Written by Christina Piecora
A pop culture phenomenon griped the country this past summer. Everywhere you went you just couldn’t escape the excitedly posed question: “Have you seen it?” At work, at the gym, on the subway, and in the grocery store, it seemed that all anyone could talk about was Orange is the New Black. People couldn’t wait to share just how quickly they had binge watched the Netflix show. And you couldn’t turn on a TV or open a magazine without seeing one of the show’s stars. Yes, the country was officially buzzing over this “ground-breaking” show that follows an upper-middle class yuppie serving her one-year sentence in federal prison.
Although women comprise only seven percent of the state prison population, they comprise forty-six percent of sexual abuse victims in state prisons.
Superb acting, emotional storylines, and a diverse cast, unlike any we have ever seen, were only some reasons that people couldn’t stop talking about the show. Another, more significant reason, was that the show shed light on many problems of the American incarceration system. The problems addressed include the disproportionate amount of women in prison for drug offenses, a plethora of creepy power-hungry prison staff, and recidivism rates for women. However, for all of the important issues the show raised, it failed to substantially address the most devastating problem facing women in prison: sexual assault.
The rate of inmate-on-inmate sexual victimization is at least 3 times higher for females Inmates than male inmates.
The Numbers
The federal government has labeled the problem of prison sexual assault as an “epidemic.” Female inmates face a constant threat of sexual assault. Currently, there are over two hundred thousand women behind bars in the United States. Of these women, a reported 85-90% have a history of domestic and sexual abuse. And according to a Human Rights Watch Report anywhere from ten to forty percent of incarcerated females have been the victims of prison sexual assault. Female prisoners identifying as bisexual or lesbian are twice as likely to be abused by staff as prisoners identifying as heterosexual (8 percent for both bisexual and lesbian inmates versus 4 percent for heterosexual inmates), while transgender women were three times more likely to be sexually assaulted.
Males are the perpetrators in ninety-eight percent of staff-on-inmate sexual assault of female inmates. Forty-one percent of guards in the average state correctional center who work with female inmates are men. The job entitles guards to observe prisoners in their most intimate settings and have access to the prisoners in their most vulnerable states. Furthermore, male guards in state prisons are allowed to perform strip searches and full-body cavity searches of female inmates. Therefore, it should be no surprise that although women comprise only seven percent of the state prison population, they comprise forty-six percent of sexual abuse victims in state prisons.
The Assaults
In an early episode of Orange is the New Black, as main character Piper Chapman takes off her bra in her cell, she notices the aptly nicknamed prison guard Pornstache pausing to creepily watch her. “Is he allowed to do that?” Piper asks. “He can do whatever he wants,” her cellmate responds.
“Pornstache” gets up close and personal with Piper: a practice that is allowed in prisons under cross-gender supervision policies.
Male prison officials not only use force and violence to commit sexual assault against female prisoners, but also use their positions to coerce, threaten, and intimidate female inmates into sexual activity, which still constitutes prison sexual assault. Thousands of documented accounts exist of prison staff demanding sex in exchange for drugs, favors, promises of more lenient treatment, and access to educational and rehabilitative programs. Similarly, prison officials often use the threat of longer sentences, going to the parole board with false reports of bad behavior, or planting drugs on prisoners if they do not perform sexual acts. Furthermore, prison officials often coerce female inmates into engaging in sexual activities by threatening to withhold basic necessities such as feminine hygiene products or permission for visitation with their children. Undoubtedly it is incredibly repugnant that those charged with protecting female inmates and acting in the name of the public are too often the ones sexually assaulting them. However, prison officials are not the only perpetrators of sexual assault against female inmates.
The rate of inmate-on-inmate sexual victimization is at least 3 times higher for females (13.7%) than males (4.2%). Numerous scholars attribute this to the fact that a majority of prison officials do not view female-on-female sexual assault as “true rape,” making them less likely to reprimand inmates committing sexual assault. Furthermore, as the female prison population has grown at a dramatic rate states have been unable to keep up. Therefore, female prison facilities tend to be overcrowded and poorly designed, which makes them much more difficult to police. Additionally, because of this lack of available space female inmates are often placed in any facilities that have room. Thus, nonviolent first offenders and juvenile inmates are often placed with violent offenders in maximum-security prisons, where they become easy targets for abuse. Furthermore, no federal legislation exists requiring that prison staff be specifically trained to deal with different types of inmates. Therefore, most prison staff are trained to deal solely with adult male inmates. Consequently, there is a lack of properly trained staff to deal with sexual assault problems for females.
Legal Roadblocks
In addition to cross-gender supervision and poorly designed facilities, prison sexual assault against females is prevalent for a number of other reasons. First, victims of prison sexual assault are often blocked from bringing charges against prison staff, who were either complacent or the culprits in their attacks, by the Prison Litigation Reform Act (PLRA). Under the PLRA prisoners must exhaust all the administrative remedies open to them via internal grievance procedures before they are allowed to file suit in federal court to challenge prison abuses. For victims of prison sexual assault, this PLRA provision means that they must report their abuse to the very people committing or facilitating that abuse. This often results in the prisoners’ accusations going uninvestigated or the prisoners themselves being reprimanded. In fact, inmates who complained of staff sexual misconduct were written up for punishment 46.3 percent of the time. Therefore, due to fear of retaliation few victims ever choose to exhaust administrative remedies. This effectively means that they are barred from bringing suits while imprisoned and that their attackers go unpunished.
