (4th Cir. 1996), cert. denied, 117 S. Ct. 2460 (1997); Dougan v. Singletary, (11th Cir. 1997); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998); Wilson v. Yaklich, 148 F.3d 596, 606 (6th Cir. 1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997).

105. Courts have relied upon other constitutional amendments to resolve a limited range of prison issues. Prominent among them is the Fourth Amendment prohibition against unreasonable searches and seizures, which has been interpreted as granting inmates a limited right to privacy. See, for example, United States v. Hinckley, 672 F. 2d 115 (D.C. Cir. 1982); Frazier v. Ward, 528 F. Supp. 80 (S.D.N.Y. 1981). The First Amendment, in addition, has been used in the prison context in cases involving religious freedom and free expression. See, for example, O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Pell v. Procunier, 417 U.S. 817 (1974); Cruz v. Beto, 405 U.S. 319 (1972). All of these provisions, and the Eighth Amendment as well, are not directly applicable to the actions of state governments, but are instead applied to the states via the Fourteenth Amendment.

106. Because the Eighth Amendment bars cruel and unusual punishment, and because pretrial detainees are not supposed to be subject to any punishment at all, the courts have ruled that the Eighth Amendment is not directly applicable in cases involving pretrial detainees. Yet, in practice, the standards applied to pretrial detainees under the Fifth Amendment's Due Process Clause have followed those applied to convicted prisoners under the Eighth. See generally Bell v. Wolfish, 441 U.S. 520 (1979).

107. Farmer, 511 U.S. at 832 (internal quotations omitted).

108. DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 199 (1989).

109. Whitley v. Albers, 475 U.S. 312, 319 (1986).

110. Hudson v. McMillian, 503 U.S. 1, 14 (1992).

111. Wilson v. Seiter, 501 U.S. 294, 298 (1991).

112. Hudson, 503 U.S. at 10; Whitley, 475 U.S. at 320-21.

113. Wilson, 501 U.S. at 303. The Supreme Court did not define "deliberate indifference" in Wilson. In the 1994 Farmer decision, however, it ruled that prison officials must know of the risk and fail to take reasonable measures to prevent it.

114. See Hudson v. Palmer, 468 U.S. 517 (1984).

115. Farmer, 511 U.S. 825.

116. Ibid. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (internal quotations omitted).

117. Farmer, 511 U.S. at 837.

118. See Wilson v. Seiter, 501 U.S. 294 (1991).

119. Ibid. at 311 (White, J., concurring in the judgment).

120. Wilson, 501 U.S. 294.

121. Ibid.

122. The requirement of "under color of state law" means that a state official must be using his or her authority as a state official when the violation occurs. A state official may still be acting under color of law even if the conduct violates state law. Screws v. United States, 325 U.S. 91, 109 (1945). In order to be actionable, the misuse of power must be made possible by the actor's authority under state law. Ibid.

123. Sections 241 and 242 are both general civil rights provisions, and their application is not limited to abuses within prisons. Title 18, United States Code, Section 241 provides, in relevant part: "[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State . . . in the free exercise or enjoyment of any right or privilege secured to him [or her] by the Constitution or laws of the United States, or because of his [or her] having so exercise of the same . . . [t]hey shall be fined or imprisoned not more than ten years, . . . or both."

Section 242 provides, in relevant part: "Whoever, under color of law, statute, ordinance, regulation, or custom, willfully subjects any person in any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, the attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include . . . aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, . . . shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."

124. Screws, 325 U.S. at 103 (18 U.S.C. Section 242); United States v. Guest, 383 U.S. 745, 760 (1966) (18 U.S.C. Section 241).

125. Screws, 325 U.S. at 101-03.

126. See Paul Hoffman, "The Feds, Lies and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America," Southern California Law Review, Volume 66, p. 1522 (1993).

127. U.S. Department of State, Initial Report of the United States of America to the U.N. Committee Against Torture, October 15, 1999 (hereinafter DOS 1999 Torture Report).

128. 42 U.S.C. Section 1997 et seq.

