Rape occurs in U.S. prisons because correctional officials, to a surprising extent, do little to stop it from occurring. While some inmates with whom Human Rights Watch is in contact have described relatively secure institutions--where inmates are closely monitored, where steps are taken to prevent inmate-on-inmate abuses, and where such abuses are punished if they occur--many others report a decidedly laissez faire approach to the problem. In too many institutions, prevention measures are meager and effective punishment of abuses is rare.
It might be assumed that victims of prison rape would find a degree of solace in securing accountability for the abuses committed against them. Unfortunately, our justice system offers scant relief to sexually abused prisoners. Few local prosecutors are concerned with prosecuting crimes committed against inmates, preferring to leave internal prison problems to the discretion of the prison authorities; similarly, prison officials themselves rarely push for the prosecution of prisoner-on-prisoner abuses. As a result, perpetrators of prison rape almost never face criminal charges.
Internal disciplinary mechanisms, the putative substitute for criminal prosecution, also tend to function poorly in those cases in which the victim reports the crime. In nearly every instance Human Rights Watch has encountered, the authorities have imposed light disciplinary sanctions against the perpetrator--perhaps thirty days in disciplinary segregation--if that. Often rapists are simply transferred to another facility, or are not moved at all. Their victims, in contrast, may end up spending the rest of their prison terms in protective custody units whose conditions are often similar to those in disciplinary segregation: twenty-three hours per day in a cell, restricted privileges, and no educational or vocational opportunities.
Disappointingly, the federal courts have not played a significant role in curtailing prisoner-on-prisoner sexual abuse. Of course, the paucity of lawyers willing to litigate such cases means that only a small minority of rape cases reach the courts. Filed by inmates acting as their own counsel, such cases rarely survive the early stages of litigation; the cases that do survive rarely result in a favorable judgment. While there have been a few generous damages awards in cases involving prisoner-on-prisoner rape, they are the very rare exceptions to the rule.
In sum, the failure to prevent and punish rape results implicates more than one government body. The primary responsibility in this area, however, is borne by prison authorities. Rape prevention requires careful classification methods, inmate and staff orientation and training, staff vigilance, serious investigation of all rape allegations, and prosecution of those allegations found to be justified. At bottom, it requires a willingness to take the issue seriously, to be attentive to the possibility of victimization, and to consider the victim's interests. Without these basic steps, the problem will not go away. Rape is not an inevitable consequence of prison life, but it certainly is a predictable one if little is done to prevent and punish it.
Regrettably [rape] is a problem of which we are happier not knowing the true dimensions. Overcrowding and the "anything goes" morality sure haven't helped.
--High-level state corrections official who spoke on condition of anonymity.(396)
The sharp disparities between correctional authorities' reports of the prevalence of rape and the findings of empirical studies, described in the previous chapter, signal a fundamental obstacle to prevention efforts: correctional authorities' failure to acknowledge that a problem exists. Nearly half of all state jurisdictions do not even collect statistics regarding the incidence of rape (a telling indicator of their lack of seriousness in addressing the issue); those that do collect such data report that it is an infinitely rare event. Yet, as previously stated, empirical surveys of inmates and correctional staff disclose much higher rates of rape and sexual assault. Since the causes of underreporting are well known to prisoners and prison administrators alike, a low frequency of reported cases is no reason for correctional authorities to turn a blind eye to the problem.
Unfortunately, Human Rights Watch's survey of the prevention practices of state and federal correctional departments revealed that few departments take specific affirmative steps to address the problem of prisoner-on-prisoner rape.(397) Nearly all of the departments who responded to our request for information had not instituted any type of sexual abuse prevention program and only a very few--such as Arkansas, Illinois, Massachusetts, North Carolina, New Hampshire, and Virginia--stated that correctional officers receive specialized training in recognizing, preventing, and responding to inmate-on-inmate sexual assault.(398) Similarly, not many departments had drafted specific protocols to guide staff response to incidents of assault.(399)
Nor, according to a recent survey, do many departments' internal disciplinary policies explicitly prohibit sexual harassment among male inmates.(400)
Until very recently, the same was true for the problem of custodial sexual abuse of women inmates.(401) Even now, much remains to be done to address the problem effectively, but important steps in that direction have been taken. The National Institute of Corrections (NIC), for example, provides specialized training to corrections staff on the issue, and a number of states have promulgated specific written policies to guide staff handling of cases of abuse.
