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Prisoner Sexual Assault Claims and the the Prison Rape Elimination Act
Introduction
Sexual assault within the prison system is a recurring and widespread issue which has
been handled very little, if at all. In 2003, Congress passed the Prison Rape Elimination Act
“PREA,”which created The National Prison Rape Elimination Commission “NPREC” to collect
data on sexual assault in prisons and to establish guidelines for assistance and improved
vigilance. A total of 63,817 inmates were surveyed, “Four-and-a-half percent of prisoners
surveyed reported experiencing sexual abuse one or more times during the 12 months preceding
the survey or over their term of incarceration if they had been confined in that facility for less
than 12 months. Extrapolated to the national prison population, an estimated 60,500 State and
Federal prisoners were sexually abused during that 12-month period” NPREC, Final Report, 19
(2009). Reported cases vary across facilities, with some having as low as 0 reported cases, but
others as high as 9.3 – 15.7%; with prisoners reporting abuse by staff 2.9% more than by other
inmates (Id.)
Claims of sexual harassment have been brought by inmates as cases challenging the
conditions of their confinement under 42 USC 1983. Claims have alleged violations of 8th
Amendment rights of the inmates; seeking relief and damages for the infliction of cruel and
unusual punishment during confinement, including “Duty to Protect” claims against prison
officials for negligently allowing assaults to take place (among other allegations) Wilson v.
Seiter, 501 U.S. 294, 297 (U.S. 1991). However, The Prison Litigation Reform Act, passed in
order to clear frivolous claims from the court dockets, has impeded prisoners’ ability to bring
claims of sexual assault to the courts by creating obstacles such as exhaustion of administrative

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remedies, three strikes provisions and requirements of physical evidence (ACLU, PLRA, 1-5,
http://www.aclu.org/images/asset_upload_file79_25805.pdf (2002).
In response to the large number of sexual assaults in prisons and the oftentimes
inefficient processes available to address the problem, the National Prison Rape Elimination
Commission has undergone the task of establishing guidelines for corrections facilities in order
to address the problem more efficiently administratively; through grievance processes, prison
employee training, and preventive measures such as more efficient inmate classifications
(NPREC, 1-26). In addition, the commission also seeks ways to assist inmates in overcoming the
requirements of the PLRA and having their cases remedied in the courts (Id.)
This paper will examine key court rulings under 48 USC 1983 claims and how they
developed over time, as well as obstacles created by the PLRA. It will then provide an overview
of the PREA and the findings as well as the goals and guidelines of the NPREC in order to
analyze its effectiveness in achieving its ultimate goal; a drastic decrease in sexual abuse in
prison, or at the very least, the creation of a more efficient process in which to approach and
remedy the problem.
42 U.S.C. 1983 Claims: 8th
Amendment Rights and the Duty to Protect
42 U.S.C. 1983 provides a right at law for action and redress against, “Every person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws…” 42 U.S.C. 1983 (2005). This statute gives
the federal court the power to remedy suits where rights have been invaded (Bivens, 403 U.S.
388). The Supreme Court held, in Monell v. Dept. of Social Services, that “Congress intended

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for local governing bodies to be included among persons to whom 42 U.S.C. 1983 applies” (436
U.S. 658).
Prisoners often bring sexual assault cases under 42 U.S.C. 1983, claiming violations of
their Eighth Amendment rights. These rights apply to the states through the Due Process Clause
of the Fourteenth Amendment, prohibiting the infliction of cruel and unusual punishments on
those convicted of crimes (wilson v. seiter, 501 u.s. 294). The Eighth Amendment applied to
deprivations and/or conditions of confinement within the prison (id at ). While the Constitution
does not “mandate comfortable prisons,” denial of the “minimal civilized measure of life’s
necessities and/or the unnecessary and wanton infliction of pain… form the basis of Eighth
Amendment violations” (id at). Claims must allege more than a lack of due care and errors in
good faith, “Eighth Amendment claims based on official conduct that does not purport to be the
penalty formally imposed for a crime (or conduct that does not purport to be punishment at all)
require inquiry into the state of mind…[ For this inquiry] it is appropriate to apply the ‘deliberate
indifference’ standard” (id at).
The deliberate indifference test has two prongs; the objective prong which involves the
prison official’s conduct and the subjective prong which takes into account the official’s state of
mind (id at). “First, the deprivation alleged must be, objectively, sufficiently serious. For a claim
based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm. The second requirement follows from the principle that
only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. To violate
the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable
state of mind. In prison-conditions cases, that state of mind is one of deliberate indifference to
inmate health or safety” Farmer v. Brennan, 511 U.S. 825, 834 (U.S. 1994). In order to be held

