A policy of banning all sex in prison will not work

A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment.

The challenge currently facing prisons with regards sexual health and public opinion is not dissimilar to that faced by Edinburgh in the 1980s in the face of the HIV crisis. That was the chilling warning heard by the Howard League Commission on sex in prisons. The Commission’s first briefing, on consensual sex in male prisons, is published today. In the 1980s, Edinburgh saw a police crackdown on heroin use that was successful in cutting the number of available syringes and equipment at the very same time as HIV was introduced into the local drug scene. The result was that drug users shared needles and HIV spread, so that the city was briefly the aids capital of europe. The crisis was eventually eased by a public health approach that included needle exchanges and the distribution of methadone. The balance between crackdowns that play to punitive public sentiment and a public health approach that will actually reduce harm and prove most effective in protecting communities is one Chris Grayling should bear in mind, as he considers a crackdown on sex in prison.

The statistics on consensual sex in men’s prisons are limited and vague – a Home Office study back in 1994/5 reported that between 1.6 and 3.4 per cent of their sample adult male prisoners admitted to being engaged in consensual sex with an inmate. However, the true figure is thought to be higher. The British Association of Sexual Health and HIV told us that while female prisoners were likely to be open about sex with each other, male prisoners were not. According to the Terrence Higgins Trust male prisons tend to be more homophobic than the wider community, making honest reporting harder. Indeed, far from being ‘cosy’ for LGBT prisoners, all the evidence suggests that they are at greater risk of discrimination and most vulnerable to sexual abuse while inside.

The prison service instruction manual states: ‘there is no rule specifically prohibiting sexual acts between prisoners, but if they are observed by someone who finds (or could potentially find) their behaviour offensive, a charge…may
be appropriate.’ in practice this results in an inconsistent approach and a system ripe for abuse. Some prisoners have reported being left alone as long as they were discreet, while others reported staff trying to catch them out in order to issue them with a warning. It has also been suggested that separation and being written up can be used as a means of discriminating against openly gay prisoners, while policies preventing sex in prisons can be seen to ‘legitimise’ homophobic attitudes.

There is no denying that the issue of consensual sex in prison is a tricky one. The National Offender Management Service argued, in their evidence to us, that it is virtually impossible for staff to tell whether a relationship is consensual or coercive. It can be further complicated by the fact that what starts as consensual can later become coercive.

On a trip to the US I met Troy Isaak, a member of Just Detention International Survivors’ Council. He told me that during one period of incarceration in a Los Angeles jail he entered into a consensual relationship with another inmate but then when the relationship broke down he was repeatedly raped. Staff refused to do anything as he’d originally consented. Sex is banned in US jails.

However we must be careful not to learn the wrong lesson from cases such as this, which call for greater action in tackling the complexities of sexual abuse behind bars, not making the system more punitive for those who engage in consensual sex. A blanket ban on sex in prison leads to prisoners failing to report rape or sexual assault for fear of punishment. While a 2005 report (pdf) from the Prison Reform Trust and National Aids Trust expressed concern that ‘if sexual activity is subject to punitive sanctions, or stigmatised, the likelihood is that people will be less likely to take precautions.’ Most respondents to the Home Office study admitted they did not practice safe sex.

The Department of Health states that prisoners are more likely to be affected by blood-borne diseases, more likely to have engaged in high-risk behaviours and as a result are at higher risk of sexually transmitted infections. To ignore this and then ignore calls for help in practicing safe sex is, according to the Terrence Higgins Trust, ‘highly irresponsible and unethical.’

Her Majesty’s Prison Inspectorate, the Terrence Higgins Trust and National Aids Trust all raised concerns with the Commission about the variable access to condoms within prisons. We heard a range of approaches. Some prisons offer advice and make barrier protection, dental dams and lubrication freely available. However, in at least one privately run prison prisoners are only issued with a condom if they then return it used before being issued with another. Other prisons refuse to issue barrier protection. We received evidence from one HIV-positive prisoner who was refused protection and, as a result, went on to have unprotected sex with another inmate. We heard that some prisoners are sanctioned for requesting too many condoms. One prison governor even said they had no need to issue barrier protection as his prison contained no homosexuals. The National Aids Trust said, ‘attempts to control consensual sexual activity between prisoners risk undermining efforts to promote HIV prevention and improved sexual health in prison populations.’

What Chris Grayling and others need to remember is that this is not merely a health crisis confined to prisons: all of these prisoners will eventually return to their communities and will pass on any infections to the wider community. A policy of banning all sex in prison will not work: it will further legitimise homophobia within prisons, its implementation will result in a system ripe for abuse as well as discrimination against LGBT prisoners; it will discourage prisoners from reporting rape and sexual assault and divert attention from the real law and order issue – which is the correct management and response to occurrences of coercive sex in custody. Most importantly of all, it does nothing to address the fact that prisoners will continue to have sex and an even more punitive system will worsen the risky practices causing this public health crisis.