High profile class action law suits helped spur correctional authorities to take the problem of custodial sexual abuse seriously. Normally, the threat of litigation creates an important incentive for state authorities to come to grips with certain problems. Notably, the state of Arkansas--one of the only states that was able to provide Human Rights Watch with a concrete description of the training and orientation measures that it takes with regard to the problem--included a discussion of litigation and staff liability for prisoner-on-prisoner sexual abuse at the very beginning of its training curriculum on the subject.(402)
Yet, unfortunately, the legal rules that the courts have developed relating to prisoner-on-prisoner sexual abuse create perverse incentives for authorities to ignore the problem. Under the "deliberate indifference" standard that is applicable to legal challenges to prison officials' failure to protect prisoners from inter-prisoner abuses such as rape, the prisoner must prove to the court that the defendants had actual knowledge of a substantial risk to him, and that they disregarded that risk. As the courts have emphasized, it is not enough for the prison to prove that "the risk was obvious and a reasonable prison official would have noticed it."(403) Instead, if a prison official lacked knowledge of the risk--no matter how obvious it was to anyone else--he cannot be held liable.
The incentive this legal rule creates for correctional officials to remain unaware of problems is regrettable. Indeed, in many lawsuits involving prisoner-on-prisoner rape, the main thrust of prison officials' defense is that they were unaware that the defendant was in danger. More generally, officials in such cases often argue that rape in their facilities is a "rarity"--"not a serious risk."(404) They certainly have no incentive, under the existing legal standards, to try to ascertain the true dimensions of the problem.
An encouraging exception to the overall absence of particularized attention to prisoner-on-prisoner sexual abuse can be found in North Carolina. In 1997, the legislature passed a law establishing a pilot program on sexual assault prevention in the prisons.(405) Covering only three units of the state prison system, the program is otherwise a laudable attempt at addressing the problem of inmate-on-inmate sexual abuse. It provides that the orientation given inmates will include information on the reducing the risk of sexual assault and that counseling on the topic will be provided to any prisoner requesting it. It also requires that the correctional authorities collect data on incidents of sexual aggression and develop and implement employee training on the topic.
The program's rules on classification and housing are particularly valuable. They provide that all prisoners must be evaluated and classified as to their risk of being either the victim or perpetrator of sexually assaultive behavior. These classifications are to be taken into account when making housing assignments. In particular, inmates deemed vulnerable to assault are barred from being housed in the same cell or in small dormitories with inmates rated as potential perpetrators.
I have been to 4 Ohio prisons and at no time was I ever warned about the danger of sexual assault. No one ever told me of ways to protect myself. And to this day I've never heard of a procedure for reporting rape. This is never talked about.
--An Ohio inmate.(406)
Prisoners almost uniformly related to Human Rights Watch that on entering prison they received no formal orientation regarding how they might avoid rape or what steps they should take if they were subject to or threatened with rape. As described in chapter IV, prisoners who are unfamiliar with the ins and outs of prison life tend to be more vulnerable to rape. Not knowing the tricks and ruses that lead to sexual abuse, they have no idea when they are being set up for victimization. A detailed and realistic prisoner orientation program--one that explains common exploitation scenarios as well as describing how to obtain official protection--could be effective in strengthening prisoners' abilities to react appropriately to sexual targeting.
A few states, whose example should be followed more widely, have in fact established orientation programs relating to the issue. The Virginia Department of Corrections, for example, told Human Rights Watch that all inmates receive orientation on how to avoid sexual aggression upon entry the prison system. The inmate handbook, which is provided to all prisoners, also includes a short section on "How to Avoid Homosexual Intimidation."(407) It gives advice such as "don't get into debt," and "don't solicit or accept favors, property or drugs." Arkansas has a similar orientation program; it too includes such warnings.(408)
The Illinois Department of Corrections said that it had a similar orientation program, and it forwarded Human Rights Watch excerpts discussing sexual assault from inmate handbooks distributed in several facilities. One excerpt was particularly useful in that it included a detailed description of the procedure by which the facility handled claims of sexual assault.(409) North Carolina, while it did not provide a copy of the course materials, also told Human Rights Watch that incoming inmates were advised "about the risks of sexual assault and what steps they may take to prevent such assault and seek assistance from staff."(410)
Among the goals of prisoner classification policies is to separate dangerous prisoners from those whom they are likely to victimize. At one extreme are "supermax," or administrative segregation units, where prisoners with a history of violence or indiscipline are held; at the other are protective custody units where the most vulnerable inmates are held.(411) Yet even between these extremes, the existence of various security levels (e.g., minimum, medium, maximum or close custody), and the range of categorization alternatives within these levels, are supposed to allow prison authorities flexibility in arranging inmates' housing and work assignments so as to minimize inter-prisoner violence and victimization.
In the overcrowded prisons of today, however, the practical demands of simply finding available space for inmates have to a large extent overwhelmed classification ideals. Inmates frequently find themselves placed among others whose background, criminal history, and other characteristics make them an obvious threat.
In the worst cases, prisoners are actually placed in the same cell with inmates who are likely to victimize them--sometimes even with inmates who have a demonstrated proclivity for sexually abusing others. The case of Eddie Dillard, a California prisoner who served time at Corcoran State Prison in 1993, is an especially chilling example of this problem. Dillard, a young first-timer who had kicked a female correctional officer, was transferred to the cell of Wayne Robertson, a prisoner known by all as the "Booty Bandit."(412) The skinny Dillard was no match for Robertson, a huge, muscular man serving a life sentence for murder. Not only was Robertson nearly twice Dillard's weight, but he had earned his nickname through his habit of violently raping other prisoners.