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liable, a prison official “must know of and disregard an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference” (Id, 837).
Examples of situations where courts have imposed liability upon prison officials for
violations of 8th
Amendment rights, brought under 42 U.S.C. 1983, range from inefficient fire
safety standards to the intermingling of inmates with contagious diseases (helling v. mckinney
509 u.s. 25). This paper, however, focuses on sexual assault. The U.S. Supreme Court has ruled
that, “[When the government] takes a person into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding duty to assume some responsibility for his
safety and general well being… The Eighth Amendment requires that inmates be furnished with
the basic human needs, one of which is reasonable safety. It is cruel and unusual punishment to
hold convicted criminals in unsafe conditions” (Id at). This rule of law clearly states that inmates
are entitled to safety and that, in holding them against their will and depriving them of their
ability to care for and protect themselves, the government must work to reasonably meet these
needs. Prevention and response to inmate assaults is not an option, it is a responsibility.
In Hutto v. Finney, the Supreme Court reviewed an order of the United States Court of
Appeals for the Eighth Circuit, which issued remedial orders on corrections officials after it
found that conditions in the Arkansas prisons constituted cruel and unusual punishment. 8th
Amendment claims against the Arkansas penal system in this case ranged from forcing inmates
into excessive labor of 10+ hours a day, 6 days a week ( Talley v. Stephens, supra, at 68) to harsh
punishments such as electric shocking for minor offenses (Jackson v. Bishop, supra, at 812).
In the Holt cases, an Arkansas prison had inmates sleeping in barracks of 100+ men. The
more dangerous inmates would wait for their “enemies” to sleep and stab or sexually assault

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them in their sleep, within an 18-month period, there were 16 stabbings and rape was such a
common occurrence that inmates refused to sleep in their beds (Holt I, supra, at 830-831, Holt II,
supra, at 377). The district court held that “..if the State of Arkansas chooses to confine
penitentiary inmates in barracks with other inmates, they ought at least to be able to fall asleep at
night without fear of having their throats cut before morning, and that the State has failed to
discharge a constitutional duty in failing to take steps to enable them to do so” (id at). This
opinion was affirmed by the Court of Appeals and was joined with others in Hutto v. Finney
when brought to the Supreme Court.
“The Eighth Amendment requires that inmates be furnished with the basic human needs,
one of which is reasonable safety. It is cruel and unusual punishment to hold convicted criminals
in unsafe conditions” (helling at). In Lopez v. LeMaster, an inmate (Lopez) in Oklahoma was
threatened by another inmate. Lopez reported the incident to official, LeMaster, who proceeded
to fill out a form. Lopez expressed concern on returning to the general cell block for fear of
being “jumped” by other inmates. LeMaster ignored this concern and returned him to the general
cell block, where he was assaulted by 4 inmates over a 15 minute time span. LeMaster moved
Lopez to another cell and did not send him for medical care until the next day, when he was
diagnosed with contusions and concussions to the skull as well as injury to the spine. Lopez filed
a 1983 claim against LeMaster for failing to protect him from the threatened assault. The 10th
circuit Court of Appeals held that “appellant supplied sufficient evidence to survive summary
judgment on his claim against appellee for failure to protect him from assault. Specifically, the
court found that material issues of fact remained concerning whether the county had a policy of
providing insufficient monitoring and supervision of inmates and insufficient staffing, which was
the moving force behind the attack on appellant.” (id at). Additionally, the court held that,

