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PUBLIC LAW 108-79--THE PRISON RAPE ELIMINATION ACT OF 2003 Copyright 2006 Journal of Legislation; Robert W. Dumond At the dawn of the twenty-first century, a wound that had been festering in American corrections finally received exam- ination and treatment. For decades, there had been reports of the "[c]ruel and [u]sual" of prisoner rape
which had broken forth in the national media and in scholarly journals, raising the alarm about what some called "America's
most ignored crime problem." In 1996, Struckman-Johnson, Struckman-Johnson, Rucker, Bumby and Donaldson re-
ported that twenty-two percent of Nebraska's male prisoners were the victims of sexual pressuring, attempted sexual assault
or completed rapes and that one in ten prisoners were victims of a completed rape. Rights Watch de-
cried the sexual abuse of women in state prisons in the United States. National Institute of Corrections also initi-
ated a training program to address staff sexual misconduct that same year. Ironically, *143 however, until 1999 "sexu-
al abuse of prisoners by correctional officials was not even a criminal offense in 14 states."
By 2001, the problem was thrust into the national consciousness, spurred by a national study of male rape in U.S. pris- ons, an additional study of Midwestern prisons which re-confirmed earlier findings a flood of media, whoargued that prisoner rape was "accepted as [a] fact of prison life." Supreme Court of Canada had even chided aPennsylvania prosecutor for violating the Canadian Charter of Rights by threatening sexual violence. April 2001,the Canadian high court unanimously ruled to block the extradition of four men accused of a multimillion-dollar telemarket-ing scam in the United States because Pennsylvania prosecutor Gordon Zubrod had threatened "[y]ou're going to be the boy-friend of a very bad man if you wait out the extradition." In response, a unique, bi-partisan coalition of national legislators, social scientists, religious, professional and human rights organizations joined forces behind legislation, The Prison Rape Elimination Act of 2003, to alleviate the crisis.
Notably, the Act was passed unanimously by both houses of Congress was signed by President Bush onSeptember 4, 2003, sending a clear signal that such behavior was unacceptable and would not be tolerated.
I. Passage of the Prison Rape Elimination Act Has Spurred Substantive Change Though some have argued that progress on the Act has been slow, problem of prisoner sexual assault is re- ceiving considerable scrutiny and an enormous commitment of public resources and support. State and federal departments of
corrections have risen to the challenge. The American Correctional Association has created several new standards and re-
vised a number of other standards to respond to prisoner sexual *144 violence. National Institute of Corrections
has begun a major initiative to establish a clearinghouse of information on prisoner sexual violence, providing national train-
ing through teleconferences and, along with the Moss Group, providing a full range of resources to correctional agencies na-
tionwide. The Bureau of Justice Statistics (BJS) has initiated comprehensive data collection efforts, with more to
come, including an innovative inmate survey using an audio computer-assisted process. and the National Insti-
tute of Justice have funded comprehensive research studies and a number of innovative strategies. National Pris-
on Rape Elimination Commission has begun its comprehensive study of the problem, convening several public hearings, with
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Prisoner sexual violence is a complex continuum which includes a whole host of sexually coercive (non-consensual) be- haviors, including sexual harassment, sexual extortion and sexual assault, which can involve inmates and/or staff as perpet-rators. Called "the most serious and devastating of non-lethal offenses which occur in corrections," sexual violence has devastating personal, social, and emotional consequences to both the victim/survivor and society at large.
*145 B. Prisoner Sexual Violence Compromises the Underpinnings of American Justice.
The United States was established on the fundamental principles of freedom and equal justice under the rule of law. The founding fathers enshrined in the Bill of Rights specific guarantees for all citizens, which have become the cornerstone of ourconstitutional system of justice. The Enlightenment notion that the punishment should be proportional to the crime,first heralded by Cesare Beccaria, the stage for penal and legislative reforms that were a radical departure fromthe prevailing practice of capital punishment for a broad spectrum of crimes and substituted the penitentiary movement in itsplace. In particular, the Eighth Amendment prohibited the infliction of "cruel and unusual punishment" upon prison-ers. As the problem of prisoner sexual violence reached public awareness at the dawn of the twenty-first century,many argued that prisoner rape had become "an accepted . . . part of prison life" direct opposition to the EighthAmendment guarantee.
C. Prisoner Sexual Violence Has Been Known Since the Rise of the Penitentiary Movement The American correctional system has been plagued by prisoner sexual violence since its inception. Rev. Louis Dwight, Director of the Prison Discipline Society of Boston from 1825 to 1854, is considered the best source of information aboutAmerican prisons of that era. investigating state prison conditions from Massachusetts to Georgia between1824 and 1826, Rev. Dwight stated: I have found melancholy testimony to establish one general fact, viz. that boys are prostituted to the lust of old con- victs. . . . the sin of sodom is the vice of prisoners, and boys are the favorite prostitutes . . . "Sodomy" . . . "is said to beconstantly practiced among them. . . ." "[W]hen a boy was sent to Prison, who was of a fair countenance, there manytimes seemed to be quite a strife . . . . I will only add to this testimony, the following conversation which I had with a boyin the Penitentiary . . .: "Was the crime ever committed upon you? Yes, Sir! . . . Why did you submit? He choked me! Hewas stronger than I! Why did you not complain? I did, in the room! but [sic] they said if I told of it, they would punishme! Who said so? They all said, I must not tell any thing out of the room!" [N]ature and humanity cry aloud for redemp-tion from this dreadful degradation. One hundred years later, Joseph F. Fishman, who visited 1500 jails and prisons in *146 the United States before 1920,
confirmed the continuation of this practice. The author of two now classic correctional texts, denouncedthe large number of boys and young men "made homosexuals, either temporarily or permanently." also reportedthat prison officials turned a blind eye to sexual abuses and that the inmate predators responsible were often ignored by cor-rectional officers. As an inspector of federal prisons, Fishman cited a number of conditions which contributed to suchbehavior: lack of women, enforced idleness, close proximity of other men, breakdown of social relations, and the presence ofhomosexual 'wolves.' He also was one of the first to identify that the inmate code prevents victims from reporting.
D. The Precise Number of Prisoners Affected By Prisoner Sexual Violence Is Unknown 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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In the last thirty-five years, there have been less than twenty empirically based studies to accurately assess the incidence of
prisoner sexual violence, only three of which have included data about women prisoners. Gaes and
Andrew Goldberg note that, in total, these studies examined less than fifty prisons, only one jail setting and one national
probability study. The majority of these studies focused on male facilities and used inconsistent definitions, making
comparisons and conclusions difficult. each of these studies, there has been a wide range of reported incidents,
from extremely low incident rates to the suggestion that prison rape is widespread and *147 pervasive. pite these limitations, credible evidence over nearly a forty year period from reliable observers has established two unequi-
vocal facts: prison sexual violence does occur in correctional settings, and it has a devastating and profound effect upon its
victims and society. The lack of substantive national data about the problem of prisoner sexual assault, however, has stymied
a coordinated effective response to managing the problem. The Prison Rape Elimination Act provides a vehicle to examine
prisoner sexual violence; to accurately assess the problem; and, to appropriately respond.
II. A Recent BJS Report Provides A Major Innovation in Understanding Prisoner The data collection process that Dr. Allen Beck and his colleagues at BJS heralded represents a quantum leap in method- ology and our knowledge about the problem. Whereas previous studies focused on a very small sample, BJS, in its 2004 Sur-vey of Sexual Violence surveyed 2730 correctional facilities nationwide, holding seventy-nine percent of all adults and ju-veniles in custody. By including prisons, local jails, juvenile, Immigration and Naturalization Services, military, pub-lic and private correctional facilities, BJS created a broad, well-constructed national sample.
A. Rape and Sexual Violence Are the Most Underreported of Crimes To fully understand the implications of the BJS study, one must recognize that of all categories of crime, rape and sexual violence are known to be one of the most underreported, making an accurate assessment of its occurrence difficult. There arethree major methods to report crime: administrative records of crimes reported to law enforcement agencies (e.g., UniformCrime Reports), victimization surveys (e.g., National Crime Victimization Surveys), and self-report studies. BJSsurvey belongs to the first method. Accordingly, one must acknowledge that the BJS results will report the lowest rate of vic-timization. This is an issue of great importance, and it will be useful when comparing reporting of sexual violence in thecommunity.
