Legal mobilisation in detention – the case of victims of violence in Austrian prisons

Contested definitions of violence

To begin with, definitions of violence are often contested or vague. What is understood, for example, as psychological violence, depends largely on subjective assessments of a situation, on individual or group norms, as well as on situational contexts (e.g., Kapella et al. 2011: 84–90; Blackstone et al. 2009: 655). Apart from some forms with a relatively narrow definition of violence, for example those defined in criminal law, scientifically sound, systematic definitions of the severity of violence are not always available (Kapella et al. 2011: 54; 117–118). In practice, depending on previous experiences, expectations towards the other person, the social environment, or a specific situational context, one and the same incident may be interpreted by one person as violence, by another as rudeness, disrespect or even as a legitimate means of conflict resolution.

Given the nature of prisons as total institutions, the lines between the pains of imprisonment, structural violence, the regime of “penality”^[13] (Sexton 2015), manifestations of a bad social climate, and personal violence are generally blurred. This was evident when inmates were asked, for example, to describe in their own words the subjectively most serious incident of psychological violence they had encountered: Every tenth inmate referred to incidents that could also be subsumed under unfair or arbitrary treatment and thus be understood as part of a negative social climate in prison. Hence there is a certain probability that in these cases the understanding of such incidents as violence was determined by the interviewer rather than the interviewee. The complex but also elusive nature of some forms of violence was similarly addressed on several occasions in the qualitative interviews. For example, one inmate stated that shouting in and of itself would not constitute violence for her. However, ongoing or aggressive shouting without reason, especially when it undermines basic human rules of communication and opportunities to be heard, would culminate in psychological violence; an interpretation that overlaps with definitions of structural violence as well as with the pains of imprisonment as such. Other interviewees put violence into perspective, for example, brawls in the context of a football match were rated as less dramatic than the lack of opportunities for sport; incomprehensible or unfair sanctions were rated as more stressful and rather classified as psychological violence than direct verbal abuse (Hofinger & Fritsche 2021: 127–140). Thus, depending on the specific understanding and context, a situation can be perceived and named as violence, as normality or even as a deserved part of punishment. The perceived quality, and thus the labelling of an incident as violence or something else, also affects the attribution of blame and linked responses. The more a situation becomes normal or habitual, the less likely it is to be recognised as personal violence and as a violation of basic rights; opportunities for intervention that could bring relief or prevent further escalation may then be overlooked.

Normality and masculinity as perception and claiming barriers

Connected to this, the link between (stereotypically constructed) masculinity and victimhood is of further importance for conflict transformation, since naming, but even more so blaming and claiming, presupposes self-identification as a victim. According to Holder, the linked “consciousness of victimisation” is “rooted in internal psychological and cognitive processes that constantly interpret, re-interpret, construct, and re-construct the bounds of what is normal and understandable or even permissible and expected” (Holder 2017). In a predominantly male prison culture, this process of re-interpretation and reconstruction is particularly challenging because victimhood and masculinity are quite contradictory concepts. The “male victim” still seems to be a cultural paradox (Neuber 2014: 75) – in public discourses men are still primarily constructed as perpetrators, women as victims. Identification as a victim contradicts the ideal of a (stereotypical) male ego and is therefore generally risky for the self-image (e.g. Mosser 2015: 179; Puchert & Scambor 2012; Lenz 2012). As long as some forms of violence are still part of “doing masculinity” (Neuber 2014: 78), naming violence faces paradoxical challenges: On the one hand, experiences that are understood as a normal part of male biographies, such as involvement in fights, cannot be named or even perceived. On the other hand, it is not possible to address aspects that contradict one’s own concept of masculinity – out of shame or because they endanger one’s identity (Jungnitz et al. 2004: 18; Schröttle 2016: 114). This is particularly true for sexual violence or harassment, but also for other forms of violence. Due to this complicated nature of violence within male subcultures, conflict transformation faces additional obstacles. Illustrated links between victimhood, weakness and masculinity may refer to self-blame of not being “man enough”, and – as Felstiner et al. put it, “[p]eople who blame themselves for an experience are less likely to see it as injurious, or, having so perceived it, to voice a grievance about it” (Felstiner et al. 1980–81: 641).

