Barnellbe. “Veave in jail.” Wikimedia Commons, 2011, https://commons.wikimedia.org/wiki/File:Veave_in_jail.jpg.

Don’t Drop the Lawbook: The Horrifying

Legal System for Victims of Sexual
Assault in Prison
Miles Zakos | English 138T - 008 | 14 April 2019
OVERVIEW

In the United States of America, nearly 80,000 inmates are sexually assaulted every year.1

Congress created the Prison Rape Elimination Act (PREA) with measures including extra protections for

high-risk prisoners, new methods of reporting assault, and additional background checks for staff

members. PREA was also passed with the stipulation that the federal government would decrease state

funding if the state was not in compliance with these laws.2 As of April 14th, 2019, only ten states are in

full compliance with these new standards, but all but three are receiving their full allotted funding.3

This lack of enforcement of the standards put in place can create nightmare scenarios for

prisoners in jail. Many court cases have found that a prisoner’s rights are not violated when they do not

have full access to PREA standards, including medical attention, rape kits, and the right to an

investigation. Coupled with pre-existing legislation, some individuals have lost their right to sue a prison

because they reported their sexual assault through these new systems.4 Most terrifying of all, PREA has

been used to criminalize LGBT+ behaviors in many prisons, with one case going so far as to say that an

individual’s gender non-conformity equates to consent in a rape case.5

Government action is required to enforce the laws already in place and prevent interpretations

that further hurt inmates. Sexual assault victims need help, not more hoops to jump through.
THE PROBLEM

“Don’t drop the soap.” It’s pervasive in our culture, where it can stand alone as the punchline.

Everyone knows what happens to the poor soul whose bar falls to the ground in the prison showers.

When you stop and truly think about the experience of the individual, the punchline loses its humor.

Regardless of their crime, no matter how big or how small, they remain a human being that does not

deserve that kind of treatment. Before 2003, despite anecdotal evidence, the US did not know the scope

of the problem. Congress passed the Prison Rape Elimination Act (PREA) to determine the depth of the

problem, finding that nearly 80,000 inmates are sexually assaulted every year.6 The next task of the

PREA is much harder: lower that statistic. While the PREA was a great step forward, and has been a

tremendous boon for some prisons, others have not been so lucky. The PREA contains some convoluted

language, which certain prisons have construed in methods that appear to decrease the safety of their

inmates. To discourage sexual assault in federal and state prisons and promote an environment where

victims can successfully report their attacker the courts must be opened to victimized inmates and

consensual sexuality in prisons must be decriminalized.

WHAT HAS BEEN DONE

Before going into the many flaws, the positives of the Prison Rape Elimination Act must be

acknowledged. From previous research, the Department of Justice found that staff members are

responsible for a large portion of sexual assaults in prisons. To combat this, they require background

checks for all staff members and forbid any form of undocumented body or cavity search from members

of the opposite gender. There is also a screening process for inmates, assessing possible risks those that

might be likely to sexually assault another inmate or be sexually assaulted. People at risk may be

voluntarily separated from aggressors, especially LGBT+ individuals who are at a higher risk of being

raped while in prison. Prisons must have

multiple avenues of reporting sex crimes,

including ones that are not through the

prison itself to allow anonymous and safe

reporting methods.7 These methods have

been effective, with overall reporting

increasing by nearly 300 percent from

2010 to 2015.8 Lovissa Stannow, the

executive director of Just Detention

Santo, Alysia. “Prison Rape Allegations Are on the Rise.” The
International said that “I see this is a clear Marshall Project, The Marshall Project, 25 July 2018,
www.themarshallproject.org/2018/07/25/prison-rape-allegations-
sign that prisoners are starting to trust the are-on-the-rise.

system, rather than an indication that sexual abuse in detention is skyrocketing.”9

