> Georgetown and ACLU Comment: Proposed Rule, National Standards to Prevent, Detect, and Respond to Prison Rape (Docket ID: DOJ-OAG-2011-0002, 4/4/2011)

More than 1 million women are currently incarcerated or otherwise under the control of the justice system in the U.S. Many incarcerated women—nearly 60% of female state prisoners nation-wide and as many as 94% of certain female prison populations—have a history of physical or sexual abuse, and their involvement in the justice system leaves many incarcerated women vulnerable to revictimization.

Pursuant to the Prison Rape Elimination Act of 2003 (PREA), the Department of Justice released proposed standards to combat sexual assault in confinement. As seen in the legislative history of PREA, the impetus for the legislation was the male experience of rape during incarceration, leaving out women prisoners’ particular needs. The experience of sexual abuse and rape while imprisoned is different for women than it is for men. Unlike men who are more frequently abused by other inmates, women are more likely to be subject to abuse from a member of the prison staff than from another inmate. The Department of Justice’s proposed standards thus fail to address the needs of incarcerated women in two ways. First, an insufficient attention is paid to staff-on-inmate abuse. Second, the grievance procedures do not adequately account for the fear inmates have of retaliation from staff—as opposed to other inmates—for reporting sexual abuse.

Due to the deficiencies of the proposed standards, the Georgetown University Law Center, the ACLU and other concerned organizations submitted comments to Attorney General Holder asking for standards that address the particular needs of incarcerated women.

Summary of the Comments:

Reporting Procedures In order to effectively combat the danger of retaliation and breach of confidentiality, outside-agency reporting must be required In addition, because incarcerated women are often unable to report sexual assault third-party reporting by witnesses and other inmates should be allowed

Effective Grievance Procedures Victims of sexual abuse in prisons and jails are particularly vulnerable to having grievances rejected on procedural grounds because the trauma of the attack and fear of retaliation may prevent them from reporting under short deadlines. Thus, the statute of limitations must be extended beyond the 20-day timeframe currently in place. Allowing for a complaint to be deemed exhausted if an agency fails to render a decision on the merits after 90 days is necessary. Informal resolution requirements should be by-passed because the process lumps sexual abuse claims in the same category as minor grievances and requires the victim to confront their attacker face-to-face.

Defining "Zero Tolerance" The Department of Justice should define "zero tolerance" so that staff cannot operate within a loophole for disciplinary sanctions The definition should be extended to require staff to report sexual abuse by other staff members By incorporating into staff training how a history of domestic violence increases vulnerability, the staff’s understanding of the histories of most incarcerated women and the need to maintain a position of zero tolerance will better serve the incarcerated women population.

Read the Complete Comments»