NORTHEASTERN UNIVERSITY
SCHOOL OF LAW
NORTHEASTERN PUBLIC LAW AND THEORY FACULTY RESEARCH
PAPERS SERIES NO. 223-2015

PRISON RAPE ELIMINATION ACT LITIGATION
AND THE PERPETUATION OF SEXUAL HARM

New York University Journal of Legislation and Public Policy, Vol. 17, No. 4,
pp. 801 - 834 (2014)

Gabriel Arkles
Northeastern University – School of Law

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PRISON RAPE ELIMINATION ACT
LITIGATION AND THE PERPETUATION
OF SEXUAL HARM
Gabriel Arkles*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. HOW JUDICIAL TREATMENT OF PREA HAS HARMED
PRISONERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Presumption of Irrelevance to Plaintiffs’
Constitutional Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Presumption of Relevance to Defenses . . . . . . . . . . .
C. Exhaustion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. HOW COURTS SHOULD TAKE PREA SERIOUSLY . . . . . . .
A. Evaluating Objective Seriousness . . . . . . . . . . . . . . . .
B. Evaluating Subjective Knowledge . . . . . . . . . . . . . . . .
C. Evaluating Other Claims . . . . . . . . . . . . . . . . . . . . . . . . .
D. Evaluating Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Evaluating Exhaustion . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. REFORM AND RETRENCHMENT . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION
Law reform of any sort often sparks controversy. In the prison
context, those committed to prison change and prisoner justice hotly
debate paths for pursuing their goals. Many scholars and leaders caution that even well-meaning prison law reform projects can lead to
* Professor of Legal Skills at Northeastern University School of Law. I would
like to thank my wonderful research assistants, Shira Burton, Julie Howe, Sara
Maeder, Amanda Montel, Stas Moroz, Jenna Pollock, and Kyle Rapiñan for all of
their work. I would also like to thank Noa Ben-Asher, Owen Daniel-McCarter,
Sharon Dolovich, Pooja Gehi, Betsy Ginsberg, Susan Hazeldean, Valerie Jenness,
Sylvia Law, Dori Lewis, Lynn Lu, Deborah Malamud, Alison Mikkor, Danya Reda,
Anna Roberts, Giovanna Shay, Brenda Smith, Dean Spade, Chase Strangio, Tony
Thompson, Rebecca Widom, Alisha Williams, the members of the NYU School of
Law Lawyering Scholarship Colloquium, the LatCrit/SALT Junior Faculty Development Workshop, and the Law and Society Association for their feedback and support
in the development of this piece. Special thanks to Jason Lydon for his inspiration,
instruction, and help with finding a title.

801

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prison expansion, cooptation, and unanticipated harms to prisoners
and communities.1 At the same time, they urge that we must not abandon reform projects that have the potential to improve brutal conditions in the near future.2
The Prison Rape Elimination Act (PREA) is perhaps the most
significant law reform project undertaken on U.S. prison issues in the
twenty-first century. Congress passed PREA unanimously in 2003.3 In
2012, the Department of Justice (DOJ) promulgated long-awaited implementing regulations, pursuant to the statutory mandate to detect,
prevent, reduce, and punish prison rape.4 In 2014, the Department of
Homeland Security (DHS) followed suit.5 In the decade since PREA
was enacted, it has been mentioned in around 225 cases available on
Westlaw, many of them decided in the time since the regulations were
promulgated.6
In this Article, I provide the first scholarly analysis of the role of
PREA in prison litigation. Both plaintiffs and defendants invoke
PREA in litigation, even though PREA does not create a private right
of action or affirmative defense. Courts have not responded to these
invocations consistently, raising questions about what role the statute
and its regulations should have in evaluation of claims and defenses.
In a legal landscape where it is increasingly difficult to rely on an

1. See, e.g., ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 103 (2003) (“A major
challenge of this movement is to do the work that will create more humane, habitable
environments for people in prison without bolstering the permanence of the prison
system.”); Morgan Bassichis, Alexander Lee & Dean Spade, Building an Abolitionist
Trans and Queer Movement with Everything We’ve Got, in CAPTIVE GENDERS: TRANS
EMBODIMENT AND THE PRISON INDUSTRIAL COMPLEX 15, 34 (Eric A. Stanley & Nat
Smith eds., 2011) (“We can respond to the crises that our communities are facing right
now while refusing long-term compromises that will strengthen the very institutions
that are hurting us.”); Heather Schoenfeld, Mass Incarceration and the Paradox of
Prison Conditions Litigation, 44 LAW & SOC’Y REV. 731, 759–60 (2010) (discussing
unintended harms of prison reform litigation); Reina Gossett & Dean Spade, No One
is Disposable, BARNARD (Feb. 7, 2014), http://bcrw.barnard.edu/event/no-one-is-dis
posable-everyday-practices-of-prison-abolition/ (discussing ways to support currently
incarcerated people while practicing prison abolition).
2. See supra note 1.
3. Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, 117 Stat. 972 (2003).
4. 28 C.F.R. § 115 (2014).
5. See 42 U.S.C. § 15602(3) (2012).
6. As of December 2014, 227 decisions available on Westlaw mentioned PREA. I
say mentioned rather than cited because in quite a few of these cases PREA is mentioned only as a designation for a particular policy or practice that a state or local
detention agency presumably implemented in an effort to comply with PREA. The
actual language of the statute is not always considered and a citation to it is not always
included.

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implied private right of action,7 the question of the appropriate impact
of federal legislation and regulation on separate claims in lawsuits
takes on particular importance. In this piece, I examine current approaches and recommend improving them.
I do not seek to give a comprehensive review of litigation involving PREA. Instead, I deliberately foreground those situations where
PREA has disserved prisoners, and pick apart how and why that disservice occurs. In emphasizing these situations, I do not mean to imply that PREA has only harmed prisoners or has always completely
failed to help them. Some cases and the experiences of some advocates bear out a more complex reality: at times, in ways, PREA has
helped. Those stories, however, get told elsewhere.8
I want to tell the stories of how PREA has gone wrong, harming
the people it should protect, because these stories matter. They matter
for their own sake and for the sake of understanding how PREA,
prison litigation, and the facilities that incarcerate millions of people
in the U.S. operate. They matter for understanding constitutional,
criminal, and administrative law. They matter also because they provide a wedge for prying open stubborn and crucial questions—how do
power structures co-opt progressive law reform? What traps must
those who wish to improve social conditions be wary of? Can

7. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (“We now reject the
notion that our cases permit anything short of an unambiguously conferred right to
support a cause of action brought under § 1983. . . .”); Alexander v. Sandoval, 532
U.S. 275, 286 (2001) (“The judicial task is to interpret the statute Congress has passed
to determine whether it displays an intent to create not just a private right but also a
private remedy. . . ”) (citation omitted); Blessing v. Freestone, 520 U.S. 329, 340–41
(1997) (requiring showing that Congress intended to benefit plaintiff, that Congress
created a right that is not too “vague or amorphous” for enforcement, that Congress
“unambiguously impose[d] a binding obligation on the States,” and that Congress did
not preclude the remedy) (citations omitted).
8. See, e.g., Robert A. Shuhmann & Eric J. Wodahl, Prison Reform Through Federal Legislative Intervention: The Case of the Prison Rape Elimination Act, 22 CRIM.
JUST. POL’Y REV. 111 (2011) (noting optimism for legislative change in prison reform
in the wake of PREA); Sarah K. Wake, Not Part of the Penalty: The Prison Rape
Elimination Act of 2003, 32 J. LEGIS. 220, 235 (2006) (“[I]t initially appears that the
PREA is meeting some of its goals and causing a change in the way that prison rape is
viewed in America.”); A Lifeline for Prisoner Rape Survivors Still Behind Bars, JUST
DETENTION INT’L, http://www.justdetention.org/en/10-years-PREA.aspx (“The services offered at CCI and CIW represent one of the success stories of the Prison Rape
Elimination Act.”); ACLU, Advocacy Guide, in END THE ABUSE: PROTECTING LGBTI
PRISONERS FROM SEXUAL ASSAULT 2 (2014), https://www.aclu.org/sites/default/files/
assets/012714-prea-combined.pdf, (“The final PREA regulations can be leveraged to
reduce the violence and other common problems that LGBTI individuals experience
while incarcerated.”).

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marginalized peoples accomplish meaningful social change though
legislative, administrative, and judicial processes, and if so, how?
To these ends, I first provide background on PREA and on the
constitutional and statutory standards that govern most claims related
to sexual abuse in detention. Second, I describe and analyze the key
ways in which PREA has failed prisoners. Third—because I too do
not wish to abandon a tool with promise for reducing some of the
harms that prisoners experience—I lay out proposals for judicial approaches to PREA that would make better doctrinal and normative
sense than current trends, including using PREA to inform judicial
understandings of “evolving standards of decency”9 under the Eighth
Amendment. Fourth and finally, I reflect on the implications of my
analysis for the larger questions about law reform and social justice I
have invoked.
I.
BACKGROUND
Organizations concerned with the prevalence of sexual abuse in
detention collaborated to lobby for the passage of PREA. They operated from diverse ideological positions. Arguably the most influential
among them was Prison Fellowship Ministries, which opposes prison
rape from an evangelical Christian perspective.10 Just Detention International, another major player, opposes prison rape from a secular
human rights perspective.11 The bill obtained bipartisan support in
Congress. Surprisingly little opposition to the measure emerged, and
in 2003, Congress unanimously passed PREA.12
PREA declares a “zero tolerance” standard for prison rape, requires data collection and analysis of prison rape, provides grants “to
prevent and prosecute prisoner rape,” and directs the United States
Attorney General (AG) to adopt “national standards for the detection,
prevention, reduction, and punishment of prison rape.”13 PREA ad9. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal citation omitted).
10. See, e.g., Valerie Jenness & Michael Smyth, The Passage and Implementation
of the Prison Rape Elimination Act: Legal Endogeneity and the Uncertain Road from
Symbolic Law to Instrumental Effects, 22 STAN. L. & POL’Y REV. 489, 501 (2011).
11. Id. at 504–05.
12. See Anthony C. Thompson, What Happens Behind Locked Doors: The Difficulty of Addressing and Eliminating Rape in Prison, 35 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 119, 122 (2009) (“The bill received bi-partisan support, passed unanimously, and immediately received the signature of President George W. Bush enacting it into law.”); Rep. Bobby Scott & Rep. Frank Wolf, Op-Ed., Ending Prison Rape
is a Bipartisan Cause, RICH. NEWS, Aug. 4, 2012, http://www.prearesourcecenter.org/
news-events/news/947/ending-prisoner-rape-is-a-bipartisan-cause.
13. 42 U.S.C. § 15602 (2012).

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dresses not just forcible rape but also other forms of sexual abuse,
whether perpetrated by prisoners or staff.14 PREA also addresses sexual abuse that takes place in forms of detention other than prisons,
including jails, police lockups, juvenile detention facilities, and immigration detention facilities.15 Congress did not, however, indicate an
intention to create a private right and remedy in a way that courts
would recognize under current Supreme Court precedent.16
The process of developing PREA regulations was extensive.
PREA created and funded the National Prison Rape Elimination Commission (NPREC) to conduct research, hold hearings, and develop recommended standards for the prevention, detection, and response to
sexual abuse in detention.17 After five years of activity, NPREC issued draft proposed standards in 2008 and held a notice and comment
period before issuing revised final recommended standards in 2009.18
PREA required the AG to consider the proposed standards and issue
regulations within one year of the report.19 However, the AG missed
that deadline.20 It was another two years, and two notice and comment
periods,21 before the final rule was issued in May 2012. Even after the
nine years of drafting and commenting following the passage of the
initial legislation, the process was not complete.22 DHS only promul-

14. 42 U.S.C. § 15609 (2012) (defining rape to include, among other acts, “the
carnal knowledge, oral sodomy, sexual abuse with an object, or sexual fondling of a
person achieved through the exploitation of the fear or threat of physical violence or
bodily injury”).
15. Id. (defining prison to include local jails, police lockups, and juvenile facilities).
16. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to
create not just a private right but also a private remedy.”).
17. 42 U.S.C. § 15606 (2012).
18. NATIONAL PRISON RAPE ELIMINATION COMMISSION, NATIONAL PRISON RAPE
ELIMINATION COMMISSION REPORT 27 (2009), available at https://www.ncjrs.gov/pdf
files1/226680.pdf [hereinafter NPREC Report].
19. 42 U.S.C. § 15607(a)(1) (2012).
20. Letter from Eric Holder, U.S. Att’y Gen., to Frank R. Wolf and Bobby Scott,
Members, U.S. House of Representatives (June 22, 2010), available at http://big
.assets.huffingtonpost.com/PREAletter.pdf.
21. Advanced Notice of Proposed Rulemaking, National Standards To Prevent, Detect, and Respond to Prison Rape, 75 Fed. Reg. 11077-01 (March 10, 2010); Notice of
Proposed Rulemaking, National Standards To Prevent, Detect, and Respond to Prison
Rape, 76 Fed. Reg. 6248-01 (Feb. 3, 2011).
22. The AG requested additional comments on one aspect of the rules in the final
rule. President Obama instructed other federal agencies that confine prisoners to develop regulations within 120 days. Memorandum from President Barack Obama to
Heads of Executive Departments and Agencies, Implementing the Prison Rape Elimination Act, 77 Fed. Reg. 30873 (May 17, 2012).