Before the end of the day, the inevitable occurred: Robertson beat Dillard into submission and sodomized him. For the next two days, Dillard was raped repeatedly, until finally his cell door was opened and he ran out, refusing to return. A correctional officer who worked on the unit later told the Los Angeles Times: "Everyone knew about Robertson. He had raped inmates before and he's raped inmates since."(413) Indeed, according to documents submitted at a California legislative hearing on abuses at Corcoran, Robertson had committed more than a dozen rapes inside Corcoran and other prisons.(414) By placing Dillard in a cell with Robertson, the guards were setting him up for punishment.
Whether as a purposeful act or through mere negligence prisoners are all too often placed together with cellmates who rape them. A Connecticut prisoner told Human Rights Watch how he too was raped by a cellmate with a history of perpetrating rape:
[I] was sent to the orientation block to be cellmate with another prisoner already occupying a double cell. I did not know at the time that I was to share a double cell with him, that he was a known rapist in the prison . . . . I must point out that only a month and a half prior, he was accused of raping another man. On my fourth day of sharing the cell, I was ambushed and viciously raped by him. After being raped, I remained in shock and paralized in thought for two days until I was able to muster the courage to report it, this, the most dreadful and horrifying experience of my life.(415)
The pressures of overcrowding facing so many prisons today means that double-celling is much more common than in the past--often with two men being placed in a cell designed for single occupancy--while little care is taken to select compatible cellmates. Numerous prisoners told Human Rights Watch of being celled together with men who were much larger and stronger than them, had a history of violence, were racially antagonistic, openly threatening, or otherwise clearly incompatible. In such circumstances, rape is no surprise.
The greatest preventive measure [against rape] is posting staff, monitoring areas that are high risk for assault. The reality however, is that funding for prison administration doesn't provide for adequate patrolling . . . . Prisoners are pretty much left on their own.
--A Virginia inmate.(416)
You know, when you look at the low numbers of staff around--who really owns these prison?
--High-level state prison administrator who prefers to remain anonymous. (417)
Another casualty of the enormous growth of the country's prison population is adequate staffing and supervision of inmates. The consequences with regard to rape are obvious. Rape occurs most easily when there is no prison staff around to see or hear it. Particularly at night, prisoners have told Human Rights Watch, they are often left alone and unsupervised in their housing areas. Several inmates have reported to Human Rights Watch that they yelled for help when they were attacked, to no avail. Although correctional staff are generally supposed to make rounds at fifteen minute intervals, they do not always follow this schedule. Moreover, they often walk by prisoners' cells without making an effort to see what is happening within them.
Texas, one of the largest prison systems in the country--and one in which rape is widespread--is known to be seriously understaffed. It is short an estimated 2,500 guards, what a high official in the prison guards' union characterizes as a staffing crisis.(418) Prison attrition statistics reportedly show that about one in five guards quit over the course of 2000.
Paradoxically, lower numbers of correctional staff can lead to more ineffective monitoring by existing staff. Instead of redoubling their efforts to make up for their insufficient numbers, they are more likely to remain as much as possible outside of prisoners' living areas, because fewer staff makes close monitoring more dangerous to those employees who do make the rounds of housing units. Being at a disadvantage, they also have a stronger incentive to pacify--rather than challenge--the more dangerous prisoners who may be exploiting others.
Poor design, especially common in older prisons, exacerbates the problem of understaffing. Blind spots and other areas that are difficult to monitor offer inmates unsupervised places in which to commit abuses. Explained one Florida inmate: "Rapes occur because the lack of observation make it possible. Prisons have too few guards and too many blind spots."(419)
An absolutely central problem with regard to sexual abuse in prison, emphasized by inmate after inmate, is the inadequate--and, in many instances, callous and irresponsible--response of correctional staff to complaints of rape. When an inmate informs an officer that he has been threatened with rape or, even worse, actually assaulted, it is crucial that his complaint be met with a rapid and effective response. Most obviously, he should be brought somewhere where his safety is protected and where he can explain his complaint in a confidential manner. If the rape has already occurred, he should be taken for whatever medical care may be needed and--a step that is crucial for any potential criminal prosecution--physical evidence of rape can be collected.
But from the reports Human Rights Watch has received, such a response is uncommon. Typical of inmate accounts is this one, from an inmate who was compelled to identify his rapist in front of numerous others and then returned back to the same unit:
Lt. B.W. had me identify the assailant in front of approximately "20" other inmates . . . which immediately put my safty & life in danger as a "snitch" for telling on the other inmate who sexually assaulted me . . . . the Prison officials trying to Place Me Back in Population after I identified the assailant in front of 20 inmates clearly placed my life in danger Because of the "snitch" concept.(420)
Such actions demonstrate to prisoners, in a very effective way, that it is unwise to report rape.
