Abstract
We examine the lived experiences of transgender women in Australian men’s and women’s prisons. We draw on Alice Ristroph’s sexual punishments framework to discuss the diversity and ambiguities of sexual experiences reported by participants, and argue for a need to move beyond the dominant narrative of prison rape.
Introduction
Transgender people are reported to be among the most discriminated against groups in Australian society (Human Rights Equal Opportunity Commission, 2009). They are disproportionally incarcerated because of limited family support and mainstream employment discrimination, resulting in many participating in economies that attract high police intervention such as street-based sex work and illicit drug use and selling (Grant et al., 2011; Perkins, 1991). Upon entering the criminal justice system, transgender people are presented with significant health and personal safety challenges. The United Nations Office on Drugs and Crime (UNODC) identifies transgender prisoners as a ‘special needs’ group due to their significant ‘vulnerability’ while in prison by reason of an increased likelihood of suffering from discrimination, mental distress, physical and sexual violence, and sexually transmissible infections such as HIV (UNODC, 2009). Prisoners and transgender persons, as well as sister-girls, 1 are identified as ‘priority populations’ in the Australian national strategies on HIV, hepatitis C, hepatitis B, sexually transmissible infections (STIs) and the Aboriginal and Torres Strait Islander Blood-Borne Viruses and STIs strategy (Commonwealth of Australia, 2014a, 2014b, 2014c).
Prison policies directed at the care and management of transgender prisoners have emerged in the United States of America, Canada and Australia (Blight, 2000; Mann, 2006). Such policies are largely directed at the prevention of sexual violence and have not been without criticism. For example, most policies regarding the placement or housing of transgender women are guided by the biologic factor, referring to what Blight (2000: 3) defines as one ‘which considers whether surgical intervention has been undertaken’. In more recent years, however, a small number of jurisdictions include non-biologic considerations in their policies. Prison policies in the Australian states of New South Wales (NSW), Tasmania, Victoria and the Australian Capital Territory (ACT) take into consideration the social, or self-identification of gender. Under such policies individuals may be accommodated in a prison of their gender of identification unless it is determined that they be accommodated in a prison of their birth sex. Such determination is typically based on ‘security and safety reasons, and/or whether the individual’s transgender status is assessed as ‘authentic’. 2
Denver County Jail in the USA specifies that classification and placement of transgender prisoners should not be ‘solely based on the inmates’ birth sex, identity documents, or physical anatomy’ (Denver Sheriff Department, 2012) 3 and provides all transgender (women) prisoners with a ‘Blue Card’ which states, among other things, the prisoner’s preferences regarding the gender of the person performing a search, and their preferred name and pronoun. San Francisco County Jail in the USA is in the preliminary stages of implementing a new policy for transgender (women) prisoners based on a person’s preferred gender identity (Office of the Sheriff, 2015).
Despite this policy landscape there remains little international research and almost no Australian research on the experiences of transgender people in prisons. Without such research, health and correctional administrators are left with the task of determining what is best for transgender prisoners; a task that has increasing legal implications due to emergent legislative protections for transgender persons under Australian anti-discrimination laws. Our article addresses this gap by examining: (1) the sexual experiences (coercive and ‘consensual’) and safety strategies of a sample of transgender women incarcerated in the Australian state of NSW; and (2) the thoughts and experiences of these women regarding placement in women’s prisons – a NSW policy response to address their safety and dignity. In doing so, we report on the diversity and ambiguities of the sexual experiences of participants and illustrate the different types of risk and agency presented. Following this and drawing from Ristroph (2006), we argue for the need to move beyond the dominant narrative of prison rape to look at more subtle examples of coercive sexual encounters in prison that do not necessarily result in ‘bruises and blood’ (Ristroph, 2006: 142), and reflect on the complexities this presents for policy responses.
Sexual activity and sexual violence in prisons
Gibson and Hensley (2013: 356) state that, despite prison sex research dating as far back as the 1930s, gender, sex and sexuality in ‘prison populations remains one of the least understood issues in the criminal justice system’. Although sexual activity and sexual violence have existed in prisons throughout history, prior to the 1970s they received little attention, or were viewed in the essentialist terms of the ‘sexual deprivation theory’ (i.e. prison sex and sexual coercion occurs as a result of being deprived of heterosexual relationships (Sykes and Messinger, 1960)) and the ‘importation theory’ (prisoner behaviours and propensity for sex and sexual coercion are brought into the prison by individuals who undertook or would undertake these behaviours outside of prison (Irwin and Cressey, 1962)). During the 1970s and 1980s, sexual violence in prison was reinterpreted as an expression of dominance and control and took on more of a social constructionist approach to gender and sexuality (Kunzel, 2008).
