Rape is violent, destructive, and a crime—no less so when the victim is incarcerated. Until recently, however, the public viewed sexual abuse as an inevitable feature of confinement. Even as courts and human rights standards increasingly confirmed that prisoners have the same fundamental rights to safety, dignity, and justice as individuals living at liberty in the community, vulnerable men, women, and children continued to be sexually victimized by other prisoners and corrections staff. Tolerance of sexual abuse of prisoners in the government’s custody is totally incompatible with American values.
Congress affirmed the duty to protect incarcerated individuals from sexual abuse by unanimously enacting the Prison Rape Elimination Act of 2003. The Act called for the creation of a national Commission to study the causes and consequences of sexual abuse in confinement and to develop standards for correctional facilities nationwide that would set in motion a process once considered impossible: the elimination of prison rape.
This executive summary briefly discusses the Commission’s nine findings on the problems of sexual abuse in confinement and select policies and practices that must be mandatory everywhere to remedy these problems. It also covers recommendations about what leaders in government outside the corrections profession can do to support solutions. The findings are discussed in detail and thoroughly cited in the body of the report, where readers will also find information about all of the Commission’s standards. Full text of the standards is included as an appendix to the report.
In the years leading up to the passage of PREA and since then, corrections leaders and their staff have developed and implemented policies and practices to begin to prevent sexual abuse and also to better respond to victims and hold perpetrators accountable when prevention fails. They have been aided by a range of robust Federal initiatives, support from professional corrections associations, and advocates who have vocally condemned sexual abuse in confinement. The landscape is changing. Training curricula for corrections staff across the country now include information about sexual abuse in confinement and how to prevent it. Some agencies and facilities have formed sexual assault response teams to revolutionize their responses to sexual abuse. Despite these and other achievements, much remains to be done, especially in correctional environments in which efforts to address the problem of sexual abuse have been slow to start or have stalled. Protection from sexual abuse should not depend on where someone is incarcerated or supervised; it should be the baseline everywhere.
More than 7.3 million Americans are confined in U.S. correctional facilities or supervised in the community, at a cost of more than $68 billion annually. Given our country’s enormous investment in corrections, we should ensure that these environments are as safe and productive as they can be. Sexual abuse undermines those goals. It makes correctional environments more dangerous for staff as well as prisoners, consumes scarce resources, and undermines rehabilitation. It also carries the potential to devastate the lives of victims. The many interrelated consequences of sexual abuse for individuals and society are difficult to pinpoint and nearly impossible to quantify, but they are powerfully captured in individual accounts of abuse and its impact.
Former prisoner Necole Brown told the Commission, “I continue to contend with flashbacks of what this correctional officer did to me and the guilt, shame, and rage that comes with having been sexually violated for so many years. I felt lost for a very long time struggling with this. . . . I still struggle with the memories of this ordeal and take it out on friends and family who are trying to be there for me now.”
Air Force veteran Tom Cahill, who was arrested and detained for just a single night in a San Antonio jail, recalled the lasting effects of being gang-raped and beaten by other inmates. “I’ve been hospitalized more times than I can count and I didn’t pay for those hospitalizations, the tax payers paid. My career as a journalist and photographer was completely derailed. . . . For the past two decades, I’ve received a non-service connected security pension from the Veteran’s Administration at the cost of about $200,000 in connection with the only major trauma I’ve ever suffered, the rape.”
Since forming, the Commission has convened public hearings and expert committees, conducted a needs assessment that involved site visits to 11 diverse correctional facilities, and thoroughly reviewed the relevant literature. Throughout the process, corrections leaders, survivors of sexual abuse, health care providers, researchers, legal experts, advocates, and academics shared their knowledge, experiences, and insights about why sexual abuse occurs, under what circumstances, and how to protect people.
The Commission used what it learned about the nature and causes of sexual abuse in correctional settings and its impact to develop mandatory standards to prevent, detect, and punish sexual abuse. Two 60-day periods of public comment were critical junctures in the creation of the standards. The Commission tailored the standards to reflect the full range of correctional environments across the country: adult prisons and jails; lockups and other short-term holding centers; facilities for juveniles; immigration detention sites; and probation, parole, and other forms of community corrections. Many standards reflect what corrections professionals recognize as good practices—and are already operational in some places—or are requirements under existing laws. If correctional agencies incur new costs to comply with the Commission’s standards, those costs are not substantial compared to what these agencies currently spend and are necessary to fulfill the requirements of PREA.
The Eighth Amendment of the U.S. Constitution forbids cruel and unusual punishment—a ban that requires corrections staff to take reasonable steps to protect individuals in their custody from sexual abuse whenever the threat is known or should have been apparent. In Farmer v. Brennan, the Supreme Court ruled unanimously that deliberate indifference to the substantial risk of sexual abuse violates an incarcerated individual’s rights under the Eighth Amendment. As the Court so aptly stated, sexual abuse is “not part of the penalty that criminal offenders pay for their offenses against society.”
Protecting prisoners from sexual abuse remains a challenge in correctional facilities across the country. Too often, in what should be secure environments, men, women, and children are raped or abused by other incarcerated individuals and corrections staff.
Although the sexual abuse of prisoners is as old as prisons themselves, efforts to understand the scale and scope of the problem are relatively new. The first study specifically of prevalence—
examining abuse in the Philadelphia jail system—was published in 1968. The most rigorous research produced since then—mainly of sexual abuse among incarcerated men—has yielded prevalence rates in the mid-to-high teens, but none of these are national studies.
With an explicit mandate from Congress under PREA, the Bureau of Justice Statistics (BJS) launched a groundbreaking effort to produce national incidence rates of sexual abuse by directly surveying prisoners. The survey results may not capture the full extent of the problem, but they confirm the urgent need for reform. The Commission recommends that BJS continue this important work and that Congress provide the necessary funding.
