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«ABSTRACT THE SOCIAL INJUSTICE OF PRISON RAPE: A HISTORICAL ANALYSIS By Francy Lynn Jenko August 2010 The purpose of this review is to gain a better ...»

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The Anti Drug Abuse Act, Three Strikes Law, and Truth in Sentencing Legislation The Anti Drug Abuse Act of 1986 is one piece of legislation that increases the over-capacitated state, federal, and local facilities (Mauer & King, 2007). This law requires mandatory minimum sentencing for the possession or sale of 5 grams of crack cocaine. This legislation highly promotes institutional racism and contributes to the overcrowding of detention facilities, as well as the over-representation of the African American population in the prison system (Mauer & King, 2007). In addition to the Anti Drug Abuse Act of 1986, the Three Strikes Law and the Truth in Sentencing legislation carry mandatory sentencing. Such laws minimize the leeway of the sentencing judge and impose longer sentencing affecting minority groups at a disproportionate rate, as many impoverished individuals have a prior criminal history (Mauer, 2004).

Women and children are also affected significantly by the war on drugs. Mumola (2000) reported that more women are in prison on drug charges than are men, with 29% of female inmates confined due to drug offenses compared to 19% of male inmates.

Moreover, two-thirds of these women have children under the age 18. These women have often been victimized prior to incarceration, and many have histories of mental health problems (Mauer & King, 2007).

Mauer and King (2007) found that African American communities are extensively affected as a result of drug law enforcement concentrating on inner cities. Further, they indicated that there are unjust sentencing disparities based specifically on race and social class. This emphasis on punishment and sentencing directly leads to overcrowded detention facilities where rape can flourish. Further, many individuals sentenced to prison on drug charges are non-violent offenders and are at an increased risk for sexual violence while incarcerated (Bowker, 1980; Dumond, 2000; English & Heil, 2005;

Mariner, 2001).

Moreover, Mauer and King (2007) reported that an estimated 500,000 individuals are presently serving sentences in detention for drug offenses, compared to only 41,100 in 1980, prior to the war on drugs. In addition, King and Mauer (2002) reported that nearly 58% of drug offenders in state facilities have no history of violence or high-level drug sales. Furthermore, Mauer (2004) indicated that the race and class dynamics of criminal justice policies are apparent when examining the nation's approach to drug abuse. Since drug policies have typically targeted oppressed populations, there are vast racial disparities in the current state of confinement. Although drug use crosses all race and class lines (Mauer, 2004), it is addressed dependent on resources, power, politics, and status. According to Mauer (2004), over the last twenty years federal policies have focused almost solely on policing and prison and little on prevention and treatment.

Prison Litigation Reform Act (PLRA) According to Golden (2006), the Prison Litigation Reform Act (PLRA) is legislation that can and does create a barrier for prison rape survivors when bringing lawsuits against their perpetrators. In order to receive monetary compensation, the PLRA requires every plaintiff to demonstrate that he or she suffered a physical injury while in prison (Golden, 2006). Unless inmates can show previous physical harm they cannot be compensated for emotional injuries (PLRA, 1995).

Due to the dynamics at play in the occurrence of prison rape, it is alarming that many inmates will not be permitted to seek re-dress following abuse. As indicated, rape in prison is often coerced and does not always leave visible physical injuries. Therefore, it can be determined that this unclear ruling may be misinterpreted when pertaining to victims of sexual abuse in detention settings. The PLRA does not effectively protect inmates suffering from sexual abuse and should be modified to include all inmates who are raped during incarceration (Golden, 2006). Further, rape should be viewed differently, as rape is an extreme physical crime against a person, harmful in nature, irrespective of whether the victim is beaten or bleeding.

Roles of Agencies Working Toward Change In 1972, the American Civil Liberties Union (ACLU) started the ACLU National Prison Project, which highlighted the problem of prison rape and worked toward legislation aimed at the social injustice of prison rape (Melby, 2006). The National Prison Project is committed to combating over-incarceration, humanizing prison conditions, improving prisoner medical care, and upholding the rights of inmates in all detention facilities.

