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The Way to Stop Prison Rape

Eric Holder; drawing by John Springs

As three recent studies by the federal Bureau of Justice Statistics (BJS) show, prisoners are raped with terrible frequency in the United States.1 We still don’t know exactly how many people are sexually abused behind bars every year, but we do know that the number is much larger than 100,000. And we know that those responsible for this abuse are usually not other inmates, but members of the very corrections staff charged with protecting the people in their custody.

The BJS, which is part of the Department of Justice, found statistically significant variation in the incidence of sexual abuse at the hundreds of different facilities it surveyed. Its study of adult prisons, for example, found that 4.5 percent of prisoners nationwide had been sexually abused at their current facilities in the preceding year; but at seven prisons the rate was above 10 percent. Texas’s Estelle Unit had a rate of 15.7 percent, while in six prisons no inmates reported such abuse.

One of the most pernicious myths about prisoner rape is that it is an inevitable part of life behind bars. This is simply wrong. As the variance in the BJS findings shows, it can be prevented. In well-run facilities across the country it is being prevented—and this shouldn’t be surprising. After all, the government has extraordinary control over the lives of those it locks up. Stopping sexual abuse in detention is a matter of using sound policies and practices, and passing laws that require them.

The Prison Rape Elimination Act of 2003 (PREA), which charged the BJS with undertaking its surveys, also created a body called the National Prison Rape Elimination Commission, whose mandate was to study the problem more qualitatively and devise national standards for its detection, prevention, and response. Doing so proved to be a slow process. The commissioners convened expert committees, made an exhaustive review of available research, held numerous site visits and public hearings, and submitted draft versions of the standards for public comment. At every step they consulted corrections leaders, survivors of sexual assault in detention, researchers, advocates on behalf of prisoners, academics, legal experts, and health care providers. Finally, on June 23, 2009, six years after the passage of PREA, the commission published its recommendations. (Staff and board members from our organization, Just Detention International (JDI), the only US NGO dedicated solely to ending sexual abuse in detention, served on all eight of the expert committees appointed by the commission.)

The commission wrote four distinct sets of standards: one for adult prisons and jails, with an immigration supplement; one for juvenile facilities; one for “lockups,” i.e., temporary holding facilities for people recently arrested or being transferred; and one for “community corrections”—for example, people who are living in post-release halfway houses or are on probation. Its final report describes and explains them all. Reading it, one is repeatedly struck by how straightforward and plainly sensible these recommendations are—and, therefore, by how astonishing it is, and how appalling, that such basic measures haven’t already been standard practice for decades.

In 2000, in a Texas prison, a corrections officer was sexually harassing Garrett Cunningham, touching him inappropriately during pat searches and making crude comments. Cunningham, as he told the commission, complained to prison authorities, but they told him that he was exaggerating, and that the officer was just doing his job. Soon after, the officer handcuffed Cunningham, pushed his face into a pile of laundry, and raped him. Cunningham weighed 145 pounds; the officer more than twice that. He said that if Cunningham ever tried to report the rape, he would have other officers write false charges against him, or else transfer him to a rougher unit where he would be raped by gang members “all the time.” Then he told Cunningham that the officials he had complained to previously were friends of his who would always take his side.2

The commission’s first standard for all facilities stipulates that every corrections agency have “a written policy mandating zero tolerance toward all forms of sexual abuse.” Staff and inmates must “understand what constitutes sexual abuse, know penalties exist for perpetration by prisoners or staff, and believe management will treat all incidents seriously.”

Staff must be trained to identify early warning signs that someone is at risk of sexual abuse, prevent abuse from occurring, and respond appropriately when it does occur. Since “the persistent silence surrounding incidents of sexual abuse in correctional facilities is a reality that both victims and professionals in the field acknowledge,” all facility employees and volunteers must be required to report any suspicions of such abuse. “Mandatory reporting policies are powerful antidotes to the code of silence.” The standards also require that inmates be taught their rights, not only to be free from sexual abuse, but to be free from retaliation if they report it.