BJS conducted the first wave of surveys in 2007 in a random sample of 146 State and Federal prisons and 282 local jails. A total of 63,817 incarcerated individuals completed surveys, providing the most comprehensive snapshot of sexual abuse in prisons and jails to date. Four-and-a-half percent of prisoners surveyed reported experiencing sexual abuse one or more times during the 12 months preceding the survey or over their term of incarceration if they had been confined in that facility for less than 12 months. Extrapolated to the national prison population, an estimated 60,500 State and Federal prisoners were sexually abused during that 12-month period.
Although sexual abuse of prisoners is widespread, rates vary across facilities. For example, 10 facilities had comparatively high rates, between 9.3 and 15.7 percent, whereas in six of the facilities no one reported abuse during that time period. More prisoners reported abuse by staff than abuse by other prisoners: 2.9 percent of respondents compared with about 2 percent. (Some prisoners reported abuse by other inmates and staff.)
The rate of sexual abuse in jails appears to be slightly lower: 3.2 percent of inmates surveyed reported that they had been sexually abused at least once during the prior 6 months or since they had been confined in that facility. Again, reports of abuse by staff were more common than reports of abuse by other incarcerated persons: 2 percent of respondents compared with 1.6 percent. BJS has not surveyed individuals in halfway houses, treatment facilities, and other community-based correctional settings or individuals on probation or parole.
As the Commission’s report goes to press, BJS is conducting the first nationally representative survey of sexual abuse among adjudicated youth in residential juvenile facilities. In a preparatory pilot study, BJS interviewed 645 youth in nine facilities—sites that volunteered to participate in the pilot and were selected based on convenience. Nearly one out of every five youth surveyed (19.7 percent) reported at least one nonconsensual sexual contact during the preceding 12 months or since they had arrived at the facility. Youth were just as likely to report abuse by staff as they were to report nonconsensual sexual encounters with their peers in the facility. These preliminary results are not necessarily an indicator of rates nationally because more than a quarter of the youth interviewed had been adjudicated for perpetrating a sexual assault, compared to less than 10 percent of youth in residential placement nationally.
In conducting this research, BJS has taken advantage of evolving survey technology, using laptop computers with touch screens and an accompanying recorded narration to guide respondents—especially helpful for individuals with limited reading abilities. This method increases the likelihood of capturing experiences of sexual abuse among individuals who would be afraid or ashamed to identify as a victim in face-to-face interviews. Prisoners still must believe strangers’ assurances of confidentiality,
however—a huge barrier for some—so the likelihood of underreporting still exists. Researchers also recognize that prevalence levels can be artificially elevated by false allegations. BJS designs its surveys to ask questions of prisoners in several different ways and also uses analytic tools to assess data for false reports.
Sexual abuse is not an inevitable feature of incarceration. Leadership matters because corrections administrators can create a culture within facilities that promotes safety instead of one that tolerates abuse.
In 2006, the Urban Institute surveyed 45 State departments of corrections about their policies and practices on preventing sexual abuse and conducted in-depth case studies in several States. Not surprisingly, the surveys and case studies identified strong leadership as essential to creating the kind of institutional culture necessary to eliminate sexual abuse in correctional settings. The Commission has defined clear standards that corrections administrators can and must champion to prevent sexual abuse and make facilities safer for everyone—reforms in the underlying culture, hiring and promotion, and training and supervision that vanguard members of the profession are already implementing.
To begin with, every correctional agency must have a written policy mandating zero tolerance for all forms of sexual abuse in all settings, whether it is operated by the government or by a private company working under contract with the government. Although not mandated under the standards, collective bargaining agreements should feature an explicit commitment from unions and their members to support a zero-
tolerance approach to sexual abuse. Without it, there is little common ground upon which to build when negotiating the many specific policies and procedures to prevent and respond to sexual abuse.
Ultimately, the culture of an institution is shaped by people not by policies. Leaders need the right staff to create a genuine culture of zero tolerance. In particular, administrators must thoroughly screen all new job applicants and make promotions contingent on a similarly careful review of each staff member’s behavior on the job to prevent hiring, retaining, or promoting anyone who has engaged in sexual abuse. Conducting criminal background checks, making efforts to obtain relevant information from past employers to the extent permissible under law, and questioning applicants about past misconduct must be mandatory. Rigorous vetting is not enough, however. Correctional agencies urgently need support in developing competitive compensation and benefits packages so that they can recruit and retain appropriate staff. Equally important, administrators should support and promote staff that demonstrate a commitment to preventing sexual abuse.
Even qualified individuals need training on sexual abuse to fulfill their job responsibilities. Only through training can staff understand the dynamics of sexual abuse in a correctional environment, be well informed about the agency’s policies, and acquire the knowledge and skills necessary to protect prisoners from abuse and respond appropriately when abuse does occur. The Commission recognizes the corrections profession’s investment to date in training staff and the fruits of those efforts. The Commission designed its standards to ensure that no facility is left behind and that training everywhere meets certain basic criteria. Additionally, the Commission recommends that the National Institute of Corrections continue the training and technical assistance it has provided in the years leading up to PREA and since then and that Congress provide funding for this purpose.
The corollary to staff training is a strong educational program for prisoners about their right to be safe and the facility’s commitment to holding all perpetrators of sexual abuse—staff and inmates—accountable.
Facilities must convey at least basic information during intake in languages and other formats accessible to all prisoners. Armed with this information, prisoners are better able to protect themselves and seek help from staff before abuse occurs.
Supervision is the core practice of any correctional agency, and it must be carried out in ways that protect individuals from sexual abuse. The Commission believes it is possible to meet this standard in any facility, regardless of design, through appropriate deployment of staff. Direct supervision, which features interaction between staff and prisoners, should be used wherever possible because it is the most effective mode of supervision for preventing sexual abuse and other types of violence and disorder. In addition, correctional facilities must assess, at least annually, the need for and feasibility of incorporating additional monitoring equipment. Technologies are not replacements for skilled and committed security officers, but they can greatly improve what good officers are able to accomplish. The Commission recommends that the National Institute of Corrections help correctional agencies advance their use of monitoring technologies and that Congress fund this assistance.
