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American University Washington College of Law
Washington College of Law Research Paper No. 2008-49

THE PRISON RAPE ELIMINATION ACT:
IMPLEMENTATION AND UNRESOLVED ISSUES

Brenda V. Smith

This paper can be downloaded without charge from
The Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=1129810

THE PRISON RAPE ELIMINATION ACT:
IMPLEMENTATION AND UNRESOLVED ISSUES
Brenda V. Smith*
In September 2003, the United States Congress unanimously passed the Prison Rape Elimination Act (PREA).1 The
Act was the culmination of a collaborative effort between
human rights, faith-based, and prison rape advocacy.2 The aim
of the Act is to create “zero tolerance” for prison rape3 by using
a variety of tools or mechanisms including data collection;4
grants to the states;5 technical assistance to the states to
improve their practices;6 research;7 the development of national standards;8 and the diminution of federal criminal justice
assistance to states who fail to comply with the standards.9 This
article aims to provide a brief background of the Act and the
important political forces that shaped its passing, the current
status on implementation of the Act, including progress made
with each of the tools, and a prediction about issues that will
arise in the enactment and implementation of the standards
required by PREA.
Genesis of the Act
While prison rape has been an abiding feature of U.S.
prisons almost since their inception,10 the event that contributed
most to the passage of the Prison Rape Elimination Act was the
2001 publication of No Escape: Male Prisoner Rape by Human
Rights Watch (HRW). Though HRW had published several
reports on sexual violence in U.S. prisons dating back to its initial report on the rape of female prisoners, All too Familiar:
Sexual Abuse of Women in U.S. State Prisons, in 1996,11 there
was little traction in Congress to pass legislation aimed at ending sexual violence in custody. In fact, an early effort to pass
legislation introduced by Congressman John Conyers, Jr. (D.
MI) to create a registry of staff involved in sexual abuse of
inmates in custody failed to garner enough support even for
consideration.12 The legislation, “The Custodial Sexual Abuse
Act of 1998,” was stripped from the reauthorization bill for the
“Violence Against Women Act” and was never reintroduced.13
How is it then that a mere five years later, legislation
passed which included provisions aimed at ending all sexual
violence including sexual abuse of inmates by staff? Three
important events created the conditions for passage of the Act:
(1) the increase in persons under custodial supervision, in particular, white men;14 (2) a focus on male-on-male prison rape as
opposed to sexual abuse of women in custody; (3) and the concern among conservatives about the ramifications of sexual violence in custody.15
First, a little known fact about the increase of persons
in custody over the past twenty years, is that an increasing number of white men are being imprisoned as well.16 From 2000 to
2006, the number of white men in custody has increased from
398,000 to 478,000, an eighty-three percent increase.17 The
perception is that those men are first time offenders who are
vulnerable to physical and sexual abuse in custody.
Additionally, the disproportionate number of men of color in

Spring 2008

custody has fed another perception that white offenders will be
sexually assaulted by men of color, predominantly African
American men. That perception was very evident in testimony
before Congress in support of the Prison Rape Elimination
Act18 and is supported by research data which suggests that the
male victims of sexual violence in prison are often white and
that the perpetrators are African American.19
However, there are several reasons to view this data
cautiously. First, there is significant underreporting of all sexual offenses, in general.20 Second, this reluctance to report is
magnified by cultural norms in African American communities
about masculinity, which often prohibit African American
inmates from admitting that they were victimized in custody by
other male inmates. Third, people of color, especially men of
color are disproportionately imprisoned21 – one in thirty-three
African American men is under custodial supervision, and one
in seventy-nine Hispanic men is under custodial supervision.22
In many large jurisdictions, white men make up a very small
percentage of those in custody.23 In a correctional environment,
anyone who is different – racially, physically, or appearance –
is vulnerable. Thus white men, who are in the minority, may be
vulnerable, as would any minority in any prison system.24
Finally, reporting sexual victimization in custody often exposes
victims to additional victimization and retaliation.25
A second factor that contributed to the passage of the
Act is frankly that sexual victimization of women in our society is entrenched. While society takes as a given that women
will be victimized both in the free world and in custody, the
image of male rape was much more disturbing to members of
Congress. In fact, the initial version of PREA only sought to
address male prison rape.26 In the initial congressional hearing,
most of the survivors were male.27 One of the significant critiques of the initial legislation was its failure to include sexual
violence against women in custody, which was more likely to
be staff initiated.28 In its second iteration, PREA included staff
sexual misconduct against inmates, but continued to focus
heavily on male-on-male inmate rape.29 Thus, it seemed that the
unacceptability or perceived greater harm attached to male rape
was a significant factor in the passage of PREA.
The fear of male prisoner rape had its genesis in
several factors. Certainly, one was the increase in the
number of high profile white criminals sentenced to prison
for their crimes. 30 One of the explicit fears was that these
individuals with little experience of the justice system
would be sentenced to prison and victimized sexually and
financially by more criminally sophisticated inmates. 31
There were also significant concerns about homosexual
sex – a key issue for conservative constituencies – and the
spread of AIDS to “innocent” defendants. 32 In particular,
Prison Fellowship Ministries, The Hudson Institute, and
other Christian organizations were visible proponents of
PREA and testified about these issues. 33 Thus, the act
passed because while it sought to remedy a serious domes-

