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The Rape of American Prisoners

The biggest risk factor found in the study was prior abuse. Some 65 percent of kids who had been sexually assaulted at another corrections facility were also assaulted at their current one. In prison culture, even in juvenile detention, after an inmate is raped for the first time he is considered “turned out,” and fair game for further abuse.22 Eighty-one percent of juveniles sexually abused by other inmates were victimized more than once, and 32 percent more than ten times. Forty-two percent were assaulted by more than one person. Of those victimized by staff, 88 percent had been abused repeatedly, 27 percent more than ten times, and 33 percent by more than one facility employee. Those who responded to the survey had been in their facilities for an average of 6.3 months.

Just as the BJS report on sexual abuse in juvenile detention facilities shows that problems like the ones at Pyote aren’t limited to Texas, two previous BJS reports, on the incidence of sexual abuse in adult prisons and jails, show that abuses in juvenile detention are only a small part of a much larger human rights problem in this country. Published in December 2007 and June 2008, these were extensive studies: they surveyed a combined total of 63,817 inmates in 392 different facilities.

Sexual abuse in detention is difficult to measure. Prisoners sometimes make false allegations, but sometimes, knowing that true confidentiality is almost nonexistent behind bars and fearing retaliation, they decide not to disclose abuse. Although those who responded to the BJS surveys remained anonymous, it seems likely, on balance, that the studies underestimate the incidence of prisoner rape.23 But even taken at face value, they reveal much more systemic abuse than has been generally recognized or admitted.

Using a snapshot technique—surveying a random sample24 of those incarcerated on a given day and then extrapolating only from those numbers—the BJS found that 4.5 percent of the nation’s prisoners, i.e., inmates who have been convicted of felonies and sentenced to more than a year, had been sexually abused in the facilities at which they answered the questionnaire during the preceding year: approximately 60,500 people. Moreover, 3.2 percent of jail inmates—i.e., people who were awaiting trial or serving short sentences—had been sexually abused in their facilities over the preceding six months, meaning an estimated total, out of those jailed on the day of the survey, of 24,700 nationwide.25

Both studies divide these reports of abuse in two different ways. They ask whether the perpetrator was another inmate or one of the facility’s staff. And they differentiate between willing and unwilling sexual contact with staff, although recognizing that it is always illegal for staff to have sex with inmates. Similarly, they distinguish between “abusive sexual contact” from other inmates, or unwanted sexual touching, and what most people would call rape. The results are summarized in Tables 1 and 2. Overall, the more severe forms of abuse outnumber the lesser ones in both surveys. And the reported perpetrators in both jails and prisons, as in juvenile detention, are more often staff than inmates.

The prison survey estimates not only the number of people abused, but the instances of abuse. In our opinion, the BJS’s methodology here undercounts the true number. Inmates who said they had been sexually abused were asked how many times. Their options were 1, 2, 3–10, and 11 times or more; that answers of “3–10” were assigned a value of 5, and “11 or more” a value of 12. We know of no reason to think that answers of “3–10” should be skewed so far toward the low end of the range, however—and inmates are sometimes raped many more than twelve times. Bryson Martel, for example:

When I went to prison, I was twenty-eight years old, I weighed 123 pounds, and I was scared to death…. [Later] I had to list all the inmates who sexually assaulted me, and I came up with 27 names. Sometimes just one inmate assaulted me, and sometimes they attacked me in groups. It went on almost every day for the nine months I spent in that facility.

Because of these attacks, Martel contracted HIV. “You never heal emotionally,” he said.26

Methodology aside, though, this question about frequency was an important one to ask, precisely because rape in prison is so often serial, and so often gang rape.27 The BJS estimates that there were 165,400 instances of sexual abuse in state and federal prisons over the period of its study, an average of about two and a half for every victim. Had it made a similar estimate on the basis of data from its youth study using the same method, it would have found that juvenile victims were abused an average of six times each. Especially when thinking about the effects on a child, it’s awful to realize that these numbers are probably too low.

