NATIONAL PRISON RAPE ELIMINATION 

COMMISSION REPORT AND STANDARDS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 8, 2009 

Serial No. 111–49 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

50–862 PDF 2010

NATIONAL PRISON RAPE ELIMINATION 

COMMISSION REPORT AND STANDARDS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 8, 2009 

Serial No. 111–49 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

JULY 8, 2009 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

WITNESSES 

Ms. Melissa Rothstein, East Coast Program Director, Just Detention International, Washington, DC 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 8 

The Honorable Reggie B. Walton, Judge, United States District Court of 

the District of Columbia, Chair, National Prison Rape Elimination Act 

Commission 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 16 

Mr. Sean E. Kenyon, Attorney, Hoeppner Wagner & Evans LLP, Merrillville, 

IN 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 21 

Mr. Jon Ozmint, Director, South Carolina Department of Corrections, Columbia, SC 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 28 

Ms. Lisa Freeman, Prisoner RIghts Project, Legal Aid Society of New York, 

New York, NY 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 43 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Louie Gohmert, a Representative in 

Congress from the State of Texas, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 57 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Michael W. Macleod-Ball, Interim Director and Jennifer Bellamy, Legislative Counsel, Washington Legislative Office, the 

American Civil Liberties Union (ACLU) ............................................................ 66 

Prepared Statement of the Stop Abuse and Violence Everywhere (SAVE) 

Coalition ................................................................................................................ 72 

Washington Post Article entitled ‘‘A Prison Nightmare’’ ..................................... 86 

Report entitled ‘‘National Rape Elimination Commission Report,’’ June 2009 .. 88 

(1) 

NATIONAL PRISON RAPE ELIMINATION 

COMMISSION REPORT AND STANDARDS 

WEDNESDAY, JULY 8, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:55 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Gohmert, and Lungren. 

Staff Present: (Majority) Jesselyn McCurdy, Counsel; Karen 

Wilkinson, Fellow, Federal Public Defender Office Detailee; Joe 

Graupensperger, Counsel; Veronica Eligan, Professional Staff Member; (Minority) Caroline Lynch, Counsel; Kimani Little, Counsel; 

and Kelsey Whitlock, Staff Assistant. 

Mr. SCOTT. The hearing will come to order. I would like to welcome you to the Subcommittee on Crime, Terrorism, and Homeland 

Security. We are having a hearing on the ‘‘National Prison Rape 

Elimination Commission Report and Standards.’’ 

Over 7 million Americans are incarcerated in U.S. correctional 

facilities or supervised in the community at the cost of more than 

$68 billion a year. If you are going to lock up so many people in 

this country, prisons and jails should be safe and productive places. 

Prison rape has been shown to have a devastating impact on our 

prisons. Not only does it cause severe physical and psychological 

trauma to its victims, but prison rape is recognized as a contributing factor to prison homicide, violence against staff, and institutional riots. It also increases the transmission of HIV/AIDS, other 

sexually transmitted diseases, tuberculosis, hepatitis B and C, all 

of which exist at a very high rate within U.S. prisons and jails. A 

growing number of HIV/AIDS transmissions and other sexually 

transmitted diseases in prisons increases the incidents of these diseases in our communities and exposes and imposes threats and 

costs to society at large. 

Prison pays dearly for ignoring prison rape. Inmates, often nonviolent first-time offenders who are sexually assaulted, come out of 

prison severely traumatized and leave prison not only more likely 

to commit crimes but far more likely to commit violent crimes than 

when they entered. 

Prison rape is a crime with institutional implications. The Supreme Court in Farmer v. Brennan held that the deliberate indifVerDate Aug 31 2005 11:04 Jan 27, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\070809\50862.000 HJUD1 PsN: 50862
2 

*The report entitled ‘‘National Rape Elimination Commission Report,’’ is reprinted in the Appendix of this hearing and can also be viewed at: http://www.ncjrs.gov/pdffiles1/226680.pdf. 

ference to the risk of prison rape violates the Eighth and 14th 

amendments to the U.S. Constitution. The Supreme Court held 

that while prison conditions may be restrictive or even harsh, prison and jail officials must take reasonable measures to guarantee 

the safety of inmates. 

It is particularly troubling that juveniles and men and women 

who are small in stature are at increased risk of sexual abuse by 

the prisoners. Bureau of Justice statistics estimates that young 

people held in juvenile facilities are more than five times more likely to be sexually assaulted than adults in correctional facilities. Juveniles in adult prisons are also disproportionately at risk of being 

sexually assaulted than adults in those facilities. In 2005, the Bureau of Justice statistics found that 21 percent of victims of sexual 

assaults in adult jails were youth under the age of 18. Young people are not able to respond to sexual advances by older, more experienced youth or adults. Correctional officials have a moral and 

legal obligation to protect young people in these institutions. 

Merely being female makes a person more vulnerable to sexual 

assault in prison. Women and girls are disproportionately represented as victims of sexual assault while being incarcerated. According to the Bureau of Justice statistics, between 2005 and 2006, 

36 percent of all victims of sexual assault were female, even though 

girls represented only 15 percent of confined youth in 2006. 

Also, people who suffer from mental disability or serious mental 

illnesses are far more likely to be sexually assaulted while incarcerated. A California study on sexual abuse in correctional facilities 

found that gay men and women as well as transgendered individuals are sexually abused at a much higher rate than the general 

incarcerated population. 

In July 2003, both the Senate and House unanimously passed 

the Prison Rape Elimination Act of 2003, and the bill was signed 

into law a few months later by President Bush. This legislation 

was a bipartisan effort led by Senators Jeff Sessions and Ted Kennedy and Frank Wolf in the House and myself. The Prison Rape 

Elimination Act is one of the few Federal laws that addresses sexual violence in correctional and detentional settings. 

Federal and State detention facilities, including jails, prisons, police lockups, private facilities, and immigration detention centers 

are all required to comply with PREA. PREA calls for the development of national standards to address prison rape and gathering 

of nationwide statistics about the problem, funding for grants to 

States to combat it, and the creation of a Department of Justice review panel to hold hearings with correctional facilities about ways 

to prevent inmate sexual assaults. 

On June 23, 2009, a National Prison Rape Elimination Commission released its final report* on proposed standards on prevention, 

detection, and monitoring of sexual abuse of incarcerated and detained individuals in the United States. The long awaited report on 

standards are the culmination of many years of work by Congress, 

prison reform advocates, correctional officials, and sexual assault 

victims to bring attention to this very serious problem. 