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gated regulations implementing PREA for immigration detention in
March 2014.23
The DOJ regulations directly bind the Federal Bureau of Prisons.24 The primary means of enforcement of PREA for state agencies,
however, is through financial incentives. State detention agencies
must have their facilities audited at least once every three years.25 If
an agency’s facilities are not in full compliance with PREA, its qualifying federal grants may be reduced by five percent unless the Governor of the state certifies that those funds will only be used to come
into compliance with PREA.26 Any funds that are not granted to an
agency for this purpose must be re-granted to other eligible agencies.27
While many detention agencies have taken steps in response to
PREA,28 it remains unclear how forceful an incentive a possible reduction in federal funds will prove in the long term. Given the budget
crises many states face,29 the incentive may be strong. However, depending on other political and administrative pressures, the withdrawal of a relatively small percentage of funds may not seem an
overwhelming threat. Federal funding accounts for only 2.9% of state
prison budgets.30 So far, seven states and one territory have chosen not
to certify that they have complied or that they will use the funds to
comply.31 Furthermore, local agencies, such as city or county jails and
23. Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in
Confinement Facilities, 79 Fed. Reg. 13100 (March 7, 2014) (to be codified at 6
C.F.R. pt. 115).
24. 42 U.S.C. § 15607(b) (2012).
25. 28 C.F.R. § 115.401(a) (2014).
26. 42 U.S.C. § 15607(c) (2012).
27. 42 U.S.C. § 15607(c)(5) (2012).
28. See, e.g., CALIFORNIA DEPARTMENT OF CORRS. AND REHAB., OPERATIONS MANUAL, PRISON RAPE ELIMINATION POLICY 54040.1 ET SEQ. (2014); IDAHO DEP’T OF
CORR., STANDARD OPERATING PROCEDURE, PRISON RAPE ELIMINATION 325.02.01.001
(2009); MONTANA DEP’T OF CORRS., POLICY DIRECTIVE DOC 1.3.14, PRISON RAPE
ELIMINATION ACT OF 2003 (2012); NEW YORK DEP’T OF CORRS. AND CMTY. SUPERVISION, DIRECTIVE 4027A, SEXUAL ABUSE PREVENTION AND INTERVENTION, INMATEON-INMATE (2005); VIRGINIA DEP’T OF CORRS., OPERATING PROCEDURE 038.3,
PRISON RAPE ELIMINATION ACT (PREA) (2013).
29. Phil Oliff et al., States Continue to Feel Recession’s Impact, CTR. ON BUDGET
& POLICY PRIORITIES 1 (June 27, 2012), http://www.cbpp.org/files/2-8-08sfp.pdf.
30. NAT’L ASS’N OF STATE BUDGET OFFICERS, STATE SPENDING FOR CORRECTIONS:
LONG-TERM TRENDS AND RECENT CRIMINAL JUSTICE POLICY REFORMS 3 (2013)
https://www.nasbo.org/sites/default/files/pdf/State%20Spending%20for%20Correc
tions.pdf.
31. Ryan J. Reilly, Seven Republican Governors Won’t Comply with Anti-Rape
Rules, HUFFINGTON POST (May 28, 2014), http://www.huffingtonpost.com/2014/05/
28/prison-rape-elimination-act-doj_n_5406665.html (listing Arizona, Florida, Idaho,
Indiana, Nebraska, Texas, Utah, and the Northern Marianas Islands as those states and
territories not seeking compliance with PREA).

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lockups, are not bound by this or any other administrative enforcement
mechanism.32 Some Senators seek to amend the law to give it even
less bite, through removing the administrative enforcement mechanism for states.33
Of course, prisoners litigated about sexual abuse in detention
long before Congress passed PREA. Substantively, prisoners usually
bring claims about sexual abuse in detention through 42 U.S.C.
§ 1983 based on the Eighth Amendment.34 Under the Eighth Amendment, if the sexual abuse was perpetrated by another prisoner, plaintiffs who seek to hold staff liable must prove that the staff members
were deliberately indifferent to a substantial risk of serious harm.35
Plaintiffs often also seek to hold supervisory staff liable in cases of
staff-perpetrated sexual abuse. Because detention agencies may refuse
to indemnify staff who sexually abuse prisoners, proving liability of
supervisory defendants can be particularly important in achieving any
meaningful monetary recovery.36 Liability for supervisory defendants
can also be critical in achieving meaningful injunctive relief or incentivizing policy change.
Eighth Amendment claims involve both objective and subjective
components. An act must be sufficiently, objectively serious before it
rises to the level of constitutional violation.37 The subjective prong of
the Eighth Amendment test demands that a defendant prison official
have a culpable state of mind.38 Unlike negligence, it is not enough
that an official should have known about a substantial risk of serious
danger to a prisoner and failed to address it.39 In deliberate indiffer32. National Standards to Prevent, Detect, and Respond to Prison Rape: Final Rule,
77 Fed. Reg. 37,106, 37,196 (June 20, 2012) (to be codified at 28 C.F.R. pt. 115)
(“For county, municipal, and privately run agencies that operate confinement facilities, PREA lacks any corresponding sanctions for facilities that do not adopt or comply with the standards.”).
33. Sarah Childress, Will Congress Gut Law to Eliminate Prison Rape?, PBS
FRONTLINE (Dec. 3, 2014), http://www.pbs.org/wgbh/pages/frontline/criminal-justice/
will-congress-gut-law-to-eliminate-prison-rape/.
34. The Eighth and Fourth Amendments apply to states through the Fourteenth
Amendment. See Robinson v. California, 370 U.S. 660, 667 (1962).
35. Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison official’s ‘deliberate
indifference’ to a substantial risk of serious harm to an inmate violates the Eighth
Amendment.”).
36. See Dorsey v. Givens, 209 F. Supp. 2d 850, 853 (N.D. Ill. 2001) (finding sheriff
need not indemnify officer accused of inappropriate sexual touching of prisoner as
such touching was outside the scope of employment).
37. Farmer, 511 U.S. at 825 (“[A] constitutional violation occurs only where the
deprivation alleged is, objectively, ‘sufficiently serious . . . .’ ”).
38. Id.
39. Id. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy than negligence . . . .”).

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ence cases, the official must have actual knowledge of the danger to
the prisoner and choose not to prevent it.40 The same standard applies
to deliberate indifference to serious medical needs.41
Prisoners also use a number of other types of claims. Many
claims concerning sexual abuse in detention that arise in the context of
a search also rely on a Fourth Amendment theory. Reasonableness is
the cornerstone of Fourth Amendment analysis.42 While sharply curtailed under Turner,43 Bell,44 and Florence,45 an expectation to bodily
privacy does survive imprisonment.46 As such, body searches must be
reasonable to survive Fourth Amendment scrutiny. The Supreme
Court established the test that applies to most types of constitutional
litigation by prisoners in Turner v. Safley.47 Under the Turner test, a
detention agency can infringe on prisoners’ constitutional rights so
long as the restriction is rationally related to a legitimate penological
objective.48 The four factors courts must consider include whether
there is a “valid, rational connection” between the regulation and the
interest; whether “alternative means” remain open to prisoners to exercise their constitutional rights; the impact accommodation of the prisoners’ rights would have on staff, other prisoners, and allocation of
40. Id. at 837 (“[T]he official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.”).
41. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain, proscribed by the Eighth Amendment.’ ”) (citation
omitted).
42. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . ” U.S.
CONST. amend. IV (emphasis added).
43. Turner v. Safley, 482 U.S. 78 (1987).
44. Bell v. Wolfish, 441 U.S. 520, 558 (1979) (finding visual body cavity searches
of prisoners following contact visits were not unreasonable under the Fourth
Amendment).
45. See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1526 (2012).
46. Id. at 1523 (finding the strip search policies at issue to be “a reasonable balance
between inmate privacy and the needs of the institutions”); see also Nicholas v.
Goord, 430 F.3d 652, 658 (2d Cir. 2005), cert. denied, 549 U.S. 953 (2006) (“prisoners retain a right to bodily privacy”); Fortner v. Thomas, 983 F.2d 1024, 1026 (11th
Cir. 1993) (“we hold that a prisoner retains a constitutional right to bodily privacy”).
Because the Court has ruled that prisoners have no reasonable expectation to privacy
in their property, the Fourth Amendment does not apply to cell searches. Hudson v.
Palmer, 468 U.S. 517, 525–26 (1984) (“[W]e hold that society is not prepared to
recognize as legitimate any subjective expectation of privacy that a prisoner might
have in his prison cell and that, accordingly, the Fourth Amendment proscription
against unreasonable searches does not apply within the confines of the prison cell.”).
47. 482 U.S. at 78.
48. Id. at 89.

