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Congressional Hearing on Sexual Assault in Adult and Juvenile Facilities 2010

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JOHN CONYERS, JR., Mlohlgall


RiCK BOUCHER, Virginia
MELVIN L. WATT, North Corolina
ZOE LOFGREN, Callfomla
WILLIAM D. DELAHUNT, Massachusetts
STEVE COHEN, Tennessee
PEDRO, PIERLUiSi, Puerto Rico
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California


Q:ongress of the tinited ~tates
iIlo11se of'Reprrnmtatiues

HOWARD COBLE, North Carolina
DARRELL E. ISSA, California
TED POE, Tnxas
GREGG HARPER, Mississippi

WASHINGTON, DC 20515-6216


Subcommittee on Crime, Terrorism, and Homeland Security

Robert C. "Bobby" Scott, Chairman
Louie Gohmert, Ranking Republican Member
"Keeping Youth Safe While in Custody:
Sexual Assault in Adult and Juvenile Facilities"

Tuesday, February 23,2010
2141 Rayburn I-louse Office Building
Brenda Smith, Professor American University
Washington, DC

Troy Erik Isaac
North Hollywood, CA
Bernard Warner, Chief Deputy Secretary for Juvenile Justice
Department of Corrections and Rehabilitation, Division of Juvenile Justice
Sacramento, CA
Gabriel Morgan, Sheriff, Newport News, VA
Grace Bauer, Campaign for Youth Justice, Washington, DC

Keeping Youth Safe While in Custody
Testimony submitted by Bernard Warner, chief deputy of the California Division
of Juvenile Justice, and president of the Council of Juvenile Correctional
Administrators (C]CA) Feb. 22, 2010 before the US House Judiciary Sub
Committee on Crime,
Chairman Scott, Chairman Conyers, Ranking Member Gohmert, and all
members of the Crime Subcommittee - thank you for the opportunity to sp~ak
this afternoon about the important issue of keeping youth safe in juvenile
facilities. Clearly, the report released two months ago by the Bureau of Justice
Statistics (BJS) on sexual victimization in juvenile facilities has cast a bright light
on the vulnerability of youth in our care. While there were alarming rates noted
in many juvenile facilities, the truth is any sexual assault is unacceptable.
My name is Bernard Warner and I am the chief deputy of the California
Division of Juvenile Justice (DJJ) where I am responsible for approximately 3,000
juvenile offenders ages 12 - 24, on parole and housed in five large institutions,
with a budget of approximately 400 million dollars and over 2,000 staff. The
state juvenile justice system in California is reserved for the highest risk, highest
need youth in the state that cannot be managed at a local level. Over 95% are
committed for serious violent crimes, and many have significant mental health
and substance abuse issues. There is no greater responsibility I have than to keep
. youth and staff safe in our facilities.
In California, the state juvenile justice system is part of the California

Department of Corrections and Rehabilitation, which also operates the largest
prison system in the country. In both the juvenile and adult corrections, we have
taken the Prison Rape Elimination Act very seriously and were early
implementers of policies and procedures to ensure every effort was made to
eliminate victimization. Key strategies such as employee training, offender
education and appropriate classification of youth has, I believe, had a significant
impact in reducing sexual victimization. We have also established pilot facilities
that work with Just Detention International for independent review of our
compliance with PREA policies and practices.
As result of a consent decree signed five years ago, DJJ has implemented
many reforms to improve the safety of our youth. Better staffing, smaller living
unit sizes, enhanced training in trauma informed care, specialized programs for
those with mental health issues, engaging families -all have contributed to
improvements and cultural change that has reduced victimization. Our facility
in the Los Angeles area, which has housed the most violent, gang entrenched

youth in any correctional environment, actually was listed as a facility with a low
rate of sexual victimization. Some of this can be attributed to our reforms to end
In addition to ~epresentingthe California Division of Juvenile Justice, I am
also here as the current president of the professional association of state agency
juvenile directors called the Council of Juvenile Correctional Administrators
(qCA.). Approximately 90% of states participate in the work of this association.
CJCA's mission is to improve juvenile correctional services so youth leave
state custody with the skills and services they need to succeed in the community.
qCA works to achieve that goal by:
• Educating and training state directors on evidence-based practices and
promising programs;
• Building tools for practitioners that are grounded in research and data and
when implemented, result in positive outcomes for youths, staff and
Last month, CJCA convened a panel of state directors, including those
leading facilities highlighted as "worst" in the BJS report, to talk and strategize
about ways to eliminate sexual violence in facilities. All of the directors from the
nearly 25 states present agreed that the most effective way to prevent sexual
victimization is to ensure youths' safety - from all risks and dangers posed by
facility life. Standards defining policies and procedures specific to sexual
victimization alone will fall short of ending abuse in our facilities. There needs to
be a broader focus on and support for creating an environment that is safe for
youth, and establishing a culture that appropriately defines boundaries between
staff and those under our care. How we make decisions as to where youth are
housed, what programs and services we provide for them and the expectations
for staff to appropriately engage youth, is critical to ending victimization in our
As individual states and as a national association, we are committed to
working with federal partners to reduce and eliminate sexual violence in
facilities. Several of us were invited by the Department of Justice, Office of
Deputy Attorney General to participate in Listening Sessions and offered
additional feedback on the Prison Rape Eliminate Act Commission standards for
juvenile facilities. CJCA is preparing a standard-by-standard comment and
review for the DAG office that will strengthen the standards to more effectively
meet the goal of zero-tolerance for sexual victimization and add data to drive
changes in practice and monitor continued safety in facilities. Although there is
a concern about the fiscal impact on implementing the standards, we also
understand you cannot put a price on preventing victimization.