3 

I would like to thank the Commission and particularly Judge 

Reggie Walton for his leadership and the leadership of the commissioners on this issue. 

During today’s hearing, our witnesses will discuss the findings of 

the report, the standards developed by the Commission, and the 

next steps that we need to take. We have several distinguished witnesses who will testify about the problem and how to keep people 

who are incarcerated safe from sexual assault. 

It is now my pleasure to recognize the Ranking Member of the 

Subcommittee, my colleague from Texas, the Honorable Louie 

Goehmert. 

Mr. GOHMERT. Thank you, Chairman Scott, and I do have a full 

5-minute opening statement. But in view of the fact that our witnesses have been here waiting an hour, can I ask unanimous consent to give my opening statement after they are all finished so 

that we can move right into their testimony? 

Mr. SCOTT. Without objection, so ordered. 

I would like to recognize the presence of the gentleman from 

California, Mr. Lungren. If anyone has statements, without objection, they will be inserted into the record at this point. 

We have a panel of witnesses who will help us consider this 

issue. Our first witness will be Melissa Rothstein from the Just Detention International, formerly the Stop Prison Rape. Ms. 

Rothstein is the East Coast Program Director of Just Detention 

International, an international human rights organization dedicated to ending sexual violence in all forms of detention. Before 

opening JDI’s Washington, D.C. office, she served as Program Director in its Los Angeles headquarters. Prior to joining that organization, she was a senior staff attorney and director of social work 

at the Office of Appellate Defender in the Public Defender Office 

in New York City. She is a graduate of Columbia Law School, Columbia School of Social Work, and Hampshire College. 

Our next witness will be Judge Reggie Walton, who has been a 

U.S. District Court judge for the District of Columbia since 2001, 

after being nominated by President Bush. In 2007, Chief Justice 

Roberts appointed Judge Walton to serve as a judge on the Foreign 

Intelligence Surveillance Court. He was also appointed by President Bush to serve as a chairperson of the National Prison Rape 

Reduction Commission. Previously, Judge Walton served as an Associate Judge of the Superior Court of the District of Columbia and 

Associate Director of the Office of National Drug Control Policy. He 

received a Bachelor of Arts Degree from West Virginia State College and his Juris Doctorate from American University, Washington College of Law. 

The third witness will be Sean Kenyon, who is an experienced 

trial lawyer with Hoeppner, Wagner & Evans. She represents a juvenile who was raped in a South Bend, Indiana juvenile facility. 

She graduated from Indiana University and Indiana University 

School of Law. 

Our next witness will be Jon Ozmint, Director of the South Carolina Department of Corrections. He currently serves as Chair of the 

Legal Issues Committee of the Association of State Correctional 

Administrators, and also chairs the Staff Safety Committee of the 

4 

American Correction Association. He is a graduate of the Citadel 

and also attended the University of Alabama Law School. 

Our final witness will be Lisa Freeman, Staff Attorney of the 

Prisoners Rights Project of the Legal Aid Society, which she has 

litigated complex civil rights lawsuits involving incarcerated men 

and women in New York State. Following an extensive investigation, she brought the Amador v. Andrews case, a Federal lawsuit 

now seeking to change the correctional system that fails to protect 

women in State custody from sexual abuse by staff. She has also 

litigated conditions in New York City jails and served as a member 

of the National Prison Rape Elimination Commission Standards 

Committee. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. I would ask each witness to summarize 

his or her testimony in 5 minutes or less. And to help you stay 

within that time, there is a lighting device at the table. When the 

light switches from green to yellow, you will have 1 minute to conclude your testimony. When the light turns red, it signals that the 

5 minutes have expired. 

I will now begin with Ms. Rothstein. 

TESTIMONY OF MELISSA ROTHSTEIN, EAST COAST PROGRAM 

DIRECTOR, JUST DETENTION INTERNATIONAL, WASHINGTON, DC 

Ms. ROTHSTEIN. Good afternoon, and thank you, Mr. Chairman, 

Judge Gohmert, and Members of the Committee, for holding this 

hear and for inviting me to testify about the National Prison Rape 

Elimination Commission Report and Standards. 

I am the East Coast Program Director of Just Detention International. Formerly known as Stop Prisoner Rape, JDI is the only 

U.S. Organization exclusively dedicated to ending sexual violence 

in detention. Specifically, we work to ensure government accountability for prisoner rape, to transform public attitude about sexual 

violence in detention, and to promote access to resources for those 

who have survived this form of abuse. All of these efforts are guided by the expertise of men, women, and children who have endured 

sexual violence behind bars and have been brave enough to share 

their experiences with us. 

Congress’ attention to the problem of sexual abuse behind bars 

has been a critical factor in improving inmate safety. Thanks to the 

Prison Rape Elimination Act of 2003, corrections officials can no 

longer deny that sexual violence is a problem in their facilities, and 

leading agencies are already developing best practices to improve 

inmate safety. 

On June 23 the National Prison Rape Elimination Commission 

released its final report and national standards as mandated 

PREA. These documents are arguably the most powerful tool to 

date in the effort to end sexual violence behind bars. The Commission’s report confirms what we at JDI have long known to be true, 

that sexual violence and detention is not an inevitable aspect of incarceration. On the contrary, it can be prevented through sound 

policies, safe practices, and effective management. The standards 

address core prison management issues such as staff training, inVerDate Aug 31 2005 11:04 Jan 27, 2010 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\070809\50862.000 HJUD1 PsN: 50862
5 

mate education, housing, investigations, and medical and mental 

health care in the aftermath of an assault. 

While broad in scope, the requirements are quite basic, and perhaps most importantly they are achievable. JDI is collaborating 

with officials in California and Oregon to bring their State prison 

systems into compliance with the standards even before they are 

required to do so. Both systems have already made tangible improvements. 

In California JDI helped secure a community-based rape crisis 

counselor on a sexual assault response team at 31 of the State’s 33 

prisons and provided cross-training so that the counselors and prison officials understand each other’s respective jobs and are able to 

work together in a constructive way. 

In Oregon the Department of Corrections established an inmate 

hotline so that survivors can safely contact the inspector general’s 

office when they are too afraid to report an assault to a prison official. 

While both States are suffering severe budget deficits resulting 

in spending freezes, their standards implementation projects are 

continuing, both because in the long term preventing sexual abuse 

is cost effective and because it is the right thing to do. 