10

lence in state, local, and federal custodial facilities. The simple
tic human rights problem, it also garnered the support of conrequirement of data collection has created important changes
servatives who could frame PREA to their constituencies as
that have the potential to reduce sexual violence in custody.
advancing interests that were core to their political ideology and
First, BJS had to develop common definitions of sexual viopolitically salient for the Republican-dominated Congress.
lence in custody.44 Prior to enactment of PREA, there was
Human rights organizations like HRW and Stop
Prisoner Rape (SPR) were critical in defining the contours of
tremendous variation in definitions between and within states
about what constituted sexual violence against inmates.45
PREA.34 Essentially, they made political and strategic concesMany states had no policies that articulated prohibited sexual
sions, such as explicitly providing that PREA does “not create a
contact between staff and inmates and between inmates and
private right of action”35 and “protects the Eighth Amendment
36
other inmates.46 Still others only defined sexual intercourse as
rights of prisoners” in order to secure PREA’s passage.”
sexual violence,47 failing to recognize that other behaviors such
These concessions neutralized concerns raised by powerful
as
verbal sexual harassment, voyeurism, fondling, oral and anal
unions and the corrections community in response to the earli37
sex,
and forcing inmates to masturbate or have sex with other
er Custodial Sexual Abuse Act of 1998 - that the legislation
inmates
was also sexual violence. In part, this failure to identiwould create a new avenue for prisoner litigation, resulting in
fy
these
behaviors
as prohibited was based in lack of knowledge
damage awards and attorneys’ fees. In fact, correctional actors
about
sexual
behavior
in general and about lack of knowledge
like the American Correctional Association and the Association
of
sexual
behavior
in
custodial
settings, in particular.
of State Correctional Administrators were caught unaware by
In
order
to
create
a data collection instruthe passage of PREA and came in at the end of
ment,
BJS
had
to
collaborate
with a different set
the process to ameliorate the impacts of PREA
of
players,
in
particular
the
Centers
for Disease
by testifying in support of grants to assist states
At base, however, PREA
48
38
This
collaboration
created a
Control
(CDC).
and agencies to meet PREA’s requirements.
established a set of tools – less security focused instrument and one that
Finally, PREA’s initial proponents did
data collection, research, seemed much more public health focused. At
not involve established advocates and litigators
training, technical assis- the same time, these collaborations emboldened
who had primarily litigated and worked on
39
the CDC to combine its work on HIV and AIDS
issues of sexual abuse of women in custody.
tance, grants, and stanIndeed, the HRW report that generated initial dards – to prevent, reduce, and sexual violence to draw important connections about prison as a vector for contracting
action on the litigation made little reference to
and sanction sexual vioHIV and AIDS.49 This was a particularly importhe earlier report authored by the Women’s
lence
in
custody.
40
tant
connection given new theories that one of
This failure to
Rights Division of HRW.
the
reasons
for the increasing rates of HIV infecaddress staff sexual abuse of inmates, which
tion
in
communities
of color was a result of men
disproportionately affects women in custody,
of
color
who
had
been
formerly
imprisoned
and contracted
delayed initial passage of PREA. At the end of the day, howevHIV/AIDS
while
engaged
in
unprotected
voluntary
or forced
er, PREA passed unanimously in both houses of Congress. In
50
sex
while
incarcerated.
this way, regardless of the underlying political and strategic reaThe data collection has had a clear impact on the corsons behind its passage, PREA signaled an important shift
41
rections
community
– both adult and juvenile. In structuring
toward more humane treatment of persons in custody.
the data collection, BJS chose a three-pronged strategy: (1) creating a baseline by doing an administrative records data collecCurrent Status of Implementation of PREA
tion of sexual violence reported by correctional authorities; (2)
collecting information directly from inmates; and (3) looking
for independent indicators of sexual violence from medical and
PREA is an ambitious piece of legislation which funother records.51 Thus far, BJS has deployed the first two stratedamentally seeks to prohibit sexual violence in all custodial corgies
with some success.
rectional settings – juvenile, adult, community corrections, and
The first baseline survey, "Sexual Violence Reported
immigration – whether operated by the federal, state, or local
by Correctional Authorities," was completed in July 2005.52
government. At base, however, it established a set of tools –
data collection, research, training, technical assistance, grants,
This publication analyzed the incidents of sexual violence in
and standards – to prevent, reduce, and sanction sexual violence
calendar year 2004 that correctional officials reported knowing.
in custody. In the event that these measures did not work,
This initial survey included data on both adult and juvenile
PREA leaves open the option of denying five percent of federfacilities. The comparisons were stark and in many ways sural criminal justice assistance to states and agencies that do not
prising. This survey made clear that juvenile agencies reported
meet the federal standards.42
much higher rates of sexual violence—both staff sexual misconduct and youth-on-youth sexual abuse, three and seven
Data Collection
times higher respectively—than adult facilities. This is due in
large part to mandatory reporting statutes that require juvenile
One of the major features of PREA is the requirement
agencies to report all incidents of physical or sexual abuse and
of data collection. While seemingly uncontroversial, this is a
the continued oversight of outside agencies and actors in the
very important tool for behavior change - whenever individuals
43
juvenile justice system.53
or agencies collect data it changes behavior. In this instance,
In the initial study, adult facilities had exceedingly low
Section four of PREA requires the Bureau of Justice Statistics
(BJS) to collect statistics on the incidence of prison sexual viorates of sexual violence—both inmate-on-inmate and staff sexual

11

Criminal Law Brief

misconduct or violence in an entire year.55 Several of the states
reporting no complaints or low complaints were involved in
ongoing public investigations of sexual violence in their facilities.56 Other important findings included the high rates of sexual violence committed by female staff, both with regard to
male inmates and with regard to youth of any gender. The
report found that the most likely perpetrator of sexual violence
in state prisons was a female staff member.57 Certainly this is
reasonable given that 93.1% of persons in custody are male.58
It was surprising nonetheless. The study found that women
were more likely to be victimized in jail than in prison and that
girls were at higher risk for sexual violence than boys in custody.59
In 2007, the study was repeated but changed to include
acts of sexual contact that “appeared to be willing.” The study
found that agencies characterized the large majority of staff on
inmate sexual abuse as “consensual” notwithstanding both policies and laws, which prohibit the conduct and in many instances
specifically provide that inmates cannot “consent” to sex with
staff.60 Finally, the study found that fifty-five percent of staff
sexual misconduct and forty-five percent of inmate-on-inmate
sexual abuse complaints that correctional authorities received
were closed as unsubstantiated, meaning that agencies could
neither prove nor disprove that the conduct occurred—a measure of the efficacy of institutional investigations.61
In the fall of 2007, BJS published the findings of its
first inmate survey. Not surprisingly, the sexual violence
reported by inmates was much higher than that reported by correctional authorities. Inmates reported sexual violence rates of
4.5% per 1,000 inmates62 compared to 2.91% reported by correctional authorities for 2006.63 The survey was consistent with
the report of the correctional authorities in several important
respects. In both reports, the ratio of staff sexual misconduct
and inmate-on-inmate sexual violence was approximately the
same, the rates of sexual and non-sexual staff misconduct was
nearly identical, and overall federal facilities had the lowest
reported rates of sexual violence.64 While it is not possible to
directly compare the correctional authority survey and the
inmate survey,65 it is important to note correctional authorities
reported 6,528 cases of sexual violence in 2006, whereas one
year later, in 2007, inmates reported 189,400 cases.
Based on the inmate survey, BJS was able to analyze
facility level data.66 BJS used both sets of reports to create a list
of facilities with the three highest and two lowest rates of sexual violence. These facilities were required by statute to appear
before a review panel created by PREA67 to explain their incident rates.68 The selected facilities included state adult correctional facilities from Nebraska, Indiana, Florida, Texas, and
California Departments of Corrections and the Federal Bureau
of Prisons.69 While some facilities admitted that they had serious issues with sexual violence in custody, several argued that
their high numbers reflected improved grievance and investigative processes. Interestingly, states with the lowest numbers
made the same claims and pointed to leadership and healthy
institutional culture as preventive features.

