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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Tory backbench leader Graham Brady: “When we vote to leave the EU, the PM should stay”

As chair of the 1922 Committee, Graham Brady is a king among Tory backbenchers. So what does the ardent Eurosceptic make of David Cameron’s prospects in the EU referendum – and afterwards?

Enter Graham Brady’s office and you are treated to a magnificent panoramic view of the Palace of Westminster and Parliament Square. It is an appropriately grand vantage point for one of the most influential MPs. As the chairman of the Conservative backbench 1922 Committee, Brady is an essential barometer of Tory opinion. In recognition of this, he was one of the first guests to No 10 Downing Street in the hours following David Cameron’s general election victory. A prime minister with a majority of 12 – the smallest of any single-party government since October 1974 – must take permanent heed of his backbenchers.

I met Brady, 48, shortly before the start of Prime Minister’s Questions on 10 February. Among Conservative MPs below us in Portcullis House, there remained only one topic of discussion: Europe. Cameron’s draft agreement with the EU has failed to persuade many Eurosceptics that they should vote in favour of membership of the Union when the referendum is likely held on 23 June. Brady, who entered parliament in 1997 as the MP for Altrincham and Sale West, is one of those who intends to campaign for withdrawal.

“There is a very long-term problem that there is a massive difference between what Britain thought it was joining – the European Economic Community – and what it actually was joining,” he said. “There was no appetite or decision to join a political Europe . . . That is something that has always needed to be resolved in some way and I think the more the eurozone, in particular, integrates with the continuing crisis, the more we will have to see massive political and fiscal integration and probably, still, the departure of some of the weaker eurozone countries. As that process goes on, the United Kingdom has got to redefine its relationship in a meaningful way.”

In advance of the European Council summit in Brussels on 18-19 February, he warned that Cameron’s renegotiations had fallen far short. “The reforms that are being sought by the Prime Minister, while all welcome changes, don’t come anywhere near to that fundamental reform of the nature of our relationship with the EU.”

I asked Brady, who was elected to lead the 1922 Committee in 2010, how many of his Conservative colleagues he expected to join him. “It’s very hard to say. I’ve always thought that a clear majority of Conservative members of parliament are deeply unhappy about the shape of the current European Union. And probably a clear majority would have a preference of leaving the EU as it is today. I suspect that roughly 100 will declare that they’re campaigning for Britain to leave. But many more will be very sympathetic to that objective.”

His estimate of 100 is notably higher than the 50 to 70 predicted by Steve Baker, the co-chairman of Conservatives for Britain.

In recent weeks, Eurosceptics have complained as pro-EU cabinet ministers have campaigned for membership while front-bench opponents have remained “gagged”. Brady told me it was “not unreasonable” for Cameron to force them to abide by collective responsibility until the renegotiation had concluded. But, he added: “What is important is that once the deal is done things should be brought to a conclusion as rapidly as possible. I hope there will be a cabinet meeting, if not on the Friday after the Prime Minister returns, then on the Saturday morning, [so] that the cabinet can agree its collective position and also agree that those who don’t share that view are free to say so and free to campaign.”

Some MPs expect as few as five cabinet members to support EU withdrawal (Iain Duncan Smith, Chris Grayling, Priti Patel, Theresa Villiers and John Whittingdale) although others remain hopeful of persuading Boris Johnson and Michael Gove to join them. “I hope that everybody who is really committed to Britain’s future as a free, independent democracy will realise this is a key decision point,” Brady said.

“There’s no doubt that if Boris Johnson were to campaign for Britain to leave it would bring an energy and buzz to the campaign. Of course that would be welcome, and I hope that Michael Gove will resolve his dilemma in the same direction.”

I asked Brady if he was worried by what some Eurosceptics call “the Farage problem”: that the most prominent opponent of EU membership is also the most polarising. “Nigel Farage is very good at what he does,” he said of the Ukip leader. “He’s a very effective communicator with some audiences, so clearly he has a role in the campaign. Given the salience of the issue for him and his party, it would be unreasonable to expect him not to be prominent in the campaign. But he is a Marmite character and I think this is why it’s so important that there should be a wide range of different voices.”

Brady, who had just returned from a breakfast meeting in the City of London, told me that a number of business people have revealed to him that although their “institutional position is firmly that we should remain in the EU . . . privately their view is completely the opposite”.

Two days before we met, Cameron had been accused of “scaremongering” for warning that “the Jungle”, the refugee camp in Calais, could move to Dover in the event of EU withdrawal. Brady told me that the Prime Minister’s remarks were indeed “inaccurate” and that it was “enormously helpful of the French government to point out that it wasn’t going to happen”.

Were Britain to vote to leave the EU, as polls suggest is possible, many Tory MPs on both sides believe that Cameron would have to resign as Prime Minister. But Brady rejected this suggestion. “No. When we vote to leave the European Union I think it is very important that we have a period of stability. I think it would be hugely valuable to have an experienced team in place to deal with the renegotiation, I think it’s actually very important that the Prime Minister should stay.”

I noted that he referred to “when” Britain leaves the EU, suggesting he was confident of victory. “I’m always confident of victory,” he replied with a smile.

Given Cameron’s decision to pre-resign before the election by vowing to serve only two terms, there will be a Conservative leadership contest before 2020. I asked Brady whether, as some have suggested, the members’ ballot should be widened to include more than two candidates.

“The rules are constructed for each contest by the 1922 executive and agreed with the party board. The only stipulation in the constitution of the party is that we should provide ‘a choice’ to the party members. That has always been construed as a choice of two. I can’t see any reason why parliamentary colleagues would wish to reduce their own influence in the process by putting forward a larger field.”

The Education Secretary, Nicky Morgan, has argued that it is essential there be a female candidate (ideally herself). Brady offered her some advice: “I have very fond recollections of a woman leading the Conservative Party. I hope that if Nicky wants to launch her campaign seriously, she’ll talk to me about how we might promote more grammar schools and selective education as one of the ways that we can stimulate real social mobility in the country again – and she’ll have my support.” It was after the then shadow education secretary, David Willetts, argued in 2007 that grammar schools inhibited social mobility that Brady resigned as shadow minister for Europe.

If there is one stipulation that most Conservative members and MPs will make, it is that there be an anti-EU candidate in the field. I asked Brady whether he would consider standing himself.

“I say to people that I’m very happy with being the returning officer for any leadership contest,” he replied. But the man with a better feel for Conservative backbench opinion than any other ended our conversation with this prediction. “I do think it’s very likely that if we put two candidates forward to the party in the country, at least one of them will have been someone who campaigned for Britain to leave the EU.” 

George Eaton is political editor of the New Statesman.

This article first appeared in the 11 January 2016 issue of the New Statesman, The legacy of Europe's worst battle