While the passage of PREA and the release of the standards represent important milestones in improving inmate safety, we are a 

long way from ending prisoner rape. 

In inmate surveys mandated by PREA, the Bureau of Justice 

Statistics found that 4.5 percent of the more than 1.3 million inmates held in Federal and State prisons have been sexually abused 

in the previous year alone and that nearly 25,000 jailed detainees 

have been sexually abused in the previous 6 months. These surveys 

were snapshots reaching only inmates present on a particular day. 

As the annual number of admissions to county jails is 17 times 

higher than the jail population on any day, the BJS data represents just the tip of the iceberg. Further action is needed to ensure inmate safety and to end this egregious form of abuse. 

The Attorney General has 1 year to codify the standards as part 

of Federal regulation. Congress should encourage him to do so 

swiftly and without watering down these crucial provisions. 

NPREK relied on years of deliberation, including public hearings, 

expert working groups, and a public comment period. Corrections 

officials, practitioners, advocates, prisoner rape survivors and other 

stakeholders participated in each process. Continued scrutiny will 

only serve to silence the input of those most in need of protection. 

Indeed, delaying ratification will simply allow dangerous conditions 

to persist in our prisons and jails. 

Congress should also encourage the Attorney General to establish a mechanism for effective oversight of standards compliance, 

which goes beyond the certification of corrections administrators 

and the auditors with whom they contract. Without external monitoring, officials who participate or acquiesce in sexual violence are 

able to act with impunity. Additionally, even the most outstanding 

officials often cannot identify problems within their own systems, 

problems that an outsider can recognize, and may not be aware of 

best practices from other jurisdictions. Implementation of the 

standards must include strong external oversight that takes into 

6 

account information from current and former inmates, advocates, 

and other stakeholders along with the assessment of corrections insiders. 

Congress must also ensure that other PREA-related activities are 

able to continue and have sufficient funding to meet their mandates. In particular, the work of the Bureau of Justice Statistics 

must continue in order to identify trends, such as characteristics 

of inmates targeted for abuse, likely perpetrators in dangerous locations within corrections facilities. 

State grants must also be restored. To improve safety in their facilities corrections officials in many jurisdictions seek to develop innovative programs and/or improve their access to technology, but 

they lack the resources to do so. Decreasing PREA appropriations 

have resulted in no grants being awarded under the Protecting Inmates and Safeguarding Communities Program since fiscal year 

2006. Congress should restore its commitment to supporting State 

efforts to combat prisoner rape. 

Congress should also encourage the Department of Justice to revise the funding guidelines for the Victims of Crimes Act so that 

rape crisis counselors that rely on victim assistance grants are able 

to serve incarcerated victims. 

In addition to prohibiting the use of more than $300 million in 

victim assistance funds each year, the funding restriction has 

caused many rape crisis centers and other community-based service 

providers erroneously to believe that they cannot use support from 

other sources to serve incarcerated individuals without jeopardizing 

their government grants. As a result this restriction has had a devastating chilling effect on VOCA-funded agencies and their ability 

to serve all crime victims, including victims of rape and detention. 

Finally, legislative action is needed to ensure that other laws do 

not thwart PREA’s mission. In particular, the Prison Litigation Reform Act should be amended to address the insurmountable barriers confronted by prisoner rape survivors seeking legal redress for 

the serious abuses they have endured. Every day JDI hears from 

prisoner rape survivors from across the country, many whom could 

not meet the exhaustion requirement under PLRA. Short deadlines 

for filing a grievance, coupled with harsh and detailed procedural 

requirements of many facilities grievance systems can be simply 

impossible to navigate while suffering acute trauma from a sexual 

assault. 

Shockingly, some courts have found that sexual assault on its 

own does not amount to a physical harm, another requirement set 

forth in the PLRA, thereby precluding a survivor from receiving 

any monetary damages. Examples of claims that the courts have 

dismissed before trial and without any findings of fact include 

forced touching, abusive strip searches of women by male officers 

and being, quote, sexually battered by sodomy. 

The PLRA applies to all inmates, including incarcerated youth 

who may have limited legal access to resources and who often lack 

the sophistication to understand detailed procedural requirements. 

Whether housed in adult facilities or juvenile facilities, incarcerated youth are more vulnerable to abuse and less prone to file lawsuits. While not the primary focus of the law, young inmates have 

been drastically affected by the PLRA. 

7 

The NPREK standards seek to minimize the impacts of the 

PLRA’s exhaustion requirement, but they propose only a relatively 

small fix to one of various barriers imposed by the law. Congress 

should provide more comprehensive reform to further ease the exhaustion requirement, remove the physical injury provision, and 

exempt juveniles from the law’s application. 

With the support of a broad-based coalition of faith-based groups, 

human rights organizations, researchers and other advocates, 

PREA passed with unanimous support, confirming that combating 

prison rape is not a partisan issue. Sexual abuse and detention is 

an affront to basic human dignity that cannot and should not be 

tolerated. Now Congress needs to continue its effort to ensure that 

rape and other forms of sexual abuse are never part of the penalty. 

Thank you. 

[The prepared statement of Ms. Rothstein follows:] 

8 

PREPARED STATEMENT OF MELISSA ROTHSTEIN


MR-1.eps
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Mr. SCOTT. Thank you. 

Judge Walton. 

TESTIMONY OF THE HONORABLE REGGIE B. WALTON, JUDGE, 

UNITED STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA, CHAIR, NATIONAL PRISON RAPE ELIMINATION ACT 

COMMISSION 

Judge WALTON. Thank you very much, Chairman Scott and 

Judge Gohmert. Thank you very much for giving me the opportunity on behalf of the Prison Rape Elimination Commission to appear before you today. I would ask that my written testimony be 

made part of the record, and I will summarize. 

When I received a call from the White House on behalf of the 

President 5 years ago, I had no idea what I would be getting myself 

into. We were supposed to exist for only 2 years, but because of the 

scope of the mandate it took 5 years to complete our work. But I 

think we have vigorously gone about the process of producing a report and proposed standards that are common sense and that if implemented will in fact make a difference. 

The Commission was comprised of a broad group of individuals 

who had varying perspectives on how these issues should be addressed. However, we were able to reach consensus regarding each 

of the recommendations we have made, and we believe we got it 

right. We reached out to a broad segment of interested parties to 

get their views, including members of the prison industry, experts 

in the field, victims who had been victimized as a result of sexual 

assault, and we also opened up, even though we weren’t required 

by the statute, two 60-day periods of public comment after we 

issued our initial proposed standards and as a result of that made 

significant amendments to what ultimately was our final product. 

