APPENDIX IX: RAPE IN U.S. PRISONS, AND HOW TO STOP IT

How widespread is sexual abuse? According to recent reports 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.

Published in December 2007 and June 2008, the BJS reports 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.

Using a snapshot technique—surveying a random sample⁴⁰⁸ 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.⁴⁰⁹ Overall, the more severe forms of abuse outnumber the lesser ones in both surveys.

The prison survey estimates not only the number of people abused, but the instances of abuse. 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; 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.

In 2011, however, the Justice Department published revised estimates, which were considerably higher. In 2008, the Justice Department 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 600 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 2008.⁴¹⁰ The second category, “non-consensual 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. 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 by corrections staff.

The numbers from the Justice Department count people who were abused, not instances of abuse. People raped behind bars cannot escape their attackers, though. 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.411 The department’s estimate probably remains too low. It is based on extensive surveys conducted by the BJS (which is a part of the Department of Justice) 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.

Even if the updated figures are low, the department’s estimate is of epidemic numbers. 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. Beyond the physical injuries often sustained during an assault,⁴¹² and beyond the devastating, lifelong psychological damage inflicted on survivors, rape in prison spreads diseases, including HIV.⁴¹³ Of all inmates, 95 percent are eventually released⁴¹⁴—more than 1.5 million every year carrying infectious diseases, many of them sexually communicable⁴¹⁵—and they carry their trauma and their illnesses with them, back to their families and their communities.

Most Sexual Abuse of Inmates Doesn’t Happen in Prison

What little attention the BJS reports on adult victims received in the press at the time of their release had mostly been devoted to the prison study, not the one on jails. However, this misses the true implication of the BJS reports, and the jail study is very likely 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. But 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 early BJS numbers came 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.⁴¹⁶ 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.⁴¹⁷

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.

In 1994, in Farmer v. Brennan, the Supreme Court 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.418 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.

The Way to Stop Prison Rape and the Will for Reform

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 commissioners of the National Prison Rape Elimination Commission 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 healthcare providers. Finally, on June 23, 2009, six years after the passage of PREA, the commission published its recommendations. (Staff and board members from Just Detention International [JDI], the only U.S. NGO dedicated solely to ending sexual abuse in detention, served on all eight of the expert committees appointed by the commission. Members of JDI authored this essay.)

The commission wrote four distinct sets of standards, for different types of detention facilities. Reading them, 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.

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. “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.

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 above, such risk can be objectively assessed according to a number of well-known factors—including age and size, or the fact that an inmate is entering prison for the first time, and that his or her 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. The report’s standards on “inmate supervision” and “assessment and use of monitoring technology” explain in detail how to do so.419 “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.⁴²⁰

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,⁴²¹ and the report proposes detailed standards on the care they should get.

The commission is equally concerned with the nature of the investigations that must follow every report of sexual abuse. 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.

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.

How much of a difference would the commission’s standards make if adopted and enforced nationally? It’s impossible to say with any precision. But as Jason DeParle wrote in the New York Review of Books in 2007, “Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform.”422 While the dynamics of sexual violence are quite different from those of homicide, both problems shrink or grow behind bars depending on the effectiveness of a facility’s management.

The BJS studies suggest that sexual abuse has been nearly eradicated in some facilities already, and the policies and practices through which those institutions have achieved such success, as codified in the standards, are basic, commonsense measures. We believe that the incidence of prisoner rape would be cut dramatically if they were adopted everywhere—perhaps by as much as half over the next decade. As the BJS studies show, that would mean tens of thousands of people every year—perhaps as many as 100,000, or even more—who would be spared atrocious abuse.

The commission’s recommended standards were submitted to U.S. Attorney General Eric Holder, who by law had until June 23, 2010, to review them and make any changes he deemed necessary. He missed that deadline. The standards that the Department of Justice has proposed, taken all together, fall far short of the commission’s recommendations. During the review period, Attorney General Holder faced pressure to weaken the standards. The Department of Justice’s review of the NPREC recommendations resembles the commission’s in many ways, but what had been an open and inclusive process under the NPREC became largely closed. We know which agencies participated in the Justice Department’s internal working group on the standards—including officials from the Bureau of Prisons, who are also opposed to important aspects of the commission’s recommendations⁴²³—but we still do not have a list of the group’s members.

Prisoner rape is one of the few issues on which there is no disagreement between Democrats and Republicans, or between the Christian right and liberals.⁴²⁴ Nor is it simply an issue that pits corrections officers against the rest of the world. Good and dedicated corrections staff know that sexual abuse in detention is a terrible problem not only for its immediate victims, but for them as well, and for the country as a whole. In facilities where rape is common and unchecked by authorities, where the rules seem to have no force and animosity between inmates and staff is fueled, their safety is at risk. And they know that traumatized survivors and undeterred rapists may, on release, be more prone to recidivism themselves.

Addressing the Myth of the “Substantial Additional Costs” of Reform

The Justice Department’s primary consideration in weakening the standards was expense. The government must fulfill its human rights obligations: this is a constitutional and moral imperative to which budgetary considerations are secondary, especially when, as the department affirms here, the measures in question will not “have [a significant] effect on the national economy.”⁴²⁵ On the other hand, PREA stipulated that no standards should be issued “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities,” and the department was obligated to take that seriously.⁴²⁶

The commission was mindful of this throughout its work, however.427 And PREA is not the only relevant law here. Under the Eighth Amendment, which forbids cruel and unusual punishment, every corrections system is already obligated to protect its inmates from sexual abuse. Rape is illegal everywhere, including detention facilities, and all fifty states have laws making sexual contact of staff with inmates a criminal offense; so does applicable international law.⁴²⁸ Still, no one doubts that bringing corrections systems across the country into compliance with the standards will require money, and everyone acknowledges the importance of this consideration.

