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  • Apoorva Deshmukh

The Prison Rape Elimination Act of 2003 (PREA) and Relevant State Statutes in Maryland, Virginia

Updated: Oct 27, 2023

In 2001, there were approximately 2,100,146 persons incarcerat​​ed throughout the United States, with 1,324,464 individuals in federal or state prisons and 631,240 individuals in county and local jails. Congress also determined that at least 13% of those incarcerated have been sexually assaulted in prison. Inmates with mental illnesses and juveniles sentenced to incarceration within adult prisons are at a greater risk.

Along with a zero-tolerance national policy for prison rape in the United States, Congress enacted the Prison Rape Elimination Act of 2003, commonly known as PREA, to provide information, analysis, resources, recommendations, and funding to combat the occurrence of prison rape. A second legislative effort by Congress, 28 C.F.R. Part 115, further interpreted and codified the national standards for the detection, prevention, reduction, and punishment of prison rape by providing standards for state compliance, auditing, data collection and review, medical and mental care, reporting, investigations, discipline, specialized training, and the distribution of inmate populations.

Under 28 C.F.R. 115, all employees, volunteers, and contractors are required to be aware of the zero-tolerance policy for sexual abuse and harassment, know how to fulfill their responsibilities regarding prevention, detection, reporting, and response, and understand how to communicate with all types of inmates, including inmates who are deaf, mute, or speak a different language. Employees, volunteers, and contractors are also provided specialized training in investigations, including techniques for Miranda and Garrity warnings, evidence collection, and in medical and mental health care, including detection of sexual abuse or harassment and the preservation of evidence.

With regards to the inmate population, facilities are required to deploy video monitoring systems, and sight, sound, and physical contact separate youthful inmates, or any person under the age of 18 who is currently under adult supervision and incarceration or detained in a prison or a jail, from adult inmates in dayrooms, common spaces, shower areas, and sleeping quarters. Outside of housing units, agencies are required to provide direct staff supervision whenever youthful inmates and adult inmates are not separated and avoid placing youthful inmates in isolation. Cross-gender strip searches or visual body cavity searches should also not be conducted.

By 2015, over 7,600 prisons, jails, community facilities, and juvenile facilities were covered by PREA and required to follow standards as put forth in 28 C.F.R. Part 115. Each of those facilities also provided data to the Bureau of Justice Statistics regarding sexual violence between 2007 and 2012. In 2012, 865 allegations of sexual victimization were reported, an increase from 2011 and 2010. Similarly, the rate of sexual victimization allegations in juvenile systems also increased from 19 per 1,000 youths in 2005 to 47 per 1,000 youth in 2012. From 2007 to 2012, approximately 9,500 allegations of sexual victimization of youth were reported, with 55% being youth-on-youth and 45% staff-on-youth.

All the aforementioned statistics and reports were of occurrences seen at a national level and concerned a federal statute. How are things closer to home, in the DMV area? Do the statistics differ in Maryland, Washington DC, or Virginia? Are any other state statutes in place to battle incidences and effects of prison rape? Has the subject of prison rape been heard in state courts of law? Let’s take a closer look, one jurisdiction at a time.

Let’s start with Maryland’s numbers. Responses were gathered from the Maryland Correctional Institution in Hagerstown (3.1%), the Maryland Correctional Institution for Women (12.7%), the Maryland Correctional Training Center (3.4%), and the Metropolitan Transition Center (3.2%) showing the percentage of inmates reporting sexual victimization. Similar responses were also gathered from the Allegany County Detention Center (2.3%), the Anne Arundel County Jennifer Road Detention Center (0.9%), the Baltimore City Detention Center (6.7%), the Montgomery County Correctional Facility (2.7%, and Wiccomico Co. Detention Center (0.6%). The responses seem to indicate that institutions housing female inmates and those in large cities tend to show a higher percentage of sexual victimization.

What about Maryland’s laws? Under MD Code Ann. Fam. Law. § 5-704, a police officer, health practitioner, educator, human service worker, juvenile detention center staff member, hospital staff member, public health agency, child care institution, or school official is required to report the nature and extent of the abuse or neglect of the juvenile. Penalties exist for hospitals, police officers, and health care providers who fail to report, but not juvenile detention centers. Similarly, under MD Code Ann. Fam. Law § 14-302, a health practitioner, police officer, or human service worker in contact with a vulnerable adult, or an adult who can not take care of himself or herself, must report any reason or belief that the alleged vulnerable adult has been subjected to abuse, neglect, self-neglect, or exploitation. Failures to report consequences are, also, unknown.

