ACLU Statement for the Record for the Senate Judiciary Committee Hearing on Prison Rape Prevention

Rachel King, Legislative Counsel
Washington National Office of the
American Civil Liberties Union

and

Elizabeth Alexander, Director
National Prison Project of the
American Civil Liberties Union

Senate Judiciary Committee Hearing on
Prison Rape Prevention
July 31, 2002

Since November 2001, the American Civil Liberties Union’s National Prison Project has received hundreds of letters from men and women sexually victimized in United States prisons. They describe horrifying accounts of sexual abuse and rape perpetrated by cellmates, prison gangs, correctional officers and other prison staff. Prisoners are desperate for protection and in need of immediate assistance. The Prison Rape Reduction Act of 2002, S. 2619, is a positive step on the road to ending prisoner rape by raising public awareness about the prevalence of attacks and by educating prison staff and administrators on how to prevent assaults in the first place.

Senate Bill 2619 would accomplish these changes by: establishing a prison rape review panel that would have the authority to collect information about rape including the authority to hold hearings and compel testimony; requiring the Attorney General to establish a program for collecting rape complaints; and establishing a national prison rape reduction commission. The bill would also establish a grant program that state and local governments and prisons could apply to for creating rape prevention programs. However, in spite of these positive provisions, S. 2619 fails to address limitations in current federal law that prevent victims of rape from access to the courts to seek redress against their attackers.

Current law contains a number of provisions that make it extremely difficult for prisoners to file lawsuits seeking protection. The most significant barrier is that a prisoner must first exhaust the prison’s administrative complaint process before filing suit in the courts. This structured grievance system can take from three to six months to navigate and sometimes requires sexually assaulted prisoners to confront their attacker face to face, resulting in immense fear and trauma for victims. To force victims to participate in the prison grievance process can expose them to additional attacks and retaliation from officers and other prisoners. As a result, many prisoners choose to avoid filing complaints and never even report attacks.

Many times when prisoners do report sexual assaults their complaints are ignored by prison officials and no decisive action is taken against accused offenders, discouraging other prisoners from registering complaints. A Human Rights Watch investigation into conditions in Illinois prisons uncovered numerous allegations of sexual assaults perpetrated by one corrections officer on several women. Prisoners and staff at the facility were well aware of the officer’s reputation but no disciplinary action was taken against him. Speaking about a similar situation, one Illinois prisoner told Human Rights Watch, “Seeing him everyday showed me what they thought about it.” See All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch, 1996.

The case of Roderick Johnson illustrates the dangers of the exhaustion requirement. Mr. Johnson was raped and assaulted nearly every day for eighteen months by Texas prison gangs. Fortunately, Mr. Johnson filed complaints and exhausted the prison’s grievance process. Unfortunately, prison administrators did nothing to protect Mr. Johnson from these daily rapes until the ACLU filed a lawsuit on his behalf. See attached documents describing Mr. Johnson’s case. At that point, administrators took his claims seriously and moved him to safety. Because the lawsuit is still pending, Mr. Johnson remains in safekeeping and has not been raped since that time. If Mr. Johnson had not completed the complaint process prior to his attorneys intervening in his case, he would have faced another three months of torturous attacks while Texas’s grievance process played out. If the perpetrators of the rapes had been prison staff instead of inmates, Mr. Johnson may not have pursued the administrative grievance process at all.

Besides the exhaustion requirement, current law makes it all but impossible for prisoners who have been raped to find attorneys to represent them. In all other civil rights cases, a successful plaintiff is entitled to have her reasonable attorney fees paid by the losing defendant. But under the Prison Litigation Reform Act, Pub.L. 104-134 (1996), attorney fees for successful prisoner plaintiffs are severely restricted, making it financially impossible for most attorneys to take on even the most meritorious prisoner civil rights cases.

Finally, the Prison Litigation Reform Act contains a particularly draconian “three strikes” provision. If a prisoner has had three lawsuits or appeals dismissed, she is forever barred from filing a lawsuit for damages in federal court, unless she can pay the full $150 filing fee up front. Since most prisoners are impoverished and have little or no opportunity to earn money while incarcerated, this harsh provision may permanently bar them from court, no matter how egregiously their rights have been violated.

The American Civil Liberties Union is thankful that members of Congress recognize the overwhelming pain victims of prison rape experience but the solution for ending their suffering must be a comprehensive effort for reform. While S. 2619 may have the long-term effect of reducing prison rapes, it does not do enough to protect the current victims of this epidemic. We recommend:

• Including exemptions for victims of prison rape and sexual assault from the Prison Litigation Reform Act;
• Removing artificial caps on attorneys’ fees to encourage attorneys to represent abused prisoners;
• Eliminating the filing fee for victims who are filing in forma pauperis; and
• Eliminating the “three strikes” provision that prevents victims from seeking relief.

These changes would significantly improve the ability of prisoners to seek redress against their attackers. Until prisoners are able to fully access the legal system in order to hold their attackers accountable, prison rape will continue to be a problem.