As we look toward solutions to improving the safety of youth in our care,
we look to the Office of Juvenile Justice and Delinquency Prevention for
resources to support technical assistance. Thedevelopment and implementation
of "best practices" which support staff training, youth assessments, and
programs designed to improve the climate in detention facilities, is critical for
long term improvements in the juvenile justice system. While progress has been
made, certainly the BJS study demonstrates unacceptable failure throughout the

In addition, tools that measure change must be available for all
jurisdictions so agencies can benchmark progress or identify barriers to safe
facilities. qCA is currently working with OnDP to build on existing
Performance Based Standards identify to provide a continuous self-improvement
process that can be integrated into facility and agency operations and sustain
positive change. The BJS report has clearly highlighted this need to better track
data, be transparent and hold the system accountable.
Thank you for the opportunity to testify.
Bernard Warner
Chief Deputy Secretary
Division of Juvenile Justice
California Department of Corrections and Rehabilitation


Testimony of Troy Erik Isaac

Prepared for the United States House of Representatives,
Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Security
Hearing on Keeping Youth Safe While in Custody: Sexual
Assault in Adult and Juvenile Facilities
February 23, 2010

Good afternoon, and thank you Mr. Chairman and members of the
committee for holding this hearing and for inviting me to testify. I am 36 years old,
and have spent most of the past 24 years in California corrections facilities.
I first went into a juvenile facility when I was 12 years old. I didn't know
my sexual orientation, but I knew that I was different. Almost immediately, other
boys began to harass me. After a couple of days, one boy forced me to have oral
sex with him in the shower area. He said to me, 'Your name is gonna be Baby
Romeo and I'm Big Romeo.' He claimed that he would protect me from others, but
he didn't. Soon after that, I was raped by another older boy.
After both rapes, I didn't know who to go to. I was scared to tell anyone
because I didn't know if! would get killed or beaten up. I didn't know if staff
members would take me seriously. No one informed me that this was how the
facility ran.
I realized I needed to figure out what to do to protect myself and keep
myself safe. Guards knew what was happening and looked the other way; I was too
afraid to fight back. So I started telling staff members that I was suicidal; I would
cut my wrists -- anything to get out of that situation and get into isolation. I found
myself in situations I could not handle. People would take advantage of me and I
just didn't know how to get help.
Being attacked and not receiving support from the adults in charge turned
my world upside down. It's a traumatizing experience for someone who is young. I
take that with me wherever I go.
That trauma sent me into a cycle of imprisonment - I kept being sent to
juvenile hall, and later to prisons, where I continued to be assaulted and abused. I
have spent most of my life in prison - never for anything violent. When I was

released two years ago, I committed to staying out of prison. I started a community
service organization, Hands On Advocacy Group. I provide peer counseling and
crisis support, and I talk with young people about my experience and what they can
learn from it.
The recent government report shows that sexual abuse is still rampant in
youth detention centers. In my experience, juvenile facilities don't try hard enough
to prevent it, and they do not like to deal with it when it happens. There were no
preventative measures in place when I was assaulted.
When I was first locked up, when I was first raped, I was a terrified 12 year
old boy. I had never been violent, and I was different - I was skinny and
effeminate. Everything about me made clear that I was a likely target, but the
guards never considered my vulnerability in deciding where to house me. Never
was I provided with the protection that I clearly needed.
Having been incarcerated - and sexually assaulted - in both youth and adult
facilities, I have seen how things are similar and how they are different. Vulnerable
inmates are vulnerable wherever they are, and those protections are needed
everywhere. Young inmates, in particular, need extra attention.
Officials should be careful in their decisions about housing and program
assignments. A slight, first time offender should not be placed with a larger, older
inmate who is serving many years for violent crimes. But youth and other
vulnerable inmates should not be punished with isolation either.
Juvenile detention is supposed to help troubled kids turn their lives around offer them the support they need to return successfully to society, and not be reincarcerated. Allowing youth behind bars to be raped completely contradicts this
mission. Juvenile detention authorities need to take special care in screening
employees and educating youth about their right to be free of abuse.


Despite my experiences, I am hopeful. The standards developed by the
National Prison Rape Elimination Commission include common-sense measures
that would make youth detention facilities safer. One of the things that would have
prevented my abuse is a vulnerability assessment, like what is included in both the
juvenile standards and in the adult prison and jails standards.
The standards also mandate officials to encourage youth to report abuse,
respond with investigations and discipline of perpetrators, and provide proper
after-care care for youth who have been assaulted; including age-appropriate
mental health treatment.
I very much hope that Congress will urge the Attorney General to act
quickly and enact the full set of national standards drafted by the National Prison
Rape Elimination Commission. The sooner these basic measures are put into place,
the sooner we can finally end the sexual abuse of youth in detention.
Thank you again for addressing this problem and for allowing me to share
my story.


"Keeping Youth Safe While in Custody: Sexual
Assault in Adult and Juvenile Facilities."

