There is an influential school of thought among armchair penologists that considers prison rape to be an unofficial part of punishment. It occurred to me that this school needs to be shut down.

What is the purpose of permitting prison rape? Let us see if any of the standard four perspectives on punishment applies to our case.

Could rape perhaps be in the criminal's own good? If degradation and abject humiliation are in one's own good, then yes. It is rather difficult, indeed, to imagine a less useful or redemptive instance of suffering than being raped. Do not the rapists, too, upon shaming and using another human being in such vile manner, travel even further down into the darkness? It is unlikely that even the most fanatical authoritarian would argue from this point of view.

Equally obvious is that permitting prison rape does not condemn a criminal any more than he is already condemned. He is isolated from society and can do no more harm to it for the time being. Even if one is under the mistaken impression that "they are all scum," if being raped may at least in some cases cause a man to lose all of his natural sentiment and become a monster who will later be released, then the policy of permitting or encouraging rapes is contrary to the purpose of condemning those who cannot be reformed. Even less clear is how such a policy will civilize those rapists who are scheduled for parole.

The most common justification for the indifference to the fate of prisoners is the pragmatic one, viz. that the widespread awareness of the possibility of being raped serves as a deterrent to crime. In reality, however, the effect is probably the opposite of that which our pragmatic is trying to achieve. The knowledge of prison horrors deters mostly the timid from displeasing the state; it makes prison more pleasant and therefore less intimidating for the ruthless and the depraved who commit rapes. (Why is being deprived of female company in jail not a sufficient deterrent?) It is only the tyrant who prefers to have the good citizens quiver before him while refusing to restrain those who assault private persons and property.

Further, the cause of the common good requires that punishments be calibrated with precision, lest they either result in anarchy or unintended substitution effects or punish too harshly. To the extent that lawmakers fail to take rapes into account (which is inevitable because rapes are unpredictable), the punishments are, from the pragmatic point of view, too harsh, which is undesirable. In addition, a society in which brutal punishments are inflicted even on minor transgressions would be too risky to live in, because no one is perfect. This is especially so for political crimes, that is, for upsetting the state, since it is for them that the greatest wrath of the state is reserved.

Finally, might justice call for allowing or even approving of rapes? Could it be a clever way of getting back at the "liberals" who "coddle criminals"? First, as has already been mentioned, it is the more brutal criminals who rape the less brutal. Is letting them satisfy their urges in such hideous manner not "coddling"? Whence such astonishing permissiveness? Second, and most important, the first principle of justice is uniformity: all things being equal, the same crime must be punished the same way no matter who commits it. Yet rape is entirely arbitrary. One person steals a car, goes to prison for two years, leads an uneventful life, and upon being released, integrates himself into society. Another takes the same punishment, yet suffers being raped every day and commits suicide two months later. That is justice? Oy vey!

Even if one holds that being repeatedly raped is the fate deserved even by small-time rule-breakers, one must first persuade his fellow citizens of his idea of the good and try to put it into law. Logic also places our defender of "justice" into a strange position of having actually to feel distraught with the number of inmates, which includes the rapists, who avoid rape and thereby escape justice.

It seems to me that the adherents of the pro-rape school would be well-advised to re-evaluate their philosophy.

December 16, 2005