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Breaking Chains of Injustice: An Analysis of the Legal Hurdles for Prison Rape Claims

Roohie Sheikh

Edited by Hannah Greer, Jia Lin, and Vendanth Ramabhadran


Introduction

Prison rape has long been a prevalent issue in criminal justice. Discourse surrounding it has taken center stage in media from television shows like Orange is the New Black to reports like the Human Rights Watch’s recent publication, No Escape. Despite widespread bipartisan agreement that prison rape elimination must be a priority, legislative action has proven highly ineffective. The most recent piece of legislation, the Prison Rape Elimination Act (“PREA”), set lofty goals alongside a feeble enforcement system. PREA’s disappointing results can be attributed to negotiations made during the act’s passage, which have prompted criticism of liberal reforms in the prison system. The act mandates detailed reporting of various violations of prisoners’ rights which only supports its inefficacy. The Bureau of Justice Statistics latest report on sexual victimization in correctional facilities has shown a 14% increase from 2015 to 2018, in line with the trend prior to the act’s passage.[1] Until the courts consistently use PREA as a method of analysis or private cause of action, the act will remain an entirely symbolic political buzzword. Judicial involvement in PREA’s enforcement would combat the inherent power dynamic in prison rape cases. 


History

The Prison Rape Elimination Act’s history provides key insights into its failures. While prison rapes against women had been recognized as a major issue in the justice system, prisoner rape of menhad received significantly less attention until the 2001 publication of a report by Human Rights Watch on the prevalence of sexual violence against male prisoners in the U.S. The movement against sexual violence in male prisons grew rapidly in the following two years championed by Linda Bruntmyer, whose son, Rodney Hulin Jr. took his own life following his prison rape in a high profile 1995 case.[2] Fueled by public outcry and the intense lobbying of conservative groups appalled by homosexual rape, Congress unanimously passed PREA in September 2003.[3] However, the process of passing this act entailed a series of negotiations which ultimately rendered the legislation useless. In order to pass the legislation, its proponents needed to  neutralize concerns from the corrections community and powerful unions, as seen in the Custodial Sexual Abuse Act of 1998. This caused major advocacy groups backing the act, like Human Rights Watch and Stop Prison Rape, to make major compromises in its enforcement mechanisms. Most importantly, to garner support from conservatives, Congress devised an incentive system using marginal percentages of funding for corrections departments, specifying that PREA violations could not constitute a cause of action.[4] Congress did not ultimately specify how courts should interact with the standards provided, leaving its enforcement entirely in the hands of the executive branch. Michael J. Horowitz, senior fellow at the Hudson Institute and a major proponent of the bill, acknowledged the inoperative nature of the act. In introducing the bill to the Committee on the Judiciary, Horowitz says, “The first and most critical fact about the bill is its modest, moderate and federalism-friendly nature. The coalition [...] has steadfastly resisted calls to deal with massive and epidemic prison rape through major federal spending initiatives, major federal spending mandates, significant amendments of existing laws or expansions of the right to bring lawsuits in the courts.” [5] PREA’s inefficacy was finalized in the Maryland District Court’s ruling in Moore v. Jordan which interpreted the legislative intent of the act to preclude its usage in meaningful litigation.[6] 


PREA in Constitutional Claims

All courts seem to share a common understanding that PREA is not a cause of action. This leaves survivors of sexual violence with few legal recourses. Typically, this means turning to 8th amendment claims of cruel or unusual punishment. As expected, these claims have much stricter standards than the standards established by PREA. While some courts deem PREA violations as relevant to Eighth Amendment claims, the majority presume irrelevance. Case law is very inconsistent in assigning PREA’s role in other claims. In Woodstock v. Golder, the plaintiff experienced a situation similar to Rodney Hulin Jr. Following a suicide attempt because of his prison rape, Woodstock filed suit alleging correctional officers did not investigate his claims or provide any resources. The District Court of Colorado ruled against Woodstock holding that PREA does not establish a cause of action. The court failed to consider how these PREA violations supported Woodstock’s other claims despite its clear relevance in proving deliberate indifference, the standard used for prison officials for both assault and neglect/medical attention claims.[7] The District Court of Minnesota’s 2009 ruling in Jenkins v. County of Hennepin blatantly ignored PREA’s significance in proving deliberate indifference. In this case, Jenkins alleged that the prison officials’ inaction on his rape by other prisoners constituted deliberate indifference. He argued that the defendant’s knowledge of PREA and the proper actions following a sexual assault proves deliberateness.[8] Jenkins’ claims echoed the language Congress used in writing the act.[9] The act refers to the Supreme Court’s decision in Farmer v. Brennan saying that “the Supreme Court ruled that deliberate indifference to the substantial risk of sexual assault violates prisoners’ rights under the Cruel and Unusual Punishments Clause of the Eighth Amendment.”[10] Judge Richard Kyle ruled against Jenkins. His claim rested on the distinction between deliberate indifference towards Jenkins’ rights and deliberate indifference towards prisoners’ constitutional claims writ large. He cites Szabla v. City of Brooklyn Park to justify this claim.[14] In doing so, Kyle raises the standard for constitutional claims brought by prisoners to prove what may well be impossible– the indifference of the Department of Corrections. 

This interpretation of PREA is, however, highly inconsistent. When PREA is used as a defense, it has been presumed to be relevant. In a First Amendment claim, Prison Legal News was prohibitedfrom sending books on prison rape to inmates in Texas prisons. The defendant, Texas Department of Criminal Justice (TDCJ), argued that this censorship was permitted because the TDCJ had its own methods of informing prisoners of PREA. The court held that because prisoners were not completely deprived of material and information on prison rape, there was no instance of censorship.[11]  In another case, Hammons v. Jones, a Muslim prisoner, filed suit against Jones, the Director of the Oklahoma Department of Corrections for refusing to give him his prayer oils. The defendant argued that the prayer oils had a scent which may cover the scent of drugs, preventing detection and that they have an obligation to reduce prison rape.[12] The holding made no connection between the prayer oils and prison rape. Nonetheless, the court accepted it as a relevant argument. By excluding any relevance PREA has to other constitutional claims brought by prisoners while simultaneously accepting it as a valid defense, no matter how poorly connected, the courts have effectively signaled the superficial nature of the act.

