Analyzing Prison Sex: Reconciling Self Expression with Safety

Abstract

This article examines the complexity of prison sex and the challenges that it raises in the context of recently enacted United States legislation, specifically the Prison Rape Elimination Act (PREA). It begins by identifying a range of prisoner interests in enhanced sexual expression. These interests are described below in an attempt to disentangle prisoners' rights in sexual expression from states' legitimate interests in regulating that expression. This article also directs policymakers and decision makers to mine international documents and human rights norms that recognize the necessity of punishment and at the same time outline a standard for the safety of individuals in custody, the protection of human dignity, and the acknowledgement of the right to sexual self-expression. Ultimately, many prisons do not have legitimate interests in prohibiting prisoner sexual expression and should use their scarce resources to protect prisoners from nonconsensual and coercive sex by staff or other inmates.