We’ve all heard the stories. We all know the jokes (Don’t drop the soap!). Sexual violence in prison is a known problem. However, what to do about it is the question at hand. Some believe that it is a just occurrence and that inmates are deserving of it. I mean, they are criminals, they’re just getting whats coming to them, right?
Nobody deserves to be violated. Period.
There exist many myths about sexual violence, and many more to sexual violence in prison. Some believe that sexual violence in prison is a crime deterrent. That the fear of being raped in prison is so powerful that it will prevent crime, and that individuals will avoid breaking the law in order to prevent being raped. This is false. Clearly, looking at our overcrowded prisons, this theory of crime prevention isn’t working. The interesting thing about this myth is that rape in itself is a crime, a serious one at that too. Accepting sexual violence as a crime deterrent also contributes to the maintenance of our culture of sexual violence. This myth also has homophobic undertones as well. Which brings us to our next myth…
Perpetrators of sexual violence in prisons identify as gay, bisexual, or lesbian. What we need to remember is that it is a myth that rape and sexual violence are about sex. Sexual violence is about power and control, not sex. The truth is that most perpetrators of sexual violence in prison do not identify as gay, in fact non-heterosexually identified inmates are more often targeted because of their orientation and/or gender identity. Other vulnerabilities to abuse are being a first-time offender, a non-violent offender, and a juvenile offender.
Sexual violence in prison, like sexual violence outside prison, is very underreported. In fact, it may be even MORE underreported. A 1996 report on sexual violence in federal prisons revealed that only 29 percent of inmates who were sexually assaulted/raped, reported their attack (Struckman-Johnson, “Sexual Coercion,” p. 75; see also Peter L. Nacci and Thomas R. Kane, “The Incidence of Sex and Sexual Aggression in Federal Prisons,” Federal Probation, vol. 47, no. 4 (1983), p. 3). A 2007 Bureau of Justice study revealed that 6, 528 prisoners reported being raped in 2006. In that same 12 month period, more than 60,000 stated that they had experience upwards of 160,000 incidents of sexual abuse. A 2008 study of county jails revealed that more than 3% experience abuse within a 6 month period, and that women were more likely to be victims, at 5.1%, compared to 3% for men. This study also revealed that perpetrators were equally as likely to be staff as inmates.
False reporting is an issue in prisons. Outside of prison, false allegation rates very between 2-8%. There are difficulties in estimating the percentage of false allegations because sexual violence is inherently a “he-said, she-said” issue, and evidence is not always clear (this does NOT necessarily mean that an assault did not occur) and so many cases are deemed “unfounded.” Many victims decide to drop charges because of fear, self-blame, or they are “persuaded” to by law enforcement officials or prosecutors. In prisons, this is made even more complicated as inmates may seek to cause harm to fellow inmates or guards and choose to make false allegations. So, victims of sexual violence in prisons deal with the same issues victims in the community deal with (self-blame, fear, depression, [possible] suicidal thoughts) but because of the environment of prisons, these issues are compounded. Imagine you’ve been assaulted and you have nowhere to go, you’re stuck (and may be stuck for years, possibly the rest of your life), the perpetrator spends ALL of his time where you live, the perpetrator can control where you’ll be and when and knows if you’re going to be alone (staff-on-inmate), you may need the perpetrator for protection. There may be more false allegations in prison populations, but reporting sexual violence in prisons needs to be taken seriously. Should inmates repeatedly make allegations then a note can be made in their record documenting this so that investigators are aware when new allegations are made. Just because someone may have made a false allegation before, doesn’t mean all of their allegations are false. Take it seriously. Every time.
There are clear complications surrounding the issue of consent in prisons. Consent is an ongoing, enthusiastic, wanted, informed, mutual, honest, well-communicated agreement between all parties and of course the absence of a ‘no’ does not mean ‘yes.’ It is of course against the law in all 50 states for staff to engage in sexual relationships with inmates because of the clear power differential. And thus, inmates cannot consent to sex with staff. Sexual relationships between inmates are complicated as well. There is an inherent possibility of coercion and intimidation regarding sex between inmates because of prison gangs, ‘protective pairing,’ and so ‘consent’ is at best, murky.
