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Sexual Violence and Transgendered Prisoners

To Keep Me Safe From Harm?

Transgender Prisoners and The Experience of Imprisonment - Richard Edney

III SEXUAL VIOLENCE AND TRANSGENDER PRISONERS


Sexual violence against transgender prisoners must be at the forefront of any analysis of the relationship between life and law in the context of the prison. To the extent that a prison order cannot protect transgender prisoners from predatory behaviour of other inmates, there necessarily arises a problem of legitimacy in the punishment of transgender prisoners.

Part of the susceptibility of transgender prisoners to sexual assault in the prison setting is the excessively masculine nature of the prison environment.[20] In such an environment, acts and threats of rape become forms of intimidation and domination as well as strategies by certain prisoners to control other prisoners. As has been found numerous studies, rape in male prison is a distinct aspect of the prison experience, particularly for young offenders.[21]


Empirical data on prison sexual violence suggest that it is not a random activity, but arises from the choosing of particular victims who for one reason or another are believed to be more vulnerable.[22] The data also strongly suggests that not only youth, but also feminine characteristics are important factors in determining whether or not a person becomes a victim of sexual violence. Support for a particular regime of victimization for transgender prisoners is also evident in the study undertaken by Human Rights Watch concerning the phenomena of male rape in United States prisons.[23]

That report found the following:
"...prisoners fitting any part of the of the following description are more likely to be targeted: young, small in size, physically weak, white, gay, first offender, possessing “feminine” characteristics such as long hair or a high voice; being unassertive, unaggressive, shy, intellectual, not street-smart, or “passive”,..."[24]


The implications for such prisoners were significant in that prisoners with any one of these characteristics typically face an increased risk of sexual abuse, while prisoners with several overlapping characteristics are much more likely than other prisoners to be targeted for abuse.[25]


The failure of prison administrators to accord transgender prisoners such a basic level of protection when it is likely, given the state of empirical knowledge, that such harm will occur to them is of great concern. [26] It is clearly a breach of the duty of care owed by correctional authorities to provide protection of such inmates from others who may commit such acts of harm.[27] In addition, it amounts to a failure to guarantee the human rights of such prisoners and to provide basic protections concerning privacy, security and bodily integrity.[28]


The consequences for individuals of this malign neglect can be catastrophic. In the case of Catherine Moore, who was being held on remand in a New South Wales Prison in late 1997, this led to her suicide.[29] In her case, Catherine had been placed within the protection unit because of her overt feminine characteristics. Despite this placement, Catherine was raped by a male prisoner. Soon after Catherine committed suicide through the ingestion of a number of illicit drugs. The Coroner found that the suicide was as a result of that sexual assault and the conjunction of the provision of drugs by an unidentified inmate.[30] In terms of recommendations the Coroner suggested that the prison policy should be designed so that it results in an outcome that would ‘house transgender prisoners in institutions appropriate to their gender identification’.[31]