In the 1992 National Women's Study, only about 12% of the women who alleged being victims of rape reported to the police. In the National Crime Victimization Survey in 1994, 41% of sexual assault victims reported to authorities.
In the 1998 survey, only 32% of sexual assaults of persons twelve years or older reported to law enforcement. In the 2000 National College Women Sexual Victimization Survey, fewer than 5% of the completed or attempted rapes were
reported *148 to law enforcement. In the most recent National Crime Victimization Survey (2003), 39% of the vic-
tims of rape and sexual assault reported their victimization to the police. know far less about male sexual assault
victims; only very recently did the Uniform Crime Reports even consider the fact that males could be sexually victimized.
Three percent of American men reported having been the victim of an attempted or completed rape in their lifetime,
according to the findings from the National Violence Against Women 1998 report, one in ten rape victims were
male according to the 2003 National Crime Victimization Surveys.
B. Innovations in BJS Survey of Sexual Violence Additionally, the use of four standardized, behaviorally specific definitions is a major improvement which will advance our knowledge of prisoner sexual violence substantially. Until this point, there had been little consensus on which acts of 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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sexual violence were being described. By being able to compare "apples to apples," we will be able to discuss the issue ofprisoner sexual violence with precision and confidence.
The results from the 2004 BJS Survey compelling. Nationwide, there were 8210 allegations of sexual viol- ence reported to correctional authorities in 2004 (3.15 allegations of sexual violence per 1000 inmates held). these, correctional authorities substantiated nearly 2100 incidents of sexual violence, 30% of completed investigations.
Not surprisingly, males comprised 90% of both victims and perpetrators of inmate-on-inmate nonconsensual acts,consistent with the large percentage of male prisoners nationwide. With staff sexual misconduct, however, surprising differences emerged between prisons and jails. In state prisons, 69% of victims of staff sexual misconduct were male, while 67% of perpetrators were female. local jails, the dynamicswere reversed, 70% of victims of staff sexual misconduct were female, while 65% of perpetrators were male. findings challenge correctional authorities to develop procedures to more carefully screen, train, monitor, and support correc-tional staff in their duties of prisoner care, custody and control.
The BJS Survey also makes an important point: as this is the first attempt at a national understanding of the problem, the data presented cannot be used to "rank order" states, since additional methods (i.e. victimization surveys) must be utilized to
*149 make reliable comparisons. What is sure, however, is that there is likely to be an increase in the reporting of prisoner
sexual violence in the future. In fact, there should be an increase in reporting if we, as correctional agencies, are doing what is
necessary to encourage reporting and to take this problem seriously. By scrutinizing and tracing prisoner sexual violence in a
uniform and scientific manner, correctional agencies will be better positioned to identify vulnerable victims, potential perpet-
rators, and times and locations where violence has occurred or is likely to occur. They can use this data to drive necessary
policy and procedural changes.
III. Crucial Information About Prisoner Sexual Violence Which Is Known From The previous forty years of research has revealed crucial information about the methods of victimization, the increased vulnerability of certain prisoners, and the devastating impact upon victims.
Aggressors employ several methods to control their victims, including entrapment (blackmail), pressure tactics and phys- ical force, accompanied by psychological manipulation. A common form of entrapment is to give a new prisoner a number of goods which are "on-loan," since new inmates of- ten have few resources available to them. In the correctional economy, loaned goods must be repaid at exorbitantly high rates(e.g., two packages of canteen goods for every one loaned, which increases by the week). an inmate cannot re-pay the loan, he or she is forced to pay with sex. tactics include persuasion, bribes, threats to withdraw loveand use of alcohol or drugs. Force tactics include threats of harm; intimidation by the perpetrator's size and strength;being physically held down; having a weapon present; and, a variety of physical assaults. Perpetrators also utilize five major psychological components to engage victims: conquest and control, revenge and re- taliation, sadism and denigration, conflict and counteraction, and status and affiliation, primarily at exercising
control and aggression. The process is seductive and manipulative, has a significant impact upon the psyche of the victim,
and often contributes to feelings of guilt, shame and humiliation. have shown that these crimes destabil-
ize the safety and security of America's jails and prisons, and are a contributing factor in homicides, *150 violence against in-
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mates and staff, insurrections and riots. B. Increased Vulnerability of Certain Prisoners The same operating principles which affect crime in the community operate in jails and prisons. Predators look for means, opportunity and vulnerability. They select targets who are least able to defend themselves; less believed by prisonstaff; are disliked by inmates and staff; and, easily ostracized. has demonstrated that certain prisoners ap-pear to be at increased risk: young and inexperienced; first time offenders; inmates with mental illness or developmental dis-abilities; physically small or weak; known to be homosexual, transgendered; appear overtly effeminate; not "tough" or "street-wise"; not gang affiliated; and, those previously sexually assaulted. This is particularly important to note, because theimpact of victimization is mediated by a number of factors, including availability of positive support. victimsare from a "suspect class" displaying characteristics that make them loathsome or unsympathetic, they may be unable togarner or secure the necessary support. Researchers have found that some officers were less likely to respond to incidents in-volving homosexual victims, or involving apparently consensual acts. officers even believed that certain in-mates deserved to be raped. IV. Consequences of Prison Sexual Violence The effects of sexual violence are well-known and extremely deleterious. Victims of sexual violence undergo a destruct- ive, catastrophic, life-changing event. are likely to experience "physical, emotional, cognitive, psychological,
social and sexual" problems as a result. Even one event may precipitate a lifetime of pain and *151 suffering. One study noted that even seventeen years after the assault, 16.5% of rape victims manifested symptoms of posttraumatic
stress disorder (PTSD).
The sexual victimization experience precipitates immediate, short-term and long-term effects, which can be severe. Im- mediate effects might include the victim experiencing a lack of control accompanied by physical pain, suffering, and threatsof further harm or death concomitant with the assault. Victims often articulate shock, disbelief, panic, and fright, andthey are focused upon survival. may employ a host of coping strategies (i.e., fighting back, bargaining, fo-cusing on the rapist, mental escaping, and compliance) with variable outcomes. Short-term (and long-term) effects on male and female sexual violence victims might include a wide range of psychiatric problems such as PTSD, rape trauma syndrome, anxiety, depression, exacerbation of preexisting psychiatric disorders, andsuicidal feelings. The degree and severity of these problems will vary, but certain conditions (i.e., previous physical/sexual victimization prior to incarceration, pre-existing mental disorders, and long-term, on-going abuse and torture) will cer-tainly exacerbate the problems. Markesteyn postulates that reactions to victimization may be mediated bythree classes of variables: victims' pre-victimization characteristics; victims' post-victimization abilities to cope; and, factorsrelated to the criminal event. Victims may also contract HIV/AIDS, tuberculosis, hepatitis B and C, and other sexually transmitted diseases, all of which are common in U.S. correctional institutions. The intimate and complex nature of coercive sexuality itself may
also *152 contribute to personal feelings of guilt, shame, humiliation, confusion, and despair within victims.
In the long term, victims might negatively cope with their victimization by dulling their senses with alcohol and narcot- ics, or engaging in sexually promiscuous behavior. victims might rape other inmates, or become more violentin general. 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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B. Suicide is the Most Lethal Consequence of Prison Sexual Violence Some prisoners, especially those who face unrelenting, repeated physical and sexual victimization, may view suicide as the only viable option out of the intolerable circumstance. Contemplating or attempting suicide is far more likely among vic-tims of sexual violence. is a significant cause of death in America's correctional institutions; [FN88]however, currently we do not know how many prisoners have attempted or completed suicide as a result of sexual violence.
Kilpatrick, Whalley and Edmunds have noted that "rape victims were 4.1 times more likely than noncrime victims to have contemplated suicide. . . . [and] 13 times more likely than noncrime victims to have actually made a suicide attempt(13% vs. 1%)." In the past, suicide has been one of the leading causes of death in America's correctional institutions.