What little attention the BJS reports on adult victims have received in the press has so far mostly been devoted to the prison study, not the one on jails. On June 23, 2009, the day the National Prison Rape Elimination Commission released its report, both The New York Times and The Washington Post ran editorials praising it, and both referred to the 60,500 number as if that represented the yearly national total for all inmates.28 However, we believe that these papers missed the true implication of the BJS reports, and that the jail study is the more important of the two.

This is partly because the study of jails answers more questions, and does more to help us understand the dynamics of sexual abuse in detention—beginning with the racial dynamics.29 Of white jail inmates, 1.8 percent reported sexual abuse by another inmate, whereas 1.3 percent of black inmates did. But when considering staff-on-inmate abuse, the situation is reversed. 1.5 percent of white inmates reported such incidents, but 2.1 percent of black inmates did. Overall, a black inmate is more likely to suffer sexual abuse in detention than a white one, 3.2 percent to 2.9 percent. The study did not report the race of perpetrators.30

Advocates have long known that victims of sexual abuse in detention tend to be those perceived as unable to defend themselves, and the jail study confirms this. Women were more likely to report abuse than men.31 Younger inmates are more likely to be abused than older ones, gay inmates much more than straight ones, and people who had been abused at a previous facility most of all. (See Table 3 for more detail.) Those targeted for abuse are also likely to be vulnerable in ways the BJS did not address in this report. Often they have mental disabilities or mental illness,32 they are disproportionately likely to be first-time and nonviolent offenders,33 and most simply, they are likely to be small.34

Nearly 62 percent of all reported incidents of staff sexual misconduct involved female staff and male inmates. Female staff were involved in 48 percent of staff-on-inmate abuse in which the inmates were unwilling participants. The rates at which female staff seem to abuse male inmates, in jails and in juvenile detention, clearly warrant further study. Of the women in jail, 3.7 percent reported inmate-on-inmate sexual abuse; 1.3 percent of men did. Does this mean that women are more likely to abuse each other behind bars than men, or that they’re more willing to admit abuse? We don’t know—but if they’re simply more willing to admit abuse, then the BJS findings on men may have to be multiplied dramatically.

There is another, starker reason why the jail study is the most important. Jail is where most inmates get raped. On first glance at the reports it doesn’t look this way. But—and this is what the press seems to have missed—because the BJS numbers come from snapshot surveys, they represent only a fraction of those incarcerated every year. People move in and out of jail very quickly. The number of annual jail admissions is approximately seventeen times higher than the jail population on any given day.35

To get the real number of those sexually abused in jails over the course of a year, however, we can’t simply multiply 24,700 by seventeen. Many people go to jail repeatedly over the course of a year; the number of people who go to jail every year is quite different from the number of admissions. Surprisingly, no official statistics are kept on the number of people jailed annually.36 We’ve heard a very well-informed but off-the-record estimate that it is approximately nine times as large as the daily jail population, but we can’t yet be confident about that.

Even if we could, though, we still couldn’t just multiply 24,700 by nine. Further complicating the matter, snapshot techniques like the BJS’s will disproportionately count those with longer sentences. If Joe is jailed for one week and Bill for two, Bill is twice as likely to be in jail on the day of the survey. Presumably, the longer you spend in jail, the more chance you have of being raped there. But even that is not as simple as it seems. Because those raped behind bars tend to fit such an identifiable profile—to be young, small, mentally ill, etc.—they are quickly recognized as potential victims. Very likely, they will be raped soon after the gate closes behind them, and repeatedly after that. The chance of being raped after a week in jail is likely not so different from the chance of being raped after a month. Probably more significant (at least, statistically) is the difference in the number of times an inmate is likely to be raped.

What is the right multiple—are five, six, seven times 24,700 people molested and raped in jail every year? We don’t know yet, but we hope to soon. PREA requires the BJS to conduct its surveys annually. The BJS has revised its questionnaire to ask those who report abuse how long after they were jailed the first incident took place; it is also collecting data on the number of people jailed every year and the lengths of time they serve. Together, this new information should lead to much better estimates.

