By Olivia C. Jerjian, ACLR Featured Online Contributor

This past February, The Atlantic published Rape in the American Prison,1 a powerful piece highlighting the failures of the American prison system to protect incarcerated youths. The publication included harrowing first-hand accounts of minors placed in adult detention facilities who were sexually assaulted by older inmates while prison guards turned a blind eye. In its 2014 study, Human Rights Watch estimated that approximately 95,000 youths under the age of eighteen were incarcerated in adult prisons and jails at risk of suffering sexual violence.The Atlantic piece also brought to light a recent state and federal class action lawsuit on behalf of youth who had been sexually assaulted in adult prison facilities in Michigan, alleging that the prison workers failed to protect them.3 Even though there is existing legislation enacted to eradicate prison rape, the Prison Rape Elimination Act (“PREA”), it seems to be ineffective in achieving its goal thus far. 

The PREA, enacted by Congress in 2003, and Justice Souter’s holding in Farmer v. Brennan4—the most important legislative and judicial texts that address prison rape—have failed to decrease instances of sexual abuse in prisons, especially regarding juveniles in adult facilities. Amending the PREA and changing the legal standard in Farmer would remedy the serious shortcomings and advance the ultimate goal of protecting prisoners

I. The Shortcomings of the Prison Rape Elimination Act and of Farmer v. Brennan

It is easy to forget about those who are invisible and absent in society. Though rape in correctional facilities has been a rampant problem for a long time, the issue only came to national attention a little over ten years ago, when Human Rights Watch released its 2001 report “No Escape: Male Rape in U.S. Prisons,”5 detailing the institutional blindness of prison workers towards the abuse occurring inside prison cells. Even more outrageous was the fact that some of the victims of sexual abuse in adult correctional facilities were minors serving “adult time.”

In unanimous agreement—a rare occasion—Congress swiftly responded by enacting the PREA in an effort to eliminate rape in prison facilities across the country.6 The PREA enumerates the following nine specific goals to eliminate sexual abuse in prisons: (1) establishing a “zero-tolerance standard” for prison rape, (2) making the issue a top priority within the prison system, (3) developing and implementing “national standards for the detection, prevention, reduction, and punishment of prison rape,” (4) increasing the availability of data and information on prison rape to improve the management and administration of correctional facilities, (5) standardizing the definition of prison rape for data collection purposes, (6) increasing the “accountability of prison officials” who fail to prevent prison rape, (7) protecting prisoners’ Eighth Amendment right against cruel and unusual punishment, (8) increasing the efficiency and effectiveness of federal expenditures for health care, crime prevention, prosecution, etc., and (9) reducing the costs that prison rape imposes on interstate commerce.

However, twelve years after its enactment, the PREA has not been successful in eliminating sexual abuse instances in detention facilities. Almost 8,800 allegations of sexual victimization were reported to administrators of adult correction facilities in 2011.7 This failure is due to the fact that the PREA focuses solely on data collection and on condemning prison rape, without adequately address the causes of prison rape and prevention strategies, especially for juveniles incarcerated in adult detention facilities.

Additionally, three flaws essentially render the PREA a toothless piece of legislation. First, the government cannot impose additional costs on states. The PREA states that “[t]he Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.”8 Second, the U.S. Department of Justice's (“DOJ”) proposed standards are only binding for federal prisons.9 State prisons only stand to lose five percent of their funding if they fail to implement the DOJ’s standards,10 which would ironically further hurt the prisoners. Indeed, if prisons had to cut back on security measures, such as hiring an appropriate number of prison guards and investing in cameras, inmates would be placed at higher risk for rape. Third, the proposed definition of sexual abuse in the PREA does not include consensual activity between inmates.11 This fails to take into account the difficulty in determining whether sexual activity is consensual or not and the power dynamics within prison.12 Many juvenile inmates simply give up resisting because they are intimidated, physically weaker than their attacker, or have been previously sexually assaulted.

Similarly ineffective, Farmer v. Brennan13 set a high burden of proof regarding prison guards’ inaction towards sexual assault. In Farmer, a transsexual inmate was raped within two weeks of being placed in a prison in Terre Haute, Indiana, and brought a Bivens action against the prison.14 The inmate argued that prison officials were “deliberately indifferent” when they placed her with the violent general population despite her feminine appearance,15 violating her Eighth Amendment’s protection against cruel and unusual punishment. In response, the federal prison officers claimed they did not have any actual knowledge of the risk the inmate incurred and were therefore not “deliberately indifferent.”

In his majority opinion, Justice Souter held that prison officials had a duty to protect the inmates from suffering violence at the hand of other prisoners.16 However, they could be held liable for violating Eighth Amendment rights only if they actually knew that inmates faced substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it.17 Therefore, Justice Souter based his definition of “deliberate indifference” on a subjective standard—that of the prison guards—similar to the definition of recklessness in criminal law, even though the case at hand was a civil claim.  

This definition of “deliberate indifference” places a heavy burden on inmates suing federal prison guards, as it is highly unlikely, even impossible, that prisoners could prove that the monitoring prison guards had actual knowledge of their dangerous situation. Indeed, in order to prove “deliberate indifference” on the part of a prison guard, the petitioner needs to produce evidence from which it could be inferred that the prison guards “knowingly and unreasonably [disregarded] an objectively intolerable risk of harm, and that they [would] continue to do so.”18 It is not hard to imagine why most prisoners cannot produce such evidence.

II. Proposals to Amend the PREA and to Change the Definition of “Deliberate Indifference” According to Farmer in Order to Better Protect Incarcerated Juveniles

The following amendments could make the PREA more effective at decreasing instances of prison rape. First, in order to protect incarcerated juveniles, states should prohibit the placement of juvenile offenders in adult facilities, as states such as Virginia, Colorado, Maine, and Pennsylvania have done.19 States could achieve this by setting the age at which someone is automatically incarcerated in an adult prison facility to eighteen.20 When a minor is tried as an adult, the minor typically receives the same sentence that an adult would, is incarcerated in the same prisons and, sometimes, in the same cell as older inmates.21 Some states, such as Michigan, do not even have a minimum age at which a minor can be prosecuted as an adult,22 signifying that minors tried as adults in those states could be placed in adult facilities as young as fourteen or fifteen years old.23 Because teenage inmates are considered prey in adult prison, those youths are at greater risk of sexual victimization than their counterparts in juvenile detention.24 Therefore, separating juveniles from adults would likely help protect youths from prison rape.

Second, the PREA should also be amended to include prevention strategies rather than simple data collection. Such amendments should include training for prison guards in noticing, dealing with, and investigating inmate-on-inmate sexual assault. Another important amendment would be enforcing sanctions against prisons that ignore instances of prison rape. Expanding the definition of “sexual abuse” to include behavior that looks like consensual sexual activity would also avoid punishing juveniles who exchange sex for protection.25 The prisons should also be mandated to keep track of sexual offenders and not place them with young prisoners.

Third, the legal definition of “deliberate indifference” should be changed to the objective standard definition used in civil cases.26 In this case, “deliberate indifference” would consist of asking whether the defendant knew or should have reasonably known about the risk.27 This would help avoid instances of willful ignorance on the prison guards’ part.

In conclusion, there is much more that legislators—and lawyers and judges, to a certain extent—can do to eradicate prison rape, especially among the juvenile population in adult prisons. The PREA can be amended in a number of different ways to include prevention strategies, now that Congress has adequate data on the matter. The Michigan suit mentioned in The Atlantic should encourage other attorneys to advocate on behalf of these rape victims, who are, for the most part, invisible to society.