According to the most recent BJS survey, the suicide rate in local jails was over three times the rate in state prisons (14 per 100,000 inmates). Important to note, however, is that the suicide rate rose steadily as jail size decreased. State prisoners had a higher rate of suicide (14 per 100,000) than the overall resident population (11 per 100,000).
However, once standardized to match the state prisoner population, the U.S. resident rate of suicide (18 per 100,000)
exceeded that of *153 state prisoners in 2002.
Linda Bruntmeyer, the mother of seventeen year-old Rodney Hulin, testified before the US Senate Committee on the Ju- diciary in 2002. testimony provides a sobering and heart-wrenching commentary about a situation that nevershould have occurred: When Rodney was 16 . . . they sentenced him to 8 years in an adult prison.
. . . .
Then our worst nightmares came true. Rodney wrote us a letter telling us he had been raped. A medical examiner had confirmed the rape. The doctor found tears in his rectum and ordered an HIV test, because, he told us, one-third of the prison-ers there are HIV positive.
. . . [Rodney] wrote to the authorities, requesting to be moved to a safer place. . . . but he was denied.
After the first rape, he returned to the general population. There, he was repeatedly beaten and forced to perform oral sex and raped. He wrote for help again. . . . "I have been sexually and physically assaulted several times, by several inmates. I amafraid to go to sleep, to shower, and just about anything else. I am afraid that when I am doing these things, I would die at anyminute. Please, sir, help me." Still, officials told him that he did not meet the emergency criteria. . . . I called the warden, trying to figure out what was going on. He said, "Rodney needs to grow up." He said, "This happens every day. Learn to deal with it. It is no big deal." . . . .
. . . On the night of January 26, 1996, my son hung himself in his cell. He was 17 and afraid and ashamed and hopeless.
He laid in a coma for the next 4 months before he died. testimony vividly documents the horror and hopeless-
ness which leads some to end *154 their lives.
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tims. Research has demonstrated that incarcerated victims are more often physically assaulted during attacks, and they mayexperience repeated assaults by multiple assailants over time. As a result, victims may experience on-going psycholo-gical trauma, terror, helplessness, and fear as the physical/sexual abuse continues. Judith Herman has postulated that victimsof prolonged and repeated trauma experience a more debilitating, complex version of PTSD. addition, victims ex-perience enormous social consequences; victims routinely experience a loss of social status, and they might be more vulner-able for future attacks within the jail or prison. When prison staff perpetrate the assault, victims often experience enhanced feelings of betrayal, alienation and suffering, because those with the duty and responsibility to ensure the victims' safety are attacking them. prison sexualassault victims do not report the incidents to correctional authorities, because they fear reprisals, fear no one will believethem, or think it will only cause more problems. a result, victims do not receive much needed therapeutic pro-phylaxis and treatment.
D. Victim Action May Only Compromise His/Her Wellbeing and Safety After an attack, a victim of prisoner sexual violence faces difficult decisions which increase the feelings of confusion and despair. The victim's response will profoundly affect his future life in prison. In some ways the victim is in a no-win
situation. If the victim chooses protective custody, he risks further labeling, increased stigmatization, reduced pro-
grams and services, and the potential trauma of *155 isolation itself. If he fights back to defend himself, he risks be-
ing labeled a troublemaker, being disciplined by staff, or being denied parole. If he chooses to "hook-up" with a "pro-
tector," he might avoid some future attacks, but he will likely become a long-term sexual slave forced to perform sexually
with the "protector." If he remains in the general population, he may be further confronted by his attacker or others
aware of the victimization.
T.J. Parsell, a young man who became a sexual slave during his incarceration, described his traumatic experience at the National Prison Rape Elimination Commission Hearing in San Francisco, California in August 2005. was sev-enteen years old when he was sentenced to four years in an adult prison in Michigan for robbing a Photomat with a toy gun.
He was gang-raped by other inmates, and after the initial assault, inmates flipped a coin to determine who would"own" him. I didn't last 24 hours before an inmate spiked my drink with Thorazine and then ordered me down to his dorm. Even with the drug's heavy effect, it was the most agony I had ever experienced. They knocked me out of the bed and nearlysuffocated me as they shoved my head into a pillow to muffle my screams.
. . . One of them grabbed my hair and smacked me and pulled my head down while the others took turns sodomizing me.
When I choked on my own vomit and gasped for air, it only made them laugh.
. . . My rectum bled for several days, but I was too afraid to come forward, even to see a doctor. . . . I just wanted to do my time and get out alive. Everyone knew that snitches were killed.
*156 What they took from me went beyond sex. They had stolen my manhood, my identity and part of my soul. They
laughed about it afterward and openly bragged. . . . The inmate who won [me] . . . . had set it up to make me more vulnerable.
It's one of the oldest games in prison . . . . I was forced into protective pairing.
It takes only one or two violent rapes before you start compromising.
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Being gang raped in prison has scarred me in ways that can't be seen or imagined. . . . I'm a successful businessman, a functioning member of society. But that success has come at a great cost. I've undergone years of therapy to get where I am,but I still don't sleep well at night. I start up at the slightest noise. And as a gay man, I blamed myself for many years. You'redegraded so much in there that after a while you start to believe it. The horror and scars of Mr. Parsell's victimization plague him to this day; however, he has channeled his trauma into constructive action for other victims of prisoner sexual violence. He is a prison rape advocate, author of FISH: Memoir of aBoy in a Man's Prison, and President of Stop Prisoner Rape, an international human rights group dedicated to eradicatingprisoner sexual violence. E. Gender and Age Differences in the Impact of Prisoner Sexual Violence Impact on Women: Compared to men, incarcerated women have a much higher rate of physical and sexual abuse during childhood, adolescence and prior to incarceration. exacerbates the assault's impact during incarceration, andcompromises women's ability to cope with and recover from the assault. victims may have had long histor-ies of abuse and submission which reinforces their feelings of inadequacy, despair and unworthiness. female rape victims may also become pregnant as a result of the assault.
Impact on Men: Sexual assault devalues two primary areas of male identity: sexuality and aggression. Most male victims experience concern about their *157 masculinity, competence and security, increasing their humiliation and suffering.
Men often might manifest a more "controlled" response to an assault, which may lead authorities to conclude that
the event did not occur or that its impact was minimal.
Impact on Juveniles: The crisis of adolescence is one of identity--knowing where one "fits in" in society and adopting an identity of whom one is physically, emotionally, socially and sexually. is a powerful force in the lives ofdeveloping teens. With younger male victims, there may also be considerable confusion regarding their sexual iden-tity following sexual victimization. One of the strategies which predators often use is to attempt to get the victim to ejaculate. myth about male rape is that men cannot become excited or ejaculate under coercion; however, Nicholas Groth and Ann Burgesshave demonstrated that perpetrators can force male victims to become sexually aroused. this occurs, theremay be considerable confusion and questioning particularly about gender identity, and juveniles may feel intense guilt, shameand are likely to blame themselves for their victimization. F. Sexual Victimization of Inmates by Staff: An Often Overlooked Cancer The issue of sexual misconduct, abuse, and assault by staff on male and female inmates continues to be important. Most correctional officers do not participate in such abusive behavior; yet a small minority of staff have inflicted serious harm on
inmates. The boundaries between correctional staff and inmates can get confused in the alienating and negative en-
vironment of the prison milieu. Even if the exchange between staff and inmate was consensual, there exists a barrier which
cannot be breached. This type of staff involvement is not confined to one type of correctional *158 worker. Correc-
tional officers, administrators, mental health staff, support staff, teachers have all been identified as violating inmates sexu-
In the last ten years in particular, it has become increasingly apparent that women in confinement face a substantial risk of sexual assault, most often by a small number of ruthless male correctional staff who use terror, retaliation, and repeated 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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victimization to coerce and intimidate confined women. Concerns about this issue led the National Institute of Cor-rections to solicit submissions for development of a training curriculum for investigating allegations of staff sexual miscon-duct with inmates. While several states did not even recognize that sexual congress between correctional staff andprisoners was fundamentally unequal and can never be allowed, is now a crime in nearly every state. There is also much food for thought in the new data regarding staff sexual misconduct reported by BJS, particularly as to thelarge number of female prison staff responsible for staff sexual misconduct against male inmates. abuses areintolerable. They are fundamental violations of incarceration; they defile the guiding principles of correctional environmentsand tarnish the corrections profession.
