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Federal Sentencing Guidelines Place Heavy Burden on Incarcerated Victims of Sexual Assaults

by David M. Reutter


The Prison Rape Elimination Act (PREA) marked a critical step in condemning and curbing sexual assault and harassment in jails and prisons. Sadly, rape, groping and sexual harassment still occur regularly in America’s gulags, with guards often the perpetrators. Now a new provision in U.S. Sentencing Guidelines offering sentence reductions for these victims, which took effect on November 1, 2023, places the burden on them to prove the assault occurred.

The amendment expanded the “extraordinary and compelling” reasons (ECRs) that justify sentence reduction. It now includes victims of sexual abuse involving a “sexual act” or “physical abuse involving ‘serious bodily injury’” committed by or at the direction of a federal Bureau of Prisons (BOP) employee or contractor. But the amendment requires the misconduct to “be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding, unless such proceedings are unduly delayed or the defendant is in imminent danger.” A “catch-all” provision allows judges wide discretion in determining an ECR is “similar in gravity” to those otherwise enumerated.

A 2022 report by the U.S. Senate Permanent Subcommittee on Investigations “detailed the tragic and widespread abuse of women by BOP staff, as well as the barriers that women faced to reporting the abuse and escaping their abusers,” noted University of Wyoming College of Law Assistant Professor Meredith B. Esser. The report focused on lockups in Manhattan, Brooklyn, Dublin (California) and Coleman (Florida), but investigators concluded that employees at two thirds of BOP prisons had sexually abused female prisoners over the previous decade. BOP not only “failed to prevent, detect, and stop recurring sexual abuse,” the report declared, but also “failed to successfully implement” aspects of PREA.

As PLN has reported, the Federal Correctional Institution in Dublin had such a “permissive and toxic culture” of sexual abuse that it became known as the “rape club,” with the former warden and six staffers already sentenced and charges pending against an eighth. [See: PLN, Apr. 2024, p.60.] “BOP was slow to respond to complaints of sexual misconduct,” Esser noted, doing “very little to address the widespread sexual abuse” before “the scandal publicly came to light.”

To an extent this reflects what Esser called a “credibility discount” suffered by all prisoners, especially those who are women. Moreover, because “civil, administrative, and criminal proceedings are slow and can take a very long time to result in a conviction or other resolution,” prisoners are left vulnerable to retaliation, making it difficult and sometimes dangerous for them to represent themselves, present required documentation or report prison staff. “Relatedly, there is no discovery mechanism that allows for an incarcerated person or their lawyers to demand access to any of the required forms of proof” of sexual assault, Esser added. Plus a conflict of interest exists whenever Department of Justice prosecutors are also the ones opposing a prisoner’s sentence reduction.

For proof of the problem with the “substantiation requirement,” Esser pointed to the recent BOP rape scandals, to which the Guidelines amendment was a response, concluding that the requirement should be discarded. In the interim, she urged using the catch-all provision to award sentence reductions to prison rape victims, pointing by way of example to a decision by the federal court for the Western District of Tennessee on May 3, 2023, finding sexual assault by a prison guard “so egregiously outside the ordinary, routine, and proper course of prison administration that it can only be called extraordinary.” See: United States v. Bray, 2023 U.S. Dist. LEXIS 238058 (W.D. Tenn.). Attorneys litigating a sexual abuse victim’s sentence reduction motion should encourage judges to exercise their ECR discretion under the catch-all provision in this way. See: Who Bears the Burden When Prison Guards Rape? (November 1, 2023). 109 Iowa L. Rev. Online (forthcoming).

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