Cross-gender supervision is an area in which the Commission has set clear standards. Some of the widespread abuse that occurred in women’s prisons across Michigan in the 1990s was facilitated by rules that required officers, including men, to meet a daily quota of pat-down searches for weapons, drugs, or other contraband. Physical searches are necessary security procedures. The potential for abuse is heightened, however, when staff of the opposite gender conduct them. In the Commission’s view, the risks are present whether the officers are female or male. Historically, few women worked in corrections, but this is rapidly changing.
The Commission understands that cross-gender supervision can have benefits for incarcerated persons and staff. The Commission’s standard on this issue is not intended to discourage the practice generally or to reduce employment opportunities for men or women. However, strict limits on cross-gender searches and the viewing of prisoners of the opposite gender who are nude or performing bodily functions are necessary because of the inherently personal nature of such encounters. Court decisions have recognized that both male and female prisoners retain some rights to privacy, especially in searches of their bodies and in being observed in states of undress by staff of the opposite gender.
With proper leadership practices and clear policies, corrections administrators can foster a culture that promotes safety. The Commission’s standards are intended to support these efforts. In addition, the Commission recommends that the Bureau of Justice Assistance continue to provide grants to diverse correctional agencies to support the development of innovative practices and programs and that Congress fund this important work as well as continued research by the National Institute of Justice on the nature of sexual abuse in correctional facilities.
Certain individuals are more at risk of sexual abuse than others. Corrections administrators must routinely do more to identify those who are vulnerable and protect them in ways that do not leave them isolated and without access to rehabilitative programming.
Preventing sexual abuse depends in part on risk assessment. Unfortunately, knowledge in this area is still limited. Research to date has focused on vulnerability to abuse by other prisoners, rather than by staff, and on the risks for men and boys rather than for women and girls. This caveat aside, some risk factors do stand out.
Youth, small stature, and lack of experience in correctional facilities appear to increase the risk of sexual abuse by other prisoners. So does having a mental disability or serious mental illness. Research on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-heterosexual orientations and transgender individuals. A 1982 study in a medium-security men’s facility in California, for example, found the rate of abuse was much higher among gay prisoners (41 percent) than heterosexual prisoners (9 percent). A history of sexual victimization, either in the community or in the facility in which the person is incarcerated, tends to make people more vulnerable to subsequent sexual abuse.
Unless facility managers and administrators take decisive steps to protect these individuals, they may be forced to live in close proximity or even in the same cell with potential assailants. When Alexis Giraldo was sentenced to serve time in the California correctional system, her male-to-female transgender identity and appearance as a woman triggered a recommendation to place her in a facility with higher concentrations of transgender prisoners, where she might be safer. Yet officials ignored the recommendation and sent her to Folsom Prison in 2006, where she was raped and beaten by two different cellmates.
Some correctional agencies, including the Federal Bureau of Prisons and the California Department of Corrections and Rehabilitation, now use written instruments to screen all incoming prisoners specifically for risk of sexual assault. Evidence-based screening must become routine nationwide, replacing the subjective assessments that many facilities still rely on and filling a vacuum in facilities where no targeted risk assessments are conducted. The Commission’s standards in this area accelerate progress toward this goal by setting baseline requirements for when and how to screen prisoners for risk of being a victim or perpetrator of sexual abuse. To be effective, the results of these screenings must drive decisions about housing and programming. Courts have commented specifically on the obligation of correctional agencies to gather and use screening information to protect prisoners from abuse.
The Commission is concerned that correctional facilities may rely on protective custody and other forms of segregation (isolation or solitary confinement) as a default form of protection. And the Commission learned that desperate prisoners sometimes seek out segregation to escape attackers. Serving time under these conditions is exceptionally difficult and takes a toll on mental health, particularly if the victim has a prior history of mental illness. Segregation must be a last resort and interim measure only. The Commission also discourages the creation of specialized units for vulnerable groups and specifically prohibits housing prisoners based solely on their sexual orientation or gender identity because it can lead to demoralizing and dangerous labeling.
The Commission is also concerned about the effect of crowding on efforts to protect vulnerable prisoners from sexual abuse. Crowded facilities are harder to supervise, and crowding systemwide makes it difficult to carve out safe spaces for vulnerable prisoners that are less restrictive than segregation. When Timothy Taylor was incarcerated in a Michigan prison, internal assessments suggested that he was likely to be a target of sexual abuse because of his small size—he was five feet tall and 120 pounds—and diminished mental abilities, yet he was placed in a prison dormitory to save bed space for new arrivals. Shortly thereafter, he was sexually assaulted by another prisoner.
According to the Bureau of Justice Statistics, 19 States and the Federal system were operating at more than 100 percent of their highest capacity in 2007. An equal number of States operated at somewhere between 90 and 99 percent of capacity. When facilities operate at or beyond capacity, prisoners also have fewer or no opportunities to participate in education, job training, and other programming. Idleness and the stress of living in crowded conditions often lead to conflict. Meaningful activities will not end sexual abuse, but they are part of the solution. It is critical that lawmakers tackle the problem of overcrowding. If facilities and entire systems are forced to operate beyond capacity and supervision is a pale shadow of what it must be, our best efforts to identify and protect vulnerable individuals will be stymied.
Classification has evolved from little more than ad hoc decisions to an increasingly objective, evidence-based process. Although knowledge about the risk factors associated with sexual abuse is far from complete, corrections administrators can identify and protect many vulnerable individuals from abuse.
Few correctional facilities are subject to the kind of rigorous internal monitoring and external oversight that would reveal why abuse occurs and how to prevent it. Dramatic reductions in sexual abuse depend on both.
The most effective prevention efforts are targeted interventions that reflect where, when, and under what conditions sexual abuse occurs. Sexual abuse incident reviews, as required under the Commission’s standards, produce the kind of information administrators need to deploy staff wisely, safely manage high-risk areas, and develop more effective policies and procedures. A number of State departments of corrections already conduct some type of review.
Correctional agencies also must collect uniform data on these incidents, including at least the data necessary to answer all questions on the most recent version of the Bureau of Justice Statistics Survey on Sexual Violence. In aggregate form, the data can reveal important patterns and trends and must form the basis for corrective action plans that, along with the aggregated data, are released to the public. Transparency is essential.
