JURIST Guest Columnist Christina Piecora, St. John’s University School of Law, Class of 2015, is the author of the first article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Piecora discusses possible solutions to the issue of sexual assault against female inmates…Imagine a young woman handcuffed as a large man beats and rapes her so forcefully that it results in her rectum being torn. Imagine her pained cries that go unanswered and ignored. Imagine that after hours of this vicious assault she is left in a bloody heap on the floor. In all likelihood, this deplorable act of violence makes you angry and disgusted. However, does your reaction change if you learn that the victim was wearing a prison jumpsuit? Does it, or should it, make you any less enraged or any less willing to help? These are the questions that confront American society, as it becomes harder to ignore what Congress has labeled an “epidemic” of sexual assault in America’s prisons.

Currently, there are over 200,000 women imprisoned in the US. According to Human Rights Watch at least 15 percent of incarcerated females have been the victims of prison sexual assault. These assaults occur at the hands of prison staff and other inmates.

Males are the perpetrators in 98 percent of staff-on-inmate sexual assault (PDF] of female inmates. Forty-one percent of guards in the average state female correctional center are male, a job that entitles them to perform strip searches and have access to prisoners in their most vulnerable states. Therefore, although women comprise only 7 percent of the state prison population, they comprise 46 percent of sexual abuse victims. Male prison officials not only use force and violence to commit sexual assault against female prisoners but also use their positions to coerce, threaten and intimidate inmates into sexual activity. Thousands of documented accounts exist of prison staff demanding sex in exchange for drugs, favors and access to educational programs. Similarly, prison officials often use threats of going to the parole board with false reports of bad behavior, planting drugs on prisoners or withholding basic necessities such as feminine hygiene products or visitation with children if inmates do not perform sexual acts. While these acts are repugnant, prison officials are not the only perpetrators of sexual assault against female inmates.

The rate of inmate-on-inmate sexual victimization [PDF] is at least 3 times higher for females (13.7%) than males (4.2%). This has been attributed to the fact that a majority of prison officials do not view female-on-female sexual assault as “true rape,” making them less likely to reprimand inmates. Furthermore, as the female prison population has grown at a dramatic rate, states have been unable to keep up. Therefore, female prison facilities tend to be overcrowded and poorly designed, making them difficult to police.

In addition to cross-gender supervision and poorly designed facilities, prison sexual assault against females is prevalent because little punishment exists to deter perpetrators. Victims are often blocked from bringing charges against prison staff who were either complacent or the culprits in their attacks by the Prison Litigation Reform Act (PLRA). The PLRA requires prisoners to exhaust all administrative remedies before they are allowed to file suit in federal court to challenge prison abuses. For victims this means that they must report their abuse to the very people committing or facilitating that abuse. Thus, inmates who complained of staff sexual misconduct were punished 46.3 percent of the time.

Additionally, victims must meet an incredibly high burden of proof to substantiate a constitutional claim. The Eighth Amendment establishes the right to be free from cruel and unusual punishment. However, for victims to establish a violation of their Eighth Amendment rights they must prove that the prison official had a “seriously culpable state of mind” by satisfying the subjective deliberate indifference test. The test requires that the prison official must (1) “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and (2) “also draw the inference.” For victims, the difficulty lies in proving that prison administrators were aware of the risk and ignored it. In applying the test courts have severely limited the liability of prison officials.

Another reason for the high incidence of prison sexual assault is the limited oversight of state prisons. Recently the federal government made history by passing the Prison Rape Elimination Act (PREA). The PREA implemented national standards for the detection, prevention and punishment of prison rape. However, the PREA standards only apply federally. Thus, because state and local facilities confine the majority of inmates, most inmates are not protected by the PREA standards.

There are a number of steps we can take to better protect inmates from the horrors of sexual assault. First and foremost states need to adopt the PREA standards. Congress can incentivize states to do so by withholding or increasing federal grant money. Additionally, while the PREA was a good first step, many other provisions can be incorporated to make it more effective. These provisions should address prison overcrowding, establish a national hotline where prisoners can anonymously report sexual abuse and create a national taskforce to investigate prisons with high incidences of sexual assaults.

Additionally, I propose that Congress adopt a statute entitled the Protecting Vulnerable Inmate Populations Act (PVIP). PVIP would prohibit non-violent first offenders from being placed with violent offenders, mandate that all correctional staff in female prisons be trained to interact specifically with female inmates and allocate funding to help modernize female correctional facilities to make them easier to police and monitor.

Furthermore, no legal roadblocks should stand in the way of victims getting the justice they deserve. Therefore, the PLRA should be amended to allow for suits without exhausting administrative remedies when a sexual assault claim exists. Additionally, the US Supreme Court should make the deliberate indifference standard an objective standard, which would only require victims show that a reasonable person would have been aware of the risk and ignored it.

The epidemic of prison sexual assault will not be cured overnight. However, these proposed measures will move us closer to eliminating the horrible problem. We need to demand government action. For every moment we just stand by more vulnerable women are being victimized.

Christina Piecora earned a BA summa cum laude in government and politics from St. John’s University. Christina served as an Equal Justice Works AmeriCorps Legal Fellow working at the Urban Justice Center’s Veteran Advocacy Project. Christina currently serves as the Executive Notes and Comments Editor of the St. John’s Journal of Civil Rights and Economic Development.

Suggested Citation: Christina Piecora, Female Inmates and Sexual Assault, JURIST – Dateline, Sep. 15, 2014, http://jurist.org/dateline/2014/09/christina-piecora-female-inmates.php