We do know already that all the BJS numbers published so far, which add up to almost 90,000, represent only a small portion of those sexually abused in detention every year. And that is without even considering immigration detention, or our vast system of halfway houses, rehab centers, and other community corrections facilities. Nor does it include Native American tribal detention facilities operated by the Bureau of Indian Affairs or corrections facilities in the territories.

In 1994, in Farmer v. Brennan, the Supreme Court angrily declared that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Rape, wrote Justice David Souter, is “simply not ‘part of the penalty’” we impose in our society.37 But for many hundreds of thousands of men, women, and children, whether they were convicted of felonies or misdemeanors or simply awaiting trial, it has been. Most often, their assailants have been the very agents of the government who were charged with protecting them.

Beyond the physical injuries often sustained during an assault,38 and beyond the devastating, lifelong psychological damage inflicted on survivors, rape in prison spreads diseases, including HIV.39 Of all inmates, 95 percent are eventually released40—more than 1.5 million every year carrying infectious diseases, many of them sexually communicable41—and they carry their trauma and their illnesses with them, back to their families and their communities.

Prisoner rape is one of this country’s most widespread human rights problems, and arguably its most neglected. Frustratingly, heartbreakingly—but also hopefully—if only we had the political will, we could almost completely eliminate it.

In the second part of this essay we will discuss the National Prison Rape Elimination Commission’s report, which analyzes the dynamics and consequences of prisoner rape, shows how sexual abuse can be and in many cases already is being prevented in detention facilities across the country, and proposes standards for its prevention, detection, and response. Those standards are now with US Attorney General Eric Holder, who by law has until June 23, 2010, to review them before issuing them formally, following which they will become nationally binding. We will discuss the attorney general’s troubling review process, the opposition of some corrections officials to the commission’s standards, and why some important corrections leaders are so resistant to change.

—February 10, 2010

  1. 22

    See National Prison Rape Elimination Commission Report, p. 71.

  2. 23

    This opinion is shared by the National Prison Rape Elimination Commission: see its report, pp. 1, 39, and 40. The commissioners were commenting on adults, but children may be even more likely to underreport abuse.

  3. 24

    In the prison study, however, “the size measures for [state] facilities housing female inmates were doubled to ensure a sufficient number of women to allow for meaningful analyses of sexual victimization by gender.” And inmates younger than 18 were excluded from the surveys of adult facilities.

  4. 25

    Prison inmates had been in their current facilities for an average of 8.5 months prior to taking the survey; jail inmates had been in theirs for an average of 2.6 months.

  5. 26

    See www.justdetention.org/en/action updates/AU1009_web.pdf.

  6. 27

    According to the jail study, 20 percent of incidents of staff-on-inmate sexual abuse involved more than one perpetrator, and 33 percent of inmate-on-inmate incidents did.

  7. 28

    Rape in Prison,” TheNew York Times, June 23, 2009, and “A Prison Nightmare: A Federal Commission Offers Useful Standards for Preventing Sexual Abuse Behind Bars,” The Washington Post, June 23, 2009.

  8. 29

    It is impossible to understand life behind bars without considering racial dynamics—and above all, the unconscionable demographic composition of those we incarcerate in this country. For more on this, see David Cole’s excellent article in these pages, “Can Our Shameful Prisons Be Reformed?,” The New York Review, November 19, 2009.

  9. 30

    Since some inmates report abuse by other inmates and by staff, the percentages given do not amount to the totals. 3.2 percent of Hispanic inmates reported sexual abuse in jail; of those who said their race was “other,” which includes American Indians, Native Hawaiians, and other Pacific Islanders, 4.1 percent did; and 4.2 percent of inmates who are two or more races (excluding those of Hispanic or Latino origin) reported abuse.

