Prison Rape

[Little_Nemo]

@Really_Not_All_That_Bright

Then I’m sure you can cite the law which sets forth that presumption?

In New York, it’s section 130.05 of the Penal Code (“Sex offenses; lack of consent.”)

[Really_Not_All_That_Bright]

Thanks. Are there similar provisions in other states?

[Bricker]

@Really_Not_All_That_Bright

Thanks. Are there similar provisions in other states?

Va Code § 18.2-64.2

[Really_Not_All_That_Bright]

The Virginia statute creates a separate offense, which is what I said would happen. The New York statute does what Starving said.

So I guess we’re both right.

ETA: The Florida statute does the same thing as the New York statute, although rape is referred to as sexual battery here… so I should have known better.

[AK84]

New York

3. A person is deemed incapable of consent when he or she is:
   (a) less than seventeen years old; or
   (b) mentally disabled; or
   (c) mentally incapacitated; or
   (d) physically helpless; or
   (e) committed to the care and custody of the state department of
   correctional services or a hospital, as such term is defined in
   subdivision two of section four hundred of the correction law, and the
   actor is an employee, not married to such person, who knows or
   reasonably should know that such person is committed to the care and
   custody of such department or hospital. For purposes of this paragraph,
   “employee” means (i)** an employee of the state department of correctional
   services who performs professional duties in a state correctional
   facility consisting of providing custody, medical or mental health
   services, counseling services, educational programs, or vocational
   training for inmates**;

Virginia

18.2-64.2. Carnal knowledge of an inmate, parolee, probationer, detainee or pretrial or posttrial offender; penalty.

An accused shall be guilty of carnal knowledge of an inmate, parolee, probationer, detainee, or pretrial defendant or posttrial offender if he or she is an employee or contractual employee of, or a volunteer with, a state or local correctional facility or regional jail, the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home, as defined in § 16.1-228, a state or local court services unit, as defined in § 16.1-235, a local community-based probation services agency or a pretrial services agency; is in a position of authority over the inmate, probationer, parolee, detainee, or a pretrial defendant or posttrial offender; knows that the inmate, probationer, parolee, detainee, or pretrial defendant or posttrial offender is under the jurisdiction of the state or local correctional facility, a regional jail, the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home, as defined in § 16.1-228, a state or local court services unit, as defined in § 16.1-235, a local community-based probation services agency, or a pretrial services agency; and carnally knows, without the use of force, threat or intimidation (i) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail or (ii) a probationer, parolee, detainee, or a pretrial defendant or posttrial offender under the jurisdiction of the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home, as defined in § 16.1-228, a state or local court services unit, as defined in § 16.1-235, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services program or agency. Such offense is a Class 6 felony.

For the purposes of this section, “carnal knowledge” includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse and animate or inanimate object sexual penetration.

So looks as if we are all correct.

But, is sex between guards and prisoners in these states such a problem that a statute has to be created rather than simply look at consent as a question of fact at a trial?

[Little_Nemo]

@AK84

But, is sex between guards and prisoners in these states such a problem that a statute has to be created rather than simply look at consent as a question of fact at a trial?

I think it was more of an issue that the state recognized that even consensual sex between a prisoner and an employee was a serious problem.

[AK84]

Sorry I phrased my statement poorly.What I meant was why did the state feel it necessary to criminalise it wholly, instead of dealing with it through administrative or disciplinaru means?