Even the most rigorous internal monitoring, however, is no substitute for opening up correctional facilities to outside review. The Commission requires detailed, robust audits of its standards by independent auditors at least every 3 years. The auditor must be prequalified through the U.S. Department of Justice to perform audits competently and without bias. The Commission recommends that the National Institute of Corrections design and develop a national training program for auditors and that Congress provide funding specifically for this purpose.
The Commission also supports external oversight beyond the mandatory audits. In particular, the Commission endorses the American Bar Association’s 2006 resolution urging Federal, State, and territorial governments to establish independent public entities to regularly monitor and report on the conditions in correctional facilities operating within their jurisdiction. Oversight by inspectors general, ombudsmen, legislative committees, or other bodies would work hand-in-hand with regular audits of the Commission’s standards.
Courts provide a crucial role, especially when other modes of oversight fail. Civil court cases can spark reforms reaching far beyond the individual plaintiffs to protect other prisoners. The Commission is convinced that the Prison Litigation Reform Act (PLRA) that Congress enacted in 1996 has compromised the regulatory role of the courts and the ability of incarcerated victims of sexual abuse to seek justice in court. Under the PLRA, prisoners’ claims in court will be dismissed unless they have exhausted all “administrative remedies” available to them within the facility.
In testimony to a House Judiciary Subcommittee, Garrett Cunningham recalled, “At first, I didn’t dare tell anyone about the rape. . . . I would have had to file a first prison grievance within 15 days [to begin the process of exhausting the facility’s administrative remedies]. . . . Even if I had known, during those first 15 days, my only thoughts were about suicide and. . . how to get myself into a safe place. . . so I would not be raped again.” The Commission recommends that Congress amend two aspects of the PLRA for victims of sexual abuse: the requirement that prisoners exhaust all internal administrative remedies before their claims can proceed in court and the requirement to prove physical injury to receive compensatory damages, which fails to take into account the very real emotional and psychological injuries that often follow sexual assault. In the meantime, correctional agencies must deem that victims of sexual abuse have exhausted their administrative remedies within 90 days after the abuse is reported—or within 48 hours in emergency situations—regardless of who reports the incident and when it allegedly occurred.
Corrections administrators need robust mechanisms and systems to monitor their facilities, identify problems, and implement reforms. They must apply that discipline internally and accept it from outside. The very nature of correctional environments demands that the government and the public have multiple ways to watch over correctional settings and intervene when individuals are at risk.
Many victims cannot safely and easily report
sexual abuse, and those who speak out often do so to no avail. Reporting procedures must be improved to instill confidence and protect individuals from retaliation without relying on isolation. Investigations must be thorough and competent. Perpetrators must be held accountable through administrative sanctions and criminal prosecution.
Even when prisoners are willing to report abuse, their accounts are not necessarily taken seriously and communicated to appropriate officials within the facility. “When I told one of the guards I trusted how tired I was of putting up with abuse [by other youth in a Hawaii facility], he told me to just ignore it,” Cyryna Pasion told the Commission. According to a 2007 survey of youth in custody by the Texas State Auditor’s Office, 65 percent of juveniles surveyed thought the grievance system did not work.
Changing that dynamic begins by providing easy ways for individuals to report sexual abuse they have experienced or know about, backed up by clear policies requiring staff and administrators to act on every allegation. Although some correctional systems and individual facilities have made great strides in this area in recent years, the Commission’s standards guarantee that all prisoners can easily report abuse, that staff are required to report abuse, and that reports are taken seriously in every facility across the country. A serious response to every report of sexual abuse is also the best way to handle any false allegations.
Victims and witnesses often are bullied into silence and harmed if they speak out. In a letter to the advocacy organization Just Detention International, one prisoner conveyed a chilling threat she received from the male officer who was abusing her: “Remember if you tell anyone anything, you’ll have to look over your shoulder for the rest of your life.” Efforts to promote reporting must be accompanied by policies and protocols to protect victims and witnesses from retaliation. And because some incarcerated individuals will never be comfortable reporting abuse internally, facilities must give prisoners the option of speaking confidentially with a crisis center or other outside agency.
Facilities have a duty to thoroughly investigate every allegation of sexual abuse without delay and to completion, regardless of whether or not the alleged victim cooperates with investigators. Six years after the passage of PREA, many statewide correctional systems and individual facilities now have policies, protocols, and trained staff in place to investigate allegations of sexual abuse. Yet there are still facilities—particularly those that confine juveniles, those under the umbrella of community corrections, and smaller
jails—that lag behind in this crucial area. The Commission’s standard
establishing the duty to investigate is followed by a detailed standard to ensure the quality of investigations. Unless investigations produce compelling evidence, corrections administrators cannot impose discipline, prosecutors will not indict, and juries will not convict abusers.
In particular, when the sexual abuse has occurred recently and the allegation is rape, facilities must offer female and male victims a forensic exam by a specially trained professional. An evaluation of sexual assault nurse examiner (SANE) programs published in 2003 by the National Institute of Justice found that they improve the quality of forensic evidence and increase the ability of law enforcement to collect information, file charges, and prosecute and convict perpetrators while also providing better emergency health care. Correctional facilities must also implement a protocol that dictates how to collect, maintain, and analyze physical evidence and that stipulates the responsibilities of the forensic examiner and other
responders—drawing on “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” created by the Department of Justice in 2004 to improve investigations of sexual abuse in the community. To facilitate the implementation of this standard, the Commission recommends that the Department of Justice adapt the protocol specifically for use in correctional facilities nationwide.
The work of investigating sexual abuse in a correctional environment is complex, requiring skill and sensitivity. According to a report published in 2007 by the National Institute of Corrections, many sexual abuse investigators are so unfamiliar with the dynamics inside a correctional facility that they cannot operate effectively. Because the deficits in some jurisdictions are so great, the Commission’s standard in this area requires facilities to ensure that investigators are trained in up-to-date approaches and specifies certain minimum training requirements. And whenever correctional agencies outsource investigations to local law enforcement agencies, they must attempt to forge a memorandum of understanding with the agency specifying its role and responsibilities. Investigators do not work alone; any report of sexual abuse in a correctional facility must also trigger an immediate response from security staff; forensic, medical, and mental health care practitioners; and the head of the facility. To meet the needs of victims while conducting a thorough investigation, these professionals must coordinate their efforts.