ENFORCEABILITY OF THE STATES

Despite all that PREA has and continues to accomplish, there are flaws that demand

improvement, with requiring compliance. Congress created the Prison Rape Elimination Act, but for it to

pass more easily, the standards are voluntary. All those common-sense laws put in place to prevent

sexual assault, one of the most heinous crimes to plague society, are voluntary. The only teeth that this

law has, though gums might be more appropriate, is a five percent decrease in prison related funding for

failing to meet “a majority of the standards”.10 The Department of Justice failed to define what a

“majority of the standards” meant, for fear of creating a too complex or impractical system. What this

leaves is a system where the governor of a state is given free rein to determine exactly how much of the

standards their prisons should be following to receive money from the federal government.11 The sum

that the states could be losing in the worst-case scenario, is not that drastic. Money from the federal

government makes up a whopping 2.9% of the average state prison budget. In 2016 the average cost to

a noncompliant state or territory was $100,665.13 Yet the punishment is less funding for the prisons that

are the most dangerous for the prisoners themselves. Only two states and two territories had to suffer

that loss of funding. One would then assume that the remaining fifty-two states, territories, and the

District of Columbia would all have prisons up to code and the PREA had accomplished its goal. Yet in

fact only ten states were certified according to their governors. The remaining forty-two areas had given

something called an assurance.14 With a new amendment added to the law, that became effective

during 2016, a state governor could pinky promise that their state was doing its absolute best to meet

PREA standards, and the funds that would have been lost to the state in the initial law can either be put

aside to be redeemed once they meet standards, or put into prisons for the express purpose of

improving their standards. Prisons can fail to meet PREA standards and receive the exact same amount

of funding.15 It’s a travesty that even the smallest of requirements cannot be held onto for more than a
few years. That is only referring to the state prisons. Local and county prisons are completely exempt

from any kind of requirement from the Prison Rape Elimination Act.16 There are less prisoners in those

smaller prisons, yet those individuals deserve the same rights of safety as any other human being.
ENFORCEABILITY IN THE COURTROOM

The Prison Rape Elimination Act has been used in court many times both to make it harder for

prisoners to receive compensation for their suffering, and to justify prisons creating even more

hardships for prisoners. For a prisoner to be entitled to any form of financial compensation they must

prove that a staff member knew about the possibility of sexual assault and chose to do nothing. By

failing to create a safe environment the prisons would be in violation of the Eighth Amendment: no cruel

or unusual punishment.17 Many courts have complained about the difficulty of establishing what kind

and how much sexual violence constitutes “cruel and unusual” but the Prison Rape Elimination Act, in its

pages, describes a “zero tolerance policy”, where any kind of sexual violence, from forced penetration to

fondling is a violation of a prisoner’s rights.18 While Congress does not have the right to pass any laws

deciding how an amendment is interpreted, the letter of the law should at least be considered by court

decisions. Instead, time and time again, when a defendant brings up the fact that they were not

provided with all the services outlined by PREA, including rape kits, medical examinations, and even

simple investigations, that violations of PREA do not constitute 8th Amendment violations. In Law v.

Whitson and Woodstock v. Golder, the court implied PREA did not matter by not acknowledging it in

their rulings, but in Bell v. County of Los Angeles, the court dedicated a whole section of their ruling to

the idea that PREA did not affect their ruling, with no explanation as to why.19

PREA also lacks any kind of right for the individual to sue over violation to the code. Claims

brought to court that people were denied access to procedures that they have a legal right to were

dismissed. Cases in Louisiana and West Virginia found that the Prison Rape Elimination Act was to study

the issue of prison rape and to authorize grant funding and had no place regulating or eliminating prison

rape.20 So, the PREA barely holds the state government accountable, completely ignores the safety of

individuals as local or county prisons, and worse than that it ignores the individual. As it stands right
now, a man going to every major prison in the country handing out pamphlets describing why rape is

bad would have the same exact effect on the safety of prisoners as the PREA. For the prisons that listen

to this man, it would be great for the prisoners. Yet if a prison wants to they can tell this man to scram

and that they’ll create whatever environment they want for their scumbag prisoners who don’t deserve

any better. It is sickening.