In 1997, a corrections officer in a Washington, D.C. hospital ward raped Hope Hernandez in a jail shower while she was heavily medicated for drug withdrawal symptoms. Hope's account offers a powerful description of prison staff sexu-al abuse and its effects: After being incarcerated for three months, you learned to do what the guards tell you to do. . . . If they said go into that stall, you go into that stall. If they said eat now, I ate. I was very compliant. I had no desire to cause trouble andevery reason to believe that I was being directed by trained professionals. That's the psychology of the incarceration. . . .
So when the guard who took me to the shower came in the middle of the night, I had no reason to suspect foul play. .
*159 He came in while I was in the shower. Before I knew it, he was standing in the shower stall having intercourse
with me. I wasn't in a position to say no. In addition to being heavily medicated, it was 2:30 or 3 o'clock in the morning .
. . .
. . . .
Later I told a nurse what had happened, and they took me to the hospital to do a rape kit. But the officer had used a condom. The rape kit came back . . . inconclusive.
Although it's been eight years, I'm still suffering from the effects of that rape. . . . I kept seeing the guard's face over I would get so sick thinking about it that I would throw up.
And my husband has tried to be intimate with me. All I could see was this guard's face flashing back in my mind, V. Appropriate Management Requires A Comprehensive Strategy.
The management of prisoner sexual violence cannot be effectively undertaken without the active and positive involve- ment of all correctional staff, including: administrators, security, classification and other members of the correctional team,and appropriate medical and mental health providers. Everyone plays an integral role in the process, and all members are vi-tal to ensuring a just and efficient response to inmate victims. Comprehensive services must be initiated as soon as possibleafter the event, and must address immediate, short-term, and long-term effects. Services must be sustained throughout theprisoner's incarceration with appropriate community referrals upon release.
A. Correctional Mental Health Care is Inconsistent and Often Inadequate Providing appropriate care to prisoners who have experienced sexual violence and its effects requires the utilization of current and sound mental health technologies. Unfortunately, the state of mental health care in America's jails and prisons has
been found to be inconsistent, deficient, and inadequate to meet the needs of those prisoners requiring such services. In addition, the increasing number of inmates entering U.S. *160 jails and prisons with pre-existing psychiatric illnesses will
continue to tax already overburdened resources.
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In the United States, jails and prisons have become the de facto psychiatric facilities of the twenty-first century. With morementally ill individuals housed in correctional facilities than in public psychiatric facilities, and prisons are es-sentially serving as "the country's front-line mental health providers," they are ill-equipped to do so. Evenmore disturbing is the realization that American jails, which often have fewer facilities and resources to offer, have become"the largest inpatient mental health institutions in the United States." The quality of mental health services and the ability of staff to meet the great demand might differ depending on the type of institution (jail or prison) and other factors such as size, staff and location. While larger state departments of correctionsmight employ full-time staff to provide mental health services (either as state employees or contracted agents), smaller prisonfacilities and local jails might rely on contracted services from local mental health agencies. a result, it is imper-ative that mental health be delivered consistent with community standards, using the current accepted benchmarks of profes-sional practice. An appropriate number of mental health professionals must be available, and must employ the same (if notgreater) care in meeting the complex needs of some of our most challenging citizens. 1. American Correctional System is Facing Historically Unprecedented Problems Jails and prisons throughout the country struggle with the realities of overcrowding, underfunding, understaffing, and in- adequate resources (i.e., lack of adequate educational, vocational, medical, and mental health programs and services).
Michael *161 Tonry and Joan Petersilia contend that there have been profound changes in prisons since the 1970s,
especially regarding inmate and staff subcultures and changes in inmate-staff interactions, brought about by a wide range of
The population of American correctional institutions is exploding beyond its capacity; the United States currently ranks first worldwide in the number of incarcerated inmates. is an enormous annual turnover of inmates in Amer-ica's jails and prisons. There are an estimated twelve million people released from correctional facilities annually; state and federal prisons admitted 625,964 sentenced prisoners while they released 606,225 in 2000. Despite a decade of correctional construction in the 1990s, prison facilities have failed to keep pace with the burgeoning national prison population. Prisoners are incarcerated for longer periods of time as a result of the legislative and ju-dicial policy changes of the last twenty-five years. in American correctional institutions are getting olderand are experiencing significant physical and medical disorders. An ever-increasing number of prisoners experience profound mental health and psychiatric disabilities. The combination of the above factors (increased population, aging, longer sentences, and medical and psychiatric disorders) are taxing the of-ten inadequate medical, mental health, and programmatic resources within the nation's prisons and jails.
2. Most Prisoners Return to Community Life Responding to prisoner sexual violence is an ethical imperative, and in the best interest of society. Most of America's prisoners will, in fact, return to community life after a period of time while incarcerated. Our failure to effectively managetheir difficulties will ultimately be borne by society itself, as poignantly articulated by Joseph Fishman in 1923: [T]he man in jail today is the man who will be out tomorrow. . . . If the treatment *162 which they receive in jail,
and the surroundings forced upon them are such as to turn them out with criminal tendencies which were lacking ordormant when they went in, you, Mr. Average Citizen, may be the one to suffer. Furthermore, if one accepts Fyodor Dostoyevsky's premise that "[t]he degree of civilization in a society can be judged by 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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entering its prisons," United States has a duty to eradicate the cancer of prisoner sexual violence.
"[I]mprisonment itself, entailing loss of liberty, loss of citizenship, separation from family and loved ones, is punishmentenough . . . ." argued Mary Harris, U.S. prison administrator at the Federal Industrial Institution for Women. theSupreme Court's only case involving prisoner sexual violence, Justice Souter agreed that "[b]eing violently assaulted in pris-on is simply not 'part of the penalty . . . ."' a concurring opinion, Justice Blackmun stated that prison officialshave an "affirmative duty under the Constitution to provide for the safety of inmates." B. The Commitment to Change by State and Federal Correctional Agencies Has Been Noteworthy In 2001, Human Rights Watch reported that most correctional authorities denied the existence of the problem. Of the forty-seven corrections departments that responded, twenty-three reported that they maintained distinct statistical dataon inmate sexual assault. six states provided correctional staff training in recognizing, preventing, and re-sponding to prisoner sexual assault. At the most recent National Institute of Justice conference in July 2005, UrbanInstitute researchers Janine Zweig and Megan Schaffer reported a sea-change by correctional departments nationwide in lessthan five years. The majority of states had adopted methods to document incidents of prisoner sexual violence: 78%of states had prevention efforts underway, 80% provided staff training, 82% had investigation and response efforts, and 89%provided services to victims. C. Several Challenges Exist and Must Be Addressed Gaps in Our Knowledge: While the changes since passage of the Prison Rape Elimination Act have been noteworthy, there are still many challenges which must be *163 overcome, not the least of which is the gap in our knowledge. Anadora
Moss and Ashbel Wall outline a number of gaps that exist in our understanding of inmate-on-inmate sexual abuse, including
the role of gangs and race, effective strategies to manage victims and perpetrators, consent versus coercion, managing special
populations, and administrative versus criminal sanctions. Some of these issues will be addressed by research being
conducted by both the National Institute of Justice and the Bureau of Justice Statistics. Moss and Wall adroitly note that "the
course is not a sprint, but a marathon."