In 1980, Dan Smith, a prison rape survivor, founded Stop Prison Rape (SPR), a nonprofit group known now as Just Detention International (JDI). Stephen Donaldson, also a prison rape survivor incorporated JDI in 1994. Donaldson held a fundamental position in this organization as their President from 1988 and contributed meaningfully to the literature on prison rape as well. Donaldson was gang raped over 60 times in two days when he was in jail on charges of trespassing on White House property during a peace protest in 1973. He acquired AIDS as a result of being raped in jail and died in

1996. Don Collins and Tom Cahill, both prison rape survivors as well, also acted as JDI presidents.

Just Detention International focuses on ending prison rape (NPREC, 2009). The three goals of this group are to ensure government accountability for prison rape, to transform ill-informed public attitudes regarding rape in confinement, and to promote access to resources for survivors of such violence (NPREC, 2009). Furthermore, JDI proposes that sexual violence in confinement is unjust and contradictory to society's most fundamental values. They further state that it destroys the lives of countless individuals and harms society by spreading violence and disease. Additional organizations, including Amnesty International, the Salvation Army, the Christian Coalition, the American Probation and Parole Association, the Soros Foundation, Prison Fellowship Ministries, and Physicians for Human Rights also endorse PREA (Goldberg & Gaes, 2004).

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Growing awareness over the past 80 years has led to a policy response to the social injustice of rape in prison. On September 4, 2003, President George W. Bush signed the PREA into law after it passed unanimously in both houses of Congress.

According to PREA (2003), the national standards addressing the incidence of prison rape will apply to all public and private institutions that house adult or juvenile offenders.

All detention facilities are mandated to abide by this law. This most recent and influential legislation affecting the sexual abuse of inmates is the strongest legislative response to prison rape and the first significant federal law to address the issue of sexual abuse in detention settings.

Through PREA, $5,000,000 per year from 2004 through 2010 was authorized to abate prison rape (PREA, 2003). Grants were made available for personnel, training, technical assistance, data collection, and equipment to prevent and prosecute rape in prison (PREA, 2003). A National Prison Rape Elimination Commission (NPREC) was developed to study the impacts of prison rape and propose national standards based on their findings.

Purposes of PREA According to PREA (2003), its main objectives are to provide for the analysis of the incidence and effects of prison rape in federal, state, and local institutions. Gaes and Goldberg (2004) suggested that PREA is responsible to provide information, resources, recommendations, and funding to protect individuals from prison rape. According to PREA, there are three major provisions: developing standards for the detection, prevention, reduction, and punishment of prison rape; the collection and dissemination of information on the incidence of prison rape; and the awarding of grant funds to help state and local governments implement the act.

Under PREA (2003), the prevention of prison rape is to be a top priority in all prison systems and a zero tolerance approach to its occurrence is expected. All federal and state prisons and jails, community corrections institutions, public and private facilities, military institutions, holding facilities, and Indian reservation prisons are included under PREA and shall be held accountable to the standards proposed (Jenness et al., 2007). Furthermore, prison officials will be held more accountable to protect inmates from rape. Grant programs will be implemented to reduce the occurrences of rape in detention facilities and to minimize the negative consequences that result following such violence.

The purpose of PRE A was to require detention facilities to implement programs designed to minimize prison rape and minimize the damages caused both inside prison and in the community, which are the result of its occurrence. As a consequence of PREA detention facilities will be required to develop a comprehensive strategy to address the problem of sexual assault in their facilities (Mair et al., 2003). Additionally, an increase in the available data and information on the incidence of prison rape and improved administration of correctional facilities are intended consequences of PREA (Jenness et al., 2007).

Findings of PREA According to PREA (2003), 200,000 inmates now incarcerated have been or will be the victim of sexual assault in confinement, and it is likely that the number of inmates over the past 20 years who survived rape during incarceration exceeds 1,000,000. An estimated 16% of inmates in state prisons and jails and 7% of federal inmates suffer from mental illness. Young, first-time offenders are at a high risk for victimization and juveniles are five times more likely to be assaulted in adult facilities within the first 48 hours. Although the estimated prevalence of rape in detention facilities is alarming, Congress reported that there is insufficient research and data conducted and reported on regarding the incidence of prison rape, which is already an under-reported crime (PREA, 2003). Hence, the occurrence of sexual violence in these facilities is an enormous calamity.

In addition, PREA (2003) indicates that the majority of prison staff lack training in preventing and responding to rape. Inmate victims often receive inadequate care or no care at all following rape. Grant programs aimed at minimizing or treating mental health disorders, crime, and diseases are undermined by the high prevalence of prison rape.

Further, treatment expenses both inside prison and in the community are increased when dealing with the side effects of prison rape. Treating depression, PTSD, and AIDS are examples of the numerous consequences of prison rape. In addition, the increased risk of recidivism by survivors also entails an expense to society (PREA, 2003).

The findings of PREA (2003) also suggest that prison rape not only undermines grant programs, but also destabilizes public health by contributing to the spread of sexually transmitted diseases. Prison rape adds to violence among inmates and violence aimed at staff, as well as an increased likelihood for riots and insurrections. Additionally, rape survivors suffer physical and psychological effects that encumber their ability to effectively integrate into the community following incarceration, and they are therefore more likely to suffer further social inequities. Moreover, prison rape endangers the public not only through the spread of diseases but also by contributing to the likelihood that victims will commit future crimes. Lastly, the sexual abuse epidemic in detention facilities violates the U.S. Constitution (SPR, 2006).

Following PREA As a result of this legislation, researchers have begun to collect accurate and valid incidence reports on sexual violence in detention settings nationwide. With improved research, correctional practices and management to minimize the prevalence of prison sexual violence can be enhanced (Dumond, 2000). Due to the lack of evidence-based research on the topic of prison rape, numerous academic studies regarding prevalence and epidemiology had to be conducted as required by PREA (Dumond, 2003; English & Heil, 2005). During the six years following the enactment of PREA, researchers completed surveys and studies in detention facilities throughout the United States to determine how to most effectively combat the problem of rape in detention facilities (NPREC, 2009).

Following the passing of the PREA, the NPREC was given the responsibility to research the incidence of sexual abuse in detention facilities across America and to develop national standards designed to tackle prison rape (NPREC, 2009). The purpose of such standards was to ensure that proper protocols to thwart and respond to prison rape became consistently practiced. The standards were released on June 23, 2009. In addition, the Department of Justice's Review Panel on Prison Rape will review the best and worst performing correction facilities on an annual basis (NPREC, 2009). This is expected to help pinpoint factors shared by facilities that are contributing to prison rape as well as factors that play a role in minimizing its occurrence (NPREC, 2009).

The Bureau of Justice Statistics (BJS) is responsible for collecting, reviewing, and analyzing prevalence rates of sexual violence in custody (PREA, 2003). Grants for training, personnel, technical assistance, data, and equipment are available through the Bureau of Justice Assistance and the Attorney General to all states (PREA, 2003). Grants for research on prison rape and its effects are available through the National Institute of Justice (NIJ). The objective is that evidence-based research will determine the best practices for prevention and response efforts in fighting the epidemic of prison rape.

In June 2009, the NPREC suggested standards based on their examination of the academic findings from these national studies. The Attorney General is expected to evaluate the proposed standards to conclude which will compose the final regulations that will be legally required of all detention facilities throughout America by June of 2010.

After this time, facilities that do not implement the national standards to address prison rape will risk losing up to 5% of their federal funding (Golden, 2008; PREA, 2003).

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