Spring 2008

Research
Thus far, reactions to funded research about sexual
violence in custody have been mixed. While much research has
been funded by the National Institute of Justice (NIJ) and the
Bureau of Justice Assistance (BJA), little has been completed.
For example, NIJ funded eight research projects including
research on: policies and practices in male and female prison
facilities; assessment tools and instruments and descriptive
analysis of characteristics of perpetrators and victims; prison
perceptions of sexual violence; classification and risk assessment for vulnerability and predation; impact of victimization;
sexual violence in the context of other violent acts in female
facilities and jails; jails and their design, safety and security as
they implement interventions to sexual violence; and promising
practices in juvenile institutions and jails. Once completed, this
research has the potential to identify risk factors for both vulnerability and propensity to commit sexual violence. It also has
the potential to identify effective strategies to prevent, reduce
and respond to sexual violence—for both victims and staff and
inmate perpetrators. Thus far, only one project by Mark
Fleischer has been completed and disseminated and even that
report has received significant critique as being inaccurate,
methodologically flawed and unhelpful.70
Training and Technical Assistance
One area where there has been tremendous progress
has been in training and providing technical assistance to the
states to address sexual violence in custody. Under Section five
of PREA, NIC received funding to administer a national clearinghouse on sexual violence in custody and to provide training
and technical assistance to the field.71 NIC was well situated to
accomplish this given its decade long work to address staff sexual abuse of inmates, prior to the enactment of PREA. In
accomplishing its mandate, NIC awarded two cooperative
agreements—one to American University, Washington College
of Law, which it had funded since 2000 for its work on staff
sexual abuse of persons in custody, and another to the Moss
Group, led by Anadora Moss, a former NIC employee and longtime correctional leader in the area of sexual violence against
women in custody. To date, the projects have collaborated to
provide training or technical assistance, and often both, to every
state, the District of Columbia, Puerto Rico, Guam, and facilities in Indian country.72 Additionally, the projects have produced research, reports, curricula, web chats, videoconferences,
and training films that have provided valuable resources for all
of the various institutional actors involved in implementing
PREA.73
Grants to the States
Another important feature of PREA, strongly advocated by
correctional authorities, was the authorization of funds to assist states
to meet the PREA requirements.74 PREA authorized $60MM in
funds to the states; Congress appropriated $40MM. Thus far, BJA
has made approximately fifty grants to thirty-three different states and
several additional grants for research, technical assistance and the
development of training in key areas. States have used the grants

12

citizens and advocacy groups.
to provide training for staff and offenders,75 improve or create
investigative structures,76 develop data collection capacities,77
Currently, the Commission plans to publish draft stanenhance security by installing cameras or identifying institudards for public comment in June 2008 and to end its work in
tional vulnerabilities,78develop classification and housing
June 2009.87 The Commission will hold hearings in order to
79
options for victims and perpetrators, enhance medical and
solicit public comment in June 2008. After the standards are
mental health treatment for victims,80 community reintegration
finalized, the Commission will transmit them to the Attorney
and services for victims and perpetrators,81 and hiring staff to
General of the United States, who will issue a final rule within
implement PREA.82 These grants have been extremely helpful
a year of receiving the standards.88 During that year, there will
to corrections agencies and have both improved practice and
be another opportunity for public comment. Ninety days after
created buy-in among agencies for implementing PREA. There
the publication of the final standards by the Attorney General,
has been significant critique, however, about poor coordination
they will be immediately applicable to the Federal Bureau of
of the grants, the lack of readily available information about
Prisons.89
who has received grants and the aims and outcomes of the
The Commission anticipates significant comment and
grants, and the lack of funding to Native American communisome opposition from the correctional and advocacy communities, jails, juvenile agencies and local governments.
ties, particularly with regard to standards on supervision, trainIn addition to grants to states, BJA has also funded
ing, oversight and discipline. The reality is that
several research and service delivery projects.
One of the most concrete the standards will be perceived as going too far
For example, BJA provided funds to: the
or not far enough, depending on the goals of the
American Probation and Parole Association to aims of PREA is the publicritic. However, the development of even these
develop a community corrections guide for
cation of a report on the initial standards is an important first step and
compliance with PREA and develop PREArelated products for tribal jurisdictions; the causes and consequences of significant contribution to eliminating sexual
American Prosecutor Research Institute to com- prison sexual violence and violence in custody.
plete a publication on prosecuting sexual vio- the development of national
Important Unresolved
lence in institutional settings; Community
standards for the prevenIssues
Raised by PREA
Resource for Justice to develop a guidebook on
tion, investigation and
residential community corrections; and the
Center for Innovative Public Policy to develop prosecution of prison rape. Thus far the enactment and implementation of
PREA have raised important issues which may
curricula and technical assistance for law
enforcement and jails.
or may not be resolved with the enactment of the standards.90
While this article does not permit the space to identify and anaThe Development of National Standards
lyze each of those issues, I will “flag” a number of important
unresolved issues. For example:
One of the most concrete aims of PREA is the publication of a report on the causes and consequences of prison sexu1. Has the Prison Litigation Reform Act (PLRA)91
al violence and the development of national standards for the
created a situation where serious problems remain
prevention, investigation and prosecution of prison rape.
concealed until they are too serious to deal with
Section 7 creates the National Prison Rape Elimination
except through litigation?
Commission. The Commission, appointed by the President of
2. Should claims of sexual violence be exempt from
the United States and the House and Senate leadership of both
the exhaustion and physical injury requirements
of PLRA?
parties, has held hearings83 and has begun the process of writ3. Are fundamental challenges and changes to the
ing both its report and the national standards.84 The draft report
institutional culture of prisons the best ways to
and standards will cover a range of topics including leadership
address sexual violence?
and accountability, prevention, training, reporting, data collec4. How do we address the racial and gender implition, discipline, investigations, medical and mental health servcations of sexual violence in custody?
ices and prosecution.85 Initially, the standards were to be final
86
5.
Can
prisoners be victims too? If so, should we
by July 2006.
However, delays in appointing the
revisit
the ban on the use of VAWA and VOCA92
Commission, securing appropriate resources and staff for the
funding
for persons in custody to address the
Commission’s work, and the delay in the publication of surveys
needs of victimized men and women in custody?93
and research by other federal actors such as BJS and NIJ, have
6. Should we prosecute women staff who abuse
delayed the development and publication of the standards. For
female and male inmates to the same degree and
example, BJS has not published any data on the prevalence of
with the same vigor that we do with male staff or
sexual violence in youth facilities since 2005, nor has it done
are
women, regardless of their status as inmate or
any data collection on facilities run by community corrections
staff,
always less powerful in sexual interactions
agencies. This lack of data collections means that these agenin
custodial
settings?94
cies are less ready to implement the national standards because
7. What are the legal and other implications of crethey have not had to examine the issues of sexual violence in
ating registries for those involved in sexual vioresponse to BJS data collection or ensuing oversight by media,
lence in custody, even in the absence of a crimi-