In 1994 the Supreme Court saw it’s first case involving sexual violence in prisons in Farmer v. Brennan. Dee Farmer a trans-identified Male-to-Female inmate was housed with men. She was repeatedly beaten and raped and contracted HIV as a result of the attacks. Farmer argued that prison administration should have known she would be vulnerable to attacks and should have done more to protect her. The Court agreed, arguing that Farmer’s Eighth Amendment rights, specifically the ‘cruel and unusual punishment’ clause, were violated. Justice Blackmun in his concurring opinion stated that “Where a legislature refuses to fund a prison adequately, the resulting barbaric conditions should not be immune from constitutional scrutiny simply because no prison official acted culpably. […] The responsibility for subminimal conditions in any prison inevitably is diffuse, and often borne at least in part, by the legislature. Yet, regardless of what state actor or institution caused the harm and with what intent, the experience of the inmate is the same. A punishment is simply no less cruel or unusual because its harm is unintended. In view of this obvious fact, there is no reason to believe that, in adopting the Eighth Amendment, the Framers intended to prohibit cruel and unusual punishments only when they were inflicted intentionally.” Farmer v. Brennan was one of the primary examples in the justification for the Prison Rape Elimination Act’s consideration and passing.
In 2003 the Prison Rape Elimination Act [PREA] was signed into law. This marked the first time that sexual violence in prisons was addressed by the federal government. Human Rights Watch released a report two years prior to PREA’s passing entitled ‘No Escape: Male Rape in U.S. Prisons’ that lead to PREA’s consideration and ultimate passing. Twenty million dollars was allocated to implementing PREA in the country’s prisons in 2004, and twenty-five million in 2006. PREA was designed to research the prevalence of sexual violence in prisons, discover well-performing and under-performing prisons, and what can/should/could’ve/was done to prevent/intervene through national standards.
National standards for prisons were to be developed and eventually implemented as well. These national standards were to be ratified in June of this year, they were, however, not ratified. Among these standards related to prevention and response planning were:
- All prisons must adopt zero-tolerance policy regarding sexual violence.
- Prisons are to develop relationships with outside agencies related to sexual violence.
- Supervision of inmates.
- “The upper management officials responsible for reviewing critical incidents must examine areas in the facility where sexual abuse has occurred to assess whether physical barriers may have enabled the abuse, the adequacy of staffing levels in those areas during different shifts, and the need for monitoring technology to supplement security staff supervision.”
- Limits to cross-gender searches.
- Accommodations for special needs inmates.
- “The agency ensures that inmates who are limited English proficient (LEP), deaf, or disabled are able to report sexual abuse to staff directly, through interpretive technology, or through non-inmate interpreters. Accommodations are made to convey all written information about sexual abuse policies, including how to report sexual abuse, verbally to inmates who have limited reading skills or who are visually impaired.”
- Hiring protections (ie, no sex offending guards).
- Maintenance and implementation of better monitoring technologies.
- Inmate access to forensic examinations.
- Memoranda of Understanding [MOU] with outside agencies.
- “The agency maintains or attempts to enter into memoranda of understanding (MOUs) or other agreements with an outside public entity or office that is able to receive and immediately forward inmate reports of sexual abuse to facility heads. The agency also maintains or attempts to enter into MOUs or other agreements with community service providers that are able to: (1) provide inmates with confidential emotional support services related to sexual abuse and (2) help victims of sexual abuse during their transition from incarceration to the community.”
Standards of prevention in prisons consist of:
- Employee, Volunteer, Contractor training.
- “The agency trains all employees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and relevant Federal, State, and local law.”
- Inmate Training.