From the 1980s to the present a number of empirical studies have emerged dedicated to identifying the characteristics of those at risk of sexual violence in men’s prisons. The most commonly reported associated factors include:
Younger age (Chonco, 1989; Felson et al., 2012; Morash et al., 2012; Wolff et al., 2007) Small physical stature (Chonco, 1989; Jenness et al., 2007; Man and Cronan, 2001; Morash et al., 2012; Tewksbury, 1989) Being racially ‘White’ (Chonco, 1989; Hensley et al., 2005; Struckman-Johnson and Struckman-Johnson, 2006; Tewksbury, 1989) Prior sexual victimization (Morash et al., 2012; Simpson et al., 2015; Wolff et al., 2007) Being new to prison (Hensley et al., 2003; Hensley et al., 2005; Morash et al., 2012) Being in a men’s prison and expressing traditionally feminine characteristics (Chonco, 1989; Man and Cronan, 2001) Identifying as gay, bisexual, or a transgender woman (Beck et al., 2013; Hensley et al., 2003; Hensley et al., 2005; Jenness et al., 2007; Sexton et al., 2009; Simpson et al., 2015; Struckman-Johnson and Struckman-Johnson, 2006; Struckman-Johnson et al., 1996).
Frameworks have developed to better understand sexual activity and sexual violence within the prison system. One framework we reflect on in the light of our findings comes from Alice Ristroph (2006: 142) who states that prison sexual violence researchers ‘can learn much from feminist investigations of the concepts of force and consent’. Ristroph (2006: 141) states that ‘sex in prison is in many ways a peculiar product of the carceral environment, and far more complicated than the paradigmatic account of prison rape’, an account that ‘posits predator and prey: a cruel, sadistic perpetrator who manipulates or violently overpowers a vulnerable victim’. She claims that the problem is not only about rape but the conditions of inequality and marginalization that led some to ‘engage in sexual activity that we may not wish to criminalize', but which is something less than willingly engaged in (Ristroph, 2006: 180). Ristroph (2006) posits that wider social inequalities intersect with a heightened physicality of the prisoner’s body to create a realm of sexualized power relationships, leading to particular bodies being marked as at risk of sexual violence. While Ristroph’s theory draws upon feminist writings on rape and rape law reform to understand sexual violence among men in prison, she overlooks trans women in this space. The current study provides a unique contribution to the literature by reflecting on Ristroph’s work to understand the sexual experiences of trans women in prison.
Transgender prisoners
Defining transgender persons is complex and contentious for policy makers, custodial authorities, community members and researchers. Definitions as understood in this study are based on participants’ own self-identification which include the terms ‘transgender’, ‘transsexual’, ‘trannies’ and/or ‘women’. These terms are interpreted to refer to a person whose gender identity or gender expression is contrary from their assigned sex at birth, which, in the case of participants, was male. 4 Such an identity or expression may be fluid, between, or beyond the binary gender of man or women. They may or may not be receiving any kind of medical or psychological treatment in relation to how they present or think in terms of gender (see Emmer et al., 2011). Transgender and gender diverse persons are from here on referred to as ‘trans’.
Because of the definitional and terminology issues, coupled with a paucity of research and national surveys on this population, it is difficult to estimate the number of trans persons in the community and prisons in Australia. According to the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy, 1 in 333 persons in the USA identify as trans. Estimates calculated from the Australian Sexual Health and Attitudes of Australian Prisoners (SHAAP) study, conducted in 2007, indicate that a similar proportion of prisoners – 0.003%, both men and women (95% Confidence Interval (CI), 0.09–0.6) – identify as trans (Butler et al., 2010). This estimate suggests that in 2007 there were 81 (CI, 25–163) trans prisoners in Australia. However, these figures are potentially conservative estimates as study methods may not have captured persons who had transitioned to a new gender and self-identify as either women or man and not as a trans person (Baral et al., 2013).
Studies on trans prisoners are scarce and mostly confined to estimating the rates of sexual violence against trans women in prison. These studies come from the USA and report varying estimates ranging from 15% to 59% (compared to US general population proportion estimates of 10.5% for trans persons, 17.6% for women, and 3.0% for men (Sexton et al., 2009)). This variation is due to differing study methodologies and terminology.
In a US national survey, of 6450 trans and gender non-conforming people recruited through 800 trans-led or trans-serving community-based organizations and their networks, 15% had been incarcerated at some time. Of these, 15% reported being sexually assaulted and 16% physically assaulted in prison (Grant et al., 2011). Research on trans persons recently released from prison report higher lifetime and in-prison rates of sexual assault. Jenness et al. (2007), in comparing a purposive sample of 39 trans women prisoners and a random sample of 322 male prisoners across seven Californian men’s prisons, found that 59% of trans women reported experiencing sexual assault in prison compared to 4% of the random sample. Further, 50% of trans women prisoners reported being raped at least once and 48% said they had engaged in sexual acts that were not against their will, but nonetheless they would rather not do. A more recent survey of 59 trans and gender variant people inside or recently released from Pennsylvania prisons in the USA found that 73% had experienced sexual harassment, 44% sexual assault, 53% physical assault, 90% verbal harassment by other prisoners, and 27% sexual assault by prison officers (Emmer et al., 2011). The authors also report that 76% formed intimate and sexual partnerships during their incarceration whereby having sex and/or creating partnerships ‘supported their resilience by providing companionship, protection, and access to resources’ (Emmer et al., 2011: 36). A national survey of 2011–2012, reporting on the prevalence of sexual victimization among 91,177 adult prisoners in state and federal prisons and local county jails in the USA, also shows high levels of self-reported sexual victimization 5 among transgender prisoners (Beck et al., 2013). Of the 101 prisoners who identified as transgender in the state and federal system, 40% reported sexual victimization compared to 4% of the total sample. Of the 129 in the local county jails, 27% reported sexual victimization compared to 3% of the total sample (Beck et al., 2013).