Gabriel A. Morgan

February 23, 2010

segregation for their own protection. This amounts [0 an additional punishment, inasmuch, as the
juvenile is in an isolation cell for the majority of the day.
These findings and many cited in my written submission begs the question; is this a
violation of the Eight Amendment of our Constitution. Further, as a civilized body are
we guaranteeing the provisions of the Fourteenth Amendment due process and equal
protection clause.
Upon taking office; I was faced with an overcrowded jail that the National Institute of
Corrections called a "ticking time bomb." I had over 700 inmates in a facility that was
designed for 248. Every time a juvenile was transferred to my custody it was a
nightmare. For the protection of the juvenile, I had to PJove adult prisoners into already
overcrowded blocks, further creating an added danger to the adult inmate and the
correctional staff.
This situation was further complicated by the fact that almost 30% of the adults in my
facility suffered from some fOlm of mental illness. I lacked the professional staff to
adequately deal with this population. Our Community Services Board would 'evaluate the
most outrageous behavior. Despite my constant request for additional funding, my
request was denied until there was a tragedy. After a brave deputy by the name of Brian
Dodge was critically injured, losing one of his eyes at the hands of an inmate suffering
from mental illness, I was able to secure a grant to address this pro1;!lem.
It took Corporal Dodge's injury for something to be done. There are plenty ofjuveniles
who have fallen victim in adult facilities. In my state of Virginia a juvenile can be tried
as an adult at the age of14 and they are subject to the same facility as an adult offender.

As a criminal justice practitioner, I mnst also caution of the unintended consequences of
good meaning laws. Please do not saddle us with unfounded mandates that would be
impossible to accomplish without additional resources. We do our best with the limited
resources that are given to us by state and local government. However, since the mid
1980s politicians seeking election or re-election have held the criminal justice system
hostage to sound bites. Politicians talk about getting tough on crime and they pass many
draconian laws without regard to the data and evidence-based practices. As a practitioner
and a taxpayer, I would submit that we must be smarter on crime. We must begin to
focus more on prevention, rehabilitation, and reintegration. We cannot afford to continue
in this marmer. We are wasting human capital along with monies that could provide
greater returns on our investment.
Prevention is always cheaper than correction. It is time to do what was started in the late
1800s in Illinois. 11 is time to ensure a juvenile court system is designed to protect the welfare and
rehabilitation of youthful offenders. We desperately need a system that will recognize that 99%
of these juveniles will return to communities; and it is up to us to decide how they will return.
Thank you for allowing me to be here today and to add my voice in support of America's


Myers, D. (1999, doctoral dissertation). Excluding Violent Youths from Juvenile Court:
The Effectiveness of Legislative Waiver. University of Maryland, Baltimore.
Winner, L., Lanza-Kaduce, L., Bishop, D., and Frazier, C. (1997). The Transfer of
Juveniles to Criminal Court: Reexamining Recidivism Over the Long Tenn. Crime and
Delinquency, 43: 548-563.



YO ~ 1Ht JUSII [f
Grace Bauer, Parent, and Organizer of Families ofIncarcerated Children
Campaign for Youth Justice
Testimony before the House Committee on the Judiciary
Subcommittee on Crime, Terrorism, and Homeland Secmity
Hearing on "Keeping Youth Safe While in Custody Sexual Assault in Adult and Juvenile Facilities"
February 23, 2010

Good afternoon Chairman Scott, Ranking Member Gohmert, and other members of the
Subcommittee and thank you for having me here to testify. I would like to thank you - and
evelyone here today - for focusing on an issue of critical importance that for decades was
ignored and treated with sneers and ignorance.
My name is Grace Bauer and I am the parent of a youth who has been involved with both the
juvenile and the adult criminal jnstice system. I also work with the Campaign for Youth Justice
organizing parents who have had their sons and daughters go through these systems. The
Campaign is a national organization working to end the practice of prosecuting youth in adult
comt and to promote more effective approaches in the juvenile justice system as an effective
alternative for these youth.
As a parent of a young man who has been involved in the system, I unfortunately know better
than most that individuals who are incarcerated are not valued - no matter that those incarcerated
in America number, shamefully, in the millions and their families who love and care for them
number in the tens of millions. It is only through the hard work of many, such as the members of
the National Prisoner Rape Elimination Commission (NPREC) and the Members of Congress
who worked to pass the Prison Rape Elimination Act, as well as national non-profit
organizations such as Just Detention that this work is discussed at all.
As you know, the recently released BJS study found that - witllin the past year - over 13 percent
of youth in juvenile facilities reported sexual victimization by eiilier staff or other youili in the
facility. In addition, we know that this abuse extends to youth who are prosecuted in ilie adult
criminal justice system. The NPREC found tlmt "more than any oilier group of incarcerated
persons, youth incarcerated with adults are probably at the highest risk for sexual abuse" and
recommended that youth be housed separately from adults.