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agency resources; and the availability of ready alternatives to the infringement.49 The prisoner, not the official, has the burden of proof.50
While the Court has stated that Turner applies to Fourth Amendment
questions,51 more classically Fourth Amendment balancing of individual and government interests still plays a role.52 Using this analysis,
the Court held in Bell that visual body cavity searches of convicted
prisoners do not ordinarily violate the Fourth Amendment,53 and
under Florence the Court held that suspicionless visual body cavity
searches of misdemeanor arrestees likewise do not necessarily violate
the Fourth Amendment.54 Prisoners may also bring state claims related to sexual abuse, often tort claims.
The Prison Litigation Reform Act (PLRA) presents major barriers to prisoner plaintiffs, even if they have meritorious constitutional
or state law claims. One of the provisions of the PLRA requires prisoners to exhaust administrative remedies prior to bringing a case in
federal court.55 In Woodford v. Ngo, the Supreme Court interpreted
the PLRA to require “proper exhaustion,” which means that prisoners
must follow all of the procedural rules that detention agencies have
developed for internal grievances before suing.56 Woodford’s holding
increases the barrier presented by the PLRA, in part because many
detention systems have extremely short timelines for filing a grievance.57 If a prisoner does not file a grievance within that timeframe,
which may be two weeks or less, she has lost her opportunity to sue
for as long as she is incarcerated (which, if the statute of limitations
expires prior to release, means she has permanently lost her opportunity to sue).58 This limitation applies even when the case concerns an
49. Id. at 89–90.
50. Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The burden, moreover, is not
on the State to prove the validity of prison regulations but on the prisoner to disprove
it.”).
51. Florence, 132 S. Ct. at 1518 (“The current case is set against this precedent and
governed by the principles announced in Turner and Bell.”).
52. Id. at 1516 (“The need for a particular search must be balanced against the
resulting invasion of personal rights.”).
53. Bell, 441 U.S. at 558.
54. 132 S. Ct. at 1518.
55. 42 U.S.C. § 1997e(a) (2012).
56. 548 U.S. 81, 94 (2006).
57. Id. at 95–96 (noting that according to defendants most deadlines for filing a
grievance are from 14–30 days and that according to plaintiff they are even shorter).
58. JOHN BOSTON, PRISON LITIGATION REFORM ACT 39 (2012) (“It is only in cases
where the defense is waived, the prisoner has properly completed exhaustion after the
litigation was filed, prison officials allow the filing of an out-of-time grievance, or the
prisoner has been released from prison and can refile without being subject to the
exhaustion requirement, that dismissal for non-exhaustion without prejudice will allow the prisoner to re-file and litigate the claim.”).

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abuse as serious as rape.59 Particularly for survivors reeling from the
trauma of sexual abuse and reasonably fearful of retaliation for complaining about it, a two-week timeline is often not feasible.60 In fact,
the dissent in Woodford cited to PREA’s finding about the prevalence
of sexual abuse in detention to highlight the potentially grave consequences of the majority’s reasoning.61
In federal courts in 2011, 93% of petitions brought by prisoners
were pro se.62 Of those cases that have resulted in a written opinion
mentioning PREA, around three-quarters were brought pro se. It is
well-established law that the complaints of pro se litigants must be
construed liberally.63 Twombly 64 and Iqbal 65 have not changed this
doctrine.66 Courts must interpret a pro se complaint “to raise the
strongest claim it suggests.”67 Thus, even if pro se prisoner plaintiffs
59. See, e.g., Minix v. Pazera, No. 1:04 CV 447 RM, 2005 WL 1799538, at *4
(N.D. Ind. July 27, 2005) (granting summary judgment against young person who
alleged that he was raped in juvenile detention for failure to exhaust administrative
remedies); Mendez v. Herring, 2005 WL 3273555, at *2 (D. Ariz. Nov. 29, 2005)
(dismissing claim of a prisoner who alleged that he was raped based on failure to
exhaust administrative remedies).
60. See, e.g., Robert W. Dumond, The Impact of Prisoner Sexual Violence: Challenges of Implementing Public Law 108-79—The Prison Rape Elimination Act of
2003, 32 J. LEGIS. 142, 154 (2006) (“Most prison sexual assault victims do not report
the incidents to correctional authorities, because they fear reprisals, fear no one will
believe them, or think it will only cause more problems.”); Brenda V. Smith, Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225, 226 (2003) (“Given the chilling consequences of reporting, many women are reluctant or unwilling to report
sexual misconduct, sexual harassment and/or privacy violations.”).
61. 548 U.S. at 118 (2006) (Stevens, J., dissenting).
62. THOMAS F. HOGAN, ADMIN. OFFICE OF THE U.S. COURTS, 2011 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS 12
(2012), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/
2011/appendices/C13Sep11.pdf.
63. Haines v. Kerner, 404 U.S. 519, 520 (1972) (“however inartfully pleaded . . .
we hold [pro se complaints] to less stringent standards than formal pleadings drafted
by lawyers”); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“The handwritten pro se
document is to be liberally construed.”).
64. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–63 (2007).
65. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
66. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that courts should continue
to give pro se pleadings a liberal reading notwithstanding the new Twombly plausibility standard); see also, e.g., Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal
incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se filings liberally
when evaluating them under Iqbal.”).
67. DiPetto v. U.S. Postal Serv., 383 F. App’x 102, 103 (2d Cir. 2010); see also
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (describing liberal construction as compelling court to read the pleadings to state a valid claim if reasonable
despite “confusion of various legal theories” and “poor syntax and sentence
construction”).