The Australian context
At the time of data collection for this study, there were 27,244 sentenced and unsentenced prisoners in Australian prisons, nearly 40% of which were housed in NSW (ABS, 2007). Like elsewhere, the Australian prisoner population is predominantly male (93% (ABS, 2007)), and Aboriginal and Torres Strait Islander people are significantly overrepresented. Comprising approximately 3% of the adult population, Aboriginal and Torres Strait Islander people comprise 24% of the prisoner population (ABS, 2007). 6
We could locate only five Australian publications between 1991 and 2009 on trans prisoners in Australia: 7 three analysed prison policies and two examined the lived prison experience of trans women (one of these is a published abstract only). The earliest published Australian study comes from Roberta Perkins (1991) who in 1983 surveyed 53 ‘transsexual’ women living in Sydney, and found that nearly half of them had been arrested and 28% had spent time in prison. The author also spent a year visiting 23 ‘transsexual’ women in a NSW prison and documented their lived prison experience. Experiences reported included the denigration by prison officers and gender ‘stripping’ (i.e. a sense of femininity being stripped away) by prison protocols – having to wear men’s prison clothes, have short haircuts and adopt men’s names, and by being treated with less dignity than other prisoners. A more recent Australian study (abstract published only) analysed four interviews with trans women ex-prisoners about their experiences in NSW men’s prisons (Cregan, 2009). 8 The author identified two recurring themes: sex and love partnerships, and negotiating the intersection of sexuality, violence and personal safety.
Despite a history of trans women being housed in NSW women’s prisons as far back as 1984 (Perkins, 1991), the contemplation of trans prisoner policies began in NSW in 1993 and involved consultative processes that included the Gender Centre (Riley, 1999). Developments within the Anti-Discrimination legislation, which trans policies must not contravene, saw policy implementation delayed until October 1998 (Riley, 1999), followed by their implementation in other Australian jurisdictions.
Trans prison policies typically focus on four domains: identification, classification and placement, health services/treatments, and ‘every day’ living issues. In comparative analyses of policies in Australian states and territories (Blight, 2000; Mann, 2006), as well as US and Canadian policies (Mann, 2006), NSW policies have been reported to have the most progressive and comprehensive trans prisoner policies in regards to identification and health services policy domains. Indicative of this, NSW policy overview statements draw from a ‘rights’-based discourse regarding identification, and positions agency in trans women and men regarding their prison management needs.
Any person received into the custody of the NSW Department of Corrective Services who self-identifies as transgender has the right to be housed in a correctional facility appropriate to their gender of identification. Transgender inmates are to be managed according to their chosen gender of identification.
(Corrective Services NSW, Inmate Classification and Placement Procedures Manual, 2005; Corrective Services NSW, Management of Transgender Inmates, Section 7.23, 2002).
NSW policy overview statements are qualified by a case management approach whereby placement in a correctional centre of their birth sex is said to occur if: (1) the nature of a prisoner’s ‘offence and criminal history includes violence – including sexual – against women or children’; (2) a prisoner’s ‘custodial history includes management problems which impacted on the safety of other persons, or the security of the correctional centre’; and (3) whether there is perceived risk(s) to the continuing safety of the trans person (Corrective Services NSW, 2005: 108). Trans men typically fall under the third case management provision and, according to Mann (2006), are generally not placed in a male facility due to physical and sexual violence risks. Consensual sexual activity is permitted in NSW prisons. Such permission is informed by a public health perspective. Condoms and dental dams are made available free of charge in each prison (Regulation 59, Crimes (Administration of Sentences) Act (NSW), 2014).
Although NSW policies are aimed at addressing the dignity, safety and management concerns, there have been no studies that have investigated NSW trans prisoner policies from the perspective of those who are subject to them. As part of this article we highlight how the realities of prison life for some trans women in NSW problematize policy responses in this space.
Method
The data presented draws on semi-structured interviews conducted in NSW in 2006–2007 as part of the Sexual Health and Attitudes of Australian Prisoners study. Full details of the study methodology can be found elsewhere (Richters et al., 2008). In brief, recruitment was purposive and driven by chain-referral sampling. Interviews were conducted by one interviewer who visited seven NSW prisons (four male, three female) and seven organizations in the community. Ex-prisoners in the community were introduced to the interviewer through various professionals, including social workers and counsellors, or recruited through flyers left at organizations commonly accessed by this cohort. Those who were currently incarcerated were introduced to the interviewer by prison nurses with these participants then introducing their friends to the interviewer. As the larger study focused on the sexual health and behaviours of prisoners, such purposive sampling ensured the inclusion of individuals of various gender identities and sexual orientations. Open-ended discussions followed a pre-set interview guide on sexual attitudes, sexual practice, sexual violence, and social and sexual networks inside prison and prison culture. The interview guide was modified to further investigate other related themes brought up by inmates. Voluntary written informed consent was gained from all participants (Richters, et al. 2008). Of the 59 qualitative interviews conducted, seven participants identified as trans women. Of these seven participants six participants identified as heterosexual (interested in male partners only) with one stating she was bisexual. Two of these seven interviews took place in the community and five in prison (conducted by LY). Interview transcripts were analysed by two researchers (MW and PS) independently for themes relating to sexual experiences and personal safety in prison.
