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 Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–09 by Allen J. Beck, Paige M. Harrison, and others Bureau of Justice Statistics, 91 pp., available at bjs.ojp.usdoj.gov

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

The Prison Litigation Reform Act of 1996, which was written with the explicit purpose of limiting inmates’ access to judicial redress, insists that prisoners must successfully follow the grievance procedures of the facilities where they were abused before seeking help from a judge. Many prison systems have harsh requirements about how quickly after an assault complaints must be filed. Such deadlines often take no account of the likelihood that a victim will still be in shock or in the hospital when that time expires, or of many inmates’ very reasonable fear of retaliation if they do file a grievance within their facilities.10 Recognizing this, the commission tried to ensure that reasonable access to the courts would be restored to victims of prisoner rape. But the Justice Department’s draft requires facilities to adopt grievance policies like the one used by the federal Bureau of Prisons—which has even stricter deadlines than those currently used in eighteen states, giving inmates only twenty days to file complaints after an assault, and an additional ninety-day extension only if they are able to document trauma.11 In many places, therefore, this PREA standard might have the perverse effect of further limiting recourse for people raped in prison.

The department is also weakening one of the commission’s recommendations by allowing adult facilities to place victims or those at high risk in segregated, isolated housing for ninety days, even against their will, in order to prevent further assaults. But “solitary confinement” is more commonly used as punishment; it can have devastating psychological effects, especially to people already traumatized. Such segregation has been used with particular frequency against gay inmates in the past, again purportedly for their protection, but often against their will and when no abuse has taken place. Some inmates request segregated housing for their own protection, and they should have that right. No one should be subjected to it involuntarily, however, simply for reporting abuse. The risk of such isolation now contributes to many inmates’ reluctance to file grievances. When a victim and his assailant must be separated, it would be more appropriate to isolate the abuser.

The department has essentially eliminated the commission’s requirement that inmates be able to report abuse confidentially to people unaffiliated with their facilities. Like the commission, it gives victims access to an advocate during the investigation process; unlike the commission, though, it does not require these advocates to be outsiders, but would allow them to be “qualified”12 employees of the facility where the abuse took place. Here we suspect that the department may have given in to pressure from corrections officials who fear opening their facilities to outside scrutiny. But if the department is serious about wanting to prevent sexual abuse in detention, it must open prisons to outsiders. It cannot allow them to continue policing themselves.

Much more difficult problems emerge when the Justice Department considers supervision of inmates by officers of the opposite sex. Since this can lead to elevated rates of abuse, the commission recommended standards limiting staff’s ability to view inmates of the opposite sex while undressed or to touch them during searches, except in emergencies—recommendations that still came far below international norms. The department has weakened them even further. It bans officers from performing strip searches and visual body-cavity searches on inmates of the opposite sex, except in emergencies, but not from pat-searching them, or viewing them in the shower or on the toilet during cell checks.

The department is worried that a ban on cross-gender pat-searches might mean facilities would have to fire many of their female employees and hire more men, which would be very expensive and perhaps illegal. And it maintains (something we agree with) that it can be beneficial for inmates to have staff of the opposite sex in their facilities. The problem, though, is that a significant majority of staff-on-inmate sexual abuse is cross-gender—women abusing men, as well as men abusing women—and much of it starts during (but then is not limited to) pat-searches.

But it is possible to have both male and female employees available in a facility when nonemergency searches are required so that pat-searches could be conducted by members of the same sex. There are also simple ways to limit the incidental viewing of inmates on the toilet, by, for example, installing small privacy screens, or where that’s impractical, allowing inmates to hang a towel from the bars of their cells for a few minutes. In any case, the department should not give higher priority to the employment concerns of corrections staff than to an essential purpose of their jobs, which is ensuring the safety of inmates in their care.

To have any hope of keeping inmates safe, staff must know what is happening to them. The department’s standard on supervision, which addresses both staffing levels and video monitoring, is one of its most important. Yet neither the department nor, before it, the commission has defined what would be adequate supervision. (It does not, for example, point out where recording cameras are needed to detect rape in such places as closets or require extra monitoring for inmates with known histories of sexual assaults.) This is a terribly disappointing failure after seven years of work.13

Even more troubling is the lack of any mechanism for holding facilities accountable when they do not give inmates the supervision that is needed. All the department proposes is that corrections agencies be responsible for writing annual supervision plans for each of their facilities; they must also devise backup plans in case the first plans cannot be met. But even after deciding for themselves what would be sufficient, agencies face no penalties, either for failing to provide adequate supervision or for failing to implement their backup plans.14

