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Prison Rape Victims Deserve Ways to Seek Justice And Accountability

Margaret Winter,
National Prison Project
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June 25, 2009

(Originally posted at Daily Kos.)

Tuesday’s release of the bipartisan National Prison Rape Elimination Commission (NPREC) report called vividly to mind dozens of horrendous prison rape cases the ACLU has investigated that were immunized from legal challenge by a 1996 federal law, the Prison Litigation Reform Act (PLRA) — a law which too often slams the federal court house doors in rape victims’ faces.

The announced purpose of the PLRA was to curb the filing of frivolous prisoner litigation. In reality, the PLRA makes it almost impossible for most prisoners to file any civil rights claims regardless of the merits: Prisoners are forever barred from seeking redress of their most fundamental constitutional and human rights in federal court unless, within a very few days of the violation, they can successfully navigate a maze of arcane, arbitrary and intricate internal grievance rules set by prison officials — rules which civil rights lawyers themselves often find baffling.

The PLRA has an especially harsh impact on victims of prison rape, as the ACLU has discovered time and again in interviews of scores of rape victims in prisons and jails around the country. It was the stuff of nightmares to discover (especially in Texas, which at least until recently deserved the name of Prison Rape Capital of the nation) how many young men are forced into prostitution by violent prison gangs (PDF). It is even more chilling to find out that the common response of prison officials to the victims’ desperate pleas for protection is to tell them their only two options were to “fight or fuck.”

It is equally horrific to discover how commonplace it is for women and men — especially those who are young, gay, mentally ill or otherwise especially vulnerable — to be sexually abused, and sometimes brutally raped, by custodial staff who then warn them that if they report the assault they will be disbelieved, punished and set up on bogus charges that would lengthen their prison terms by years. It is nothing short of heartbreaking to have to tell these men, women and youth that they have no right to go to federal court because, while they were still reeling, trembling and bleeding from sexual assault, they did not manage to fill out the proper forms in the proper order.

Adding immeasurably to the pain and degradation of the rape is the ban on access to the federal courts. Federal civil rights litigation against officials who perpetrate or are complicit in prison rape serves a profoundly important purpose for the individual victim, but beyond that it vindicates the community’s rights: Federal civil rights litigation is a uniquely powerful and effective tool for opening windows into the dark closed worlds of prisons and jails, and letting in the light.

For over a decade, the ACLU has opposed the provisions of the PLRA that put up virtually insurmountable hurdles to prisoners seeking redress in federal courts for inhumane treatment. The National Prison Rape Elimination Commission’s report agrees on the critical importance of reforming the PLRA. The report not only confirms the massiveness of the problem of prison rape and proposes national standards to eliminate prison rape, it also calls on Congress to reform the statute so that prison rape victims may petition the courts for vindication of their basic constitutional rights.

After the death last year of legislation introduced in the House by Representatives Bobby Scott (D-Va.) and John Conyers (D-Mich.) that would have addressed the worst problems created by the PLRA, time is of the essence. No victim of sexual abuse should ever be left helpless and hopeless. It is critical that Congress act now to restore the rule of law to our prisons by reforming the PLRA.

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