I wish I could say that what happened to my son was a rarity or that we have come so far in the
last nine years that these things don't happen to children anymore. Let me be loud and clear,
there is not one week that goes by in the last nine years that I haven't heard the pain and pleas of
other parents in the same or similar situations: The 13-year-old boy who gets put into a cell with
an older, bigger youth and is blUtally raped while prison guards stand outside the cell and take
bets on which child will be the rapist (the "wi111ler") and which will be the raped. The l4-yearold girl who suffers a life of physical and sexual assault at the hands of her father and begins
leading a life on the streets. After she is locked up, another set of authority figures repeatedly
rape her with no where to IUn this time. The mother who can't approach her son without alerting
him she is coming because, ifhe doesn't know she's coming, he may have a panic attack or
strike out in blind fear of another attack.
What I hate most is after all this time I still don't have good answers for these families any more
than anyone had an answer for me. We do nothing to protect those behind bars and instead
assmne that this is part of the pmlishment they deserve. No one deserves to be violated but it is
even more heinous when it happens at the hands of those with a mandate to keep oW' children
safe. I ask that you consider how we could expect an already vulnerable group of childl'en to live
tlll'ough such violence and neglect all within plain sight of authority and to somehow emerge on
the other side as a well adjusted person ready to return and give back to oW'society. I believe
this is why we - as a country - have outrageously high recidivism rates.
Until the NPREC hearings I wondered if this nation had the coW'age or the political will to look
beyond media hype and the political grandstanding on being tough on crime to get to the heart of
what happens to millions that belong the next generation of Americans. Fortunately, we have
individuals that are tough, but also smart about what the criminal and juvenile justice systems are
incapable of doing for us as a society. These individuals are unafraid to go beyond the rhetoric
and see the horrendous damage done to those who are the most vulnerable and most
umepresented in this country.
After years of documented cases of sexual assault to childl'en in juvenile facilities, I find it
appalling that state administrators still doubt the outcomes of such studies and reports. Many
administrators and other state government authorities continue to doubt the repeated findings of
sexual assault in their facilities and can't accept the overwhelming evidence that it exists. For
me, this means that we must recognize what we can expect of state juvenile justice authorities
when it comes to protecting oW' childrcn and the answer falls extremcly short of oW'
The family court judge in my son's case believed he had no alternative to sending my son away
to a state facility and some practitioners believed they were sending childrcn to facilities that
would improve their lives and help them succeed. I don't blame these people for doing what
they believed to be right. Instead, the blame I have felt is directed at those who have heard my
son's experience and the experience of other families and their children and failed to act.
Therefore, in closing, I echo The Washington Post editorial printed this weekend and call on
Congress to reauthorize the Juvenile Justice and Delinquency Prevention Act, which would
provide protections to youth in both juvenile and adult facilities. I also call on tlle Dcpartment of


Testimony of Just Detention International
For the House Committee on the Judiciary
Subcommittee on Crime, Terrorism and Homeland Security
February 23, 2010
Just Detention International (JDI) thanks the Subcommittee on Crime, Terrorism and
Homeland Security for holding this important hearing on sexual violence perpetrated
against youth in detention. Recent government reports have shown clearly that detained
youth, whether housed in juvenile facilities or with adults, are at serious risk of sexual
abuse - often at the hands of corrections officials.
JDI is an international human rights organization whose mission is to combat
sexual violence in all forms of detention. JDI led a diverse coalition of advocates who
worked closely with politicians on both sides of the aisle to help secure the passage of the
U.S. Prison Rape Elimination Act (PREA) in 2003. Since then, JDI has led the call for
the law's meaningful implementation at the federal, state, and local levels.
Thanks to the strong leadership of PREA's sponsors - House Crime
Subcommittee Chairperson Bobby Scott, Representative Frank Wolf, Senator Jeff
Sessions and the late Senator Edward Kennedy - sexual violence in adult prisons and
jails is finally beginning to be recognized as a serious human rights crisis. The recent
report by the Bureau of Justice Statistics, which prompted this hearing, makes clear that
juvenile facilities also are exceptionally dangerous.
I. Sexual Violence Against Youth in Detention

In its recent survey of youth in juvenile detention, the Bureau of Justice Statistics (BJS)
found that a shocking 12.1 percent - almost one in eight - of youth reported being abused


detainees in juvenile facilities are often afforded less access to legal resources than
inmates in adult facilities. 8
Youth in detention who have previously been abused are more than twice as
likely to be sexually abused while incarcerated. 9 In girls' facilities, youth known to have
a history of prostitution are chief targets for abuse by staff perpetrators. I0 Boys were most
often abused by female staff. Staff sexual abuse is greatly facilitated by the U.S. policy of
allowing officers of the opposite sex to work in all areas of a detention centerll


a policy

that violates international human rights standards and is banned in most developed
Like in adult prisons and jails, predators in juvenile facilities disproportionately
target youth who are lesbian, gay, bisexual, transgender or questioning (LGBTQ).12 In
particular, transgender girls are often tormented by constant sexual harassment, as they
tend to be placed in boys' facilities, in accordance with their birth gender.
II. Increasing Safety for Incarcerated Youth through the PREA Standards
The BJS report confirms what JDI has long known: young detainees constitute an
especially vulnerable population needing special protections. As the National Prison
Rape Elimination Commission explained in its final report, "juveniles are not yet fully
developed physically, cognitively, socially, and emotionally and are ill-equipped to
respond to sexual advances and protect themselves.,,13

See. e.g., Alexander s. v. Boyd, 876 F. Supp. 773, 790 (D.S.C. 1995) (holding that juvenile detainees had
no constitutional right to a law library).
9 BECK, HARRISON & GUERINO, supra note 3, at I.
11 Id. at 63-71.
12 [d. at 1. For more information about the severe danger of sexual abuse facing LGBTQ detainees, see JDI
Fact Sheet, LGBTQ Detainees Chief Targets for Sexual Abuse in Detention (October 2007).
13 National Prison Rape Elimination Commission, Final ReporI atl42-43.



