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REDISTRIBUTING RAPE

Jeannie Suk* What does it mean to be a man? This basic question infuses the theory of Sharon 1 Her Dolovich's fascinating work in Strategic Segregation in the Modem Prison. closely textured and deeply focused study of L.A. County Jail's telling measures to address prison rape-namely segregation of gay men and transgender women from the general male prison population-is a crucible for pathbreaking theoretical work on incarceration, and also a meditation on the constitution of gender and violence. Prison is hell. If there is anything in today's United States that may approximate Hobbes' state of nature,2 where men live in continual fear and danger of violent death by other men, and security is whatever a man's own strength and invention enables, it must be the modem prison. There, the war of all against all is not mere chaos but, rather, reveals consistent patterns as the stronger inevitably subordinate the weaker. One such undeniable pattern is the central and routine place of rape and its threat in the social system of the prison. In Dolovich's prison, the phenomenon of prison rape cannot be understood apart from the concept of masculinity. Her theory begins with the basic idea that men are generally anxious about their masculinity and need to find ways of proving their masculinity.3 Proof of masculinity can come only in relation to that which is feminine.4 Sexual domination of women is the "method of choice," in contexts where productive means of proving one's masculinity are scarcely available.5 Prison is a context where such productive means are lacking. According to Dolovich, being around only men exaggerates the imperative to prove that one is a man.6 Male prisoners thus attempt to sexually dominate others as a means of proving their own masculinity. 7 Sexual penetration is domination that establishes that one is masculine and that the other is feminine. 8 Men who do not want to be penetrated must be forced or threatened. Rape, then, is a performance of binary and relational gender; sexual domination forces into being
* Professor of Law, Harvard Law School. 2011, Jeannie Suk.

1. Sharon Dolovich, Strategic Segregation in the Modem Prison, 48 Am. CRim. L. REv. 1 (2011). 2. THOMAS HOBBES, LEVIATHAN 63-66 (Prometheus Books 1998) (1651) (theorizing that the state of nature, in the absence of civil society, is a state of war of all against all, "a warre of every man against every man"). 3. See Dolovich, supra note 1, at 14-15. 4. Id. at 15 (quoting SUE LEES, RULING PASSIONS: SEXUAL VIOLENCE, REPUTATION AND THE LAW 105 (1997)). 5. Id. at 16. 6. Id. 7. Id. 8. Id.

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the male-female dyad that is essential for the show of masculinity.9 Students of feminist theory will recognize the profound influence of Catharine MacKinnon on Dolovich's logic in theorizing the phenomenon of prison rape. The key pure sentences of MacKinnon are quoted in a footnote: "Man fucks woman. Subject verb object."' Dolovich writes, "as with intimate relationships in society in general, the defining scripts are gendered: in men's prisons, as in the free world, men dominate women."'" In this gloss, men dominate women in society in general by fucking them. In a prison that houses men only? The "women" are those who are fucked. To fuck is to be gendered male. To be fucked is to be gendered female. As Dolovich moves through skillful application of this powerful feminist sexual subordination theory to prisons, one has the impression that the match is perfect. The sexual subordination theory is at its core about men subordinating women, but the theory's reach is not limited to situations consisting of biological men and women. MacKinnon herself has used the theory to explain that male sexual harassment of another male effectively genders the harassed male as one who loses his masculinity, becoming sexually subordinated and therefore female.' 2 As MacKinnon wrote in her amicus brief in the Supreme Court in Oncale v. Sundowner Offshore Services, a case about male-male sex harassment: "Men who are sexually assaulted are thereby stripped of their social status as men. They are feminized: made to serve the function and play the role customarily assigned to women as men's social inferiors." 3 Dolovich explains that, as an exclusively male environment, a men's prison generates more than the usual amount of anxiety about masculinity, and that leads to "hypermasculine" behaviors to prove one is a man. "4The all-male aspect of the prison experience helps explain the prevalence of sexual violence in men's prisons. Making the all-male prison environment an exemplar of the sexual subordination theory allows Dolovich to reveal another gender theory that runs through her article: that of gender as performance. 1 5 Dolovich's prisoners appear to be Butlerians.16 No biological females present? No matter. The world will be gendered-forcibly arrayed into those who will perform roles of male and female.

