Editorial: The Prison Rape Elimination Act

National Prison Rape Elminiation Commission

Many may turn the other cheek, or even feel the act justified, but there is nothing acceptable about prison rape. Prison rape in the U.S. corrections system is a serious issue that places victims of the assault at great risk of contracting sexually transmitted diseases, including HIV, and hepatitis C virus. In 2007 alone, 60,500 inmates experienced at least one incident of sexual assault by other inmates or staff while incarcerated. This does not include all those who were raped and did not come forward out of fear of negative consequences. This alarming statistic indicates that inmates' health and safety are not being protected.

To address the devastating effects of prison rape, President George W. Bush signed the Prison Rape Elimination Act (PRE A) in 2003. This legislation established a set of guidelines for preventing and addressing rape in prisons, data collection requirements, and grant funding. Under PRE A, a bipartisan panel called the National Prison Rape Elimination Commission (NPREC ) was formed to conduct research on how best to prevent, report, and respond to prison rape. This research was featured in a 2009 report outlining several recommendations regarding rape prevention and response planning, including training prison staff in ways they can help prevent and respond to cases of sexual assault. The report also recommends methods to ensure that all allegations of sexual victimization are fully investigated.

Although the report recommends a variety of improvements to national standards for addressing prison rape, it falls short in areas necessary to protect inmates adequately. This is especially true for those at most risk of sexual assault.

The training and education recommendations featured in the NPREC report are rather general. For example, they do not outline any specific information based on sexual orientation or gender identity -- two issues that cannot be ignored when addressing sexual assault in prisons.

Studies show that inmates who are gay or perceived to be gay, transgender, or gender nonconforming, are at high risk of sexual assault in prisons. One study conducted by Wooden and Parker found that 41% of gay men are sexually assaulted in prison, compared with 9% of heterosexual men. The Human Rights Watch also lists several characteristics that place individuals at increased risk of sexual assault, including youth, small size, being gay, and possessing "feminine characteristics." Since lesbian, gay, bisexual, and transgender (LGBT ) people are particularly vulnerable to sexual abuse, staff must receive appropriate training that addresses LGBT-specific issues.

Sexual abuse committed by staff members of the opposite sex is also a great concern, and many inmates report sexual assault at the hands of prison staff. NPREC advised against staff viewing or supervising inmates of the opposite sex who are nude or performing bodily functions. Although this strategy offers some protection to inmates, it fails to address same-sex abuse committed by staff. Furthermore, the supervision standards do not even begin to address the needs of transgender or gender-nonconforming inmates, who are also at high-risk of sexual assault in prisons.

The NPREC report was submitted to U.S. Attorney General Eric Holder for review. In February 2011, Attorney General Holder released a new report with a much weakened set of federal guidelines to respond to prison rape. Many of the report's recommendations were watered down in Holder's new proposal. For example, the NPREC report advised that correctional facilities be monitored by independent auditors, to ensure they follow the proposed standards. Holder did not adopt this requirement, however, and omitting it jeopardizes NPREC 's standards from being enforced and correctional facilities from adhering to them.

The new report has been especially criticized for allowing cross-gender pat-downs. This completely ignores the potential for continued abuse from correctional facility staff.

Furthermore, the new report has also been criticized for the exclusion of immigration detention facilities. This is especially problematic since immigration detention facilities are known for their poor living conditions. According to a New York Times article in 2008, nine out of 66 people who died in a detention facility died from HIV-related complications, often because they were denied treatment. Removing immigration detention facilities from the NPREC 's standards undermines HIV prevention efforts and further compromises inmates' overall health and safety.

From a legal standpoint, inmates have certain rights that are protected under the U.S. Constitution. It is arguable that current practices are violating inmates' health and safety. According to PRE A, "the deliberate indifference to the substantial risk of sexual assault violates inmates' rights under the Cruel and Unusual Punishment Clause of the Eighth Amendment." It is therefore essential that NPREC 's standards are quickly adopted, and not weakened. In fact, its recommendations could be bolstered to improve protections for the most vulnerable inmates.

PREA is an important step in reducing the rate of prison rape and protecting the health and well-being of inmates. The Department of Justice estimates that final recommendations for rape prevention will be published later this year. It remains to be seen, however, how far the standards will actually go toward protecting inmates from sexual assault.