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Ending Prison Rape

Progress toward ending prison rape has been excruciatingly slow.

Over 30 years ago, activist Russell Smith founded People Organized to Stop Rape of Imprisoned Persons, which later, under the leadership of Stephen Donaldson, became the organization Stop Prisoner Rape. Donaldson, who had been gang-raped in the 1970s when he was jailed for protesting the Vietnam War, was a tireless campaigner on behalf of abused prisoners.  His courage in recounting his own story of victimization brought unprecedented media attention to the subject.

In the 1980s and 1990s, several academic studies were published documenting high rates of both prisoner-on-prisoner sexual assault and staff-on-prisoner abuse.  As the empirical research mounted, evidence of unaddressed rape in prison could no longer be dismissed as anecdotal.

Human Rights Watch published a landmark report on prison rape in 2001 that received front-page coverage in The New York Times. Titled “No Escape,” it was based on firsthand testimony from over 200 prisoners, as well as a state-by-state survey of prison authorities, and it led both The New York Times and The Washington Post to run editorials calling for reform.  Congressman Frank R. Wolf quoted from the report during testimony before the Senate Judiciary Committee.

It was in 2003 that reform efforts seemed finally to come to fruition.  The Prison Rape Elimination Act (PREA), sponsored by a bipartisan congressional coalition, was passed unanimously by both the House and Senate.  When President George W. Bush signed the bill, on September 4, 2003, anti-rape advocates believed that an important milestone had been passed.

Rape Prevention Standards, Finally

Fast-forward six years.  After holding public hearings, collecting numerous testimonies, and undertaking extensive research, the commission established under PREA proposed a set of national standards to eliminate sexual abuse in prison.  Although the standards were both feasible and fair, the Justice Department, granted final responsibility for the law’s implementation, failed to adopt them.  Instead, it spent more than two years doing additional research, rewriting the proposed standards, and then revising its own draft.

Last Thursday—nearly nine years after PREA’s passage—the Justice Department finally issued national standards on prison rape.  The new standards are not perfect, but, as Attorney General Eric Holder said in a press release that was issued along with them, they “represent a critical step forward.”

The new standards focus on preventing, detecting, and responding to the sexual abuse of prisoners.  They require prisons, jails, and other detention facilities to maintain a zero-tolerance policy toward sexual abuse, which includes screening prisoners for the risk of abuse, using the resulting information to inform decisions about housing and programs, and training correctional staff regarding their responsibility to prevent, recognize, and respond to sexual abuse.

The new standards also require facilities to make prisoners aware of how to report sexual abuse, and to develop policies to ensure that prisoners who report abuse do not face retaliation.

Importantly, the standards mandate that facilities provide timely medical and mental- health care to victims of sexual abuse, and establish protocols for preserving evidence after incidents of abuse.  They also ensure that facilities will maintain records of abuse and use those records to inform future prevention efforts.

The standards are immediately binding in all federal prison facilities.  While they are not mandatory in state prisons and jails, states that do not implement them will lose a portion of their federal funding.

Real Progress, Hopefully

A new report by the Bureau of Justice Statistics, released the same day as the federal prison standards, underscores why the standards are so important.  Based on a 2008 survey of 17,738 former state prisoners, the report said that one in ten prisoners had described at least one incident of sexual abuse while incarcerated.  The report also found that more than a quarter of victims of prisoner-on-prisoner abuse had been physically injured, and approximately 46 percent had been victimized by more than one perpetrator.

Rates of victimization were especially high for gay and bisexual prisoners: over a third of them had suffered sexual abuse while incarcerated.

These statistics are profoundly disturbing.  While the poor conditions that prevail in U.S. prisons and jails undercut the promise of rehabilitation, the likelihood of rape makes a mockery of the idea.  It is long past time for prisoners to be able to serve their time behind bars without fear of sexual abuse.

The elimination of prison rape, the stated purpose of the 2003 law, is a worthy and necessary goal. If the Justice Department’s new standards bring the country substantially closer to reaching that goal, they may even be worth the wait.

Joanne Mariner is the director of Hunter College’s Human Rights Program.  She is an expert on human rights, counterterrorism, and international humanitarian law. She is the author of the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons

This column previously appeared on Justia’s Verdict.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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