Alex Blaze

Is Rape a Legitimate Form of Punishment?

Filed By Alex Blaze | May 05, 2011 9:30 AM | comments

Filed in: Politics
Tags: prison, rape, south africa, uk

Trigger warning for rape.

shrien-dewani_20.jpgA millionaire accused of murder in South Africa who was arrested in the UK is arguing that he shouldn't be extradited because he will certainly be raped in prison and has a good chance of contracting HIV. The high-profile case involves the theory by South African prosecutors that the suspect, Shrien Dewani, was going to be forced to marry a woman and that he was in fact gay, so he hired someone to kill her. He argues that reports that he's gay, which he denies, will make him a target in South African prisons. European law forbids extraditing prisoners to countries where they will face inhumane treatment.

South Africa prison experts Sasha Gear and Amanda Dissel, both formerly of the Centre for the Study of Violence and Reconciliation, testified by video link-up from South Africa that Dewani would be especially vulnerable to rape in prison.[....]

Gear told the court that Dewani, 31, was at risk of a sexual attack in prison because he was young, good-looking, "well-preserved", a first-time offender unfamiliar with gang or inmate slang and culture, and because he had been identified in media reports as homosexual.

Rape "by Aids-infected gangsters" would turn whatever prison sentence he got into "an almost certain death sentence", his British advocate, Clare Montgomery QC, told the court

Dewani's attorneys pointed to an anti-drunk-driving ad (not available on YouTube) that was approved by the Ministry of Transport that made light of prison rape as evidence of the government's acceptance of rape as as institutional punishment:

The locally-produced television advertisement imitates lonely hearts film clips, with burly and dishevelled men telling viewers: "I'm looking for a special person", "someone who can handle heavy situations with a smile". But the campaign has been attacked for making light of the country's problem with sexual violence.

One advert promises: "These hands will never let you go," before the camera pans out to reveal a prison cell crowded with inmates sprawled on beds and mattresses. The text on screen reveals: "They'd love to meet you. Never drink and drive."

The US isn't better when it comes to prison rape. Here's an ad from the US:

buzzfreead.jpg

America doesn't care much either.

I don't know the ins and outs of Eighth Amendment jurisprudence, but my guess is that instituting rape as a form of punishment would violate it. But that's effectively what we've come to, in apparently more countries than just the US, where everyone knows what goes on in prison but people joke about it since most people won't have to be the victim of it.

Prison is definitely a class issue in the US and many voters and most major campaign donors have never been to prison and don't know anyone who's been to a medium or maximum security prison. Add to that the states that take away the right to vote even from convicted felons who have served their time, and politicians don't have much motivation to improve the quality of prisons (other than to reduce recidivism, but then recidivism is profitable enough to keep it going).

The rule against extraditing prisoners to countries that violate human rights of prisoners was made famous by the case of Julian Assange, who argued in the UK that he shouldn't be extradited to Sweden because Sweden may extradite him to the US, a country well-known for disappearances, indefinite detention without charges, and torture. Appeals are still pending in his case, but perhaps European law is the only way to raise awareness about these human rights violations in other countries.

Because as the situation currently stands, people accept prison rape as just another punishment that people who have already done something wrong should have expected. Don't do the crime if you can't do the time, amirite?

While Dewani should face justice if he really did do what he's accused of, he has not been convicted of anything and no one deserves to be raped. And I think more people that it would appear agree with those statements, and the apparent consensus that rape is just a peachy way to punish people for anything from drunk driving to murder is really just demonstrative of our collective ability to not care about cruelty when it's neither in our face nor being mobilized against.

1st img via, 2nd img via


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Kathy Padilla | May 5, 2011 10:03 AM

His most compelling argument isn't that he's innocent?

"Is Rape a Legitimate Form of Punishment?"

Obviously not - but neither should a murderer go free. Especially one who seems motivated by his a lack of ability to say "no thanks - I'm not getting married".

"Gear told the court that Dewani, 31, was at risk of a sexual attack in prison because he was young, good-looking, "well-preserved""

Eh - not seeing it at all. She was much, much better looking. He may not have to worry if rape is motivated by the victims attractiveness -

Rape isn't about whether the victim is good looking or not. That was a stupid comment made by his lawyer. Just because his lawyer made a stupid comment doesn't mean that it's okay for Dewani to be raped in prison.