However, the normality of violence is not only a question of individual self-perception, but an inherent characteristic of the social environment as such. This is reflected in the high prevalence rates, with almost three quarters of respondents stating that they had experienced at least one violent incident. In addition, data on the perceived social climate and the detention conditions also point to the normalisation of some forms of violence. Almost half of the respondents had observed physical violence between prisoners on several occasions, and a similar share said that there was a lot of fighting between prisoners. About one in six prisoners had observed physical violence between prisoners and staff on several occasions. Indications of a certain normality of what could be classified as psychological violence are evident in the fact that one in three inmates report that they (rather) do not feel treated as human beings, and a similar number (rather) agree that staff treatment is often dismissive (Hofinger & Fritsche 2021: 82). Not feeling treated as a human being can also undermine one’s sense of entitlement, as the idea of having rights and being able to make demands can be weakened. And, as van der Valk and Rogan note, as long as there is a “low bar for what constitutes ‘bad treatment’, it is not surprising that we see prisoners not making formal complaints about what happens to them; they simply ‘get on with it’” (van der Valk & Rogan 2023: 7). Thus, due to the normality of violence, the triviality threshold of what is perceived as violence and for what one can seek redress seems to be rather high in prison.

Ambiguous quality and accessibility of institutional claiming mechanisms

Moving on to the act of claiming in a narrower sense, i.e., involving the prison administration or external institutions as addressees, the picture becomes more complex: Even when incidents are named and labelled as violence, the data show that solutions are often limited to self-help, avoidance of risky situations or inaction – corresponding to Morrill’s category of “lumping” (Morrill et al. 2010: 655). This is particularly surprising given that violent victimization is not merely a grievance, but can be punishable under criminal law. One might expect that, at least in serious cases or those involving staff, official mechanisms would be readily used. However, in prison several aspects limit the utilization of official complaint channels (§ 120–122 StVG, Penitentiary System Act), such as filing a complaint with the prison director, the competent court or the Ministry of Justice as the highest prison authority or filing a criminal charge.

Despite assertions from other studies that “prison erases socio-economic differences” (Dâmboeanu et al. 2021: 134) and therefore factors such as education, economic resources, or class attribution cannot explain mobilisation behaviour within prison as they do outside, the challenges stemming from lack of resources and cultural capital persist in accessing official complaint mechanisms in the case of Austria: About two-thirds of the interviewees had a first language other than German, and about one in four prisoners had spent less than one year in Austria at the time of the study; the educational level is generally low. These aspects can influence legal knowledge, but also the sense of entitlement. Data show that, even though complaints can also be lodged in the person’s first language, prisoners who are Austrian citizens complain disproportionately often to the Ministry, thus, language skills and origin seem to influence complaint behaviour (Kompetenzstelle Rechtsschutz der Generaldirektion für den Strafvollzug und den Vollzug freiheitsentziehender Maßnahmen 2019).

In addition, access to “mediating agents” (Albiston et al. 2014: 115), who could support claims or strengthen the sense of entitlement, is limited in Austrian prisons: There is a severe shortage of staff, especially of social or special services (Rechnungshof Österreich 2024: 70–84). External and independent institutions such as visiting committees were relatively unknown to the respondents at the time of the study. Two-thirds of them (n=170) could not name an external institution, such as ombuds offices or victim support organisations (Hofinger & Fritsche 2021: 266). Even informal support is scarce. Depending on the type of institution and the type of detention, up to 50 % of detainees (n=376) reported that they never receive visitors – actors that could possibly help with procedures or with accessing legal aid outside prison walls.