These recommended standards represent a compromise, balancing the rights of
inmates with security interests and other concerns of corrections agencies. Nevertheless,
if fully approved and implemented, they will significantly lower the rate of sexual abuse
in detention and improve the response in the aftermath of an assault.

III. The Attorney General's Review of the Standards
The standards are now with U.S. Attorney General Eric Holder, who by law has until
June 23, 2010 to codifY final standards based on the Commission's recommendations.
Once his final rule is issued, the standards will become federal regulation and will be
immediately binding on all federal facilities; other detention systems in the U.S will have
one year to certify their compliance, or they will lose a portion of their federal
corrections-related funding.
These standards have the potential to save tens of thousands of people from the
devastation of rape every year. Nonetheless, it is already clear that Holder will not meet
his deadline. The Department of Justice has convened an internal PREA Working Group
to review the standards, and the Working Group coordinators have projected that their
work may not be completed until 20 II. Congress should urge Attorney General Holder
and the PREA Working Group to ratify strong standards without undue delay by
deferring to the expertise that informed the Commission's standards.
A significant part of the delay appears to be in response to the claims of
opponents of PREA that coming into compliance with the new standards will be too
costly. Some argue that they represent an "unfunded mandate" and at times go so far as to
suggest that it is too expensive to end prisoner rape. In response, the Attorney General
has commissioned a cost projection study to produce an estimate of how much it will cost


they meet the standards' requirements, but doing so has enormous benefits for the safety
of staff and inmates alike.
III. Conclusion
Sexual violence in detention is not inevitable; it is the result of poor corrections
management, bad policies, and dangerous practices. The national standards mandated by
the Prison Rape Elimination Act, currently before Attorney General Holder, have the
potential finally to help end this type of violence. As such, they constitute a once-in-alifetime opportunity for U.S. corrections reform. JDI urges Congress to demand that the
Attorney General ratify strong standards, without undue delay. Every day without them is
another day in which youth and other vulnerable inmates endure sexual abuse.



Darby Hickey
(202) 580-6935
(202) 250-4869 (cell)


Prisoner Rape Survivor Urges Congress to
Help End Sexual Abuse in Detention
House Subcommittee hearing focuses on rampant abuse ofdetained youth
Washington, DC, February 23, 2010. At a hearing this afternoon, prisoner rape survivor
Troy Erik Isaac will urge the House Subcommittee on Crime, Terrorism, and Homeland
Security to ensure that the Department of Justice finalizes strong national standards
aimed at ending sexual abuse behind bars. These standards were released on June 23,
2009 by the National Prison Rape Elimination Commission and are now bogged down in
a Department of Justice review.

Isaac will be a witness at a Subcommittee hearing that was triggered by the alarming
results of a Bureau of Justice Statistics (BJS) study released last month, "Sexual
Victimization in Juvenile Facilities Reported by Youth, 2008-2009." Through surveys
with juvenile detainees, the BJS found that more than 12 percent - almost one in eight
youth - had been sexually abused in the preceding year alone. In the worst facilities, one
in three youth had been victimized.
"I was raped at age 12 because I wasn't given the protection I obviously needed," Isaac
explains. "Unfortunately, this report makes it painfully clear that sexual abuse of
incarcerated kids remains widespread." Isaac is a member of Just Detention
International's Survivor Speakers Bureau.
Isaac insists that his assaults could have been prevented had the measures required by the
National Prison Rape Elimination Commission's standards been in place. The standards
were developed under the Prison Rape Elimination Act (PREA) of2003. Subcommittee
Chairman, Rep. Bobby Scott (D-VA), who called for today's hearing, was a co-sponsor
ofPREA. The law gives Attorney General Eric Holder one year from June 23, 2009 to
review the Commission's standards. Seven months into that process, it appears certain
that he will miss his deadline, perhaps by as much as a year.
"Every day without these standards is another day in which detained youth will suffer
rape, often at the hands of the very officials who are supposed to keep them safe," says
Lovisa Stannow, Executive Director of Just Detention International.
Just Detention International seeks to ensure government accountability for prisoner
rape; to change ill-informed public attitudes about sexual violence in detention; and to
promote access to resources for those who have survived such abuse.


United States House of Representatives

Committee on the Judiciary

Subcommittee on Crime, Terrorism, and Homeland Security

Testimony of Prof. Brenda V. Smith
American University, Washington College of Law

February 23, 2010

Hearing on
Keeping Youth Safe While in Custody: Sexual Assault in Adult and Juvenile Facilities


Hearing on Keeping Youth Safe While in Custody: Sexual Assault in Adult and Juvenile

Testimony of Prof. Brenda V. Smith



Good afternoon Chairman Conyers and Representative Scott. Thank you for inviting me
here today and for the opportunity to speak with the members of the Subcommittee on
Crime, Terrorism and Homeland Security.

I am a Professor of Law at the American University Washington College of Law. In
November, 2003, I was appointed by then House Minority Leader, Nancy Pelosi to serve
on the National Prison Rape Elimination Commission. I served in that capacity until
August 2009, when the commission "sunsetted" after having issued comprehensive
standards to address sexual abuse of individuals in custodial settings - prisons, jails,
juvenile detention facilities, community corrections and immigration detention settings.
In addition to those roles, I have also directed the Project on Addressing Prison Rape at
the Washington College of Law since 2000. That project was funded by the U.S.
Department of Justice, National Institute of Corrections.

