It’s Time to End the Epidemic of Prisoner Rape

When Bryson Martel was sentenced to six years in prison for check fraud, he was 28 years old, weighed 123 pounds, and was scared to death. He had good reason to be afraid. Within weeks of his arrival, he was beaten and raped at knifepoint. Martel reported the assault to staff, who moved him to “protective custody” – into a cell with a known rapist.

Days later, he was raped again.

Prison authorities should have taken particular care to protect Martel’s safety, knowing that he was a target for abuse. They didn’t, and the assaults continued. Over the course of nine months, Martel estimates he was raped by 27 different people. Ultimately, he was infected with HIV, and now has full-blown AIDS.

“I know I had to pay the price for what I did, but I’ve paid double,” Martel says. “That check I wrote cost me my life.”

Martel’s experience is far from unique. At least 60,500 federal and state prison inmates were sexually abused at their current facility in the preceding year alone, according to a 2007 nationwide study by the Bureau of Justice Statistics (BJS). A similar study revealed that nearly 25,000 county jail detainees were sexually abused in the prior six months. This violence is not limited to adult prisoners – in January, another BJS report found that almost one in eight youth in juvenile detention reported being sexually abused in the preceding year; at the worst facilities, one in three kids were victimized.

No matter where it occurs, sexual violence shatters lives. Unlike rape survivors in the community, however, survivors behind bars often have no choice but to suffer in silence. Prison mental health counselors rarely have expertise in sexual assault, and they cannot provide confidential services. Because of the danger of being labeled a “snitch,” fear of retaliation, and lack of trust in corrections officials, most incarcerated survivors are too afraid to report an assault and so avoid the limited counseling available from prison staff. This, in turn, leads to long-term emotional trauma and untreated medical conditions.

Women behind bars, who may become pregnant from rapes committed by male staff, lack access to the full range of reproductive health options. Many victimized inmates are infected with HIV and other STDs, which are far more prevalent among prisoners than in the community at large. Yet corrections facilities often fail to provide proper screening and treatment for STDs. In short, sexual violence behind bars is a public health and a human rights crisis.

Disturbingly, many corrections officials continue to deny that sexual abuse is a problem in their facilities. Such indifference is reinforced by misguided public perceptions that prisoner rape is inevitable, or, even worse, a joke. “Guards knew what was happening and looked the other way,” says Troy Erik Isaac, who was raped at age 12 in a California juvenile facility. “People would take advantage of me and I just didn’t know how to get help.”

Officials are required to protect inmates in their charge. Nothing could be more grotesquely opposed to this responsibility than sexually abusing them. Yet the BJS reports consistently showed that staff –-not other inmates-–were responsible for most sexual victimization. Even more appalling, staff sexual abuse is particularly common in juvenile facilities, where the BJS found that corrections staff perpetrated more than 80 percent of the reported abuse.

Survivor Chino Hardin describes her experience in a New York juvenile facility: “The corrections officers allowed certain boys to enter the cells of girls that the officers did not like or said were not behaving well. I often heard girls screaming in fear at two or three o’clock in the morning. In my one month there, three different girls told me they were raped by boys who corrections officers allowed into their cells. I was terrified and did my best to keep a low profile so that I would not be targeted.”

Hardin’s story is heartbreakingly common, yet prisoner rape is preventable – it is not an unavoidable part of incarceration. While some facilities are plagued by sexual abuse, others are virtually free from it. Stopping sexual violence in detention is a matter of committed leadership, strong policies, and sound practices. For example, facilities that consistently separate detainees who are vulnerable to abuse (such as gay and transgender inmates) from likely predators are able to reduce sexual violence dramatically. Safe and well-run facilities make it clear to staff and inmates – in policy as well as practice – that sexual abuse simply will not be tolerated.

The Constitution bars corrections agencies from inflicting cruel and unusual punishment, and the Supreme Court has recognized that prisoner rape may amount to such a constitutional violation. In addition, rape and sexual abuse is illegal throughout the country. Nevertheless, prisoners and advocates face tremendous barriers when seeking to hold officials accountable for failing to protect inmates. For example, federal law requires inmates who have been sexually assaulted while incarcerated to navigate the full internal grievance process at their facility before going to court – no matter how complicated, unrealistic, or illogical that process may be. Any misstep and a judge must dismiss the lawsuit. The courts play a meaningful role in holding public institutions accountable for civil rights violations – absent this oversight, impunity reigns and prisoner rape flourishes.