These rulings naturally lead us to the question: What gives the judiciary the power to raise standards for constitutional claims beyond what Congress intended? Further, would the explicit creation of a cause of action force the courts to enforce popular legislation?


The PLRA Challenge

As we have established, litigation has shown that PREA’s inefficacy can largely be attributed to the courts. However, previous legislation has played a major role in creating the first obstacles to prisoners’ litigation. Among prison legislation passed, the Prison Litigation Reform Act (“PLRA”) is arguably most important in creating barriers to justice for prisoners. 

The PLRA, enacted in 1996, was a direct response to the innumerable lawsuits brought by prisoners to federal courts. Its aims were twofold -- to curtail “meritless” inmate litigation and restrict remedies for prison condition lawsuits.[13] To see why the PLRA poses such a challenge to PREA’s effectiveness, we can look at the restrictions on lawsuits. The PLRA mandates that inmates exhaust all administrative options before turning to litigation. This rule seems deceptively simple yet is very complicated when dealing with power dynamics within prisons. Prisoners must comply with short grievance timelines, some within two weeks of the incident. Another common issue rises from the perpetrators of the act. A 2012 study by the Bureau of Justice Statistics showed that approximately half of all perpetrators were prison employees, and in Texas approximately 60% were employees. This brings about a strong fear of retaliation in the form of protective custody, which was originally intended to protect prisoners from harm. Additionally, transgender inmates are often subject to penetrative exams as a form of retaliation. Another 2012 study by the Department of Justice revealed that reports of sexual assaults in prisons resulted in retaliation in 46.3% of cases. [15]

In addition to the protections given by courts to prison officials, such as qualified immunity, a lack of oversight prevents any sort of accountability. Often, prison officials responsible for taking PREA claims are found to be guilty of misconduct themselves. Recently, a PREA compliance officer at FCI Dublin was convicted of abusing female prisoners, despite his responsibilities of training supervisors on the PREA requirements and coordinating the PREA audit. [16]


The PRLA’s limitations on recovered damages are arguably the most formidable obstacles for PREA challenges. This act effectively limits remedies to redress only significant physical harm. It restricts remedies for emotional or mental harm, and lost wages are hardly applicable to prison populations, leaving only nominal damages to be recovered. Moreover, attorney’s fees are capped at 150% of damages awarded to the plaintiff, making prison litigation a losing battle. [17] The vast majority of prison litigation is filed pro-se with inevitable failure. This is often the best case scenario. For indigent plaintiffs, the PLRA’s “three-strikes provision” keeps them from filing after three failed lawsuits. With the extraordinarily high rate of failure in these pro-se lawsuits, the three-strikes provision blocks indigent plaintiffs’ challenges before they even reach the court. [18]

 

[1]Sexual Victimization Reported by Adult Correctional Authorities, 2016-2018, Bureau of Justice Statistics, https://bjs.ojp.gov/library/publications/sexual-victimization-reported-adult-correctional-authorities-2016-2018.

[3]Prison Rape Discrimination Act, 2023, National PREA Resource Center, https://www.prearesourcecenter.org/about/prison-rape-elimination-act.

[6]Moore v. Jordan, Civil Action No. TDC-16-1741 | Casetext Search + Citator, https://casetext.com/case/moore-v-jordan-3.

[7]Woodstock v. Golder, Civil Action No. 10-cv-00348-ZLW-KLM | Casetext Search + Citator, https://casetext.com/case/woodstock-v-golder-6.

[8]Jenkins v. County of Hennepin, Minnesota, Civ. No. 06-3625 (RHK/AJB) | Casetext Search + Citator, https://casetext.com/case/jenkins-v-county-of-hennepin-6.

[9]Jenkins v. County of Hennepin, Minnesota, Civ. No. 06-3625 (RHK/AJB) | Casetext Search + Citator, https://casetext.com/case/jenkins-v-county-of-hennepin-6.

[10]Jenkins v. County of Hennepin, Minnesota, Civ. No. 06-3625 (RHK/AJB) | Casetext Search + Citator, https://casetext.com/case/jenkins-v-county-of-hennepin-6.

[11]Hammons v. Jones, Case No. 00-CV-0143-CVE-SAJ | Casetext Search + Citator, https://casetext.com/case/hammons-v-jones.

[13]Szabla v. City of Brooklyn Park, 486 F.3d 385 | Casetext Search + Citator, https://casetext.com/case/szabla-v-city-of-brooklyn-park#p390.

[14]Christina Ewig, The Prison Rape Elimination Act and the Limits of Liberal Reform, Gender Policy Report (Feb. 17, 2017), https://genderpolicyreport.umn.edu/the-prison-rape-elimination-act-and-the-limits-of-liberal-reform/.

[15]Prison Policy Initiative, Slamming the Courthouse Door: 25 Years of Evidence for Repealing the Prison Litigation Reform Act, https://www.prisonpolicy.org/reports/PLRA_25.html.

[16]Three Strikes and You’re Out of Constitutional Rights? The Prison Litigation Reform Act’s “Three Strikes” Provision and Its Effect on Indigents | Office of Justice Programs, https://www.ojp.gov/ncjrs/virtual-library/abstracts/three-strikes-and-youre-out-constitutional-rights-prison-litigation.



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