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fail to articulate with precision the way that PREA should enter into
courts’ consideration, courts should construe these claims fairly and
consistently with the law.
II.
HOW JUDICIAL TREATMENT OF PREA HAS
HARMED PRISONERS
Courts treat PREA inappropriately in several ways. They often
disregard any favorable implications PREA could have on the constitutional claims of imprisoned survivors of sexual abuse. However,
courts do entertain arguments from defendants who seek to use PREA
to justify infringements on prisoners’ constitutional rights. Courts
have also interpreted PREA to raise, not lower, the barrier of exhaustion of administrative remedies before prisoners may bring a claim
about sexual abuse.
A. Presumption of Irrelevance to Plaintiffs’ Constitutional Claims
One of the most striking aspects of case law involving PREA is
that many courts refuse to acknowledge that PREA could have any
relevance to claims of survivors of sexual abuse in detention. In most
cases where prisoners raise violations of PREA in their complaints,
courts decline to consider PREA at all because of the lack of a private
right of action.68 Courts seem to construe even pro se arguments about
PREA quite narrowly, as if the lack of private right of action automatically means that PREA could not have any possible relevance to
Eighth Amendment or other claims. In fact, legislation without a private right of action can offer important guidance for interpreting facts
and law relevant to other claims. As I discuss below in Section III.A.,
consideration of statutes forms a core part of Eighth Amendment
doctrine.

68. See, e.g., Monts v. Greer, No. 5:12-CV-258-MP-GRJ, 2013 WL 5436763, at *3
(N.D. Fla. July 15, 2013) report and recommendation rejected sub nom. Monts v.
Dep’t of Corr., No. 5:12-CV-00258-MP, 2013 WL 5436758 (N.D. Fla. Sept. 27,
2013) (discussing PREA only to note lack of private right of action); Brown v.
Parnell, CIV.A No. 5:09CV-P159-R, 2010 WL 1418735, at *5 (W.D. Ky. Apr. 7,
2010) (same); Faz v. North Kern State Prison, No. CV-F-11-0610-LJO-JLT, 2011 WL
4565918 at *5 (E.D. Cal. Sept. 29, 2011) (same); Inscoe v. Yates, No. 1:08-CV001588 DLB PC, 2009 WL 3617810, at *3 (E.D. Cal. Oct. 28, 2009) (same); LeMasters v. Fabian, No. 09-702 DSD/AJB, 2009 WL 1405176, at *2 (D. Minn. May 18,
2009) (same); Pirtle v. Hickman, No. CV05-146-S-MHW, 2005 WL 3359731, at *1
(D. Idaho Dec. 9, 2005) (same); Rindahl v. Weber, No. CIV. 08-4041-RHB, 2008 WL
5448232, at *1 (D.S.D. Dec. 31, 2008) (same); Rivera v. Drake, No. 09-CV-1182,
2010 WL 1172602, at *3 (E.D. Wis. Mar. 23, 2010) (same).

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Law v. Whitson presents one example of judicial disregard of
PREA. Officials denied forensic examination and medical treatment to
an imprisoned man who was raped and experienced rectal injuries.69
When he brought a claim, he alleged in part that a rape kit had to be
provided under PREA.70 PREA regulations do require detention agencies to offer these exams.71 The court dismissed the case during
prescreening, stating that PREA did not provide a private right of action and that the allegations were insufficient to sustain a deliberate
indifference claim.72 The court did not contemplate any relationship
between the provisions of PREA and the deliberate indifference
standard.
Similarly, in Woodstock v. Golder, a district court dismissed the
claims of a prisoner who attempted suicide after he complained about
being raped by other prisoners.73 He alleged that officials neither investigated his complaint nor provided him with any treatment.74 The
court mentioned the prisoner’s assertions regarding PREA only to
state that no private right of action existed, again disregarding any
information PREA could have provided about the content of the other
claims.75 PREA provides guidance about the mental health treatment
prisons must make available to survivors of sexual abuse, which could
have shed light on whether the defendants were deliberately indifferent to a serious medical need.
Bell v. County of Los Angeles provides an even more explicit
example of this approach to PREA. In this case, the court granted a
motion for summary judgment against an imprisoned transgender
69. No. 2:08-CV-0291-SPK, 2009 WL 5029564, at *3 (E.D. Cal. Dec. 15, 2009);
see also NPREC REPORT, supra note 18 at 132 (“Victims of sexual abuse may experience health problems that manifest weeks or months after the abuse has occurred.”).
70. 2009 WL 5029564, at *4.
71. 28 C.F.R. § 115.21(c) (2014).
72. 2009 WL 5029564, at *4. The court did grant leave to file an amended complaint, which survived pre-screening but was then dismissed for failure to exhaust
administrative remedies. Law v. Noriega, No. 2:08-CV-0291 JAM EFB, 2012 WL
2445565, at *4 (E.D. Cal. June 26, 2012).
73. No. 10-CV-00348-ZLW-KLM, 2011 WL 1060566 (D. Colo. Feb. 7, 2011) report and recommendation adopted, No. 10-CV-00348-ZLW-KLM, 2011 WL
1044236 (D. Colo. Mar. 23, 2011).
74. Id.
75. Id.; see also McNaughton v. Arpaio, No. CV-10-1250-PHX-DGC, 2010 WL
2899077, at *3 (D. Ariz. July 22, 2010) (finding that PREA had no relevance to a
claim brought by a woman who was sexually assaulted by a psychiatrist while in jail
and dismissing her claim against the sheriff responsible for the jail); Chinnici v. Edwards, No. 1:07-CV-229, 2008 WL 3851294, at *3, *7 (D. Vt. Aug. 12, 2008) (dismissing claim against supervisory officials where prisoner alleged that a guard
attacked and fondled him and curtly rejecting assertions related to PREA as without
legal merit).

R

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woman whom an officer sexually assaulted during a search.76 The
court held that PREA did not affect its analysis because it lacked a
private right of action.77 In fact, the court titled a section of its opinion
granting supervisory defendants’ motion for summary judgment
“Plaintiff’s Citation of the Prison Rape Elimination Act Does Not Affect the Court’s Analysis.”78 The section contained a brief discussion
of the lack of private right of action under PREA.79 The court did not
provide any reasoning to support the move from acknowledgement
that PREA does not have a private right of action to the conclusion
that PREA should have no impact on the analysis of the plaintiff’s
other claims.
In the smaller number of cases where courts at least briefly considered plaintiffs’ arguments regarding PREA, they often remained
unswayed.80 In Jenkins v. Hennepin, other prisoners sexually assaulted the plaintiff.81 He alleged that defendant officials were deliberately indifferent through failing to create or implement any policy
with regard to sexual abuse.82 Congress may have agreed with the
plaintiff’s interpretation, having stated in PREA that failure to take
measures to eliminate sexual abuse amounts to deliberate indifference
in violation of the Eighth Amendment.83 Jenkins argued that defendants knew about the need for such a policy in part because of
PREA.84 The court granted defendants’ motion for summary judgment
on the basis that even though defendants did have some knowledge of
PREA, the plaintiff had not offered sufficient evidence that they consciously understood the risk of rape and deliberately chose not to create a policy.85
76. Bell v. County of Los Angeles, Verdict and Summary Statement, No. CV-078187, 2009 WL 6407941 (Nov. 2, 2009).
77. Bell v. County of Los Angeles, No. CV 07-8187-GW(E), 2008 WL 4375768, at
*6 (C.D. Cal. Aug. 25, 2008).
78. Id.
79. Id.
80. See, e.g., Doe v. United States, No. CV 08-00517 BMK, 2011 WL 1637147, at
*6–7 (D. Haw. Apr. 29, 2011) (rejecting motion for reconsideration based on new
evidence regarding PREA because evidence not of sufficient magnitude to have likely
influenced disposition).
81. Jenkins v. County of Hennepin, Minn., No. CIV.06-3625(RHK/AJB), 2009 WL
3202376, at *1 (D. Minn. Sept. 30, 2009).
82. Id. at *2.
83. 42 U.S.C. § 15601 (2012) (“States that do not take basic steps to abate prison
rape by adopting standards that do not generate significant additional expenditures
demonstrate such indifference.”).
84. Jenkins, 2009 WL 3202376, at *2.
85. Id. at *3; see also Hall v. Hawkins Cnty. Tenn., No. 2:05-CV-252, 2008 WL
474168, at *5 (E.D. Tenn. Feb. 20, 2008) (finding that reports from National Prison
Rape Elimination Commission about inadequate classification procedures in jail did