No national data have been collected on how often correctional facilities investigate reported abuses, and there is no body of research describing the quality of those investigations. But correctional facilities substantiate allegations of sexual abuse at very low rates. According to the Bureau of Justice Statistics, facilities substantiated just 17 percent of all allegations of sexual violence, misconduct, and harassment investigated in 2006. In 29 percent of the alleged incidents, investigators concluded that sexual abuse did not occur. But in the majority of allegations (55 percent) investigators could not determine whether or not the abuse occurred. Substantiation rates in some states are considerably lower than the rate nationally. Standards that mandate investigations and improve their quality should increase the proportion of allegations in which the finding is definitive and perpetrators can be held accountable.
Despite that fact that most incidents of sexual abuse constitute a crime in all 50 States and under Federal law, very few perpetrators of sexual abuse in correctional settings are prosecuted. Only a fraction of cases are referred to prosecutors, and the Commission repeatedly heard testimony that prosecutors decline most of these cases. Undoubtedly, some investigations do not produce evidence capable of supporting a successful prosecution. But other dynamics may be at play: some prosecutors may not view incarcerated individuals as members of the community and as deserving of their services as any other victim of crime.
Allegations of sexual abuse must also trigger an internal administrative investigation, and when the allegations are substantiated, the perpetrator must be disciplined. Until more cases are successfully prosecuted, many inmate and staff perpetrators of serious sexual abuse will be subject only to administrative discipline, making sanctions especially important. Individuals conducting administrative investigations must base their conclusions on what the “preponderance of the evidence” shows—a standard less stringent than that required to convict someone of a crime but adequate to protect individuals from being labeled as perpetrators and sanctioned internally without cause.
Sanctions must be fair, consistent, and sufficiently tough to deter abuse. It is crucial that labor and management reach agreements that allow reassigning officers during an investigation when safety is at issue and appropriate sanctions for staff perpetrators. Prisoners should never be punished for sexual contact with staff, even if the encounter was allegedly consensual. The power imbalance between staff and prisoners vitiates the possibility of meaningful consent, and the threat of punishment would deter prisoners from reporting sexual misconduct by staff.
Everyone who engages in sexual abuse in a correctional setting must be held accountable for their actions. There has been too little accountability for too long. The Commission’s standards in these areas encourage incarcerated individuals and staff to report abuse and require correctional facilities to protect those who speak out, conduct effective investigations, and ensure appropriate punishment.
Victims are unlikely to receive the treatment and support known to minimize the trauma of abuse. Correctional facilities need to ensure immediate and ongoing access to medical and mental health care and supportive services.
As corrections administrators work to create a protective environment in the facilities they manage, they also have a legal duty to ensure that when systems fail and abuse occurs, victims have access to appropriate medical and mental health services. Healing from sexual abuse is difficult; without adequate treatment, recovery may never occur.
Although sexual abuse typically leaves few visible scars, most victims report persistent, if not lifelong, mental and physical repercussions. After Sunday Daskalea was abused on multiple occasions by staff and other inmates in the District of Columbia jail, she became crippled by fear and anxiety. She slept only during the day, afraid of what might happen to her at night. Even after being released, Daskalea suffered from insomnia, struggled with eating disorders, and spent months emotionally debilitated, withdrawn and depressed. At age 18, Chance Martin was sexually abused while incarcerated in the Lake County Jail in Crown Point, Indiana. “I’ve abused drugs and alcohol and tried to kill myself on the installment plan,” Martin told the Commission.
The psychological aftereffects of sexual abuse are well documented. They include posttraumatic stress disorder, anxiety disorders, fear of loud noises or sudden movements, panic attacks, and intense flashbacks to the traumatic event. Each of these consequences alone has the ability to re-traumatize victims for years. The trauma can also lead to serious medical conditions, including cardiovascular disease, ulcers, and a weakened immune system. Studies indicate that sexual abuse victims have poorer physical functioning in general and more physical ailments than non-abused individuals, even after controlling for emotional disturbances such as depression. In addition, many victims are physically injured during the course of a sexual assault. A study of incarcerated men showed that more than half of all sexual assaults resulted in physical injury. Moreover, the study found that internal injuries and being knocked unconscious were more common outcomes of sexual abuse than of other violent encounters in prison.
Exposure to HIV and other sexually transmitted infections are other potential consequences of sexual abuse. Michael Blucker tested negative for HIV when he was admitted to the Menard Correctional Center in Illinois, but approximately 1 year later, after being raped multiple times by other prisoners, he tested positive. According to testimony before the Commission, the Centers for Disease Control and Prevention (CDC) lacks data to assess the extent to which sex in correctional facilities, whether rape or consensual, contributes to the high prevalence of HIV in prisons and jails. One CDC study did find that individuals in confinement may contract HIV in a variety of ways, including sexual contact.
Because of the disproportionate representation of minority men and women in correctional settings, it is likely that the spread of these diseases in confinement would have an even greater impact in minority communities. As such, the Commission recommends that Congress provide funding to appropriate entities for research into whether consensual and/or nonconsensual sexual activity in the correctional system plays a role in infecting populations outside of corrections with HIV/AIDS and other sexually transmitted infections.
It has been more than three decades since the Supreme Court established in Estelle v. Gamble that deliberate indifference to the health of prisoners is a form of cruel and unusual punishment. Since then, correctional agencies have struggled, and sometimes failed with tragic results, to meet the medical and mental health care needs of a large and often ill prisoner population. Correctional health care is underfunded nearly everywhere, and most facilities are in dire need of additional skilled and compassionate health care practitioners. Recently, independent researchers analyzed the Bureau of Justice Statistics’ 2002 survey of jail inmates and 2004 survey of State and Federal prisoners and found that many prisoners with persistent problems had never been examined by a health care professional in the facility where they were incarcerated. The failing was much worse in jails than in prisons: 68 percent of jail inmates with medical problems reported never being examined, compared with 14 percent of Federal prisoners and 20 percent of State prisoners.
