A Muted Effort to Reduce Prison Rape

Attorney General Eric Holder’s weakened plan to stop rape in prison disappoints advocates.

Our country’s shoulder-shrugging acceptance of rape in prisons has made it to the U.S. Department of Justice. Last week, the public comment period on new federal standards to eliminate sexual assault in prisons closed. The standards, released by the Justice Department in February, fall far short of the tools needed to confront the pervasive problem.

The standards were adapted from those recommended by the National Prison Rape Elimination Commission, but the Justice Department is set to implement a diluted version. Specifically, Attorney General Eric Holder’s counterproposal to the commission’s recommendations doesn’t cover immigration facilities and puts tight restrictions on inmates who report rape. Most strikingly, it eliminates the requirement that prisons actually enforce the standards; they’re only required to have a plan to eliminate rape. And if they don’t implement their plan? They will only be required to initiate another plan.

It’s worth noting that this debate is unfolding in the nation with the highest incarceration rate in the world, where 216,600 inmates were sexually abused in 2008 in prisons, jails, and juvenile detention centers. That’s nearly 600 people a day, or 25 an hour. Even that tally, from the Bureau of Justice Statistics, is conservative because it counts only abused people, not incidences of abuse. Perpetrators of these assaults include both prison staff and other inmates, both men and women. Beyond rape, abuse manifests as coerced sex, unwanted touching, sexual exploitation, voyeurism, and demeaning verbal harassment.

While some facilities have successfully reduced rape, many others lag behind. Among 7,444 official allegations of abuse in 2008, only 931 were substantiated, according to the Bureau of Justice Statistics; laughably low numbers. Even in confirmed cases of abuse, a mere 3 percent of offending staff members were charged, indicted, or convicted. Five times as many — 15 percent — actually kept their jobs. For individuals living alongside their abusers, the trauma can become exponential. And that trauma doesn’t stay in prison. Nearly all abused inmates will be released back into their communities without needed support.

The U.S. House and Senate took unprecedented action to address the problem in 2003, when each unanimously passed the National Prison Rape Elimination Act. It was the first federal action to address rape in prisons. The law created the commission to develop standards on the elimination of prison rape. It drew from a host of stakeholders — advocates, wardens, trade associations, former inmates — who advised on training, reporting, data collection, medical care, and mental health. The standards will require facilities to implement plans that help prisoners report abuse, deal with perpetrators, and provide victim services.

The commission released its standards in June 2009 and Holder had one year to respond. He missed the deadline by eight months. While Holder has been criticized, Sharon Brett, who helped draft the commission’s standards in her then-position with the Vera Institute for Justice, thinks the delay may be with good reason. “Many of the proposed standards were controversial, envelope-pushing standards,” Brett says. “Many of them were that way deliberately, as an attempt to push the field forward.” The reforms would likely also cost money, and the law explicitly requires the standards to put no substantial financial burden on facilities.

Holder affirmed a great deal of the commission’s recommendations, and he even strengthened others. For example, the Justice Department proposes, through a separate rule-making process, to remove the ban on using funds from the Victims of Crime Act for “treatment and rehabilitation services for incarcerated victims of sexual abuse.” This means that, as David Kaiser and Lovisa Stannow writing in The New York Review of Books point out, community rape crisis centers will be much more able to serve abused inmates. Also, the Justice Department proposed a standard about housing transgender and intersex inmates, who are probably most in danger of being raped, particularly when male-to-female inmates are placed in male prisons. Under the new standard, prisons will be required to consider housing for these inmates on a case-by-case basis to ensure the safest possible placement.

During the comment period, the Justice Department also asked for feedback about ensuring the safety of juveniles in adult facilities, which the commission had not addressed. Jon H. of Perrysburg, Ohio, was incarcerated just after his 18th birthday in the Handlon Michigan Training Unit in 1990. Jon says that he felt “threatened on several different levels. … While I had been in some tight spots in my life, I never had felt the need to be constantly aware of my surroundings as I did there. There were sexual predators, prevalent racism, and gangs everywhere.” (He asked that his full name not be used.) Rather than seek safety through the facility’s support systems, Jon felt he was on his own.

On balance, however, Holder’s revisions significantly undercut the efforts to eliminate prison rape. Key among these is the Justice Department exemption of immigration facilities from the standards. (The commission had classified them as within its mandate.) By not covering immigration facilities, the Justice Department rejects an opportunity to increase the safety of people made vulnerable by language barriers, minimal facility transparency, and the lack of a right to an attorney.

The Justice Department also recommends reporting requirements for raped inmates that are fantastically unrealistic. Inmates would be obliged to report abuse within 20 days of the incident, or apply for a 90-day extension if they can document trauma. Such a requirement doesn’t account for the emotional ordeal, and sometimes ongoing physical threat, that inmates experience in the wake of abuse. In comparison, the commission put no limit on the time between an incident and report. Its standards explicitly state that a report triggers administrative responsibilities “regardless of the length of time that has passed between the abuse and the report.” At the same time, the Justice Department’s 20-day minimum is briefer than the existing limit in 18 states. This means that the policy could actually increase restriction on reporting rape for many inmates. That’s certainly not within the spirit of the original law.

In a further gutting of the commission’s standards, the Justice Department eliminates enforcement mechanisms. While the department specifies that an internal prison auditor must be “separate from [the prison’s] normal chain of command,” it’s not an ideal level of separation. The mere presence of an auditor within the prison could diminish inmates’ faith in the reporting process. If facilities fail to implement a plan for reporting abuse and punishing abusers, they have only to implement a self-written backup plan. Should both plans be inadequate or unimplemented, then — nothing. There is no penalty for failure to enforce the standards.

An unlikely coalition that includes Christian advocates, the American Civil Liberties Union, the Church of Scientology, and the Open Society Institute is urging the Justice Department to strengthen the guidelines. The department estimates that it’ll publish the final rule by the end of the year. “Whatever the DOJ settles on, the most important thing is that the standards are given some teeth,” Brett says. “Facilities need incentives to implement these standards. For prison sexual abuse to truly be reduced and prevented, the standards should be more than merely aspirational; they must be mandatory.”