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Eliminating Fear of Abuse From the Dangers of Detention

The Prison Rape Elimination Act (PREA) became law in 2003, but it was not until earlier this year that regulations to implement the law were proposed to be enacted by the Department of Justice. In early May, Physicians for Human Rights submitted comments in support of these proposed standards to prevent, and offer treatment to victims of, sexual abuse in prison.

The guidelines apply to facilities that hold immigration detainees, in addition, to those that house children and accused and convicted criminals. Immigrants in detention are particularly vulnerable to sexual abuse because of:

  • fear and lack of understanding of the immigration detention system and their rights within it;
  • language barriers and cultural attitudes towards experiencing and reporting abuse; and
  • prior histories of victimization, sometimes state-sanctioned.

It is critical, as the proposed standards recognize, that noncitizens receive information about sexual abuse and have access to confidential reporting mechanisms and sources of support, all provided with cultural sensitivity, in order to protect their right to be free from all forms of torture.

Just Detention International has more information about the proposed standards to implement the Prison Rape Elimination Act, and a fact sheet on sexual abuse in immigration detention (pdf).

PHR's comments in support of the proposed standards:

Physicians for HumanRights submits these comments in support of the recommended national standardsdeveloped by the National Prison Rape Elimination Commission, with an emphasison their vital importance for immigration detention.

Physicians for HumanRights (PHR) is a nonprofit organization that mobilizes health professionalsacross the United States to advance health, dignity and justice. Harnessing thespecialized skills, rigor, and passions of doctors, nurses, public healthspecialists, and scientists, PHR investigates and exposes human rightsviolations in the US and internationally. Health professional members of PHRhave evaluated the mental and physical health of detained and non-detainedasylum seekers and torture survivors since 1992.

Sexual abuse andassault are grave human rights violations. The UN Convention Against TortureCommittee recognizes sexual abuse as a form of torture within its mandate towork to prevent. Torture, including sexual violence, is prohibited by multipleinternational agreements that bind the US, such as the Universal Declaration ofHuman Rights and the International Covenant on Civil and Political Rights. Inrecognition of the common-sense measures proposed by the Commission to stopthis particularly widespread human rights violation, recent revisions toImmigration and Customs Enforcement’s performance-based national detentionstandards (PBNDS) incorporate many of the Commission’s recommended standards.

However, the PBNDSare not codified in statute or regulation and therefore are not legallyenforceable. Application of the PREA standards to facilities with immigrationdetainees will ensure that, at a minimum, immigration detainees receive thesame basic protections from the terror of sexual abuse as prison and jailinmates.

Such protections areurgently needed for immigration detainees, whether they are housed in afacility run by Immigration and Customs Enforcement (ICE), an institution withwhich ICE contracts, a short-term setting run by Customs and Border Control, ora juvenile setting while under the care and custody of the Office of RefugeeResettlement.

In addition to thedangers faced by other inmates, immigration detainees are especially vulnerableto abuse. Language and cultural barriers and a fear that reporting abuse willresult in retribution or deportation increase the likelihood that a non-citizenwill be sexually abused while in immigration detention and not feel safereporting it. The experience of sexual violence in confinement that one feelspowerless to stop has a particularly devastating impact on immigrationdetainees, whom our research has shown suffer from poor and worsening mentaland physical health while incarcerated.

A significant numberof detainees are survivors of trauma who are both particularly susceptible tovictimization, and acutely harmed by further abuse. For example, one femaledetainee who was a survivor of rape reported to PHR, as described in our study From Persecutionto Prison: The Health Consequences of Detention for Asylum Seekers(pgs.66-67), that,

Since being indetention, I think more and more about the rape…Here, I am locked up, and everyday is the same. And I’m thinking about what happened to me…I keep seeing thosepeople and what happened to me.

A male rapesurvivor-detainee told PHR,

when I first camehere I thought it’s where they protect people, but that’s not what it’slike…I’m worried about my mental health…I cannot cry in here. My feelings aredead.