13

Criminal Law Brief

nal conviction?
8. What is a permissible continuum of sexual behavior in institutional settings?95 Can there be consensual sex between inmates; can there be consensual sex between staff and inmates?96
9. Should the loss of sexual autonomy be a necessary corollary of imprisonment?97
10. Could conjugal and family visiting programs like
those established in other countries help prevent
sexual violence in custody?98
11. Given that we now know that prisoners engage
both voluntarily and involuntarily in high-risk
behaviors that affect the communities they return
to, should we invest in preventive measures such
as condom distribution in prisons?99
12. Are credible grievance systems that have assurances of confidentiality and protection from retaliation sufficient to inform prison administrators of
problems or is resorting to external accountability
systems—inspector generals, ombudsmen, oversight committees—the most effective way to
intervene in institutional abuse issues?
These are all questions that are being debated and are trying to
be resolved in some fashion during this process of implementing PREA. The discourse, resolution or tabling of these issues
has the potential to both advance and retrench the legal and
societal response to sexual violence in custody.
Conclusion
The enactment of the Prison Rape Elimination Act has
already affected correctional and societal responses to sexual
violence in custodial settings. The data collection has created
important visibility for the issue and spurred media, advocacy
and governmental oversight over agency responses to sexual
violence in custody. The training and technical assistance
efforts by NIC and BJA have increased the capacity of agencies
to respond appropriately to sexual violence in custody. Federal
grants have also seeded important state efforts to prevent sexual violence and improve agencies’ response to sexual violence
complaints and victims of sexual violence in custody. Pending
research also has the potential to identify risk factors for vulnerability and propensity for sexual violence in custody. This
research may engender the development of new tools to prevent
sexual predation. It may also illuminate a more complete catalog of sexual behavior in institutional setting and identify modification to policies—conjugal and family visiting, abuse prevention, survivor services, and HIV/AIDS education—that may
more accurately define and address sexual behavior in institutional settings.
Finally, the standards have the potential to create a
floor for appropriate and constitutional responses to sexual violence in custody, leaving jurisdictions free to provide greater
services and protection. These standards will make our domestic policies more congruent with international norms and
treaties.100 Perhaps most importantly, credible implementation
of the act will send the message to prisoners, families and society that sexual predation of any kind is neither a collateral con-

Spring 2008

sequence101 nor part of the penalty102 of imprisonment.

1

Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. §§
15601-15609 (2003).
2 See Prison Rape Reduction Act of 2003: Hearing on H.R.
1707 Before the Subcomm. on Crime, Terrorism, and Homeland
Security of the H. Comm. on the Judiciary, 108th Cong. 4-5
(2003) (letter from Prison Fellowship Ministries (PFM) with
coalition signatures from organizations such as Human Rights
Watch, Stop Prisoner Rape, the Christian Coalition, and the
Religious Action Center of Reform Judaism) [hereinafter
Hearing on Prison Rape Reduction Act of 2003]; see also
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S.
PRISONS (2001) [hereinafter NO ESCAPE].
3 See PREA § 15602(3)(1) (establishing a zero tolerance standard for the incidence of prison rape in prisons in the United
States).
4 Id. § 15602(4)(a).
5 Id. § 15605(6)(a).
6 Id. § 15604(5).
7 Id. § 15605(6)(a).
8 Id. § 15606(7).
9 Id. § 15607(8)(c)(2).
10 See NICOLE HAHN RAFTER, PARTIAL JUSTICE: WOMEN IN STATE
PRISONS, 1800-1935, at 97-98 (Northeastern 1985). Rafter gives
a first-person account of the especially poor situation of women
prisoners in the South, detailing their living conditions, which
includes the constant supervision by male corrections officers.
Id. She details an account of Molly Forsha, who was convicted of murder in the mid - 1870s, and gave birth to twins while
incarcerated at Nevada State Prison at Carson City - allegedly
as a result of sexual activity with the prison warden. Id. at 98.
Rafter also discusses the opening of the Indiana Women's
Reformatory by Charles and Rhoda Coffin in 1873. Id. at 2933. The Coffins had observed that the conditions endured by
women prisoners when housed with male offenders were abhorrent, and often resulted in women being forced to engage in
sexual activity at the whims of their jailers. This was due largely to the fact that the male corrections officers held the keys to
the women’s cells. The Coffins’ Reformatory, as a result, was
the first one to employ an entirely female staff. Id. at 29-31; see
also ESTELLE B. FREEDMAN, THEIR SISTERS’ KEEPERS: WOMEN’S
PRISON REFORM IN AMERICAN, 1830-1930, at 59 (University of
Michigan Press 1984).
11 See generally WOMEN’S RIGHTS PROJECT, HUMAN RIGHTS
WATCH, ALL TOO FAMILIAR: SEXUAL ABUSE OF WOMEN IN U.S.
STATE PRISONS (1996) [hereinafter ALL TOO FAMILIAR]; see also
WOMEN’S RIGHT’S PROJECT, HUMAN RIGHTS WATCH, NO WHERE
TO H IDE : R ETALIATION A GAINST W OMEN IN M ICHIGAN S TATE
(1998), available at http://www.hrw.org/reports98/women/; NO
ESCAPE, supra note 2, at 4-5; AMNESTY INT’L, “NOT PART OF MY
SENTENCE:” VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN
CUSTODY 5 (1999); AMNESTY INT’L, USA: THE FINDINGS OF A
VISIT TO VALLEY STATE PRISON FOR WOMEN, CALIFORNIA