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“Neither prison officials nor municipalities can absolutely guarantee the safety of their prisoners.
They are, however, responsible for taking reasonable measures to insure the safety of inmates”
(id at).
In Greene v. Bowles, a male to female transsexual, who was being held in a protective
unit in Ohio, was placed in a cell with an inmate who had a history of violent physical assaults.
Greene was attacked by this inmate on multiple occasions, with the final attack resulting in her
being hit with a 50 pound fire extinguisher. Greene was a medium security risk and the violent
inmate was a high risk. Appellees, prison warden and other officials, admitted to knowing that
this inmate was violent but claimed that Greene did not prove that they were aware of a
substantial risk of her being attacked by the other inmate.
Following this last assault, the inmate was finally moved to another location and charged
with attempted murder. Greene filed a 1983 claim against the warden and other officials for
deliberate indifference to her safety, violating her 8th
and 14th
amendment rights. (id at). The 6th
circuit Court of Appeals held that the “inmate presented sufficient evidence of the warden's
knowledge that the inmate was vulnerable to physical assaults and that the prisoner posed a
substantial risk of assault to any prisoner” and that “a prison official cannot escape liability by
showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not
know that the complainant was especially likely to be assaulted by the specific prisoner who
eventually committed the assault. The converse is true as well: where a specific individual poses
a risk to a large class of inmates, that risk can also support a finding of liability even where the
particular prisoner at risk is not known in advance” (id at blah and blah).
The penal system’s constitutional responsibility to reasonably ensure inmates’ safety has
been repeatedly held up by the Supreme and lower courts of the U.S. in the form of claims by

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prisoners under 1983 for violations of their 8th
and 14th
Amendment rights. However, due to a
plethora of frivolous cases brought by prisoners, the Prison Litigation Reform Act “PLRA” was
passed, which, while freeing the court’s dockets, also presented obstacles to legitimate inmate
sexual assault claims.
Obstacles created by the PLRA
The PLRA establishes various requirements which prisoners must overcome in order to
have their cases heard in the courts. The first provision is the exhaustion of administrative
remedies which provides that in order to file a lawsuit, an inmate must first exhaust every step of
the prison’s grievance procedure (42 U.S.C. § 1997e(a)). In order to satisfy this requirement, an
inmate must file a grievance or complaint with the prison and exhaust all levels of appeals. If his
complaint is not redressed by all levels, then and only then may the case be brought before the
court. (id). Before filing a lawsuit, it is recommended that inmates file a grievance and appeal
said grievance through all levels of appeal with respect to each claim he/she wants to raise and
each defendant he/she intends to join in the lawsuit. Otherwise, they risk dismissal by the court
(ACLU guidelines).
The second requirement under the PLRA is that prisoners must pay filing fees in full ((28
U.S.C. § 1915(b)). This includes indigent inmates, who must pay 20% of their commissary
account balance at the time of filing or from deposits made from the preceding six months as an
initial payment, and they make monthly payments of 20% of their income from the previous
month, a method of filing known as “in forma pauperis” (id and aclu).
The Three Strikes Provision, the third provision of the PLRA, prevents an inmate from
filing in forma pauperis once he/she has brought three suits that have been dismissed from the

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courts as “frivolous” (28 U.S.C. § 1915(g)). When dealing with this provision, it is important to
note that an appeal from a dismissal of an early action being dismissed counts as a separate strike
and the only exception to the three strikes rule is a threat to “imminent danger of serious physical
injury” (ACLU). Assessment of “imminent danger” is considered by the courts at the time the
lawsuit is filed, not at the time the incident that gave rise to the suit occurs (id).
The fourth provision of the PLRA, The Physical Injury Requirement, holds that a lawsuit
for mental and emotional injury cannot be brought without evidence of physical injury (42
U.S.C. § 1997e(e)). This provision bars compensatory (monetary) damages but does not apply to
injunctive or declaratory relief (ACLU). Courts are split as what constitutes adequate evidence of
physical injury (id). This provision, as well as the previous three, has prevented sexual assault
claims by inmates from being remedied and/or heard by the courts. The Supreme Court has
stated that, “The Prison Litigation Reform Act has restricted courts' authority to issue and
enforce prospective relief concerning prison conditions, requiring that such relief be supported
by findings and precisely tailored to what is needed to remedy the violation of a federal right”
(Miller v. French, 530 U.S. 327).
The PLRA’s restrictions not only have a restraining effect on the authority of the courts
but they also impede prisoner’s claims, especially those involving sexual assault; the most
restrictive provisions being exhaustion of administrative process and the requirement of physical
evidence (NPREC). Victims of sexual assault need immediate treatment and counseling, and the
exhaustion of the grievance process can be long and drawn out, leaving inmates to suffer in
silence or leaving them open to further attacks, especially if the prison’s process does not
effectively handle such situations or take such claims seriously (Id.) Inefficient or lengthy
grievance processes also run the risk of increasing the hesitation of inmates to report assault due

