The Prison Rape Elimination Act of 2003 legislation arose from the massive amount of sexual assaults that are occurring in prison systems and jails. Sexual assault is present in Federal, State and local facilities this includes juvenile detention centers. A review of the facts that establish a need for such legislation is the preamble to the legislation. The back ground information to the legislation reveals “The total number of inmates who have been sexually assaulted in the past 20 years likely exceeds 1,000,000” (Public Law 108-79-SEPT. 4, 2003, 2003). This is an unacceptable failure of the Criminal Justice System that creates a large scale disenfranchised population based on the unacceptable Constitutional violation of the 8th Amendment. It is cruel and unusual punishment to detain a citizen for a crime committed, in a facility where they are brutally sexually assaulted, sometimes to the point of having to be hospitalized.
This legislation defines the weaker population that has a predisposition to become sexually assaulted. The increase in incarcerated persons with mental illness also increases the victimization (Public Law 108-79-SEPT. 4, 2003, 2003). “Young first-time offenders are at increased risk of sexual victimization. Juveniles are 5 times more likely to be sexually assaulted in adult rather than juvenile facilities--often within the first 48 hours of incarceration” (Public Law 108-79-SEPT. 4, 2003, 2003). The studies and facts mainly refer to the male incarcerated population and juvenile detainees. The facts presented at the beginning of the legislation cite women’s sexual assault with vagueness. This could be due to the lack of research and empirical data on women’s prison rape cases. This is lack of research is supported and defined in an article from The Prison Journal that states “Although several studies have examined consensual sexual activity in female correctional institutions, there has been little research conducted on in-prison sexual assault among incarcerated females” (Blackburn, 2008,p.352).
In the article Powerless in Prison: Sexual Abuse against Incarcerated Women, Nicole Summer points out an issue that pertains solely to women inmates. The following excerpt explains the dilemma "I am 7 months pregnant [and] I got pregnant here during a sexual assault. I have been sexually assaulted here numerous times! The jailers here are the ones doing it!"-- excerpt from a letter from an inmate in a jail in Alabama to Stop Prisoner Rape” (Summer, 2008, p. 1). The Act does not do enough for women in prison. This issue is not considered and the women being raped in prison often become pregnant. This dehumanizes the female inmate further than male rape victims. She must give her child up for adoption; there are very few prisons that allow mothers the ability to raise children. This is how slaves were treated. The women in prison are not the state’s actual “property”. They are American citizens who are paying for a mistake. They should not have to pay with Rape and giving up their child.
Summer reveals that “Guards have unlimited access to prisoners and their living environment, including where they sleep and where they bathe. With such an imbalance of power, the likelihood of sexual assault increases. Sexual abuse in prison can range from forcible rape to the trading of sex for certain privileges. While the latter may seem consensual to some, the drastic power disparity makes the idea of "consent" almost laughable” (Summer, 2008). While it is illegal for prison guards to have intercourse with women, the fact remains that it is occurring. The Act should have created a same sex law and have female inmates guarded by females only. This will not prevent all female prison rapes, yet, it will provide for a reduction in the abuse created by the conflict theory.
Correctional officers and prison staff are untrained and do not know how to adequately deal with the issue of prison rape. Little is known about the social influence, tolerance and aid in prevention that prison staff gives towards the issue of rape. Hensley reveals this by stating “Few studies have concentrated on examining correctional officers and their attitudes toward rape and prison sexuality” (Hesley, 2000). The fact that prison staff are not trained to prevent and report prison rape is of concern. This is one of the main issues that support the need for this legislation. Prison staff must be on the frontline defense in the zero tolerance stances that this legislation proposes. The Act provides for the training of prison staff.
The Act seeks to create a standard of zero tolerance for prison rape. This Act creates reporting standards for rape cases. This uniformity is needed in the States to ensure a standard to measure effectiveness of the Act while ensuring individual victims get help by the same standard. Each state has had different ways of reporting and documenting prison rape. This also creates barriers in accurate data needed to implement better standards and may do more to silence victims rather than help them. The uniform standardization of prison rape reporting is a significant step in the right direction.