The terrible impactthat further abuse would have on vulnerable individuals like these two isclear, particularly in light of the retraumatization that merely beingincarcerated provoked in both.

Although immigrationdetainees ostensibly receive necessary medical and mental health care, inpractice this system of care is oriented to responding to emergencies andensuring merely that individuals are alive and well enough to take part inproceedings and be deported. Advocates have repeatedly documented failures inthe system to provide detainees with even minimal and basic counseling andhealth care services that health professionals have deemed essential. Moreover,unlike criminal defendants, immigration detainees are not represented bygovernment-provided counsel, and in recent years approximately 84% of them havenot been able to find or pay for attorneys.

This lack of medicaland legal support makes it especially crucial that immigration detaineesreceive culturally appropriate information in their own language about theirright to be free from sexual abuse and who they can contact if they aresexually assaulted (Standards TR-3, ID-3, ID-4).

Access to outsideorganizations that provide counseling, medical and mental health supportservices, and advocacy for immigrant victims of violence is likewise critical(Standards RP-2, ID-1).

The different sets ofstandards and the supplemental standards for facilities with immigrationdetainees provide common-sense measures that are needed to improve safety. Theyrepresent a compromise, balancing the fiscal and security interests ofdetention administrators with the basic right of all people, regardless of citizenshipand custody status, to be free from sexual abuse. Swift ratification of theseprovisions will spare thousands of men, women, and children the devastation ofsexual abuse behind bars.

Response to thequestions in the Advanced Notice of Proposed Rulemaking

1.What would be the implications of referring to “sexual abuse” as opposed to“rape” in the Department’s consideration of the Commission’s proposed nationalstandards?

Trulyestablishing a zero-tolerance standard for prison rape requires addressing thefull spectrum of sexual violence. The national standards should take anexpansive approach and incorporate all staff sexual misconduct and all coercivesexual activity between detainees.

Theterm “rape,” however, is often understood to have a narrow definition inaccordance with its use in criminal law. Using the widely recognizedterminology of “sexual abuse” in the standards will minimize confusion with thecriminal standard for rape—which varies by state— and will conform to theexpectations and intent of PREA. 

PREA’sdefinition of rape includes all of the conduct within the Commission’sdefinition of sexual abuse except for sexual harassment (inmate-on-inmate andstaff-on-inmate), staff-on-inmate voyeurism, and staff-on-inmate indecentexposure.

Beyondconstituting abusive conduct that should not be tolerated, harassment,voyeurism, and indecent exposure are known precursors to assaultive sexualabuse. Addressing these forms of sexual misconduct will enable officials toprevent rapes from occurring. 

Whilethe full spectrum of sexual abuse must be addressed as part of a comprehensiveresponse to prison rape, consensual sexual activity between detainees shouldnot be incorporated into the definition of sexual abuse. Detention agenciesremain free to establish disciplinary rules and regulations as they see fit,but conflating consensual sexual activity between detainees with the crime ofrape serves no legitimate purpose and thwarts many of PREA’s goals. On thecontrary, doing so will force survivors of sexual abuse to suffer in silence,as fear that sexual abuse will be misconstrued as prohibited consensual sexualactivity and that they will face punishment, will prevent survivors fromreporting their abuse or seeking medical assistance.

Thisdisincentive to reporting will allow sexual violence to flourish—and will increase the vulnerability of manydetainees, such as those who are gay or transgender, who are known to be atespecially high risk for abuse but are often mistakenly assumed to have consentedto any sexual activity.

2. Would any of theCommission’s proposed standards impose ‘‘substantial additional costs’’?

Relativeto the billions of dollars spent on immigration detention every year, the costsfor implementing these standards in facilities run by or contracted with ICE,Border and Customs Enforcement, and the Office of Refugee Resettlement will besmall.

Facilitiesthat have basic policies and practices in place to protect people in theircharge, as they are legally required to do regardless of PREA, can meet thestandards’ requirements through low and no-cost options, such as repurposingstaff and incorporating information about sexual abuse into existing trainingand orientation materials.

