The U.S. has arrived at a critical moment of truth in addressing the sexual violence that plagues its prisons and jails. The failure of Departments of Corrections nationwide to prevent sexual abuse behind bars and to adequately respond to those who have been victimized is receiving national and international attention. Finally, this type of violence is beginning to get recognized for what it is: a serious human rights violation.
According to the Universal Declaration of Human Rights, All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood. While incarceration inherently places limits on a prisoners freedom, it does not take away all human rights. For example, prisoners retain their absolute right to be free from torture, including sexual violence, at all times.
The passage of the Prison Rape Elimination Act (PREA) in 2003 has brought unprecedented scrutiny to the problem of sexual violence behind bars and has led some corrections officials to conclude that they can no longer dismiss sexual violence as an inevitable byproduct of prison life.
As part of the implementation of PREA, this fall, the Bureau of Justice Statistics (BJS) will be conducting the first-ever survey of prisoners to document the prevalence of sexual violence in prisons nationwide. Stop Prisoner Rape (SPR) has worked hard to influence the BJS to ask straightforward questions and to ensure that prisoners are able to respond honestly and with full confidentiality to this survey. At SPR, where letters from survivors of prisoner rape arrive in the mail every day, we already know that prisoner rape is a human right crisis of staggering magnitude. The BJS research efforts are nevertheless pivotal as the lack of data about the prevalence of this form of violence has been used for far too long by corrections officials to minimize and marginalize the problem.
In addition to these surveys, the National Prison Rape Elimination Commission, a bipartisan, federal body created under PREA, is holding public hearings around the country and, in early 2007, will be releasing national standards for the prevention of prisoner rape. SPR has been able to bring more than a dozen brave prisoner rape survivors to these hearings to recount first-hand the shocking human rights violations they endured while incarcerated directly to the Commissioners.
At the conclusion of the National Prison Rape Elimination Commission's work, a review panel will be ranking and holding hearings with the best and worst performing detention facilities in the country. Human rights organizations worldwide, including SPR, have used the technique of public shaming successfully for decades. Not surprisingly, in its interactions with corrections officials nationwide, SPR has found that this process of ranking facilities, and especially the fear of being identified as one of the nation's worst prisons, has galvanized prison officials to take PREA seriously.
In addition to PREA-related efforts to highlight prisoner rape, the independent Commission on Safety and Abuse in America's Prisons also held hearings throughout 2005-2006 that examined the high levels of violence in U.S. prisons and jails. Its final report, Confronting Confinement, highlighted a number of shortcomings in U.S. corrections facilities that contribute to this violence, including the rampant sexual abuse of prisoners. Confronting Confinement included a series of recommendations, focusing on issues such as the importance of external oversight and accountability in making prisons safer. Margaret Winter, Associate Director of the ACLU National Prison Project, succinctly described what prisons and jails need, light, light, and more light. (Confronting Confinement is available at www. prisoncommission.org.)
The international community is also increasingly highlighting the problem of sexual violence in U.S. detention facilities as a violation of basic human rights principles. Under international human rights law, the sexual assault of prisoners, whether perpetrated by corrections officials or by prisoners with the acquiescence of corrections staff, is recognized as torture. The U.S. has ratified two treaties that expressly prohibit torture: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). (For more information about these treaties, visit www.ohchr.org.)
The CAT requires that each nation take action to prevent acts of torture within its jurisdiction. Under the CAT, torture can never be justified and a country may not return a person to a jurisdiction where he or she may be tortured. To monitor the treaty's implementation, the CAT created the U.N. Committee Against Torture (the CAT Committee).
Having ratified the CAT, the U.S. is required to submit a report to the CAT Committee every four years. In June 2006, the CAT Committee convened in Geneva to review the Second Periodic Report of the U.S., detailing its efforts to comply with the CAT.
Recognizing how important it is for the CAT Committee to receive information from independent sources for this review, SPR and other human and civil right organizations submitted shadow reports, highlighting how the U.S. has failed to comply with the treaty.
SPR provided the only shadow report focused exclusively on the continued and widespread sexual abuse of incarcerated men, women, and youth in detention. The report, entitled In the Shadows, examined the systemic conditions that contribute to sexual violence behind bars, the plight of those prisoners most vulnerable to sexual exploitation, and the legal provisions that would help combat sexual assault in custody but are not effectively enforced. The report offered recommendations to remedy this acute human rights crisis. (In the Shadows is available at www.spr.org.)
After considering the U.S. Second Periodic Report and the various shadow reports it received, the CAT Committee issued its Concluding Observations on May 18, 2006. Among other things, it recommended that the U.S., design and implement appropriate measures to prevent all sexual violence, in all its detention centers &. ensure that detained children are kept in facilities separate from those for adults, and amend the Prison Litigation Reform Act (PLRA) so that victims of torture in custody can seek justice through the courts.
The other key human rights treaty, the ICCPR, provides that all people, including prisoners, have a broad range of civil and political rights. Like the CAT, the ICCPR also prohibits torture, cruel, inhuman or degrading treatment. The Human Rights Council (formerly the U.N. Commission on Human Rights) has established mechanisms for reporting human rights violations to the Council and for public procedures which examine, monitor, and report on the implementation of the ICCPR.
In July 2006, the Human Rights Council will review U.S. compliance with the ICCPR. In advance of the session, the Council has identified two critical questions that echo the concerns raised by the CAT Committee: What measures has the U.S. taken to protect prisoners in federal or state prisons from rape, abuse or other acts of violence? Why does the Prison Litigation Reform Act (PLRA) bar claims based on emotional and psychological mistreatment that are unaccompanied by physical injury.
In keeping with its isolationist posture, the U.S. intentionally prohibits human rights organizations and individuals whose human rights have been violated from using the most powerful tool available under international law the ability to submit complaints of abuse directly to the bodies that monitor these treaties.
Under what is known as an Optional Protocol to the ICCPR, and Article 22 of the CAT, the Human Rights Council and the CAT Committee have the authority to call upon a complainant's country to investigate and respond to claims of abuse. The U.S. refuses to consent to have individual complaints of rights violations heard under either treaty, thereby narrowing the protections that these treaties are intended to offer. As a result, a prisoner who has been sexually assaulted is limited to the prison grievance process and the increasingly restrictive U.S. legal system to press their case.
In its periodic report to the CAT Committee, the U.S. government claimed that when unfortunate instances of sexual abuse in prison occur, they are promptly and thoroughly investigated and referred for prosecution. Insisting that the legal system affords numerous opportunities for individuals to complain of abuse and to seek remedies for such alleged violations, the U.S. argued that its refusal to permit direct communications from individuals to U.N. monitoring entities was justified.
As the many prisoners who write to SPR make clear, sexual abuse in prison is more than an unfortunate instance; it is an epidemic that many corrections officials choose to ignore. While the Prison Rape Elimination Act was a positive step forward in shedding light on this human rights crisis, it is not enough. The domestic legal system fails to protect prisoners from sexual assault, and survivors of prisoner rape are habitually denied legal recourse.
International human rights law is an essential, but still neglected, tool for promoting social justice domestically. International treaties provide a uniquely powerful moral and legal standard for the definition of every persons inalienable rights, and for their enforcement. These universal standards also have the strength to endure national, state and local efforts to weaken human rights protections. However, until U.S. government officials and the general public acknowledge that prisoner rape is a breach of the human rights standards to which this country has committed to adhere, there will be no outcry to stop this violence.
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