Myth of Permissible Consensual Inmate-on-Inmate Sexual Behavior in Correctional Settings: While some would argue that there may be instances of "consensual" sexual behavior between inmates in correctional settings, it is never permissibleand is a violation of institutional discipline in most correctional settings. Prison changes the context of sexuality. ChristopherHensley notes that "[e]ven what people would assume was consensual sex, in prison it is coercive sex . . . ." Eigenburg further argues that wrestling with the vexing issue of consensual sex and the institutional response could re-victimize some victims. Challenge of Managing the Range of U.S. Correctional Institutions: According to the BJS, there are 8663 correctional fa- cilities in the United States that are covered under the Prison Rape Elimination Act of 2003, including 84 Federal prisons,1320 state prisons, 264 private prisons, 3318 local public jails, 47 private local jails, 510 state juvenile facilities, 685 local ju-venile facilities, 2275 private juvenile facilities, and 160 other facilities. challenging is the fact that at leasthalf of the existing jail facilities have correctional populations of less than fifty prisoners. there has been astrong response by state and federal correctional institutions (in part because of the efforts of the National Institute of Correc-tions, the American Correctional Association, and the Association of State Correctional Administrators), the awareness of thePrison Rape Elimination Act among jail administrators and staff varies, and the resources to respond, both internally and ex-ternally, differ considerably.
Limits of Confidentiality, Especially Among Institutional Medical and Mental Health Staff: In the community, victims of 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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sexual violence can choose whether or not to report their victimization to law enforcement authorities, and they can elect to
receive medical and mental health services without notifying these authorities. Unfortunately, because correctional facilities
are responsible for the care, custody, and control of inmates in their care, all incidents of prisoner sexual violence require no-
tification to the correctional administration in order to adequately respond to and intervene in such incidents. It would be leg-
ally untenable not to mandate this, since failure to respond affirmatively could compromise institutional safety and incur
harm to inmate victims whom the institution is mandated to protect. This, too, is a dilemma whose solution has *164 yet to be
American corrections is in a pivotal position to change the course of the future. After years of neglect, the corrections profession has begun to respond to the challenges of prisoner sexual violence by initiating substantive innovations in training,education, policies, procedures, and raising awareness. Prisoner sexual violence is a phenomenon with wide-ranging effectsthat can be deadly and catastrophic. While substantive progress has been made, and while corrections has risen to the chal-lenge with vigor and commitment, there are vexing challenges which persist, and which must be examined and addressed.
We can, and must, continue to display the leadership and vision which we have demonstrated in the past to adequately re-spond to prisoner sexual violence. For too long, many prisoners, often those who have been most vulnerable, have silentlyendured these crimes. We have the technology and means to address this issue, and now, with your help, we can implementsubstantive remedies. If America expects to continue to be the beacon of law and justice, we must take every step to end thiscruel abuse.
. LMHC, Dip. CFC, Director, Research & Planning Division, Massachusetts Department of Correction. Robert W.
Dumond is a board certified (NBCC) and licensed (MA & NH) clinical mental health counselor, and a diplomat of clinicalforensic counseling (ACCFC) who currently serves as Director of the Research and Planning Division with the Massachu-setts Department of Correction (MA DOC). He has provided services to adult and juvenile crime victims and offenders in anumber of criminal justice venues since 1970, mostly the Essex County (MA) District Attorney's Office and the MA DOC.
He has held a faculty appointment with Franklin Pierce College, Division of Continuing Education and Professional andGraduate Studies and has researched, written and presented extensively on the issue of prison sexual assault, developing thefirst curriculum for Rape Awareness Training for the MA DOC. He has also provided expert testimony in a number of juris-dictions of the U.S. District Court and in several state courts. He contributed language to the Prison Rape Elimination Act of2003, and testified on its behalf before the United States Senate, Committee on the Judiciary, in 2002. He has been a consult-ant to the National Institute of Justice, the National Institute of Corrections, and the National Prison Rape Elimination Com-mission. He currently serves as a Governor's Appointee to the New Hampshire Department of Corrections Citizen's AdvisoryBoard Executive Committee and as a member of the NH Disaster Behavioral Health Response Team. This article solely rep-resents the opinion of the author alone and does not necessarily represent the opinion of the Commonwealth of Massachu-setts, the Massachusetts Department of Correction, nor any agency with which the author has been associated in the past orpresent. Portions of this article were presented at the first public hearing before the National Prison Rape Elimination Com-mission entitled "The Cost of Victimization: Why Our Nation Must Confront Rape" which occurred at the Canon Building,Washington, D.C. on June 14, 2005.
Editorial, Cruel and Usual, Wash. Post, Apr. 23, 2001, at A14.
Eli Lehrer, Hell Behind Bars: The Crime that Dares Not Speak its Name, Nat'l Rev., Feb. 5. 2001, available at ht-tp:// dls/m1282/2_53/69388675/p1/article.jhtml.
Cindy Struckman-Johnson et al., Sexual Coercion Reported by Men and Women in Prison, 33 J. Sex Res. 67, 71 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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(1996) [hereinafter Sexual Coercion Reported].
See generally Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (1996), ht-tp://
See generally Anadora Moss & Ashbel T. Wall II, Addressing the Challenge of Inmate Rape, 67 Corrections Today74 (2005) (discussing training program).
Curt Goering, Deputy Executive Director, Amnesty International U.S.A., Letter to the Editor, An Ugly Portrait ofRape in Prison, N.Y. Times, Apr. 17, 2001, at A18.
Cindy Struckman-Johnson & David Struckman-Johnson, Sexual Coercion Rates in Seven Midwestern Prison Facilit-ies for Men, 80 Prison J. 379 (2000), available at [hereinafter Struckman-Johnson,Sexual Coercion Rates].
. Tamar Lewin, Little Sympathy or Remedy For Inmates Who Are Raped, N.Y. Times, Apr. 15, 2001, at 11.
. United States v. Cobb, [2001] S.C.R. 587 (Can.).
. Robert W. Dumond, Confronting America's Most Ignored Crime Problem: The Prison Rape Elimination Act of2003, 31 J. Am. Acad. Psychiatry & L. 354 (2003), available at [hereinafter Du-mond, Confronting America].
. Press Release, Stop Prisoner Rape, House and Senate Pass Legislation to Curb Prisoner Rape (July 25, 2003), (discussing unanimous Congressional vote to pass the Act).
. Press Release, Stop Prisoner Rape, Prison Rape Elimination Act Becomes Federal Law (September 4, 2003),
. See, e.g., Stop Prisoner Rape, PREA Update: Stop Prisoner Rape's Report on the Prison Rape Elimination Act 2(2005), http://
. See Minutes from American Correctional Association Standards Committee Meeting (Jan. 10, 2003),
. See PREA: NIC Assistance, (last visited Apr. 5, 2006) (collecting electronicallyavailable resources on the Prison Rape Elimination Act).
. Allen J. Beck & Timothy A. Hughes, Bureau of Justice Statistics, Dep't of Justice, Prison Rape Elimination Act of 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
(Cite as: 32 J. Legis. 142); Data Collections for the Prison Rape Elimination Act of 2003 (2004), ht-tp:// [hereinafter Data Collections].
. See National Institute of Corrections, PREA Grants Through BJA, (last visited Ju-ly
. See Nat'l Prison Rape Elimination Comm'n, Public Proceedings, (last visitedApr. 10, 2006) (identifying public hearings in San Francisco, CA, Washington, D. C., Miami, FL, and a public meeting at theUniversity of Notre Dame).
