B. Prosecuti<strong>on</strong> of Staff RareIn additi<strong>on</strong> to the dearth of adequate services available to inmates in the aftermath of anassault, a cloud of impunity hangs over U.S. detenti<strong>on</strong> facilities for their failure to prosecutethese cases. Even in the cases of complaints of sexual abuse filed by inmates <strong>and</strong> substantiatedby staff, few correcti<strong>on</strong>s officials are prosecuted. According to the U.S. Department of Justice(DOJ), in 2004, there were 508 substantiated incidents of staff sexual misc<strong>on</strong>duct in federal<strong>and</strong> state pris<strong>on</strong>s, including juvenile <strong>and</strong> Immigrati<strong>on</strong>s <strong>and</strong> Custom Enforcement (ICE)facilities, <strong>and</strong> jails. 51 Staff were discharged in 296 of these cases, while <strong>on</strong>ly 193 were referredfor prosecuti<strong>on</strong>. 52 During the same period, there were 140 substantiated incidents of sexualharassment of inmates by correcti<strong>on</strong>s staff. Staff were discharged in just 47 of these cases, <strong>and</strong>referred for prosecuti<strong>on</strong> in four. 53In a review of inmates held in custody by the federal Bureau of Pris<strong>on</strong>s (BOP), the U.S.Office of the Inspector General (OIG) found that a majority of the staff who committedsexual misc<strong>on</strong>duct were not prosecuted for their crimes. 54 Instead, the cases were h<strong>and</strong>ledadministratively, <strong>and</strong> the implicated correcti<strong>on</strong>s pers<strong>on</strong>nel either resigned from their positi<strong>on</strong>s,or were disciplined or terminated. 55 Between 2000 <strong>and</strong> 2004, the OIG submitted 163 sexualabuse cases for prosecuti<strong>on</strong>. Forty-five percent, or 73 of these cases, were actually accepted forprosecuti<strong>on</strong> <strong>and</strong> 65 resulted in c<strong>on</strong>victi<strong>on</strong>s. Eighty-eight cases, or 54 percent, were declinedfor prosecuti<strong>on</strong>. 56C. Inadequate Remedies at Law for VictimsIt is difficult for a pris<strong>on</strong>er who has been victimized to seek legal redress in the civil system.Civil rights litigati<strong>on</strong>, especially <strong>on</strong> behalf of pris<strong>on</strong>ers, is often prohibitively expensive <strong>and</strong>usually takes years to c<strong>on</strong>clude. In additi<strong>on</strong>, the st<strong>and</strong>ard established under Farmer v. Brennanis so difficult to meet that few plaintiffs have been successful. Specifically, correcti<strong>on</strong>s officialscan <strong>on</strong>ly be held liable for sexual violence against pris<strong>on</strong>ers where they have shown “deliberateindifference” by “disregard[ing] an excessive risk to pris<strong>on</strong>er health or safety. The official mustboth be aware of facts from which the inference could be drawn that a substantial risk ofserious harm exists, <strong>and</strong> he must also draw that inference.” 57This is, in practical terms, an insurmountable st<strong>and</strong>ard for liability, requiring that the pris<strong>on</strong>erbe able to prove not that the official should have known that a pris<strong>on</strong>er was at risk for assault, butthat the official did in fact know of the risk. The st<strong>and</strong>ard also creates a perverse incentive forpris<strong>on</strong> officials to deliberately ignore what is happening in their facilities, <strong>and</strong> usually means thatthey will avoid liability for sexual violence by asserting that they were unaware of any risk.In additi<strong>on</strong> to the <strong>on</strong>erous Farmer st<strong>and</strong>ard, the Pris<strong>on</strong> Litigati<strong>on</strong> Reform Act (PLRA) of 1996places limits <strong>on</strong> inmates’ ability to seek civil redress in federal court. With the stated purposeof discouraging pris<strong>on</strong>ers from filing “frivolous” lawsuits, this statute dramatically limits the<str<strong>on</strong>g>STOP</str<strong>on</strong>g> <str<strong>on</strong>g>PRISONER</str<strong>on</strong>g> <str<strong>on</strong>g>RAPE</str<strong>on</strong>g>19
ability of individuals, NGOs, <strong>and</strong> even the U.S. Department of Justice to challenge abusivepris<strong>on</strong> c<strong>on</strong>diti<strong>on</strong>s through litigati<strong>on</strong>. Most importantly, the PLRA m<strong>and</strong>ates that pris<strong>on</strong>ersexhaust all administrative remedies before filing suit for damages. This requirement often meansthat pris<strong>on</strong>ers must report their abuse to the very correcti<strong>on</strong>s officer who assaulted them, orwho failed to put an end to abuse by another inmate, within a short timeframe following theassault. The PLRA also bars pris<strong>on</strong>ers from seeking damages for sexual harassment, invasi<strong>on</strong>sof privacy such as strip searches, <strong>and</strong> inappropriate sexual touching that falls short of sexualassault. Additi<strong>on</strong>ally, the PLRA precludes attorneys’ fees for lawyers representing pris<strong>on</strong>ers.Moreover, despite the CAT Committee’s recommendati<strong>on</strong> to the U.S. in 2000, the U.S. c<strong>on</strong>tinuesto refuse to permit Article 22 communicati<strong>on</strong>s to the Committee. Such communicati<strong>on</strong>s wouldallow individuals who are victims of sexual abuse in detenti<strong>on</strong> to c<strong>on</strong>tact the Committee <strong>on</strong>cethey have exhausted available avenues of relief within the U.S. legal system. The U.S. explainedthis decisi<strong>on</strong> by stating that “[its] legal system affords numerous opportunities for individualsto complain of abuse, <strong>and</strong> to seek remedies for such alleged violati<strong>on</strong>s,” <strong>and</strong> that it would thus“c<strong>on</strong>tinue to direct its resources to addressing <strong>and</strong> dealing with violati<strong>on</strong>s of the C<strong>on</strong>venti<strong>on</strong>pursuant to the operati<strong>on</strong> of its own domestic legal system.” 58 However, the U.S. c<strong>on</strong>tinuesto fail in its duty to protect inmates from abuse, provide adequate treatment for victims,prosecute correcti<strong>on</strong>s officials who are complicit in these abuses, <strong>and</strong> allow an adequate civilremedy at law for victims.20IN THE SHADOWS: <strong>Sexual</strong> Violence in U.S. Detenti<strong>on</strong> Facilities
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