The Obama administration ordered federal, state and local officials Thursday to adopt zero tolerance for prison rape as it issued mandatory screening, enforcement and prevention regulations designed to reduce the number of inmates who suffer sexual victimization at the hands of other prisoners and prison staff.
Anti-rape advocates and victims of prison rape, while saying the standards are not perfect, cheered the new regulations. The rules have been under development since Congress passed the Prison Rape Elimination Act in 2003 to fight rape and sexual victimization in the nation's prisons, jails and halfway houses. The regulations were announced only minutes after the Justice Department unveiled a new survey of former state and local prisoners that showed that almost one in every 10 reported at least one incident of sexual victimization by prison staff or other inmates.
Garrett Cunningham was raped in a Texas prison by a guard in 2000, and now works with Just Detention International, an anti-prison rape group. "If strong national standards had been in place when I was in prison, my abuse may have never happened. Now that the standards have been released, we can make sure it never happens again," said Cunningham, who testified to Congress about his ordeal.
The regulations are immediately binding on federal prisons. States that don't fall in line face a loss of 5 percent of their Justice Department prison money unless their governor certifies that the same amount of money is being used to bring the state into compliance. Prison accreditation organizations also will be barred from federal grants unless they include similar anti-prison rape standards in their accreditation process, which means local jails could lose their accreditation unless they comply.
"Sexual violence, against any victim, is an assault on human dignity and an affront to American values," President Barack Obama said.
Obama announced that the Prison Rape Elimination Act would apply to all federal confinement facilities, and all other agencies with confinement facilities were required to have protocol to fight prison rape within a year. That means the Homeland Security Department, which runs immigrant detainment facilities, will have to have similar rules in place by this time next year.
"The standards we establish today reflect the fact that sexual assault crimes committed within our correctional facilities can have devastating consequences for individual victims and for communities far beyond our jails and prisons," Attorney General Eric Holder said.
But immigration advocates immediately denounced the idea that Homeland Security would be allowed to come up with its own rules instead of following the ones announced by the Justice Department.
"It was clearly the intent of Congress that every person in confinement in the U.S. would be protected from being raped. Holder's decision leaves those in Immigration and Customs Enforcement facilities, many of whom are not accused of a crime, at the mercy of sexual predators," said Pat Nolan, president of the Justice Fellowship and former member of the National Prison Rape Elimination Commission.
The administration announcement came as the Bureau of Justice Statistics released its first-ever National Former Prisoners Survey, which found that 9.6 percent of former inmates said they were sexually victimized in jails, prisons and halfway houses. A somewhat similar survey of still-imprisoned convicts done by the same agency in 2008-09 found that only 4.4 percent of state and federal inmates said they were sexually victimized.
The difference may be because the former inmates in the current survey were asked about a longer time period than in the previous survey, said Allen J. Beck, an author of the survey. But it also could be that former inmates may be more willing to talk about the sexual victimization than the inmates currently housed inside those facilities, who have concerns about retaliation for speaking up.
Critics have said inmates may be willing to lie on these surveys in an attempt to embarrass a facility or refuse to report an incident for fear of retaliation.
The study defines sexual victimization as any type of unwanted sexual activity with other inmates, abusive sexual activity with other inmates and both willing and unwilling sexual activity with staff.
Among the findings:
- Almost the same number of former inmates were victimized by facility staff as were victimized by other inmates. About 27,300 - 5.4 percent - reported incidents with other inmates, while 23,300 - 5.3 percent - reported incidents that involved staff. Of the former inmates who reported incidents with staff, 6,300 said they had unwilling sex or sexual contact with staff, while the rest said they "willingly" had sexual contact. And half of the former inmates who were victimized by facility staff members said they were offered favors or privileges in exchange, while a third said they were talked into it.
Any sexual contact between staff and inmate is officially classified as nonconsensual. Prisons uniformly forbid inmate-staff sexual contact.
The new regulations require prison officials to screen inmates for the potential of sexual victimization and use that information in assigning housing and work, require background checks on employees and prohibit hiring of abusers. The regulations also say firing will be the presumptive punishment for staff members involved and ban cross-gender pat downs of female inmates and juveniles.
- A fourth of the former inmates victimized by other inmates said they had been physically held down or restrained, and a quarter also said they were physically injured or harmed during the attack.
The new rules would require juvenile inmates to be kept away from adult inmates, allow anonymous and outside-of-prison reports of sexual victimization and require evidence preservation after a reported incident. Facilities also must produce plans for adequate staffing and video monitoring.
- Gay and bisexual men seemed by far the most frequently targeted. The survey said that 39 percent of men who were gay and 34 percent of bisexual men reported being sexually victimized by another inmate, while only 3.5 percent of heterosexual men reported incidents. Lesbian and heterosexual women reported incidents with other inmates at the same rates - 13 percent - while staff victimization was double for lesbian women - 8 percent - compared with heterosexual women - 4 percent.
The new regulations would require detention facilities to incorporate the "unique vulnerabilities of lesbian, gay, bisexual, transgender, intersex and gender nonconforming inmates into training and screening protocols."