. See generally Lee H. Bowker, Prison Victimization (1980); Donald J. Cotton & A. Nicholas Groth, Sexual Assaultin Correctional Institutions: Prevention and Intervention, in Victims of Sexual Aggression: Treatment of Children, Women,and Men (Irving R. Stuart & Joanne G. Greer eds., 1984) [hereinafter Cotton, Sexual Assault]; Robert W. Dumond & DorisA. Dumond, Training Staff on Inmate Sexual Assault, in Prison Sex: Practice and Policy 89 (Christopher Hensley ed., 2002)[hereinafter Dumond, Training Staff]; Daniel Lockwood, Prison Sexual Violence (Michael Gnat ed., 1980); Carl Weiss &David James Friar, Terror in the Prisons: Homosexual Rape and Why Society Condones It (1974); Wayne S. Wooden & JayParker, Men Behind Bars: Sexual Exploitation in Prison (1982); Donald J. Cotton & A Nicholas Groth, Inmate Rape: Preven-tion and Intervention, 2 J. Prison & Jail Health 47 (1982) [hereinafter Cotton, Inmate Rape]; Alan J. Davis, Sexual Assaultsin the Philadelphia Prison System and Sheriff's Vans, 6 Trans-Action 8 (1968); Dumond, Confronting America, supra note14; Robert W. Dumond, The Sexual Assault of Male Inmates in Incarcerated Settings, 20 Int'l J. Soc. L. 135 (1992)[hereinafter Dumond, Male Inmates]; Robert W. Dumond & Doris A. Dumond, The Treatment of Sexual Assault Victims, inPrison Sex: Practice and Policy 67 (Christopher Hensley ed., 2002) [hereinafter Dumond, Treatment of Victims]; HumanRights Watch, supra note 8; Struckman-Johnson, Sexual Coercion Rates, supra note 9; Sexual Coercion Reported, supra note3; Cindy Struckman-Johnson & David Struckman-Johnson, Sexual Coercion Reported by Women in Three Midwestern Pris-ons, 39 J. Sex Res. 217 (2002) [hereinafter Struckman-Johnson, Three Midwestern Prisons].
. Cotton & Groth, Inmate Rape, supra note 23, at 47.
. See Cesare Beccaria, Of Crimes and Punishments 18 (Henry Paolucci trans., 1963) (1767).
. Lawrence M. Friedman, Crime and Punishment in American History 63, 77 (1993).
. Editorial, Cruel and Usual, Wash. Post, Apr. 23, 2001, at A14.
. Harry E. Allen & Clifford E. Simonsen, Corrections in America: An introduction 35 (9th ed., 2001).
. Jonathan Katz, Gay American History 27-28 (1976).
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. Joseph F. Fishman, Sex in Prison: Revealing Sex Conditions in American Prisons (1934) [hereinafter Fishman, Sexin Prison]; Joseph F. Fishman, Crucibles of Crime: The Shocking Story of the American Jail (1923).
. Fishman, Sex in Prison, supra note 33, at 83.
. Christopher Hensley et al., Introduction: The History of Prison Sex Research, 80 Prison J. 360, 362 (2000).
. Struckman-Johnson, Sexual Coercion Rates, supra note 9; Clemens Bartollas & Christopher M. Sieverdes, TheSexual Victim in a Co-educational Juvenile Correctional Institution, 58 Prison J. 80 (1983); Davis, supra note 23; Lockwood,supra note 23; Wooden & Parker, supra note 23; Leo Carroll, Humanitarian Reform and Biracial Sexual Assault in a Maxim-um Security Prison, 5 Urban Life 417 (Jan. 1977); D.A. Fuller & T. Orsagh, Violence and Victimization within a State PrisonSystem, 2 Crim. Just. Rev. 35 (1977); Christopher Hensley, Consensual Homosexual Activity in Male Prisons, 26 Correc-tions Compendium 1 (2001); David A. Jones, The Health Risks of Imprisonment (1976); C. Scott Moss et al., Sexual Assaultin Prison, 44 Psychol. Rep. 823 (1979); Peter L. Nacci & Thomas R. Kane, Sex and Sexual Aggression in Federal Prisons:Inmate Involvement and Employee Impact, 48 Fed. Probation 46 (1984) [hereinafter Nacci, Federal Prisons]; Peter L. Nacci& Thomas R. Kane, The Incidence of Sex and Sexual Aggression in Federal Prisons, 47 Fed. Probation 31 (1983)[hereinafter Nacci, Incidence of Sex and Sexual Aggression]; Peter L. Nacci, A Federal Study: Sexual Assault in Prisons, 40Am. J. Corrections 30 (1978) [hereinafter Nacci, A Federal Study]; Christine Saum et al., Sex in Prison: Exploring the Mythsand Realities, 75 Prison J. 413 (1995); Sexual Coercion Reported, supra note 3; Richard Tewksbury, Measures of Sexual Be-havior in an Ohio Prison, 74 Soc. Res. 34 (1989).
. Leanne Fiftal Alarid, Sexual Assault and Coercion Among Incarcerated Women Prisoners: Excerpts from PrisonLetters, 80 Prison J. 391, 392-93 (2000); Stephen Donaldson, Rape of Incarcerated Americans: A Preliminary StatisticalLook (1995),; Sexual Coercion Reported, supra note 3.
. Gerald G. Gaes & Andrew L. Goldberg, Prison Rape: A Critical Review of the Literature 1-2 (2004), available at ht-tp://
. See, e.g., Tewksbury, supra note 38, at 38; Lockwood, supra note 23, at 87.
. See, e.g., Wooden & Parker, supra note 23, at 134.
. Anne Bartol & Curt Bartol, Introduction for Forensic Psychology 104 (2004).
. Dean G. Kilpatrick et al., Nat'l Victim Center, Rape in America: A Report to the Nation (1992).
. Bureau of Justice Statistics, Dep't of Justice, Criminal Victimization in the United States, 1994, vii-viii (1997),
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. Callie M. Rennison, Bureau of Justice Statistics, Dep't of Justice, Criminal Victimization 1998: Changes 1997-1998with Trends 1993-1998, at 9-10 (1999),
. Bonnie S. Fisher et al., Bureau of Justice Statistics, Dep't of Justice, The Sexual Victimization of College Women 23(2000), http://
. Shannan M. Catalano, Bureau of Justice Statistics, Dep't of Justice, Criminal Victimization, 2003, at 10 (2004), ht-tp://
. Dumond, Treatment of Victims, supra note 23, at 72.
. Patricia Tjaden & Nancy Thoennes, Dep't of Justice, Full Report on the Prevalence, Incidence, and Consequences ofViolence Against Women 13 (2000),
. Sexual Coercion Reported, supra note 3, at 69.
. See Julie Kunselman et al., Nonconsensual Sexual Behavior, in Prison Sex: Practice and Policy 29 (C. Hensley ed.,2002) (stating that the repayment amount may be double or triple the amount borrowed).
. See Cotton, Sexual Assault, supra note 23, at 129 (detailing one inmate's story in which he could not repay a debtand was forced to perform oral sex).
. Sexual Coercion Reported, supra note 3, at 69.
. A. Nicholas Groth et al., Rape: Power, Rage and Sexuality, 134 Am. J. Psychiatry 1239 (1977) [hereinafter Groth,Rape].
. Kunselman et al., supra note 61, at 43-44.
. See, e.g., Nacci, Federal Prisons, supra note 38, at 30.
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. See id. ("The more of these factors apply, the more likely the victimization. If most apply, rape becomes a probabil-ity.").
. Trevor Markesteyn, The Psychological of Nonsexual Criminal Offenses on Victims, at iii (1992), available at ht-tp:// ("[A]n established social support network can buffernegative consequences.").
. See, e.g., Helen M. Eigenberg, Male Rape: An Empirical Examination of Correctional Officers' Attitudes TowardMale Rap in Prison, 68 Prison J. 39, 48-49 (1989) [hereinafter Eigenberg, Male Rape] ("Slightly over one-fourth (27.1 per-cent) of the officers reported that they would have difficulty believing homosexual rape victims.").
. See, e.g., Struckman-Johnson et al., Address at the Midwestern Psychological Association Annual Meeting (May,1995) (noting that "incarcerated inmates who are sexually assaulted may be viewed as somewhat deserving or responsible fortheir fate"); Helen M. Eigenberg, Prison Staff and Male Rape, in Prison Sex: Practice and Policy 49, 58-59 (ChristopherHensley ed., 2002); Eigenberg, Male Rape, supra note 71, at 48-49 ("Most respondents . believe that inmates who have con-sented to participate in prior sexual acts get what they deserve if they are subsequently raped by other inmates .").
. See generally Libby O. Ruch et al., Life Change and Rape Impact, 21 J. Health & Soc. Behav. 248 (1980) (studyingthe life-changing effects on rape victims).
. Cotton & Groth, Inmate Rape, supra note 24, at 51.
. Julie A. Allison & Lawrence S. Wrightsman, Rape: The Misunderstood Crime 148 (1993) ("[T]he victim is forced tobe a different person for the rest of a lifetime.").