129. See, for example, Canterino v. Wilson, 538 F. Supp. 62 (W.D. Ky. 1982); Senate Reports Number 96-416, 96th Congress, Second Session (1980), reprinted in 1980 United States Code Congressional and Administrative News, pp. 787, 797.

130. The investigation itself must be triggered by a published report or information from a source with personal knowledge about allegations that constitutional rights are being violated.

131. Ibid.

132. United States v. Michigan, 868 F. Supp. 890 (W.D. Mich. 1994).

133. Courts prior to the Michigan decision repeatedly upheld DOJ requests to enter institutions and conduct investigations. See U.S. v. County of Los Angeles, 635 F. Supp. 588 (C.D. Cal. 1986); U.S. v. County of Crittenden, Civil Action No. JC89-141, 1990 WESTLAW 257949 (E.D. Ark. December 26, 1990).

134. Human Right Watch telephone interview, Mellie Nelson, Deputy Chief, Special Litigation Section, Civil Rights Division, Department of Justice, March 30, 2000.

135. Besides remedying abusive prison and jail conditions, the Special Litigation Section is also responsible for the enforcement of legal standards covering conditions in mental institutions, protecting clinics providing reproductive health services, and remedying patterns or practices of police misconduct.

136. As of March 2000, the section planned to hire eight additional staff attorneys. Human Right Watch telephone interview, Mellie Nelson, Department of Justice, March 30, 2000.

137. Human Right Watch telephone interview, Mellie Nelson, Department of Justice, March 30, 2000. The section also filed a consent decree for a case involving prisons and jails in the Northern Mariana Islands.

138. The Eleventh Amendment bars suits in federal court against a U.S. state as such, unless the state has waived its immunity. Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987). In addition, Section 1983 grant of federal jurisdiction does not extend to suits against states or state officials acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).

Cases involving conditions in federal prisons, where Section 1983 does not apply, are generally based on the precedent established by the case of Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 (1971). In Bivens, the Supreme Court ruled that officials of the federal government may be held personally liable for actions undertaken in their official capacity.

139. See Monroe v. Pape, 365 U.S. 167 (1961). Section 1983 was initially passed to protect African Americans in the South from reprisals during Reconstruction. It was known as the Civil Rights Act (originally the Ku Klux Klan Act) of 1871 and was later recodified as 42 U.S.C. Sec. 1983. It provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

140. Cooper v. Pate, 378 U.S. 546 (1964) (reinstating complaint of Muslim inmate denied permission to purchase religious publications).

141. Unlike lawyers in most other countries, U.S. lawyers may work on a contingency fee basis, typically taking a quarter to a third of any damages award won in a lawsuit. In essence, such lawyers are betting on the success of their clients' claims to damages. This practice allows many plaintiffs to obtain legal counsel who would otherwise be unable to afford it.

142. Section 504(a)(15) of the 1996 appropriations act for the Legal Services Corporation (LSC), Public Law 104-134, 110 Stat. 1321 (1996), prohibits the participation of LSC recipients in any litigation on behalf of prisoners. Not only does the law bar legal services lawyers from taking on new prison cases, its passage disrupted numerous ongoing court cases, such as a New Hampshire class action asserting that the state had relegated mentally ill prisoners to harsh high-security cells. Nina Bernstein, "2,000 Inmates Near a Cutoff of Legal Aid," New York Times, November 25, 1995.

143. Class action litigation refers to cases in which an entire class of similarly situated plaintiffs, as opposed to a single plaintiff, files suit. The ACLU National Prison Project (NPP), based in Washington, D.C., is perhaps the best known of the organizations that specialize in inmate class action suits, having litigated some of the most important prison cases of the past few decades. Among its many critical interventions, the NPP represented the inmate plaintiff in argument before the Supreme Court in the case of Farmer v. Brennan, the first case in which the Court faced the issue of sexual abuse in prison. Some local ACLU affiliate offices also handle prison cases.

144. The situation of Prisoners' Legal Services, established in the wake of the brutal suppression of the inmate uprising at the prison of Attica, N.Y., is all too typical. In the past few years, the organization's funding has been cut; it has been forced to lay off staff, and its very survival has been threatened. At one point, its legal department consisted of little more than the executive director. See Clyde Haberman, "Attica's Ghost in the Shadow of Pataki Veto," New York Times, July 28, 1998.