14

(1999); AMNESTY INT’L, CHILDREN AND WOMEN ABUSED IN
CORRECTIONAL
FACILITIES
(1998).
12 See Violence Against Women Act of 1999 (VAWA II), H.R.
357, 106th Cong. (1999); see also Press Release, Rep. John
Conyers, Conyers Introduces Omnibus Bill to Stop Violence
Against Women and Their Children (May 12, 1999), available
at http://www.house.gov/conyers/pr051299.htm. The Custodial
Sexual Assault Act is found at §§ 341-346 of the Violence
Against Women Act of 1994 (VAWA I) (demonstrating that
though introduced as part of VAWA I, legislation addressing
sexual violence against incarcerated persons never gained
enough support to be included in the legislation that ultimately
passed).
13 See generally VAWA II, H.R. 357, supra note 12; see also
Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat.
2960 (2005).
14 See WILLIAM SABOL, HEATHER COUTURE & PAIGE HARRISON,
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PRISONERS IN 2006, at 6 (2007) (noting the increase of prisoners
under state and federal custodial jurisdiction from 2000-2006).
15 See, e.g., Hearing on Prison Rape Reduction Act of 2003,
supra note 2, at 2-3, 6-8 (prepared statement of the Hon. Robert
C. Scott, Rep. in Congress from Virginia, and ranking Member,
Subcomm. on Crime, Terrorism and Homeland Security).
16 See SABOL, COUTURE & HARRISON, supra note 14, at 6.
17 Id.
18 See Hearing on Prison Rape Reduction Act of 2003, supra
note 2, at 115-17 (prepared statement of Pat Nolan, President,
Justice Fellowship) (describing the sexual victimization of John
William King, a white burglar also involved in the racially
motivated death of James Byrd, who was gang-raped by
African-American prisoners after being placed in the “black”
section of the prison).
19 See ALLEN BECK, PAIGE HARRISON AND DEVON ADAMS,
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SEXUAL
VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2006, at 4
(2007) [hereinafter BECK, HARRISON & ADAMS 2006]. In 2006,
whites made up 72% of the victims; blacks 16% and Hispanics
9%; among perpetrators, 49% were black, 39% were white and
10% were Hispanic. Id.
20 See RAPE, ABUSE AND INCEST NATIONAL NETWORK,
REPORTING RATES, available at http://www.rainn.org/get-information/statistics/reporting-rates (last visited Mar. 26, 2008).
(determining that “sexual assault is one of the most underreported crimes, with 60% still being left unreported and males
are the least likely to report a sexual assault, though they make
up approximately 10% of all victims”); see also U.S. DEPT. OF
JUSTICE, OFFICE OF THE INSPECTOR GENERAL: DETERRING STAFF
SEXUAL ABUSE OF FEDERAL INMATES 3 (2005) (noting that sexual abuse of female inmates is both underreported and alarmingly prevalent).
21 See generally SABOL, COUTURE & HARRISON, supra note 14,
at 7; see also MARC MAUER, RACE TO INCARCERATE 118-61 (2d
ed. 2006) (discussing recent developments under the Bush
Administration and updated statistics, graphs, and charts
throughout, to illustrate the growth in the number of prisons and
jails and the overreliance on imprisonment to stem problems of
economic and social development); The Sentencing Project,
http://www.sentencingproject.org/IssueAreaHome.aspx?IssueI

15

D=3 (last visited Mar. 17, 2008) “More than 60% of the people
in prison are now racial and ethnic minorities. Id. For Black
males in their twenties, 1 in every 8 is in prison or jail on any
given day.” Id.
22 SABOL, COUTURE & HARRISON, supra note 14, at 8.
23 See, e.g., STATE OF NEW YORK DEPARTMENT OF
CORRECTIONAL SERVICES, HUB SYSTEM: PROFILE OF INMATE
POPULATION UNDER CUSTODY ON JANUARY 1, 2007, at i (2007),
available at http://www.docs.state.ny.us/Research/Reports/
Hub_Report_2007.pdf (finding that as of January 1, 2007, New
York's inmate population was 20.5% white/non-Hispanic,
51.1% African American and 26.3% Hispanic); see also DATA
ANALYSIS UNIT, ESTIMATES AND STATISTICAL ANALYSIS SECTION,
OFFENDER INFORMATION SERVICES, CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION, CALIFORNIA PRISONERS AND
PAROLEES 2006: SUMMARY STATISTICS ON ADULT FELON
PRISONERS AND PAROLEES, CIVIL NARCOTIC ADDICTS AND
OUTPATIENTS AND OTHER POPULATIONS 23 (2007), available at
http://www.cdcr.ca.gov/Reports_Research/Offender_Informati
on_Services_Branch/Annual/CalPris/CALPRISd2006.pdf
(observing that in 2006, California's inmate population was
27.6% white/non-Hispanic, 28.8% African American, and
37.8% Hispanic); FLORIDA DEPARTMENT OF CORRECTIONS,
2006-2007 ANNUAL REPORT: INMATE POPULATION AS OF JUNE 30,
2007, at 67 (2007), available at http://www.dc.state.fl.us/
pub/annual/0607/PDFs/imPop.pdf (finding that as of June 30,
2007, Florida's inmate population was 46.2% white/nonHispanic, 50.2% African American and 3.6% Hispanic).
24 Robert W. Dumond, The Impact and Recovery of Prisoner
Rape, Paper presented at the National Conference “Not Part of
the Penalty:” Ending Prisoner Rape (Oct. 19, 2001); see also
WILBERT RIDEAU, The Sexual Jungle, in LIFE SENTENCES: RAGE
AND SURVIVAL BEHIND BARS 90-91 (Wilbert Rideau and Ron
Wikberg eds. 1992).
25 See ALL TOO FAMILIAR, supra note 11, at 4-5; see also U.S.
GEN’L ACCOUNTING OFFICE: WOMEN IN PRISON, SEXUAL
MISCONDUCT BY CORRECTIONAL STAFF: REPORT TO THE
HONORABLE ELEANOR HOLMES NORTON, HOUSE OF
REPRESENTATIVES 7-8 (1999) (reporting that the full extent of
staff sexual misconduct is unknown and underreported nationally due to the fear of retaliation and vulnerability felt by female
inmates, and that jurisdictions do not have readily available
comprehensive data on the number, nature, and outcome of sexual misconduct allegations); see also Hearing before the
National Prison Rape Elimination Commission: “Reporting,
Investigating and Prosecuting Prison Rape: What is Needed To
Make The Process Work?” (Aug. 3, 2006) (testimony of Necole
Brown), available at http://nprec.us/docs/
detroit_survivor_brown.pdf.
26 See Prison Rape Reduction Act of 2002: Hearing on S. 2619
Before the Sub. Comm. on the Judiciary, 107th Cong. 2-3
(2002) (statement of Wendy Patten, U.S. Advocacy Director,
Human Rights Watch), available at http://www.hrw.org/reports/
2001/prison/rapebill-statement.pdf (discussing the organization’s report, NO ESCAPE: MALE RAPE IN U.S. PRISONS, and proposing several changes to the legislation, none of which included addressing sexual abuse of women prisoners).
27 See, e.g., id. at 8-9 (testimony of Linda Bruntmyer) (describing the victimization of her son Rodney who was incarcerated
at age 16, sentenced to eight years in adult prison for setting a