. Dean G. Kilpatrick et al., Criminal Victimization: Lifetime Prevalence, Reporting to Police and Psychological Im-pact, 33 Crime & Delinq. 479, 487 (1987).
. See Allison & Wrightsman, supra note 75, at 152-55; Lockwood, supra note 23, at 93-96.
. See Allison & Wrightsman, supra note 75, at 152-55; Lockwood, supra note 23, at 93-96.
. See Cotton & Groth, Sexual Assault, supra note 23, at 129-30 (describing the consequences of fighting back, sub-mission, and other types of coping strategies); see generally Hans Toch, Mosaic of Despair: Human Breakdowns in Prisons379-397 (rev. ed., 1992) (discussing different types of inmate coping strategies).
. See Dumond, Treatment of Victims, supra note 23, at 69, 81-83 (discussing PTSD, rape trauma syndrome, and sui-cidal feelings); Lockwood, supra note 23, at 60-70 (detailing specific accounts of anxiety, suicidal feelings, and self-mutilation); Terry A. Kupers, Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It147-51(1999) (describing the symptoms of PTSD in rape victims).
. See Stuart Turner, Surviving Sexual Assault and Sexual Torture, in Male Victims of Sexual Assault 75, 79-81(Gillian C. Mezey & Hiller B. Zobel eds., 1992) (discussing the long-term effects of sexual abuse and torture); see generallyJudith Lewis Herman, Complex PTSD: A Syndrome in Survivors of Prolonged and Repeated Trauma, 5 J. Traumatic Stress377 (1992) (describing the effects of previous long-term sexual trauma).
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. See High AIDS rates, other infectious diseases reported in U.S. prisons, AIDS Weekly Plus, Sept. 13, 1999 ("Prisoninmates are five to 10 times more likely than non-inmates to have HIV or AIDS ."); Kupers, supra note 80, at 152 ("The in-cidence of AIDS in prison in 1994 was 518 cases per 100,000, compared to a comparable annual incidence in the total popu-lation of 31 cases per 100,000."); R.W. Reindollar, Hepatitis C and the Correctional Population, 107 Am. J. Med. 100S(1999) ("Epidemiologic data estimate that 30% to 40% of the 1.8 million inmates in the United States are infected with thehepatitis C virus ."); C.R. MacIntyre et al., Unrecognized Transmission of Tuberculosis in Prisons, 15 Eur. J. Epidemiology705 (1999).
. See Lockwood, supra note 23, at 97-101 (describing inmates who felt confused about their sexuality); Turner, supranote 81, at 81-83 (discussing feelings of shame, guilt and humiliation).
. Wooden & Parker, supra note 23, at 116 ("Research shows that [victims] . report engaging in compulsive hetero-sexual activity and/or excessive drinking.").
. See Lockwood, supra note 23, at 100 ("[T]he experience of being a victim trains men to raise the level of violencethey have been accustomed to employing."); Wooden & Parker, supra note 23, at 116 ("[I]t is not uncommon for a kid whohas been turned out as a punk in one prison to, in turn, become a jocker once transferred to another prison.").
. Lockwood, supra note 23, at 68 ("Targets, however, are more than twice as likely than aggressors [sic] and morethan 17 times as likely as nontargets to have made attempts on their own lives .").
. Cristopher J. Mumola, Bureau of Justice Statistics, Dep't of Justice, Suicide and Homicide in State Prisons and LocalJails 2 (2005), (reporting that, in 2002, suicide was the second highest causeof death in local jails and the third highest cause in state prisons).
. D.G. Kilpatrick et al., Sexual Assault, in National Victim Assistance Academy Textbook ch. 10 (A. Seymour et al.
eds., 2002), available at
. See Mumola, supra note 88, at 2 ("Suicide was the leading cause of death among jail inmates in 1983 .").
. See id. (reporting that, in 2002, the suicide rate in local jails was 47 per 100,000 inmates, while the suicide rate instate prisons was 14 per 100,000).
. Id. at 5. The suicide rate was over five times higher (177 per 100,000 inmates) in jails holding fewer than fifty in-mates. Id. Although most U.S. jails are small, their populations account for fourteen percent of all jail suicides. Id.
. See The Prison Rape Reduction Act of 2002: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 8-9(2002), available at http:// (testimony of Linda Bruntmyer).
. See, e.g., Sexual Coercion Reported, supra note 3, at 71-72 (reporting that, on average, targets had experienced nineepisodes of pressured or forced sex, and more than one fourth of the male targets were forced to have intercourse with two or 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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. See generally Herman, supra note 81.
. See Lockwood, supra note 23, at 98 ("Other inmates (and staff) may . assume the victim of a sexual assault 'gives itup' willingly.").
See A.L. Baro, Spheres of Consent: An Analysis of the Sexual Abuse and Sexual Exploitation of Women Incarcer-ated in the State of Hawaii, 8 Women and Crim. Just. 61, 69-70 (1997) (discussing the vulnerability of female prisoners tosexual misconduct by prison staff); Human Rights Watch, supra note 5 (describing the terror experienced by some women inU.S. prisons).
See Wooden & Parker, supra note 23, at 107-08 (stating that once an inmate complains to authorities he is unable tolive among the general prison population for fear of reprisals); Moss et al., supra note 38, at 823 ("Accurate incidence reportsare extremely difficult to obtain due to the victims' reluctance to inform on other inmates ."); Struckman-Johnson, SexualCoercion Rates, supra note 9, at 380 ("[S]exual assault is likely to be underreported by male inmates because of fears of re-prisals, unwillingness to be a 'snitch,' and fear of being labeled a homosexual or weak ."); Struckman-Johnson, Three Mid-western Prisons, supra note 23, at 226 ("[T]argeted women anticipated that no one would believe them.").
See Kupers, supra note 80, at 137-38 ("The prisoner is confronted with complicated questions involving his safetyand survival at precisely the moment when, just after experiencing a massive trauma, he is totally incapable of processing theevent and rationally planning his next move.").
Cotton & Groth, Sexual Assault, supra note 23, at 129.
See Cotton & Groth, Sexual Assault, supra note 23, at 129 ("He will not be able to attend school, job training, ormental health programs."); see generally Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J.
Psychiatry 1450 (discussing potential negative effects on isolated inmates); Sheilagh Hodgins & Gilles Côté, The MentalHealth of Penitentiary Inmates in Isolation, 33 Can. J. Criminology 175, 178 (1991) (finding that some inmates who did nothave mental problems when they entered prison developed such disorders while incarcerated).
See Cotton & Groth, Sexual Assault, supra note 23, at 129 ("This may increase the risk of more serious physical in-jury being done him by his attacker(s) and/or he risks disciplinary action (loss of good time, punitive segregation, etc.) .").
See Cotton & Groth, Sexual Assault, supra note 23, at 129-30 ("He may be forced to 'hook up' (provide sexual ser-vices) to one inmate (his 'jock' or 'dad') in exchange for protection from sexual victimization by other prisoners."); see alsoKupers, supra note 80, at 140 ("Typically, a tougher prisoner forces a new arrival to become his 'woman,' and announces tothe other prisoners that this new inmate is henceforth known as a punk and shall be available as a sexual object.").
See Cotton & Groth, Sexual Assault, supra note 23, at 129-30 ("He may have to continually exchange sex witheveryone and anyone for survival.").
At Risk: Sexual Abuse and Vulnerable Groups Behind Bars: Hearing Before the National Prison Rape EliminationComm. (2005), available at http:// (testimony of Timothy J. Parsell) (providinga personal account as a survivor of prison sexual assaults).
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See Stop Prisoner Rape, Staff Biographies (2006), http://
Caroline Wolf Harlow, Bureau of Justice Statistics, Dep't of Justice, Prior Abuse Reported by Inmates and Proba-tioners (1999), http:// ("Just under half of the women in correctional populationsand a tenth of the men indicated past abuse.").
See Human Rights Watch, supra note 5, at § II (discussing the findings of Christine Kampfner, who reported that85% of incarcerated women who kill their batterer had been sexually abused at some point prior to their incarceration).