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to fear of retaliation by other inmates or prison guards (NREC report). The requirement of
physical evidence is also a drastic impediment to sexual assault claims because while some
assaults may leave physical marks, many will not, and courts differ on what constitutes
sufficiency of evidence (ACLU). Inefficient monitoring within prisons also makes it very
difficult for inmates who are victims of assault to make their case, as it often comes down to one
inmate’s word against another (NC report).
Prison Rape Elimination: Report and National Guidelines
In 2003, Congress enacted the Prison Rape Elimination Act “PREA”, which established
the National Prison Rape Elimination Commission “NPREC” “The Commission” to research
sexual assault in the prison system and create nationwide guidelines for correctional facilities to
follow in hopes of decreasing or eliminating this issue within the prison system (NPREC, 1). The
Commission utilized a 2007 survey by the Bureau of Justice Statistics “BJRS,” which sought to
produce adequate statistics for sexual assault incidences (NPREC,3).
A total of 63,817 inmates were surveyed, “Four-and-a-half percent of prisoners surveyed
reported experiencing sexual abuse one or more times during the 12 months preceding the survey
or over their term of incarceration if they had been confined in that facility for less than 12
months. Extrapolated to the national prison population, an estimated 60,500 State and Federal
prisoners were sexually abused during that 12-month period” NPREC, Final Report, 19 (2009).
Reported cases vary across facilities, with some having as low as 0 reported cases, but others as
high as 9.3 – 15.7%; with prisoners reporting abuse by staff 2.9% more than by other inmates (Id
at 4). In conducting the study, BJS created guidelines that were technologically efficient and
assisted inmates with difficulty reading as well as protecting their privacy and utilizing
questionnaires designed to detect fraudulent answers (NPREC, 4-5).

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The Commission made a report of 9 findings and a number of national standards and
recommendations for the prison system, which the Attorney General is required to use to
“promulgate national standards for the detection, prevention, reduction, and punishment of
detention facility sexual abuse” (Id at 23). Note that this paper’s focus is on sexual assault in the
general adult prison population, therefore, some of these findings were omitted for relevance.
The observations and an overview of suggested guidelines that accompany them will be
categorized according to finding as in the Commission’s final report.
Finding 1 – Protection of inmates from sexual abuse is ineffective for what should be a
secure environment
“Protecting prisoners from sexual abuse remains a challenge in correctional facilities
across the country. Too often, in what should be secure environments, men, women, and children
are raped or abused by other incarcerated individuals and corrections staff” (NPREC, 3). While
some facilities have effective procedures for dealing with sexual assault, many do not have the
technology or the training to handle these claims (id at1-4). Additionally, attitude that rape is
inevitable in prison or a part of prison life continues to linger and must be changed in order to
lead to efficient procedures and protections of prisoners (id at 25). In order to raise awareness
and stay on board with these issues, the NPREC recommends the BJS continue their studies (id
at 1-4, 23).
Finding 2 – Effective leadership within facilities can foster a prevailing attitude which
promotes safety rather than tolerance of violence.
“The Commission has defined clear standards that corrections administrators can and
must champion to prevent sexual abuse and make facilities safer for everyone—reforms in the