As you know, this is a significant problem. I don’t think anybody 

can accuse me of being light on crime. I have always taken a hard 

line position regarding crime and punishment. I believe when people commit crimes there should be consequences. However, in the 

25-plus years I have been a judge I have never when I indicated 

a sentence stated that a part of the sentence was sexual abuse once 

somebody was incarcerated. I think it is appalling that this still occurs in our society, and we believe that with the adoption of our 

standards it will go a long way in eliminating this problem. 

What do our standards say? We say, as was just indicated by Ms. 

Rothstein, that sexual assault is not inevitable. We know there are 

institutions in this country where sexual assault does not occur and 

it starts with strong leadership. Leadership has to come from the 

top, not only of the facilities that operate prisons, but also from the 

political establishment that puts out an attitude and a mandate of 

zero tolerance to this type of behavior. We also know that strong 

leadership will in fact instill in those who are in the rank and file 

the appreciation that prison rape and prison sexual assault will not 

be tolerated and there are consequences for it. 

We do believe that training and education, both of inmates and 

staff, goes a long way in sending the message this is inappropriate. 

We know that we have to improve the means by which individuals 

are able to report sexual abuse because now many individuals are 

afraid to do so because of recrimination. We also believe that indiVerDate Aug 31 2005 11:04 Jan 27, 2010 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\070809\50862.000 HJUD1 PsN: 50862
16 

viduals who are sexually abused should be treated and receive the 

same quality of treatment that individuals on the outside receive 

when they are subject to sexual abuse. And we also believe that 

strong oversight is important to ensure that the recommendations 

of the Commission that ultimately hopefully will be adopted by the 

Attorney General and at the State and local level are in fact carried out. 

In reference to the Prison Reform Elimination Act, as a judge on 

the Federal bench I am appreciative of the fact that there are 

many frivolous lawsuits that are filed, and therefore we do not recommend wholesale abolishment of the act, but we do believe as it 

relates to sexual abuse that there should be modifications of the act 

to ensure that individuals do have access to the Federal court system. 

We believe that, for example, when you have time limits in place 

that require individuals within days, weeks or months to report 

sexual abuse that you inhibit the ability of individuals to have a 

means of bringing cases before the court because we know that the 

psychological trauma that individuals experience as a result of this 

behavior will in fact sometimes manifest itself for a long period of 

time, and people are not willing or even able to come forward to 

express their concerns. 

We also believe that the physical injury requirement is a problem 

that needs to be addressed and that the exhaustion requirement is 

a problem that needs to be addressed, and we think with modifications, reasonable modifications of those provisions of the act, it will 

in fact provide a means by which individuals will have access to 

the court. 

The journey that I have taken with the Commission over 5 years 

was a difficult one, but nonetheless we believe that we have produced recommendations that if adopted will in fact make a difference, and with the assistance of Congress and the executive 

branch we believe that we cannot maybe eliminate the problem but 

go a long way in mitigating the incidents of sexual abuse of our 

prisons and jails and other detention facilities. 

Thank you. 

[The prepared statement of Judge Walton follows:] 

PREPARED STATEMENT OF JUDGE REGGIE B. WALTON

Good afternoon. Chairman Scott, thank you for inviting me here today, and for 

the opportunity to speak with the members of the Subcommittee on Crime, Terrorism and Homeland Security. 

I am United States District Judge Reggie Walton. For the past five years, I’ve had 

the honor and privilege of serving as the Chairman of the National Prison Rape 

Elimination Commission. 

In 2003, the President signed the Prison Rape Elimination Act, or PREA, into 

law. The legislation created the Commission and charged us with conducting the 

first national study of government policies and practices related to sexual abuse of 

individuals detained in our nation’s prisons, jails and other forms of detention facilities. Our mandate also required us to develop and propose zero-tolerance national 

standards for the detection, prevention, reduction, and punishment of prison rape 

and other forms of sexual abuse. 

On June 23, 2009, the Commission publicly released its report and standards. 

Federal, state and local corrections officials across the country, in all types of facilities have now been provided the first comprehensive blueprint for eliminating sexual abuse in confinement or detention. 

Congress, speaking through the Prison Rape Elimination Act, found that the ‘‘victims of prison rape suffer severe physical and psychological effects that hinder their 

17 

ability to integrate into the community and maintain stable employment upon their 

release from prison.’’ Those consequences are difficult to quantify, but our research 

has confirmed that the aftershocks of prison rape are felt far beyond the prison 

walls in the cost of services to help former inmates address the trauma of prison 

rape. It is, quite literally, a cost we all bear. 

More than 7.3 million Americans are confined in the U.S. or supervised in the community, at a cost of more than $68 billion every year. Given the Nation’s enormous investment, we should ensure that these environments are as safe as they can 

be for those who live and work in these facilities. And we must recognize that sexual 

abuse dramatically undermines those goals. 

This reality has been repeatedly confirmed during the five years that the Commission has investigated prison sexual abuse. We have been motivated and united not 

just by our charge from Congress, but also by the deeply moving accounts of sexual 

abuse that we heard from victims and their families. 

These accounts were augmented by a path-breaking survey in 2007 by the Bureau 

of Justice Statistics (‘‘BJS’’), under the auspices of PREA. The BJS estimated that 

in the twelve months preceding its survey, 60,500 state and federal prisoners had 

been sexually abused. The results of a pilot study on juvenile detention by BJS were 

even more disturbing, finding far higher rates of abuse. 

These stunning statistical results likely understate reality because they rely on 

prisoner self-reporting. Among the Commission’s findings is the fact that in many 

facilities, inmates cannot easily and safely report prisoner rape. In still more cases, 

prisoners refuse to do so, because they are afraid of retaliation from staff or other 

inmates, or because they fear they will not be believed. 

Informed by the BJS survey outcome and material from other federal agencies, 

the Commission consulted with hundreds of state and local officials, correctional 

staff, survivors of sexual abuse, medical personnel and academic and legal experts 

in a wide range of relevant fields. We also conducted an exhaustive review of the 

available professional and academic literature on prison sexual abuse. 

We identified nine major findings on the causes and consequences of a problem 

that has been widely acknowledged, but poorly understood. They are now presented 

and thoroughly discussed in the NPREC report. We also developed a four volume 

set of proposed standards to address prison rape and sexual abuse in correctional 

settings, including, adult prisons and jails, lockups, community corrections, and juvenile facilities. 