A blatant display of disbelief is another improper response that numerous inmates have described. One prisoner, who claimed to have been raped several times, said that officers refused to take his complaints serious, telling him, "no way--you're not that good of a catch."(421) Frequently, correctional staff intimate that any sexual contact that may have occurred was consensual. A Texas inmate said that after he reported that he had been raped: "I was pulled out and seen by Mrs. P, Capt. R, and Major H. I told my complaint and Mrs. P said that I was never raped that I just gave it up."(422) Significantly, consensual sex is a rules violation in all prison systems, leaving the complaining inmate with the possibility of facing disciplinary sanctions.
Staff allegations of consensual sex are frequently combined with allegations that the complaining prisoner is gay, the implication being that gay inmates invite sex. A Florida inmate told Human Rights Watch: "I have been sexually assaulted twice since being incarcerated. Both times the staff refused to do anything except to lock me up and make accusations that I'm homosexual."(423)
A Texas inmate who was raped by numerous other prisoners over a long period of time experienced similar treatment by correctional staff when he tried to obtain their assistance:
Defendant J.M, a security officer with the rank of sargeant, came to investigate the series of latest allegations. Defendant J.M. refused to interview the inmate witnesses and told plaintiff that he was lying about being sexually abused. After plaintiff vehemently protested that he was being truthful, defendant J.M. made comments that plaintiff "must be gay" for "letting them make you suck dick."(424)
As these accounts suggest, gay inmates, or those perceived as gay, often face great difficulties in securing relief from abuse. Unless they show obvious physical injury, their complaints tend to be ignored and their requests for protection denied. Prison officials are particularly likely to assume consent in sexual acts involving a gay inmate.(425) Although homosexuality is generally regarded as a factor supporting an inmate's claim to protective custody, many guards appear to believe that gay inmates are immune from rape--that when a gay inmate has sex with another man it is somehow by definition consensual. Moreover, some gay prisoners have told Human Rights Watch that the guards themselves make homophobic comments, further encouraging sexual harassment from other inmates.
Another common guard response is that the inmate should defend himself using physical force, or even retaliate violently against the aggressors. "Be a man," guards urge. "Stand up and fight."(426) The suggestion is often meant well--violent retaliation may, in fact, be quite effective against sexual abuse--but the advice nonetheless represents an abdication of responsibility. It is correctional staff who are responsible for protecting prisoners from violence, not prisoners themselves. Indeed, the use of force by inmates, even in self-defense, is a disciplinary offense.
Some correctional officers do respond to reports of sexual abuse, typically by moving the inmate to a place of safety, often to a holding cell or what is called the "transit" area of the prison. Sometimes a medical examination is conducted and sometimes an investigation into the incident is opened. The problem is that these steps rarely lead to adequate measures being taken against the perpetrator of abuse. Rather than internal disciplinary proceedings or external criminal prosecution, the solution is typically found in isolating the two parties. Either the rapist or, more commonly, the complaining inmate may be transferred to another prison. Serious investigation of abuses is all too rare. The basic procedures followed when a crime is committed outside of prison--involving collection of physical evidence, interviews with witnesses, interrogation of suspects--are much less likely to be employed when the crime involves inmates.
I have yet to hear of an inmate being charged in court with sexual assault of an inmate. Have you? If just one was found guilty, got more time, things would change.
--A Nebraska prisoner.(427)
As of this time I have almost 14 years in prison and have never heard of a prison rape case being prosecuted in court . . . . I'm quite sure if a man committed a rape in prison and got 5 or 10 years time, prison rape would decline.
--An Ohio prisoner.(428)
Human Rights Watch surveyed both correctional departments and prisoners themselves regarding whether rapists faced criminal prosecution. The response--or more accurately, lack of response--was instructive. Although corrections authorities generally stated that they referred all or some cases for prosecution by outside authorities, they had little information regarding the results of such referrals.(429) Prisoners were much more blunt: they uniformly agreed that criminal prosecution of rapists never occurs.
Judging solely by the direct accounts of rape we have received, criminal prosecution of prisoner-on-prisoner rape is extremely rare. Of the well over 100 rapes reported to Human Rights Watch, not a single one led to the criminal prosecution of the perpetrators. Even the most violent rapes, and those in which the victim pushed strongly for outside intervention, were ignored by the criminal justice system. Unlike rape in the outside community, rape in prison is a crime the perpetrator can commit without fear of spending additional time in prison.