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underlying culture, hiring and promotion, and training and supervision that vanguard members of
the profession are already implementing” (5). Fostering such an attitude takes a multi layered
approach, beginning with a written zero tolerance policy for all forms of sexual abuse. The
policy must then be enforced by prison employees by way of proper training, stringent hiring
procedures, competitive compensation and benefits packages and promotion based on careful
review of the individual’s behavior on the job; especially focused on those committed to the
prevention of sexual abuse (5-7). These methods will help to hire and maintain employees with
the right attitudes.
In order to improve staff training, the Commission recommends that training in all
facilities meet standard criteria. The National Institute of Corrections has been running such
programs in facilities all over the country and the Commission recommends that Congress
provide them with funding to continue their work in a greater and more far reaching capacity
(id). In addition to staff training, programs should also be held for inmates in order to educate
them of their right to safety and the facility’s commitment to holding perpetrators “accountable,”
whether they be other inmates or members of the staff (id). This information must be conveyed
at intake and should be readily accessible to all prisoners despite language barriers or reading
levels (id).
The Commission also recognizes supervision as the fundamental practice of corrections
facilities and recommends direct supervision, which encourages interaction between guards and
inmates because it is believed to be the most effective way to prevent violence, disorder and
abuse (id). In addition, it is recommended that facilities undergo yearly assessments of the
feasibility of monitoring equipment in order to improve supervision and aid the officers in
maintaining inmate safety (id.) The Commission once again points to facilities receiving

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assistance from the National Institute of Corrections in order to improve their usage of this
technology and recommends that Congress provide funding for this endeavor (id).
Finding 3 – Prison administration must do more to protect vulnerable inmates from sexual
abuse.
“Preventing sexual abuse depends in part on risk assessment. - Youth, small stature, and
lack of experience in correctional facilities appear to increase the risk of sexual abuse by other
prisoners. So does having a mental disability or serious mental illness. Research on sexual abuse
in correctional facilities consistently documents the vulnerability of men and women with non-
heterosexual orientations and transgender individuals… A history of sexual victimization, either
in the community or in the facility in which the person is incarcerated, tends to make people
more vulnerable to subsequent sexual abuse” (Id at 7-8). Without careful protection, these
inmates will be subject to repeated sexual assaults and placed in cells with or nearby their current
or prospective assailants (Id at 7-9).
Many facilities have only subjective assessments if they have any at all (7-9). The
Commission recommends that objective, “evidence based screening,” become standardized
nationally (id). These assessments will advance this goal by establishing baseline requirements
which will assess an inmate’s risk of being a victim or an abuser (id). The results of these
screenings should then guide housing decisions (Id). Factors such as age, height, weight, and
sexual history as well as orientation, criminal records and personal background would be key
determinants (Id). Standardizing and following these assessments will lead to more efficient
protection for vulnerable inmates and improve prevention of sexual assault (Id). It will also be a
helpful and effective start for officials in charge of monitoring and protecting inmates.

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Finding 4 – Correctional Facilities are in need of both internal monitoring and external
oversight in order to effectively reduce sexual assault.
“Few correctional facilities are subject to the kind of rigorous internal monitoring and
external oversight that would reveal why abuse occurs and how to prevent it. Dramatic
reductions in sexual abuse depend on both” (NPREC, 9). Aside from direct supervision and
electronic monitoring, it is also important to learn as much as possible to understand patterns and
trends that underlie sexual assaults. (Id at 9-10). The availability of this information would
enable the creation of more effective policies as well as more efficient deployment of staff (Id).
The Commission recommends internal sexual abuse incident reviews be conducted
within facilities as part of the reporting and grievance processes (Id). It is recommended that
facilities conduct these reviews according to the questions asked on the BJS sexual violence
survey (Id.) This will enable corrections agencies such as the BJS to collect uniform aggregate
data that will prove helpful in making prisons safer (Id). While the aforementioned findings and
recommendations would lead to more effective internal monitoring, “even the most rigorous
internal monitoring is no substitute for opening up correctional facilities to outside review”
(NPREC, 9).
The Commission recommends that its standards be audited independent auditors,
prequalified by the Dept. of Justice and trained by the National Institute of Corrections, every
three years (Id at 9-10). It is also recommended that Congress provide the Institute with the funds
to design and implement the training program (Id). The report goes beyond the establishment of
mandatory audits to encourage federal, state and local municipal governments to create public
entities or inspectors to oversee and report on correctional facilities in their jurisdictions (Id).