9. See id. at 14-16. Prisoners seen as weak are vulnerable to being "turned out," or emasculated, which marks their transformation into women in the prison context. Id. at 17. Such gender redefinition, however, is unnecessary for gay men and trans women, as they are already perceived as women due to sexual orientation alone. Id. at 18. 10. Id. at 14 n.67 (quoting CATHARINE MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 128 (1989)).
11. Id.

12. Brief of National Organization on Male Sexual Victimization, Inc. et al. as Amici Curiae in Support of Petitioner at 10, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (No. 96-568). Catharine MacKinnon served as counsel for the amici curiae. 13. Id. 14. Dolovich, supra note 1, at 15-16. 15. See, e.g., id. at 17 ("[Tihe felt imperative to perform a gendered ideal of 'hypermasculinity' is a rational response.").
16. See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1990) (theorizing

gender as performative, constituted through repeated acts).

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Marry Catharine MacKinnon with Judith Butler, and what you get is rape that is the performance of sexual subordination as a way of constructing male and female gender. The brutality and violence of prison rape is a form of gender performance. Gay men and trans women become the most likely "women" in men's prisons for purposes of sexual subordination by prisoners seeking to prove they are "men" in a world where biological women are absent. 17 So what happens when gay men and trans women are segregated from the general population? What changes? The gay men and trans women housed in the segregated unit become relatively free from rape. 18 If the reformist goal is specifically to protect gay men and trans women from sexual violence, the mission is accomplished in L.A. County and could be replicated elsewhere.' 9 But, is that the goal-protecting this specific class of people from rape? The theory Dolovich lays out suggests that she does not intend that her article advocate for the well-being of sexual minorities in particular, but, rather, seeks to understand incarceration more broadly-the dynamics of prison sexual violence in general and what to do about it. 20 Removal of gay men and trans women from the general population protects them. But if we adopt Dolovich's theory of prison rape, the general population, with or without gay men and trans women, remains the kind of place that leads to sexual violence-an all-male environment that provides no means of proving one's masculinity in productive ways, where some men are stronger and others are weaker. Therefore, following Dolovich's theory, we would expect to see the absence of gay men and trans women from the general population to have an effect roughly analogous to the absence of biological women-more male anxiety about proving masculinity, leading to the "hypermasculine" behavior, and, ultimately, to the same social system of rape. If gay men and trans women are not present to be forced to become "women," other men will be forcibly classified as female. After all, the susceptibility of gay men to being so classified reveals that prisoners see sexual vulnerability as relative, and that cutting off one end of the gender continuum does not change that. On this continuum, just as gay 2 men could be "turned out" and classified as female, so could other men. 1

17. See supra note 9. 18. See Dolovich, supra note 1, at 74 ("K6G teaches that systematically separating vulnerable people [gay men and trans women in the L.A. County Jail scenario] from GP [general population] is a relatively effective way to ensure their safety."). 19. Dolovich, however, lists caveats for successful replication of the program: a large population of gay men and trans women in the area; commitment to the protection of the inmates among the chain of command, as well as line officers and staff members; support of the larger LGBTQ community; and attitudes of the officers in charge that reflect those of the officers running the K6G program. Id. at 87-89. 20. See id. at 71. ("Although the idea behind K6G is to segregate sexual minorities from GP [general population], this is not its motivating purpose. There is no independent value to identifying all detainees who meet K6G's admission criteria and housing them together. The point of the program is to create a space in which those individuals most at risk of sexual assault behind bars can do their time free from this danger."). 21. Several factors increase the likelihood that an inmate will be perceived as more vulnerable on such a gender continuum. Dolovich frequently refers to these factors and explains that "[alccording to the [National