145. Consider, for example, the case of Butler v. Dowd, in which the jury found that three young inmates had been brutally raped due to prison officials' deliberate indifference, but only awarded the plaintiffs the sum of one dollar each in nominal damages. Butler v. Dowd, 979 F. 2d 661 (1992).

146. Roger A. Hanson and Henry W.K. Daley, "Challenging the Conditions of Prisons and Jails: A Report on Section 1983 Litigation," U.S. Department of Justice, February 1995 (providing data showing that 96 percent of prisoners proceed pro se).

147. Ibid.

148. For example, the landmark case of Farmer v. Brennan--the only prison rape case to be heard by the Supreme Court--was filed by an inmate acting pro se; legal counsel was not provided until the case was on appeal. Other precedents involving inmate pro se plaintiffs include: Risley v. Hawk, 918 F. Supp. 18 (D.D.C. 1996); Jones v. Godinez, 918 F. Supp. 1142 (N.D. Ill. 1995); Blackmon v. Buckner, 932 F. Supp. 1126 (S.D. Ind. 1996). More commonly, however, courts summarily dispose of cases filed by inmates via unpublished memorandum opinions. See, for example, Collier v. Zimmerman, 1988 WL 142788 (E.D. Pa. 1988) (dismissing complaint of rape as frivolous even though the plaintiff made several statements indicating that his claim was valid); Ginn v. Gallagher, 1994 U.S. Dist. LEXIS 16669 (E.D. Pa. 1994) (granting summary judgment for the defendants in case alleging prison rape); Hunt v. Washington, 1993 U.S. Dist. LEXIS 681 (N.D. Ill. 1993) (dismissing complaint of attempted rape).

149. Numerous prisoners have mailed Human Rights Watch their handwritten legal documents. Some of these legal briefs--meticulously drafted, complete with supporting affidavits, citing to all of the relevant legal precedents--are twenty or thirty pages long. One wonders about the reception of such documents in the courts: particularly whether anyone takes the time to read and understand them.

150. Two important such resources are the Jailhouse Lawyer's Manual, published by Columbia University, and the Prisoners' Self-Help Litigation Manual. Columbia Human Rights Law Review, A Jailhouse Lawyer's Manual, 4th ed. (New York: Columbia University School of Law, 1996); John Boston and Daniel E. Manville, Prisoners' Self-Help Litigation Manual, 3rd ed. (New York: Oceana Publications, 1996).

151. Hanson and Daley, "Challenging the Conditions . . . " (stating that more than 94 percent of prisoner lawsuits are unsuccessful).

152. Typical of such cases is Collier v. Zimmerman, 1988 WL 142788 (E.D. Pa. 1988), in which the plaintiff alleged that he had been raped on two separate occasions by different inmates. The court acknowledged that the several of the plaintiff's statements indicated that he had a valid claim--that the prison authorities might have wrongly failed to protect him from rape. It found the plaintiff's allegations lacking in the proper specificity, however, and thus dismissed the complaint.

Discussing such cases, a recent article notes that "'frivolous' is not the same as 'nonmeritorious.' A claim could be dismissed as frivolous because some technical requirement of constitutional law was not met, but such a disposition is not necessarily a reflection on the merit or lack thereof of the substantive allegations raised in any given complaint." Henry F. Fradella, "A Typology of the Frivolous: Varying Meanings of Frivolity in Section 1983 Prisoner Civil Rights Litigation," The Prison Journal, December 1998, p. 474.

Describing the handicaps facing pro se inmate litigants, one federal judge noted:

    A collection of books is never a substitute for a lawyer. We should not romanticize what even a jailhouse lawyer, much less a poorly-educated inmate, can accomplish by rummaging for a few hours in a limited collection. Many intelligent prisoners can pick up the lingo of the law; very few of them can put it all together and present a persuasive petition or claim.

Toussaint v. McCarthy, 926 F.2d 800, 815 (9th Cir. 1990).

