Sexual violence in prisons – Part 1: The duty to provide safe custody and the nature of prison sex

Abstract

While the exact extent of sexual victimisation in prisons amongst men is uncertain, it is accepted that this is a universal phenomenon. This article, in two parts, examines sexual violence in South African prisons and emphasises the duty of the state to provide safe custody. It is argued that rape and sexual violence in prisons fall within the ambit of the definition of torture and other ill-treatment, as defined by the United Nations Convention against Torture (UNCAT) and interpreted by the United Nations Special Rapporteur on Torture. The duty of prison officials to prevent sexual victimisation is discussed, reflecting in particular decisions from the United States (US). Particular attention is furthermore paid to the nature of sex in prisons and the relationship between coercion and consent. It is concluded that the duty to provide safe custody and protect the dignity of people deprived of their liberty rests with the state. Further, that this is an active and progressive duty placing the emphasis on managing risks and preventing torture and ill-treatment, as required by Articles 2 and 11 of UNCAT. The state is furthermore not only responsible for its own officials but also for the actions of non-state actors (i.e. other prisoners) when torture and other forms of ill-treatment have been perpetrated.