And I don't see how whether he got married to a woman or not has anything to do with it. Plenty of us in the LGBTQ community have taken a long time to come out of the closet.

Kathy Padilla | May 5, 2011 11:55 AM

"Rape isn't about whether the victim is good looking or not."

That was my point.

"And I don't see how whether he got married to a woman or not has anything to do with it. Plenty of us in the LGBTQ community have taken a long time to come out of the closet."

But very few of us have murdered someone to avoid saying "I do". The point wasn't that he was gay or whether he had come out - he could be straight and not want to be in an arranged marriage. So - don't be in an arranged marriage - say no. Don't murder some poor woman to avoid taking responsibility.

He hasn't been found guilty. There hasn't even been a trial yet. Let's not assume he's guilty before there's even been a trial.

And even if he is guilty, that doesn't mean he should be raped.

Kathy Padilla | May 5, 2011 12:05 PM

Yes to both - but pointing out that his main argument doesn't seem to be that he's innocent isn't a conviction. Nor are we the courts - any opinions we might have wouldn't be convictions either.

Is there any indication that he could be tried for this crime and punished (should he be guilty) in another jurisdiction?

His main argument isn't that he's innocent because he's going into an extradition hearing, not a trial. The goal isn't to prove him innocent, but to prove that he shouldn't be extradited.

I don't know whether he's guilty or not. If there's evidence against him he should be tried. If he's guilty he should be punished.

If he doesn't get tried because the UK government accepts his argument about prison rape, the fault is with the South African criminal justice system for its violations of human rights. Just like with Assange - he should be extradited but if his wins his appeal, the fault is on the US for violating people's human rights for years and continuing to do so at Guantanamo and with Bradley Manning.

While it is true that he has not yet been found guilty, the fact that his defense's statements to the press focus exclusively on humanitarian appeals against extradition and do not even claim that he didn't commit the crime makes it extremely unlikely that he is innocent.

If he is indeed guilty, I do not find it in my heart to have any sympathy whatsoever for a rich bastard who put out a contract hit on an innocent women simply because her existence was inconvenient to him. In fact, I find that my conscience demands that I question the motives of anyone who does express sympathy for the murderer over his victim.

That said, I stand firmly on the principle that governments have a moral duty to provide humane conditions in their prison systems. The idea that anyone would consider prison rape an acceptable condition or even a desirable "sentence enhancement" is positively sickening.

Not being extradited doesn't mean he would go free. The rule for certain categories of crime are "extradite or punish", which means that here he is just trying to be judged and condemned in the UK, not in South Africa.

And to reply to the article rape coult NOT be instituted as a form of punishment. In Farmer v. Brennan the Supreme Court has stated that being violently assaulted in prison is simply not "part of the penalty that criminal offenders pay for their offenses against society".

Interesting story to say the least...

Kathy Padilla | May 5, 2011 7:34 PM

Farmer being the case involving trans woman Dee Farmer?

So - Assange couldn't be tried in the UK if the chose to prosecute rather than extradite as the offense doesn't exist there?

Farmer being the case involving trans woman Dee Farmer?
Yep, that very case (http://www.law.cornell.edu/supct/html/92-7247.ZO.html)

So - Assange couldn't be tried in the UK if the chose to prosecute rather than extradite as the offense doesn't exist there?
No, precisely because there needs to be the presence of "double criminality" (i.e. what the person did is a crime in both countries). But I'm pretty sure murder is a crime in the UK... here he argues that he should not be extradited because he would face inhuman punishment (another example of that rule is when countries where the death penalty has been abolished refuse to extradite someone to a country where it's still in place)

Kathy Padilla | May 6, 2011 8:10 AM

Thanks - yes - we had that here in Philly with the Ira Einhorn case where they wanted to extradite him from France. They removed the death penalty from consideration to insure extradition.

It's unlikely a similar accomadation could be worked out for extradition to SA - unless lower security prisons are safer.

If they were to try to charge in the UK, rather than extradite - the distance from witnesses, ability to examine evidence, locations, interview etc would seem to make a fair trial difficult.