PROTECTING THE PRISON SYSTEM

Yet this desire to keep the PREA out of court is not as easily found in cases where the prisons

themselves bring it up. The PREA was used to justify violating the Religious Land Use and

Institutionalized Person Act when a prison claimed that taking a Muslim man’s prayer oils would

decrease sexual assault by making it easier to find drugs in prison. In Prison Legal News v. Livingston, a

jail was able to prevent an independent non-profit from giving prisoners access to information about

sexual assault and these convoluted laws through the logic that since PREA required prison to give

inmates all that information anyway, no information was being withheld. In Lowry v. Honeycutt, a prison

was forced to use a rape kit after a guard found him having consensual sex, despite no part of PREA

requiring a prisoner to consent to a rape kit, it only needs to be provided. The courts ruled in favor of

the prison forcing a rape kit on the man. Another woman was given information through PREA about

how to report sexual assault, which she did by informing her prison counselor. When she sued, she lost

her case because she did not properly report a grievance through the prison. The court interpreted PREA

to mean that telling her counselor was merely an informal way of trying to deal with the Prison

Litigation Reform Act and would not hold up in a court of law.21

EXHAUSTING ALL AVAILABLE METHODS

The Prison Litigation Reform Act (PLRA), coupled with PREA, creates some truly horrific

scenarios were individuals must go through all possible methods of reporting their sexual assault before

they have any kind of chance in court, like that poor woman. The PLRA was created before PREA, and it

requires prisoners to report grievances within the timeframe allotted by a prison before they can sue in

court. There is no restriction on what they timeframe could be however, and some courts have time as

little as two weeks, a frankly barbaric amount of time for someone to recover from the shock of being

sexually assaulted. Through PLRA, inmates must exhaust all other methods of reporting their attacker.22

PREA created new methods of reporting sexual assault, and these methods are often safer and easier for

the victim, especially if the person that assaulted them was a staff member. Yet these new and safer

methods are used to confuse victims and make it harder for them to report in a manner that complies

with PLRA., decreasing the number

of people who have even been able

to file a court case. After they’ve

been sexually assaulted, if they have

the courage to come forward and

report it, they should not be

expected to find the exact necessary

form to be properly treated. An

Idaho Circuit Court already found that
one woman was able to sue because
she had reported to PREA, despite not
Source: Booker, Meredith. “20 Years Is Enough: Time to Repeal the
Prison Litigation Reform Act.” Prison Policy Initiative, 5 May 2016,
www.prisonpolicy.org/blog/2016/05/05/20years_plra/. Accessed 14 Apr.
2019.

complying with PLRA guidelines.23 She reported, and that should be the only thing that counts.
LGBT+ DISCRIMINATIONS FROM PREA

LGBT+ individuals have a particularly hard time in prisons in general, and many locations have

attempted to use PREA to justify discriminatory practices. PREA gives prisons the ability to voluntarily

segregate LGBT+ individuals if there a concern for their safety. In the case Sandin v. Conner, an

individual was segregated as a possible sexual assault concern, simply for expressing a desire for

consensual sex. The court ruled that the prison had every right to segregate them.24 The sexuality of

queer individuals is even more heavily policed. Jim, a man in Texas prisons, has been repeatedly

threatened with the possibility of solitary confinement when he was found holding hands with his lover.

The West Virginia Supreme Court maintained the right of a prison to put a man in solitary confinement

for sixty days for kissing another man on the cheek. In Idaho, prisoners are prevented from cross-

dressing, under the guise of creating an environment free from sexual assault. Most horrifyingly of all, a

transgender woman in a New York prison was raped by her fellow inmates. The prison argued that her

gender non-conformity was evidence that she had consented to the rape.25 From statistics found by the

Prison Rape Elimination Act, the government knows for a fact that non-heterosexual inmates are over

450% more likely to be sexually assaulted than their heterosexual counterparts.26 Yet many prisons have

seen and known this fact and determined the blame to rest on the LGBT+ individuals. The solution, for

their own protection, is to have them pretend to be “normal” and punishes them for who they are.