Given the potentially severe and long-lasting medical and mental health consequences of sexual abuse, facilities must ensure that victims have unimpeded access to emergency treatment and crisis intervention and to ongoing health care for as long as necessary—care that matches what is generally acceptable to medical and mental health care professionals. Because some victims feel pressure to conceal abuse, all health care practitioners must have the training to know when a prisoner’s mental or physical health problems might indicate that abuse has occurred.
Health care practitioners working in correctional facilities, like all staff, have a duty to report any indications of sexual abuse and must alert prisoners about their duty before providing treatment. Confidential treatment
is not in the best interest of the victim or the safety of the facility. At the same time, they must provide care regardless of whether the victim names the perpetrator. Without such a policy, sexual abuse victims may decide that the risk of retaliation is too great and choose not to seek treatment.
Because some victims will never feel comfortable or safe disclosing their experience of sexual abuse to a corrections employee, agencies must give prisoners information about how to contact victim advocates and other support services in the community—underscoring that their communications will be private and confidential to the extent permitted by law. Collaborations with community-based service providers can also increase the likelihood that victims of sexual abuse are supported as they transition from a correctional facility back to their home communities.
For some victims of sexual abuse, cost may be a barrier to treatment. In the majority of States, legislatures have passed laws authorizing correctional agencies to charge prisoners for medical care—fees as little as $5 that are beyond the means of many prisoners. Under the Commission’s standards, agencies must provide emergency care to victims of sexual abuse free of charge. Additionally, the Commission encourages correctional systems to define common and persistent aftereffects of sexual abuse as chronic conditions and to exempt them from fees.
Financial barriers to treatment come in other forms, as well. Guidelines for distributing funds provided under the Victims of Crime Act (VOCA) prohibit serving any incarcerated persons, including victims of sexual abuse. Similarly, grants administered under the Violence Against Women Act (VAWA) cannot be used to assist anyone convicted of domestic or dating violence, sexual assault, or stalking. All survivors of sexual abuse need and deserve treatment and support services. The Commission recommends that the VOCA grant guidelines be changed and that Congress amend VAWA.
Unimpeded access to treatment by qualified medical and mental health care practitioners and collaboration with outside providers are critical to ensuring that victims of sexual abuse can begin to heal.
Juveniles in confinement are much more likely than incarcerated adults to be sexually abused, and they are particularly at risk when confined with adults. To be effective, sexual abuse prevention, investigation, and treatment must be tailored to the developmental capacities and needs of youth.
A daily snapshot of juveniles in custody in 2006 showed that approximately 93,000 youth were confined in juvenile residential facilities in the United States and more than half of them were 16 years or younger. Preventing, detecting, and responding to sexual abuse in these facilities demands age-appropriate interventions. The Commission’s set of standards for juvenile facilities parallels those for adult prisons and jails, with modifications to reflect the developmental capacities and needs of youth.
When the State exercises custodial authority over children, “its responsibility to act in the place of parents (in loco parentis) obliges it to take special care.” Youth may pass through the justice system once or twice, never to return. Yet if they are sexually abused, they may live with lifelong consequences that can include persistent mental illness and tendencies toward substance abuse and criminality. Juvenile justice agencies thus have a responsibility and a challenge: prevent sexual abuse now, or risk long-term consequences for victims.
Rates of sexual abuse appear to be much higher for confined youth than they are for adult prisoners. According to the Bureau of Justice Statistics
(BJS), the rate of sexual abuse in adult facilities, based only on substantiated allegations captured in facility records, was 2.91 per 1,000 incarcerated prisoners in 2006. The parallel rate in juvenile facilities was more than five times greater: 16.8 per 1,000. The actual extent of sexual abuse in residential facilities is still unknown. BJS is currently conducting the first nationally representative survey of confined youth.
Juveniles are ill-equipped to respond to sexual advances by older, more experienced youth or adult caretakers. Based on reports of rampant physical violence and sexual abuse in a juvenile correctional facility in Plainfield, Indiana, the U.S. Department of Justice began investigating conditions of confinement in 2004. Investigators were shocked by the age and size disparity between many of the youth involved. Youth as old as 18 were assaulting or coercing children as young as 12; children weighing as little as 70 pounds were sexually abused by youth outweighing them by 100 pounds.
Simply being female is a risk factor. Girls are disproportionately represented among sexual abuse victims. According to data collected by BJS in 2005–2006, 36 percent of all victims in substantiated incidents of sexual violence were female, even though girls represented only 15 percent of confined youth in 2006. And they are much more at risk of abuse by staff than by their peers. Pervasive misconduct at a residential facility for girls in Chalkville, Alabama, beginning in 1994 and continuing through 2001, led 49 girls to bring charges that male staff had fondled, raped, and sexually harassed them. Abusive behavior is not limited to male staff. In 2005, the Department of Justice found that numerous female staff in an Oklahoma juvenile facility for boys had sexual relations with the youth under their care.
Youth are also vulnerable to sexual victimization while under juvenile justice supervision in the community. Nearly half (48 percent) of the more than 1.1 million youth who received some juvenile court sanction in 2005 were placed under the supervision of State, local, or county probation officers or counselors. A 50-year-old man who had served as a youth probation officer for 11 years with the Oregon Youth Authority was convicted of sexually abusing boys in his care, including a 14-year-old mentally disabled boy with attention deficit/hyperactivity disorder. Victims and their families had complained for years about this officer, but officials took no action.
Staff training and supervision are crucial. Staff need to understand the distinctive nature of sexual abuse involving children and teens and its potential consequences. Their responsibilities—including a duty to report any information about abuse—must be clear, and they must be informed that they will be held accountable for their actions and omissions. Administrators must uphold these policies and ensure that every report of abuse is promptly investigated.
