A jury recently convicted a former warden of a women’s prison in Dublin, California — also called the “rape club” because of its reputation for sexual violence — of eight charges, including sex with incarcerated victims and Involves abusive sexual contact.
,Who are you going to believe, James Reilly, Ray Garcia’s attorney, asked jurors during closing arguments, according to local news outlet KTVU. “(a) law enforcement officer with an impeccable record or convicted felon?”
And this is why it’s time to acknowledge that the Prison Rape Elimination Act – in effect for two decades – isn’t working: The system doesn’t treat victims’ accounts as credible.
Sexual abuse from prisons to prisons
Reporting of rampant sexual violence is hardly limited to California:
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In a Senate report released Tuesday, investigators found that in 19 of 29 facilities, federal employees sexually abused female inmates over the past decade. The investigation revealed documents that showed guards had confessed to having sex with inmates, but were never prosecuted.
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Former prisoners in Hawaii have sued the state for 53 rapes in three years.
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In Clark County, Indiana, a prison guard allegedly sold keys to a women’s facility to male inmates for $1,000.
On October 12, Inspector General Michael Horowitz wrote a memo to the newly appointed director of the Bureau of Prisons, Colette Peters, complaining about the bureau’s policy to “make administrative misconduct findings and take disciplinary action against BOP employees”. The statements of the prisoner are not to be relied upon. , unless there is evidence apart from the testimony of the prisoner which independently establishes the misconduct.
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Other evidence may include video of the abuse, conclusive forensic evidence or an admission of guilt. Apparently, when a prison inmate makes a complaint of sexual harm, their word doesn’t go down well.
Sexual misconduct triples behind bars
It is not clear how many people this happens to; We have lost our grip on the extent of the problem. National standards for preventing, detecting and responding to rape in prison came into force a decade ago, but it has been years since the first set of prison sexual assault data was released. That report shows that sexual misdemeanor convictions behind bars tripled from 2011 to 2015.
Statisticians say the increase in sexual misconduct in prison is the result of improved attitudes about reporting, and they may be right. During the pandemic, however, the Bureau of Justice Statistics stopped collecting data — on how many attacks were reported, how many were confirmed and how many remain unreported — but it is expected to resume next year.
We should keep an eye on the number of unconfirmed reports – meaning they have not been proven, but they are not unproven either – which is around 42% of allegations. We need to know whether the “credibility waiver” prevents these reports from being included in the certified category.
An unfair credibility test is actually baked into the Prison Rape Elimination Act. Every investigation is required to assess the credibility of the prisoner, even when there is other corroborating evidence.
Corroborating evidence is rare, and the Justice Department knew that when the standards were being drawn up. The Legal Aid Society warned the DOJ that prisoner testimony was rarely trusted. While this may leave only the inmate’s credibility to be considered and examined as a practical matter, those complaints may automatically be deemed unfounded.
The manual is clear that the complainant’s status as an inmate cannot be the sole determinant of credibility, but that is exactly what the Bureau of Prisons is doing. This is a violation of the law, as made clear in the Inspector General’s memo.
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The way a person’s credibility is assessed is also problematic. Investigators determine an inmate’s credibility with a short list of data points—facts that “rape shield laws” would prevent from appearing at trial if the person had not been incarcerated. Investigators are required by law to examine the claimant’s history of other allegations, history of vulnerability (English speaking proficiency, being transgender, etc.), history of other relevant reports such as complaints, recent disciplinary violations, and relationship with the suspect .
failed to monitor prisons
The failures of the Prison Rape Elimination Act have focused attention on auditors, hundreds of individuals trained and certified by the Department of Justice to review a facility’s practices. Many failed facilities were being certified as compliant.
A provision in corrections law that allows auditors to be de-certified if they do not match the conditions and practices within a prison. But it does nothing to address the problem that prisoners reporting sexual assault are not being believed because of an archaic and nonsensical credibility matrix that is part of the federal government’s rape eradication strategy.
A key testimony at Garcia’s trial was that a victim said the warden told her he knew how to avoid detection by surveillance cameras.
Video evidence can corroborate the inmate’s report. But camera coverage in federal prisons is spotty, as the text of the congressional bill acknowledges. The Prison Camera Reform Act, which passed the House on Wednesday and is now set for President Joe Biden to sign, requires him to submit a plan on how to expand and improve camera surveillance at these facilities within 90 days of enactment. Bureau of Prisons will be required for this.
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But this only applies to federal prisons, which house only 11% of inmates. Most incarcerated people will not have this protection, and they have no recourse because the Prison Rape Elimination Act does not mandate the installation of cameras. States need to follow Congress’s lead and expand camera coverage to all correctional facilities.
Shifting reliability cannot be achieved by fiat power. It will take more time. But what can be done now is to accept that the Prison Rape Elimination Act is not doing its job, and that we will need new and separate laws to check sexual violence in prisons.
Chandra Bozelko, a columnist, is a junior board member of the Women’s Prison Association, a 10 out of 10 award winner with the Canary Impact Fund, and author of “Up the River: An Anthology.” Follow him on Twitter: @ChandraBozelko
This is part of a series of USA TODAY opinion pieces about police accountability and building safer communities. The project began in 2021 by examining qualified immunity and continued in 2022 by examining various ways to improve law enforcement. The project is made possible in part by a grant from Stand Together, which does not provide editorial input.
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This article was originally published in USA TODAY: The Prison Rape Elimination Act is not working. now is the time to reform
