The Right to Consensual Sex—and Condoms—in Prison

    Greg* has been incarcerated in Tennessee for about 18 months. He’s been on a waiting list for job placement for most of that time, and without any financial support from the outside he struggled to afford food and toiletries. He was barely scraping by with side hustles like washing clothes, cleaning or waxing floors, when one day an older prisoner offered him $20 for sex.

    Greg, who identities as straight, initially cussed him out and left. But after a few days, he started thinking. It’d take him a month to earn $20 from other odd jobs. As a child he’d been sexually abused by an uncle, and recalled that it had never lasted too long; it’d hurt for a few minutes and then it’d be over. And then his uncle would bring him gifts.

    “I figure if I’m going to get fucked by the system, I might as well get paid for it,” Greg told Filter.

    He now has six regulars, and earns enough that he’s no longer looking for a prison job. But he doesn’t have condoms, nor a safe way to access testing for sexually transmitted infections (STI). This is the case for everyone in Tennessee Department of Corrections (TDOC) facilities where I’ve been incarcerated for the past 27 years, and for most prisoners around the country.

    “The TDOC shall have an absolute zero tolerance towards sexual acts between staff and inmates as well as between inmates,” states TDOC policy. “There are no consensual sexual acts in a custodial or supervisory relationship or consensual sexual contact between inmates.”

    The federal Prison Rape Elimination Act (PREA) does not specify that sexual contact between two prisoners should be considered abuse.

    Though many believe that prisoners in the United States are not legally allowed to consent to sex, this is not entirely true. The federal Prison Rape Elimination Act (PREA) does not specify that sexual contact between two prisoners should be considered abuse—only sexual contact between prisoners and corrections officers (COs) is prohibited this way. Sexual activity between prisoners is left to the discretion of individual corrections departments, and it’s standard for them to consider it “abuse” whether or not it’s consensual.

    This means no access to harm reduction resources. Perhaps the most critical of these would be condoms. They’re not available for purchase, nor are they available for free at the medical clinic. Sometimes people use makeshift ones, but these can be bad for business as well as, shall we say, aesthetically unappealing.

    STI testing involves a $3 copay, but that’s not the biggest problem. At every facility I’ve been kept in these many years, prisoners didn’t seek out STI testing because doing so is an admission of guilt. Everyone is tested during intake, and since we’re not allowed to have sex why would anyone need to get tested again?

    “This place freaks out about inmates having sex, as if their policy will keep folks from doing what comes natural,” Greg said. “We’re not dead yet. I don’t get off on what these guys are doing to me, but hell, I’m providing them a moment of pleasure, and I’m eating good while I’m at this hell hole.”

    Consensual sex—whether in exchange for money or not—is often punished with administrative segregation, AKA solitary confinement. Prisoners can also lose their job, their visitation privileges, their sentence credits, their work release placement.

    Some programs like those for substance use require signing an agreement to adhere to a set of rules that include “no acting out sexually,” or that prisoners “may be dropped from the program and transferred to a different facility if found guilty of violating the [ban on] sexual activity.” 

    Being shipped to a different facility can be devastating for those who have found community and relationships. It’s one of the many ways criminalization of consensual sexual activity is used to discriminate against LGBTQ prisoners in particular.

    “When the counselor does the PREA interview each year to update our files, you can’t admit that you are gay and certainly not that you are having sex,” Bob told Filter. “If you do, then you are targeted for violations and it raises your level to either a predator or a victim. That makes it so difficult to get a cellie or keep a cellie. We should not be penalized for being gay or having sex.”

    “We don’t advertise [our relationship] ’cause it’s against prison policy. You can be written up for having consensual sex, and they may move us apart if they thought we were active.”

    Bob spoke to Filter alongside his partner Phil. Both would use condoms if they had access to them, since even in a committed relationship condoms can make the cleanup process after sex easier. Discretion is paramount in here.

    “People in here, our friends, know we are a couple,” said Bob. “We don’t advertise it, ’cause it’s against prison policy. You can be written up for having consensual sex, and they may move us apart if they thought we were active.” 

    “I live in constant fear of being separated from him,” said Phil. “It would tear my heart out. We made a commitment to each other. He’s my husband, so it would be like you ripping my spouse from me. I don’t know what I’d do.”

    Legal marriages aren’t considered a valid reason to have consensual sex either. Alan*, who is serving a life sentence, has been married for 16 years. His wife visits him weekly. But there only four states in the country that still allow conjugal visits. Tennessee is not one of them.

    Alan identifies as straight, but “gay for the stay,” as the saying goes.

    “You have to raw dog it, so you got to be careful,” he told Filter. “I would definitely use rubbers if I could get them.”

    The American Civil Liberties Union recommends “policies that make condoms, lubricant and other safer sex items available to individuals in custody and forbid officers from using condoms as evidence of sexual abusiveness or victimization.”

    Many corrections departments have policies that prohibit masturbation and pornography.

    In addition to prohibiting prisoners from having sexual contact with another person, many corrections departments have policies that prohibit masturbation and pornography. There was a time when TDOC prisoners, for example, were allowed to purchase some adult magazines such as Playboy. But in the early 2000s, many prison systems around the country began banning pornography because they wanted to be in good standing with the American Correctional Association.

    After TDOC began treating all pornographic material as contraband in 2002, the facility where I was housed at the time soon had so many prisoners being written up for masturbating in front of female COs that an entire living unit, staffed with only male COs, was designated for them.

    Criminalizing sex doesn’t mean it goes away. It means people do it less safely. Prisons should make condoms available, discreetly accessible and free. The PREA itself should be fixed to make clear that LGBTQ people in custody are not punished on the basis of identifying as who they are, and that no one should be punished for consenting to a natural human behavior. Sex can be a form of intimacy, or stress relief, income or any other part of the human experience. That doesn’t change once someone is locked in a cage. 



    *All names of sources have been changed for their protection.

    Image via Pixabay

    • Tony has served almost three decades of a life with parole sentence in Tennessee. Before prison he lived as a closeted gay man; his Southern Baptist parents and an older brother have since died. While incarcerated he has worked as a tutor, clerk and newspaper editor. He’s also begun book clubs and writing workshops, and prisoner-led elder care programs. He writes about captivity in the hope of contributing to the prison reform movement.


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