According to the Bureau of Justice Statistics nearly 1 in 10 prisoners are victims of sexual assault, but experts say that number may not be accurate.
“We’re terrified about the percentage of abuse that goes unreported. You can just imagine how hard it is for some of these folks to report abuse,” said Chris Daley, deputy executive director of Just Detention International. Daley discussed the issue during an American Bar Association Criminal Justice Section webinar, “The New Prison Rape Elimination Act Regulations: What Lawyers Need to Know.”
With the implementation of the Prison Rape Elimination Act, the panelists agreed that criminal defense attorneys, as one of the few outsiders who regularly visit jails and speak to inmates confidentially, play a critical role in aiding in its enforcement.
“If criminal defense attorneys are aware of PREA requirements, they can help advocate on behalf of their clients,” said Giovanna Shay, professor at Western New England University School of Law. “If a facility tries to reject a grievance you are trying to file on behalf of a client, you can remind them of that federal regulation.”
Prior to PREA, many facilities prohibited attorneys from filing grievances on behalf of clients, but now they must accept notices of sexual abuse from third parties, including outside agencies and nonprofits.
“In the past, almost all sexual abuse was reported through the grievance process — the same way you would report not having clean clothes, missing a meal or problems with medical care,” Shay said. “It involves having to report to a staff member, often in a public way. Now there is a requirement that folks be able to report (from) outside of the facility.”
Criminal defense attorneys’ role in enforcement of PREA is particularly critical in local jurisdictions because they do not receive federal funding and have less incentive to comply with the regulations. States, on the other hand, can lose 5 percent of their funding from the federal government if they don’t comply.
“While there is no question that some correctional facilities will implement these regulations — and some are well on their way to doing so — if history is any measure, some are going to lag far, far behind and need a little outside encouragement,” said Amy Fettig, senior staff counsel of the ACLU’s National Prison Project.
The law also seeks to eliminate prison rape by identifying vulnerable inmates and potential predators, improving each facility’s response to assault, training staff employees, increasing data collection, and providing mental health services for victims and their abusers.
Criminal defense attorneys should be aware that PREA requires correctional facilities and staff to take precautions to protect youth in adult prisons.
Facilities also must ensure that persons who are disabled or experience language access issues understand their rights and know how to report abuse.
“It is really, really important that they have the right interpretation or translation services so that they are not relying on another inmate to explain what happened to them,” said Daley.
For lesbian, gay, bisexual, transgender, intersexed and gender non-conforming inmates, the regulations are regarded as some of the most robust in the nation.
“These are really ground breaking,” Daley said. “These are some of the first and strongest regulations particularly for transgendered, intersexed and gender non-conforming folks in the U.S.”
In order to protect intersex, transgendered and gender non-conforming against being searched by officers out of mere curiosity, lawyers should keep in mind that PREA explicitly outlines that a search must be done for appropriate purposes only, said Daley.
“The searches’ provision is one of the first responses to making sure that she’s treated with dignity and respect,” Daley said.
Lawyers can aid the enforcement of these rules by proactively raising concerns for their clients, whether the issues refer to finding proper housing or identifying a vulnerable inmate.