Although research has yet to pinpoint the characteristics of youth who are at greatest risk of being victimized or perpetrating sexual abuse in juvenile facilities, many of the factors associated with vulnerability to sexual abuse among adults also appear to place juveniles at risk. In addition to screening all youth, facilities can take a simple step to protect youth from sexual abuse: encourage all residents during intake to tell staff if they fear being abused. This message, combined with affirmative statements about the facility’s commitment to safety and zero tolerance of sexual abuse, makes it more likely that vulnerable youth will seek protection when they need it—before an assault occurs. Youth may be segregated only as a last resort and for short periods of time when less restrictive measures are inadequate to keep them safe.
Reducing sexual abuse also requires creating conditions that encourage youth to report abuse. Internal reporting procedures must be simple and secure; victims and witnesses must have unimpeded access to their families, attorneys, or other legal representatives; and facilities must provide parents and lawyers with information about the rights of residents and internal grievance procedures. Because many youth fail to recognize certain coercive and harmful behaviors as “abuse,” juvenile facilities must improve sexual education programs and sexual abuse prevention curricula.
Youth who perpetrate sexual violence in juvenile facilities present a challenge for facility administrators who must apply developmentally appropriate interventions. They may need treatment as much as, or more than, punishment. Studies have shown that youth who commit sexual offenses typically have a history of severe family problems. Correctional medical and mental health practitioners must be trained to recognize the signs of sexual abuse and to provide age-appropriate treatment. And because young victims may lack the confidence to seek help from corrections staff, they must have access to victim advocates in the community to ensure that they are not left without support and treatment.
More than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual abuse. According to BJS, 7.7 percent of all victims in substantiated incidents of violence perpetrated by prisoners in adult facilities in 2005 were under the age of 18. Data collected by BJS in 2006 show that on any given day, almost 8,500 youth under the age of 18 are confined with adults in prisons and jails. Civil rights attorney Deborah LaBelle told the Commission that 80 percent of the 420 boys sentenced to life without parole in Michigan, Illinois, and Missouri reported that, within the first year of their sentence, they had been sexually assaulted by at least one adult male prisoner. Because of the extreme risk of sexual victimization for youth in adult facilities, the Commission urges that individuals under the age of 18 be held separately from the general population.
The Commission’s inquiry into the sexual abuse of youth in juvenile justice and adult corrections has revealed disturbing information about its prevalence, gravity, and consequences. Hope lies in the fact that necessary precautions and remedies are clear and rehabilitation remains a guiding principle in the field of juvenile justice.
Individuals under correctional supervision in the community, who outnumber prisoners by more than two to one, are at risk of sexual abuse. The nature and consequences of the abuse are no less severe, and it jeopardizes the likelihood of their successful reentry.
By the end of 2007, there were more than 5.1 million adults under correctional supervision in the community, either on probation or parole, and the numbers are growing. They too are at risk of sexual abuse. As both Federal and State governments attempt to reduce incarceration costs in the face of looming deficits, the number of individuals under some form of community supervision—before, after, or in lieu of confinement—is likely to rise. Despite the number of individuals under supervision in the community, there is a lack of research on this population, and responses to PREA have been slow to take root in this area of corrections. The Commission has developed a full set of standards governing community corrections.
Community corrections encompasses a diverse array of agencies, facilities, and supervision structures on the Federal, State, and local levels. Supervision can occur in halfway houses, prerelease centers, treatment facilities, and other residential settings. Nonresidential supervision can include probation, parole, pretrial supervision, court-mandated substance abuse treatment, court diversionary programs, day-reporting centers, community service programs, probation before judgment, furloughs, electronic monitoring, and home detention.
As in other correctional settings, courts have found that sexual abuse in community corrections violates the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment. As a result, community corrections agencies, like prisons and jails, have a special responsibility to protect the people they supervise. Courts also have determined that the authority staff have over the individuals they monitor makes a truly consensual sexual relationship impossible. Community corrections agencies are accountable for sexual abuse incidents, regardless of whether the circumstances in which the abuse occurred were under the direct control of the agency or a separate organization working under contract with the agency. Anyone in a supervisory position can be held liable for abuse. For example, in Smith v. Cochran, Pamela Smith was in jail but participating in a work release program. Her supervisor on the job sexually assaulted her, and the court ruled that important “penological responsibilities” had been delegated to him.
Although individuals under correctional supervision in the community may experience sexual abuse at the hands of other supervisees, the dynamics of supervision make them particularly vulnerable to abuse by staff. Coercion and threats carry great weight because individuals under supervision are typically desperate to avoid being incarcerated. Staff also have virtually unlimited access to the individuals they supervise, sometimes in private and intimate settings. In Ramsey County, Minnesota, for example, a male community corrections officer visiting a former prisoner’s apartment to discuss her failure in a drug treatment program instead requested and had sex with her.
The diverse roles and obligations of staff present risks. They operate as enforcement officers in the interest of public safety and also function as counselors and social workers. Drawing and maintaining boundaries is a challenge even for staff with the best intentions. Moreover, because community corrections staff operate with significantly less direct supervision than their counterparts in secure facilities, it is easier for them to conceal sexual misconduct. Clear policies rooted in an ethic of zero tolerance for sexual abuse coupled with good training can mitigate these dangers by giving staff the direction, knowledge, and skills they need to maintain appropriate relationships with the individuals they supervise. Of course, preventing sexual abuse begins with hiring the right staff.
Although community corrections agencies face significant challenges in preventing abuse, they may have advantages in responding to victims. By definition, community corrections agencies tend to have access to skilled professionals and other resources that are beyond the reach of many secure correctional facilities, especially prisons sited in remote locations. For example, coordinated sexual assault response teams, widely recognized as an optimal way to respond to incidents of sexual abuse, exist in many communities and may be available to partner with local correctional agencies. Partnerships with victim advocates and counselors in the community also ensure that people under correctional supervision are able to disclose abuse and receive treatment confidentially, if they so choose. Some individuals under supervision will disclose abuse that occurred while they were incarcerated. Agencies must report past abuse to the facilities where the abuse occurred. This is necessary to trigger an investigation and also to improve the accuracy of facility records and provide insights on reasons incarcerated victims of sexual abuse remain silent.