Among our key findings is that prison rape is not inevitable. The existing data 

show that when corrections officials demonstrate leadership, they can create a culture within facilities that promotes safety, instead of tolerating abuse. 

Developing that leadership is challenging. But the available data and our own research led the Commission to conclude that trained and committed corrections officials are the critical factor in keeping facilities safe. 

We also concluded that 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. 

It is clear that the most effective prevention efforts are targeted interventions 

that reflect where, when, and under what conditions sexual abuse occurs. Sexual 

abuse incident reviews, as the Commission’s standards would require, produce the 

kind of information administrators need to deploy staff wisely, safely manage highrisk areas, and develop more effective policies and procedures. 

Correctional agencies must also collect uniform data on these incidents. However, 

even the most rigorous internal monitoring is no substitute for opening correctional 

facilities to outside review. The Commission therefore requires detailed, robust audits of compliance with its standards by independent auditors at least every three 

years. 

In another of our major findings, we concluded that many victims cannot safely 

and easily report sexual abuse, and those who speak out often do so to no avail. 

Reporting procedures need to be significantly improved to build confidence and 

prevent retaliation, without relying on isolation of the victims. Investigations of reported abuse must be thorough and competent, and perpetrators must be held accountable through administrative sanctions and criminal prosecutions. 

Those are just a few of the significant conclusions our Commission reached. In addition to our key findings, the Commission also submitted proposed standards to the 

Department of Justice and other state and federal officials to help eliminate prison 

rape. The standards were developed after consultation with correctional officials, 

survivors, and sexual abuse experts and a comment period during which we received 

feedback from more than 225 organizations and individuals. 

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cluding prisons, jails, lock-ups, juvenile detention centers, and community corrections. As required by PREA, Attorney General Holder now has one year to issue 

final rules based on these standards. 

Congress can further facilitate effective responses to sexual abuse in confinement 

and detention. Beyond providing funding to continue the robust initiatives of the 

Department of Justice under PREA, Congress should amend the Prison Litigation 

Reform Act, the Violence Against Women Act, and revise language in the 1996 

Guidelines on Victim Assistance that direct the use of funds from the Victims of 

Crime Act. 

Based on testimony from legal experts, survivors and their families, we recommend that Congress amend the administrative exhaustion provision and physical 

injury requirement in the Prison Litigation Reform Act. These can create unreasonable barriers for victims of sexual abuse to gain access to our federal courts. The 

Commission further recommends that Congress amend the Violence Against Women 

Act (VAWA) Reauthorization of 2005 to include incarcerated victims of sexual abuse 

as a class served under VAWA notwithstanding the nature of their criminal convictions. The Commission heard testimony from practitioners that limitations placed 

on VAWA and Victims of Crime Act (VOCA) funding restrict their ability to provide 

services to certain categories of inmates, even when they have been the victims of 

sexual abuse. 

The members of the Commission have been shocked and saddened by the personal 

accounts we have heard. But amid darkness we have discovered inspiration and 

hope—Inspiration in the resilience and determination demonstrated by survivors 

who are willing to expose and oppose sexual abuse in correctional facilities—Hope 

because of the many correctional staff and supervisors who currently confront and 

work to resolve this persistent problem. PREA has raised the consciousness of many 

corrections officials—and the elected officials to whom they report—about the importance and feasibility of responding to rape and other forms of sexual abuse. But 

there is still much to be done. The Commission trusts that our report and national 

standards will convince everyone of the need to act now. 

As the Commission’s assignment concludes, another phase of the work begins. The 

standards the Attorney General promulgates will be immediately applicable to the 

federal Bureau of Prisons. The action then moves to the states. After the promulgation of standards by the Attorney General, state systems will have one year to comply, or risk losing five percent of any federal funding they receive for prison purposes. 

Along with my distinguished and committed colleagues on the Commission, I am 

proud to offer our report and standards as the next step toward creating correctional 

and detention settings that are safe and free of the danger and shame of sexual 

abuse. 

The Commission members remain ready to assist the Attorney General, Congress, 

our Nation’s many corrections and detention leaders and staff, and others as they 

move forward on this matter of legal and moral consequence to incarcerated individuals, those who are responsible for their safety, and the American public. 

Thank you again for inviting me to be here today on behalf of the Commission, 

and for the opportunity to speak to our proposed standards and our key findings 

and recommendations. 

Mr. SCOTT. Ms. Kenyon. 

TESTIMONY OF SEAN E. KENYON, ATTORNEY, HOEPPNER 

WAGNER & EVANS LLP, MERRILLVILLE, IN 

Ms. KENYON. Good afternoon, Chairman Scott, Ranking Member 

Gohmert. My name is Sean Kenyon. I practice law in northwest Indiana and have been admitted to practice since 1991. Since mid2003 I have been representing a young man who at the age of 15 

was raped while held in the South Bend juvenile facility. My testimony today will focus on his particular case and what I have 

learned through the investigation of matters involving him. In the 

interest of privacy I will refer to him as John. 

I have interviewed approximately a dozen other juveniles or their 

parents who either have been confined in the South Bend facility 

or another facility in the State of Indiana. I have also read many 

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reports and assessments of the South Bend juvenile facility, as well 

as other facilities in the State of Indiana. 

When he entered the facility John came with a history of mental 

illness. He had been diagnosed with depression and was taking 

medications for depression at the time. Like most of the students 

who enter that system, his medications were soon completely discontinued by the staff. 

I have constructed a fairly comprehensive timeline detailing the 

events of his confinement based on the interviews that I have done, 

his self-reporting, an examination of the records maintained by the 

State. His first 3 weeks in the South Bend facility seemed to have 

been largely uneventful. Thereafter in mid-October 2002, during a 

visit from his mother, he tried to pass a note to her. The guards 

would not allow that to occur. That incident seemed to be the beginning of what became a downward spiral of events. About 4 days 

after his mother’s visit the medical records note that he awoke in 

the medical unit at the facility, but it wasn’t clear at that time 

whether he had suffered a seizure or been involved in some sort 

of fight or altercation. He had bruises near his left ear and left eye. 

And about 1 week later he was seen again with a lump or swelling 

on his lower lip. Sometime in late October John was raped. A much 

larger boy than John raped him and at least one other boy served 

as a lookout and may have helped to hold John down. John struggled unsuccessfully. He doesn’t have a really good memory of the 

event and he has never provided a great amount of detail. While 

at the facility he did not report being raped but did state to the 

medical staff that he had been messed with and that he had recently been jumped by offenders in the unit. 