In 2003, the President signed the Prison Rape Elimination Act, or PREA, into law. The
legislation created the Commission and charged the Commission with conducting the
first national study of government policies and practices related to sexual abuse of
individuals detained in our nation's prisons and jails as well as those under community
supervision and held by juvenile justice agencies. Our mandate also required us to
develop and propose national standards for the detection, prevention, reduction, and
punishment of prison rape and other forms of sexual abuse. I

1 See generally, THE PRISON RAPE ELIMINATION AcrOF 2003, Pub. L. 108-79.4 Sept. 2003. SIal



On June 23, 2009, the Commission publicly released its report and standards. 2 Today, I
would like to focus on the standards and findings related to juveniles-juveniles in
detention, in the community and juveniles convicted and housed with adults.

First, I will discuss the findings of the Commission. Second, I will address the recent
Bureau of Justice Statistics (BJS) juvenile data collections-both the collection of
information from juvenile agencies and from youth themselves. Third, I will discuss what
I have learned working with twelve juvenile agencies across the country to address the
sexual abuse of youth in custody. Last, I will provide a number of recommendations for
moving forward.


Findings of the National Prison Rape Elimination Commission

The Commission found that juveniles in confinement ani much more likely than
incarcerated adults to be sexually abused, and that they are particularly at risk when
confined with adults.



The Role of the State

The state has a particular interest in protecting those who are in custody from physical
abuse, particularly sexual abuse. Given the different purposes for which youth are held
away from their family-- rehabilitation and protection rather than punishment-- the state
has an even greater responsibility for youth. The state stands in the place of parents, in
parens patriae. That responsibility brings with it a particular responsibility for protecting

2 See generally, The National Prison Rape Elimination Commission. REPORT. Washington, DC.
June 23, 2009 [hereinafter REPORT]: The National Prison Rape Elimination Commission, STANDARDS FOR
JAILS, Washington, DC. June 23, 2009: The National Prison Rape Elimination Commission, STANDARDS
Washington, DC. June 23, 2009: The National Prison Rape Elimination Commission, STANDARDS FOR THE
Washington, DC. June 23, 2009: The National Prison Rape Elimination Commission, STANDARDS FOR THE
Washington, DC. June 23, 2009.
J See, REPORT supranote,2ftt 140.


youth from abuse. Numerous court decisions and studies have found that youth are
particularly vulnerable because of their youth and different cognitive development than
adults. 4 Developmentally, teens and preteens are even less able to cope with sexualized
coercion from older youth or staff.


The different space that youth inhabit vis-a-vis

authority is recognized in numerous laws - child exploitation, statutory rape, mandatory
reporting, and greater constitutional protections for youth.


Findings Related to Issues in Addressing Sexual Violence in Juvenile

In its study, the Commission found that juvenile agencies need increased training and
education for staff and youth on addressing sexual violence in custody.



Commission also found that, like other settings, internal reporting procedures were
barriers to addressing abuse in custody. 7 Given the developmental profile for youth, the
Commission found that youth must have access to family and legal representatives and
that agencies need to develop investigative techniques suited to juvenile victims. 8 The
Commission also noted that ongoing medical and mental health care were essential for
addressing trauma for youth in custody.9


Youth Imprisoned in Adult Settings

4 Id at 142-143; See also, Roper v. Simmons, 543 U.S. 551, 570 (2005) (banning death penalty for
youth who committed crime before the age of 18); Steinberg, L., & Cauffinan, Boo A developmental perspective on serious juvenile crime: When shouidjuveniles be treated as adults? FEDERAL PROBATION, 63,
52-57 (1999); Woolard, J. L., & Reppucci, N. Doo Researchingjuveniles' capacities as defendants. In T.
Chicago: University of Chicago Press (2000); Berliner, L., & Conte, 1. Roo The process ofvictimization:
The victim's perspective. CHILD ABUSE AND NEGLECT. 14(1),29-40 (1990).
S fd at 142.; see also, Schlozman, B. 1. Letter to Mitch Daniels, Governor, Indiana, Regarding
Investigation of the Plainfield Juvenile Correctional Facility, Indiana (September 9, 2005); Restated and
Amended Consolidated Complaint, Byrd v. Alabama Department of Youth Services (N.D. Ala. Aug.l4,
2003)(No 01433-LSC); State Department of Health & Rehabilitative Services v. Whaley, 531 So.2d 723,
724 (Fla. Dis!. Ct. App. 1988).
6 See, REPORT supra note.2 at 15 I.
, Id.
9 Id at 153-154


The Commission made a particular finding about youth convicted as adults and housed in
adult facilities. The Commission found that these youth were at the highest risk for
sexual abuse. 10 While only twenty percent ofjuveniles housed as adults are there for a
violent crime, fifty percent of adults are incarcerated for violent crimes. II This, along
with the fact that most of these youth have no prior exposure to the adult correctional
environment, makes adult prisons very difficult for youth to navigate and puts them at an
increased risk for sexual abuse. 12 Because of these risks, the Commission recommended
that individuals below the age of 18 who have been sentenced as adults be housed
separately from general adult population. IJ


Youth in Community Corrections Settings

Finally, the Commission found that youth in community settings are also at risk for
sexual abuse. 14 The Commission feels that in order to address sexual abuse of youth in
community custodial settings there needs to be increased supervision of staff, additional
training on healthy boundaries and viable investigations into reports of sexual abuse. 15
Approximately half of adjudicated youth are under community supervision; however,
data on the prevalence of sexual abuse in these settings is non-existent. I will discuss the
lack of data more fully later in my presentation.


