Illustration by Justin Renteria
What issue is sufficient to unify the Southern Baptist Convention, the NAACP, the ACLU and the National Association of Evangelicals? Why, prisoner welfare, of course. Detention facilities are bursting with potential converts, and such an unlikely alliance lobbied for the Prison Rape Elimination Act, which George W. Bush signed into law in 2003. Christian leaders like the late Chuck Colson, a former Nixon administration official who served time in federal prison, helped to turn prisoner rights into a priority for conservatives. Momentum stalled soon after, naturally, and it took the U.S. Department of Justice almost a decade to issue rules requiring jails and prisons across the country to factor in which groups are at greatest risk for sexual assault – first-time offenders, those who are mentally ill, disabled or more feminine in appearance – when deciding where to place them.
What impact the new regulations will have in Wisconsin remains unclear. A court-ordered experiment at the Los Angeles County Jail famously created a special housing unit for gay men and transgender women, but the new regulations prohibit such dormitories, unless they’re mandated by court orders. Marion Morgan, director of this state’s Prison Rape Elimination Act Unit, says the Department of Corrections has “always” taken the potential for sexual violence into account when deciding where to house offenders. The department has tracked reports of sexual assault and harassment in the state’s prisons since 2007, and between 2010 and 2012, it classified 51 incidents as “substantiated” assaults and more than twice as many –103 – as “unsubstantiated,” meaning police failed to establish probable cause and specially trained PREA investigators couldn’t prove the allegations were more likely true than not. Another 84 were listed as “unfounded,” the classification for “not true.” Morgan, a former sensitive crimes detective for the Madison Police Department, says many of these cases originate in delusions. “We have a large number of people who have mental health issues,” she says, and others who report sex crimes are attempting to malign another inmate.
The greatest difficulty lies in getting legitimate victims to come forward, she says, and then gathering the evidence needed to back up what they allege. Cases in which “we have one word against another but no other evidence” get shelved as unsubstantiated, and prosecutors are loathe to pursue sexual assault cases that rely on prison inmates for witnesses. Juries tend not to believe them.
Sharon Dolovich, a law professor at UCLA, has watched as states respond to PREA’s glacial advance. “One of the problems is that statistics are generated in an institution with an interest in having a minimal number of sexual assaults,” she says. “There’s an incentive to underinvestigate.”
Morgan denies downplaying the data and adds that when she started in 2011, “I explained to [department] leadership that success for us is going to be an increase in the number of incidents reported,” which has happened. In 2010, 112 allegations qualified under PREA, followed by 114 in 2011 and 364 in 2012. These include cases of harassment and sex between prison staff and inmates, a crime under state law. Morgan’s office confirmed 19 cases of the latter and labeled many more – 94 – as “unfounded.”
Stan Stojkovic, a criminal justice professor at the University of Wisconsin-Milwaukee, says the data being collected by states is “all over the place,” and he questions the effectiveness of using risk groups to separate inmates. “You’re going to be having a lot of variables chasing a very small target,” he says. Sex between staff and inmates is as much of a reason for increased oversight as inmate-on-inmate abuse, he suggests, given its prevalency and exploitative nature.
But isn’t there an epidemic of inmates abusing other inmates? Well, sort of. The problem isn’t so much “some guy bent over a chair, being raped by a gang of inmates,” he says. “That kind of stuff is just so rare.”