Sexual abuse of women at prison enabled by flawed law
A recent Associated Press investigation detailed how allegations of rampant sexual abuse of women inmates at the federal correctional institution in Dublin were largely ignored while the victims were often sent to solitary confinement for reporting the offenses.
The story was shocking — not for its revelatory insight but rather because the abuse is still happening.
Twenty-six years ago, I wrote about sexual abuse inside the same women's prison. A prison guard had sold entry into women's cells, allowing male inmates to rape and abuse them.
A 1999 Amnesty International report highlighted the prevalence of sexual abuse and human rights violations committed against female prisoners in the United States. After release of that report, a Federal Bureau of Prisons spokesman said the U.S. government was addressing the problem, adding, “It's an issue we have zero tolerance for.” Yet, in 2020, there were 422 complaints of staffon-inmate sexual abuse across the system of 122 prisons and 153,000 inmates.
Laws enacted in all 50 states criminalize sexual contact between guards and prisoners. These laws have been largely ineffective in stemming abuse. While a former chaplain at the women's prison in Dublin pleaded guilty recently to five felony charges of sexually abusing an inmate and lying to federal investigators, this was a rare occurrence. Between 2012 and 2015, less than half of the reported cases were referred for prosecution.
The United States currently incarcerates more women than any other country in the world. But their rights have been undermined by the 1996 passage of the Prison Litigation Reform Act.
The PLRA requires prisoners to exhaust every administrative remedy before filing a lawsuit in civil court and makes it impossible for women who have been sexually abused or harassed but cannot prove physical injury to sue for compensation.
It is unreasonable to expect women, many of whom have suffered sexual and physical abuse in the past, to have the psychological and emotional wherewithal to follow the strict grievance procedures required by the PLRA. Other legal doctrines, like qualified immunity, make suing prison officials for sexual abuse even more difficult. The PLRA attorney fees cap also makes it very difficult for attorneys to litigate these cases.
The PLRA was not intentionally designed to block lawsuits for custodial sexual abuse. However, during congressional debate preceding its passage, thenSen. Joe Biden cautioned that the PLRA would erect “too many roadblocks to meritorious prison lawsuits.” He noted that hundreds of women prisoners had been sexually abused by dozens of guards for years in Washington, D.C., prisons until their class action lawsuit was successful. Biden's warnings were ignored.
Greater access to the courts would provide more transparency and create financial incentives for institutional reform. It would not, by itself, stop the abuse. The inherent power imbalance between prisoners and guards and the well-founded fear of retaliation ensure that incidents go unreported. Stronger oversight, laws and penalties for guards' criminal behavior are needed. Without prosecutors filing charges against the abusers, it will be business as usual.
If Sen. Biden could advocate for an amendment to the PLRA,
President Biden could encourage legislation that would eliminate the impossibly high legal hurdles that silence the voices of abused women. The Biden Justice Department could focus efforts on investigating claims of sexual abuse in prisons and prosecute sexual predators all the way up the chain of command.
Human rights violations take many forms for women in prison, and the boundaries between punishment and abuse have become blurred. Without real accountability, the rampant predatory practices will continue.
Bobbie Stein is a Bay Area criminal defense and civil rights lawyer. She has served on the faculty at several California law schools, including Berkeley Law and New College School of Law, and is a member of the National Lawyers Guild and California Attorneys for Criminal Justice.