In America, we have laws. If you break those laws, sometimes you’re sentenced to prison — and sometimes you’re sentenced to being raped.
At least in practice, that’s the ugly reality of our criminal justice system. It’s out of sight, so it’s out of mind. But according to the Bureau of Justice Statistics, every year roughly 200,000 United States prisoners are victims of sexual assault while in custody. Despite all the promising bipartisan work that’s recently been done to reform our broken criminal justice system, few people are actually paying attention to the ever-present issue of prison rape, even though it’s a crisis of unspeakable moral urgency.
If we don’t fix this issue, then the effectiveness of our criminal justice system will continue to decline. Already, the U.S. boasts a terrible recidivism rate, as nearly two-thirds of released prisoners are arrested again within three years. That’s a complete and total failure for a system that’s meant to reform prisoners, not toss their lives aside.
Prison rape clearly could contribute to this problem. After all, rape victims are more likely to experience mental illnesses such as post-traumatic stress disorder or depression. And it’s easy to see how these disorders might understandably affect their day-to-day functioning and ability to maintain employment, likely decreasing the odds they’ll succeed upon reentering society. In the end, they’re just more likely to wind up back behind bars.
Prison rape isn’t a mere statistic. It has human consequences. The human rights organization Justice Detention International chronicles the stories of real people affected by prison rape. The story of a man named James from Massachusetts is the story of many:
Lawmakers can put an end to this. Already, Congress has passed one large reform called the Prison Rape Elimination Act in 2003. If states don’t comply with the rape-prevention standards in the law, they will lose 5% of federal grant funding. But prison rape is still rampant. Obviously, the PREA is simply not enough.
Now it’s time for state governments to do something. Using PREA as a guide, they need to create and actively enforce their own set of standards for state prisons to follow, preventing sexual assault in any form. This could mean stricter boundaries for showering, rules on private interactions between guards and prisoners, and better reporting mechanisms. Legislatures need to write these policies in a way that ensures compliance, with clear penalties attached for institutions that don’t adhere to the rules. State governments are positioned much closer to their prisons and are better-suited than federal bureaucrats to hold them accountable for misconduct.
New state legislation must ensure that every incarcerated person has a safe and confidential way to report abuses without fear of retribution. Every allegation needs to be fully investigated by a third party, free from the bias of state employees investigating their own colleagues. Although this is a key part of PREA, not all states comply with the standards. According to the Department of Justice, only 19 states are in full compliance. Unsurprisingly, prison rape persists.
Another harrowing policy problem lies with current prisoners’ inability to hold prison employees accountable in a court of law. Right now, it’s difficult for anyone to bring a lawsuit against a government entity or employee, even if they harm others or act negligently, due to stringent immunity laws. These laws shield government employees from responsibility — whether it’s for failing to take preventative measures to prevent rape, or engaging in sexual misconduct themselves — by barring most lawsuits against them from moving forward in the courts. But when it comes to human rights violations such as physical and sexual abuse, immunity should always be waived, and government employees shouldn’t be able to use this as a form of defense.
After all, if a person won’t be held liable for their actions, what incentive do they have to follow the law, or to treat prisoners fairly?
Failure to comply with assault prevention policies should always have consequences, and states need to quell the national crisis of rampant prison rape. No one, not even a prisoner, deserves to be sexually assaulted. Though a prisoner is required, in many ways, to sacrifice their liberties, they don’t forfeit their claim to basic human rights and decency.
How can we possibly preserve a criminal justice system that, at best, ignores the rape of thousands, and, at worst, condones it? Our Founding Fathers cautioned us that cruel and unusual punishment has no place in a just society. We have a moral obligation to act against injustices, and luckily, our state legislatures have the power to do just that.
Brad Polumbo is an editor at the libertarian media nonprofit organization Young Voices, where Molly Davis is a contributing writer. Molly is also a policy analyst at the Utah nonprofit Libertas Institute.
