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Where Rape Goes Unnoticed

The Prison Rape Elimination Act is making its way into state prisons, but what about all those county jails?

On Monday, The Trentonian, the paper of record for New Jersey’s capital city, published the kind of item that is increasingly popping up in local newspapers around the country: a story about a sexual abuse lawsuit filed by an inmate against the county jail.

The allegations made against an officer at the Mercer County Correctional Center — that he bought oral sex from prisoners with meals from McDonald’s, tried to “mock, humiliate, confine and punish” those who rejected his advances, even throwing some of them in solitary confinement — are not unique. In recent months, lawsuits alleging that jail staff either committed rape or failed to prevent rapes by other inmates have appeared in Florida, Oklahoma, Illinois, and Texas. There are likely more that haven’t made the local news.

The Prison Rape Elimination Act (usually known as PREA) was passed unanimously by Congress in 2003 to stop scenarios like the one in New Jersey. It requires facilities to create “zero tolerance” policies for preventing sexual assault and investigating allegations. The law and its standards, which were issued by the Department of Justice in 2012 after years of research and compromise, immediately applied to federal facilities. State prison systems face a 5 percent reduction in federal grant money if they fail to develop their own PREA policies, though for now they can simply provide assurances that they’re working to comply. (There have also been efforts in Congress to remove even the 5 percent penalty.)

By May 2014, more than forty governors had said their state prisons were working towards compliance. New Jersey, along with New Hampshire, claimed to already be in compliance. (The extent to which New Jersey has actually worked to eradicate rape in its state prisons remains an open question, however; the state’s Dept. of Corrections claimed to have zero “substantiated” cases of sexual abuse in 2014.)

But these assurances only apply to prisons, which are run by a centralized agency in each state. The New Jersey lawsuit highlights a sticking point in the long, slow rollout of PREA; there are few carrots or sticks to encourage the thousands of county jails, which house more than 700,000 individuals each year under local control with little oversight, to comply with the national prison rape standards.

There are a few benefits; jails must comply with PREA if they want to obtain federal or state contracts to house prisoners from other areas, or if they want to be accredited by the American Correctional Association — which has an array of perks ranging from the tangible (cheaper liability insurance) to the intangible (a good reputation, which can help sheriffs in reelection efforts).

But the primary economic benefit of complying with PREA is simply that it provides a measure of defense against lawsuits, which could cost the jails — and the taxpayers in their counties — millions of dollars. In order to prove that a jail administration was liable for an assault, a plaintiff must show that the jail was “deliberately indifferent” to his or her well-being, and compliance with PREA would signal a good faith effort (in other words, the opposite of “indifference.”)

Each of the lawsuits springing up around the country is unique, and there are no comprehensive statistics on how many there are in total. Robert Kasabian, executive director of the American Jail Association, says these lawsuits appear to be rare and that for the most part, jails are working to comply with PREA. Sheriffs, he says, mostly just think it’s the right thing to do.

For every local news item about a sexual abuse lawsuit, there are also many reports of county sheriffs proudly announcing that the jails they operate are following PREA and developing new policies to protect inmates. “The audits are simply a good way for dedicated jail leaders — i.e., leaders who do not want sexual abuse to happen in their jails — to have an independent review done of their facilities,” says Jesse Lerner-Kinglake, Communications Director of Just Detention International, one of the main organizations advocating PREA before its passage in 2003.

In Texas, some sheriffs are proactive, asking the state legislature to raise the age of who counts as an adult from 17 to 18 since one of the hardest goals of PREA is the requirement that youth under 18 be separated from older inmates. (That issue also underlies a lawsuit currently underway against the Michigan Department of Corrections, which we chronicled in February).

Still, the process is piecemeal. Jails have to pay for their own audits, and there is no national, publicly available list of jails that have been audited1. A year ago, the North Carolina chapter of the American Civil Liberties Union wrote letters to more than 20 of the state’s hundred sheriffs, chastising them for failing to produce documentation that showed that they were doing anything at all to comply with PREA.

audited1The National PREA Resource Center, which contracts with the federal Bureau of Justice Assistance, is currently compiling a list of audited facilities.

When PREA passed in 2003, lawmakers and activists predicted that lawsuits like the current one in New Jersey would inevitably turn into an expensive and combative means of forcing some correctional facilities to address sexual assault. Asked whether there are adequate financial incentives for county jails to comply with PREA, Kasabian, the American Jail Association head, responded, “I’m not going to answer that. Whether or not there is a reward, everybody should be doing PREA.”