When Rodney Hulin was sixteen he set a dumpster on fire, causing about $500 worth of damage. He was 5'2”, he weighed 125 pounds, and he was sentenced to eight years in adult prison. Almost immediately after arriving he was raped by another inmate, as was confirmed by a medical examiner’s finding that his rectum was torn. His mother’s testimony to the commission describes how he wrote to the authorities asking to be moved to a safer place, and how his request was denied. The beatings and rapes continued. He wrote another letter, saying he was afraid “I might die at any minute. Please sir, help me.” Officials told him that his case did not meet the “emergency grievance criteria.” His mother called the warden, who told her that Rodney needed to “grow up.” “This happens every day,” he said, “learn to deal with it. It’s no big deal.” Less than three months after entering prison, Hulin hanged himself in his cell.3

Every inmate when first arriving at a facility is put through a classification process, meant to assess the security risk he poses. In most corrections facilities, inmates are not classified by their risk of being subject to sexual abuse. But as we saw from the BJS studies discussed in our previous article, such risk can be objectively assessed according to a number of well-known factors—like Hulin’s age and size, or the fact that he was entering prison for the first time, and that his crime was not violent.

One of the commission’s most important standards requires that all inmates be screened in order “to assess their risk of being sexually abused by other inmates or sexually abusive toward other inmates.” These screenings must rely on specific criteria that have been shown to be relevant to sexual violence. The results must then be taken into account when deciding where inmates will be lodged. “Without this process, vulnerable individuals may be forced to live in close proximity or even in the same cell with sexual assailants.” It happens frequently.4

Housing and surveillance become grave challenges when prisons are overcrowded, but as the report says:

Supervision is the core practice of any correctional agency, and it must be carried out in ways that protect individuals from sexual abuse. The Commission believes it is possible to meet this standard in any facility, regardless of design, through appropriate deployment of staff.

Its standards on “inmate supervision” and “assessment and use of monitoring technology” explain in detail how to do so.5

Marilyn Shirley was woken by a guard named Michael Miller at 3:30 one morning and summoned to the officers’ station. She was afraid something had happened to her twins, or to her husband, who had heart problems and diabetes. But when she got to the station she heard Miller on the phone, asking another officer for a signal if the lieutenant should head their way. When he hung up he began to grope her, demanding oral sex, and when she resisted he slammed her against a wall and raped her. He whispered in her ear, “Do you think you’re the only one? Don’t even think of telling, because it’s your word against mine, and you will lose.” Remarkably, however, as the commission reported, Shirley was able to hide and preserve her semen-stained sweatpants until her release six months later, when she accused Miller. He was convicted of rape and imprisoned—making Shirley’s story a very rare one.6

The commission’s standards call for coordinated responses to sexual abuse from security staff, investigators, the head of the facility, and medical and mental health practitioners. The immediate safety of the survivor must be the first priority—and since those raped in prison are so often abused repeatedly, often by multiple rapists, there is great urgency to this. But survivors also face very serious longer-term health concerns, both physical and mental,7 and the report proposes detailed standards on the care they should get.

Since few people in the immediate aftermath of rape in prison have Marilyn Shirley’s combination of bravery, presence of mind, and good luck, the commission is equally concerned with the nature of the investigations that must follow every report of sexual abuse.

The stakes are high: failure to investigate allegations sends a message to staff and prisoners that speaking out may put the victim at risk but has no consequences for the abuser. In such environments, silence prevails and abuse flourishes.8

The standards insist that agencies collect and carefully consider data on sexual abuse from all their facilities, and that facilities conduct “sexual abuse incident reviews”:

These reviews reveal patterns, such as vulnerable locations, times of highest risk, and other conditions…. [They] generate information administrators need to make efficient use of limited resources, deploy staff wisely, safely manage high-risk areas, and develop more effective policies and procedures.

When Laura Berry told the Arkansas corrections officer who had raped her that she thought she might be pregnant, he forced her, according to the commission’s findings, to drink turpentine and quinine, hoping that would induce an abortion. After Kenneth Young was raped at knifepoint by a cellmate in Pennsylvania, he flooded the cell to attract the attention of officers, and as punishment was put in a “dry cell” for ninety-six hours, with no access to running water, a shower, or a toilet—forced “to live in his own excrement,” as a court later put it. Alisha Brewer told our organization, JDI, that she was raped by three different corrections officers as a twenty-two-year-old prisoner in Kentucky; she reported the last two incidents, and was punished with more than four months of punitive segregation and loss of sixty days of good time on her sentence.9 Another prisoner who wrote to us, and who for obvious reasons prefers to remain anonymous, quoted the male officer who was abusing her: “Remember if you tell anyone anything, you’ll have to look over your shoulder for the rest of your life.” We get letters like this every day.

The commission’s standards require

facilities to monitor prisoners and staff who report abuse for at least 90 days to ensure that they are not experiencing retaliation or threats. If threats or actual retaliation do occur, the facility must take immediate action to stop the threatening behavior.

  1. 1

    See our article in the March 11 issue, “The Rape of American Prisoners.”

  2. 2

    See the National Prison Rape Elimination Commission Report, pp. 10 and 93–94, and Cunningham’s testimony to the commission, available at www.justdetention.org/en/NPREC/garrettcunningham.aspx.

  3. 3

    See the National Prison Rape Elimination Commission Report, p. 69, and Hulin’s mother Linda Bruntmyer’s testimony to the commission, available at www.justdetention.org/en/NPREC/lindabruntmyer.aspx.

  4. 4

    Keith DeBlasio was sent to a minimum-security federal prison in West Virginia for fraud, but transferred to a higher-security facility in Michigan after complaining about corrections officials. There he was placed in a dormitory holding 150 inmates that had dozens of places that could not be observed and only one officer on duty at a time. A gang leader who had just served three days in segregation for brutally assaulting another inmate was made DeBlasio’s bunkmate; according to DeBlasio’s testimony before the commission, he raped DeBlasio “more times than I can even count” while fellow gang members stood watch. DeBlasio contracted HIV as a result. See the National Prison Rape Elimination Commission Report, p. 46, and DeBlasio’s testimony to the commission, available at www.justdetention.org/en/NPREC/keithdeblasio.aspx.

  5. 5

    Best of all is “what’s known in the profession as direct supervision”: “In a direct supervision facility, officers are stationed in living units and supervise incarcerated individuals by moving around and interacting with them.” This kind of regular contact gives officers a much better sense of what’s going on in their facility than they can otherwise have. But even in facilities whose architecture makes this impossible, guards can make their patrols at unscheduled, hence unpredictable times. Electronic surveillance equipment can be put in known blind spots.

  6. 6

    See the National Prison Rape Elimination Commission Report, p. 36, and Shirley’s testimony to the commission, available at www.justdetention.org/en/NPREC/marilynshirley.aspx.

  7. 7

    As the report says, “In non-correctional settings, one-third to one-half of rape victims consider suicide; between 17 and 19 percent actually attempt suicide.” The lasting emotional trauma may be particularly severe “in a correctional facility, where victims may regularly encounter the setting where the abuse occurred—in some cases their own cell. It also may be impossible to avoid their abuser, causing them to continually relive the incident and maintaining the trauma.”

    A coordinated response to sexual assault, typically through sexual assault response teams (SARTs), is common outside of corrections settings and widely regarded as best practice; therefore, an effective way to meet the commission’s standard here, and one that leading agencies are already beginning to adopt, is for facilities to join their communities’ SARTs. Prisoner rape survivors who are brought to outside hospitals, where victims’ advocates from local rape crisis centers can meet them, are then able to receive the full range of care available to other victims; corrections investigators can benefit from the expertise of SART members who investigate and prosecute sex crimes in the community.

  8. 8

    In instances of staff-on-inmate sexual abuse, staff often resign to forestall an investigation. Similarly, investigations are often dropped if an inmate (victim or perpetrator) is transferred from the facility or released. The standards mandate that all allegations be investigated and all investigations carried out to completion. There are detailed requirements for these investigations, to ensure that they are competent, thorough, and effective in producing sanctions against abusers. Moreover, the standards “require correctional agencies to attempt to formalize a relationship with the prosecuting authority in their jurisdictions through a memorandum of understanding or other agreement. These agreements should be the basis for making cases of prison sexual violence a higher priority for prosecutors.” When staff are the perpetrators, even when prosecutors decline to act, “termination must be the presumptive [administrative] sanction.”

  9. 9

    See www.justdetention.org/en/survivortestimony/stories/alisha_ky.aspx. Survivors of sexual abuse in detention are sometimes put in segregated housing not as punishment, but for their own protection. However,

    the living conditions in protective custody may be as restrictive as those imposed to punish prisoners. In a typical protective custody unit, individuals are placed in maximum-security cells. Privileges are greatly reduced, with as little as an hour a day outside the cell for exercise, extremely limited contact with other prisoners, and reduced or no access to educational or recreational programs.
    This is what is popularly known as solitary confinement, and it can be especially devastating to people already traumatized. “The Commission’s standards allow facilities to segregate victims or potential victims of sexual abuse only as a last resort,” and “only on a short-term basis.”

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