The following letter, from an official with the Minnesota Department of Corrections, suggests just how rare such prosecutions are. Questioned in 1997 as to specific instances in which prisoners had been prosecuted for raping other prisoners, he cited a case that occurred twelve years previously:
You also asked if I was aware of any cases in which perpetrators of inmate-on-inmate sexual assault have been criminally prosecuted. I spoke with staff in our Office of Special Investigations and they informed me of one such case in September 1985. An inmate was charged and pled guilty to criminal sexual conduct in the third degree. He received a sentence of 1 year and 1 day to be served consecutively to his original incarceration offense.(430)
Although this response clearly indicates that rape prosecutions are rare in Minnesota, it is worth noting that almost all other state corrections department did not bring up any cases in which a perpetrator of rape in prison was prosecuted for the crime. Several said that they simply did not follow the progress of such cases.(431) The Missouri correctional authorities told Human Rights Watch in mid-1998 that three cases in the category "Forcible Sexual Misconduct" were submitted for prosecution in 1996, two of which had been refused by the prosecutor and one of which was still pending. They noted, in addition, that there were no criminal convictions stemming from inmate-on-inmate rape or sexual abuse during the past two years.
The case of M.R., the Texas inmate whose case was described in chapter V, is a particularly egregious example of the failure to criminally prosecute rape in prison. Not only was M.R. raped repeatedly, the last time in full view of other inmates, but he was nearly killed by the rapist, receiving a severe concussion, broken bones, and scalp lacerations. Desperate to see the man prosecuted, M.R. wrote both the local district attorney and sheriff explaining his strong desire to press charges. He even filed a grievance against the Texas correctional authorities requesting their help in securing the criminal prosecution of the rapist. None of his efforts made a difference: the prosecution was never instituted.
Why are criminal prosecutions of inmate-on-inmate rape so rare? First, it is obvious that the severe underreporting of cases of abuse means that only a small minority of rapes are known to prison authorities, let alone to anyone outside the prison. Second, the failure of prison authorities to react appropriately to complaints of sexual abuse--including collecting physical evidence of rape--and to properly investigate such complaints means that the necessary fact-finding to support a criminal prosecution is lacking. Since local police do not patrol prisons, they rely on correctional authorities to gather the proof of crime. But another crucial problem is the low priority that local prosecutors place on prosecuting prison abuses. Although local prosecutors are nominally responsible for prosecuting criminal acts that occur in prisons, they are unlikely to consider prisoners part of their real constituency. Prisoners have no political power of their own, and impunity for abuses against prisoners does not directly threaten the public outside of prison. Since many state prosecutors are elected officials, these factors may be decisive in leading them to ignore prison abuses.
M.R., the Texas prisoner who was nearly killed by his rapist, received another shock when he found out that the man was punished for the attack by spending a total of fifteen days in disciplinary segregation. Judging by the reports received by Human Rights Watch, however, the punishment meted out against M.R.'s rapist is only unusual in that it was meted out at all, not in that it was lenient. Since it is rare for prison authorities to conduct the investigation necessary to make a finding of rape, perpetrators of rape facing disciplinary proceedings are usually charged with a lesser offense such as disorderly conduct. The following account is typical:
[While I was in a temporary cell], officers allowed another inmate who was not assigned to my cell to enter and stay in my cell for two days with me. This was two days of living hell in which he raped and abused my body. He threatened to kill me if I let officials know. However, I began kicking the cell door anyway after the second day and officials came to my aid. I informed officials of what had transpired the previous two days, but it was logged that I merely "alleged" that I had been sexually assaulted and raped. The inmate was charged only with the disciplinary offense of threatening me, he got away with the sexual assaults -- a much more serious offense -- unpunished.(432)
Perpetrators may spend a week or two, or even a month, in "the hole," rarely longer. Needless to say, when they return to the general prison population they may be primed for revenge.
[L]awyers are, and with reason, terribly skeptical about the merits of prisoners' civil rights suits, most of which are indeed hoked up and frivolous.
--Chief Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit.(433)
Prisons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, "[s]ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated."
--Justice Clarence Thomas, U.S. Supreme Court(434)
Like the public, many federal judges appear to view prisoners' legal claims with an extremely cynical eye. Either they disbelieve prisoners' complaints of abuse, preferring to focus their concern on the constraints under which correctional authorities operate, or they seem resigned to tolerating prison violence and exploitation. Not all federal judges are so insensitive to prison abuses--indeed, a few worthy efforts have been made to put a stop to prisoner-on-prisoner sexual abuse, including the rulings in LaMarca v. Turner and Redmond v. County of San Diego--but it is fair to say that the courts have not proven to be an effective champion of the sexually abused inmate.(435)
As described in chapter III, prisoners seeking recourse for violations of their constitutional rights can file a civil action in federal court. Especially since the passage of the Prison Litigation Reform Act (PLRA), however, the obstacles to such cases are daunting.
Despite the paucity of lawyers willing to litigate such cases, some inmates do nonetheless file suit against the prison authorities in the aftermath of rape. They typically assert that the authorities' failure to take steps to protect them from abuse violates the prohibition on "cruel and usual punishments" contained in the Eighth Amendment to the U.S. Constitution. All too often, such cases are dismissed in the early stages of litigation, with some judges going out of their way to excuse the actions of prison officials.