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There is not an account here of guarding against prison rape, but rather guarding sexual minorities from prison rape. Dolovich recognizes that the criticism of shifting sexual predation from gay men or trans women to other weak inmates is "not an unreasonable concern. 2 2 Her response is that "more targeted segregation, not less" is needed by removing all prisoners susceptible to sexual victimization. 3 However, once fully inside Dolovich's theory, it is difficult to see how even her recommended adoption of a "unified approach," which would remove not only sexual minorities but also other kinds of vulnerable prisoners,2 4 would not still leave men in the general population with the imperatiye to prove themselves "real men." Who is "most vulnerable" to sexual violence is fungible-if the most vulnerable would be women in a co-ed prison, they are gay men in a men's prison. Removal of some men simply leaves in their wake other men to be the most vulnerable group, relative to those stronger and thus able to prove their masculinity by sexually dominating others, albeit along a tighter continuum of masculinity. Men are going to be raped in prison. The question is which ones they will be. Dolovich does not provide reason to think otherwise, and presumably, this is because there is little reason to think otherwise. If all of this is correct, then K6G appears to be a program essentially designed to redistribute prison rape-from sexual minorities to some set of heterosexual men. Arguably, the 1985 consent decree ordering the protection of homosexual prisoners that established K6G had the effect of requiring the state to engage in the redistribution of rape. Relative to that the aim, the program is a success. Dolovich says that the daily rebuffed efforts of newly admitted heterosexual men to pass as gay in order to gain admission to K6G for their own safety "raises the possibility that L.A. County may have something to teach other institutions about how to protect those who are most vulnerable to harm behind bars." 2 5 Possibly what it teaches is that this protection is in effect redistribution, here as it would be elsewhere.

Rape Elimination] Commission the list includes: 'mental or physical disability, young age, slight build, first incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), [and] prior sexual victimization."' Id. at 3 n.8. (quoting NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT 217 (June 2009) (Appendix B: NPREC Standards-Adult Prisons and Jails: SC-1)) [hereinafter COMMISSION REPORT]. 22. Id. at 65 n.309. ("In the absence of gays or trans individuals for predators to victimize, these other vulnerable people will become the primary targets for being 'turned out."'). 23. Id. 24. Id. at 75. Dolovich recommends the "unified approach" as the default segregation strategy, in which a single segregation unit houses all prisoners with a high likelihood of sexual victimization. She would also support a two-track strategy in some instances, which is more inclusive than K6G, but still maintains two separate units--one modeled after K6G and another for all other vulnerable inmates. Id. at 63. The National Rape Elimination Commission, in standards submitted to the U.S. Attorney General in June 2009, also recommends the unified approach and discourages a two-track system by prohibiting classification based solely on sexual orientation. Id. at 74. (citing COMMISSION REPoRT, supra note 21, at 217 (SC-1)). 25. Id. at 49.

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Some uncomfortable questions must be raised in light of this redistributive effect. First, is the redistribution of rape from one group of prisoners to another a worthy endeavor for the state to undertake? Dolovich's conclusions about K6G reveal her belief that it is. Obviously, it goes without saying that she believes that it would be best to eliminate prison rape, or to change the "culture, structure, and operation of all carceral facilities to ensure the physical safety of everyone society incarcerates. 26 But, where redistribution of rape is all that is viable, it seems that she believes that it is good to take measures to ensure that the victims not be sexual minorities. Dolovich is unequivocal in her support for protecting all vulnerable prisoners, no matter their sexual orientation, but also concludes that segregation units like K6G "can do far more good than harm." 2 7 Could this be because rape of sexual minorities is a greater evil than rape of heterosexual men? While I am not automatically closed to that view, an explanation of how to assess the relative evils of rape of one group versus another would seem necessary to accepting such a view. There might be sound arguments in favor of redistributing sexual violence away from sexual minorities and toward other people. As bad as it is to be a victim because of perceived relative weakness, perhaps it is even worse when one is also victimized because of sexual orientation. I would hope that such an evaluation and weighing of evils would inform proposals to replicate the K6G experience elsewhere. Second, again staying inside Dolovich's theory, one has to wonder why prison sexual violence, arising from male prisoners' need to prove masculinity, is not also manifest in the social dynamics inside K6G. Why are men in K6G not also seeking to sexually dominate others? After all, it is still a men's prison. An implied answer is that K6G prisoners are not heterosexual. So, is it only heterosexual men who need to prove their masculinity? Dolovich observes "the absence in the unit of any hypermasculine imperative" 28 and explains that "[b]ecause of the sexual identity of its members, in K6G there is no felt imperative to be hard and tough or otherwise perform a hypermasculine identity." 29 It seems that her view is that the "hypermasculinity imperative" is common to heterosexual men but not to gay men. She acknowledges that if an expanded K6G unit admitted "situational homosexuals, ' 30 likely reintroducing hypermasculine dynamics, even men who