The Bureau of Justice Statistics Data Collections of Youth in Custody

Under PREA, the Bureau of Justice Statistics must collect facility level data on the
prevalence of sexual abuse in custody. In order to collect that data, BJS collected several

Idat 156
" ld; See also, Bishop, D. M. Juvenile offenders in the adult criminaljustice system. In M. Tonry
(Ed.), CRIME AND JUSTICE (Vol. 27). Chicago: University of Chicago Press (2000).



ld at 157.
ld 01158; See also, Saker, A. ''Teens' abuser gets locked up for life." THEOREGONIAN (October


l' ld at 158-159.

types of information. First, BJS collected information from correctional authorities and
then it collected information from youth in custody.


The Perspective of Correctional Administrators

Looking at reports by correctional authorities, from 2004-2006, BJS found that juvenile
facilities reported the highest rates of alleged sexual violence-nearly three times the rate
in state prison systems. 16 This was not a surprising result given the vulnerability of youth
and the mandatory reporting requirements for reports of abuse involving youth.

BJS has consistently found more than 2,000 allegations 'of sexual violence were reported
each year, with state run facilities reporting the highest numbers (four to six times the rate
oflocal and private facilities). 17 Additionally, BJS found that nearly two-thirds of all
substantiated incidents that correctional authorities reported were youth-on-youth sexual
violence. IS


The Perspectives of Youth

The most startling data collected by BJS came from the youth themselves. The Bureau of
Justice Statistics collected data from youth in the years 2008 and 2009. In its report,
Sexual Victimization in Juvenile Facilities Reported by Youth, 19 youth reported rates well

beyond those reported by correctional authorities. Twelve percent of youth in state
juvenile facilities and large non-state facilities reported sexual abuse by another youth
and 10.3% reported an incident involving a staffmember. These numbers are very large
\6 See generally, Beck, Allen and Timothy Hughes. THE PRISON RAPE ELIMINATION ACT OF 2003:
JUVENILE CORRECTIONAL AUTHORITIES, 2005-06, Washington, DC. July 2008[hereinafter SEXUAL
note 14 at 2.

\, Idat4.
19 See generally, Beck, Allen, Paige Harrison and Paul Guerino. SPECIAL REPORT: SEXUAL


but not totally surprising given what we know about reporting sexual abuse. Even in the
community, sexual abuse is extremely under-reported. We know the same is true in the
adult settings and it is safe to make the assumption it is true for juveniles.

One of the most surprising findings is that female staff accounted for 95% of the staff
sexual abuse incidents. 2o This is not surprising given that 92% of youth in custody are
male. 21 However, in 2008, only 42% of staff in juvenile facilities under state jurisdiction
was female. 22 This result is consistent with adult data collections 23 This is data that
requires additional attention especially given the commission's recommendations
regarding limitations on cross gender supervision.


Concerns Raised about the BJS Findings

There have been a number of states that have questioned BJS' most recent report; raising
concerns about flawed methodology and the likelihood of youth lying about abuse.
However, in my experience, these numbers are probably underestimated and are
conservative estimates. Even if these numbers were cut in half (6% and 5% respectively)
they are still almost double what juvenile correctional authorities reported at three
percent. This is a significant difference and one that signals, that there needs to be more
training and education for staff and youth as well as improved reporting structures within
juvenile agencies.


What BJS Needs to Explore Further


Consensual Sex

Id al13.
22 fd
23 See, Beck, Allen, Paige Harrison and Carolyn Adams. THE PRISON RAPE ELIMINATION ACT OF
2007 a17.



First, a major area of concern with juveniles in custodial settings is consensual sexual
contact. Developmental information shows that on both a behavioral and cognitive level,
the time at which many of these youth are in custodial settings is also the time when
sexual development is taking place and begin explore and experiment with sexuality.
However, the BJS data does not address consensual sexual contact between youth.

While it is understood that there are both legal and policy prohibitions on sexual contact
between youth of certain ages, in or out of custodial settings, there is some benefit to
knowing what consensual sex between youth in custody looks like so that we can better
talk to youth about appropriate boundaries, healthy expressions of sexuality and safe
choices when dealing with sex. Let me clarify however, I am not by any means proposing
teaching sexual education to youth in custody. However, findings show that youth in
custody, by and large, have victimization histories. This being the case, they do not
always understand that saying no is an option and may agree to sex for a number of
reasons-including coerced andl or strategic sex (sex for protection, sex for trade etc.).
This being the case, we should have mechanisms in place to talk to youth in custodial
settings about healthy choices when dealing with sexual decision-making.


Data on Youth Housed in Adult Facilities

Second, there is little data on juveniles housed in adult facilities. To date, there is no
prevalence data on this specific group. We know, however, they are one of the most
vulnerable populations currently in custody. Based on what we know about the profile of
a victim of sexual abuse in custody -- people who are young, small in stature and new to
the prison! criminal justice system are most vulnerable. This while not a fool-proof
profile, it can describe many ofthe youth currently housed with adults.