153. Bounds v. Smith, 430 U.S. 817 (1977).

154. A 1996 Supreme Court decision, Lewis represents a huge step backwards from the principles enunciated in Bounds. In Lewis, a divided Court ruled that even the total absence of a prison law library does not violate the Constitution unless a prisoner can show that he or she was effectively barred from pursuing a "nonfrivolous" legal claim as a result of the deprivation, and thus suffered "actual injury." Lewis v. Casey, 516 U.S. 804 (1996). The practical effect of Lewis is to make it much more difficult for prisoners to challenge a lack of legal services or facilities. See David W. Wilhelmus, "Where Have All The Law Libraries Gone?" Corrections Today, December 1999, p. 153.

155. See, for example, Larry Fugate, "New Law Cracks Down on Frivolous Inmate Lawsuits," Daily Reporter (Columbus, Ohio), July 19, 1996; Elisa Crouch, "Sue at Your Own Risk," Missouri Digital News, September 1, 1995; "Pa. House Approves Legislation That Would Curb Inmates' Lawsuits," Philadelphia Inquirer, January 21, 1998.

156. ICCPR, art. 10(1).

157. ICCPR, art. 10(3).

158. See, for example, the U.N. Human Rights Committee's decision in Mukong v. Cameroon, in which it cites various violations of the Standard Minimum Rules as evidence showing that the complainant was subject to cruel, inhuman and degrading treatment. Mukong v. Cameroon (No. 458/1991) (August 10, 1994), U.N. Doc. CCPR/C/51/D/458/1991. The authority of the Standard Minimum Rules has also been recognized in U.S. courts, which have cited them as evidence of "contemporary standards of decency" relevant in interpreting the scope of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 103-04 & n. 8 (1976); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F. 2d 392, 396 (2d Cir. 1975); Williams v. Coughlin, 875 F. Supp. 1004, 1013 (W.D.N.Y. 1995); Lareau v. Manson, 507 F. Supp. 1177, 1187-89 & n. 9 (1980) (describing the Standard Minimum Rules as "an authoritative international statement of basic norms of human dignity and of certain practices which are repugnant to the conscience of mankind").

159. Body of Principles, art. 5.

160. U.N. Human Rights Committee, General Comment 21, paragraph 3. The Human Rights Committee, a body of experts established under the ICCPR, provides authoritative interpretations of the ICCPR though the periodic issuance of General Comments.

161. See, for example, Aydin v. Turkey, Eur. Ct. of H.R., Judgment of 25 September 1997, paras. 62-88; Prosecutor v. Furundija, ICTY, Case No. IT-95-17/1-T, Judgment of 10 December 1998, paras. 163-86.

162. Judgment, International Criminal Tribunal for Rwanda (ICTR), Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (2 September 1998), para. 38 (hereinafter Akayesu judgment). In the Akayesu decision, which involved a Rwandan official who encouraged the rape of Tutsi women during the genocide, the court went on to explain that: "coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion."

The Elements of Crimes corresponding to the Statute of the International Criminal Court include a similar definition of the "war crime of rape." It too speaks of the physical invasion of a person with a sexual organ, or of the penetration of a person's anal or genital openings with any object or part of the body, when such an act is committed during wartime. It requires that the invasion be committed "by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power . . . or by taking advantage of a coercive environment," or that the invasion be committed "against a person incapable of giving genuine consent." Article 8(2)(b)(xxii)-1, Elements of Crimes, Report of the Preparatory Commission for the International Criminal Court, U.N. Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000), p. 34; see also "Crime against humanity of rape," article 7(1)(g)-1, ibid., p. 12. These regulations also specifically note that "the concept of 'invasion' is intended to be broad enough to be gender-neutral." Ibid., fn. 15.

Also instructive is the definition of rape employed by the U.N. special rapporteur on rape during armed conflict. She describes rape as "the insertion, under conditions of force, coercion or duress, of any object, including but not limited to a penis, into a victim's vagina or anus; or the insertion, under conditions of force, coercion or duress, of a penis into the mouth of the victim." Significantly, she points out that: "Rape is defined in gender-neutral terms, as both men and women are victims of rape." Report of the Special Rapporteur on systematic rape, sexual slavery and slavery-like practices during armed conflict (hereinafter "U.N. sexual slavery report"), U.N. Doc. E/CN.4/Sub.2/1998/13 (22 June 1998), para. 24.

