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The claim that incarceration is a sexual punishment -- the central claim of this Article -- may be disputed with respect to both the adjective and the noun. The challenge to the choice of noun is this: any sex, including sexual assaults, that may occur in prison is "not part of the penalty."(1) Only officially sanctioned deprivations of rights and liberties are properly called "punishment," and since no prisons officially sanction inmate sex and most officially condemn it, sex in prison is not penal.(2) In other words, the prison rapist is not an arm of the state.
The challenge to the adjective is this: "sex" in prison is not really "sexual." The word "sexual" should be reserved to describe a realm of erotic desire and physical gratification, and there is much evidence that the physical interactions and threatened assaults that occur in prison, even the ones that involve genitals, are expressions of dominance and power that have little to do with desire.(3) In short, coerced intercourse in prison is violent, inhumane, and illegal -- it is not sexual, and it is not punishment.
With specific reference to current American penal practices, this Article defends both the adjective and the noun of the phrase "sexual punishment." The phrase prompts an array of questions about theory and practice, about concept and strategy. It encourages us to probe the concepts of sexuality and of punishment and the normative claims that pervade those concepts; it encourages us to rethink strategic approaches to the problems of penal and sexual abuse. Should we think of prison rape as a locationally specific instance of rape, a form of sexual assault that happens to occur in prison but is similar to sexual assaults that occur outside of prison? Should we think of prison rape as an intrinsic aspect of the prison rather than a species of rape? Might prison produce certain forms of sexual interaction that differ in fundamental ways from rape (and consensual sex) outside prison walls? Is sex severable from prison: will the right laws and regulations help us eliminate the sexual aspects of incarceration? Would we even want to eliminate the sexual aspects of incarceration? The juxtaposition of sex and punishment, categories imbued with deeply held and deeply contested...