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Just as important as to reform as independent audition, are the courts. The report notes
that, “Courts provide a crucial role, especially when other modes of oversight fail. Civil court
cases can spark reforms reaching far beyond the individual plaintiffs to protect other prisoners.
The Commission is convinced that the Prison Litigation Reform Act (PLRA) that Congress
enacted in 1996 has compromised the regulatory role of the courts and the ability of incarcerated
victims of sexual abuse to seek justice in court” (Id at 10). The Commission recommends that
Congress amend the exhaustion of administrative remedies and the evidence of physical injury
provisions because they “fail to take into account the very real emotional and psychological
injuries that often follow sexual assault” and form unjust obstacles to equity (Id at 10). Internal
monitoring, external auditing and the reprisal of the crucial role of the courts in prison litigation,
together can have a dramatic impact on improving safety in prisons and in accomplishing justice
for those who have been victimized (Id).
Findings 6 and 7 – Reporting procedures must be improved to protect individuals from
retaliation and corrections facilities must ensure immediate and ongoing access to health
care and support services.
“Many victims cannot safely and easily report sexual abuse, and those who speak out
often do so to no avail. Reporting procedures must be improved to instill confidence and protect
individuals from retaliation without relying on isolation. Investigations must be thorough and
competent. Perpetrators must be held accountable through administrative sanctions and criminal
prosecution” (NPREC, 11). Many times, when inmates report sexual abuse, their allegations are
not taken seriously and this dynamic needs to be changed (Id at 11-16). The Commission’s
standards mandate the duty to investigate and establish a detailed standard that will ensure the
fulfillment of that duty as well as ensuring the quality of investigations (Id). Victims and

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witnesses of sexual abuse must be able to report incidences with confidence that they will be
taken seriously and efforts to promote reporting must provide for protocols to protect them from
retaliation by their assailants (Id). Many reported claims of sexual assault go unheard not only
because of lack of procedure but for failure on the part of prison officials and staff to investigate
claims seriously (Id).
The Commission recommends that correctional facilities implement procedures that
detail the collection and analysis of physical evidence (NPREC, 12). The first step on behalf of
prison officials, following the report of rape, should be the offer of a forensic exam by a trained
professional. (Id). These forensic professionals must be trained to understand the dynamics of
prison life (Id at 12-16). In addition to investigators and forensics professionals; security staff,
the head of the prison and health care professionals must work together to investigate the claims,
collect evidence and handle the aftermath of the incident (Id).
Collection of evidence is important because assailants cannot be prosecuted without it. If
the claims can be substantiated by “a preponderance of the evidence,” then assailants should be
sanctioned internally and these sanctions should be consistent as well as “sufficiently tough to
deter abuse” (Id at 13). This applies not only to assailants who are other inmates, but also staff
members implicated in sexual abuse. Facility management must allow for reassignment during
investigation in the interest of safety as well as for sanctions against staff members (Id at 13-14).
All assailants, inmate or staff, must be held accountable for sexual abuse (Id). The Commission
recommends that the Dept. of Justice adapt these procedures and protocols for use nationwide
(Id at 12).
The aftermath of the sexual assault must be dealt with effectively in order to aid the
victim in coping with the dangerous psychological effects that linger in victims of sexual abuse.

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Advocacy for victims is especially important when considering that the goal of prisons is to
release reformed criminals back into the world. Allowing the effects of sexual assault to linger
within a victimized inmate decreases the chances of meeting this goal, however “Victims are
unlikely to receive the treatment and support known to minimize the trauma of abuse.
Correctional facilities need to ensure immediate and ongoing access to medical and mental
health care and supportive services” (NPREC, 14).
The Commission recommends that, “Facilities must ensure that victims have unimpeded
access to emergency treatment and crisis intervention and to ongoing health care for as long as
necessary—care that matches what is generally acceptable to medical and mental health care
professionals. Because some victims feel pressure to conceal abuse, all health care practitioners
must have the training to know when a prisoner’s mental or physical health problems might
indicate that abuse has occurred” (Id at 15). “Unimpeded access” to health care and support
services is essential for victims of sexual abuse (Id at 16). Under the NPREC’s standards,
prison’s must work with community agencies and support groups in order to ensure treated by
quality health care professionals and that they have access to support groups and mental health
treatment (Id at 14-16).
Agencies must provide emergency care to these victims free of charge and corrections
facilities are asked to treat the common “after effects” of sexual abuse as chronic conditions and
exempt them from fees (Id). It is critical that this support is understood to be confidential to the
extent of the law and that prisoners are provided with information on how to contact community
support services (Id). “Unimpeded access to treatment by qualified medical and mental health
care practitioners and collaboration with outside providers are critical to ensuring that victims of
sexual abuse can begin to heal” (Id at 16).