163. See, for example, All Too Familiar, pp. 52-53. In the Akeyesu decision, the court explained: "Sexual violence, including rape, is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact." Akayesu judgment, para. 38.

164. Convention against Torture, arts. 1(1) and 16(1).

165. For a discussion of this point in the context of specific prison visits, see the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the prison monitoring organ of the Council of Europe. In a 1993 report on Finland's prisons for example, the CPT expressed concern over the high level of inter-prisoner violence and criticized the "low level of supervision by staff of the activities of inmates in some areas of [Helsinki Central Prison]." Concluding that the prison authorities had to do more to counter the problem of prisoner-on-prisoner violence, it emphasized: "The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm." CPT, "Report to the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 10 to 20 May 1992," 1 April 1993, CPT/Inf (93) 8.

166. See U.N. sexual slavery report, paras. 27-28.

167. Ibid., para. 28.

168. Ibid. (quoting the Slavery Convention, art. 1(1)).

169. Slavery Convention, arts. 2 and 6.

170. ICCPR, art. 8; see also Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery.

171. See U.N. sexual slavery report, paras. 29-31 ("Implicit in the definition of slavery are notions concerning limitations on autonomy, freedom of movement and power to decide matters relating to one's sexual activity . . . . Sexual slavery also encompasses most, if not all forms of forced prostitution.").

172. By contrast, in 1929, when the U.S. ratified the Slavery Convention, it only attached one reservation--a reservation that had the effect of giving a more generous interpretation to the treaty's protections.

173. Among other U.S. reservations and understanding to the ICCPR are the following:

    That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 . . . . The United States further understands that paragraph 3 of article 10 does not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system.

174. See, for example, Statement of Sweden, June 18, 1993; Statement of Spain, October 5, 1993; Statement of Portugal, October 5, 1993; Statement of Norway, October 4, 1993; Statement of Netherlands, September 28, 1993.

175. Vienna Convention on the Law of Treaties, art. 19(3).

176. Human Rights Committee, Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995).

177. For further discussion of Human Rights Watch's position on U.S. reservations to these treaties, see Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996), pp. 47-50.

178. See, for example, White v. Paulsen, 997 F. Supp. 1380 (E.D. Wa. 1998). The U.S. government did enact implementing legislation under the Convention against Torture to allow persons tortured outside the United States to file suit in U.S. courts. Torture Victim Protection Act of 1991 (TVPA), 18 U.S.C. Sec. 2340 et seq.

179. The Human Rights Committee consists of eighteen experts acting in their individual capacities who are elected by states parties to the ICCPR. The Committee against Torture consists of ten experts acting in their individual capacities who are elected by the states parties to the Convention against Torture.

180. The Working Group consists of five independent experts from the membership of the Sub-Commission on the Promotion and Protection of Human Rights. Meeting for the first time in 1975 as the Working Group on Slavery, the group was renamed in 1988.

181. In a section outlining areas of concern in the criminal justice system, the government's 1999 report to the Committee against Torture made a brief reference to "sexual assault and abuse of prisoners by correctional officers and other prisoners." Although the report went on to discuss the custodial sexual abuse of women prisoners in some detail, it contained no further mention of the problem of prisoner-on-prisoner sexual abuse. See DOS 1999 Torture Report. The 1994 report included an even more allusive reference to the problem in its discussion of prison classification rules, which noted that "it would be dangerous to house young, inexperienced, non-violent offenders with older men who have spent a great deal of their lives in prison for the commission of violent, predatory crimes." Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant, Initial report of state parties due in 1993, Addendum, United States of America, U.N. Doc. CCPR/C/81/Add.4 (1994), para. 294.

182. The Human Rights Committee last reported on U.S. compliance in 1995. With regard to prisons, the Human Rights Committee expressed concern over overcrowding, custodial sexual abuse of women inmates, and conditions in high security prisons. Human Rights Committee, Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995).




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