Criminal Law Brief

dumpster on fire, became a victim of prison rape and eventually hanged himself while in prison due to shame and hopelessness); see also id. at 46-52 (statement of Lara Stemple,
Executive Director, Stop Prison Rape) (providing three victim
survivor stories from three inmates, two of whom were men);
id. at 14 (statement of Robert W. Dumond, Clinical Mental
Health Counselor, and Member, Board of Advisors, Stop Prison
Rape, Hudson, New Hampshire) (discussing two studies of
Midwestern prisons conducted by Cindy Struckman-Johnson
and her colleagues which found that some male prisoners experience 100 incidents of victimization a day, and also noting that
of the 15 empirical studies available on the matter only 2
included women).
28 See BECK, HARRISON & ADAMS 2006, supra note 19, at 7.
29 See generally PREA, 42 U.S.C. §§ 15601-15609 (2003).
30 See, e.g., Alexei Barrioneuvo, Enron’s Skilling is Sentenced to
24 Years, N.Y. TIMES, Oct. 24, 2006, available at
http://www.nytimes.com/2006/10/24/business/24enron.html?th
&emc=th; Brooke A. Masters, Martha Stewart Sentenced to 5
Months in Prison, WASH. POST, July 16, 2004, available at
http://www.washingtonpost.com/wp-dyn/articles/A545912004Jul16.html; Priest Found Guilty of Molestation,
CNN.com, Jan. 18, 2002, available at http://archives.cnn.com/
2002/LAW/01/18/priest.verdict/index.html; Inmate Testifies
Why He Killed Molester Priest, N.Y. TIMES, Jan. 24, 2006,
available at http://www.nytimes.com/2006/01/24/national/
24priest.html?_r=1&oref=slogin.
31 See NO ESCAPE, supra note 2, at 63-67; see also STOP
PRISONER RAPE, THE PROBLEM OF PRISON RAPE 1 (October
2007), available at http://www.spr.org/en/factsheets/Problem%
20of%20Prisoner%20Rape.pdf (finding that the criminally
inexperienced, women, the mentally ill, and first time offenders
are at greater risk for exploitation).
32 See Hearing on Prison Rape Reduction Act of 2003, supra
note 2, at 44 (prepared statement of Pat Nolan, President,
Justice Fellowship) (discussing the harms of prison rape both in
and outside of prison and supporting the passage of H.R. 1707,
the Prison Rape Reduction Act).
33 See, e.g., id. at 51-52 (prepared statement of Michael J.
Horowitz, Senior Fellow, Hudson Institute); id. at 4-5 (letter
from Prison Fellowship Ministries (PFM) with coalition signatures).
34 See id. at 144-46 (letter from Prison Fellowship Ministries
(PFM) with Coalition signatures including those of Human
Rights Watch and Stop Prisoner Rape).
35 See Alexander v. Sandoval, 532 U.S. 275, 291 (2003) (holding that, in the absence of explicit authorization by Congress, no
private right of action is created simply by statute).
36 PREA, 42 U.S.C. § 15602(3)(7) (2003).
37 See 149 CONG. REC. S9659 (daily ed. July 21, 2003); 149
CONG. REC. H7764 (daily ed. July 25, 2003). The speed of passage and the bi-partisan support for the Prison Rape Elimination
Act, when compared to the lack of support for the Custodial
Sexual Abuse Act of 1998—which sought to address staff sexual abuse against primarily women inmates—supports and reinforces gendered notions of the acceptability of violence against
women.
38 See Hearing on Prison Rape Reduction Act of 2003, supra
note 2, at 21-24 (testimony of Mr. Charles J. Kehoe, President,
American Correctional Association); id. at 144-46 (letter from

Spring 2008

Reginald A. Wilkinson, Ed.D., President, Association of State
Correctional Administrators and Director, Ohio Department of
Rehabilitation and Correction).
39 See, e.g., Women Prisoners of the Dist. of Columbia Dep’t of
Corrections v. Dist. of Columbia, 968 F. Supp. 744 (D.D.C.
1997) (Brenda V. Smith was a litigator in this case); Everson v.
Michigan Dep’t of Corrections, 391 F.3d 737 (6th Cir. 2005)
(Deborah LaBelle was a litigator in this case); HUMAN RIGHTS
WATCH, MODERN CAPITAL OF HUMAN RIGHTS?: ABUSES IN THE
STATE OF GEORGIA 99-119 (1996) (discussing the problem of
sexual abuse in Georgia’s women’s prisons authored by The
Women’s Right Division of Human Rights Watch which at the
time was directed by Dorothy Thomas); Darbyshire v.
Extraditions Int’l, Inc., 02-N-718 (D. Colo. 2002). This case
was filed by the American Civil Liberties Union, National
Prison Project while litigator Elizabeth Alexander was the
Director of the Program. The case settled in 2003.
40 See NO ESCAPE, supra note 2, at 4, n.2 (noting that the focus
of the report is on male victims rather than female victims of
prison rape while citing two Human Rights Watch reports on
sexual misconduct in U.S. women’s prisons).
41 In fact, PREA came around the same time as landmark cases
such as Roper v. Simmons, 543 U.S. 551 (2005), which held that
it is unconstitutional to impose the death penalty as a punishment for crimes committed while under the age of 18, and
Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the execution of mentally retarded persons violates the Eight Amendment
prohibition against cruel and unusual punishment); see also
Second Chance Act of 2007: Community Safety Through
Recidivism Prevention, Pub. L. No. 110-199, 122 Stat. 657
(2008) (passed in both houses of Congress on March 11, 2008
and signed by President Bush on April 8, 2008).
42 PREA, 42 U.S.C. § 15607(c)(2) (2003).
43 See Hearing on Prison Rape Reduction Act of 2003, supra
note 2, at 30-31 (letter from Frank A. Hall, Director, The Eagle
Group).
44 See generally BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, DATA COLLECTIONS FOR THE PRISON RAPE ELIMINATION
ACT OF 2003 (2005) [hereinafter DATA COLLECTIONS FOR THE
PRISON RAPE ELIMINATION ACT OF 2003]; see also BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, IMPLEMENTING THE
PRISON RAPE ELIMINATION ACT OF 2003, at 2 (2004).
45 See DATA COLLECTIONS FOR THE PRISON RAPE ELIMINATION
ACT OF 2003, supra note 44, at 1-2 (stating that the credibility
of the self-administered questionnaires are suspicious due to the
broad definition of sexual assault and underreporting).
46 Id. at 2 (quoting that, “BJS intends to operationalize this definition by disaggregating sexual assault into three categories of
inmate-on-inmate sexual violence and all incidents of staff sexual misconduct”).
47 Id. (focusing on defining sexual violence as: “. . . the carnal
knowledge, oral sodomy, sexual assault with an object, or sexual fondling of a person achieved through the exploitation of the
fear or threat of physical violence or bodily injury”).
48 See generally BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, WORKSHOP ON IMPLEMENTATION OF THE PRISON RAPE
ELIMINATION ACT OF 2003 (2003); see also BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, WORKSHOP ON INMATE SELFREPORT OF SEXUAL ASSAULT VICTIMIZATION (2005); BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, WORKSHOP ON