Participant characteristics
Participants ranged in age from 20 to 47 years. Two were of Australian Aboriginal descent and five were Anglo-Australian. Two individuals were incarcerated in women’s prisons (both having previously spent time in men’s prisons). The remaining five had been or were housed in men’s prisons. The majority of participants who were or had served time in men’s prisons were held in Protective Custody. 9 However, those who had experienced multiple incarcerations over a long period of time had spent some time in the main population. Four participants had lengthy histories of multiple incarcerations with one dating back to the mid-1970s (20 years in total in prison). The remaining three, two who had been incarcerated several times, first entered prison between the years 2003 and 2006. One of the three was serving her first prison sentence.
Findings
Sexual violence
Violent assault
Participants described occupying and negotiating the opposing categories of ‘power/opportunity’ and ‘vulnerability’. According to participants, on the one hand trans women were viewed ‘as a bit of a prize’, a rare bird among the pigeons which, according to some, meant they ‘run the show’ in prison (ID 51). On the other, there was a tendency for male prisoners to believe a trans woman will readily ‘suck guys off and bend over for guys’ (ID 50). Being ‘the closest thing to a female that they can get’ (ID 7), participants described straight men going to great lengths to engage a ‘start’ (oral sex) from a trans woman prisoner. If this is not freely given, it may be forcibly taken: ‘They see you have breasts. They see you’re a “trannie” and as far as they’re concerned, it’s their right’ (ID 50). 10 In the words of one participant, a trans woman in a male prison represents to other prisoners, ‘a woman, a convenience, a cat, a poof, a thing, an idiot’ (ID 33).
It was apparent that a trans woman’s ‘special’ status meant that unwanted sexual advances from other prisoners were a recurrent part of the prison experience. For some, this took the form of violent sexual assault. Two participants spoke of being violently raped and three described witnessing the rape of another prisoner or narrowly escaping this fate themselves. These incidents were characterized by deception – commonly, the unwitting participant was lured into another prisoner’s cell with the promise of a ‘chat’ or drugs only to find a group of male prisoners lying in wait. Those with substance use issues appear particularly vulnerable. Having already been the victim of a sexual assault on a previous occasion, a participant described going up to a fellow prisoner’s cell with another trans prisoner, enticed by the promise of a ‘shot’ of heroin. On entering the cell they encountered a group of six prisoners who started to ‘rip’ the participant’s clothes off. When asked by the interviewer how she managed to get set up a second time she responded: The drugs always had a lot to do with it, because if you’re chasing drugs your awareness of what’s going on around you, you can let slip, because you only have that desire to get that drug, you know? And sometimes tend to not pay too much attention to things that you should have, and that leaves you open for an attack. (ID 27) If I do that then they get stroppy, and then sometimes you might be bashed because they think it’s a slight on their appearance or because I knocked them back they get offended, and if they get offended they take it to the next degree. Either they ignore it or they hit me because I wouldn’t do what they wanted. (ID 7)
Everyday harassment and coercion
Not all the experiences of sexual violence described were sexual assault or attempted assaults. Far more common among participants was the experience of daily sexual harassment and coercion attempts. All participants described having been propositioned for sex or approached for a ‘start’: ‘Oh the first line is, okay, how about a “start”, and a start is, that’s the beginning, and you know what they’re asking is how about a start, is getting a head job’ (ID 7). The request from male prisoners for a ‘start’ (i.e. to start sexual activity) was commonplace and they also described near constant verbal harassment, where male prisoners would yell out, ‘“Show us your fucking tits!” and this sort of rubbish. You know? Just more abuse. I mean as a woman, put yourself in that situation. Imagine facing that every single day without any respite whatsoever’ (ID 50). This kind of continual sexual harassment was referred to by one participant as ‘mentally stripping’ (ID 33) which she used to describe the way male prisoners worked at wearing down trans women prisoners, pressuring them to provide sexual services.