A significant number of respondents anticipate that complaints will not be effective and mention this as their reason for not taking action: one fifth of those who did not complain officially (21 % for each form of violence)^[14] did so because they were convinced that complaints would be useless, thus “wasted agency” (van der Valk & Rogan 2023: 9). 13 % (psychological violence) and 10 % (physical violence) stated that they would not be believed anyway. In line with findings in other countries, success rates and satisfaction with the procedures are in fact rather low in cases where complaints have been lodged. In addition, due to the overlapping of the roles of victim and perpetrator, official mobilisation can also have unintended effects: Around 40 %^[15] said that they had been held jointly responsible for the incident after making an official complaint. On the one hand, complaining is risky because it can lead to an unwanted transfer to another department, or to the loss of previously acquired privileges. On the other hand, complaints often have no consequences, especially in cases where staff are accused: For 2019, official data show that only 3 % of complaints against staff led to prosecution, and in only one case was the perpetrator convicted (BMAEIA 2020). The available data suggest that little effort is made to clarify allegations and arrive at a nuanced assessment of the conflict (Hofinger & Fritsche 2021: 279). However, satisfying, accurate and effective official handing of violent conflicts would be particularly important as ineffective complaint mechanisms (e.g., if not dealt with in time) or perceptions of procedural injustice can not only undermine a person’s sense of entitlement but may also contribute to more violence (Bierie 2013: 23).

The role of extralegal mobilisation

Although these findings suggest that recourse to institutional mechanisms is not the most promising choice for prisoners, other studies conclude that, despite low success rates, legal mobilisation in prison does take place extensively due to the lack of other forms of redress (Calavita & Jenness 2013: 70). Therefore, a second perspective must be considered to explain the low rates of official claims in cases of violence. As outlined above, violence in prisons not only “happens” but serves an important purpose: it establishes or stabilises hierarchies and often constitutes a rather normalised means of conflict resolution among prisoners. Some explanations for the reluctance to make official claims can be found in subcultural laws themselves, which could also be understood as a particular form of “higher law” or “law above the law” (Halliday & Morgan 2013: 18). Responses to the question of why victims did not report incidents reveal the importance of subculture as a barrier to making an official claim: Around one-third of those who provided detailed information about an incident of psychological or physical violence that had not been officially reported explicitly cited subcultural norms: Reasons for not reporting included statements such as “you don’t do that in prison” or “so I wouldn’t be considered a traitor” or “I was threatened not to tell anyone”. These responses refer to subcultural norms against snitching, a norm closely linked to stereotypical masculine culture, but also to the rather strict boundary between staff and inmates. To snitch implies to be unable to help oneself, to be weak and to need help from the prison system which is often framed as “the other”. For some inmates, beating someone up is less morally repugnant than snitching because the latter jeopardises the basis of solidarity, as one interviewee explained: “I think one of the most reprehensible things that people do (…) is betrayal and snitching. (…) you try to get along with your fellow sufferers, also in the sense that you kind of stick together”. Official reporting of violent incidents not only goes against such in-group solidarity, but also carries real risks of exclusion, defamation and even violent sanctions by fellow inmates.

Subcultural norms not only explain why prisoners often refrain from making official claims, but also help to broaden the perspective on other forms of claiming. To fully understand mobilisation behaviour in prison, forms of extralegal claiming (Morrill et al. 2010: 655) must also be considered. As outlined above, prisoners quite often inform fellow inmates, prison officers, but also social services, friends or family about the incidents. These informed actors can either act as “mediating agents” (Albiston et al. 2014: 115), selecting promising cases from unpromising ones, or they can become addressees for complaints in their own right. Although in some cases official claims accompany or follow such informal complaints, this is not the norm. Rather, data suggest that responses to violence often do not go beyond such unofficial forms of redress. While informing others without making an official claim may be seen as constructive conflict resolution, other subcultural ways of resolving conflict are more worrying: As figure 1 above shows, “dyadic conflict resolution” (Hanak et al. 1989: 27) such as defending oneself or fighting back, i.e., responses that do not involve third parties, seems to be particularly prominent in cases of violence between prisoners. Fighting back is also aimed at preventing further victimisation, as according to respondents, life in prison is more dangerous for the weak, for those who have not yet established a position within the subculture, and those who are unable to defend themselves (Hofinger & Fritsche 2021: 78).

