Should Prison Inmates Have the Right to Masturbate?

The state of the universe.
Jan. 10 2012 6:59 AM

Free Willy

Should prison inmates have the right to masturbate?

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Both of these incidents highlight a new factor in the correctional environment: the female prison guard. In many institutions, women are steadily replacing men because prisons prefer to hire guards without criminal records and with some education beyond high school—both of which favor female applicants. Female guards have another virtue: In most jurisdictions, they can legally oversee housing units for both male and female inmates, whereas men often are permitted to guard and conduct pat-searches only on other men. The result is that male inmates are accorded less privacy in which to masturbate than female inmates, says Brenda Smith, the law professor. “Women are in these environments, and they can look into the cell. They come by and the guy is masturbating and all of a sudden [the guards think] it's about them. When in fact it isn't. Then those guys get written up, when they didn’t even know she was coming.”

Prisons must also protect female guards from the hostile work environment that ensues if inmate masturbation is not held in check. This was established in a case that reached the 9th Circuit Court of Appeals in 2006 involving a female guard who was repeatedly exposed to exhibitionist masturbation. In 1998 and 1999, Officer Deanna Freitag was sometimes tasked with monitoring the exercise yard at Pelican Bay State Prison’s Secure Housing Unit, which holds many of California’s most violent criminals. Somehow it became an inmate tradition to openly jack off when she was in the control tower. Freitag started writing up the serial masturbators, but her superiors ignored her reports—they told her exposure to misbehavior was part of the job and that “it’s only sex.” Freitag filed a formal complaint with the state. Pelican Bay found a reason to fire her. The fight wound up in court.

The facts were not really in dispute: A state inspector general’s report showed that female officers at Pelican Bay were regularly exposed to exhibitionist masturbation, and that administrators knew about it and did little to prevent it. (Many prisons install semi-opaque, one-way glass on control towers so officers can see out but inmates can’t see in.) Several female Pelican Bay officers testified that the pattern of masturbation had undermined their authority. The court concluded “with little difficulty” that the state was liable for maintaining a hostile work environment.

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But most female correctional officers do not define inmate exhibitionism as sexual harassment, according to prison research conducted by sociologist Dana M. Britton. Even if they find it gross, most female guards ignore chronic masturbators or simply make fun of them. One female guard told Britton that whenever inmates start to “search for something in their pants,” she starts teasing them about their paltry display. “[N]ext time you’re on the cell block, he’ll be under his covers,” the guard insisted. Inmates sometimes refer to exhibitionist masturbation as “gunning” or “killing,” and it’s a familiar behavior. “This really didn't get to be an issue until women started working in higher security penitentiaries,” says anthropologist Mark Fleisher, who authored a report on prison sex for the Department of Justice.

The threat of sexual harassment is now also used as a justification for keeping porn out of prisons. In enacting its new porn ban, Connecticut said explicit materials create a hostile environment for staff. Pennsylvania’s 2006 ban was designed to improve working conditions for women. (A representative with Pennsylvania’s prison guard union told the AP that inmates tack centerfolds to their cell walls “as a shield” to repel female staff.) This year the 10th Circuit Court of Appeals heard a case involving a Kansas inmate who said the state’s porn ban violated his First Amendment rights. The Court disagreed and relied on testimony from a state official who said porn can be used by inmates to sexually harass staff, tends to disrupt security, endangers gay inmates by enabling their identification, and may negatively impact sex offenders.

But do “dirty” magazines really cause all these problems? What if porn—and its natural consequence, masturbation—has the potential to deter sex crimes like prison rape? That’s what some sex researchers are saying, some 25 years after a controversial commission led by former Attorney General Edwin Meese issued a report suggesting a link between viewing hard-core porn and sexual violence toward women.* Today some scholars still emphasize the risks: In 2009, one academic review paper concluded that the totality of the evidence indicates using porn is a risk factor for sexual aggression. In 2008, a federal review panel on prison rape recommended banning porn in prisons. “Magazines? You may as well be throwing them six-packs,” says anthropologist Mark Fleisher.

But others insist the porn debate is over—and that porn has been vindicated. Another review paper on porn and sexual aggression from 2009 points out that as the availability of sexually explicit content has exploded in the Internet era, sex crimes have dropped nearly everywhere the matter has been studied. That doesn’t match with the theory that using porn facilitates rape, and some researchers even argue that porn might have a protective effect, by giving people a safe outlet for pent-up desires. One scientist told Congress in 1984 that patients seeking treatment in sex offender clinics often say porn helps them restrict their urges to their imaginations rather than acting them out by force. In effect, masturbation displaces rape.

In free society, at least, masturbation is evidently displacing something. There are only so many hours in the day, and the number of people who say they enjoy masturbation is rising. Studies of autoeroticism across societies—in Finland, in Estonia, in Russia, in France—indicate that masturbation trends among men and women of all ages are pointing up. Government authorities in parts of Britain and Spain are even getting aboard the autoerotic bandwagon, running pro-orgasm campaigns with slogans like “Pleasure is in your own hands.” According to Finnish sex researcher Osmo Kontula, two-thirds of masturbators use porn to liven up the process. “I'm not sure how popular it was in the Stone Age,” says Kontula, who has studied autoerotic behavior internationally and across generations. “[But] I can confirm that masturbation has increased significantly in recent decades. … It is also more popular than ever before.” The golden era of masturbation is at hand.

And yet in prisons, Stone Age attitudes toward self-stimulation, porn, and sexuality still rule the yard. Only two states, Vermont and Mississippi, offer inmates access to condoms, despite high prison rates of HIV and hepatitis. Correctional officials may wish inmates were sexually inert, but a more pragmatic attitude might yield better results. “If you allow for autoerotic behavior, if you allow for conjugal visits, if you allow for protected consensual sex, those things should reduce prison rape. They should also reduce, of course, sexually transmitted diseases,” says prison sex researcher Christopher Hensley. And what about the God-given right to masturbate? That’s one freedom inmates deserve.

David Merritt Johns is a doctoral student with the Center for the History and Ethics of Public Health at Columbia University’s Mailman School of Public Health.