Anyconsiderations of the cost of protecting detainees from sexual abuse must beunderstood in light of the dramatic benefits of doing so. For example,implementing the standards’ provisions will promote safety and efficiency,resulting in net savings in areas such as staffing, investigations, and detaineehealth care.

Beyondthe economic impact, the moral costs of allowing sexual violence to continuemust also be considered. Every person has the right to be free from sexualabuse, regardless of custody and citizenship status. Ultimately, the Office ofManagement and Budget will require the Department to conduct a cost-benefitanalysis of the standards. An examination of costs alone, such as the costprojection study currently being conducted by Booz Allen Hamilton, will notmeet this requirement.

Weurge you to begin the required analysis by examining the full range of benefitsthat will come from implementing the recommended standards.

3. Should the Departmentconsider differentiating within any of the four categories of facilities forwhich the Commission proposed standards?

Thestandards represent basic measures that all facilities must put in place tomeet their constitutional obligation to protect inmates from abuse. Varyingcompliance requirements based on factors such as the size and resources of a facilitywill undermine the standards and will needlessly complicate their otherwisestraightforward expectations.

ICEcontracts with facilities of different sizes and different staffing levelsthroughout the US. Creating distinctions for the level of compliance requiredwill make it especially difficult for ICE to assess whether each contractedfacility is conforming to the requirements applicable to it. It will also senda dangerous message that certain types of facilities do not need to put inplace the measures necessary to protect vulnerable immigration detainees fromsexual abuse.

Comments onSupplemental Standards for Facilities with Immigration Detainees

PHR applauds theCommission’s efforts to address the particularized needs and concerns ofimmigration detainees. The Supplemental Standards for Facilities withImmigration Detainees contain well-considered and essential guidelines forpreventing and responding to abuse involving noncitizens.

In addition tostrongly supporting the ratification of these standards into regulations, weadvocate strengthening the protections they provide in the following importantways:

1.ID-5: Supplement to SC-1: Screening for risk of victimization and abusiveness

Standard ID-5 callsfor efforts to be made to obtain detainees’ institutional and criminal records,and for screening to be done on that basis for detainees who are vulnerable toabuse or likely to be abusers. To minimize the dissemination of sensitivepersonal information, PHR recommends that detention facility authorities drawon risk assessments completed by DHS personnel upon entry of individuals intoICE’s custody to identify and appropriately house detainees with propensity tobe victims or abusers. Any determination that an individual has eitherpropensity should be made only by personnel with training and professionalexpertise in that area, including social workers, psychiatrists, andpsychologists.

2.ID-7: Supplement to RE-1: Inmate reporting

Standard ID-7 aims toenable detainees to report abuse directly to the ICE Office of Civil Rights andCivil Liberties and the DHS Office of the Inspector General. In order to beeffective, this measure must provide for the same private, confidential, andprivileged use of phones contemplated by standard ID-8, regarding access tooutside victim advocates.

These Standardsconsistently recognize the particular cultural sensitivities of detainees tosexual abuse, and the difficulties many detainees will have talking aboutincidents that do occur. To work around these barriers, the Standards mustguarantee to the maximum extent possible that detainees are able to reportsexual abuse in private, beyond earshot of other detainees and facilitypersonnel. Facilities may guarantee this right at minimal cost by making a freephone line available in a quiet, closed area outside everyday housing “pods”,and informing immigration detainees that they may request to use this phone forthe specific purpose of calling either of the named offices.

Conclusion

Immigration detainees are at especially highrisk for sexual violence and have clear disincentives to reporting when suchabuse does occur. Strong standards are urgently needed to protect detaineesfrom this devastating but all too common abuse. PHR strongly urges you to promulgatethe Commission’s standards without delay. Every day that these criticallyimportant measures are not in place, men, women, and children will continue tobe subject to harrowing abuse and rape while in custody.