Female Inmates, Too: Will They Benefit from the #MeToo Movement from Behind Bars?
In January 2018, a guilty verdict was reached against a former prison guard from the Metropolitan Detention Center in New York. He was charged with raping an inmate at least four times between December 2015 and April 2016, and now faces a life sentence in prison. He was not alone; two other guards he worked with were similarly charged. The sentencing aligns with the highly publicized #MeToo movement, which thus far has been popularized by high-status figures. However, more marginalized communities, including inmates, have been generally left out of the conversation. So while the verdict against the guards sheds light on the problem of sexual assault in prison, will it be successful in fixing the epidemic? And can inmates rely on the successes of the #MeToo movement to shed light on sexual assault of prisoners?1
Understanding prison rape requires at least an acknowledgement of the Prison Rape Elimination Act (“PREA” or the “Act”). PREA exists to deter the sexual assault of prisoners. However, PREA has had a low success rate since it was enacted in 2003. See De'Lonta v. Clarke, No. 7:11-cv-00483, 2013 U.S. Dist. LEXIS 5354 (W.D. Va. Jan. 14, 2013); Law v. Whitson, No. 2:08-cv-0291-SPK, 2009 U.S. Dist. LEXIS 122791 (E.D. Cal. Dec. 14, 2009); Barnes v. Ozmint, No. 3:04-21836-CMC-JRM, 2005 U.S. Dist. LEXIS 38173 (D.S.C. Nov. 7, 2005). States can choose whether to comply with PREA. In fact, it was not until 2015 that all fifty states officially committed to PREA compliance. The Act requires that detention facilities train staff on prevention, educate incarcerated people about their rights, and provide them with multiple channels for reporting abuse. Facilities must scan new inmates for prior sexual trauma and provide counseling services. But compliance with these requirements has been mediocre at best.
Because facilities tend not to comply with PREA, women who enter the prison system cannot rely on PREA for protection. Many women who enter prison are already survivors of abuse. In Illinois prisons, ninety-eight percent of women are survivors of physical abuse while seventy-five percent of women are survivors of sexual abuse. In the overall prison system, eighty-six percent of women have experienced sexual abuse, particularly during their childhoods. Senator Cory Booker (D-N.J.) calls this direct path toward incarceration the “survivor-of-sexual-trauma-to-prison pipeline” because women with histories of abuse are seventy-seven percent more likely to be arrested than women who did not suffer abuse.
The #MeToo movement is an important issue for female prisoners because the women’s prison population, while only seven percent of the national prison population, has grown by 700 percent between 1980 and 2014. And even though they represent such a small minority of all inmates, they account for thirty-three percent of all staff-on-inmate victims. In local jails, women represent thirteen percent of inmate-on-inmate and sixty-seven percent of all staff-on-inmate victims. An estimated 200,000 inmates in total face sexual abuse each year.
Female inmates are thirty times more likely to become a victim of sexual assault in prison compared to on the outside. However, the process to file a complaint is lengthy, and once the inmates do file the complaint against a staff member or guard, their mail may go missing, their cells are more likely to be searched, and they may have to wait hours when their visitors come. Thus, women in prison are less likely to speak out.
In addition to the consequences the women face, it is also highly unlikely that the attackers will suffer consequences. One study points to sexual assault at Rikers Island. In 2015, more than 100 incidents of sexual assault and rape were reported, which is still high considering that sexual assault is vastly underreported in prison. Two of over 100 cases were passed on to the New York Police Department for criminal sanctions. Zero officers were fired. This is similar to the national statistics where, of forty-six percent of staff referred for prosecution, twenty-seven percent are arrested and only one percent are convicted. In Kentucky, one woman was sexually assaulted by a guard over the course of several weeks. When she was transferred to a new facility, a different guard abused her repeatedly. She reported both men and neither faced charges. The same article reports that, even in cases where abuse by guards was substantiated, nearly half of them faced no legal action and fifteen percent were allowed to keep their jobs. Guards are often allowed to transfer or resign before being prosecuted, so they can go to other correctional facilities and continue preying on inmates in those prisons. This is reflected in Texas, where seventy-one percent of staff who were found to have had sexual contact with inmates between 2005 and 2015 resigned before the investigation was completed and eight percent were allowed to resign post-investigation.
This allows for some staff and guards to continue victimizing inmates. Sixty percent of all sexual violence against inmates is perpetrated by staff and more than fifty percent of sexual contact is nonconsensual. All sexual contact between inmates and staff members is illegal.2 Prison staff have access to inmates’ cells and have more means to threaten and manipulate inmates. Inmates cannot hide. Their abusers can isolate them in different areas of the prison. When an inmate says no, a guard can write her up for misconduct, take away her phone and visitation privileges, or put her in solitary confinement. Some guards increase sentences for refusing sexual advances. Other guards would threaten force on inmates' families outside the prison. In one woman’s case, a nurse who sexually assaulted her over a six month period would write her up if she did not come for appointments. This meant that she would be placed in solitary confinement for skipping appointments with her abuser. The same woman was sexually assaulted by a guard who would not let her visit with her family until they had sex. When she reported them to her psychologist, the prison launched an investigation and locked her in a room without food, water, or bathroom privileges for several hours. Prison officials tried to force her to admit that it was consensual. Since victims are further punished for reporting, many inmates are silent.
Add this to the fact that a large portion of the population does not believe inmates’ stories of sexual violence or believe the inmates deserve the violence.
Fortunately, there are solutions to end prison rape. First, those of us who are outside of the prison system need to stop saying that inmates deserve to be raped and we need to end our culture of sexual violence and normalization of abuse in prison. We cannot denigrate their stories just because they are incarcerated. We also need to figure out how to bring incarcerated women into the #MeToo conversation; they do not have access to Twitter or Facebook, which alienates them and their experiences.
Hopefully the #MeToo movement will help us recognize some of the most at-risk women in our population so we can support survivors rather than criminalize them. If we can help them, then we can send less people to prison who will be at risk of sexual abuse in their facilities.
Additionally, prisons need to actually enforce PREA. This means that facilities need to provide more training, provide more counselors who will support inmates, set up ways for inmates to report, give them access to rape crisis services, teach staff to respect prisoners and sanction those who do not with more than low-level misdemeanors.
In terms of actual prosecution, the Prison Litigation Reform Act (PLRA) makes it nearly impossible for prisoners to file criminal charges. With the PLRA in place, inmates need to go through every administrative option before filing a complaint, and prisoners cannot file charges a fourth time if their charges were already rejected three times.
Professor Brenda V. Smith3 offers many other options for fixing the problem of prison rape. These include: training prosecutors and making teams of investigators, law enforcement, correctional staff, and victim advocates to help prosecutors; amending federal and state criminal law so that offenses are not limited to misdemeanors; and providing prosecutors with more resources, like funding and manpower.
Will the #MeToo movement have any impact on the sexual abuse of female inmates? Probably not. At least not yet. The #MeToo movement has already been relatively limited, and we are not at a point yet to shift the conversation to women who have limited access and movement. The movement is hardly applicable to women who are routinely taken advantage of by their superiors and who are not being helped by the law. However, maybe jurors and judges will be more likely to believe the inmates who are able to seek criminal sanctions, and maybe the cases will be prosecuted more. But this will be long after the hype of the movement has subsided.
1 For the purposes of this blog post, I will limit my focus to sexual assault of cis female prisoners, without focus on race and sexual orientation. This is not meant to diminish the issues facing inmates who are people of color or who identify as LGBT.
2 Prison officials with supervisory roles over inmates can be fined or imprisoned if they engage in a sexual act with an inmate, regardless of consent. 18 U.S.C. § 2243(b) (2012). The Rape, Abuse, & Incest National Network also provides legal definitions of consent for each state.
3 Professor Smith is a professor at the Washington College of Law and the Project Director for the United States Department of Justice, National Institute of Corrections Cooperative Agreement on Addressing Prison Rape. In November 2003, Professor Smith was also appointed to the National Prison Rape Elimination Commission.