- “During the intake process, staff informs inmates of the agency’s zero-tolerance policy regarding sexual abuse and how to report incidents or suspicions of sexual abuse. Within a reasonably brief period of time following the intake process, the agency provides comprehensive education to inmates regarding their right to be free from sexual abuse and to be free from retaliation for reporting abuse, the dynamics of sexual abuse in confinement, the common reactions of sexual abuse victims, and agency sexual abuse response policies and procedures. Current inmates are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all inmates to ensure that they know the agency’s most current sexual abuse policies and procedures.”
- Investigation training.
- Medical and mental health training.
- Risk assessment for inmates.
- “All inmates are screened during intake, during the initial classification process, and at all subsequent classification reviews to assess their risk of being sexually abused by other inmates or sexually abusive toward other inmates. Employees must conduct this screening using a written screening instrument tailored to the gender of the population being screened.”
- Use of screening information.
- “Employees use information from the risk screening (SC-1) to inform housing, bed, work, education, and program assignments with the goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of being sexually abusive. The facility makes individualized determinations about how to ensure the safety of each inmate. Lesbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity. Inmates at high risk for sexual victimization may be placed in segregated housing only as a last resort and then only until an alternative means of separation from likely abusers can be arranged. To the extent possible, risk of sexual victimization should not limit access to programs, education, and work opportunities.”
Related to reporting are the following standards:
- Inmate reporting.
- “Multiple internal ways for inmates to report easily, privately, and securely sexual abuse, retaliation by other inmates or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse.”
- Third-party reporting.
- Victims or witnesses can report to third-parties who can then report for them.
- Exhaustive administrative remedies.
- Staff and facility reporting duties.
- First responder duties.
- Coordinated responses.
- “All actions taken in response to an incident of sexual abuse are coordinated among staff first responders, medical and mental health practitioners, investigators, and facility leadership. The facility’s coordinated response ensures that victims receive all necessary immediate and ongoing medical, mental health, and support services.”
- Agency protection from retaliation.
- Duty to investigate.
- Evidence standards.
- Sanctions for staff, inmates.
- Mental health screening, including prior victimization.
- Access to emergency services.
- Ongoing care for victims.
These and more standards can be located in detail at the National Prison Rape Elimination Commission
While these standards are certainly effective, when exploring their similar use outside of prisons, they pose significant issues when applied to prisons. One issue is money. Twenty-five million a year is simply not enough for prisons to implement these standards. Our prisons are overcrowded and underfunded, making any changes in policy difficult, let alone the drastic changes these standards require.
Last week Myrtha Veldhuis, RCASA’s ‘Education and Prevention Services Coordinator,’ and David Shafer, our ‘Prevention Specialist,’ spoke to members of various law enforcement agencies in the region at the Rappahannock Regional Criminal Justice Academy. During this training one of the issues that kept coming up is how can law enforcement implement these changes? The money isn’t there, the number of personnel isn’t sufficient, the personnel is educated in these issues, and the culture of prison’s isn’t conducive to violence prevention.
These standards are great…in theory and they would be effective, if they were possible. At this point they are not. However, change can occur and PREA can be effective if change occurs within prisons and outside of prisons. Sexual violence needs to be addressed inside and outside of prison’s. This requires educational campaigns that parallel disease control. Sexual and intimate partner violence is so profound an issue that the Centers for Disease Control and Prevention [CDC] dedicates time and funds to its prevention. Sexual violence is a far-reaching, intricate problem, requiring a multi-pronged approach inclusive of all individuals at all levels of society.
Some red flags that signify that abuse may have occurred/is occurring:
- Staff-on-Inmate – inmate spending time with particular staff member, staff requesting job changes, inmate using staff member’s first name, familiar touching of a staff member, staff being on grounds during off-hours, staff requests assignments when particular inmate is alone, staff comes in early/stays late.
- Inmate-on-Inmate – Decrease in showering or taking sink baths, suicide threats/attempts, acting out/risk-taking behavior, requesting protective custody, increase in medical/mental health call-outs, inmate always wants a two-person cell, one inmate never rotates out of cell/constantly getting new cellmates, showing special interest in particular inmate.
More information and resources can be found at: