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What Does Rick Perry's Refusal To Adopt Prison Rape Elimination Act Mean for Texans Behind Bars?

Thursday, 10 April 2014 09:19 By Victoria Law, Truthout | News Analysis
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Governor Rick Perry speaking at the 2012 CPAC in Washington, DC.Governor Rick Perry speaking at the 2012 CPAC in Washington, DC. (Photo: Gage Skidmore)Governor Rick Perry has announced that Texas will not comply with the Prison Rape Elimination Act. Perry claims that reports of sexual abuse behind bars have decreased dramatically with Texas' Safe Prisons Program. Advocates and formerly incarcerated people, however, tell a different story.

At the end of March, Governor Rick Perry announced that the Texas Department of Criminal Justice will not comply with the Prison Rape Elimination Act.

The Prison Rape Elimination Act, or PREA, was signed into law by President George W. Bush in 2003, ostensibly to address the pervasive problem of sexual violence behind bars, and its rules finalized in 2012. PREA requires prisons that receive federal money to adopt a zero-tolerance policy toward sexual violence behind bars, meaning that prisons must impose disciplinary measures such as staff dismissals or serious punishment for prisoners. State governors are responsible for monitoring progress, providing periodic audits and making sure that their prison systems comply with the law. States that do not fully comply with PREA could lose 5 percent of Department of Justice grant funds for their prison systems.

Calling it a "counterproductive and unnecessarily cumbersome and [a] costly regulatory mess," Perry stated that Texas will not adopt PREA. Instead, he said, the state will continue to utilize its Safe Prisons Program, which began in 2001. Perry claims that through this program the number of reports of non-consensual sex in Texas prisons and juvenile detention facilities has decreased.

Has Sexual Abuse in Texas Prisons Decreased? Or Has Reporting Simply Decreased?

However, advocates and formerly incarcerated people disagree that the decrease in reports means that sexual abuse has decreased. Dawn Reiser, who spent eight years in Texas prisons, told Truthout that Perry's claims of decreased reports of sexual abuse are probably true, but this is because many women are reluctant to utilize what's known as the "snitch program."

Perry's claims of decreased reports of sexual abuse are probably true, but this is because many women are reluctant to utilize what's known as the "snitch program."

According to Reiser, when a person is accused of sexual harassment or assault, the person is provided a copy of the complaint and given a chance to respond. "Even though her name is taken off, the date it happened, her dorm and the details of the incident are on the grievance, so they [the person accused of sexual abuse] know who it is." She outlines two possible scenarios:

If the person accused is another prisoner, she said, the woman who complained is moved into protective custody (a form of solitary confinement) while prison staff investigate. "They ask twenty people [in the dorm] 'What happened between Person X and Person Y?' But eventually, you get out of protective custody and, no matter where you end up, it's very easy for someone to get ahold of you. If the investigation doesn't prove the charge, you and the other person can end up on the same unit." She also points out that prison networks make it possible for friends to retaliate on behalf of the accused and that, in women's prisons, the retaliation may not necessarily be physical. "You can make someone's life miserable without even touching them. If you work on the chow unit, you can not put food on the woman's tray or not put a lot of food on the tray. If you work in the laundry, you can send her clothes back all jacked up."

However, Reiser emphasized several times that sexual assault between women was fairly rare. "It's mostly manipulation," she explained. "The same way a person on the outside can get a woman to give sex by making them feel secure and loved, the same thing happens in prison. We women have been doing it all our lives. A woman will give sex to feel loved - out there or in there."

"When one official was mad at me, I suddenly could not squat low enough or cough deep enough to please her. I had to do it over and over again - all naked of course."

If the person accused is a staff member, she said, the woman who complained is placed in protective custody where she is subjected to retaliation by other staff. "The officers on duty can choose whether or not to bring you supplies, exactly how nicely your food will be handed to you, when and if you get your mail, and on and on," she stated. "Your cell will be shaken down thoroughly and often. You may be singled out more frequently for pat searches and strip searches. When you are patted or stripped, you are going to receive harsher treatment. When one official was mad at me, I suddenly could not squat low enough or cough deep enough to please her. I had to do it over and over again - all naked of course."

Reverend Jason Lydon works with Black and Pink, a support organization for incarcerated LGBTQ people. LGBTQ people are particularly vulnerable to sexual abuse by both staff and other prisoners. According to Lydon, Black and Pink has received numerous letters from people in Texas prisons who have reported being sexually assaulted to the PREA ombudsman. Although Perry has refused to adopt PREA standards, the Texas Board of Criminal Justice appointed the PREA ombudsman in 2007 as an independent office to investigate all reports of sexual assaults behind bars. "But the letters we're getting, which include copies of their reports, say that nothing happened [after they reported the assault]," noted Lydon.

Jesse Lerner-Kinglake is the senior communications officer at Just Detention International, an organization working to end sexual abuse in detention. He told Truthout that one-fifth of the letters the group receives is from Texas. "We hear from more people in Texas than from any other state," he noted. "We know from a lot of people that Safe Prisons has done nothing for them." He quotes one letter from a Texas prison: "The officers do nothing and even laugh at you. This adds to the emotional anguish." Another person incarcerated in Texas described Texas' policy as the "you're queer, you deserve it" policy.

Government agencies, including the Texas Department of Criminal Justice, also dispute Perry's claims that sexual violence has been reduced. A 2012 report about the Safe Prisons Program acknowledged that 24 Texas correctional facilities had an increase of sexual assault reports that year. While the Safe Prisons report did not separate assaults committed by other prisoners from assaults committed by staff, a 2013 report by the US Department of Justice's Bureau of Justice Statistics found that Texas detention facilities have the highest percentage of people reporting staff sexual victimization of all states.

What About Sexual Abuse by Staff?

Prison staff have used sexual violence as a tool for control and punishment.

While Perry claims that prisoner-on-prisoner sexual abuse has decreased, he ignores the fact that, in both men's and women's prisons, people are more likely to experience sexual abuse from prison staff than from other prisoners. The adoption of PREA (or, in Texas' case, the Safe Prisons Program) has not reduced sexual abuse by staff members. Both Black and Pink and Just Detention International have received numerous letters from incarcerated people describing sexual assaults and other abuse by staff members. In many cases, those reporting abuse have been subject to retaliation, including being placed in solitary confinement, receiving disciplinary tickets and being transferred to prisons further from their families.

In addition, prison staff have used sexual violence as a tool for control and punishment: "Prison staff intentionally place people in cells with people they know are sexually violent or have long histories of sexually assaulting other prisoners," Lydon told Truthout. "They do this to people they don't like or people who talk back or challenge them in any way."

The process of being strip searched itself is sexually violent.

Staff sexual abuse is not always overtly violent. Lydon recalls several instances in which trans women have asked that female guards perform strip searches. "They'll be told, 'Sure, but we don't have a woman available for 45 minutes,' which means that the person can't go to their visit or their program or to work. So they acquiesce to being searched by a male guard." In addition, Black and Pink has heard numerous reports of people being sexually assaulted during strip searches. "But the process of being strip searched itself is sexually violent," he pointed out.

Even pat searches (searches in which staff pat prisoners down through their clothes) can be sexually abusive. In a letter to Just Detention International, Beverly describes pat searches by a particular female officer:"The officer squeezed my breast with gripping force, then proceeded to my private area between my thighs and cupped and gripped my vagina for at least 2-3 seconds. She squeezed my butt cheeks before ending the pat search." After repeatedly reporting the officer, Beverly was transferred to a maximum-security prison further from her family.

Both PREA and individual state policies recognize that consent cannot truly exist in a coercive environment like a prison where staff wield tremendous power over every aspect of a person's life. In practice, however, prisoners are often punished for sexual contact with staff. At the women's prison in Gatesville, Texas, for example, the sergeant in charge of the Safe Prisons Program was caught having sex with a prisoner. "He was escorted off the unit in cuffs, but he's still employed by TDCJ. He now works at a male unit," Reiser recalled. "She [the prisoner] was placed in Ad Seg [Administrative Segregation, a form of solitary confinement not considered as punishment] at a particularly tough unit." The prison's Safe Prisons Program, which utilized prisoners as peer educators to educate on sexual assault, bullying, manipulation and coercion, was put on hold after the sergeant's arrest.

While PREA Is Not in Effect in Texas, Staff Issue PREA Violations for Physical Contact

Although Texas has not adopted PREA, both Reiser and Lydon note that prison staff  have frequently penalized people for acts of physical contact, stating that they were violating PREA. Reiser remembers one instance in which two women on her unit learned they were being paroled within a week. "Excited, they hugged each other," she recalled. "The sergeant yelled at them. She asked them if they wanted sexual misconduct cases and were they willing to cancel their parole."

While that particular sergeant did not carry through with her threat, others in Texas prisons have not been as fortunate. "We've received letters from people who have been charged with PREA violations for consensual handholding or consensual hugging," Lydon stated. "They're placed in solitary confinement for thirty to sixty days over something as normal as consensual handholding or hugging."

Even if Texas had adopted the Prison Rape Elimination Act, Lerner-Kinglake points out that PREA has very specific definitions of sexual abuse. To be considered sexual abuse, the contact must be non-consensual, coerced by overt or implied threats of violence, or the person must be unable to consent or refuse. PREA's definition of sexual abuse does not include consensual physical contact, such as handholding or hugging, or even consensual sex between two prisoners. (Recognizing the power imbalance between staff and the people that they guard, PREA considers all sexual contact between staff member and prisoner to be sexual abuse.) However, while PREA does not prohibit consensual contact, many state prison policies do.

PREA definitions of staff sexual abuse also include voyeurism, such as "peering at an inmate who is using a toilet in his or her cell to perform bodily functions." Although Texas has not adopted PREA, prison staff  have made women responsible for preventing male staff from watching them.

Reiser explained that many prisons have a staffed area half a level above the dorms called the picket. There, officers watch the goings-on in the dorm. "Male officers will get all over your butt if you change standing up if they're on the picket," she explained. "They'll tell you to change on the floor or in the bathroom." In some cases, staff  have charged women with attempting to entice an officer. In addition, women must be clothed at all times, even while sleeping. "You can't just sleep in your bra and panties, no matter how hot it gets. You have to be in at least shorts and t-shirts."

So What Now?

While advocates and formerly incarcerated people may disagree on the best course of action, all agree that the level of sexual abuse behind bars must be stopped.

For Just Detention International, PREA sets standards that all jails and prisons should follow regarding preventing and addressing sexual abuse.

While advocates and formerly incarcerated people may disagree on the best course of action, all agree that the level of sexual abuse behind bars must be stopped.

Kinglake-Lerner points out that, contrary to Governor Perry's claims that PREA standards "appear to have been created in a vacuum with little regard for input from those who daily operate prisons and jails," Brad Livingston, Perry's own executive director of the Texas Department of Criminal Justice, sent a letter to the Department of Justice following the 2010 public comment period. In his letter, Livingston stated, "This agency had relatively few issues relating to the recommendations offered by the Prison Rape Elimination Act (PREA) commission because most of the recommendations were similar to agency policy." While Kinglake-Lerner acknowledges that PREA may not be perfect, the standards should be adopted by all prison systems to prevent and address sexual abuse.

Reiser agrees with Governor Perry's assertion that Texas would be unable to afford higher staffing ratios at current levels of incarceration, but also points out that Texas could also reduce prison populations to meet those ratios.

Reiser notes that Texas prisons, which held 152,302 people in 2012, are frequently overcrowded and understaffed. She agrees with Governor Perry's assertion that Texas would be unable to afford higher staffing ratios at current levels of incarceration, but also points out that Texas could also reduce prison populations to meet those ratios. "Drug treatment would definitely reduce the prison population," she said. She also noted that many of the women she served time with could have been granted probation rather than lengthy prison sentences. "Texas has one of the strictest probation programs," she explained. "The time I did on probation was much tougher than the time I did inside the prisons."

"We need to challenge the idea that we can end sexual violence in prisons without ending the framework that encourages this violence."

Lydon roots the sexual violence in prisons as part of the inherent framework of prisons. "Prisons are sexually violent spaces," he stated. "We need to challenge the idea that we can end sexual violence in prisons without ending the framework that encourages this violence. With the idea of prison rape elimination, the elimination is starting in the wrong place." He points out that, in Massachusetts, rape crisis centers work with survivors of sexual abuse in county jails. "Is Texas opening the door for rape crisis people to come in and work with their survivors?" he asked. Stressing that prisons themselves are sites of sexual violence and that staff often perpetrate or ignore sexual assaults, he notes, "It's important to have someone not affiliated with the prison come in and provide therapeutic care for survivors of sexual violence."

But ultimately, Lydon pairs ending sexual violence behind bars with abolishing prisons. "We should be working to get people out of prison," he stated. "When there's overcrowding, there's an increase in sexual violence. Working on efforts to decarcerate people is working on ending sexual violence."

Copyright, Truthout. May not be reprinted without permission.

Victoria Law

Victoria Law is a writer, photographer and mother. She is the author of "Resistance Behind Bars: The Struggles of Incarcerated Women" (PM Press 2009), the editor of the zine Tenacious: Art and Writings from Women in Prison and a co-founder of Books Through Bars - NYC. She is currently working on transforming "Don't Leave Your Friends Behind," a zine series on how radical movements can support the families in their midst, into a book.


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