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In Louisiana, women who had been raped by an officer brought a
claim against a supervisory defendant in part based on the theory that
his failure to create any policies to prevent sexual assault constituted
deliberate indifference.86 The court found that, because the officer’s
actions in raping the women were so self-evidently wrong, the supervisory defendant did nothing wrong in failing to create policies to prevent those actions, and his knowledge or lack of knowledge of PREA
was irrelevant.87 This ruling pretended that PREA requires only that
agencies and facilities clarify whether “ambiguous” conduct might
constitute sexual abuse, ignoring the comprehensive findings about
ways to prevent deliberate rape.88 The Supreme Court of Appeals in
West Virginia reached a similar conclusion in a negligence case.89
That court reasoned that the state agency had immunity because it had
not violated any clearly established law.90 PREA did not count as
clearly established law because “PREA merely ‘authorizes grant
money, and creates a commission to study the [prison rape] issue. . . .
The statute does not grant prisoners any specific rights.”91 The court
disregarded entirely the provisions of PREA regarding regulation and
enforcement.
B. Presumption of Relevance to Defenses
Courts’ resistance to considering plaintiffs’ claims concerning
PREA would be more doctrinally justifiable, or at least consistent, if
courts reacted with comparable resistance to defendants’ arguments
concerning PREA. However, at times courts have seemed more receptive to arguments about PREA when offered by defendants rather than
plaintiffs.

not establish jail officials’ knowledge that prisoner with mental retardation and breasts
would be vulnerable to sexual abuse under current classification procedures).
86. See Rudd v. Tatum, No. 5:11-CV-373-RS-CJK, 2013 WL 4017333 at *6 (N.D.
Fla. Aug. 7, 2013).
87. See id. at *9.
88. See, e.g., 28 C.F.R. § 115.17 (2014) (regarding hiring and screening of employees); 28 C.F.R. § 115.13(d) (2014) (requiring unannounced rounds by supervisors to
detect and prevent staff sexual abuse); 28 C.F.R. § 115.11(a) (2014) (requiring written
policy about sexual abuse); 28 C.F.R. § 115.15 (2014) (limiting cross-gender viewing
and searches).
89. W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., No. 13-0037, 2014 WL
5507522 (W. Va. Oct. 31, 2014).
90. Id.
91. Id. (quoting De’Lonta v. Clarke, No. 7:11–cv–00483, 2013 WL 209489, at *3
(W.D. Va. Jan. 14, 2013).

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In one case, a Muslim prisoner sued under the Religious Land
Use and Institutionalized Person Act (RLUIPA)92 when he was no
longer allowed to have prayer oils.93 The defendant prison officials
argued that they did not permit prayer oils because the scent made it
more difficult to detect drugs and because PREA compelled them to
take steps to reduce prison rape.94 The connection between prohibiting
prayer oils and preventing rape was never explained.95 The court relied on the drug-detection argument, but also briefly mentioned the
PREA argument in ruling in favor of the defendants.96
In another case, defendant prison officials claimed they could not
provide medically necessary hormone treatment to a transgender
woman because it would increase her vulnerability to attack.97 The
officials cited PREA studies to bolster their defense.98 The court rejected the defense, but only because of the transparently bad faith conduct of the defendants and the last-minute, patently pretextual nature
of their defense.99 Nothing in the decision rejected the possibility of
consideration of such justifications in the future.100 That the court entertained the argument at all presents a sharp contrast with the curt
disregard many courts have exhibited to virtually any argument about
PREA that plaintiffs make.
Defendants also used partial compliance with PREA as a defense
when an independent publisher sought to send information about sexual abuse in detention to prisoners. In Prison Legal News v. Livingston, prison officials successfully defended book censorship from a
First Amendment challenge.101 The officials refused to permit the
publisher to send prisoners books about the prison system that in92. 42 U.S.C. § 2000cc (2012).
93. Hammons v. Jones, No. 00-CV-143 GKFSAJ, 2007 WL 2219521, at *1 (N.D.
Okla. July 27, 2007).
94. Id. at *3 n.1.
95. Id. at *3.
96. Id. at *6.
97. See Battista v. Clarke, 645 F.3d 449, 452 (1st Cir. 2011).
98. Id. at 451 (arguing that this facility was more dangerous than others in the same
system based on data gathered pursuant to PREA).
99. The court acknowledged that “this would be a much harder case” if the defendants had offered an “untainted” judgment that security considerations precluded providing medically necessary treatment. Id. at 454. However, the defendants refused to
take the request for treatment seriously for an excessively long time, then delayed for
additional years after the need for treatment was established. See id. at 455. They
produced a security justification after they had already made the decision, when counsel suggested it in the course of litigation. See id. They also used inaccurate data. See
id.
100. See id. at 454.
101. 683 F.3d 201, 207 (5th Cir. 2012).

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cluded passages about the harms of prison rape.102 The court reasoned
that the prison officials did not deprive prisoners altogether of information about prison rape, because the agency provided its own educational materials pursuant to PREA.103
Even in cases where prisoners allege that they have been sexually
assaulted, prison officials have successfully used PREA to defeat prisoners’ claims. For example, when a staff member sexually assaulted
an African American woman prisoner, she sued supervisory officials
alleging, inter alia, that they failed to put procedures in place to prevent the assault.104 The court granted defendants summary judgment
in part because the facility apparently complied with PREA.105 In
Lowry v. Honeycutt, a guard caught Lenny Dean Lowry engaging in
consensual sexual activity with another prisoner.106 An officer forced
him to get a rape exam against his will, saying that he had no choice
because the exam was required under PREA.107 While a nurse examined him, a guard laughed and made jokes about him.108 In rejecting Lowry’s claim about the forced exam, the district court
complained: “The court is not cited to any provision in the Prison
Rape Elimination Act or other federal law or even in Kansas prison
regulations setting forth minimum conditions which must exist before
a prisoner thought to have been involved in prohibited sexual activity
may be required to undergo a medical sexual abuse exam.”109 However, nothing in PREA requires prisoners to submit to forensic exams
at all.110 The Tenth Circuit affirmed the dismissal of Lowry’s
claims.111
Courts have also consistently ruled against prisoners seeking to
challenge “PREA segregation.” Some prisons, as a means of PREA
compliance, have begun segregating people they perceive as likely to
engage in sexual abuse.112 Many prisoners, not surprisingly, object to
102. See id. at 215–16.
103. See id. at 216.
104. See Crane v. Allen, 3:09-CV-1303-HZ, 2012 WL 602432, at *7 (D. Or. Feb.
22, 2012).
105. Id. at *8–9.
106. 211 F. App’x 709, 710 (10th Cir. 2007). For further discussion of this case in
the context of sexual violence, see Gabriel Arkles, Regulating Sexual Violence, 7
NORTHEASTERN L.J. (forthcoming 2015).
107. Lowry v. Honeycutt, 05-3241-SAC, 2005 WL 1993460, at *1 (D. Kan. Aug. 17,
2005).
108. Lowry, 211 F. App’x at 710–11.
109. Lowry, 2005 WL 1993460, at *4.
110. 42 U.S.C. §§ 15601–15609 (2012).
111. Lowry, 2005 WL 1993460, at *5.
112. The Arkansas and South Carolina systems of PREA segregation have been litigated most frequently to date. See, e.g., Bailey v. Hobbs, No. 5:11CV00031JLH,

