Friday Philosophy: ACLU et. al. to Holder: Stop Prison Rape

The ACLU, the National Center for Transgender Equality, the National Center for Lesbian Rights, The Transgender Law Center, and Lambda Legal Defense & Education Fund have joined in the drafting of a letter (pdf) in support of the national standards for the prevention, detection, response, and monitoring of sexual abuse as recommended (pdf) by the National Prison Rape Elimination Commission.  Lesbian, gay, bisexual, transgender, and intersex people are at heightened risk of being abused when in detention, both at the hands of other inmates and at the hands of facility staff.

This has come up before, being the outcome of the Prison Rape Elimination Act (PREA) of 2003, which passed both the House and Senate by unanimous consent and was signed into law on September 4, 2003, albeit accompanied by a signing statement.

The report of the of the Commission was released in June of 2009.  Holder has one year to issue national standards which are based upon the report, which clearly expires shortly.

PREA was in response to the SCOTUS case Farmer v Brennan, which concerned the repeated beating and raping of pre-op transsexual woman Dee Farmer when she was housed with the general male prison population at the US Penitentiary at Terre Haute, IN.  Ms. Farmer acquired HIV as a result.  SCOTUS ruled that a prison official’s deliberate indifference to a substantial risk of serious harm to inmate violates the cruel and unusual punishment clause of the 8th Amendment.

The letter calls for the immediate institution of the recommended standards, while suggesting some modifications.

Statistics gathered by the Bureau of Justice Statistics show that that non-heterosexual youth were almost ten times more likely  to have been sexually abused while in custody (1/8 of non-heterosexual youth as opposed to 1.3% of heterosexual).  In a similar study of adult inmates, 2.7% of heterosexual inmates alleged an incident of sexual victimization, as opposed to 18.5% of homosexual inmates and 9.8% of bisexual or “other”.

Transgender/transsexual inmates were 13 times as likely to be abused as cissexual inmates.

What is going on…in our name?

Troy was a small, non-conforming 12 year old when he was first detained in a juvenile corrections facility.  A few days after he was placed in a Los Angeles youth facility, a boy forced Troy to perform oral sex on him.  Shortly thereafter, Troy was raped. by another older boy.  For the next 20 years, Troy was in and out of youth and adult facilities, where he was repeatedly sexually assaulted.

D. W. is a transgender woman who was incarcerated in a men’s prison in New York and was repeatedly raped by her cellmate who had been stalking and threatening her for months.  When she finally gained the courage to report the abuse, she was given a disciplinary infraction for engaging in sexual activity.

Robin Lucas, a lesbian in a California prison on a first-time non-violent offense, was sent to segregation in a men’s prison.  The male guards there harassed, taunted, and threatened her for being a lesbian.  Guards allowed male prisoners into her cell to assault her and after she made a complaint the abuse escalated.  One evening three inmates entered her cell, handcuffed her, and raped her.  Although she won a civil lawsuit against the prison, none of the guards or inmates were disciplined or criminally charged.

At the Krome Immigration Detention Center in Miami, Florida, a transgender woman named Christina was placed in solitary confinement because officials were unsure whether to house her with the men or with the women.  The officer responsible for bringing her meals and watching over her cell-block attacked Christina, attempting to force her to perform oral sex on him.  He then sodomized her until he heard another individual approaching.  Even though Christina filed a report against the officer, he was allowed back in the cell, where he raped her a second time.  He was ultimately convicted of having sex with a detainee.

Kendall Spruce is a bisexual man who was raped by more than 25 other inmates over the course of nine months during his incarceration at an Arkansas state prison.  He contracted HIV as a result of these attacks.  Although he reported the abuse, prison officials failed to provide him with safe housing.  Because of his sexual orientation, they told him he must have enjoyed being raped.

The Committee found the following:

Finding 1: 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.

Finding 2: 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.

Finding 3: 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.

Finding 4: 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.

Finding 5: 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.

Finding 6: 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.

Finding 7: 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.

Finding 8: 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.

Finding 9: A large and growing number of detained immigrants are at risk of sexual abuse. Their heightened vulnerability and unusual circumstances require special interventions.

The recommended national standards is a rather lengthy section of the report, beginning on page 215 and continuing through page 235.

The letter responds to those standards beginning on page 6 and continuing to page 10.

Although, as a former correctional specialist, I am interest in the entirety of the documents, as a transwoman, there were some specific issues I would like to point out:

1.  The letter speaks of concern about how the standards limiting cross-gender searches and viewing will be interpreted when dealing with transgender and intersex inmates.

At present, transgender women in particular are frequently searched by male staff, notwithstanding the fact that that many transgender women have breasts and a feminine appearance, a practice that invites abuse.

…individuals from these groups are frequently targeted for unnecessary, abusive and traumatic frisks and strip searches, and that these searches can be excuses for and precursors to sexual abuse. This testimony is supported by reports from human rights organizations.

…As a best practice, facility staff should ask transgender and intersex inmates to name the gender of staff they feel most safe being searched by.

…Searches or medical examinations for the sole purpose of determining genital status should be prohibited. Such searches are inherently traumatic for transgender and intersex inmates and present a serious potential for abuse, even under the limited circumstances permitted in the proposed standards.  In the very limited circumstances where this information is needed by a facility, it should be determined from the inmate, medical records, or other reliable sources, or during routine medical examinations.

The organizations who wrote the letter recommended adding the following to Screening standard 1:

Inmates are not required to answer all screening questions and should not be disciplined if they do not disclose having a lesbian, gay, bisexual, or transgender identity or an intersex condition.

As for Screening standard 2, the letter suggests adding the language in bold:

…The facility makes individualized determinations about how to ensure the safety of each inmate, including whether to house a transgender or intersex inmate in a men’s or women’s setting. If an intersex inmate disputes his or her initial classification in male or female housing, facility medical practitioners re-evaluate this classification based on recommendations from a medical specialist experienced in diagnosis of intersex conditions. Lesbian, gay, bisexual, transgender, intersex, or other gender non-conforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, birth gender, or gender identity.

Also:

Transgender and intersex inmates should be provided private access to showers separate from other inmates.

We do not sentence inmates to sexual abuse.  But when it happens to prisoners, it happens in our name.

It’s past time for this to stop.