26. Id. at 65. 27. Id. at 9l. 28. Id. at 63. 29. Id. 30. "Situational homosexuals" are defined by Dolovich as "those men who given the choice would prefer to have sex with women but who, when in circumstances not allowing access to women, will have sex with men." Id. at 67. The risk of situational homosexuals reintroducing hypermasculinity dangers to K6G is the root of bisexual inmates' exclusion from K6G and, ultimately, the binary conception of homosexuality seen in K6G classification. See id.

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self-identify as gay might prey on others. 31 Thus, Dolovich appears to believe that although some gay inmates might become sexual predators under certain circumstances, the impetus to sexually victimize others does not exist in a unit strictly restricted to gay men and trans women.3 z The performance of gender seems alive and well in the general men's population. Given the importance of masculine gender performance to Dolovich's theory of sexual violence, it would be helpful to know how masculine gender performance plays out in K6G. If her view is that it does not play out there, her explanation that it is because of the inmates' homosexuality seems insufficient. After all, masculine gender performance is not synonymous with male heterosexuality, is it? The phenomenon of gay masculinity is well known.3 3 The idea that there would not be some gay men who perform masculinity, even "hypermasculinity," in a gay male prison context needs interrogation. Thus, if gender performance is indeed at play in the world of K6G, one wonders why the performance of masculinity there does not take shape as efforts to prove masculinity by sexually dominating others. Is gay masculinity so relevantly different from heterosexual masculinity that its performance does not manifest in sexual violence? The rising legal awareness of phenomena like domestic violence, sexual assault, and sexual harassment among gay men 34 would seem to bring gay masculinity within the ambit of the reigning feminist theory of those forms of violence. The theory would suggest that masculinity could only be meaningful in relation to that which is sexually subordinated. Remember: "Man fucks woman. 35 Subject verb object." It is not that there is no fucking in K6G. There is a lot of it.

31. Id. at 68. ("The point is thus not that men who self-identify as gay are not capable of the abuses that can accompany the performance of hypermasculinity in men's prisons. It is instead that a widespread impulse to inflict these abuses may be the likely effect of admitting to K6G [situational homosexuals]."). 32. However, this view calls into question the likelihood of success of a "unified" approach, in which all vulnerable prisoners-heterosexual, gay, and trans-are integrated into one unit, as well as the second track of a "two-track" approach, in which only vulnerable prisoners who are neither gay nor trans are housed together. Including heterosexual men in these "vulnerable" units might induce the return of hypermasculine behavior-by both heterosexual men and gay men. 33. See, e.g., David S.Cohen, Keeping Men "Men" and Women Down: Sex Segregation, Anti-Essentialism, and Masculinity, 33 HARV. J.L. & GENDER 509, 521-22 (2010) (discussing the anti-essentialist theory of "multiple masculinities," in which masculinity is lived and experienced in different ways by different people, based on a Connell, A Very Straight Gay: Masculinity, number of identity factors, including sexual orientation); R. Homosexual Experience, and the Dynamics of Gender, 57 Am.Soc. REv. 735, 736-37 (1992) (criticizing the formulation of masculinity as exclusively heterosexual, since it omits "the significance of gay masculinities," sometimes emphasized as part of gay culture, exhibited by closeted gay men, and even enjoyed by effeminate gay men reaping economic benefits from women's subordinated role in society); Christopher N. Kendall, "Real Dominant, Real Fun!": Gay Male Pornographyand the Pursuitof Masculinity, 57 SASK. L. REV.21, 28 (1993) (arguing that gay male pornography inflicts similar harms as other pornography because it "glorifies the masculine, reinforc[ing] a male/female social dichotomy"). 34. See, e.g., Lara Stemple, Male Rape and Human Rights, 60 HASTnNGS L.J. 605 (2009); Tara R. Pfeifer, Comment, Out of the Shadows: The Positive Impact of Lawrence v. Texas on Victims of Same-Sex Domestic Violence, 109 PENN ST. L. REV.1251 (2005). regularly occurs in the K6G dorm."). 35. See Dolovich, supra note 1, at 40 n.196 ("[C]onsensual sex []

