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Jared Fogle Facing Prison Rape? That’s Not Jewish Justice.

Jared Fogle, Subway pitchman turned child sex offender, will now be heading to jail for five to twelve years. It’s conventional wisdom that he, like other sex offenders, will be sexually assaulted while he’s there – and many people are happy to think so. A New York Post’s front page headline, for example, taunted him to “Enjoy a Foot-Long in Jail.”

It’s only human to want criminals to get their just desserts. But is it divine as well? Ought we rejoice that Fogle is likely to experience “an eye for an eye” by becoming a victim of sexual violence?

At the outset, it’s worth noting that estimates of sexual violence in prison vary widely. Despite a federal law requiring data on sexual violence in prison, according to one meta-study the rate is anywhere from 1.9% to 40%.

The classic authority on male rape in prison was the Human Rights Watch’s landmark, 378-page report, No Escape: Male Rape in U.S. Prisons, published in 2001. It found that about 20% of male prisoners are sexually assaulted at least once during their sentences, with about half of them being anally raped. If extrapolated to the national prison population today (1.46 million), that would be about 292,000 male victims of sexual assault.

Other estimates are lower. According to recent government data, the rate of prison sexual assault is about 9.6%. And still other recent government-sponsored data shows a rate of prison sexual assault of 21% for women, 4.6% for men. The data also suggests that, contrary to stereotype, guards and staff, rather than fellow inmates, do the majority of the assaulting.

But whatever to average rate of assault, it is clear that for sexual offenders (“S.O.”s in prison lingo), the rate is surely much higher. And let’s recall that, thanks to the broad expansion of what that term means, it now includes not just people like Fogle, but young men convicted of statutory rape, and many convicted of possessing pornography.

For example, “Joe,” a man convicted of possessing child pornography, and now serving six years in a medium security prison, maintains (through his family) a website called Joe The S.O., which includes tips that Fogle might want to peruse: don’t be a loner, don’t drink or gamble, and “know when to hit the panic button,” i.e., ask for solitary confinement. As Joe puts it, “You’d much rather be locked up in a small room than be shanked in the gut.”

According to Joe’s website, the sexual abuse of S.O.’s is universal. An analysis released this year by the Associated Press showed that while male S.O.’s make up 15% of the prison population, they make up nearly 30% of those who are murdered while inside.

If that differential extends to sexual assaults too, then Fogle likely would have about an 18% chance of being sexually assaulted in prison. Adjusting for his race and perceived “effeminacy” – both additional factors in assault rates – we could round up to 20%.

Reports also bear out the perception that prison is more Oz than Orange is the New Black, with gruesome tales of gang rape, extreme violence, even sexual slavery.

Moreover, while in the last decade, much has been done to protect likely targets of prison sexual assault — high-risk prisoners are often placed under protective custody, and many prisons have “Sex Offender Management Programs (SOMPs),” which can protect S.O.’s, or at the very least gather them together – these are discretionary, uneven and porous.

Still, many apparently believe that being raped in prison is just punishment for an S.O., especially one like Fogle: a public figure, running a children’s charity, who was abusing minors and viewing child pornography involving not just teenagers but kids as young as six. This is a man in a position of power and respect who could have abused “my kids.”

And that he is Jewish – and, according to stereotype, visibly Jewish – makes the whole affair especially painful for American Jews to watch.

But surely the notion of a system of justice is that the state is meant to prosecute and sentence criminals, and that the sentence is meant to be one determined by law, not by allowing prisoners to mete out justice against sex offenders. Of course, it’s human nature to want S.O.’s like Fogle to be hung, drawn, and quartered, but the legal system is meant to curb such instincts as much as to express them.

Even “an eye for an eye” was meant, in the Code of Hammurabi, to cap damages rather than exact vengeance. It was meant to limit our instincts for revenge, not exacerbate them.

As is well known, Jewish courts interpreted lex talionis in terms of monetary restitution and there is no evidence that any criminal had his eyes or teeth taken out by a court. On the contrary, one Talmudic source says that a Sanhedrin that sentenced a person to death once every seven years should be considered a “bloody court,” notwithstanding the plethora of capital sins listed in the Bible. (Another rabbi says once every seventy years.)

On the other hand, the Torah does allow for individual acts of vengeance. When one person kills another, even unintentionally, the victim’s relative may be considered a Goel Hadam, or Blood Redeemer, and is permitted to exact revenge (under certain circumstances) unless the killer hides in an Ir Miklat, a City of Refuge.

The Torah also favorably records the actions on Pinchas, who, upon finding an Israelite having illicit sex with a Midianite princess, immediately kills them both. (In the suggestive story, he impales both of them on a single spear.) The Torah makes it quite clear that God is pleased with Pinchas’s vigilante justice.

And let’s not forget that plethora of capital sins, many of which involve sexuality, but which also include Sabbath violation and “sorcery.” Even if the death penalty was not actually meted out, the categorization of these crimes as capital does at least suggest that the sinners deserve stoning, burning, beheading, or strangulation – which, in their inimitable fashion, the Talmudic rabbis then spend many hours parsing.

Jewish apologists hasten to add the many limitations the system puts in place: strict rules of evidence, rigorous requirements to sit on a court, and the fact that the witnesses, themselves, had to be the executioners. They often take a Maimonidean approach to Biblical vengeance, saying that it improves upon the existing situation, and should be seen in that light.

I would take a different approach.

Law – religious or secular – exists in the tension between passion and reason. The rule of law is intended, in part, to sublimate our human desires for revenge into an orderly system that mitigates violence with reason. This is present right in the founding Western myth of justice, Aeschylus’s Oresteia, in which a bloody cycle of revenge is only put to rest when the Furies are buried under the courts of Athens.

They are buried, but they remain where they are – just as Jewish law finds a place for our instincts for revenge, but hopefully tempers and tames them. Lately, though, our contemporary culture of rage has begun to shake these foundational principles. The Post’s response to the Fogle revelations is one example. The ghastly images of ISIS beheading, burning, and drowning alleged criminals is another. The “Price Tag” movement among Israeli extremists is a third.

And so is the American culture of rage. The populist media’s institutionalized anger management problem enflames passions rather than calms them. Is it actually okay that a major newspaper, even one owned by Rupert Murdoch, just called for someone to be raped? Is that justice, or mob justice?

Jared Fogle deserves to be punished for his crimes. The young lives he desecrated do cry out for justice, like the Biblical blood crying out from the ground. But rape is not justice. It’s rape.

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