16

PRISON RAPE ELIMINATION ACT OF 2003: PRESENTING THE
NATIONAL INMATE (2006).
49 See generally CENTERS FOR DISEASE CONTROL AND
PREVENTION, U.S. DEP’T OF HEALTH AND HUMAN SERVICES,
MORBIDITY AND MORTALITY WEEKLY REPORT 55:15, HIV
TRANSMISSION AMONG MALE INMATES IN A STATE PRISON SYSTEM
- GEORGIA, 1992-2005, at 421-28 (2006); see also Theodore M.
Hammett, HIV/AIDS and Other Infectious Diseases among
Correctional Inmates, 96 AM. J. OF PUB. HEALTH 974 (June
2006); Steven D. Pinkerton et. al, Model Based Estimates of
HIV Acquisition due to Prison Rape, 87 THE PRISON JOURNAL
295, 295-310 (2007); THEODORE M. HAMMETT ET. AL., U.S.
DEP’T OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, NATIONAL
SURVEY OF INFECTIOUS DISEASES IN CORRECTIONAL FACILITIES:
HIV AND SEXUALLY TRANSMITTED DISEASES 1 (2007).
50 See NATIONAL RATE OF STATE AND TERRITORIAL AIDS
DIRECTORS, STAGGERING RATES AMONG AFRICAN AMERICAN
WOMEN, MSM AND THE INCARCERATED (Nov. 2005), available
at http://www.thebody.com/content/art6867.html.2008 (discussing the increasing and disproportionate impact of
HIV/AIDS on African-American women, men who have sex
with men, and the incarcerated).
51 DATA COLLECTIONS FOR THE PRISON RAPE ELIMINATION ACT OF
2003, supra note 44, at 3.
52 See ALLEN BECK & TIMOTHY HUGHES, BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, PRISON RAPE ELIMINATION
ACT: SEXUAL VIOLENCE REPORTED BY CORRECTIONAL
AUTHORITIES 2004, at 1-11 (2005) [hereinafter BECK & HUGHES
2004].
53 See id. at 5. Staff sexual misconduct rates were as follows:
11.34/1000 in state and federal facilities, 3.22/1000 in private
and local facilities. Id. This is three times the adult rate. Youthon-youth sexual violence rates were as follows: 7.31/1000 in
local private facilities, 6.75/1000 in state facilities. Id. This is
six times the rate at state adult facilities and seven times the rate
of local jails. Id.
54 Id. (breaking down allegations by place and incident; 42% of
allegations occurred in prison, 23% in local and private facilities, 21% were in jails and 11% in juvenile facilities; 42% of the
cases were staff sexual misconduct, 37% were inmate-oninmate, 11% staff harassment and 10% abusive inmate-oninmate sexual contact).
55 Id. at 13 (citing that Alaska, Maine, New Hampshire and
North Dakota reported zero allegations of sexual violence).
56 See Justice for All: Male Prisoner Rape (KMOX Radio, St.
Louis, Apr. 1, 2007); see also Captive Victims (KMOV- News 4
St. Louis); Hearing before the Prisoner Rape Elimination
Commission (Dec. 5, 2007) (testimony of Sandra Matheson,
Director of the State Office of Victim/Witness Assistance),
available at http://nprec.us/docs3/TestimonyMatheson.pdf (discussing an ongoing case involving a correctional office indicted on 54 charges of sexually assaulting 14 inmates in a New
Hampshire correctional facility).
57 See BECK & HUGHES 2004, supra note 52, at 8 (reporting that
in State prisons, 69% of victims of staff sexual misconduct were
male, while 67% of perpetrators were female).
58 SABOL, COUTURE & HARRISON, supra note 14, at 6.
59 See BECK & HUGHES 2004, supra note 52, at 8 (finding that
in local jails 70% of victims were female; 65% of perpetrators,
male; in State-operated juvenile facilities, 69% of victims were

17

male; 47% of perpetrators, female; in local/privately operated
juvenile facilities, 63% of the victims and 64% of the perpetrators were male).
60 See BECK, HARRISON & ADAMS 2006, supra note 19, at 6 (noting that the sexual relationship “appeared to be willing” in 57%
of incidents of staff sexual misconduct and harassment). To
address concerns about the reporting and interpretation of data
in the 2005 survey, BJS changed the item related to the nature
of the incidents in 2006. Id. The option “Romantic” was
replaced by “Sexual relationship between inmate and staff
appeared to be willing.”
61 Id. at 3-4.
62 ALLEN BECK, PAIGE HARRISON AND DEVON ADAMS, BUREAU
OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SEXUAL
VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES 2007, at 2
(2007) [hereinafter BECK, HARRISON & ADAMS 2007].
63 See BECKS, HARRISON & ADAMS 2006, supra note 19, at 3
(analyzing allegations of sexual violence and rates per thousand
inmates by type of facility).
64 See BECKS, HARRISON & ADAMS 2007, supra note 63, at 2.
65 The report of inmates only included state and federal inmates
and the correctional report included state and federal as well as
local jail reports.
66 See BECK, HARRISON & ADAMS 2007, supra note 63, at 1-2.
67 PREA, 42 U.S.C. § 15604(b) (2003).
68 See generally Hearing before the Review Panel on Prison
Rape (2006), available at http://www.ojp.usdoj.gov/fedregister/fr_2006-10-25.pdf; see also Hearing of the Review Panel on
Prison Rape (2008), available at http://www.ojp.usdoj.gov/
fedregister/fr_2008-02-19.pdf.
69 See BECK, HARRISON & ADAMS 2007, supra note 63, at 2
(determining that Texas, Indiana, Nebraska and Florida had the
highest rates while California and the Federal Bureau of Prisons
had the lowest).
70 See generally STOP PRISONER RAPE, PREA UPDATE, STOP
PRISONER RAPE’S PERIODIC REPORT ON THE PRISON RAPE
ELIMINATION ACT, SPECIAL REPORT ON NIJ RESEARCH TRAVESTY
(2006) (criticizing the Fleischer report as “flawed, sloppy, and
irresponsible”).
71 PREA § 15604(a).
72 See The National Institute of Corrections/Washington
College of Law Project on Addressing Prison Rape (NIC/WCL
Project), Participant Database, under NIC cooperative agreements 01P18G108 through 07S24GJQ1 (on file with author).
This database is representative of the project training groups
which are representative of almost all 50 states.
73 Id.
74 See PREA § 15605(a) (stating that the purpose of the grants
is to ensure that “budgetary circumstances. . . do not compromise efforts to protect inmates” and “to provide funds for personnel, training, technical assistance, data collection, and
equipment to prevent and prosecute prisoner rape).
75 See Email from Julius Dupree, BJA Policy Advisor, to
Brenda V. Smith, Program Director for the National Institute of
Corrections Project on Addressing Prison Rape (June 25, 2007,
1:25p EST) (on file with author) (Alabama, Delaware, Florida,
Kansas, California, Kentucky, Montana, Texas, Pennsylvania,
Ohio, Oregon, Michigan, New Jersey, Rhode Island, Iowa,
Wyoming, Virginia, Vermont and Wisconsin).
76 See id. (Colorado, Delaware, Florida, Idaho, Iowa, Ohio