The reasoning behind the decision in Chandler v. Jones, although the court's comments were more candid than most, is typical. In dismissing the case, which involved an inmate who was sexually pressured and harassed after being transferred to a dangerous housing unit, the court explained that "sexual harassment of inmates in prisons would appear to be a fact of life."(436) Even while acknowledging the widespread nature of the problem, courts have been extremely reluctant to hold prison officials responsible for it. Their caution may, to some extent, reflect their belief that crucial policy and budgetary decisions affecting prison conditions are made elsewhere, and that guards and other officials should not be blamed for the predictable abuses that result.(437) By such reasoning, however, the courts have ensured near-complete impunity for prisoner-on-prisoner sexual abuse. This tendency is strongly reinforced by the requirement in such cases that prison officials have "actual knowledge" of the problem, allowing courts to dismiss even those cases in which the risk of rape would be obvious to any reasonable person in the official's position.
Finally, the rare case that does survive to reach a jury typically finds the inmate plaintiff before an unreceptive audience. Consider, for example, the case of Butler v. Dowd, in which the jury found that three young inmates had been brutally raped due to prison officials' deliberate indifference, but only awarded the plaintiffs the sum of one dollar each in nominal damages.(438) Or James v. Tilghman, in which the jury found that the inmate plaintiff had been raped due to the defendants' negligence, but awarded him nothing--neither compensatory nor punitive damages.(439) In many other cases, moreover, juries have found in favor of the defendants despite compelling evidence to the contrary. Even the well known case of Farmer v. Brennan, in which the transsexual victim of prisoner-on-prisoner rape prevailed before the U.S. Supreme Court, resulted in an unfavorable decision on remand to the district court.
Joanne Mariner, deputy director of the Americas Division of Human Rights Watch, is the author of this report, which is based on research conducted from 1996 to 1999. The research was a collective effort requiring the assistance of a number of Human Rights Watch staff members, interns, and others. Among those who gave generously of their time and ideas were Sahr Muhammedaly, former program associate; Gail Yamauchi, program associate; Kokayi K. Issa, former Leonard Sandler Fellow; Rae Terry, former New York University law student; Anna-Rose Mathieson, former Everett Intern; Emma Algotsson, former intern; Zoe Hilden, former intern; Caroline Flintoft, former intern; Marcia Allina, program associate; and Ali Ehsassi, former intern. Professor Michael Mushlin of Pace University offered helpful suggestions regarding the report's legal section.
During informal discussions on prison issues with Associate Counsel Jamie Fellner, the author gained many insights that inform this report. She would also like to thank Cynthia Brown, former program director of Human Rights Watch, who was a steadfast supporter of the project.
The report was edited by Michael McClintock, deputy program director of Human Rights Watch, and Malcolm Smart, program director. Jamie Fellner also provided invaluable editorial comments. Dinah PoKempner, general counsel of Human Rights Watch, reviewed it for legal accuracy. Jonathan Horowitz, program associate, provided production assistance.
Generous financial assistance for the research was provided by the Edna McConnell Clark Foundation, the Public Welfare Foundation, and John Kaneb.
The author wishes to thank the many prisoners who contributed to the report, both by recounting their personal experiences and by offering their thoughts and recommendations on the topic. The report is dedicated to the memory of two exceptional men: the late Justice Harry Blackmun, a former member of the U.S. Supreme Court, notable, among other things, for his eloquent concern for the humane treatment of prisoners, and the late Stephen Donaldson, a former prisoner and tireless activist whose groundbreaking work drew needed attention to the human suffering that is the subject of this report.
396. E-mail communication to Human Rights Watch, July 28, 1997.
397. Although few past studies have specifically examined correctional authorities' response to prisoner-on-prisoner rape, most commentators agree that little has been done to address the problem. See, for example, Robert W. Dumond, "Inmate Sexual Assault: The Plague That Persists," The Prison Journal, vol. 80, no. 4 (2000). Dumond notes: "Although the problem of inmate sexual assault has been known and examined for the past 30 years, the body of evidence has failed to be translated into effective intervention strategies for treating inmate victims and ensuring improved correctional practices and management." Ibid., p. 407.
398. Arkansas corrections authorities give a course "designed to train correctional personnel to recognize and prevent potential sexual abuse among the inmate population and to intervene quickly and efficiently in instances of suspected, actual, or on-going abuse." The staff training manual on the topic is clear, detailed, and includes extremely useful guidelines as to how prison employees should react to instances of known or suspected sexual abuse. Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript). The manual itself says the course is eight hours long, although the training academy manual says it lasts four hours.
The Nebraska correctional authorities, in their response to our 1997 survey, stated that they were "in the process of defining and implementing a formal sexual assault prevention program for both inmates and staff." Letter to Human Rights Watch from Harold W. Clarke, Director, Nebraska Department of Correctional Services, July 10, 1997. The department did not respond to any of our subsequent requests for information.