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It appears to be consensual. Why do the masculine-performing men in K6G not force people to have sex, as do men in the general population? An obvious possible answer stares us in face, one that may be obliquely at odds with Dolovich's masculinity-performance explanation. Unlike heterosexual prisoners, K6G prisoners' ability to express the most basic feature of their sexual orientation has not been shut down by the fact of their incarceration. On the outside, these men want to "seek out men and only men for sexual gratification, for romance, and for emotional intimacy.' '36 Incarceration does not completely impede this desire because the objects of desire are present in the prison. In K6G, prisoners are able to retain this core aspect of sexual freedom in a way that other prisoners, who sexually desire women, are not. This leads me to speculate about something that is not in Dolovich's account, and that is the place of sexual desire. Learning of the contrast between K6G and the general population with respect to the incidence of rape prompts reflection on why heterosexual male prisoners seek forcibly to turn other men into women while gay men do not. For heterosexual prisoners, the basic expression of their sexual orientation is an aspect of human experience that incarceration inevitably denies in imposing a single-sex environment. Heterosexual men are deprived, by incarceration, of the presence of women. In order to have sex in a way that may attempt to gratify their sexual desire, some of them turn some men into women. After all, in other contexts throughout history in which men have been in exclusively all-male circumstances and deprived of the presence of women for significant amounts of time, the men have not stopped having sexual desire or engaging in sexual conduct. They have had sex with men 37 and sometimes replicated male and female gender roles.38 K6G prisoners are not deprived of the objects of their desire. Their sexual orientation may be satisfied within the confines of the prison experience. Perhaps the absence of sexual violence in K6G is attributable, at least in part, to the fact that men who desire to have sex can do so with partners they desire and who desire them back. In this alternative story, the contrast is between men who are deprived of the objects of their sexual desire and men who are not.

36. Id. at 26. This is the standard used to classify men as K6G inmates. Id.
37. See, e.g., BR. BURG, SODOMY AND THE PIRATE TRADITION: ENGLISH SEA ROVERS IN THE SEVENTEENTHCENTURY CARIBBEAN 107 (2d ed. 1995); JOHN CHANDOS, BoYs TOGETHER: ENGLISH PUBLIC SCHOOLS, 1800-1864, at 289 (1984); MICHAEL SCARCE, MALE ON MALE RAPE: THE HIDDEN TOLL OF STIGMA AND SHAME 35-56 (1997);

Isak Niehaus, Renegotiating Masculinity in the South African Lowveld: Narrativesof Male-Male Sex in Labour
Compounds and in Prisons,61 AFR.STUD. 77, 77 (2002); 2 ENCYCLOPEDIA OF HOMOSEXUALITY 997, 1172 (Wayne

R. Dynes ed., 1990).

38. See, e.g., George Chauncey, Jr., ChristianBrotherhoodor Sexual Perversion?Homosexual Identities and the Construction of Sexual Boundaries in the World War I Era, in HIDDEN FROM HISTORY. RECLAIMING THE GAY

AND LESBIAN PAST 294-317 (Martin Duberman et al. eds., 1990); Arthur N. Gilbert, Buggery and the British Navy, 1700-1861, 10 J. Soc. HIST. 72, 75 (1976); Gert Hekma, Homosexual Behaviorin the Nineteenth-Century Dutch Army, 2 J. HIST. SEXUALITY 266, 285 (1991); T. Dunbar Moodie, Migrancy and Male Sexuality on the South African Gold Mines, 14 J. S. AFR. STUD. 228, 235 (1988).