The impact of the constant requests for a ‘start’ and the everyday verbal abuse on emotional health varied between individuals. Some mentioned getting tired of their refusal to provide sexual services not being heard, as this participant described: ‘I get sick of it. It really gets to ya after a while. Because you get it nearly every day … You just really get sick of it’ (ID 51). For another participant who was desperate to be re-housed in a women’s prison, the emotional abuse was particularly distressing: I mean the problem is, when this happens as often as it happens, emotionally it builds up. I mean you can’t live amongst a group of men like this, and have it put on you continually … You can’t have a normal day because when they put it on you it affects you badly emotionally. You feel like having a cry. You feel like running away. Well there’s nowhere to run to. (ID 50)
Diversity and ambiguities of sex
Participants also spoke about being involved in seemingly consensual sexual activities with other prisoners and of the different motivations for engaging in sexual activity. All participants had engaged in sexual behaviour with other prisoners. While it was apparent that participants experienced a high level of sexual harassment and attempted coercion, the carceral environment was also presented as a unique opportunity for sexual encounters, as highlighted by the following participant’s comments: ‘I had about three sexual – three or four sexual encounters that I didn’t mind and I could have had like five hundred sexual encounters if I’d wanted to, but I didn’t … [of the three or four sexual encounters] it was mainly because I wanted to’ (ID 7). The desire to perform sexual acts was also cited as a reason for participating in sexual encounters with other prisoners with one participant speaking of engaging in oral sex with a fellow prisoner because she felt like it: ‘I only did oral once. You know, was willing to do it a few more times. It was because I wanted to. I wasn’t after a boyfriend. I felt like it. I wanted it’ (ID 33). Others spoke of engaging in sexual relations because the person was attractive or simply to pass the time as this participant described: ‘when we’re locked up at night which is at 3.00 o’clock in the afternoon through to 6 or 7 the next day, that’s a long time to be in the cell with someone. I got to know him, he got to know me, the sex part was just a way of just doing something’ (ID 7). Still others described trading sexual favours for other commodities such as illustrated in the following account: ‘A hand job, is a hand job. I was having a cigarette and going like that [waving her fist up and down to demonstrate a hand job]. Because I needed more cigarettes, so I gave him a hand job’ (ID 7).
Several participants talked at length about falling in love and forming what were reported to be genuine, loving relationships with other prisoners. This suggests that some felt they could choose whether or not to engage in sexual acts, thereby demonstrating agency in at least some of their sexual interactions: an agency which is described as being essentially lacking in prison. One participant spoke about being highly desired in prison as someone who has ‘been around’ and could provide ‘relief’ to other prisoners because she was ‘one of the best looking “trannies”’ in her section. However, she proclaimed her faithfulness to her partner, ‘I won’t do that [have sexual relations with other prisoners]. That’s my choice not to do it and I love him too much and respect him, to do that to him’ (ID 51). Describing her prison relationships, another participant’s account is striking in its portrayal of gender normativity and belies the setting in which the relationship is taking place: I can think of three that I had, that I felt love for another person in prison. And they were some of the most beautiful, happy times that I’ve had in my life, and it was in prison. And these men were, they were rough and tough and handsome, but underneath all that there was a little boy that wanted to be held and loved, and I loved doing that. I loved being there for them, cleaning their cells, washing their clothes, cooking them something to eat. I tried to make it as normal a situation as possible considering that you’re in prison and have access to only certain things. (ID 27)
Personal/individual strategies for keeping safe and upholding dignity
‘Stand up’ and fight
A common strategy for keeping safe and upholding dignity among participants was to ‘stand up’ and fight. This tactic – employing either physical violence or ‘shaming’ of the perpetrator – is reported to earn the respect of fellow prisoners and have a protective effect against future violence: ‘If you stand up and have a fight and you lose, you earn your respect because you’re having a go. But if you don’t have a fight, have a go, you lose all respect’ (ID 51). Those who ‘stand up’ for themselves may be able to gain partial relief from the near constant harassment described: ‘I’ve done a lot of gaol and the rumours around that I will stand up for myself if I have to … you’re not going to take my power. You’re not. Don’t even think you’re gonna come in here and force me. Because if I have to grab a Breville [toasted sandwich maker] and belt the fuck out of you, I will’ (ID 33). Going down this route is not without risk. One trans woman explained that if someone would simply not take no for an answer, she would ‘make a point of slurring them [the perpetrator] in front of their friends’. Calling into question the perpetrator’s heterosexuality, she would point out that she is a man in a skirt. ‘I’ve got a dick. And it works very well … And you want to have sex with me do you? I say, “Are you a poofta?”‘ (ID 50). While finding this approach a helpful survival strategy, she qualified that it is not foolproof and ‘you’ve just gotta be careful that you don’t get belted after it’ (ID 50).
‘Signing on’
For some trans women in prison, the recognition of their vulnerable status may lead them to purposefully ‘sign on’ with another prisoner.
11
‘Signing on’ affords the individual some protection from the attentions of other prisoners and several participants described a code between male prisoners that forbade (at least to some degree) putting moves on someone else’s partner. As one participant described, ‘You’re very insecure … I had a boyfriend. I felt I needed that. I was in a male dominated environment. I may need protection. And bingo, there you go’ (ID 33). Whether the other prisoner was ‘the biggest and strongest of guys’ was less important than the actual relationship status: ‘Once you’re with someone I’ve noticed in gaol, there’s no trouble, they don’t move in on someone else’s turf. If you openly admit to being with someone there’s no trying to back door, youse are together and that’s it, you get left alone in that regard’ (ID 17). For some, ‘signing on’ was reframed as accidental and based on sexual desire, ‘I knew nothing about protection; I was attracted to him because he was a handsome looking man. I didn’t know he was top dog’ (ID 7). For others, the decision was simply pragmatic. Resignation about the need to ‘sign on’ is captured in the following description: There’s 84 men in the section I’m in. Now if you’re having it put on you a dozen times a day and you have an option of going with one guy and he’s going to say to them, ‘Leave her a-fucking-lone or I’m going to smack ya … she’s with me’, then that’s certainly something you have to take into consideration because it’s going to stop that dozen men a day putting it on you for sex. (ID 50)
Ethnic minority group support
Two participants were of Aboriginal descent. While there was not a significant difference in experiences of sexual violence and the strategies they described for ensuring their sexual safety, being a member of an ethnic minority appeared to, at times, offer some protection for trans women in gaol. One participant explained that her Aboriginal peers referred to her as ‘sistergirl’, and maintained that those at most risk of assault were those who ‘don’t stick together as a minority group … It’s mainly just the white guys that cop it the most’ (ID 51). The other described herself as ‘half Aboriginal and half Dutch’. She made a point of seeking out other Aboriginal prisoners because ‘if they know that you’re Aboriginal they’ll look out after you; they see a connection. I could be their brother, I could be their sister, I could be their cousin … So they treated me like I was their sister’ (ID 7).