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being labeled as sexual predators and placed indefinitely in highly isolating113 and restrictive settings.114 PREA regulations do provide
some support for considering likelihood of engaging in sexual abuse
in classification decisions, although they do not support all of the specific ways that facilities have segregated people.115
Courts have almost uniformly rejected challenges to placement in
PREA segregation, even when the basis for such placements is dubious at best.116 In several of these cases, the only evidence apparently
2012 WL 3038856 (E.D. Ark. July 25, 2012); Fair v. Ozmint, CI.A. 6:10-1268-RMG,
2011 WL 1642383 (D.S.C. Apr. 15, 2011) report and recommendation adopted, 6:10CV-1268-RMG, 2011 WL 1658761 (D.S.C. May 2, 2011) aff’d, 449 F. App’x 277
(4th Cir. 2011); Winbush v. Norris, 5:06CV00065 JLH, 2006 WL 2252539 (E.D. Ark.
Aug. 7, 2006).
113. The severe harms of solitary confinement have been well documented. See, e.g.,
In re Medley, 134 U.S. 160, 168 (1889) (“A considerable number of the prisoners fell,
after even a short confinement, into a semi-fatuous condition, from which it was next
to impossible to arouse them, and others became violently insane, others, still, committed suicide . . . .”); SILJA J.A. TALVI, WOMEN BEHIND BARS: THE CRISIS OF
WOMEN IN THE U.S. PRISON SYSTEM 140 (2007) (noting that individuals in solitary
confinement “began to mutilate themselves, swallow sharp objects, or commit suicide”); Cassandra Shaylor, “It’s Like Living in a Black Hole:” Women of Color and
Solitary Confinement in the Prison Industrial Complex, 24 NEW ENG. J. ON CRIM. &
CIV. CONFINEMENT 385, 397 (1998) (“Research indicates that women are more prone
to violent behavior as a result of confinement in solitary units, but violence against
themselves.”) (footnote omitted); Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME &
JUST. 441, 462 (2006) (“[A]t least a third of the inmates reacted to isolation with
adverse health effects, and at least a third of these . . . might be characterized as
suffering from major psychological and psychiatric problems including hallucinations,
paranoia, and different kinds of personal degeneration.”); THE CORRECTIONAL ASS’N
OF N.Y., DISCIPLINARY CONFINEMENT IN NEW YORK STATE PRISONS (2004), available
at http://www.correctionalassociation.org/publications/download/pvp/factsheets/
SHU-fact.pdf (noting that between 1998 and 2001, more than half of the suicides in
New York State prisons occurred in disciplinary confinement, although fewer than
seven percent of prisoners were housed in these units).
114. See, e.g., Gadeson v. Reynolds, C/A 208-3702-CMC-RSC, 2009 WL 4572872
(D.S.C. Dec. 4, 2009) aff’d, 392 F. App’x 234 (4th Cir. 2010); Jones v. Hobbs,
2:10CV00124 DPM/HDY, 2011 WL 6012995 (E.D. Ark. Oct. 4, 2011) report and
recommendation adopted, 2:10-CV-124-DPM-HDY, 2011 WL 6020161 (E.D. Ark.
Dec. 2, 2011); Linell v. Norris, 2009 Ark. 303, 320 S.W.3d 642.
115. See 28 C.F.R. § 115.48 (2014).
116. See, e.g., Ashby v. Hobbs, 2:13CV00154 BSM, 2014 WL 505335 (E.D. Ark.
Feb. 5, 2014) (denying injunctive relief to remove plaintiff from PREA segregation
where plaintiff alleged officials placed him in retaliation for filing grievances); Bailey
v. Hobbs, No. 5:11CV00031JLH, 2012 WL 3038856 (E.D. Ark. July 25, 2012); Fair
v. Ozmint, CI.A. 6:10-1268-RMG, 2011 WL 1642383 (D.S.C. Apr. 15, 2011) report
and recommendation adopted, 6:10-CV-1268-RMG, 2011 WL 1658761 (D.S.C. May
2, 2011), aff’d, 449 F. App’x 277 (4th Cir. 2011); Winbush v. Norris, 5:06CV00065
JLH, 2006 WL 2252539 (E.D. Ark. Aug. 7, 2006); Gadeson v. Reynolds, C/A 2083702-CMC-RSC, 2009 WL 4572872 (D.S.C. Dec. 4, 2009) aff’d, 392 F. App’x 234
(4th Cir. 2010); Jones v. Hobbs, 2:10CV00124 DPM/HDY, 2011 WL 6012995 (E.D.

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considered against people subject to PREA segregation was past participation or expressed interest in consensual sex.117 At the time most
of these cases were decided, PREA regulations—which clarify that
while consensual sex may be prohibited it may not be considered the
equivalent of sexual abuse118—were not yet in force. However, at no
point did anything in PREA statutory language or NPREC recommendations indicate that prisoners are more prone to sexually abuse others
if they have had consensual sex in the past, or that people should be
segregated on such a basis.119 Most of these decisions are primarily
based on Sandin v. Conner,120 reasoning that prisoners have no basis
for a due process challenge to their segregation because it does not
constitute an atypical and significant hardship sufficient to create a
liberty interest.121 Because segregation and solitary confinement, as
well as labeling someone as a sexual predator, can actually create
greater vulnerability to sexual abuse,122 these actions may undercut
the purported goal of preventing sexual abuse.

