The Prison Rape Elimination Act and beyond: sexual violence in detention

In 2003, the U.S. passed a law called the Prison Rape Elimination Act (PREA), which for the first time mandated the Bureau of Justice Statistics (BJS) – an arm of the Department of Justice – to conduct anonymous surveys of prisoners about sexual abuse. These surveys have confirmed what reform advocates had long known – that abuse is widespread in many prisons – but, also and significantly, that in some prisons it is not. Here, Linda McFarlane and Jesse Lerner-Kinglake of Just Detention International describe the effects of PREA, the practices and management issues that may make abuse more likely and the policy and culture change needed to eliminate it.

Joe thought he was prepared for prison. After all, he had served time before. But nothing could have prepared him for being placed in a cell with a rapist. Nothing could have prepared him for the way the prison staff responded to his request for help, after his cellmate sexually assaulted him. (Learn more about Joe and his story here)

Along with other survivors of prisoner rape, Joe has helped lead the fight against sexual abuse in detention. They demanded that prison systems that do not respect prisoners’ basic human rights be held accountable, and courageously shared their stories to help ensure the safety of all inmates.

Advocates in the U.S. have long known that prisoner rape is widespread. For years, we heard survivors, like Joe, tell the stories of prison life, and listened to how their lives were turned upside down by the violence they endured. Their accounts were so numerous, and painted such as bleak portrait of our detention facilities, that we could say confidently that sexual abuse in detention constituted a nationwide crisis.

The problem, however, was that we lacked the hard data. This mattered for two reasons.  For one, without research to rely on, advocates were left mostly in the dark about the dynamics of prisoner rape. More depressingly, the absence of data allowed many corrections officials to deny that this abuse was common.

But then, we made a breakthrough. In 2003, after years of pressure by advocates and survivors, the U.S. passed a law called the Prison Rape Elimination Act (PREA). Significantly, PREA called for the Bureau of Justice Statistics (BJS) – an arm of the Department of Justice – to conduct anonymous surveys of inmates about sexual abuse.

The data collected by the BJS has been, in a word, game-changing. Based on the surveys, the BJS estimates that 200,000 people are sexually abused in US detention facilities in a single year. This finding is completely depressing, and it illustrates the scope of the problem we have on our hands. But the data is not all grim. It showed that many prisons and jails had virtually no incidents of sexual abuse – belying the myth that rape behind bars is inevitable.

The BJS studies looked at more than just the prevalence of sexual abuse in detention. They also gave advocates valuable information about what this abuse looks like, who’s most at risk, and why it happens. It came as no shock to learn that LGBT prisoners are frequently targeted.  Per the BJS, LGBT prisoners were a staggering eight times more likely to be abused by other prisoners than straight prisoners. Nor were advocates surprised to learn that people who have a mental illness and who had a history of abuse faced high rates. In lots of ways, sexual abuse in detention mirrored abuse in the community,

More surprising, however, was what the data shows about staff abuse, and the gender breakdown. Overall, roughly half of all sexual abuse in U.S. detention facilities is committed by staff – an appalling statistic, given that these are the people whose very job is to stop this violence from happening. In addition, the BJS found that nearly three quarters of all staff misconduct is committed by women.  This finding stunned many advocates, and we are still grappling today with how to tackle this problem.

Whether this violence is committed by prisoners or by staff – or by men or by women – the responsibility for stopping it rests with prison leadership. Even in high-security facilities, top officials at a facility can – and must – keep every prisoner safe.

At Just Detention International, where I work, we know that from experience that the prisons with rampant sexual abuse are the ones that are badly run. This is true not just in the US, but globally. In South Africa, the country’s prisons are decrepit and overcrowded, and plagued by homophobic attitudes. One of the most shocking practices in South African prisons is called “lock up.” Every day, in the late afternoon, prison staff close down their units for the evening. Each unit holds hundreds of people, but only one or two staff remain on the premises, within earshot but out of sight. No one on the night shift holds a key. With these types of practices in place, violence that is completely preventable becomes very likely.

There is no national data on rape in South African prisons. In a perfect world, every country would have its own BJS studies. Until then, advocates there, and everywhere, must agitate for change – and continue to listen to survivors. (To listen to the stories of survivors in South Africa, please visit JDI-South Africa’s website.)

Bringing attention to the crisis of sexual abuse in detention, and receiving support from government sources through research and legislation, has been important for several reasons. When corrections departments can no longer say that sexual abuse is not a problem, they are then faced with the choice: either they can say they do not care, or they can act. In both the US and South Africa, JDI works directly with corrections facilities to put policies and practices into place that will, if implemented, make the facilities safer. Policies and protocols around screening and housing, staff training, inmate education, and response to sexual abuse and sexual harassment are needed, but policies are not enough on their own. Changing culture inside corrections facilities – to one where human rights and dignity are valued and seen as key to safety — is necessary for any changes in policy or practice to make a difference in day-to-day life. This type of change can only happen by empowering survivors (Video: Voices for Justice) and corrections officials to be leaders. JDI’s primary strategy of working together with allies, sometimes with unlikely allies, helps up to change the way prison officials – and society at large – respond to sexual violence in detention.

For more information, or to connect with Just Detention International, please visit www.justdetention.org.