Placement in women’s prison as policy strategy for keeping safe
As previously described, the NSW trans prisoner policy around placement emphasizes the right to be housed in a correctional facility appropriate to one’s gender of identification. Two participants – one who had no genital reconstruction surgery (ID 17) and the other who did (ID 27) – had spent time in both men and women’s prisons and their experiences suggest that placement in a female-only prison, to some extent, provides protection against violence.
Reduced intimidation
One of the two participants described feeling more comfortable when housed with women: ‘I’m not scared at all in the women’s prison … I don’t feel intimidated here. I still love men. I could have a field day in there [male prison] but I didn’t want that, because I was scared in there [of being raped], I’m not scared here’ (ID 17). Prior to her transfer to a women’s prison, this participant was warned by other prisoners that the women were going to be ‘jumping on me’, so she was ‘always sort of prepared for that’ (ID 17). She maintained that she had been approached for sex by a number of women and described an incident where one woman had placed her hands on the participant’s bottom, pushed up hard against her and remarked on how the participant’s nipples were erect, asking to suck them. Despite this woman’s behaviour the participant downplayed this account, apparently managing to thwart further assault by making her heterosexuality known to the woman: ‘I said if you were Claudia Schiffer I still wouldn’t have sex with you … I have never been to bed with a woman and I’m not about to just because I’m in here with a bunch of women’ (ID 17).
The second spoke about fighting occurring among women, largely triggered by jealousy, which may end with ‘one punch, or a couple of punches’. However, she qualified that, unlike male prisons, ‘it’s never a full-on stand up fight. It’s usually only words and screaming loudly at each other … the injuries they get basically are only a black eye. You don’t really see like stabbings or scaldings with boiling water’ (ID 27). Of sexual violence, she stated ‘sexual violence in the women’s centres is non-existent really’ (ID 27).
These two participants’ accounts are in contrast from those of trans women housed in male prisons described previously. However, while sexual harassment and assault of trans women in women’s prisons appears, from these two accounts at least, to be either infrequent or perceived as less serious than what occurs in the men’s prisons, both participants had strategies to avoid any problems from arising. The first explained, ‘I basically just stick to myself, and not get involved in gaol politics’ (ID 27). The second made her heterosexuality known to other prisoners and was careful not to associate regularly with one woman lest the others make assumptions they were in a relationship: ‘I’ve learnt you don’t hang with anyone too long … some have got narrow minds, but I think the gaol’s very aware that I’m not into women’ (ID 17).
Policy shortcomings
Importantly, not all participants desired or were able to transfer to a women’s prison. One participant believed that transgender policy did not always translate to practice, commenting: There are many [policies] for many different things, but do they follow it? In my experience and what I’ve observed, the system is not getting constructive or better; it’s getting worse. No they don’t [follow transgender policy]. It comes back to their own discretion, no matter what the subject or the issue. Whether it be from the doctor, the nurse, to the Governor. (ID 33)
Another concurred with this assessment. This individual had been charged with a violent crime and on this basis was not eligible for transfer. Having been previously assaulted and subject to continual sexual harassment while in a male prison, she felt that ‘forcing transgenders into male prisons is nothing but conspiracy to sexually assault, rape, abuse and sexually harass’ (ID 50). In relation to the implementation of transgender policy, she felt that ‘every one [male prison] you go to they totally ignore the policy, and make their own rules up’ (ID 50). Of the committee members assessing placement for transgender prisoners she had the following to say: ‘They have no, no special insight whatsoever into transgenders. They knew nothing about hormone treatments. They were just a group of people who sit on committees’ (ID 50). She firmly believed the system should ‘take the girls out of the guys’ gaol because manipulation, intimidation, mental stripping, sexual assault, sexual threat; it’s not gonna stop, it’s going to get worse’ and recommended the establishment of a segregated area for trans women attached to a women’s prison (ID 50). She was also willing to, and made a policy recommendation, that all trans women who are transferred to women’s prisons have regular tests to ascertain their hormone levels. When on the correct dose of hormones, she maintained, ‘you could never work physically with male organs’ (ID 50).