In analysing the reluctance of victims of discrimination to complain, Bumiller points to the role of the relationship between victim and offender as one explanation, arguing that “the bonds between the perpetrator and the discrimination victim drive the conflict to self-destructive or explosive reactions” (Bumiller 1987). Even if Bumiller developed her concept in the context of discrimination, her argument can be adapted to the situation in prison: Co-inmates are a significant reference group for the individual. Complex inter- and intragroup hierarchies lead to multifaceted dependencies. Although relationships between prisoners, particularly among different subgroups, cannot generally be characterised as intimate, bonds are most often closer than those with staff. Consequently, insights from the legal mobilisation literature suggesting that official avenues are less frequently pursued in conflicts involving socially close adversaries (Blankenburg 1995: 43) appear to be applicable to prison violence among inmates. Similarly to Bumiller’s second explanation regarding the reluctance of victims of discrimination to complain, prisoners also often seem to be hesitant to use official channels for conflict resolution, “because they shun the role of the victim, and they fear legal intervention will disrupt the delicate balance of power between themselves and their opponents” (Bumiller 1987: 438). Even though official law or procedures can in general be a powerful and efficient means of conflict resolution, from the prisoners’ perspective this does not seem to be fully true for official complaint mechanisms in prisons. Filing official claims carries the risk of losing control over one’s situation (Bumiller 1987) and requires the claimants to reconcile what Merry calls the “double subjectivity” (Merry 2006: 181) – as rights holders and claimants fighting against rights violations, and as victims with notions of powerlessness and subcultural rejection. Extralegal paths can, particularly for victims of violence, people in precarious situations and for conflicts in complex social relations, appear more helpful and less demanding (Bumiller 1987: 433f.; Levine & Mellema 2001).

Our data suggest that recourse to subcultural mechanisms of conflict resolution can also mean opting for an “ethic of survival” (Bumiller 1987: 438) or the “relative normalcy of day-today life” (Bumiller 1987: 437). Using Albiston et al.’s notion of the conflict tree (Albiston et al. 2014), defensive behaviour could then be understood as a particular “branch” of conflict resolution with different outcomes – depending on the perspective: From the prisoner’s point of view, this subcultural form of extralegal claiming can bring recognition and increased prestige within the prison’ population: Being able to defend oneself autonomously can then be translated into strength, masculinity and loyalty – in the words of Albiston “flowers”, such as status rewards from fellow inmates, or even produce “fruits”, such as receiving scarce goods like cigarettes, etc. From an external perspective though, the “fruits” and “flowers” of these extralegal claiming mechanisms are different: Counterassaults, stricter, opaque and perhaps ungovernable hierarchies, and the oppression of already marginalised groups can exacerbate conflicts and contribute to a cycle of violence.

Conclusio: Accessible and fair procedures, constructive ways of extralegal claiming

Theoretically framed by a legal mobilisation perspective, the article puts selected findings from an empirical study on violence in Austrian prisons (Hofinger & Fritsche 2021) into a new perspective. While the scarce existing literature on legal mobilisation in prisons often neglects the specific type of problem in mobilisation choices, we discussed the particular characteristics of violence in prisons and their role in conflict transformation processes. Whereas existing literature on legal mobilisation in prison concludes that, unlike in everyday life outside prison, the use of legal mechanisms and administrative grievance procedures is rather common in prison (Dâmboeanu et al. 2021: 132; van der Valk et al. 2022: 280; Calavita & Jenness 2013: 51), the Austrian data shows that in the case of violence, official complaints are only filed in a limited number of cases. The handling and consequences of official complaints by the prison system are not always appropriate and can be risky for the individual; access to official claiming is not always effectively supported: Specialised staff and social services that could mediate conflict transformation or facilitate access to independent complaints bodies are scarce; lack of resources, comparatively high rates of prisoners with low levels of education, different backgrounds in legal culture, legal and linguistic capacities, and insufficient opportunities for low-threshold complaints can hinder access to justice.