While the numbers of youth sexually abused in adult facilities may have been captured by
the reports of adults in custodial settings, without knowing their specific prevalence rates,
it is very difficult to develop methodologies to keep them safe while in custody.
Prevalence rates would let us know things such as where abuse happened, who is most at


risk, who likely predators may be, how often youth report these incidents, how these
incidents are investigated and if there are sanctions-either criminal or administrative. By
and large this would help us to determine classification tools specifically for youth in
adult facilities, develop investigative tools, develop supervision models specific to youth
housed with adults, develop training for staff and youth on preventing and addressing
sexual abuse and overall the best methodology for keeping these youth safe from sexual


Youth in Community Corrections Settings

Lastly, there absolutely needs to be more information about the prevalence of sexual
abuse ofjuveniles held in community custodial settings. Juvenile community settings
cover any custodial setting that is not secure detention-it can include electronic home
monitoring, group homes, boot camps, residential treatment facilities, day reporting,
probation and the like. Arguably, in these settings, staff has more access to youth in
private settings such as their homes or schools, yet there is no data about the prevalence
of sexual abuse in juvenile community custodial settings. As I described with juveniles in
adult facilities, prevalence data would serve many purposes in addressing sexual abuse of
youth in community custodial settings. The community setting is unique in nature and
function, as stich sexual abuse of youth in these settings presents itself in a unique waybe it youth-on-youth or staff sexual misconduct. That being said, the only way we will be
able to address the unique needs of community juvenile corrections is to know and
understand sexual abuse in these settings. Collecting prevalence data in these settings is a
major stepping stone to that understanding.


Experience Working with Juvenile Jnstice Agencies

Beginning in 2005, the Project on Addressing Prison Rape at the Washington College of
Law has worked with twelve juvenile agencies----both state departments of juvenile
justice and state juvenile community correctional agencies-- on addressing and
investigating allegations of sexual abuse ofyouth in custody.


We have learned a number of important things from working with these agencies.

There is a different culture that exists in juvenile agencies - rehabilitation


Juvenile agencies have different legal obligations - due process not cruel and
unusual punishment


There is a different level of knowledge on this issue -- very little information
in juvenile agencies


There is a different culture among youth advocates for addressing sexual
abuse of youth in custody - focused on DMC not on this issues


Juvenile agencies really do care about youth in their custody - for most part
take parens patriae seriously

However, juvenile agencies have a number of barriers that are unlike those in other
correctional settings.

There is little integration of adolescent development training into daily
activities - supervision, discipline, programming


There is a lack of knowledge about how PREA relates to juvenile agencies act framed as prisons and they did not received BJA money


Juvenile agencies have very complicated relationships with outside agenciesChild protective services, courts, advocacy

In addition, there are a number of hot button issues that juvenile agencies have brought
up in training sessions that relate to addressing sexual abuse of youth in their settings.
These issues include:

Addressing adolescent development and sexuality


What to do about false reporting-is it an issue?


Cross gender supervision


Consensual sexual activity between youth


Age disparity between youth housed together


Co-ed facilities


No-touch policies


Addressing PREA in community versus detention settings

It seems that the barriers and issues out number the advantages that juvenile agencies
bring to the table in addressing sexual abuse in their agencies. However, I believe with
additional resources for juvenile agencies, they can and are willing to address issues of
sexual abuse in their settings.


Recommendations for Moving Forward

I hope I have given you a useful overview of both the current status of findings regarding
sexual abuse in juvenile settings as well as some of the barriers. It is important to remedy
the barriers in order to move forward and reduce sexual abuse of youth in custody. To
that end, I would recommend the following:
I. Support the enactment of the standards recommended by NPREC for addressing
sexual violence in youth facilities.
2. Strengthen the ability ofOJJDP to address these issues as part of their compliance
3. Provide funding for development of specialized training for juvenile justice
4. Data collections for prevalence of sexual abuse ofjuveniles in adult facilities as
well as for juveniles supervised in the community
5. Development of appropriate classification tools for youth in custody
6. Special attention to the needs of sexual minorities in juvenile settings
7. Development of models for juvenile agencies to work with advocates for youth in
the community
8. Build the capacity ofjuvenile justice agencies to address adolescent development
and sexuality.



Based on my work over the course of over 20 years, first as an advocates for people in
custody, then as Project Director of a national effort to address sexual abuse in custody
and finally as a Commissioner serving for 5 years on the National Prison Rape
Elimination Commission, I feel strongly that juvenile agencies have a unique ability and
responsibility to address sexual abuse in their settings. However, in order to do that, the
issue of sexual abuse in custody has to be a priority for juvenile justice agencies. That
means they have to be held accountable for protecting youth in their custody. At the
same time, they need to have support for those efforts. Addressing sexual violence in
custody has to be on their agenda along with reducing the numbers of children in custody,
reducing disproportionate minority contact and other important indicators of a
constitutional and caring system of custody for youth. I would recommend additional
funding for OJJDP to improve practice in this area. That being said, juvenile and
community corrections agencies received the fewest resources under PREA. In order for
juvenile and adult agencies who house juveniles to appropriately address sexual abuse of
youth in their custody they will need additional resources to detect, address and respond
to sexual abuse of youth in custody.

Thank you again for inviting me to be here today and for the opportunity to speak to our
proposed standards and our key findings and recommendations.




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