In contrast, another participant, who had served all her sentences in male prisons, believed women were ‘rougher’ and that she would actually be at more risk of sexual violence in this context (ID 7). She commented: ‘It’s scary, they would stand over me and they would get me in a cell and try and make me do what I don’t want to do’. As a consequence, she chose not to apply for a transfer. For one trans woman, women’s prisons represented an unknown: ‘I’ve never been to a women’s gaol, I don’t know how I’d get on with the women. I find I get along with blokes better in gaol than if I was outside’ (ID 56). This woman also chose to stay in a men’s prison.
Discussion
The aim of this study was to examine the sexual experiences of trans women in men’s prisons in NSW with a focus on negotiating sexual safety and to reflect on the complexities these experiences present for policy responses. However, although there were experiences reported that aligned to the paradigmatic account of prison rape, most accounts of sexual activity were not directly and physically violent, could neither be clearly defined as consensual or non-consensual, and at times appeared productive in terms of addressing participants’ own immediate sexual and mental health and safety needs.
Such findings resonate with Ristroph’s (2006) work on ‘sexual punishments’ in two ways: firstly, in relation to understandings of sexualized power relationships in prison to explain why trans women are at high risk of sexual assault in prison; and secondly, how trans women’s experiences of, and responses to, sexual activity in prison is more nuanced and complex than the typical paradigmatic account of sexual assault that dominates both academic literature and popular media. A focus on physical violence and rape potentially hierarchizes ‘damage’, attributing more seriousness to that which results in visible injuries. However, ‘coerced sex is only rarely marked by bruises and blood’ (Ristroph, 2006: 142).
Sexualized power relationships
Ristroph (2006) posits that wider social norms and inequalities attached to heteronormative masculinity intersect with a heightened physicality of the prisoner’s body to create a realm of sexualized power relationships, leading to particular bodies being marked as at risk of sexual violence. While the dominance of heteronormative masculinity within prison makes visible and vulnerable sexual and gender minorities, heightened physicality comes from the reliance prisons have on physically limiting and controlling the body of a prisoner. The prisoner’s body is nearly always under surveillance by prison staff and possibly video cameras (Yap et al., 2011). Also, prisoners experience close bodily proximity to each other, which can extend to showering and toilet use. Thus, a heightened awareness of one’s own physical embodiment and the physical bodies of other prisoners, results. This embodiment, according to Ristroph (2006: 148), ‘is not equivalent to sexuality’, but in practice, prison relationships are structured according to the capabilities and functions of prisoners’ bodies, including the physical and sexual capabilities and functions of those bodies. The assessment of such capabilities and functions, Ristroph (2006) states, rely on and are informed by the inequalities and power relations inherent within the character of prison-based punishment, as well as on the inequalities among the prison population that are informed by the wider social inequalities attached to sexuality and gender. In this context, trans women are likely to be readily assessed and reduced, by some, to merely sexual capability and functioning.
Given that the experience of imprisonment is a continual assault on one’s agency, autonomy and self-reliance, traits valuable to all, ‘but culturally associated with male strength … it is not too surprising that attempts to regain some measure of agency and self-respect’ will see many (re)asserting a dominant masculinity through various behaviours with others (Ristroph, 2006: 148). Some of these behaviours result in prisoners, whose bodies are marked and reduced according to sexual capabilities, being sexually coerced and violently assaulted.
Although Ristroph (2006) does not comment much at all on trans women prisoners, within her hypothesis of sexualized power relationships, the bodies of gender non-conforming prisoners are likely to be an obvious target for such masculine reassertion, a reassertion that is likely to be expressed in many social and sexual forms beyond, but inclusive, of explicit sexual assault. Prisoners’ bodies with more overt and traditional feminine gender expressions are likely to be interpreted by some to afford the body with a sexualized functionality. Such a sexualized functionality is linked to the unique gender dynamics within a men’s prison. As Jenness and Fenstermaker (2013: 22) state ‘in the context of prisons for men (and only men), it is not the commitment to biological differences that dictate the gender dynamics among members, but the commitment of bodies to act like, and be received as, ladies and men’. This commitment to gender as social practice, and not biological difference, contributes to some trans women prisoners being reduced to a sexualized functionality. Ristroph (2006: 159) claims that trans women prisoners are ‘usually classified on the basis of their genitalia and, should their genitalia not correspond to their gender identity, subject to substantially increased rates of sexual abuse from fellow inmates’. However, our findings suggest that this account is incomplete as the social practice of gender in a men’s prison elicited a more complex picture.
The interpreted functionality of trans women in prison sees such women as threatening hegemonic masculine norms and thus representing an avenue of punishment and power deployment to others. On another level, regardless of genital differences, traditional feminine gender practices by, and an interpreted sexualized functionality of, trans women in prison also represents an avenue of social and/or sexual pleasure to some. The unique sexual status reported by participants in terms of occupying and negotiating opposing categories of ‘vulnerability’ and ‘power/opportunity’ is consistent with this dual effect of sexualized power relationships in prison. In a sense, the ‘inevitable disrespect and violence heaped upon the feminine’ (Jenness and Fenstermaker, 2013: 23) is negotiated by participants through pursuing a heteronormative femininity in all its social and sexual functionality; a functionality that provided agency, pleasure and protection for some.
