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August 2005

Prison Sex -- Are Marital Relations a Human Right?

By John D. Thomas

would America be better off if prisoners were allowed to have sex with their spouses? Some legislators think so. Under certain conditions, minimum-security inmates in California, Connecticut, Mississippi, New Mexico, New York and Washington are allowed to have private visits with their husband or wife. The restrictions in Mississippi are similar to those elsewhere: Privacy is extended only to inmates who were married before they entered prison and who have no rules violations in the previous six months. The couple must have a marriage license; common-law unions don't count. Inmates with STDs whose spouses are not infected are ineligible. The prison also enforces a time limit (60 minutes) and allows only soap, condoms, tissues, sheets, a pillowcase and two towels. Both husband and wife are searched on the way in and out of the room. There are no candles, no toys and no Sinatra.

Can the sex still be hot? After Mike Hall was incarcerated in Mississippi in 1992, his wife, Fredna, visited him frequently. "The room had a single iron twin bed," she says. She recalls hearing other inmates and their spouses in adjacent rooms, which sometimes was amusing and sometimes not. Despite that awkwardness Fredna says the visits sustained their marriage. "Even if you didn't go there for the purpose of being intimate, it was wonderful to spend an hour with nobody looking over your shoulder."

Mike, who was paroled in the fall of 2004, says his anticipation of the visits kept him in line. "If I wasn't married, I would probably still be in prison," he says. According to Mike, the guards would often bait prisoners as they waited. "They would say things like, 'Get the next pair of animals ready,'" he says. "If society wants to have better prison conditions and better people, it ought to afford prisoners these activities. Every state ought to institute them."

Prisoners have been having sanctioned sex with outsiders since at least the early 1900s, when officials at the Mississippi Penal Farm brought in busloads of prostitutes to service the chain gangs. In his history of the prison, Down on Parchman Farm, William Banks Taylor writes, "Everything suggests that authorities viewed sexual favors as a valuable tool in the management of black field hands." One old-timer recalled, "I heard tell of truckloads of whores being brought up from Cleveland at dusk. The cons who had a good day got to get 'em some right there between the rows." The practice was the inspiration for a classic blues tune, "The Midnight Special," in which Leadbelly describes the train that brought women to the prison: "Oh let the midnight special shine a ever-loving light on me."

Over the years the justification for the policy evolved from enticement to family preservation. The hookers were replaced by wives. In 1957 prison superintendent Bill Harpole ordered the construction of one-room buildings for couples to use on Sundays, when family members could visit. The practice became known as the "Mississippi experiment."

Five decades later Reginald Wilkinson, director of prisons in Ohio, views the experiment as a bust. His state has never allowed such visits, and he can't see the idea gaining momentum. "There are legitimate reasons for not allowing them," he says before reeling them off: to prevent the spread of STDs, to keep prisoners from harming their spouses, the cost of building or setting aside space, the possible impregnation of female offenders and the associated medical costs, and potential legal claims that the practice discriminates against single inmates and those in nontraditional relationships.

Wilkinson also argues that for some inmates the practice may do more harm than good in the long run. In a commentary for Corrections Today, he writes that conjugal visits "tend to place undue emphasis on the sexual aspects of a relationship rather than on promoting emotionally healthy relations, such as when families are involved in communal visitation. Supervised visitation in a more secure environment may better serve dysfunctional families."

Even if all these issues didn't exist, Wilkinson says, public attitudes toward prisoners have shifted from rehab to retribution, and "many prison officials are hell-bent on minimizing any activity that flies in the face of punishment."

Marital visits are more common outside the U.S., where they are more likely to be viewed as a basic human right. In Canada, where rehab is still the goal, even gay and lesbian couples are afforded the privilege. Mexico allows private visits between anyone in a "permanent, stable relationship." The practice is common in Latin America, and even the International Criminal Tribunal in the Hague has "intimacy rooms." In Egypt, where officials only recently removed the fence between inmates and visitors, there's already debate over whether preventing married couples from having sex violates the Koran. The current mufti notes that no punishment under Islamic law requires abstinence. A former mufti says marital relations should be regarded as akin to prayer. At least one Muslim inmate in the U.S. has taken similar arguments to a federal court, without success.