399. Massachusetts is one of the few states that provided such a protocol, titled the "Inmate Sexual Assault Response Plan," which came into effect in October 1998. It covers the appropriate staff reaction to incidents of sexual assault, evidence collection, inmate medical care, reporting procedures, witness interviewing, seeking of criminal charges, and psychological evaluation and counseling. Massachusetts Department of Correction, "Inmate Sexual Response Plan," 103 DOC 520 (October 1998). In a welcome step, the department trains certain staff members to be Certified Sexual Assault Investigators.
The Federal Bureau of Prisons, charged with the management of one of the largest prison populations in the country, has also established a comprehensive protocol of this sort. It is designed to "provide guidelines to help prevent sexual assaults on inmates, to address the safety and treatment needs of inmates who have been sexually assaulted, and to discipline and prosecute those who sexually assault inmates." Federal Bureau of Prisons, "Program Statement: Sexual Abuse/Assault Prevention and Intervention Programs," PS 5324.04, December 31, 1997.
Connecticut has a sexual assault response protocol that was drafted in December 1996. The protocol covers staff response, evidence collection, medical treatment, mental health treatment, and inmate housing placement. It is aimed at prison medical practitioners, however, rather than the correctional officers who are generally responsible for the initial response to claims of sexual abuse. "Health Services: Inmate Sexual Assault/Rape Protocol," December 11, 1996.
400. The survey found that only six correctional departments--Idaho, Michigan, New Mexico, North Dakota, Oregon and Tennessee--had specifically proscribed sexual harassment among male inmates. In addition, a few states generally barred harassing behavior, and several other states barred certain forms of harassment. Arizona and Nebraska were alone in punishing inmates for "pressuring" others for sex. See James E. Robertson, "Cruel and Unusual Punishment in United States Prisons: Sexual Harassment among Male Inmates," American Criminal Law Review, vol. 36 (Winter 1999), p. 45.
401. See Human Rights Watch, All Too Familiar, p. 5.
402. Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript), p. 4.
403. Farmer v. Brennan, 511 U.S. 825, 841 (1994).
404. See, for example, Ginn v. Gallagher, 1994 U.S. Dist. LEXIS 16669 (1994) (summary judgment for defendants granted); Dreher v. Roth, 1993 U.S. Dist. LEXIS 209 (1993) (summary judgment for defendants granted).
405. North Carolina General Statutes, Chapter 143B-262.2.
406. Letter to Human Rights Watch from G.M., Ohio, June 27, 1997.
407. Undated attachment to Letter to Human Rights Watch from Ron Angelone, Director, Virginia Department of Corrections, August 21, 1997.
408. Unfortunately, included in the Arkansas materials is a sentence that perpetuates the myth that male victims of rape thereby lose their "manhood." In a section aimed at warning potential rapists against committing the act, it says: "Put yourself in the [victim's] place for just a minute. No matter who he is, the most valuable thing a man has is his manhood, and you want to rob him of this." Arkansas Department of Correction, "Sexual Aggression in Prisons and Jails: Awareness, Prevention, and Intervention" (undated manuscript), p. 48.
409. It was not clear, however, whether this handbook was only used in a single facility, or more generally. Attachment to Letter to Human Rights Watch from Donald N. Snyder, Jr., Director, Illinois Department of Corrections, April 7, 2000.
410. Letter to Human Rights Watch from R. Alan Harrop, Mental Health Director, Division of Prisons, North Carolina Department of Correction, September 16, 1997.
411. Human Rights Watch has previously documented abuses that occur in supermax prison units, including the fact that a lack of due process in assignment to such units means that prisoners may wrongly end up in them. See Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997). In other words, not all prisoners housed in supermax units are actually the "worst of the worst," as proponents of such units like to claim. Indeed, Human Rights Watch has even found rape victims taking refuge in such units, having purposefully broken prison rules in order to escape to a highly regulated and secure environment.
412. Mark Arax, "Ex-Guard Tells of Brutality, Code of Silence at Corcoran," Los Angeles Times, July 6, 1998.
414. Mark Gladstone and Mark Arax, "Prison Guards Can Consult Lawyers Prior to Questioning," Los Angeles Times, September 25, 1998.
415. Letter to Human Rights Watch from B.J., Connecticut, September 23, 1996.
416. Letter to Human Rights Watch, November 7, 1996.
417. Human Rights Watch telephone interview, August 6, 1997.
418. Jim Yardley, "Escape Prompts Scrutiny of Texas Prison System," New York Times, January 11, 2001 (quoting Brian Olsen, deputy director of the American Federation of State, County and Municipal Employees, which represents roughly one-sixth of the state's correctional officers).
