Lovisa Stannow and Melissa Rothstein, Improving Prison Oversight to Address Sexual Violence in Detention, acslaw.org, July 7, 2009

The United States is at an historic moment in the battle to stop rape and other forms of sexual assault in detention. On June 23, the National Prison Rape Elimination Commission (NPREC) released its recommendations for binding federal standards to address and prevent prisoner rape. These standards represent one of the most important tools to combat this human rights crisis.

According to the best available research, 20 percent of inmates in U.S. men’s institutions are sexually abused at some point during their incarceration. The rate for women’s institutions varies dramatically from one facility to another, with one in four inmates being victimized at the worst prisons. In an inmate survey published in December 2007, the Bureau of Justice Statistics (BJS) found that 4.5 percent (or 60,500) of the more than 1.3 million inmates held in federal and state prisons had been sexually abused in the previous year alone. A subsequent BJS survey in county jails was just as troubling: nearly 25,000 jail detainees reported having been sexually abused in the past six months. These surveys are snapshots, reaching only inmates present on a particular day. As the annual number of admissions to county jails is 17 times higher than the jail population on any day, the BJS data represents just the tip of the iceberg.

Prisoner rape survivors endure physical scars, contract HIV and other sexually transmitted diseases, and suffer severe psychological harm. As they return home – and more than 95 percent of all inmates are eventually released – they bring their experiences and medical and mental health conditions with them.

Congress first addressed the problem of sexual abuse in detention in 2003, when it unanimously passed the Prison Rape Elimination Act (PREA). Among other things, PREA created the NPREC and mandated the standards development and BJS surveys. Pursuant to the law, the Attorney General has one year from the release of the NPREC’s standards to codify them into federal regulations. At that time, the standards will be immediately binding on all federal facilities; states will have one year to certify their compliance or they will lose 5 percent of their federal corrections-related funding.

Legislators are returning to the issue this week with a hearing on the new standards on July 8 before the House Subcommittee on Crime, Terrorism, and Homeland Security. Although the NPREC standards now are in the hands of the Attorney General, Congress should encourage him to act quickly to codify the standards, without diluting them, and to establish a strong system for independently measuring whether written policies are sound and whether such policies are put into practice in ways that protect inmates and respond to the conditions within a specific facility.

Congress must also take important steps of its own to address the problem of prisoner rape, chief among which is to revise the Prison Litigation Reform Act (PLRA). The PLRA virtually bars prisoner rape survivors (and other inmates whose constitutional rights have been violated) from obtaining review of their claims in federal court due to the stringent exhaustion requirement, which imposes procedural requirements that are often impossible for prisoner rape survivors to meet, and by requiring that inmates prove a physical injury in order to receive monetary damages, which some judges have held does not include all forms of sexual violence.

When the government takes away someone’s liberty, it takes on an absolute responsibility to protect that person’s safety. Prisoner rape is a perversion of justice and an affront to our society’s most essential values. National standards with sufficient oversight can help finally end this type of violence.

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