But now we have a tool that could significantly improve safety behind bars. Last June, the National Prison Rape Elimination Commission issued recommended standards to address sexual abuse in all forms of detention. The federal Prison Rape Elimination Act of 2003, passed by a unanimous Congress, created the Commission and mandated the drafting of the standards.

Developing the standards was no slap-dash effort. They are the result of almost six years of deliberation, public hearings, and review. Corrections officials, advocates, legal experts, and survivors of prisoner rape all contributed to the process. The final recommendations represent a hard-reached compromise among these different stakeholders.

Bold, yet basic, these common-sense measures have the potential to become the most powerful tool so far in the effort to end sexual abuse in detention. The standards address core issues such as staff training, detainee education, housing, investigations, and medical and mental health care in the aftermath of an assault. They make it clear that prisoner rape can be prevented, and that there are straightforward steps prisons and jails can take to end this type of violence. The standards draw on best practices already in use around the country and some corrections agencies are working to implement them even before they are required to do so.

The Prison Rape Elimination Act gave the Attorney General one year from the release of the standards to review and codify them as federal regulations, making them binding on all detention facilities in the country. But after well over nine months, it is clear that Attorney General Eric Holder will not make the deadline of June 23, 2010. It may be another year – or more – before Holder releases the final guidelines. In that time, thousands and thousands more adults and children will be raped behind bars.

Some corrections leaders are happy to delay the implementation of the standards. Alarmingly, leading corrections associations are challenging key provisions, including requirements that cross-gender supervision be limited in areas where inmates are nude and that all facilities undergo regular external audits. Such measures – already in place in the rest of the developed world – could dramatically lower the levels of prisoner rape in the United States. According to opponents, however, they are too costly.

In response to such criticism, the Justice Department has commissioned a cost projection study of the standards that is both biased and delaying the review process. The study is not a cost-benefit analysis; it fails to account for the enormous benefits of the standards and is based solely on estimated expenses provided by corrections administrators. Corrections officials who oppose the standards have an obvious incentive to exaggerate their anticipated costs — and so do officials who support the standards, since they also want and need more funding than is usually appropriated.

The argument that it is too expensive to stop prisoner rape is not only morally questionable, but also incorrect. In reality, any prison or jail that has basic policies and practices in place to protect its detainees, as all detention facilities are legally required to do, will not incur substantial costs by complying with the standards.Sexual abuse in detention costs states millions of dollars every year in prisoner abuse lawsuits alone. When victims require medical care, as they often do, corrections systems must cover the cost. Inmates who are traumatized while incarcerated suffer long-term harm that often prevents them from becoming self-sufficient members of society upon release. Making the standards binding on corrections agencies will reduce these costs – and it’s simply the right thing to do.

In an important step forward, the Department of Justice opened a public comment period on March 10, 2010. The Department is seeking input on the standards generally, and has posed three specific questions regarding the terminology, the costs of implementation, and compliance requirements. If history is any guide, corrections officials and their lobbyists will weigh in en masse, opposing the standards. During the National Prison Rape Elimination Commission’s public comment period in 2008, on a draft version of the standards, more than 100 corrections departments and associations submitted comments.

Right now, supportive public comments are vital to ensuring that the Attorney General promulgates strong standards.

Just Detention International has mobilized a coalition to demonstrate the strong support for the standards that exists across U.S. society — including among corrections officials who recognize the urgency of ending prisoner rape and understand the importance of the standards. Members of the Raising the Bar for Justice and Safety Coalition are submitting comments urging the Attorney General to enact the standards fully and quickly. Anyone who cares about ending sexual abuse behind bars can send letters in support of the standards to Justice Department.

Survivors of sexual violence know first-hand about the urgent need for the standards. Kimberly Yates was raped repeatedly by an officer at a federal detention center. The officer who assaulted her had previously raped at least four other women – and some of them had told the authorities, but nothing was done. “If the national standards had been in place, I might never have been raped,” says Yates. “How many women could the Bureau of Prisons have spared if they had taken notice of what they were told?”

The effort to end prisoner rape is at a watershed moment. Sexual abuse behind bars is a serious human rights violation and an affront to our society’s most basic values. With the power to stop this abuse, there is no excuse for dawdling. It’s time for Attorney General Holder and President Obama to demonstrate their commitment to ending this shocking violence by codifying the national standards.