Commercial sexual exploitation is found all over the world, and inside of American prisons is no exception. Although scholars and anti-trafficking activists frequently focus their efforts solely on the commercial sex industry that exists outside of jails and prisons, there are many similarities between the ways exploitation occurs outside and inside institutionalized confinement. Prison, as a microcosm of society, recreates the same power struggles and relies on the same rules of consent as ordinary society.
Some prisoners have used intimidation and fear to create a sex trade within prison walls. The perpetrators of the prison sex trade target younger, smaller inmates who appear vulnerable, a practice that parallels trafficking in other contexts. These trafficker inmates take advantage of more vulnerable inmates, and once an inmate has been targeted and raped by someone, many others will begin targeting that same victim. It has also been reported that perpetrators will “sell” victims for snacks, cigarettes, or phone calls. In exchange for exclusive sexual access to the victim, the perpetrator may offer protection from other inmates’ sexual advances. This exchange of sex acts for protection is similar to “survival sex,” a phenomenon wherein a prostituted person trades sex acts for food, shelter, and other necessities as a means to survival.
The concept of survival sex connects sexual exploitation within institutionalized confinement to that which occurs outside penal institutions. When the choice of whether to consent is stripped from an individual, consent is automatically and instantaneously vitiated. Therefore, in any exchange of sex for protection, goods, or money, meaningful consent is unobtainable due to a lack of choice. Although there are commonalities between the sex trade that exists inside prisons and the sex trade that exists on the streets, the inmate population requires different, specialized protections. Thus, to determine what steps are appropriate and necessary, we must look at how the government has already begun to protect prisoners from commercial sexual exploitation and rape.
Sexual abuse in prison was largely ignored by the federal government until the passage of the 2003 Prison Rape Elimination Act (PREA). Through the passage of PREA, the federal government established a “zero tolerance” policy for sexual abuse, misconduct, and assault in custodial confinement. In accordance with PREA, the Prison Rape Elimination Commission was developed to maintain standards for the federal prison system and to issue a report on how to better prevent and respond to rapes of those who are incarcerated. Most states, however, take PREA one step further and strictly forbid all sexual conduct, including consensual sex, between an inmate and anyone else—whether a prison employee, a visitor, or another inmate. It is unclear whether the elimination of all sex in prison is an attempt by state governments to address the issue of sexual exploitation within prisons and protect some of the most defenseless persons in society.
Unfortunately, the intended goal of PREA has not yet been fully realized. The power differential that exists between certain inmates, as well as that between inmates and correctional officers, often creates a culture of silence within the prison, not unlike the culture that dissuades victims of trafficking from coming forward in other situations. In prisons, victims of sexual exploitation are unlikely to report the abuse because of inmate-officer relations, the threat of retaliation, or fear of disciplinary action. Inmate-officer relations are often strained because correctional officers can either force inmates into sexual relations or refuse to offer protection from other inmates. PREA relies heavily on victims reporting the offenses or a correctional officer witnessing the transgression; otherwise, enforcement is nearly impossible. If a victim does not report an incident, very little can be done. Even if a victim does report, he or she may be simply moved to another facility with fewer resources, less free time, and limited human interaction.
Sexual exploitation and sexual assault are fundamental invasions of the person and, further, they are crimes. Criminalizing the sexual exploitation of another person, whether commercial or not, provides protections against unwanted, and possibly violent, sexual contact. No one should suffer sexual abuse, including inmates serving time for prior crimes they committed. It may be easy to overlook citizens confined behind bars, but, we, as a society, need to raise awareness about this form of commercial sexual exploitation so that we can effectively prevent such exploitation and help those inmates who have been exploited. The enactment of PREA and continual education about this “hidden sex trade” are steps in the right direction. These inmates deserve to be protected and heard just like non-incarcerated survivors.
Anna Boyd is currently a first-year law student at Villanova University Charles Widger School of Law. Anna is from Camp Hill, Pennsylvania and received a Bachelor of Science in Chemistry from Villanova University. After graduation, Anna hopes to become a corporate attorney specializing in transactional law.
All views expressed herein are personal to the author and do not necessarily reflect the views of the Villanova University Charles Widger School of Law or of Villanova University.