The mission of community corrections is centered on helping offenders establish productive and law-abiding lives. Protecting them from sexual abuse and helping victims recover from past abuses is an essential part of that mission.
A large and growing number of detained immigrants are at risk of sexual abuse. Their heightened vulnerability and unusual circumstances require special interventions.
Preventing, detecting, and responding to sexual abuse of immigrants in custody require special measures not included in the Commission’s standards for correctional facilities. These measures are contained in a set of supplemental standards that apply to any facility that houses individuals detained solely because their right to remain in the United States is in question. The Commission’s work in this area advances efforts by U.S. Immigration and Customs Enforcement (ICE) to protect detainees from sexual abuse.
In the 15 years from 1994 to 2009, the number of immigrants held in detention pending a judicial decision about their legal right to remain in the United States increased nearly 400 percent. For the 2009 fiscal year, ICE has budgeted enough money to detain 33,400 people on any given night and more than 400,000 people over the course of the year. The population of immigration detainees includes adults, thousands of “unaccompanied” children, and whole families confined together.
The prevalence of sexual abuse among immigration detainees is unknown and has yet to receive the attention and research it merits, but accounts of abuse by other detainees and staff have been coming to light for more than 20 years. Many factors—personal and circumstantial, alone or in combination—make immigration detainees especially vulnerable to sexual abuse. One of the most pervasive factors is social isolation. Individuals are often confined far from family or friends and may not speak the language of other detainees or staff. Those who have already suffered terrifying experiences in their home countries or in the United States can be almost defenseless by the time they are detained and may even expect to be abused.
Preventing abuse requires precautions beyond those mandated for other prisoners. In particular, when immigration detainees are confined in ordinary prisons, jails, and lockups—a common practice—they must be housed apart from the general population, but they should not be placed in segregation. Depending on the conditions in protective custody cells and units, the experience can enhance the feeling of aloneness already common among immigration detainees and lead to depression and other problems.
Families who are in ICE custody are currently detained in several facilities in the United States. Stays are not always brief: women with children, including babies and toddlers, may be detained for days, weeks, or even months. In testimony before a congressional subcommittee on immigration, Texas Representative Sheila Jackson noted that families in these facilities often are “deprived of the right to live as a family unit, denied adequate medical and mental health care, and face overly harsh disciplinary tactics.” Facilities face the challenge of protecting residents of all ages from sexual abuse while also preserving family unity. One specific challenge is ensuring that both adults and children can report sexual abuse in a confidential manner, which is especially important for situations in which children are at risk of abuse within the family unit.
Because immigration detainees are confined by the agency with the power to deport them, officers have an astounding degree of leverage—especially when detainees are not well informed of their rights and lack access to legal counsel. The Commission learned that officers have propositioned women whose cases they control, telling them that if they want to be released they need to comply with their sexual demands. The fear of deportation cannot be overstated and also functions to silence many individuals who are sexually abused. Those brave enough to speak out may face retaliation. After women detainees at the Krome immigration detention facility in Miami reported sexual abuse by staff, several of them wrote, “We are afraid. . . each time one of us is interviewed by investigating officers. . . . [S]ome of the women who have given statements have either been transferred or deported to their countries.” Transfers can completely derail the complaint process, which has lasting consequences for victims who may be eligible for a special visa to remain in the United States. When staff cannot protect victims and witnesses in the facility where the abuse occurred, ICE must consider releasing and monitoring them in the community during the course of the investigation.
There also are institutional barriers that block or discourage victims and witnesses from reporting abuse. Grievance procedures can seem impossibly complex, especially for detainees who speak languages other than English or Spanish. A 2006 audit by the U.S. Department of Homeland Security’s Office of the Inspector General revealed that detainees often do not receive information on reporting abuse and other grievances in a language they can understand.
Although detainees have periodic contact with immigration judges, those judges have no jurisdiction over the conditions of their detention. Even advocacy groups in the local community may lack the language skills and cultural competency to assist them. Detainees need access to outside entities able and authorized to receive and respond to reports of sexual abuse. Specifically, facilities must provide immigration detainees with access to telephones with free, preprogrammed numbers to ICE’s Office for Civil Rights and Civil Liberties and to the Department of Homeland Security’s Office of the Inspector General. They also must have access to telephones to contact diplomatic or consular personnel from their countries of citizenship, along with a list of those phone numbers.
Detainees who are victims of sexual abuse also need a lifeline to outside organizations with experience counseling immigrant victims of crime and assurances that their communications with outside advocates are confidential to the extent permitted by law. At the same time, facilities must still ensure that their own staff have the training to respond in culturally appropriate ways to sexual abuse.
Protection for all immigration detainees and services for victims of sexual abuse are not what they should be. And little is known about this fast-growing area of confinement, one in which preventing, detecting, and responding to sexual abuse is especially challenging.
The Commission sunsets 60 days following the submission of its report and standards to Congress, the President, the Attorney General, and other Federal and State officials. The real work of implementation begins then, particularly on the part of the Attorney General and his staff. Within a year of receiving the Commission’s report and standards, the Attorney General is required to promulgate national standards for the detection, prevention, reduction, and punishment of detention facility sexual abuse.
The Commission recommends that the Attorney General establish a PREA Advisory Committee pursuant to the Federal Advisory Committee Act of 1972. The purpose of the Advisory Committee is to assist the Attorney General with the promulgation of the PREA standards and thereafter assess their implementation and propose amendments as needed to increase their efficacy. The Commission also recommends that the Attorney General create a full-time Special Assistant for PREA within the Office of the Deputy Attorney General. The Special Assistant would have primary responsibility for ensuring the implementation of the standards as central to the national effort of eliminating prison rape.
PREA represents a sea change in public consciousness and in national commitment to protecting individuals under correctional supervision from sexual abuse. Already, the Commission has seen ideas transformed into actions that by all accounts have the potential to improve safety. This is just the beginning. When the Attorney General issues mandatory standards, they will accelerate the pace of reform and ensure that the same fundamental protections are available in every correctional and detention setting. Our obligations, both moral and legal, require nothing less.