I don't know what Gertrude Stein's opinion might have been but mine is rape is rape is rape. No, rape isn't sex, neither should it be sexed. Beating a brutal person wearing handcuffs is brutality. Vulnerability shouldn't be sexed either. Vulnerability has no sex. The image of neo-Nazi Joseph Druce going into the cell of Roman Catholic priest, John Geoghan, with the covert assistance of prison guards, to me, is indicative of the values of the criminal "justice" in the U S, and, apparently, to some degree, in other places. It is the "Nazi" element from the last sentence that so impresses me, whether it's "neo" or otherwise. Crime and punishment in this country is just so sick and perverted. It isn't about justice and it isn't about prevention. It is one where abuse and brutality is validated as long as it is sanctioned by authority. It's no wonder there is such an endless cycle of violence here, which has more than twice as many people incarcerated as any other country in the developed world, including South Africa, which, apparently, has its own problems with state sanctioned brutality.

karen in kalifornia | May 5, 2011 1:02 PM

That's nothing.
"Corrective rape" of SA native lesbians is common and I would considered, tolerated, since it is commonplace and hardly countered.

This entire article should really be replaces with a giant "NO"

Regan DuCasse | May 5, 2011 3:09 PM

Yawn!

The reason why most people don't know what prison is like and don't care, is because one usually chooses to commit a crime. Complaining later that they can't go or don't want to because the conditions scare the potential prisoner, wouldn't impress me either.

Taking away incentives to NOT commit a crime isn't smart and I'm finding more and more capitulation to people who don't being held accountable for their actions, rather than consideration of the people they've permanently damaged by the crimes.

I believe firmly in innocence until proven guilty, and I believe also in a person's rights and protections prior to that conviction. But more and more, in America and most places, we're not as likely to convict the wrong person because of the advent of much better and more accurate forensic science and evidence gathering, as well as the accused being more informed as well as their accusers.
Even false accusations, are difficult to make stick with NO evidence. And evidence is extremely difficult to just make up or manufacture.

And I've got a background in forensic science and criminal analysis. I'm not so naive as to not know of cases where the accused or their supporters think the anticipated punishment will go above and beyond appropriate.

However, trying to AVOID appropriate accountability altogether is unacceptable when a person is a menace.
A rich man, who can contract to have a woman killed because she was inconvenient, can do the same regarding witnesses, his counsel or anything else he feels justifies his escaping justice.


BTW, I've been meaning to ask our transgender friends here. As we speak, a life term murderer is arguing to have a sex change operation at tax payer expense.
The inmate in question, btw, shotgunned her landlady to death.
This is an example of why murderers deserve to be executed. They want to have the benefit of being comforted or accorded support or attention that makes them more manageable inmates.
I advocate tranquilizers for THAT, not expensive ELECTIVE surgery.
A convicted killer, took their chances with the limits of what they can receive while behind bars, when the decided to commit their crimes. Especially the kind that could get you the needle or life.
The public at large, is already outraged by the cell phones, advocate outreach (which as led to further crimes), and the expense of creature comforts and educations for those who did horrible things.
That a transwoman would expect surgery, I feel is wrong. It's extremely expensive to maintain enough guards and facilities to keep control of exceptionally dangerous people.

We must consider accountability before all things. And prison, as I said, is already a situation an individual can choose NOT TO RISK.
Anyone that decides to anyway, and loses the gamble, no...I DON'T care about you. I care about the person or persons violated by you.

A yawn is a yawn, is a yawn. One wonders what a millionaire murderer has on his mind. Could it be a yawn is a yawn, is a yawn, all in a day's work . . . what's on a rapist's mind when he gets a nod and a wink form a "corrections" official who's pullin' down a cool $169,203, yearly?

http://unprison.com/2011/02/23/madison-wi-why-tom-morello-and-the-left-should-not-support-the-machine/

What was it G. Gordon Liddy said about opportunities for those who fail at everything else in life? He was a student of Machiavelli, who must have chosen to do the crime cuz i think he ended up doin' the time.

Are you sure everything is about choice and personal responsibility? Do we even know the name of Dewani's victim? What choices did she have?

Only now, while in fear of extradition, does he becomes concerned of another nations prison issues. The issue may exist but his complaint is motivated by self interest.

Judgement of another nations laws, issues...is not an easy thing. At some point you have to break it down to are they sovereign or not? If they are then you must honor their validity. If they are not, my whatever means, you should rule in all Humanity.

Extradition or not he must be tried for his crimes.