All in all, we did not find a general “rights claims atmosphere” (Dâmboeanu et al. 2021: 129) in cases of violence in Austrian prisons. In addition to socio-economic and structural barriers, explanations for the rather low rates of claiming were found in particular in the prisoner subculture. Definitions of violence are contested; the normality of violence, but also the fact that only specific forms of violence are enforceable under criminal law, implies a rather high triviality threshold. The stigma of victimhood in a stereotypically male environment, the strict boundaries between staff and inmates and associated expectations of solidarity within the prison population, as well as risks of defamation, exclusion or counter-violence, if experiences of violence are made public, inhibit naming, promote self-blame, and also hinder official claiming. Since the dynamics of violence are largely determined by subcultural norms, its management largely escapes institutional mechanisms.

Nevertheless, the analysis showed that legal mobilisation in prisons must be considered in its multi-dimensional and dynamic nature, and can only be fully understood by applying a broad definition that includes quasi-legal and, above all, extralegal mobilisation.

One explanation in studies that find high rates of legal mobilisation is that in prison, unlike in everyday life, the law is not subtextual but explicit, and “an unavoidable master text” (Calavita & Jenness 2013: 73). It thus influences processes of naming, blaming, and claiming, and may ultimately increase prisoners’ mobilisation of the law (Calavita & Jenness 2013: 52). However, given the normality of violence in prison and the often overriding relevance of subcultural norms that can amount to a “higher law” or “law above the law” (Halliday & Morgan 2013: 18), we suggest that, in the case of violence. extralegal forms of conflict resolution are more relevant than formal legal mobilisation. Whereas in other forms of conflicts, redress mechanisms other than official procedures may be lacking (Calavita & Jenness 2013: 69), the “living law” (Ehrlich 1936: 486–506) in prison, i.e., subcultural norms and dynamics, seems to provide an alternative path to conflict resolution in the case of violence.

In addition to inaction, i.e., “lumping” in the words of Morrill (2010: 655), solutions are often found in extralegal responses, when non-legal or non-institutional actors are informed or inmates opt for direct, i.e., dyadic conflict resolution. Such extralegal claiming is not in itself problematic. But only as long as the dyadic conflict resolution is constructive and does not, as in many cases, culminate in violent self-defence that feeds the cycle of violence.

Albiston et al.’s metaphor of the “dispute tree” (Albiston et al. 2014) facilitates a clearer understanding of approaches that can both improve access to justice and strengthen constructive ways of dealing with violence. Branches of official complaints procedures and extralegal, subculturally oriented ways of conflict resolution exist side by side. While the former are often difficult to access, demanding or risky, the latter can only be constructive if the addressees of informal complaints – such as social services, fellow inmates, but also prison staff – are aware of their role as “mediating agents” (Albiston et al. 2014: 115) or “agents of transformation” (Felstiner et al. 1980–81: 639–649). As such, they could act as gatekeepers to constructive – formal-, quasi- or extralegal – forms of conflict resolution and facilitate the flourishing of those branches that do not reinforce counter-violence.

Findings on barriers to naming violence, but also on subcultural notions of victimhood, suggest that in order to contribute to the “overall health of the forest” (Albiston et al. 2014: 109) in prison, preliminary stages of claiming – i.e., naming and blaming – also have to be considered in addressing responses to violence. Additionally, challenges in reconciling conflicting subjectivities – as rights holders or claimants, victims of violence but also as respectable fellow prisoners – can influence claiming behaviour. Given the dynamics and interdependence of different forms of violence, but also the intersections between the social climate, the pains of imprisonment and personal violence, less severe forms of violence that do not exceed the threshold for criminal sanction must also be taken into account. In line with van der Valk and Rogan, it must be emphasised firstly that formal procedures “do not replace the need for decent conditions, fair treatment and good relations, which make the use of complaints procedures unnecessary in the first place” (van der Valk & Rogan 2023: 9). Secondly, further discussion is needed on how to alter existing subcultural meanings of victimhood and the “prestige” associated with some forms of violence. According to these findings, not only easy access to good quality institutional legal procedures seems necessary. Unless destructive forms of extralegal claims are channelled to extra- or quasi-legal ways of conflict resolution that provide safe or even empowering spaces for victims, violence will remain an important means to establish and uphold prison hierarchies and “solve” conflicts.