Criminal Law Brief

DYS, Pennsylvania, Tennessee, Vermont, Wisconsin, California,
Kentucky, Maryland, Missouri, Montana, North Carolina and
New Hampshire).
77 See id. (Alabama, Colorado, Idaho, Maryland, Pennsylvania,
and Wyoming).
78 See id. (Arkansas, California, Florida, Kansas, Minnesota,
Montana, North Carolina, Puerto Rico, Virginia, Wyoming, and
Ohio).
79 See id.
(Kansas, Kentucky, Minnesota, Nebraska, New
Hampshire, Ohio DYS, Vermont, California, Michigan, and
Rhode Island).
80 See id.
(Virginia, Colorado, Vermont, Delaware,
Pennsylvania, Tennessee, Nebraska, New Hampshire, Ohio,
Oklahoma, and Wisconsin).
81 See id. (Louisiana, Kentucky, Ohio, Oregon, Rhode Island,
and Wyoming).
82 See id. (New Jersey, North Carolina, Michigan, and Rhode
Island).
83 See PREA, 42 U.S.C. § 15606(g)(1) (2003) (delineating the
Commission’s powers to hold hearings, call witnesses, and
receive such evidence as it considers necessary to carry out its
duties).
84 See generally NATIONAL ASSOCIATION OF PUBLICATION
ADMINISTRATION, HIGH-LEVEL WORK PLAN: STUDIES IN SUPPORT
OF THE PRISON RAPE ELIMINATION ACT OF 2003 (2006) (on file
with author).
85 See National Prison Rape Elimination Commission, Standard
Development Process (November 2007), available at
http://nprec.us/Press/media%20kit/NPREC%20Standards%20P
rocess.pdf (draft of standards to date are on file with author).
86 See PREA § 15606( 7)(c )(3)(A) (providing that the standards
should be issued no later than 2 years after the date of the initial
meeting of the commission).
87 See Second Chance Act of 2007: Community Safety Through
Recidivism Prevention, Pub. L. No. 110-199, 122 Stat. 657
(2008) (“Section 7(d)(3)(A) of the Prison Rape Elimination Act
of 2003 (42 U.S.C. 15606(d)(3)(A)) is amended by striking ‘3
years’ and inserting ‘5 years.’”).
88 See PREA § 15607(a)(1).
89 See id. § 15607(a)(4).
90 See Brenda V. Smith, Behind Bars: The Impact of
Incarceration on Women and Their Families, 29 WOMEN’S RTS.
L. REP. (forthcoming 2008).
91 See Prison Litigation Reform Act, 42 U.S.C. § 1997e (2000)
(aiming at deterring frivolous prisoner lawsuits and requiring the
exhaustion of administrative remedies and physical injuries).
92 See Violence Against Women Act of 1994 (VAWA I), Pub. L.
No. 103-322, 108 Stat. 1902 (1994) (codified as amended in
scattered sections of 42 U.S.C. and 18 U.S.C.), reauthorized in
Victims of Trafficking and Violence Protection Act of 2000
(Victims Protection Act), Pub. L. No. 106-386, 114 Stat. 1462
(2000) (codified as amended in scattered sections of 42 U.S.C.,
22 U.S.C. §§ 7101-7710); see also Susan Tiefenbrun, The Saga
of Susannah: A U.S. Remedy for Sex Trafficking in Women The
Victims of Trafficking and Violence Protection Act of 2000, 2002
UTAH L. REV. 107, 113 n.14 (2002) (“The Victims Protection Act
is divided into three main sections: A) The Trafficking Victims
Protection Act of 2000; B) VAWA II; and C) Miscellaneous
Provisions.”); Victims of Crime Act of 2002, Pub. L. No. 98473, 98 Stat. 1837 (1984) (codified in scattered sections of 18
U.S.C. and 42 U.S.C.).
93 See Brenda V. Smith, Sexual Abuse of Women in Prison: A
Modern Corollary of Slavery, 33 FORDHAM URB. L.J. 571, 592

Spring 2008

(discussing VAWA I and VAWA II laws that prohibited the use of
funds for any persons in custody, meaning that “the significant
number of women in prison with histories of physical and sexual abuse both prior and during imprisonment are ineligible for
services funded by VAWA II”).
94 See generally Lauren A. Teichner, Unusual Suspects:
Recognizing and Responding to Female Staff Perpetrators of
Sexual Violence in U.S. Prisons, 14 MICH. J. GENDER & L. 259,
276-90 (2008) (describing the differential treatment of female
staff perpetrators of sexual violence in custody).
95 See Brenda V. Smith, Rethinking Prison Sex: Self-Expression
and Safety, 15 COLUM. J. GENDER & L. 185, 225 (2006) [hereinafter Smith, Rethinking Prison Sex] (discussing the continuum
of sexual expression in correctional environments the main concern of which is whether the state has an ability to regulate that
expression); see also Brenda V. Smith, Continuum of Sexual
Behavior in Institutional Settings, developed under NIC
Cooperative Agreement 06S20GJJ1 (PowerPoint presentation
on file with author) (outlining the continuum of sexual behavior
in prisons).
96 See Smith, Rethinking Prison Sex, supra note 96, at 201 (noting that there “is an inherent imbalance of power between staff
and inmates [where] [c]orrectional staff control every aspect of
the prisoner and the prison experience: housing, recreation, discipline, communication with the outside, and even the length of
an inmate’s sentence”).
97 See id. at 225 (indicating that one loses control over one’s personhood in prison, including sexual autonomy as part of the punishment).
98 See id. at 231 (arguing that conjugal and family visits give
greater opportunities for prisoners’ sexual expression).
99 See id. at 229 (noting that “the rate of infection for hepatitis
and HIV . . . among the prison population is three times that of
the general population, and affects female inmates at a higher
rate than males”).
100 See Basic Principles for the Treatment of Prisoners, U.N.
Doc. A/RES/45/111, adopted Dec. 14, 1990, available at
http://www.un.org/documents/ga/res/45/a45r111.htm; see also
International Covenant on Civil and Political Rights, G.A. Res.
2200, U.N. GAOR Res, (No. 2200A), entered into force Mar. 23,
1976, available at
http://www.unhchr.ch/html/menu3/b/
a_ccpr.htm; Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res.
39/46, entered into force June 26, 1987, available at
http://www.unhchr.ch/html/menu3/b/h_cat39.htm.
101 See generally Donald Braman, Families and Incarceration,
in INVISIBLE PUNISHMENT, THE COLLATERAL CONSEQUENCES OF
MASS IMPRISONMENT (Marc Mauer & Meda Chesney Lind eds.
2003) (discussing some of the collateral consequences of imprisonment and the effect of these consequences on individuals and
families).
102 See Farmer v Brennan, 511 U.S. 825, 834 (1994) (stating that
“[b]eing violently assaulted in prison is simply not ‘part of the
penalty that criminal offenders pay for their offenses against
society.’” (citing Rhodes v. Chapman, 452 U.S. 337, 347
(1981))).
* Brenda V. Smith is a Professor of Law at American
University’s Washington College of Law and is the Program
Director for the National Institute of Corrections Project on
Addressing Prison Rape (www.wcl.american.edu/nic) at the
Washington College of Law. Professor Smith is also a commissioner on the National Prison Rape Elimination
Commission (www.nprec.us).

18

 

 

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