On the Prevention of Rape in Correctional Facilities

In the media and entertainment industries, the subject of prison rape has received a fair amount of attention. It stands as a real threat to many inmates and has been memorably portrayed in various movies, such as The Shawshank Redemption. For many people who have a stake in decisions made at corrections facilities, it is an important topic that deserves serious attention.

In 2003, Congress enacted The Prison Rape Elimination Act (PREA). PREA was enacted by Congress to address concerns about the sexual victimization and abuse of persons in U.S. correctional facilities. In 2004, the National Prison Rape Elimination Committee was formed to take the lead in this area. According to this report, this spring they published new provisions of PREA.

According to the National Institute of Corrections, PREA has many provisions, including the following:

  • Adherence to a zero-tolerance standard for the incidence of inmate sexual assault and rape;
  • Development of standards for detection, prevention, reduction, and punishment of prison rape;
  • Collection and dissemination of information on the incidence of prison rape; and
  • Award of grant funds to help state and local governments implement the purposes of the Act.

In my area of research, which is primarily sexual and gender identity concerns, I am particularly interested in how this affects sexual minorities. This refers (in PREA) specifically to lesbian, gay, bisexual, transgender, and intersexed persons, as well as gender nonconforming persons. Here is what is written in PREA:

The standards account in various ways for the particular vulnerabilities of inmates who are LGBTI or whose appearance or manner does not conform to traditional gender expectations. The standards require training in effective and professional communication with LGBTI and gender nonconforming inmates and require the screening process to consider whether the inmate is, or is perceived to be, LGBTI or gender nonconforming. The standards also require that post-incident reviews consider whether the incident was motivated by LGBTI identification, status, or perceived status.

In addition, in a change from the proposed rule, the final standards do not allow placement of LGBTI inmates in dedicated facilities, units, or wings in adult prisons, jails, or community confinement facilities solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. As in the proposed standards, such placement is not allowed at all in juvenile facilities.

The standards impose a complete ban on searching or physically examining a transgender or intersex inmate for the sole purpose of determining the inmate’s genital status. Agencies must train security staff in conducting professional and respectful cross-gender pat-down searches and searches of transgender and intersex inmates.

In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, an agency may not simply assign the inmate to a facility based on genital status. Rather, the agency must consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems, giving serious consideration to the inmate’s own views regarding his or her own safety. In addition, transgender and intersex inmates must be given the opportunity to shower separately from other inmates.

As I have reviewed a number of articles related to PREA and blogs dedicated to discussions and comments on it, opposition seems to be framed around the following concerns: (1) it reflects political correctness to attend to the concerns of sexual minorities; (2) actions have consequences, so any inmate who is concerned about safety should have thought about before offending; and (3) there are limited resources for attending to the inmates who have special needs or considerations.

I am particularly concerned that Christians not stand behind the first two objections. Let’s look at the fist one. Although I suppose PREA could be implemented in a spirit of PC culture, it most certainly could be implemented simply out of regard for emerging sexual minority visibility. In this context, read “sexual minority” to mean individuals who experience sexual or gender identity in ways that do not reflect the experience of the majority (most individuals). How a person responds to those differences around sexual and gender identity may be up for grabs, and the prevailing script is clearly supporting an LGBTI identity, as I have discussed elsewhere. In certain settings and contexts, these experiences of sexual and gender identity appear to put some people at greater risk than others. While large segments of the population in different regions of the country (and globally) may disagree with the morality of same-sex behavior, that does not mean that safeguarding sexual minority persons should not be a concern shared by all.

As for the second objection, let me say first off that not all those who are in prison deserve to be in prison, and some groups are overrepresented in the prison population and that can reflect other injustices beyond the scope of this reflection. However, even in cases in which the person ought to be in prison, no one in prison deserves to be sexually assaulted. Being in prison was their sentence–not being raped.

The third concern is an issue of funding and resourcing, and that is always a concern. So implementing relevant regulations will be important in light of funding challenges, issues with space and other resources, as well as the safety and regard for all other inmates and the corrections staff as well. So this issue ought to be given careful consideration.

Why should Christians care about what happens to sexual minorities in prison? It concerns me that I even have to ask this question, but I know there are Christians who would be thinking this, even if they do not admit it. There are many reasons, but issues of justice are one–what was the sentence and how was it carried out (as contrasted with victimizing people in a corrections facility).

Also important, I think, is the commitment to honor the image of God in all persons, including those who are in prison. So much of our legal system is based on broad Judeo-Christian considerations that safeguard the process, and we ought not to lose site of both the foundations of the legal system and the implementation in these instances.

Third, we do well to recognize that it is not helpful to think “us” versus “them” with either the prison population or the LGBTI population. Christians are imprisoned. NonChristian people in prison become Christians. Christians experience same-sex sexuality and may or may not identify was LGBTI. There is no “us” and “them” in discussions of rape prevention in correctional settings, although there may be groups that are at greater risk than others, and how policies are written and enforced to respond to those needs is an important next step for everyone who has a stake in these discussions.

I will be involved in some consultations in this area over the next several months. These consultations will consider how religion may be explicitly or implicitly cited to justify turning a blind eye toward behaviors that place some people at risk in correctional facilities. Let’s hope for consensus as multiple stakeholders work to move forward with recommendations that serve the needs of everyone involved.

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