Secondly, even if victims of prison sexual assault can overcome the PLRA their constitutional claims are rarely successful. The Eighth Amendment establishes the right to be free from the infliction of cruel and unusual punishment. The Founders believed this right so important that they enshrined it in the Bill of Rights. However, the definition and scope of the term cruel and unusual punishment has been evolving since that moment the Constitution was ratified, and it has not been established that all sexual assault in prison constitutes cruel and unusual punishment. Instead, for victims of prison sexual assault to establish a violation of their Eighth Amendment rights they must prove that the prison official had a “seriously culpable state of mind” by satisfying the two-part deliberate indifference test.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
– U.S. Const. amend. VIII.
The test, established in Farmer v. Brennan, requires that the prison official must (1) “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” and (2) “also draw the inference.” The deliberate indifference standard is a subjective standard, which substantially raises the standard of proof for plaintiffs in prison sexual assault cases. For victims, the difficulty lies in proving that prison administrators were aware of the risk and ignored it. Applying the Farmer test in subsequent litigation, federal courts have severely limited the liability of prison officials for permitting sexual misconduct within their prisons.
State Failures
Another major reason for the high incidence of prison sexual assault is the limited oversight of state prisons, where the majority of prisoners are located. Recently the federal government took a historic step towards combating prison sexual assault by passing the Prison Rape Elimination Act (PREA). The goal of the PREA is to make the prevention of prison rape a top property in each prison system. To do so the PREA was passed with the intention to develop and implement national standards for the detection, prevention, education, and punishment of prison rape. However, the PREA standards only apply to federal prisons. State and local facilities that fail to comply with the standards are not automatically acting illegally and, therefore, inmates who have been sexually abused in such facilities cannot obtain relief in court under the PREA. Thus, because state prisons and local jails confine the majority of American inmates, the majority of inmates are not protected by the national standards.
Solutions
One way Congress can protect female inmates is through the power of the purse. Congress passed the PREA under its spending power and, therefore, can incentivize states to pass the national standards by withholding or increasing federal grant money. Additionally, while the PREA was a good first step, many other provisions can be incorporated into the PREA to make it more effective. These provisions should address prison overcrowding, establish a national hotline so prisoners can anonymously report sexual abuse (ARHA), and create a national taskforce to investigate prisons with a high incidence of sexual assaults.
Proposal #1: Anonymous Reporting Hotline Act (ARHA)
Provide the DOJ with funding to create an anonymous telephone hotline, to which prisoners could report sexual abuse.
Hire staff members that deal with specific regions of states.
Require prisoners to provide enough information (such as how and when the attack occurred) to show a substantial claim, but not their names.
Provide information and resources about how best to report the abuse, receive medical and psychological treatment, and obtain legal counsel.
Additionally, to ensure that female inmates are no longer thrown into situations that would make them even more vulnerable to sexual assault, the federal government must adopt an act entitled the Protecting Vulnerable Inmate Populations Act (PVIP). This federal act would mandate that all prison officials working in female correctional facilities be trained to interact specifically with female inmates, prohibit all cross-gender supervision of female prisoners while they are in vulnerable positions (such as showering), and prohibit non-violent first offenders from being placed in the same prison as violent offenders. Additionally, this act would allocate funding to help modernize female correctional facilities so they are easier to police and monitor. Furthermore, I propose that the Department of Justice establish an independent task force to examine the prisons that repeatedly are reported to have high incidences of sexual abuse. The job of the taskforce would be to complete an extensive review of the prison (its policies and practices), and issue individualized recommendations to the prison on how it can best reduce such incidences. Federal funding for prisons would be tied to how well the prison implements these recommendations.
Proposal #2: Protecting Vulnerable Inmate Populations (PVIP)
Prohibit non-violent first offenders from being placed in the same facility as violent offenders.
Mandate that all prison officials working in female correctional facilities be required to be trained to interact specifically with female inmates.
Mandate that non-violent first offenders under the age of 18 be placed in juvenile detention facilities.
Mandate that transgender individuals in the process of transition be placed in a facility of the gender they now identify with.
Allocate funding to help modernize female correctional facilities to make them easier to police and monitor.
But new legislation is not enough. We need changes at the judicial level too. No legal roadblocks should stand in the way of prison sexual assault victims getting the justice they deserve. Therefore, the PLRA should be amended to allow for suits in cases were a sexual assault claim exists and exhausting administrative remedies would be dangerous, frivolous, or unnecessarily cumbersome.Additionally, the Supreme Court should revisit its decision in Farmer and make the deliberate indifference standard an objective standard.Currently victims must prove that individual prison administrators were aware of the potential risk of sexual assault and ignored it. A constitutional violation should not turn on a state actor’s intent. Therefore, the deliberate indifference standard would be better applied as an objective standard, which would require victims to show only that a reasonable person would have been aware of the risk and ignored it.
Proposal #3: DOJ Taskforce
– The DOJ should assign an independent task force to examine the prisons that repeatedly (for three years or more) are reported to have high incidences of sexual abuse.
– This task force should consist of correctional authorities, judges, former prisoners, and prisoner rights advocates.
-The job of the taskforce should be to complete an extensive review of the prison (its policies and practices), and issue individualized recommendations to the prison on how it can best reduce such incidences. Federal funding for prisons would be tied to how well the prison implements these recommendations.
Proposal #4
Amend the PLRA.
Supreme Court needs to revisit the Farmerstandard.
Conclusion
The fact that prison sexual assault is occurring at admittedly epidemic levels in the United States right now is a moral stain on our character. Furthermore, it is an abomination to the Constitution that we hold so dear. The federal government has finally taken historical first steps in combating the problem, but we must do more. We cannot allow this epidemic to continue. So instead of just being invested in the storylines of fake female prisoners on television, let’s invest time in helping real female prisoners combat this cruelty. Because for each moment we stand by simply watching, more women are being victimized and subjected to the devastating effects of sexual assault.