On July 8, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on a report released by the National Prison Rape Elimination Commission.
“On June 23, the National Prison Rape Elimination Commission released its final report and national standards, as mandated by PREA [Prison Rape Elimination Act, P.L. 108-79],” said Melissa Rothstein, East Coast program director for Just Detention International (JDI). These documents are arguably the most powerful tool to date in the effort to end sexual violence behind bars. The commission’s report confirms what we at JDI have long known to be true: sexual violence in detention is not an inevitable aspect of incarceration. On the contrary, it can be prevented through sound policies, safe practices, and effective management.” However, Ms. Rothstein noted, “While the passage of PREA and the release of the standards represent important milestones in improving inmate safety, we are a long way from ending prisoner rape. In inmate surveys mandated by PREA, the Bureau of Justice Statistics (BJS) found that 4.5 percent (or 60,500) of the more than 1.3 million inmates held in federal and state prisons had been sexually abused in the previous year alone and that nearly 25,000 jail detainees had been sexually abused in the previous six months. These surveys were snapshots, reaching only inmates present on a particular day. As the annual number of admissions to county jails is 17 times higher than the jail population on any day, the BJS data represent just the tip of the iceberg.”
Reggie Walton, judge for the U.S. District Court of the District of Columbia and chair of the National Prison Rape Elimination Commission, recommended ways in which Congress can assist inmates who are victims of sexual abuse: “Congress can further facilitate effective responses to sexual abuse in confinement and detention. Beyond providing funding to continue the robust initiatives of the Department of Justice under PREA, Congress should amend the Prison Litigation Reform Act [(PLRA) P.L. 104-134], the Violence Against Women Act [P.L. 109-162], and revise language in the 1996 Guidelines on Victim Assistance that direct the use of funds from the Victims of Crime Act [P.L. 98-473].” Judge Walton continued, “Based on testimony from legal experts, survivors, and their families, we recommend that Congress amend the administrative exhaustion provision [which requires inmates to exhaust all administrative remedies before filing a claim in federal court] and physical injury requirement in the Prison Litigation Reform Act. These can create unreasonable barriers for victims of sexual abuse to gain access to our federal courts. The commission further recommends that Congress amend the Violence Against Women Act (VAWA) Reauthorization of 2005 to include incarcerated victims of sexual abuse as a class served under VAWA notwithstanding the nature of their criminal convictions. The commission heard testimony from practitioners that limitations placed on VAWA and Victims of Crime Act (VOCA) funding restrict their ability to provide services to certain categories of inmates, even when they have been the victims of sexual abuse.”
In challenging the commission’s recommendations, Jon Ozmint, director of the South Carolina Department of Corrections, said, “In its final report, the commission recommends two changes to the PLRA. These proposed changes are not new. Instead, these recommendations are simply the latest reincarnation of familiar attempts to roll back the bipartisan reforms of the PLRA. These recommendations are premised on the same arguments made by opponents to the PLRA before its passage; they are modified only slightly to conform to the anecdotal evidence ‘findings’ repeated in the final report…The commission’s report advocates somehow diminishing the PLRA’s exhaustion requirement for victims of sexual abuse. However, the final report stops short of recommending how the exhaustion requirements of PLRA should be amended to exempt victims of sexual abuse. The PLRA requires that inmates exhaust all administrative remedies before filing a federal action…As interpreted and applied by federal courts, the exhaustion requirement has been successful in reducing frivolous lawsuits and in settling untold thousands of legitimate complaints, decently, and in good order, without resort to federal courts. Inmates now have meaningful and predictable avenues of redress.”
Mr. Ozmint described his concerns with another aspect of the final commission report, saying, “The final report states the commission is convinced [that] victims of sexual abuse are losing avenues for relief because they cannot prove physical injury. Currently, the PLRA requires that an inmate prove physical injury to receive compensatory damages. This provision was designed to shield prison officials from insubstantial claims. However, the final report states that ‘a few courts’ have ruled sexual assault alone does not constitute a physical injury. In support of this significant contention, the final report cites only one unreported federal court case…However, only a single federal circuit has ever used language even suggesting such a conclusion. With near unanimity, federal courts have interpreted these provisions simply to bar de minimus claims: despite claims to the contrary, federal appellate courts consistently hold that forcible sexual assaults include ‘physical injury’ and are not barred under this section. In spite of this uncontested legal history, the report contends the physical injury requirement of PLRA fails to take into account real emotional and psychological injuries that follow sexual assault. And, while the final report appears to recommend some change in this regard, it fails to recommend any specific language for such an amendment to the PLRA.”
Sean Kenyon, partner at Hoeppner Wagner & Evans LLP, andLisa Freeman of the Prisoner Rights Project of the Legal Aid Society of New York, also testified.