None of the department’s standards, in fact, will be meaningful unless sufficient mechanisms exist to enforce them. Unfortunately, the department has not yet reached decisions on many important aspects of monitoring compliance—raising the possibility that it might ultimately issue weak auditing standards without even submitting them for public comment first. Indeed, the department has hinted at such a possibility, by proposing that the standards not require true independence from those who judge compliance: that instead, audits could be conducted by “an internal inspector general or ombudsperson who reports directly to the agency head or to the agency’s governing board” (emphasis added). Anyone answering directly to the agency, though, could easily be pressured to minimize or ignore certain conditions, or prevented from fully examining conditions should the agency not provide sufficient funding.15

As is abundantly clear from the Justice Department’s draft, its 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.”16 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.17

Given the scope of the standards, it was not only appropriate but legally mandated that the department conduct a cost-benefit analysis of the standards’ projected financial impact, which it has done.18 It projected costs not only for its own standards but for their “most obvious alternative”—e.g., the commission’s recommendations—and found that its proposals would require about $544 million per year in ongoing costs, or, it believes, about a tenth of the commission’s. This last assertion is a dubious one, because the cost projections for the commission’s recommendations are deeply questionable, but it does at least suggest the extent to which the department has diluted the commission’s standards. Having also projected the financial benefits of preventing the various kinds of sexual abuse in detention, the department then determined that its proposed standards would be fiscally justified if they reduced the number of victims by only about 3 percent19—something it is so confident they would achieve that the department simply asserts it. On that point, so far as it goes, we more than share the department’s confidence.

The assumptions and valuations the department has made in estimating the financial benefits of preventing prisoner rape are extremely conservative.20 By erring on the side of great caution in its projections of those benefits, and then showing that they would still outweigh costs even if the standards saved only 3 percent of all victims, the department has made it very difficult for anyone to complain about its proposals on the basis of extravagance. But cost-benefit analysis is not meant to be a tool with which bureaucrats and political appointees protect themselves from criticism; it is meant to help them maximize the public good achieved through their regulations. To have used it responsibly for that purpose, though, the department would have had to make some effort to estimate how many inmates would in fact be spared abuse by the standards. Its assertion that the standards could reduce sexual abuse in detention by 3 percent is not good enough. It is clear to anyone who has studied them that they could do that, and much more than that. The question is, how much more?

Since the standards are an effort to codify innovations and best practices of facilities that have already had some success in reducing their rates of sexual abuse, we propose looking more closely at the last BJS study of sexual abuse in adult facilities, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008–09.21 This study from August 2010 was based on surveys administered at 167 prisons and 286 jails. If we take the average rates of abuse in the best half of those facilities, and then imagine that these rates could become the national averages, that would give us an estimate of possible gains that was both realistic and conservative, based on what has already been accomplished across the country.22 The top half of all facilities have made their achievements without explicitly stated standards; there is still plenty of room for them to improve, and every reason to expect that they will once the standards are in place, though probably not as dramatically as the bottom half of facilities. In our opinion, if the department issues strong standards, it wouldn’t be unrealistic to expect that the national rates of abuse could sink to those of the best quarter or even the best tenth of all facilities.

But even if the standards allowed all facilities to do only as well as half do now, they would be saving not 3 percent of the people sexually abused in detention, but over 53 percent.23 This means that had the standards been in place in 2008, instead of the 199,500 people who the department says were abused in adult prisons and jails, there would have been about 93,100. More than 100,000 adults (as well as many thousands of children) would have been saved an experience from which few recover emotionally.

If weak standards would be justified by preventing 3 percent of abuse, strong ones would be resoundingly vindicated by what is in fact possible. The department could do much more than it is now proposing while remaining fiscally responsible. Many of its proposals can be improved at minimal cost. Other necessary measures will carry a significant price, but we do not believe they will be nearly as expensive as the department has estimated. Even if they were, however, they would be warranted by the immense good they will do.

The Justice Department still has work to do on the standards, but President Obama should urge it to move more swiftly. In just the time it has taken to read this article, several more people like Jan Lastocy have been raped behind bars, and more than half of them could have been saved if the standards were in place. The department now estimates that it will finish its process by the end of 2011, a year and a half after its statutory deadline passed. But well over 100,000 inmates have already been sexually abused while in the government’s care since Holder missed his deadline, and if it takes him until the end of the year to issue standards, there will be nearly 200,000 more.

—February 23, 2011