419. Letter to Human Rights Watch from K.M., Florida, June 18, 1999.
420. Letter to Human Rights Watch from D.A., Texas, September 18, 1998.
421. Human Rights Watch interview, Texas, March 1999.
422. Letter to Human Rights Watch from L.T., Texas, February 19, 1997.
423. Letter to Human Rights Watch from J.G., Florida, September 4, 1996.
424. Letter to Human Rights Watch from S.H., Texas, September 10, 1996 (excerpt from legal pleadings).
425. See Nacci and Kane, Sex and Sexual Aggression in Federal Prisons, p. 16.
426. Past studies confirm this point. See, for example, Lockwood, Prison Sexual Violence, p. 55; Helen M. Eigenberg, "Rape in Male Prisons: Examining the Relationship Between Correctional Officers' Attitudes toward Rape and Their Willingness to Respond to Acts of Rape," in Michael Braswell et al., 2d ed., Prison Violence in America (Cincinnatti, Ohio: Anderson Publishing, 1994), p. 159 (stating that prison staff "seem to offer little assistance to inmates except the age-old advice of 'fight or fuck'"); Lee H. Bowker, Prison Victimization (1980), p. 13 (noting that correctional staff tell inmates "to fight it out"); Weiss and Friar, Terror in the Prisons, p. 25 (describing how an officer advised an inmate, "Go back . . . and fight it out").
427. Letter to Human Rights Watch from D.A., Nebraska, September 6, 1996.
428. Letter to Human Rights Watch from L.L., Ohio, August 10, 1997.
429. Texas was the only state that provided precise numbers regarding criminal prosecutions. In 1997, the Texas correctional department stated: "Since 1984, Internal Affairs has investigated a total of 519 cases [of inmate-on-inmate sexual assault]. Four cases have resulted in prosecution, with the guilty party receiving an additional prison sentence." Letter to Human Rights Watch from Debby Miller, executive services, Texas Department of Criminal Justice, May 19, 1997. The department did not provide specific numbers in response to our 1998 and 1999 queries. In 1998, for example, Human Rights Watch was told that "our Internal Affairs Division is not always notified by the prosecuting attorneys as to the outcome of these cases, [so] we do not have the precise number of cases that are prosecuted and result in an additional prison sentence." Letter fromDebby Miller, executive services, Texas Department of Criminal Justice, Juny 29, 1998.
430. Letter to Human Rights Watch from Terry Carlson, Adult Facilities Support Unit Director, Minnesota Department of Corrections, August 26, 1997.
431. Typical is the response of Oklahoma correctional authorities: "Our reports do not list the felony charges filed in district court so we cannot confirm whether charges have been filed, but it does not appear to be routine." Letter to Human Rights Watch from James L. Saffle, Oklahoma Department of Corrections, June 5, 1997. Similarly, Rhode Island correctional authorities told us that they had no statistics on actual convictions. Letter to Human Rights Watch from Ashbel T. Wall, II, Director, Rhode Island Department of Corrections, April 25, 2000.
432. Letter to Human Rights Watch from J.C., Texas, December 16, 1998.
433. Billman v. Indiana Department of Corrections, 56 F. 3d 785, 790 (1995). For an instructive shock, change the word "prisoners" in that sentence to denote any other group--women, Native Americans, or homeowners, for example.
434. Farmer v. Brennan, 511 U.S. 825, 839 (1994) (Thomas, J., concurring in the judgment) (quoting McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).
435. See LaMarca v. Turner, 662 F. Supp. 647 (S.D. Fla. 1987) (granting $201,500 in damages, as well as injunctive relief, in class action brought by inmates who were gang raped at the Glades Correctional Institution), aff'd in part and vacated in part, 995 F. 2d 1526 (11th Cir. 1993), cert. denied, 510 U.S. 1164 (1994); Redman v. County of San Diego, 896 F. 2d 362 (9th Cir. 1990) (affirming district court direct verdict that a small, eighteen-year-old inmate who was raped by his cellmate and others did not prove that he had been treated with deliberate indifference), aff'd in part, rev'd in part, 942 F.2d 1435 (1991) (en banc) (reversing district court, finding that a reasonable jury could have concluded that prison officials had acted with deliberate indifference), cert. denied, 502 U.S. 1074 (1992).
436. Chandler v. Jones, 1988 U.S. Dist. LEXIS 693, *3 (E.D. Mo. 1988). It thus absolved the prison officials of responsibility, stating that the officials "made the best of a bad situation."
437. See, for example, McGill v. Duckworth, 944 F. 2d 344 (7th Cir. 1991) (reversing verdict in favor of raped prisoner, reasoning that legislatures, architects, taxpayers and judges all bear a share of the blame for prison abuses). The decision in Kish v. County of Milwaukee reflects similar thinking. Ruling against two inmates who were sexually assaulted, the court suggested that sexual assault was extremely common in the overcrowded jail under consideration, but that prison officials could not be blamed for the problem. It explained: "the assaults were a result of the physical layout and overcrowding of the jail, both matters beyond the control of the defendant." Kish v. County of Milwaukee, 441 F. 2d 901, 905 (7th Cir. 1971).
438. Butler v. Dowd, 979 F. 2d 661 (8th Cir. 1992).
439. James v. Tilghman, 194 F.R.D. 408 (D. Conn. 1999). At the suggestion of defense counsel, the court revised the award, giving the plaintiff one dollar in nominal damages.