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Prison sex 'okay'
22/03/2005 12:05 - (SA)
Cape Town - Prison reformers are calling for the department of correctional services not to punish consensual sex between prisoners and for eventually allowing such sex in prisons.
This seemingly far-fetched proposal is even suggested by the Judicial Inspectorate of Prisons (JIP), a statutory agency tasked with making recommendations on correctional services.
In a legal review of the department's stance on sodomy, the JIP suggested in an enlightened stance that proper steps needed to be taken towards the "progressive realisation of a controlled sexual climate".
The opinion was prepared by JIP national manager advocate Kamraj Anirudhra, who was asked to review a specific incident at Zonderwater Maximum prison involving consensual anal sex between two male prisoners.
The facts of the case showed that the two prisoners were having intercourse in a communal cell within an "umkhuku", a temporary enclosure created by blankets so as to ensure the act was private.
However, a plan had been hatched by fellow prisoners to expose the sexual escapades of the two men, and the blankets were pulled back.
A departmental disciplinary hearing was held and the two found guilty and deprived of secondary privileges, such as reading material and leisure activities, for 30 days, suspended for six months.
The matter was referred to the JIP, was considered and a recommendation made in favour of the offenders. It was appealed and sent to review before Anirudhra in 2004.
He submitted that prisoners being held in circumstances where one was sexually deprived was not degrading in itself, but led to frustration, maladjustment and predisposed human beings to behavioural or emotional problems.
Conditions 'undesirable'
Using as a basis for his argument various sections in the constitution, including section 35(2)(e) and section 10, which dealt with imprisonment and human dignity, Anirudhra said current conditions in prison were undesirable and severely impacted on an individual's dignity.
Anirudha said although sexual intercourse was discouraged between inmates, it was evident that it took place regularly and could not be eradicated because of its inherent nature, as well as the existence of problems such as overcrowding and lack of industry on the part of inmates.
"Accordingly, if sexual activity cannot be policed effectively and if there is a need to control/regulate it then proper steps must be taken towards a progressive realisation of a controlled sexual climate. Ad hoc, haphazard and impractical steps which are out of tune with the realities of the needs and circumstances of prisoners should be avoided.
"This simply means that prohibiting homosexual sex in prison is a gross violation of a prisoner's dignity because given his circumstances it would lead to depravity, emotional problems and predispose him to unacceptable behavioural problems."
Consensual versus forced sex
Sasha Gear, a researcher at the Centre for the Study of Violence, agreed.
She said it was "unrealistic and unconstitutional" to punish prisoners for participating in consensual sex.
"We need to distinguish between sex that is consensual and that which is forced and abusive.
But the ways in which prison administrations as well as inmates often speak about and deal with sexual activities often confuses them. This confusion feeds both homophobia and the taboos around male rape".
Gear emphasised the lack of uniform understanding within the department as to whether consensual sex is prohibited or not.
Meanwhile, the department of correctional services spokesperson, Manelisi Wolela, said the department had an unwritten policy on sexual activity in prisons, which prohibited sex, whether it was done heterosexually or homosexually, consensual or not.
"Those people found engaging in sexual activities consensually or not are dealt with. Collecting and collating data on reported cases and steps taken would take a little longer to do," he said in response to questions.
Wolela said conjugal rights were "out of question" and there were no considerations to provide those rights or any other provision for authorised sex in correctional centres.
The right to have sex
Underlying the department's philosophy was the belief that convicted criminals forfeited a number of basic freedoms and rights enjoyed by ordinary law-abiding citizens.
However, the president of the South African Prisoners Organisation for Human Rights, said "legally" the department was not supposed to punish inmates having consensual sex.
Golden Miles Bhudu said the reason why the department did not allow conjugal rights was fear of a public outcry condemning the department as a "ten star hotel".
"If one has conjugal rights it will mean less prison rapes, less unnatural sexual activity."
Miles Bhudu said the only concern was how to manage and control the environment to ensure that the department did not use the measure to punish or favour certain inmates.
Gear added that rather than trying to stamp out sex between inmates, "we should be looking for ways to ensure that where it's happening, it's as safely and healthily as possible. And, fundamentally, we need to put energy into tackling sexual violence in prison, in dire need of attention and resources."
- SAPA
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