In the US, Just Detention International successfully showed that prison rape was not only inhumane but also cost the community far more – financially as well as socially – than successfully preventing rape behind bars. Similarly, the cost to us all will be greater in dealing with the spread of STIs than a pragmatic policy to ensure safe sex in our prison system.

Michael Amherst is on the board of Just Detention International and the Howard League Commission on Sex in Prisons

A prison guard at HMP Pentonville. Photo: Getty
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Notes from a crime scene: what Seymour Hersh knows

Xan Rice meets the tireless Seymour Hersh to talk My Lai, pricey coffee and Bin Laden.

It’s late on a lazy Wednesday afternoon when Seymour Hersh comes bounding down the stairs. “Let’s find somewhere to sit,” the American investigative journalist says, striding over to the café area of the hotel in Bloomsbury where we meet.

Not quiet enough, Hersh decides, and he marches into an adjoining branch of Steak & Lobster, past a startled waiter who tries to explain that the restaurant isn’t open yet. “He’ll have a coffee,” Hersh tells the man laying the tables, gesturing in my direction. When the drink arrives, he remarks that, at £4.39, it’s the most expensive coffee he has bought in some time.

“I’m older and crankier than [Bernie] Sanders,” the 79-year-old says with a smile, leaning back in his seat, his tie loose and his top button undone. Hersh’s many notable stories include the My Lai Massacre and cover-up in Vietnam, which he exposed in 1969, and the Abu Ghraib prison scandal during the Iraq War. He’s in good health, relishing his speaking tour of London to promote his new book, The Killing of Osama Bin Laden, and hearing “how wonderful I am”.

“I come home from a trip like this,” he says, “and my wife can’t stand me. She says, ‘Get away, I don’t want to talk to you because you want everybody to bow and scrape.’”

Hersh never planned to be a journalist. After he was thrown out of law school for poor grades in 1959, he heard about an opening for a police reporter at a small news agency in Chicago. “I was reasonably coherent and could walk in a straight line, so they hired me,” he explains. Hersh learned on the job, covering his beat with a zeal that did not always impress his editors, one of whom liked to address him, without fondness, as “my good, dear, energetic Mr Hersh”.

“He saw me as a bleeding heart,” Hersh says, “who cared about people ‘of the Negro persuasion’ dying.”

Half a century later, he cannot say exactly what drove him to become an investigative reporter. “What defect did I have in my life that made me want to make everyone else look bad?” he wonders. “I almost viewed myself like a public defender: my job was to be there on the scene of a crime and to write about it in such a way that the police could not have the only call.”

Later, as his range widened, Hersh came to see his role as keeping in check “the nincompoops and criminals and fools running the world”.

He had been a journalist for ten years when he received a tip-off about an army officer being court-martialled for killing civilians in Vietnam. After investigating, he broke the story of the massacre at My Lai, in which a group of US soldiers murdered at least 347 people. The work earned him a Pulitzer Prize and soon afterwards he wrote his first piece for the prestigious New Yorker magazine. After sending in a draft, he was told that it would be read by the editor, William Shawn, and that he would receive a proof copy in the mail.

“Seven days later, the envelope comes and I’m terrified,” he recalls. “It was a writer’s magazine and any change they wanted, they asked you about. On the third page, I had some cliché or figure of speech. It was circled and in
the margin Mr Shawn had written: ‘Mr Hersh. Pls use words.’ I had a one-year course, a Master’s degree in journalism, in one sentence!”

Hersh has written regularly for the New Yorker over the years, though the relationship has recently come under strain. After researching the death of Osama Bin Laden, he became convinced that the Obama administration’s account of what happened before, during and after the raid in which Bin Laden was killed was a lie. He argued that the al-Qaeda leader had been captured by Pakistani intelligence in 2006 and held in Abbottabad until the US navy Seals operation five years later, which, Hersh claimed, was conducted with Pakistan’s assistance – rather than being a daring mission into hostile territory.

The New Yorker declined to run the story, so Hersh wrote it for the London Review of Books, which published it last year. The piece was read widely but attracted criticism from some American journalists who argued that it relied too heavily on a single, unnamed source and veered dangerously in the direction of conspiracy theories. Hersh is convinced that his version is correct and makes no apologies.

“I remember saying to my wife, ‘Don’t [these journalists] have mothers that tell them what to do better?’ . . . They insisted what they knew, what they wrote, had to be the story.”

Hersh’s mistrust of the official line is undiminished. His new book also questions whether it really was the Assad regime that carried out the chemical attacks in Ghouta, Syria, in 2013. Even the culprits of the recent Paris and Brussels massacres are not beyond doubt. “I don’t think Isis had a goddam thing to do with these kids,” he says. “The truth is, I don’t have any idea. I’m just telling you, heuristically, it’s an idea I would pursue if I was still a reporter.”

There is more to tell but Hersh has another interview. “Talk to me tomorrow,” he says, running back upstairs to collect his coat. “I’ll be around. I still have a lot of energy.” 

Xan Rice is Features Editor at the New Statesman.

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism