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Prison Rape and the Government

Sexual Victimization Reported by Adult Correctional Authorities, 2007–2008

by Allen J. Beck and Paul Guerino
Bureau of Justice Statistics, 62 pp., available at bjs.ojp.usdoj.gov

National Standards to Prevent, Detect, and Respond to Prison Rape: Notice of Proposed Rulemaking

by the United States Department of Justice
Federal Register, Vol. 76, No. 23 (February 3, 2011), 56 pp., available at federalregister.gov/a/2011-1905

Initial Regulatory Impact Analysis for Notice of Proposed Rulemaking: Proposed National Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA)

by the United States Department of Justice
(January 24, 2011), 65 pp., available at ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf
dkaiser_2-032410.jpg
Eli Reed/Magnum Photos
Female inmates locked down in the Maricopa County Jail, Phoenix, Arizona, 1998

Back in 1998, Jan Lastocy was serving time for attempted embezzlement in a Michigan prison. Her job was working at a warehouse for a nearby men’s prison. She got along well with two of the corrections officers who supervised her, but she thought the third was creepy. “He was always talking about how much power he had,” she said, “how he liked being able to write someone a ticket just for looking at him funny.” Then, one day, he raped her.

Jan wanted to tell someone, but the warden had made it clear that she would always believe an officer’s word over an inmate’s, and didn’t like “troublemakers.” If Jan had gone to the officers she trusted, they would have had to repeat her story to the same warden. Jan was only a few months away from release to a halfway house. She was desperate to get out of prison, to return to her husband and children. So she kept quiet—and the officer raped her again, and again. There were plenty of secluded places in the huge warehouse, behind piles of crates or in the freezer. Three or four times a week he would assault her, from June all the way through December, and the whole time she was too terrified to report the attacks. Later, she would be tormented by guilt for not speaking out, because the same officer went on to rape other women at the prison. In a poem, Jan wrote:

These are a few of the reasons why prisoners fear reporting rape.
Fear of being written up and possibly losing good time.
Fear of retaliation.
Fear of feeling that no one will believe them.
Fear of feeling that no one really cares.

For all these reasons, a large majority of inmates who have been sexually abused by staff or by other inmates never report it.1 And corrections officials, with some brave exceptions, have historically taken advantage of this reluctance to downplay or even deny the problem. According to a recent report by the Bureau of Justice Statistics (BJS), a branch of the Department of Justice, there were only 7,444 official allegations of sexual abuse in detention in 2008, and of those, only 931 were substantiated. These are absurdly low figures. But perhaps more shocking is that even when authorities confirmed that corrections staff had sexually abused inmates in their care, only 42 percent of those officers had their cases referred to prosecution; only 23 percent were arrested, and only 3 percent charged, indicted, or convicted. Fifteen percent were actually allowed to keep their jobs.

How many people are really victimized every year? Recent BJS studies using a “snapshot” technique have found that, of those incarcerated on the days the surveys were administered, about 90,000 had been abused in the previous year, but as we have argued previously,2 those numbers were also misleadingly low. Finally, in January, the Justice Department published its first plausible estimates. In 2008, it now says, more than 216,600 people were sexually abused in prisons and jails and, in the case of at least 17,100 of them, in juvenile detention. Overall, that’s almost six hundred people a day—twenty-five an hour.

The department divides sexual abuse in detention into four categories. Most straightforward, and most common, is rape by force or the threat of force. An estimated 69,800 inmates suffered this in 2008.3 The second category, “nonconsensual sexual acts involving pressure,” includes 36,100 inmates coerced by such means as blackmail, offers of protection, and demanded payment of a jailhouse “debt.” This is still rape by any reasonable standard.

An estimated 65,700 inmates, including 6,800 juveniles, had sex with staff “willingly.” But it is illegal in all fifty states for corrections staff to have any sexual contact with inmates. Since staff can inflict punishments including behavioral reports that may extend the time people serve, solitary confinement, loss of even the most basic privileges such as showering, and (legally or not) violence, it is often impossible for inmates to say no.4 Finally, the department estimates that there were 45,000 victims of “abusive sexual contacts” in 2008: unwanted touching by another inmate “of the inmate’s buttocks, thigh, penis, breasts, or vagina in a sexual way.” Overall, most victims were abused not by other inmates but, like Jan, by corrections staff: agents of our government, paid with our taxes, whose job it is to keep inmates safe.

All the numbers we have cited count people who were abused, not instances of abuse. People raped behind bars cannot escape their attackers, though. They must live in constant fear, their trauma renewed every time they see their assailants. Between half and two thirds of those who claim sexual abuse in adult facilities say it happened more than once; previous BJS studies suggest that victims endure an average of three to five attacks each per year.5

We believe that the department’s estimate probably remains too low. It is based on extensive surveys conducted by the BJS in which inmates were able to report abuse anonymously. Some inmates probably fabricated such reports, creating “false positives,” and some who had been abused probably decided not to report it, creating “false negatives.” Since it is impossible to know how many errors of either kind there were, the department chose simply to take the BJS results at face value.

In our opinion, the surveys were effectively designed to discourage false reporting, which would usually be done with the intent of creating trouble for the accused perpetrator or in hopes of being moved to a different facility. The surveys therefore simply didn’t take names—of victims or perpetrators. (The surveys’ authors also devised a number of ways to check for and discount false claims.) On the other hand, inmates would be likely not to report real abuse from shame, or because it was too painful, or out of fear that those guaranteeing their anonymity could not be trusted—and no survey could be designed to overcome those considerations effectively. Moreover, the department’s estimate does not include the many people who are sexually abused in, for example, the Department of Homeland Security’s immigration detention facilities, in police lockups, or by their probation and parole officers.

Even the department’s estimate is of epidemic numbers, however. It shows that there is a human rights crisis in our own country. The people raped in our prisons are our fellow citizens, family members, and neighbors. And when they’re released, as 95 percent of them will be eventually, they bring their trauma home with them, back to our communities.

The notion that rape is inevitable in our prisons is, as the Justice Department says, “not only incorrect but incompatible with American values.” After all, the government has extraordinary control over the lives of people whom it locks up and keeps under surveillance every hour of every day. Preventing sexual abuse in detention is primarily a matter of management. The policies needed are, for the most part, straightforward: for example, considering characteristics that make an inmate especially vulnerable when deciding where to house him, such as homosexuality or a history of prior abuse. Well-run prisons have adopted such policies already, and their rates of sexual assault are dramatically lower than the national average. But for too long, too many facilities have failed to take these basic measures.

In 2003, seeking to address this disgraceful situation, both chambers of Congress unanimously passed the Prison Rape Elimination Act (PREA), a law that created a commission to study best practices and come up with national standards for preventing, detecting, and responding to the problem. This commission spent years consulting with corrections officials and other experts. Finally, in June 2009, it delivered its recommendations to Attorney General Eric Holder, who by law then had twelve months to revise them before formally issuing standards that would be nationally binding.

He missed that deadline. The estimate of 216,600 inmates sexually abused in a year comes from a draft of the proposed final standards, which Holder has only now published for public comment—a step that is still far from the last. (The public comment period will run until April 4, 2011. People wishing to comment on the Justice Department’s proposals can learn how on our organization’s website, www.justdetention.org.) Moreover, the standards that the department has proposed, taken all together, fall far short of the commission’s recommendations.

There are some specific points on which the department has gone beyond the standards advocated by the commission. To mention a few examples, while the commission would have required that physical exams be made available to abused inmates whenever penetration had occurred, the department has expanded this provision, making the exams available whenever they are deemed “evidentiarily or medically appropriate.” It has also decided that inmates who have suffered sexual abuse should now be given timely access to legally available “pregnancy-related medical services” and prophylaxis for sexually transmitted infections.

The department also intends to recommend lifting the ban on use of funds available under the Victims of Crime Act for those who have been abused in detention, which will make it much more possible for community rape crisis centers to help inmates. And it has expanded the commission’s training requirements, adding, for the first time, that corrections staff must now receive instruction on appropriate professional boundaries and on effective and professional communication with lesbian, gay, bisexual, transgender, and intersex (persons whose biological sex is ambiguous) inmates—obvious enough measures to take, but extremely important ones.

The department has proposed a new standard on housing decisions for transgender and intersex inmates. The vast majority of male-to-female transgender inmates are simply placed in men’s facilities. There they are perhaps the most vulnerable of all groups, often raped repeatedly. Now, for the first time, the department is requiring that their housing be considered on an individual basis. This is enormous, indeed life-saving progress.6

However, although such points are to be applauded in the attorney general’s draft of the standards, it is deeply flawed and should be amended one more time. Again, a few examples of the problems will have to stand in for a much longer list.