The Justice Department needn’t rely on estimates of future costs. Instead, it could look to corrections systems that are already implementing the standards, to see what their actual costs are. JDI is working with three such systems right now to help them achieve compliance with the standards even before they are legally obliged to do so. All three systems face budget crises, and are unable to provide significant additional funding. Between them, they will give a good indication of what is possible at what cost nationally. Max Williams, director of the Oregon Department of Corrections, estimates that his system has achieved compliance with 70 percent of the standards already. As he told us, “In Oregon, we haven’t had to hire any new staff as part of the effort to implement the standards. Instead, we have retrained and repurposed existing staff. We have made some hard dollar investments, in cameras, a database, etc., but those are tools we can use for much more than handling the problem of sexual abuse.”⁴²⁹

In any case, it would be a mistake to consider the costs of implementing the standards without also taking account of the benefits. Even when the financial implications of prisoner rape are the only ones considered—and surely they are less important than the moral or simply human considerations involved here—the savings and tangible benefits of preventing rape are considerable. As the result of litigation when corrections staff have engaged in or allowed sexual abuse in their facilities, corrections systems have had to pay many millions of dollars in damages over the last few years.⁴³⁰ When survivors of prisoner rape require medical care, as they often do, corrections systems must bear most of the costs. And people traumatized by sexual assault behind bars are often unable to resume economically productive lives after their release.⁴³¹

The Washington Department of Corrections estimates that the cost of providing mental health treatment for victims of prisoner rape or sexual assault—which is different from immediate medical care—is approximately $9,700 per victim. Neither category of care includes treatment for HIV, hepatitis C, and other sexually transmitted infections, which are spread by prisoner rape and also impose great costs on prison health services. Quite apart from the horror it inflicts on the victim, failing to protect an inmate from sexual abuse contributes to the substantial legal costs our prison systems face. While it is extraordinarily difficult for an incarcerated victim to bring a civil lawsuit—the 1996 Prison Litigation Reform Act (PLRA) was enacted with the explicit purpose of limiting prisoners’ ability to be heard in court—prisons have still had to pay hundreds of millions of dollars in damages and fees to inmates who can establish that officials were “deliberately indifferent” in failing to protect them.

When inmates do report sexual abuse in prison, they are often put in “administrative segregation,” isolated housing that can entail being locked alone in a tiny cell for up to twenty-three hours a day. It is enormously expensive. In California, for example, it costs an additional $14,600 per year432 to house a prisoner in administrative segregation.

Preventing prisoner rape will also help inmates successfully re-enter their communities when they’re released from prison (as almost all will be, eventually). Not only will recidivism be decreased and the enormous costs of re-incarceration lowered, this will lower the costs of disability payments, public housing, and other government-sub-sidy programs. Former inmates who have not been sexually abused are far more likely to become members of the legitimate workforce and pay taxes. Severe financial, emotional, and social burdens are removed from the families who support former inmates if their loved ones are released from prison without the lasting trauma of sexual abuse. And the children who depend on those former inmates will also do better.

Apart from costs, we believe that there is also another and perhaps more important reason why some corrections officials are opposed to the commission’s recommendations: the prospect that their compliance with the standards would be closely monitored.

The commission proposed a standard requiring that independent audits of every detention facility be made at least every three years.⁴³³ This standard also requires that data collected by these audits be made public. And the commission strongly endorsed a resolution of the American Bar Association recommending that federal, state, and territorial governments adopt effective systems of external oversight.⁴³⁴ Although effective oversight is not by itself enough to stop sexual abuse in detention, it is an indispensable part of any solution, and few reforms would do more to improve prison conditions generally. If the commission’s standards and recommendations are approved and enforced, they will greatly strengthen our systems of oversight.

This, we believe, is what the opponents of reform truly fear. Will Harrell, the former independent ombudsman of the Texas Youth Commission, who was appointed after pervasive sexual abuse of its juvenile detainees by staff was revealed in 2007, told us in an e-mail:

              Administrators whose perspective was formed under the tradition of public exclusion are deeply resistant to independent, external oversight. They fear the loss of control over the flow of information. They fear potential embarrassment or scandal. But… the public must watch the watchmen.

Max Williams told us, “Many officials are afraid that these audits are designed to be a ‘gotcha,’ a ‘we’re going to zing you.’ That’s what they are worried about.”

To a certain extent, such fear is understandable. Even good corrections officers feel embattled by dangerous inmates who badly outnumber them. They also feel that they are underfunded and underpaid by the government, and ignored or reviled by the public. A sort of bunker mentality often grows among them, in which the most unforgivable act is reporting on a fellow officer. When that is the case, even in facilities where good people work, corruption spreads.

But no public institutions are more in need of transparency and accountability than prisons and jails. Without external scrutiny, sadistic and autocratic people can turn their facilities into private hells—as happened in Texas just a few years ago, when hundreds of children were raped night after night by their guards, and there was no help for them. Any decent system of oversight would have made that impossible.