Citation

Barlow CC, Klein AD. University of St. Thomas law journal 2023; 19(2): 255-275.

Copyright

(Copyright © 2023, University of St. Thomas School of Law)

DOI

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PMID

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Abstract

The Supreme Court has recognized that, "[b]eing violently assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.'" 1 Yet, prison rape has become so rampant in the U.S. prison system that it has garnered the attention of nearly every human rights organization and even the Department of Justice ("DOJ"). Prior to 2003, prison rape was poorly understood and rarely studied. Sexual assaults against prisoners were--and continue to be--shamefully and intolerably common in the United States. Annually, approximately four percent of adult inmates held in American prisons are victims of sexual assault. Vulnerable populations, including gay, lesbian, bisexual, transgender, and intersex inmates, are particularly at risk. 3 For example, transgender inmates experience rates of sexual assault while in confinement that are thirteen times greater than that of the general prison population. 4 For so long, little--if anything--was done to address these "day-to- day horrors" experienced by prisoners as it related to sexual assault in pris- ons.5 However, in 2003, Congress unanimously adopted the Prison Rape Elimination Act ("PREA"), a statute designed to detect, prevent, reduce, and punish prison rape within the United States. 6 The PREA tasked the DOJ with, inter alia, collecting and analyzing sexual assault statistics from local, state, and federal prisons. 7 The PREA further directed the Attorney General to adopt a "zero tolerance policy" for prison rape and to adopt final standards for its elimination. 8 While this was a seemingly major step for human rights in our society, the PREA has failed to address the humanita- rian crisis that is still ravaging the U.S. prison system. Given that the PREA itself does not provide any individual cause of action for injured prisoners, nor does it proscribe any specific course of conduct that every prison facility necessarily must follow, the statute on its own is insufficient to solve the problems it seeks to address.

Language: en