U.S. Institutionalized Torture with Impunity: Examining Rape and Sexual Abuse in Custody Through the ICTY Jurisprudence

Resumen

It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and anal rape; forced oral sex; forced digital penetration; quid pro quo coercion of sex in order to retain privileges or protection; and sexual threats to name a few.[i] Female prisoners face this kind of abuse daily, all while confined, unable to avoid the abuser, at their constant mercy. This abuse rises to the level of torture, both in the very real effects on these prisoners, and also in legal definition. Torture in itself is a crime. Rape in itself is a crime. But this article submits that government institutionalized torture, where the perpetrators are treated with impunity, is an even greater crime. It sends the signal to perpetrators, victims, and the public, that these crimes will go unpunished, in fact they will be protected through a series of complicated legal barriers, and that these women, these victims, are not even worth protection. In the barriers imposed, both institutional and cultural, the impunity of prison rape indicates that not only are the victims unworthy of protection, but that on some level, whether subconsciously or consciously, our society believes that these women deserve this abuse. This article examines the situation of women incarcerated in the U.S. and the level to which they experience rape and sexual assault at the hands of correctional staff. The article looks to the ICTY jurisprudence to compare the treatment of rape as torture and explores the different treatment by courts of females imprisoned for crimes and those imprisoned in war.