To begin with, although the department writes that “protection from sexual abuse should not depend on where an individual is incarcerated: It must be universal,” its standards now will not apply to immigration detention facilities—even though the history of the Prison Rape Elimination Act clearly shows that it was intended to cover immigration detention.7 This is an essential point, because immigration facilities are rife with abuse.8 The people housed in them, terrified of deportation and often sharing no language with their jailers, tend to be even more reluctant to file reports than most criminal detainees, and so are particularly vulnerable.

Similarly, the department has, against the commission’s recommendation, decided that its standards should not apply to probation and parole officers (except those working in community confinement facilities such as halfway houses), even though probation and parole officers sometimes extort sex by taking advantage of their extraordinary ability to send people to prison; even though many inmates wait to tell anyone what they’ve suffered until release, and then frequently turn to their parole officers, who would therefore benefit greatly from the specialized training about sexual abuse that the standards require for other corrections staff.9

  1. 1

    As the Bureau of Justice Statistics found in a recent study, “between 69% and 82% of inmates who reported sexual abuse in response to the survey stated that they had never reported an incident to correctional managers.” 

  2. 2

    See David Kaiser and Lovisa Stannow, ” The Rape of American Prisoners,” The New York Review, March 11, 2010; see also David Kaiser and Lovisa Stannow, ” The Way to Stop Prison Rape,” The New York Review, March 25, 2010. 

  3. 3

    As a point of comparison, it may be worth noting that the latest National Crime Victimization Survey (NCVS) by the BJS, which excludes “Armed Forces personnel living in military barracks and institutionalized persons, such as correctional facility inmates,” estimates that in 2009 there were 125,910 instances of rape and sexual assault in the US. However, several caveats are necessary here: first, that the definitions of these crimes used in this study are not the same as those used in the surveys of prisoner rape; second, that the 2009 number was down significantly from the 2008 NCVS finding of 203,830 rapes and sexual assaults in the free community; third, as the BJS says in the 2009 NCVS, “The measurement of rape and sexual assault represents one of the most serious challenges in the field of victimization research.” The 2009 National Crime Victimization Survey is available at bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf

  4. 4

    As the Justice Department acknowledges, “the power imbalance in correctional facilities is such that it is impossible to know if an incarcerated person truly ‘consented’ to sexual activity with staff.” 

  5. 5

    Of juvenile detainees reporting sexual abuse by other inmates, 81 percent said it happened more than once. 

  6. 6

    According to the National Prison Rape Elimination Commission report, suicide is considered by one third to one half of rape victims in “non-correctional settings”; 17 to 19 percent attempt it. And as the department says of rape, “Such acts are particularly damaging in the correctional environment, where the power dynamic is heavily skewed against victims and recourse is often limited.” 

  7. 7

    Two federal entities charged with implementing parts of PREA, the commission and the BJS, have both recognized immigration as clearly within their mandate; statements in the House Judiciary Committee’s report on the bill confirm that it was meant to cover civil as well as criminal detainees; and the late Senator Edward Kennedy, one of PREA’s sponsors and its main champion in Congress, publicly expressed his particular gratification that PREA would apply to immigration detention. PREA itself defines “prison” for the purposes of the law as “any confinement facility of a Federal, State, or local government.” And as a former adviser to the head of the Department of Homeland Security (DHS) acknowledged, immigration facilities (all of which are run by or contracted from the DHS) need new policies like the standards.

    The department’s argument for not applying its standards to DHS immigration facilities, we presume, is that PREA didn’t stipulate that the standards should apply to DHS facilities. But when PREA was first drafted, in 2002, there was no Department of Homeland Security; the Immigration and Naturalization Service, which did exist then, was a division of the Department of Justice, so the department’s standards would have applied to its facilities automatically. While DHS had been established by the time PREA was passed, the scope of its responsibilities for housing immigration detainees was not yet clear. 

  8. 8

    See Human Rights Watch, “Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention,” August 25, 2010. 

  9. 9

    By 2000, about as many people were being annually sent to prison in the US for parole violations as had been sent to prison for any reason in 1980. (Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, 2010), p. 93.) According to the BJS, more than five million people were on probation or parole in 2009. The sorts of parole violations that can get someone sent back to prison include failing to maintain employment, failing a drug test, and missing an appointment with a parole officer—all of which, however, would be typical symptoms of the kind of trauma associated with prior sexual abuse. Thus, unless probation and parole officers can recognize and take into account such trauma, people who have been sexually abused in detention are at heightened risk of being sent back to prison after their release. There, because prior abuse dramatically increases the probability of future abuse, they will very likely face more sexual assaults. 

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