Being placed into solitary confinement whenever an individual shows any sign of romantic affection will

serious detriment their mental state and does nothing to prevent sexual assault. Even beyond simple

affection, banning consensual sexual activity decreases sexual safety. Individuals sexually assaulted who

have had consensual sex in the past are much less likely to report the crime if they know they will be

punished as well, especially if the rapist is someone the victim had sex with in the past. A transgender
woman in Massachusetts received a ticket and was threatened to be moved to a maximum-security

prison when she reported a rapist who claimed the activity was consensual. 27

Transgender individuals have also been sexually assaulted by prison officials in the name of

PREA. Many staff members have forced body searches or grabbed trans individuals’ genitals in the

purpose of proving their “real” gender. PREA currently bans body searches unless part of a “broader

medical examination”, but court cases in New York, Massachusetts, and other states have found that

harassing trans individuals while they are being examined does not violate any of their rights.28
WHAT TO DO NEXT

One possible solution to the problem is to take the matter to the Supreme Court. In these

smaller cases, local or even state courts determined that according to their definition, sexual assault did

not meet the Eighth Amendment requirements for cruel and unusual punishment. Congress does not

have the ability to say what is an Eighth Amendment violation, but the Supreme Court does. If the

Supreme Court were to rule that a violation of PREA constituted cruel and unusual punishment, then

smaller court cases would have to give more weight to cases brought before them, and the standards

held by the Prison Rape Elimination Act itself. This in turn would incentivize prisons to enact the reforms

more quickly to prevent themselves from being sued for cruelty. It would also incentivize prisons to pay

closer attention to the letter of the law, preventing the explicitly prohibited policing of queer individuals,

lack of access to resources, and other PREA violations. However, the issue with this method is it is like

the Supreme Court themselves making a law, something that a right-wing majority is not very likely to

do. Not to mention, previous cases have not made it to the Supreme Court, so why would they now?

They have bigger fish to fry.

Another method is to give the power of the purse strings to the states themselves. The

government controls a pitiful amount of money that goes to most prisons, and PREA affects only a small

portion of those funds. By placing the onus for enforcing PREA on the state level, enforcement has a

much heavier purse bag to throw around. State agencies would also have a larger knowledge of the

prisons of their area, enabling them to be surer when a prison is complying or not. A flaw with this

system is that a few states have proven themselves to be against PREA standards, to the point of not

even pretending to attempt to comply to get funding. Arkansas and Utah refuse to attempt to change

their laws at all, and this system might do little to help prisoners in those states. However, some news

sources have reported that individual states support methods that would decrease sexual assault in
prisons, but merely object to some specific rules, referencing specifically requiring staff members

working in a jail of the opposite gender to occasionally announce their presence.29 By allowing states to

create their own PREA guidelines, while some prisoners will not be afforded the same amount of

protections, it will make individual states more likely to comply to a larger degree, increasing the overall

safety of prisons.

A simpler solution is to have Congress themselves amend the act. This could be more easily

done, as Congress’s job is more explicitly to make the laws. The first amendment would be a private

right to sue. Like the Supreme Court solution, this deals with prisons failing to meet the standards by

having a prisoner be able to sue the institution if they are improperly treated. This is in many ways

superior because it also does not require a small court to charge a prison with something as heavy as a

constitutional violation, something that they have demonstrated an aversion to attempting. While

Congress does have a reputation of being unable to accomplish anything, especially in the past few

years, nearly every politician is anti-rape.

This private right to sue should however be conditional. Prisons are forced to make all PREA

standard requirements available to prisoners, but they should not be allowed to force or bribe prisoners

into accepting or declining what is available to them. For example, if a man is having consensual sex with

a partner and the guards offer him a rape kit, the man has every right to turn down the rape kit, but he

can’t then sue the prison for not having access to it. It goes the other way too where if a prison would

find it too expensive to install the required amount of security cameras, they cannot offer prisoners a

cheaper swimming pool in exchange for them declining the offer of those standards. Regardless of

whether the prisoner wants to eat, the prison must prepare a meal. On the topic of consensual sex, as I

mentioned above, it should be decriminalized in prisons.