And the Maryland courts? Have they touched upon any instances of prison rape? A successful defense was purported by the agency in Green v. Sacchet, where the court ruled there was no Eighth Amendment violation when male correctional officers forced a male inmate to have intercourse with his cellmate and made sexual advances against the inmate.

Next, let’s turn to Virginia. Virginia’s statistics for state and federal prisons in 2012 were slightly higher than Maryland’s responses for state and federal prisons, but were lower than jail statistics. Similar to those gathered in Maryland, responses were gathered from the Brunswick Women’s Reception and Pre-Release Center (0.0%), the Dillwyn Correctional Center (4.5%), and the Sussex II State prison (5.4%), showing the percentage of inmates reporting sexual victimization. Additional responses were gathered from the Alexandria Detection Center (0.6%), the Arlington County Detention Facility (0.8%), the Bristol City Jail (0.8%), the Hampton Correctional Facility (1.0%), the Henrico County Regional Jail West (2.7%), the Mecklenburg County Jail (0.0%), the Montgomery County Jail (0.0%), the Newport News City Jail (3.5%), Piedmont Regional Jail (2.3%), Rappahnoock Regional Jail (4.5%), Richmond City Jail (3.4%), Riverside Regional Jail (4.9%), and Virginia Beach Municipal Correctional Center (2.4%).

And Virginia’s laws? Under VA Code Ann § 63.2-1509, any health practitioner, social worker, probation officer, teacher, child care provider, mental health professional, law enforcement officer, mediator, or any professional staff person at an institution or facility where juveniles are committed or incarcerated is required to report any possible abuse or neglect immediately to the local department of the county or city using the toll-free child abuse and neglect hotline. Such reporting is required of more individuals in Virginia than in Maryland, and is easier to do. Also, unlike Maryland, any person who fails to report may be fined between $100 and $1000.

Similarly, under VA Code Ann. § 63.2-1606, any health care provider, mental health services provider, guardian, emergency medical services personnel, and any law enforcement officer must report in their professional capacity any information received regarding abuse, neglect, or exploitation. Similar to Maryland, failure to report may result in a consequence, such as a nominal fine of not more than $500 for the first offense and between $100 and $1000 for all subsequent offenses.

Virginia courts favor claims made by female inmates against male correctional officers. In Mitchell v. Rappahannock Regional Jail Authority, the Court ruled in favor of a female inmate’s Eighth Amendment claim, after she was sexually assaulted by a male correctional officer over ten times, including forced oral sex. The court also ruled in the female inmate’s favor in Carr v. Hazelwood and Heckenlabible v. Virginia, where a male correctional officer inserted his fingers into the female inmate’s vagina and forced a female inmate to perform oral sex on him.

Lastly, let’s look at Washington DC. Unfortunately, the Bureau of Justice Statistics did not record any responses from jails, state prisons, or federal prisons within its borders in 2012.

Even without statistics, Washington D.C. has laws addressing prison rape. Under DC Code § 4-1321.02, every law enforcement officer, child and family services agency employee, agent, or contractor, physical, psychologist, medical examiner, dentist, chiropractor, registered nurse, humane officer, school official, teacher, athletic coach, public housing resident manager, social service worker, day care worker, human traffic counselor, must report any knowledge or reasonable belief that a juvenile known to him or her is in immediate danger of being mentally or physically abused or neglected. Similarly, under DC Code § 7-1903, police officers, advocates, guardians, and healthcare providers must report any instance where they have substantial cause to believe an adult is in need of protective services because of abuse, neglect, or exploitation.

And DC courts? Well they’ve been more partial to inmates than correctional staff. In 1994, 1995, 2000, and 2009, the court found Eighth Amendment violations where a male correctional officer repeatedly sexually abused female inmates, where a male correctional officer touched a male inmate’s penis, and where a male inmate reported the sexual abuse he suffered from a male correctional officer. On the other hand, the DC Circuit ruled in favor of the agency when a female pre-trial detainee filed a claim under the Eighth Amendment rather than the Fourteenth Amendment.

All in all, the incidence and effects of prison rape in federal, state, and local institutions continue to be seen and felt nationally and within the DMV area. While the implementation of the Prison Rape Elimination Act of 2003 and other local laws in Maryland, Virginia, and Washington D.C. have brought attention to a serious problem, the occurrences are ongoing. Additional sensitivity to the plight of inmates, training for institution staff, and attention from the criminal justice community is required to completely eradicate the occurrence of prison rape.

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