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Final Analysis: Putting It All Together
Despite a history of deference to prison officials and hesitation on behalf of the courts to
tell officials how their facilities should be run, there are constitutional rights that need to be
protected. Among other rights, prisoners have the right to be free from cruel and unusual
punishment. This right, when violated, can be remedied by the courts under 42 USC 1983, which
protects inmates from conditions of confinement that deprive inmates of their basic right to
safety. The Supreme Court has recognized state responsibility in keeping people that it holds
against their will safe. While the Constitution does not mandate comfortable prisons, inmates are
still entitled to safety and freedom from sexual abuse and prison officials can be held liable for
deliberate indifference to that safety.
The ability of inmates to report sexual abuse and the authority of the court to hear these
cases has been impeded by the PLRA. Requirements that prisoners exhaust all administrative
remedies leave victims of sexual assault to go unassisted and vulnerable to further attacks due to
length of time to undergo the process, and to inefficient internal grievance and investigation
procedures. Often, these allegations are not taken seriously by the prison and investigations are
not conducted, either due to poor staff training or indifference. This is also a serious issue when
it comes to the PLRA’s requirement of evidence of physical injury.
Poor investigation and reporting procedures are not conducive to the finding and
presentation of physical evidence. This requirement also impedes sexual assault claims by
inmates because it does not take mental or emotional distress into account. The Supreme Court
has stated that the PLRA restricts the authority of the courts in deciding cases. In a 2007 survey

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conducted by the BJS, of 63,817 inmates surveyed, 60,500 reported being sexual abused within
the past 12 months, with rates in individual facilities as high as 15%. This needs to be changed
and courts play a large role in reform in this country and restricting and narrowing their authority
in this way outweighs the benefits of clearing the court dockets of frivolous claims.
The National Prison Rape Elimination Commission, established my Congress via the
Prison Rape Elimination Act, has conducted research and reported on recommendations to
combat problems facing correctional facilities, which the Attorney General is to promulgate into
nationwide standards in the prison system within a year of completion of the report. The
Commission proposed procedures and protocols for more effective supervision, internal
reporting procedures, internal monitoring, external auditing, improved investigation procedures
and staff training. It created a duty to investigate all claims of sexual abuse, forensic checkups
for rape victims and unimpeded access to free emergency care and fee exempted medical and
mental health treatment as well as continuous access to community support services for victims
of sexual abuse.
These proposed standards aim to change the culture within prisons that tolerates abuse as
well as providing proper assistance and support to abused inmates. Additionally, improved
grievance procedures will lead to better resolutions for reported incidences and mandatory duties
to investigate along with detailed standards for such investigations and forensic analysis may
assist inmates in overcoming the barrier placed by the PLRA’s evidence of physical injury
requirement. While improved procedures may help with overcoming obstacles created by the
PLRA, the Commission recommends that Congress amend these provisions of the PLRA. The
ultimate goal of the legislation and the Commission is to end or dramatically decrease sexual
abuse in the prison system and all corrections facilities. The amount of time these reforms will

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take remains a question, however, these standards are well researched and if enforced properly,
should effectively begin the process of reform within the prison system.
Conclusion
There are currently “more than 7.3 million Americans are in prison, jail, a residential
facility for adults or juveniles, or supervised in the community, at a cost of more than $68 billion
annually…. 95% of prisoners will one day be released (NPREC, 25 - 26). The purpose of
correctional facilities is not only to house inmates, but also to reform criminals and release them
back out into the world. Allowing sexual abuse in such large numbers to go without efforts of
reform impedes this goal and releases troubled and neglected individuals into their communities.
The efforts of the NPREC are not in vain and following these recommendations is an extremely
important component of criminal justice in a country known for its Constitutional protection of
civil rights and liberties.