Criminalizing sexual activity creates an environment where individuals are less likely to be open

about the dangers that threaten them. Many jails’ attempts at criminalizing sexual activity, especially in
single gender prisons, are merely less than subtle attempt to criminalize queer individuals, going so far

as to claim that gender non-conformity equates to consent to be raped. Congress also needs to amend

the law to allow individuals to have sex and be queer without fear of sexual assault. The goal of PREA is

to prevent the sexual assault of LGBT+ people by changing the prison, not the victims. They should also

clarify the meaning of a broader medical examination to prevent the assault of transgender individuals

so that a guard can know what a person’s genitals feel like.

SAFETY FROM ACCOUNTABILITY

The Prison Rape Elimination Act was an easy first step on a march that needs to be walked. It is

easy to create a law that reads like a pamphlet, filled with “how to”’s and flowery language without an

ounce of bite on them. What is unbelievably hard is forcing the people of an entire nation to act in a

new way, even if that new way is something as morally defensible as preventing sexual assault.

Individual prisons within the prison system have proven themselves incapable with providing the safety

precautions that human beings deserve, with the current system in place taking little to no effort to

prevent prisons from doing this. By establishing some method of holding prisons accountable,

individuals will not only be less likely to be sexually assaulted, but they will be guaranteed a sane

promise: that the prison system will be there to support, not harm, them and that surviving and

recovering from a sexual assault will be the only battle they will ever have to fight.
 Notes

1. Beck, Allen et al. U.S. Dept. of Justice. Sexual Victimization in Prisons and Jails Reported by

Inmates, 2008-09. Washington: Office of Justice Programs, 2010. Web. 4 Apr. 2019.

2. United States of America. U.S. Dept. of Justice. Fiscal Year 2019 PREA Letter to Governors.

Washington: Office of Justice Programs, September 7, 2018. Web. 14 April 2019.

3. United States of America. U.S. Dept. of Justice. FY 2017 List of Certification and Assurance

Submissions for Audit Year 3 of Cycle 1. Washington: Office of Justice Programs, September 6,

2018. Web. 14 April 2019

4. Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.”

New York University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

5. Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade, and Urvashi Vaid.

2014. “A Roadmap for Change: Federal Policy Recommendations for Addressing the

Criminalization of LGBT People and People Living with HIV.” New York: Center for Gender &

Sexuality Law at Columbia Law School.

6. Beck, Allen et al. U.S. Dept. of Justice. Sexual Victimization in Prisons and Jails Reported by

Inmates, 2008-09. Washington: Office of Justice Programs, 2010. Web. 4 Apr. 2019.

7. United States of America. U.S. Dept. of Justice. National Standards to Prevent, Detect, and

Respond to Prison Rape. Washington: Federal Register, 2010. Web. 4 Apr. 2019.

8. Santo, Alysia. “Prison Rape Allegations Are on the Rise.” The Marshall Project, The Marshall

Project, 25 July 2018, www.themarshallproject.org/2018/07/25/prison-rape-allegations-are-on-

the-rise.

9. Ibid.
10. United States of America. U.S. Dept. of Justice. Fiscal Year 2019 PREA Letter to Governors.

Washington: Office of Justice Programs, September 7, 2018. Web. 14 April 2019.

11. United States of America. U.S. Dept. of Justice. National Standards to Prevent, Detect, and

Respond to Prison Rape. Washington: Federal Register, 2010. Web. 4 Apr. 2019.

12. Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.”

New York University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

13. United States of America. U.S. Dept. of Justice. Impact of PREA on Department of Justice Grants.

Washington: Office of Justice Programs, 2016. Web. 14 April 2019.

14. Ibid.

15. United States of America. U.S. Dept. of Justice. Fiscal Year 2019 PREA Letter to Governors.

Washington: Office of Justice Programs, September 7, 2018. Web. 14 April 2019.

16. Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.”