It was after his release about 6 months later that his mother 

began to suspect that he may have been raped. She questioned him 

further at that time, sought medical examination and therapy for 

him. 

Without question the records maintained by the Department of 

Correction in Indiana documenting his incarceration from early November 2002 reflect a very different young man than the individual 

who entered the facility. His records note that by that time he was 

suicidal. The physician ordered him to be moved to a facility where 

he could be assessed by a psychiatrist because there was no staff 

psychiatrist in that facility. The physician reported his assessment 

and recommended a plan for transfer to the superintendent, and 

the superintendent advised that John would be transferred the 

next day as that particular day was a holiday for the Department 

of Correction. 

In the meantime, because John had expressed suicidal ideations 

and had actually worked to twist a bed sheet into a rope to be used 

to attempt or to commit suicide, the physician ordered John placed 

on suicide watch, directing that he be checked at 5-minute intervals. No transfer as recommended by the physician was arranged 

by the Administration. Three days later two more physicians recommended that he be transferred to a facility with 24-hour nursing 

care for observation, psychiatric intervention, and for his safety. 

Again, however, that transfer did not take place. 

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ther for medical suicide watch or for disciplinary segregation. His 

survival strategy became clear. Each time that he was removed 

from a segregation area back to a general dormitory facility he 

would act out to be put back in segregation, which would allow him 

to be free from access by the other students. In isolation he was 

able to keep himself safe from what I deemed to be a survival of 

the meanest environment. He feared a number of things, including 

retribution. And in fact there were a number of instances when he 

suffered some kind of beatings from other students. He was only 

15 at the time. He was very small in size. And he and a number 

of other adolescents who I have interviewed have repeatedly advised of harassment, abuse, and sexual assaults carried out by 

older and larger youth on the younger ones. In addition, many of 

the students reported that the guards at the facility sometimes encouraged and enabled fighting and even bet on who would win the 

fights. So it wasn’t always easy for the students at the facility to 

go to the guards and advise of problems that they were experiencing. 

In addition, the design of the building and lack of staffing at the 

facility added to the fear of retribution. Assessments that have 

been done by the United States Department of Justice and the 

State of Indiana itself have indicated that it was understaffed and 

insufficient cameras in the dormitories. As a result there were hidden spaces where students had the opportunity to harm others. 

In John’s case his fear of retribution proved justified. When released in January 2003 from segregation he was beaten and needed 

sutures to stitch up the injuries to his head. Thereafter his mother 

worked for 3 months to secure his release and was eventually able 

to do so only by prevailing on the Governor of the State. 

[The prepared statement of Ms. Kenyon follows:] 

21 

PREPARED STATEMENT OF SEAN E. KENYON


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TESTIMONY OF JON OZMINT, DIRECTOR, SOUTH CAROLINA 

DEPARTMENT OF CORRECTIONS, COLUMBIA, SC 

Mr. OZMINT. Thank you all for the opportunity to testify here 

today, Mr. Scott and Mr. Gohmert. 

First of all, with regard to the PREA rape elimination—to the 

PREA process and the Commission I would extend my thanks to 

Judge Walton. That Commission has done yeoman’s work. I know 


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how difficult. I have been a director for the entire time that they 

have been in existence, and we have had the opportunity to provide 

input. And when I look at the makeup of the Commission and 

Judge Walton and think of how difficult his task has been, I do 

want to extend the thanks on my behalf, but also on behalf of the 

Association of State Correctional Administrators. He has been more 

than willing to listen to our concerns throughout the process. 

Along those lines I would add, and this is in my written testimony, when I was a prosecutor it was always common for lawmakers at the State and Federal level to want to hear from us before they crafted policy. One of the strange things, and I came to 

corrections from the outside, I did not grow up working in the prison system, I was a prosecutor, deputy attorney general, that was 

my path to this job. I have been surprised at how little input correctional administrators often have into the public policymaking 

process. And as an outsider coming in I can tell you all this, that 

there is no more—there is no group of professionals that I have 

ever worked with who have a broader, more expansive view of and 

stake in what they do to safe and humane operation of prisons 

than the prison directors across this country at the Federal level 

and in the Territories of the United States. And for that reason I 

thank you for the opportunity to be here. 

With regard to the standards put forth by the Commission we 

really—most of those standards—for example, in my State, we are 

doing that. I mean we are mandatory reporting. We have the 1-800 

number. We have had that in place for years. We have State laws 

that require us to investigate prison rape, any allegation of sexual 

assault. Do I need to stop now? 

Mr. SCOTT. No. 

Mr. OZMINT. Any allegation of sexual assault, mandatory investigations. So with one exception we don’t really have many issues 

with the standards that are put forth. And we are going to work 

with the Attorney General’s office through the Director of the Bureau of Prisons in making our concerns, our limited concerns about 

those standards known with this one caveat. 

These standards, many of these standards will cost money. And 

I come from a State where I am expected to run a prison system 

on $13,100 per inmate per year. That is lower than anybody in the 

country. And so if you decide that you are going to impose some 

of these standards on the States, then you need to realize some 

funding needs to come with that because my legislature is not 

going to provide that funding. That is just the reality of operating 

prisons in South Carolina. 

I have been asked to specifically address the suggested or the 

proposed rollbacks to the Prison Litigation Reform Act. And my 

comments in that regard are I find myself in the unique position 

as a State official of defending the actions of the Federal Congress. 

I think, Mr. Scott, that you all got the Prison Litigation Reform Act 

right. I can’t think in my lifetime, my short lifetime of practicing 

law and watching Congress and watching public policy, of an example where a more balanced, bipartisan, you had President Clinton 

in the White House, you had a push because, sure, the Prison Litigation Reform Act was aimed at frivolous lawsuits, that was part 

of it, and, sure, you had court orders all over the country, and quite 

27 

frankly, Mr. Scott, it was the elected officials of this country who 

felt like they had lost control of their prisons, the people who get 

votes for a living. That is really what resulted in the Prison Litigation Reform Act. 

But when you look at the language of that act and the language 

that this report proposes to roll back, I think the language is genius, and I am going to read it to you. No action shall be brought— 

and this was with respect to exhaustion only—no action shall be 

brought until such administrative remedies are—as are available 

have been exhausted. And that is where I think we are dealing 

with a myth. And here is how I define the myth. The myth is the 

Federal District Court judge who is disinterested in whether or not 

those remedies were really available. And what my written testimony does is to try to make that point, that in the implementation, 

the interpretation and implementation of PLRA, Mr. Scott, it has 

done exactly what this Congress wanted it to do. It has not gone 

too far one way or the other. And the judges of this country, the 

Federal judiciary across this country from the Supreme Court down 

to the Federal District Court in the Southern District of Alabama, 

have all interpreted that act in a way that preserves the rights of 

inmates to have access to those administrative remedies. 

[The prepared statement of Mr. Ozmint follows:] 

28 

PREPARED STATEMENT OF JON OZMINT


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Mr. SCOTT. Thank you, Mr. Ozmint. 

Ms. Freeman. 

TESTIMONY OF LISA FREEMAN,, PRISONER RIGHTS PROJECT, 

LEGAL AID SOCIETY OF NEW YORK, NEW YORK, NY 

Ms. FREEMAN. Good afternoon, Chairman Scott. Thank you for 

the opportunity to share our experience and knowledge about jail 

and prison matters with this Committee. Thank you, Judge 

Gohmert and Members of the Committee. 

I am an attorney at the Prisoners Rights Project at the Legal Aid 

Society of New York, and what brings me here today is my experience as counsel, along with Dori Lewis and the pro bono assistance 

of Debevoise & Plimpton, in the Federal lawsuit Amador v. Andrews. 

Amador is a case challenging the sexual abuse of women prisoners by male staff in the New York State prisons and the administrative policies that have allowed this kind of abuse to continue 

without remedy for years. We enthusiastically support the National 

Prison Rape Elimination Commission standards to ensure that 

prisons have effective systems for the prevention, detection, and response to assault. In particular, however, we urge Congress to take 

on the Commission’s call for immediate action to reform the Prison 

Litigation Reform Act, or the PLRA. 

In direct contradiction to what Mr. Ozmint just testified to, we 

consider the injustice that we have faced in Amador to be the direct result of this ill-conceived act. We brought Amador because 

when women in the custody of the New York State Department of 

Correctional Services complain that they have been sexually assaulted by staff the Department takes no action—you will let me 

know if I need to stop too, right—the Department takes no action 

against the officer unless the woman has physical proof. 

Plaintiffs have reported assault by officers about whom the Department had received repeated complaints by other women for 

years. None of these women’s complaints were credited because 

they lacked physical proof. As a result the Department continues 

to allow these officers to guard women prisoners even alone on the 

housing unit at night. 

One of our plaintiffs even reported she was raped by an officer 

and that he had shaved his pubic area, a fact that was subsequently confirmed. Nonetheless, this officer continues to guard 

women prisoners today and has reportedly been promoted. And despite this outrageous situation in New York our claims have been 

unable to proceed because of the exhaustion requirement of the 

PLRA. 

We have spent the last 6 years litigating whether the 16 named 

plaintiffs, each of whom alleges sexual assault by staff, sufficiently 

exhausted their available administrative remedies to allow their 

claims for systemwide relief and for money damages to go forward. 

Why has this process been so difficult? Because the PLRA has 

been used as a weapon to prevent meritorious claims of prisoners 

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ing with and their complaint would be investigated by the Sex 

Crimes Unit of the Inspector General’s office. 

So each of our plaintiffs did just that. They complained to the 

Sex Crimes Unit and their complaint was investigated. No one told 

them they needed to file a grievance. Nonetheless, the Department 

came into court and claimed that despite the explicit information 

they had given in writing to the plaintiffs these women had failed 

to exhaust because they hadn’t filed a grievance. The District Court 

agreed and dismissed all of these women’s claims. 

Three plaintiffs had in fact filed grievances and appealed them 

because they had happened to speak to lawyers who advised them 

to do so even though any reasonable person would have believed 

it was unnecessary. By the time the District Court decided the exhaustion issue more than 4 years after the case was brought only 

one of these plaintiffs had remained in custody. Incredibly, the District Court dismissed her claim for systemwide relief because it 

found her grievance didn’t sufficiently identify the prison administrators or specific policies that enabled her rape. In effect, the court 

demanded that her grievance set forth complex theories of supervisory liability, demanding that it tell prison administrators not 

just that she had been raped but explain to them how it was that 

their policies were not working and who in the departmental hierarchy was responsible. 

These are the sort of questions that lawyers spend months or 

longer trying to determine. Prisoners who are poorly educated and 

are almost always proceeding without lawyers at this stage cannot 

reasonably be expected to provide this kind of information. They 

only know the Department has a purported zero tolerance policy 

for sexual abuse. They aren’t told prison policies for training or supervising staff, let alone policies for internal departmental investigations. 

Finally, victims of assault, of sexual assault, as has been mentioned, are often additionally trying to cope with the trauma of the 

assault as well as the very real fear of retaliation for reporting the 

incident at all. On appeal the Attorney General went so far as to 

claim that even a plaintiff’s grievance that requested that the Department train, assign, and supervise its staff so that the inmate 

would not again be subjected to sexual assault, a grievance that 

was dictated in large part by an attorney, was insufficient to allow 

her systemwide claims to go forward because it didn’t say how 

these policies should be changed. 

These impossible standards for exhaustion effectively immunized 

prison administrators from meritorious lawsuits. Even if the District Court’s decision is reversed on appeal, as we hope it will be, 

hundreds of women have been subjected to departmental policies 

over the last 6 years that we believe are unconstitutional and as 

a result have been exposed to the unnecessary risk of sexual assault, and thousands of dollars have been spent while the issue of 

exhaustion has been litigated. 

And believe it or not, our plaintiffs are the lucky ones. Unlike the 

vast majority of prisoners, they have legal counsel and legal counsel with significant financial resources. But even these plaintiffs 

have been unable to proceed so far with their claims because of the 

PLRA. 

42 

The law cannot be allowed to exempt prison administrators from 

a legal challenge if they simply create opaque mechanisms and contest exhaustion in every case. The law cannot be allowed to prevent 

American citizens from access to the courts to protect their most 

basic human rights. 

We endorse the Commission’s call for reform of the exhaustion 

requirement for victims of sexual abuse, and we further call for repeal of the PLRA’s exhaustion requirement for all prisoners. The 

injustice that has been done in Amador could happen to any prisoners and must not be allowed to recur. 

Thank you. 

[The prepared statement of Ms. Freeman follows:] 

43 

PREPARED STATEMENT OF LISA FREEMAN AND DORI LEWIS


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Mr. SCOTT. Thank you. Judge, do you have questions? 