Beyond the paradigmatic account of prison rape
Discussions of prison rape in the literature ‘tend to recite graphic tales of physical force and bloody violation’ (Ristroph, 2006: 154), but research documenting prisoners’ own accounts, including the current study, reveal a much more complex and nuanced picture of sex in prison (Emmer et al., 2011; Robinson, 2011). Although in prison there are violent sexual assaults, more commonly there is likely to be repeated sexual harassment and threats that do not result in sexual assault (Human Rights Watch, 2001) and ‘sexual contact that is coerced through some tactic short of the direct exercise of force’ (Ristroph, 2006: 154). Further, there are also ‘instances in which prisoners choose to have sex though they could easily abstain’ (Ristroph, 2006: 157). Within this terrain, sex can be said to be produced by the intensively coercive prison environment, whereby sex is sought or agreed to under ambiguous circumstances. Sex here, for example, may constitute sex work, expressed as productive agency, or may present as ‘extortion,’ in order to achieve safety, ‘money, drugs, food, comfort, physical gratification, and love’ (Ristroph, 2006: 156).
Our findings strongly resonate with these various and perhaps overlapping groupings of prison sex. Although two participants spoke of being violently raped and others described witnessing rape, most spoke of sex in terms of harassment and coercive threats, as well as a diverse and at times ambiguous mixture of motives relating to pleasure, comfort and having an asset or tradable commodity. In this sense, the dominant narrative of prison rape is misleading and incomplete. While such an account of prison rape is true in many prisons, and implementing prison policies to address such accounts is likely to help many, it is also likely to be unhelpful to many others who experience less overt forms of violence and control like sexual harassment, coercion and other sexual activity that has an indistinct relationship to ideas of consent. Redressing the incomplete picture, however, has important policy implications, as viewing prison sex beyond the paradigmatic account of prison rape is likely to complicate attempts to eliminate sexual coercion in prison without further denying the little agency prisoners have. For academics, service providers and prison advocates alike, this ultimately represents: a fine line to walk: on one hand, we do not want to ignore or worse, romanticize, sexual activity that is in fact coerced. On the other hand, prisoners have been stripped of so much control over their own lives that [it] would be perverse to deny prisoners what shreds of agency or control they may retain. (Ristroph, 2006: 156)
Responding to sexual violence in prison
The majority of participants did not refer to trans prisoner policies for protection and appeared to view their sexual safety as their own responsibility, describing a number of strategies including ‘standing up’ and fighting, forming protective relationships and tapping into ethnic minority group support for minimizing their risk of experiencing sexual violence and harassment, and for retaining their dignity. The NSW prison policy response based on social/self-identification of gender suggests a provision of agency afforded to trans women to escape sexual violence in men’s prisons. It should be noted that since the time participants were interviewed (2006–2007), the NSW trans prisoner policy has undergone revisions, 12 however, details on identification and housing remain similar to earlier versions. Our study explored the experiences of two trans women who had chosen to be, and were housed in women’s prisons, and who also had spent time in men’s prisons. To our knowledge, no other study has done this. While we need to be cautious when interpreting findings owing to the small sample and the time that has passed since the data were collected, our findings suggest that housing trans women prisoners in women’s prisons may act protectively against sexual assault and coercion which provides further support for NSW’s policy approach. This is not to say that such incidents did not occur in women’s prisons. However, the extent, nature, consistency and interpretation of this violence appeared to differ from that described in the men’s prisons. The ongoing harassment and violence described in the male prisons was absent in the accounts, except for within the supposition of prisoners in the male prison population. A ‘fear’ of the female prison population among trans women and men in male prisons is a finding reported elsewhere (Jenness and Fenstermaker, 2014).
Participants’ narratives also brought to the fore what they viewed as inconsistencies in the application of trans policy where placement was left to the discretion of those involved in the decision-making. Complicating the process is the difficulty of developing a ‘one-size fits all’ approach for a diversely gendered population; a population that defies the assumed binarity demanded for classifying and housing prisoners on reception (Sumner and Jenness, 2014), and which has contrasting views on where trans women should be placed. Our findings reinforce US findings that trans women are at a high risk of experiencing sexual violence while incarcerated (Emmer, et al., 2011; Jenness et al., 2007; Sexton et al., 2009,) and that addressing this risk presents a continual challenge to custodial authorities; the policy approach adopted by NSW is a positive step forward in that it recognizes an individual’s self-identification and purports to assess risk on a case-by-case basis.
However, there is a need to recognize that these women are not only subject to the violence that causes ‘bruises and blood’ (Ristroph, 2006: 142), but to also acknowledge the more nuanced experiences of these women which includes the ongoing and less visible sexual harassment and coercion which may impact on their psychological and social well-being. Some have questioned the extent to which prison policies and legislation can eliminate these less visible kinds of sexual violence in prison. This is because, according to Ristroph (2006) and Robinson (2011), they overlook the more complex factors that contribute to the problem in the first place, such as the way prisons and wider society contribute to the (re)production of violence and hegemonic gender norms. Finally, we need to look at ways to prevent the incarceration of trans women by examining decarceration options and exploring ways in which trans women, a highly discriminated against population, can be better supported in the community setting.
Footnotes
Funding
This work was supported by the National Medical and Health Research Council of Australia [APP350860].