The issue as to whether or not homosexual prison inmates should have a right to share the same cell can be argued dependent on the context of the question. For example, does the question mean that homosexual prisoners should be granted conjugal rights when their heterosexual peers have to go without; Does the question refer to established couples who were in a monogamous relationship outside of prison walls but who happened to be incarcerated at the same time in the same correctional facility, or does the question apply more to relationships that are formed during the term of a prison sentence; and finally does the question relate to both males and female who consider themselves homosexual in terms of sexual orientation as a life choice or could the rights of homosexuals in prison be confined to those people who have been coerced into that line of sexual orientation during the term of their incarceration? The focus of this argument will be that allowing homosexual prison inmates to share the same cell may help reduce the problems associated with same sex rape occurring in male prison facilities.While comprehensive studies on the prevalence of rape occurrence in male prisons are limited the international organization Human Rights Watch note that the few studies that have been conducted in American prisons seem to suggest that at least 140,000 men are raped in prison on an annual basis.
This equated to around 21 – 22 % of male inmates annually. Other studies made in connection with the Prison Rape Elimination Act showed that to date, rape has been chronically underreported by correction facility management and that given the long-term negative emotional impact of rape, in conjunction with the immediate physical injuries that can result from rape in prison, the correlated long-term social effects including re-offending and dependence on welfare by these rape victims after their release is a major economic concern in America nationwide. Despite assurances by Federal Government on the release of the Prison Rape Elimination Act, that all inmates would be protected from unwelcome sexual advances in jail, anecdotal evidence collected by organizations such as the Human Rights Watch suggests that given the isolation of most correctional facilities and the autonomy of correctional facility management, the reality of the situation is that the number of rapes between male inmates and the percentage of the prison population these cases represent are still not being treated with any seriousness and as a result male prisoner’s constitutional rights are being violated in a regular basis.Which brings us back to the concept of homosexuality in male prisons and the rights of homosexuals in prison. Donald Tucker suggested that in male prisons there are two types of homosexual person – the type of person who is by nature effeminate and who portrays his sexual orientation through his manner of dress and behavior and a second type of person who is more likely to be considered heterosexual outside of prison walls but who uses his power over other male inmates as a form of sexual behavior, where power is the key to the act rather than desire (the definition of rape).
Ironically this second type of homosexual would be offended if they were referred to as “homosexual”, and indeed they see their behavior as an example of enhanced masculinity, which is in itself a detraction from the general stereotypical image of a homosexual person.Men who enter prison as homosexuals should not have any more right to be allocated to a prison cell with their partner than husband and wives have when they are jointly convicted of crimes. Lack of conjugal rights is one of the consequences of a prison sentence in most states.
However, if a straight prisoner is allocated a cell with a person that is blatantly homosexual it might be possible for the heterosexual prisoner to claim “cruel and unusual punishment’ under the Constitution especially if the heterosexual prisoner has pressure exerted on him to perform sexual acts on his cellmate.Rape in male prisons is not only a degrading experience for an inmate to go through there are also consequences of contracting AIDs or Hepatitis, both of which can cause long term health problems and even death for a prisoner. While there is little evidence to support a claim that by allowing homosexual inmates to share a cell would reduce the number of incidences in male prisons, there is established evidence that shows that the level of violence in some male prisons has been reduced through racially segregating prisoners, with the segregation used primarily to reduce the number of gang related incidences occurring when members of different gang factions are housed in the same cell block. This would suggest that in cases where power was being exerted by some bigger, older and more experienced inmates, on inmates who are smaller, weaker, younger or more effeminate in nature, that these incidences could be avoided if homosexual prisoners were housed separately from the general population.While this might be considered to be a case of promoting homosexual behavior in a prison environment, given the number of rape victim cases that have already arisen in American courts, for example Roderick Johnson, and the fallout these cases have had internationally, allowing homosexual inmates to forge relationships in prison may be the first step in reducing the amount of sexual violence that some inmates force on others. While the government is unlikely to pass legislation saying that it is acceptable for homosexual couples to share a cell, as this could further reduce the chances of prisoner rape victims to get some protection from other inmates, decriminalizing homosexual behavior among self-reported homosexuals and segregating these prisoners from general population may be one way in increasing the protection prisoners are given under the American Constitution and increase the effectiveness of the “duty-to-protect” that the government has on all prisoners under both the Constitution and the Prison Rape Elimination Act.