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In the Shadows: Sexual Violence in U.S. Detention Facilities

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In the Shadows: Sexual Violence in U.S. Detention Facilities IN THE SHADOWS Sexual Violence in U.S. Detention Facilities A Shadow Report to the U.N. Committee Against Torture by STOP PRISONER RAPE IN THE SHADOWS Sexual Violence in U.S. Detention Facilities A Shadow Report to the U.N. Committee Against Torture 2006 Alternative NGO Report Prepared for the 36th Session of the U.N. Committee Against Torture Copyright 2006 Stop Prisoner Rape. Attributed reproduction of this report is encouraged. Printed in the United States of America. Stop Prisoner Rape 3325 Wilshire Blvd., Ste. 340 Los Angeles, CA 90010 Tel: 213-384-1400 Fax: 213-384-1411 Email: [email protected] Visit our website at www.spr.org. TABLE OF CONTENTS Executive Summary 1 I. Introduction 3 II. Legal Framework 6 A. Eighth Amendment to the U.S. Constitution 6 B. Prison Rape Elimination Act 6 C. U.S. Rape and Custodial Misconduct Laws 7 III. Systemic Conditions Giving Rise to Sexual Assault in Detention 8 A. Over-Incarceration and Prison Overcrowding 8 B. Lack of Proper Inmate Classification 9 C. Prison ‘Code of Silence’ 10 IV. Populations Vulnerable to Sexual Assault in Detention 12 A. First-Time, Non-Violent Offenders 12 B. Youth 13 C. Gay and Transgender Detainees 14 D. U.S. Immigration and Customs Enforcement (ICE) Detainees 15 V. In the Aftermath of Assault: Lack of Services and Redress 17 A. No Confidentiality for Survivors 18 B. Prosecution of Staff Rare 19 C. Inadequate Remedies at Law for Victims 19 STOP PRISONER RAPE EXECUTIVE SUMMARY “In the Shadows: Sexual Violence in U.S. Detention Facilities” was prepared by Stop Prisoner Rape (SPR) for the 36th session of the United Nations Committee Against Torture. The aim of this report is to highlight the widespread sexual abuse of incarcerated men, women, and youth in U.S. detention facilities and to offer recommendations aimed at remedying this acute human rights crisis. U.S. law contains various provisions relevant to combating sexual violence behind bars, including the Eighth Amendment to the U.S. Constitution, the federal Prison Rape Elimination Act (PREA), and state rape and custodial sexual misconduct laws. However, U.S. policymakers and law enforcement authorities are not effectively using this legal framework, despite the clear requirement to do so in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). SPR calls on the U.S. government to use the arsenal of legislation already at its disposal to put an end to the sexual assault of inmates. At a minimum, corrections officials who perpetrate acts of sexual violence against detainees must be held responsible for their crimes. Various systemic conditions of detention in the U.S. today contribute to the unacceptably high rates of sexual abuse behind bars, including: over-incarceration and overcrowding; lack of proper inmate classification; and a pervasive ‘code of silence.’ With more than 2.2 million people in custody at any given time, the U.S. incarcerates a larger proportion of its population than any other country in the world. This over-incarceration has led to serious overcrowding in detention facilities across the nation, forcing prison and jail administrators to convert gymnasiums and other common areas into dormitories. Many facilities also lack proper protocols to ensure that those who are vulnerable to abuse are separated from those who are likely to commit acts of sexual violence. To make matters worse, a ‘code of silence’ adhered to by both corrections officials and inmates continues to keep prisoner rape shrouded in secrecy both inside prisons and jails and in society at large. SPR calls on the U.S. government to reduce overcrowding in its detention facilities. The government must ensure that all inmates are offered safe housing; overcrowding must never be used as an excuse for failing to guarantee every inmate’s right to be free from sexual violence. An effective inmate classification system that identifies vulnerable prisoners and potential predators must be established in all facilities and fully implemented at all times. Policymakers and corrections administrators must also demonstrate to staff and inmates that there can be no place in U.S. prisons and jails for a ‘code of silence.’ While anyone can become a victim of sexual assault in detention, certain groups of inmates are especially vulnerable. Among the chief targets for sexual violence are: non-violent, first-time STOP PRISONER RAPE 1 offenders who are inexperienced in the ways of prison life; youth held in juvenile and adult facilities; gay and transgender detainees, or those who are perceived to be gay or gender variant; and, finally, those held in immigration detention centers. SPR calls on the U.S. government to acknowledge that certain inmate groups are at extreme risk of being assaulted while in custody and to improve the ways in which the safety of these inmates is protected. Simple measures that would help prevent vast numbers of sexual assaults must be established, such as improved surveillance of detention facilities and the strict separation of juveniles from adults. In the aftermath of a sexual assault in detention, a survivor is frequently faced with the threat of continued abuse and further systemic victimization by the prison or jail administration itself. In addition to the dearth of confidential mental health services available to survivors of sexual violence behind bars, a cloud of impunity hangs over prisons and jails nationwide, in breach of both the letter and spirit of the CAT. Adding insult to injury, the vast majority of victims of sexual violence in detention are faced with insurmountable barriers to seeking redress through civil rights litigation. SPR calls on the U.S. government to ensure that inmates have access to prompt and fully confidential mental health counseling and medical care in the aftermath of sexual abuse. The U.S. should also reconsider its system of judicial remedies available to inmates who have been subjected to sexual abuse. Specifically, state and local prosecutors must investigate and prosecute all substantiated instances of custodial sexual misconduct, sexual assault, or rape in custody. In addition, the U.S. Congress must repeal, or at the very least amend, the Prison Litigation Reform Act (PLRA). The plight of survivors of sexual violence in U.S. facilities is further aggravated by the fact that the U.S. government refuses to recognize Article 22 of the CAT, thereby denying victims of abuse in detention the opportunity to communicate directly with the CAT Committee once they have exhausted available avenues of relief within the U.S. legal system. SPR calls on the U.S. government to permit Article 22 communications with the Committee Against Torture. 2 IN THE SHADOWS: Sexual Violence in U.S. Detention Facilities STOP PRISONER RAPE I. INTRODUCTION When photos of United States (U.S.) military “Sexual violence in prison consists not only in direct personnel sexually abusing and humiliating victimization, but also in the daily knowledge that Iraqi prisoners hit the newsstands in April it’s happening. It approaches legitimacy in the sense 2004, the American public was appalled. that it’s tolerated. Those who perpetuate these acts In testimony before Congress, Secretary of of violence often receive little or no punishment. To Defense Donald Rumsfeld described what that extent alone, corrections officials render these happened at Abu Ghraib as “fundamentally acts acceptable. At the same time, we can’t expect un-American.”1 Sadly, Mr. Rumsfeld was a rape victim to report it if he anticipates a lack of wrong. responsiveness, a lack of sensitivity or basic protection The reality is that sexual abuse in detention by those who are charged with his care.” – T.J. Parsell, prisoner rape survivor and President of Stop Prisoner Rape. Testimony is a widespread, systemic problem in U.S. before the National Prison Rape Elimination Commission (August 19, 2005). detention facilities. The U.S. government’s Second Periodic Report to the Committee Against Torture (CAT Committee) asserts that when “unfortunate instances” of such abuse occur, they are promptly and thoroughly investigated and referred for prosecution.2 Unfortunately, that is not the case. On the contrary, prisoner rape is arguably the most widespread and neglected form of human rights abuse in the U.S. today. According to the best available research, one in five male inmates faces sexual assault behind bars.3 While estimated rates of sexual abuse at women’s prisons vary widely, at the worst facilities, as many as one in four prisoners is victimized.4 The Bureau of Justice Statistics (BJS) produced a report in July 2005, based solely on administrative records of reported incidents, which found that 8,210 allegations of sexual assault were reported at prisons, jails, and juvenile facilities in 2004, of which nearly 2,100 were substantiated.5 Rape in detention constitutes torture under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).6 Other forms of sexual assault and harassment in detention may constitute cruel, inhuman or degrading treatment, in which case they also amount to violations of the CAT and other provisions of international human rights law.7 Although the U.S. has recognized that rape in prison violates the U.S. Constitution, the government has failed to comply fully with its treaty obligations. In general, there is a lack of serious governmental effort to address sexual violence behind bars, both in terms of proactive prevention and redress for victims. In particular, corrections officials are rarely held accountable for sexual violence that occurs on their watch. This report first provides a brief overview of the legal framework that exists in the U.S. to address prisoner rape. It then examines the following three core problems related to sexual violence in detention and provides recommendations on how to address them: STOP PRISONER RAPE 3 1.
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