PREA is focused on a plan to create accountability among the officials for the prison rape cases and reporting them. The primary focus of the Act is research on the subject of prison rape. PREA is an Act that creates more bureaucracy than preventative law. This is shown in the act itself. There are more committees and departments created than actual mandates on prevention. The act allows for funding to create research panels. “There are authorized to be appropriated for grants under this section $40,000,000 for each of fiscal years 2004 through 2010” (Public Law 108-79-SEPT. 4, 2003, 2003) this funding is more for preliminary research rather than prevention and inmate treatment an noted by an article was originally published by The Nation “ Eight years ago, Congress acknowledged the brutal fact of systemic sexual assault behind bars by unanimously passing the Prison Rape Elimination Act (PREA). The Justice Department is now poised to issue final rules to implement the law” (Roth, 2011, p. 1) it seems like it is the preliminary research request before the law rather than the actual law. The fluff in the words do not go far enough to aid the inmate who is being raped as noted in the article Will the Justice Department Stand Up for Women Raped in Prison? “At some point in the near future, the attorney general will issue final rules. Those rules can be weak or they can be strong (Roth, 2011). This Act is more of a grandstanding on the subject matter rather than a zero-tolerance to prison rape. The issue is at least being focused on and there is now elected officials who will give lip service to such a hushed issue that creates massive despair in America. The Act is gender neutral therefore, unlike many other discriminatory practices; the blanket coverage will provide some protection to women, “The standards proposed by the National Prison Rape Elimination Commission will apply to all agencies and populations under the law” (Moss, p. 3). PREA will help in the women’s side of corrections as noted by Moss “Both genders would be well served as we implement PREA if careful thought is given to ways in which men and women enter the system, do time…” (Moss, p. 3).
The implementation of PREA needs consideration of the DOJ towards the female incarcerated population. As the guidelines are set out the DOJ should take the fastest growing incarcerated population, 53% increase since 1995; (Moss, p. 1) , into account and take a serious action protecting women. There is a request in Roth’s, article Will the Justice Department Stand Up for Women Raped in Prison?, to get involved and insist the Justice Department protect these women at www.regulations.gov . If we do not demand protection at the implementation of P.R.E.A. it will be another loss for women and a wasted opportunity to advance women in society. PREA allows for state certification when compliance to the Act is adhered to. The punitive recourse in a violation or refusal to comply with the Act is stated as a restriction of federal funds. I personally think that prison officials, who turn a blind eye to prison rape, should go to prison.
Bibliography
Public Law 108-79-SEPT. 4, 2003. (2003, SEPT. 4). Retrieved August 28, 2011, from Public Law: http://www.justdetention.org/pdf/PREA.pdf
Blackburn, A. (2008, September). Sexual Assault in Prison and Beyond: Toward an Understanding of Lifetime Sexual Assault Among Incarcerated Women. The Prison Journal, 88, 351-377.
Hesley, C. (2000, December). The History Of Prison Sex Research. The Prison JournalL, 80, 360-367.
Moss, A. (n.d.). Prison Rape Elimnation Act:Implications for Women and Girls. Retrieved 08 24, 2011, from CT Feature: http://www.wcl.american.edu/nic/resources/prea_implications_for_women_and_girls.pdf?rd=1
Roth, R. (2011, April 15). Will the Justice Department Stand Up for Women Raped in Prison? Retrieved 9 8, 2011, from RH Reality Check: http://www.rhrealitycheck.org/reader-diaries/2011/04/15/will-justice-department-stand-women-raped-prison
Summer, N. (2008, January 15). Powerless in Prison: Sexual Abuse Against Incarcerated Women. Retrieved August 29, 2011, from Alternet: http://www.alternet.org/reproductivejustice/73784
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