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I am suggesting that this difference may go some way toward explaining the divergence of sexual behavior in the general population and in K6G. The non-recognition of sexual desire, in Dolovich's telling of a story about sexual violence and sexual orientation, suggests perhaps that sexual desire is the third rail. It has become very awkward to speak of sexual desire where the subject of rape is concerned. We are supposed to think that rape is about violence and power, not about desire. 39 But, I raise desire here because it may be part of what K6G has to teach about incarceration. If prison rape is not completely attributable to the performance of masculinity, and may also have something to do with the sexual deprivation that is part of incarceration, then we may need to add this consideration into the evaluation of the segregation solution. If the difference between the general population and K6G is the difference between men whose incarceration deprives them of their objects of sexual desire and those whose incarceration does no such thing, then what might that suggest about the segregation solution? I have already suggested that the K6G solution may effectively redistribute rape from sexual minorities to some set of heterosexual men, and that one must wonder whether and how it is fair, good, or just for the state to engage in the redistribution of rape in prison. When evaluating whether it is a greater evil for rape victims to be sexual minorities or heterosexual men, how might one weigh the fact that incarceration already deprives heterosexual prisoners of the possibility of fulfilling their basic form of sexual gratification-sex with women? Is it worse for sexual minorities to be raped because they are targeted on the basis of their sexual orientation? Or, is it worse for heterosexual men to be prison rape victims because they have no possibility in prison of gratifying sexual desire with women-whereas gay men and trans women could conceivably have consensual sexual relationships with men even in the general population? The K6G solution provides gay men and trans women an environment in which they are not only safe from sexual violence, but also free, all things considered, to have consensual relationships with sexual objects of choice. By contrast, incarceration in the general population takes away the sexual freedom to have relationships with sexual objects of choice, and also leaves a set of men to be victims of sexual violence. Thus, the determination of how to protect against prison rape may be laden with numerous value judgments, relating to who is victimized and what sexual freedoms they have already lost. The stark difference in rape occurrence between the general population and K6G might present another question for prison reform. Should sexual desire be considered in strategies to reduce rape among the general population? Might conjugal visits or furloughs aid in allowing expression of masculinity of male prisoners, possibly reducing the prevalence of rape? If K6G
39. See STEVEN PINKER, THE BLANK SLATE 360 (2002) ("In modem intellectual life the overriding moral imperative in analyzing rape is to proclaim that rape has nothing to do with sex."). Pinker challenges the feminist "violence-not-sex slogan" and argues that a reality-based understanding of rape must include the traditional notions of violence and control, in addition to other influences, such as sexual desire. Id. at 359-71.

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demonstrates the place of sexual desire in stemming prison sexual violence despite gender performance, perhaps this observation could potentially inform proposals for curbing prison sexual violence, both within and without segregation programs. Dolovich concludes that the implementation of "half-measures may be the most immediate moral imperative "4 0 to protect against prison rape in the larger context of prison reform. However, she seems to perceive that some form of segregation is a given under such a moral imperative and focuses on how best to effectuate segregation, either unified or not, as the major policy question to be answered.4 1 This conclusion emerges perhaps from Dolovich's own allocation of weight to the concerns highlighted above. If the segregation approach may merely redistribute the ever-present evil of prison rape in today's prison, policymakers mustrecognize the costs to some of protecting others and cannot avoid making or giving effect to judgments as to which evil is the lesser.

40. Dolovich, supra note 1, at 79. 41. Id.