Mr. GOHMERT. I won’t use my full time, but I would like to ask 

Judge Walton, you had mentioned that we know that there are facilities where prison rape does not occur. You had mentioned that 

it usually has to start with the top down. So there are facilities 


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where rape does not occur. And obviously, as you all know, you 

can’t rehabilitate somebody while they are being sexually assaulted. They just don’t work together. 

How have those facilities been able to avoid sexual assault without having the adjustment to the PLRA? 

Judge WALTON. Well, they have taken seriously the issue. They 

have zero tolerance policies in place. They have very well developed 

classification systems whereby they are able to identify individuals 

who are potential predators and those who are potential victims, 

and they make sure that those individuals are not commingled. 

They have educated their staff about the importance of not permitting this to occur, appreciating that when this occurs it does put 

everybody at risk in the prison facility, including those who are 

there to guard and protect. They have put in place systems that 

provide a means by which individuals are able to report sexual assault when it occurs. 

Mr. GOHMERT. Because that is something we heard is a problem 

before. If you have to file your complaint with the same person that 

is committing the acts, it doesn’t do you a whole lot of good. So 

they have implemented some way to make sure that complaints 

still can be filed without being filed with the people that are causing the problem. 

Judge WALTON. Means by which they are able to make reports 

to individuals on the outside, a process internally that permits 

them to make a report where it is not going to end up being reported to the individual responsible for the abuse. And strong oversight to make sure that the policies that they have adopted will in 

fact be followed. 

Mr. GOHMERT. Okay. Thank you. I appreciate that insight. I do 

have concerns when—of course under Texas tort law you normally 

have to have some type of physical injury in order to get monetary 

damages. I would be more open toward perhaps injunction, something like that, to prevent things from happening without opening 

the flood gates of tax dollars that might be better used fixing the 

system instead of—— 

Mr. SCOTT. Let’s let the Judge respond to that. What is the justification for the requirement for physical injury? I mean you can 

do a lot of damage to someone without—I mean waterboarding 

doesn’t leave physical injury. I assume that would be a violation of 

rights. What is the justification for the physical injury requirement? 

Judge WALTON. Well, I am sure Congress believes that, and justifiably so, and I am not one who comes here without a vested interest in this issue because even with the act in place I still receive 

many frivolous lawsuits being filed by inmates. 

Mr. SCOTT. Until you have had some kind of hearing, if you get 

100 complaints, one of them is meritorious, 99 frivolous, the only 

way to deal with that is to dismiss the 99 and hear the—and continue to hear the one. How do you screen out—and the other way 

of doing it is just not hear anything, including the meritorious 

claims. How do you deal with the fact that you don’t know whether 

something is frivolous until you have actually looked into it? 

Judge WALTON. I mean obviously that is a difficult call that Congress will have to make if the statute is going to be amended. HowVerDate Aug 31 2005 11:04 Jan 27, 2010 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\070809\50862.000 HJUD1 PsN: 50862
56 

ever, if this is perceived, and I hope and believe it should be, as 

a significant issue that must be addressed by this country then I 

think there will be maybe consequences that have to come with 

that amendment, and that may mean that we will have to entertain some of the suits that may be frivolous in order to ensure that 

we are not barring those suits that do in fact have merit. I doubt 

very seriously that you are going to have hordes of people who are 

going to report that they were sexually abused just for the sake of 

saying that they were sexually abused. It is a humiliating thing to 

occur. 

Mr. SCOTT. So that specific exception to the physical injury would 

not be, that wouldn’t be a problem? 

Judge WALTON. Absolutely not. I mean if somebody is—a male 

who is incarcerated is forced to perform oral sex on another inmate 

there is not going to be any physical injury. But the psychological 

injury that that will cause is probably going to be a lifetime event. 

Mr. SCOTT. Do you have other questions? 

Mr. GOHMERT. Just I know that in Texas the reason, and of 

course you know, that under the idea of the king is sovereign, the 

only way you can sue the Federal Government or the State government normally is if they agree to be sued. And so what we really 

need to focus on is the most important thing here to prevent sexual 

abuse in the prison or is it to provide money damages. I would 

think our number one goal is to provide money damages, but—I 

mean not provide, not provide money damages but to just stop the 

abuse. And I certainly appreciate the Commission’s finding. People 

should be accountable when these things happen, and I appreciate 

that finding as well Judge by the Commission. 

But anyway thank you, Chairman. I hope we can work something out. Our goal is to stop prison sexual abuse. And apparently 

it can be done. And I have dealt with thousands of felony defendants and you can’t tell me that they are not above, some of them, 

conspiring together to figure out ways to get money damages if that 

is something available to them, and I would like to avoid that. 

Thank you, Chairman. 

Mr. SCOTT. And we also have an interest in running facilities 

that conform to the Constitution, and how to do that and separate 

the frivolous from the meritorious is a challenge we have to deal 

with. 

And so I would like to thank our witnesses for their testimony 

today. Members may have additional written questions which we 

will forward to you and ask that you answer as promptly and as 

quick as possible so that your answers can be made part of the 

record. The hearing record will remain open for 1 week for the submission of additional materials. 

And without objection, the Subcommittee stands adjourned. 

Mr. GOHMERT. I would ask unanimous consent to insert my opening statement into the record. 

Mr. SCOTT. Without objection. 

[The prepared statement of Mr. Gohmert follows:] 

57 

PREPARED STATEMENT OF THE HONORABLE LOUIE GOHMERT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE ON

CRIME, TERRORISM, AND HOMELAND SECURITY


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Mr. GOHMERT. Thank you. 

Mr. SCOTT. Without objection, the Subcommittee stands adjourned. 

[Whereupon, at 4:52 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

66 

PREPARED STATEMENT OF MICHAEL W. MACLEOD-BALL, INTERIM DIRECTOR AND JENNIFER BELLAMY, LEGISLATIVE COUNSEL, WASHINGTON LEGISLATIVE OFFICE, THE

AMERICAN CIVIL LIBERTIES UNION (ACLU) 


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f 


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PREPARED STATEMENT OF THE STOP ABUSE AND VIOLENCE EVERYWHERE

(SAVE) COALITION


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f 


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WASHINGTON POST ARTICLE ENTITLED ‘‘A PRISON NIGHTMARE’’ 


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f 


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REPORT ENTITLED ‘‘NATIONAL RAPE ELIMINATION COMMISSION REPORT,’’ JUNE 2009 


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