See generally Robbin S. Ogle, Battered Women and Self-Defense, in Encyclopedia of Women and Crime (NicoleH. Rafter ed., 2000); Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (1989);Lenore E. Walker, The Battered Woman (1979); Lenore E. Walker, The Battered Woman Syndrome (1984).
See A. Nicholas Groth & Ann W. Burgess, Male Rape: Offenders and Victims, 137 Am. J. Psychiatry 806, 808(1980) [hereinafter Groth, Male Rape] ("The male victims felt pressured into not reporting the rape for several reasons: 1) so-cietal beliefs that a man is expected to be able to defend himself . 2) the victim's sexuality may become suspect . and 3)telling is distressing .").
See Arthur Kaufman et al., Male Rape Victims: Noninstitutionalized Assault, 137 Am. J. Psychiatry 221, 223(1980) (finding that 79% of male victims showed a "controlled" emotional reaction).
See Erik H. Erikson, Childhood and Society 265-66 (1950) (discussing physiological maturation during adoles-cence and the subsequent effects on identity); Erik H. Erikson, Life History and the Historical Movement 19 (1975)(commenting on adolescence, youth, and the accompanying identity crisis); Alan S. Waterman, Identity in the Context of Ad-olescent Psychology, in Identity in Adolescence: Processes and Contents 5-6 (A.S. Waterman ed., 1985) (discussing the im-portance of an adolescent's "inner sense of identity"); see generally Erik H. Erikson, Identity: Youth and Crisis 128-35 (1968)(describing the different stages of adolescent experience and the search for identity).
See Erikson, Childhood and Society, supra note 117, at 265-66.
See Lockwood, supra note 23, at 98 ("Being labeled a homosexual is a dismaying condition for most young work-ing-class men.").
Groth & Burgess, Male Rape, supra note 116, at 809.
See Struckman-Johnson, Sexual Coercion Rates, supra note 9, at 386 ("[A]bout 20% of the inmates from the largerfacilities indicated that a male or female staff member(s) participated in their worst-case sexual coercion incident."); HumanRights Watch, supra note 5 ("[M]ale officers have used mandatory pat-frisks or room searches to grope women's breasts, but-tocks, and vaginal areas .").
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Dep't of Justice Office of the Inspector General, Deterring Staff Sexual Abuse of Federal Inmates 4 (2005), ("Even if a sexual act would have been considered consensual if it occurred out-side of a prison, by statute it is criminal sexual abuse when it occurs inside a prison."); The Cost of Victimization: Why OurNation Must Confront Prison Rape: Hearing Before the National Prison Rape Elimination Comm. (June 14, 2005), availableat http:// (testimony of Glenn Fine, Inspector General, Dep't ofJustice) ("It is important to note that consent is never a legal defense for prison staff to engage in sexual acts with inmates.").
Human Rights Watch, supra note 5 (stating that male correctional officers coerce female inmates by actual orthreatened physical force, bribery and withholding of goods or services).
Susan W. McCampbell & Elizabeth P. Layman, Training Curriculum for Investigating Allegations of Staff SexualMisconduct with Inmates (2000),
See Goering, supra note 7 ("[U]ntil [1999], sexual abuse of prisoners by correctional officials was not even a crim-inal offense in 14 states.").
See Brenda V. Smith, Fifty-state Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (2005), availableat http:// (reporting that only Vermont lacks criminal laws prohibiting sexual abuse of prison-ers).
At Risk: Sexual Abuse and Vulnerable Groups Behind Bars: Hearing Before the National Prison Rape EliminationComm. (2005) (statement of Hope Hernandez), available at
See generally Human Rights Watch, Ill Equipped: U.S. Prisons and Offenders with Mental Illness (2003), availableat http://
See Paula M. Ditton, Bureau of Justice Statistics, Dep't of Justice, Mental Health and Treatment of Inmates andProbationers 1 (2005) (reporting that 283,800 mentally ill inmates were in-carcerated in U.S. prisons and jails in 1998); Cesar Chelala, More Mentally Ill People Reported in U.S. Prisons, 319(7204)British Med. J. 210 (1999), available at m0999/is_7204_319/ai_55449754 (statingthat while 283,800 prison inmates had some form of mental illness, only 72,000 people were housed in state psychiatric hos-pitals).
Human Rights Watch, supra note 133, at 16.
Martin Drapkin, Management and Supervision of Jail Inmates with Mental Disorders 1 (2003).
See Dep't of Justice, National Institute of Corrections, Survey of Mental Health Services in Large Jails and Jail Sys-tems (1995) http:// (identifying which correctional systems use jail staff to providemental health services and which systems use contracted services).
See generally Council of State Governments, Criminal Justice/Mental Health Consensus Project, ht-tp:// (last visited Apr. 15, 2006) (explaining how to better support inmates with mental illnesses once 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
(Cite as: 32 J. Legis. 142)
See generally B. Jaye Anno, Dep't of Justice, National Institute of Corrections, Correctional Health Care:Guidelines for the Management of an Adequate Delivery System 14 (2001) ("[S]ome haveclaimed that suicide, violence, or stress in prisons increases in overcrowded conditions ."); Paige M. Harrison & Jennifer C.
Karberg, Bureau of Justice Statistics, Dep't of Justice, Bulletin: Prison and Jail Inmates at Midyear 2002 (2003), ht-tp:// (discussing the problems associated with prison overcrowding); Hearing onThe Prison Rape Reduction Act of 2002 Before the S. Comm. on the Judiciary, 107th Cong. 73-75 (2002), available at [hereinafter Testimony of Edward Harrison] (testimony of Ed-ward Harrison, President, National Commission on Correctional Health Care describing the problems with health care inovercrowded prisons).
Michael Tonry & Joan Petersilia, Dep't of Justice, Prisons Research at the Beginning of the 21st Century 6 (2000),http://
Roy Walmsley, U.K. Home Office Research, Development and Statistics Directorate, Findings 234: World PrisonPopulation List 1 (5th ed. 2003), available at (finding that the U.S. had thehighest prison population rate (701 per 100,000), and the highest prison population (2,030,000) in 2003).
Testimony of Edward Harrison, supra note 139, at 73.
Allen J. Beck, Bureau of Justice Statistics, Dep't of Justice, Prison and Jail Inmates at Midyear 2001, at 7 (2002).
See generally David Masci, Prison Building Boom: Should More Money Be Spent on Rehabilitation?, 9 Cong. Q.
802, 805 (1999) (stating that from 1990 to 1995, state governments spent $15 billion on prison construction, while the federalgovernment built forty-five new prisons).
Tonry & Petersilia, supra note 140, at 6 ("The sentencing policy changes of the past quarter century and especiallythe past few years have produced larger fractions of prisoners serving very long sentences .").
Id.; see generally B. Jaye Anno et al., Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill,and Terminally Ill Inmates (2004), available at; Centers for Disease Control and Pre-vention, Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 Morbidity & MortalityWkly. Rev. 1 (2003) [hereinafter CDC, Prevention and Control].
Joseph F. Fishman, Crucibles of Crime 24 (1923).
Fyodor Dostoyevsky, The House of the Dead 76 (Constance Garnett trans., 1923).
Mary B. Harris, I Knew Them in Prison 385-86 (1942).
Human Rights Watch, supra note 8, at 99 ("When questioned on the topic, state prison officials report that rape isan infinitely rare occurrence.").
2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
(Cite as: 32 J. Legis. 142)
Id. at 109 (identifying Arkansas, Illinois, Massachusetts, North Carolina, New Hampshire, and Virginia).
Megan Schaffer & Janine M. Zweig, Urban Institute, Presentation at National Institute of Justice Research & Eval-uation Conference: Addressing Sexual Violence in Prisons (July 20, 2005).
Moss & Wall, supra note 6, at 78.
Scott Cannon, Progress Lags Despite New Legislation to Stop Prison Rape, Kan. City Star, Mar. 22, 2004, avail-able at http://
Helen Eigenberg, Statement at Journal of Legislation Symposium: Prison Reform and the Rape Elimination Act(Mar. 31, 2005).
Beck & Hughes, supra note 20, at 3.
2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.



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