New York University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

17. Ibid.

18. United States of America. U.S. Dept. of Justice. National Standards to Prevent, Detect, and

Respond to Prison Rape. Washington: Federal Register, 2010. Web. 4 Apr. 2019.

19. Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.”

New York University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

20. Ibid.

21. Ibid.

22. Booker, Meredith. “20 Years Is Enough: Time to Repeal the Prison Litigation Reform Act.” Prison

Policy Initiative, 5 May 2016, www.prisonpolicy.org/blog/2016/05/05/20years_plra/. Accessed

14 Apr. 2019.
23. Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.”

New York University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

24. Ibid.

25. Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade, and Urvashi Vaid.

2014. “A Roadmap for Change: Federal Policy Recommendations for Addressing the

Criminalization of LGBT People and People Living with HIV.” New York: Center for Gender &

Sexuality Law at Columbia Law School.

26. Beck, Allen et al. U.S. Dept. of Justice. Sexual Victimization in Prisons and Jails Reported by

Inmates, 2008-09. Washington: Office of Justice Programs, 2010. Web. 4 Apr. 2019.

27. Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade, and Urvashi Vaid.

2014. “A Roadmap for Change: Federal Policy Recommendations for Addressing the

Criminalization of LGBT People and People Living with HIV.” New York: Center for Gender &

Sexuality Law at Columbia Law School.

28. Ibid.

29. Ramseth, Luke. “Utah one of only two states not complying with federal prison-rape guidelines,

DOJ says.” The Salt Lake Tribune, 15 May 2017,

https://archive.sltrib.com/article.php?id=5284203&itype=CMSID. Accessed 14 Apr. 2019.

 Works Cited

Arkles, Gabriel. “Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm.” New York

University Journal of Legislation and Public Policy, vol. 17, no. 4, 2014, pp. 1-35.

Barnellbe. “Veave in jail.” Wikimedia Commons, 2011,

https://commons.wikimedia.org/wiki/File:Veave_in_jail.jpg.

Beck, Allen et al. U.S. Dept. of Justice. Sexual Victimization in Prisons and Jails Reported by Inmates,

2008-09. Washington: Office of Justice Programs, 2010. Web. 4 Apr. 2019.

Booker, Meredith. “20 Years Is Enough: Time to Repeal the Prison Litigation Reform Act.” Prison Policy

Initiative, 5 May 2016, www.prisonpolicy.org/blog/2016/05/05/20years_plra/. Accessed 14 Apr.

2019.

Catherine Hanssens, Aisha C. Moodie-Mills, Andrea J. Ritchie, Dean Spade, and Urvashi Vaid. 2014. “A

Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of

LGBT People and People Living with HIV.” New York: Center for Gender & Sexuality Law at

Columbia Law School.

Ramseth, Luke. “Utah one of only two states not complying with federal prison-rape guidelines, DOJ

says.” The Salt Lake Tribune, 15 May 2017,

https://archive.sltrib.com/article.php?id=5284203&itype=CMSID. Accessed 14 Apr. 2019.

Santo, Alysia. “Prison Rape Allegations Are on the Rise.” The Marshall Project, The Marshall Project, 25

July 2018, www.themarshallproject.org/2018/07/25/prison-rape-allegations-are-on-the-rise.

United States of America. U.S. Dept. of Justice. Impact of PREA on Department of Justice Grants.

Washington: Office of Justice Programs, 2016. Web. 14 April 2019.

United States of America. U.S. Dept. of Justice. Fiscal Year 2019 PREA Letter to Governors. Washington:

Office of Justice Programs, September 7, 2018. Web. 14 April 2019.

United States of America. U.S. Dept. of Justice. FY 2017 List of Certification and Assurance Submissions

for Audit Year 3 of Cycle 1. Washington: Office of Justice Programs, September 6, 2018. Web. 14

April 2019

United States of America. U.S. Dept. of Justice. National Standards to Prevent, Detect, and Respond to

Prison Rape. Washington: Federal Register, 2010. Web. 4 Apr. 2019.