  10. 31

    The number of incarcerated adult women increased by 757 percent from 1977 to 2007.” (National Prison Rape Elimination Commission Report, p. 44.) And many of these women have been raped before going to prison. In the Washington Corrections Center for Women, for example, “more than 85 percent of women in the facility had reported a history of past sexual abuse.” (Report, p. 63.) “Studies found that from 31 to 59 percent of incarcerated women reported being sexually abused as children, and 23 to 53 percent reported experiencing sexual abuse as adults.” (Report, p. 71.)

  11. 32

    National Prison Rape Elimination Commission Report, p. 7. Robert Dumond, a researcher and clinician who is an expert on sexual abuse in detention, told the commission:

    Jails and prisons in the United States have become the de facto psychiatric facilities of the twenty-first century,” housing more mentally ill individuals than public and private psychological facilities combined. The data back up this assertion: a survey of prisoners in 2006 suggests that more than half of all individuals incarcerated in State prisons suffer from some form of mental health problem and that the rate in local jails is even higher. (Report, p. 73.)

  12. 33

    More than half of all newly incarcerated individuals between 1985 and 2000 were imprisoned for nonviolent drug or property offenses.” (National Prison Rape Elimination Commission Report, p. 44.)

  13. 34

    See David Kaiser, “A Letter on Rape in Prisons,” The New York Review, May 10, 2007.

  14. 35

    See Todd D. Minton and William J. Sabol, Jail Inmates at Midyear 2007 (Bureau of Justice Statistics, 2008), p. 2; available at www.bjs.ojp.usdoj.gov/content/pub/pdf/jim07.pdf. Local jails made an estimated 13 million admissions during the twelve months ending June 29, 2007; the jailed inmate population on that day was 780,581. The same logic applies to the prison survey results, but there is much less turnover in the prison population. It also applies, more forcefully, to the results of the juvenile detention survey.

  15. 36

    Neither do there seem to be good statistics on the annual number of admissions to prison. We do know that as of June 30, 2008, counting both prisons and jails, the US incarcerates about 2.4 million people on any given day. (See Bureau of Justice Statistics, “Jail Inmates at Midyear 2008—Statistical Tables,” available at www.ojp.usdoj.gov/bjs/pub/pdf/jim08st.pdf. See also Heather C. West and William J. Sabol, Prison Inmates at Midyear 2008—Statistical Tables, Bureau of Justice Statistics, available at www.ojp.usdoj.gov/bjs/contentpub/pdf/pim08st.pdf.) This is more than any other country in the world, either on a per capita basis or in absolute numbers. Including those in immigration and youth detention and those supervised in the community (in halfway houses and rehabilitation centers, on probation or parole), more than 7.3 million people are in the corrections system on any given day. The cost to the country is more than $68 billion every year. (See National Prison Rape Elimination Commission Report, p. 2.)

  16. 37

    Farmer v. Brennan, 511 US 825 (1994).

  17. 38

    According to the jail study, approximately 20 percent of those sexually abused also suffered other physical injuries in the process; approximately 85 percent of that number suffered at least one serious injury, including knife and stab wounds, broken bones, rectal tearing, chipped or knocked-out teeth, internal injuries, and being knocked unconscious.

  18. 39

    In 2005–2006, 21,980 State and Federal prisoners were HIV positive or living with AIDS. Researchers believe the prevalence of hepatitis C in correctional facilities is dramatically higher, based on [the] number of prisoners with a history of injecting illegal drugs prior to incarceration…. The incidence of HIV in certain populations outside correctional systems is likely attributable in part to [sexual] activity within correctional systems. Because of the disproportionate representation of minority men and women in correctional settings it is likely that the spread of these diseases in confinement will have an even greater impact on minority men, women, and children and their communities.” (National Prison Rape Elimination Commission Report, pp. 129–130). The commissioners seem to be saying here, as delicately as they can, that they suspect prisoner rape has contributed to the way HIV infection in this country has shifted demographically: i.e., to the way AIDS has changed from being a predominantly gay disease to a predominantly black one.

  19. 40

    National Prison Rape Elimination Commission Report, p. 26.

  20. 41

    National Prison Rape Elimination Commission Report, p. 134.

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