Ark. Oct. 4, 2011) report and recommendation adopted, 2:10-CV-124-DPM-HDY,
2011 WL 6020161 (E.D. Ark. Dec. 2, 2011); Linell v. Norris, 2009 Ark. 303, 320
S.W.3d 642.
117. See Everson v. Cline, No. 101,914, 2009 WL 3172859, at *1 (Kan. App. Oct. 2,
2009) (plaintiff placed in PREA segregation after writing note inviting consensual
sexual relationship); Waller v. Maples, 1:11CV00053 JLH-BD, 2011 WL 3861370
(E.D. Ark. July 26, 2011) report and recommendation adopted, 1:11CV00053 JLHBD, 2011 WL 3861369 (E.D. Ark. Aug. 31, 2011) (plaintiff placed in isolation following PREA investigation into allegedly sexual consensual relationship with childhood friend); McKnight v. Hobbs, 2:10CV00168 DPM HDY, 2010 WL 5056024
(E.D. Ark. Nov. 18, 2010) report and recommendation adopted, 2:10-CV-168-DPM
HDY, 2010 WL 5056013 (E.D. Ark. Dec. 6, 2010) (plaintiff placed on PREA status
indefinitely after found guilty of having had consensual sex).
118. 28 C.F.R. § 115.78(g) (2014).
119. See id. (noting that prisons have the option of prohibiting consensual sex, but
not requiring the prohibition); McKnight v. Hobbs, 2:10CV00168 DPM HDY, 2010
WL 5056024 (E.D. Ark. Nov. 18, 2010) report and recommendation adopted, 2:10CV-168-DPM HDY, 2010 WL 5056013 (E.D. Ark. Dec. 6, 2010); Everson v. Cline,
No. 101,914, 2009 WL 3172859 (Kan. App. Oct. 2, 2009).
120. 515 U.S. 472, 486 (1995).
121. See, e.g., Hill v. Norris, No. 5:07CV00270 JLH/BD, 2007 WL 4219444 (E.D.
Ark. Nov. 28, 2007) (order adopting magistrate’s recommendation in part).
122. See Gabriel Arkles, Safety and Solidarity Across Gender Lines: Rethinking Segregation of Transgender People in Detention, 18 TEMP. POL. & CIV. RTS. L. REV.
515, 537 (2009) (“[N]ot only are these [segregated] placements almost always worse
than general population in many other ways, but also they often lead to greater, not
lesser, violence.”); 28 C.F.R. § 115.41 (acknowledging vulnerability of people convicted of sex offenses to sexual violence in prisons).

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C. Exhaustion
PREA regulations call on detention agencies to create multiple
means to report sexual abuse.123 Some detention agencies began to
respond to these recommendations well before promulgation of the
final rule, disseminating to prisoners information about means of reporting sexual abuse.124 The PREA regulations do not explicitly direct
detention agencies on how these alternatives ought to interact with
existing grievance systems or impact exhaustion of administrative
remedies. However, NPREC and the DOJ acknowledged that the
PLRA exhaustion requirements can impose a serious and frequently
insurmountable obstacle to bringing meritorious claims about sexual
abuse in detention125 and sought to mitigate this harm.126
Nonetheless, some courts have interpreted these policies in ways
that impede consideration of complaints about sexual abuse. For example, in Tracy v. Coover,127 the state correctional agency issued a
memo to all prisoners pursuant to PREA that instructed them on how
to report sexual abuse. Telling a staff member was listed as one of the
methods for reporting. When a guard exposed his genitals to Rebecca
Tracy and sexually assaulted her, Tracy followed the instructions in
the memo and told a counselor in her prison about what happened.128
When Tracy later sued about the incident, her case was dismissed for
failure to exhaust administrative remedies because she had not also
filed and pursued a grievance.129
By its own terms, the grievance policy only applied to situations
where no alternative means of appeal was available.130 However, the
court characterized the means of reporting sexual abuse as not an alternative form of appeal but an informal attempt to resolve a grievance.131 The court concluded that the memo instructing prisoners on
how to report sexual abuse was different from the grievance process in
part because the memo was instructing prisoners not on an option they
123. 28 C.F.R. § 115.51(a) (2014).
124. See New York State Department of Correctional Services, The Prevention of
Sexual Abuse in Prison: An Overview for Offenders (2011), http://www.prearesource
center.org/sites/default/files/library/newyorkpreapamphletrevised013111.pdf.
125. NPREC Report, supra note 18, at 10 (“The Commission is convinced that the
Prison Litigation Reform Act (PLRA) that Congress enacted in 1996 has compromised the regulatory role of the courts and the ability of incarcerated victims of sexual
abuse to seek justice in court.”).
126. 28 C.F.R. § 115.52 (2014).
127. No. 09–0931, 2011 WL 227629, at *1 (Iowa Ct. App. Jan. 20, 2011).
128. Id.
129. Id.
130. Id. at *2.
131. Id. at *7.

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had to seek redress, but on an obligation imposed on them through the
institutional rules issued pursuant to PREA.132 The court interpreted
the policy to provide a basis for punishing those prisoners who do not
report they were sexually assaulted,133 and expressed no concern that
the memo misled prisoners attempting to follow appropriate administrative channels for reporting sexual abuse.134 A similar Second Circuit case found that prisoners who reported sexual abuse to the
Inspector General consistent with the instructions their New York
prison provided had nonetheless failed to exhaust administrative remedies because they failed to use the prison grievance appeals process.135
III.
HOW COURTS SHOULD TAKE PREA SERIOUSLY
Congress should have created a private right of action. However,
even without one, courts should take PREA into account in a way that
is consistent with its language and goals. This is not to say that courts
should treat PREA as if it defined a new constitutional standard,
which of course Congress does not have the power to do,136 but rather
that courts should give the statute and regulations appropriate weight
among other factors in keeping with existing law. PREA should have
a significant impact on how courts apply both the objective and subjective prongs of the Eighth Amendment in cases concerning sexual
abuse, as well as on Fourth Amendment and tort cases. Courts should
also not permit prison officials to use PREA against prisoners in ways
inconsistent with its plain meaning and legislative intent.
Both Congress and the DOJ indicated that compliance with
PREA would reduce Eighth Amendment violations on the part of
prison officials. Congress viewed PREA as a means to promote com-

132. Id. at *7–8.
133. Prisoners also face discipline for filing reports of sexual abuse if the facility
determines that the prisoner was lying. See Hawkins v. Akers, No. 2013-CA-000106MR, 2014 WL 4377848, at *4 (Ky. Ct. App. Sept. 5, 2014) (concluding that due
process did not require prisoner to have access to confidential information used
against him in concluding he lied when he reported sexual abuse pursuant to PREA
policies).
134. In Porter v. Howard, the Southern District of California rejected an argument
from a prisoner that PREA was an administrative remedy and therefore excused him
from exhausting administrative remedies within the state agency. No. 10CV1817 JLS
PCL, 2011 WL 2457507, at *2 (S.D. Cal. June 20, 2011). This outcome seems doctrinally correct, although in this terse disposition of a pro se complaint it is difficult to
discern if there might have been some merit in his claim based on a prison policy.
135. See Amador v. Andrews, 655 F.3d 89, 98–99, 102–03 (2d Cir. 2011).
136. See City of Boerne v. Flores, 521 U.S. 507, 529 (1997).

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pliance with the Eighth Amendment.137 In the commentary to the final
rule, the DOJ repeatedly clarified that PREA and the Eighth Amendment are not coextensive and that even if an agency complies fully
with everything in the PREA regulations, it may still be in violation of
the Eighth Amendment.138 The DOJ also stated that “these standards
may influence the standard of care that courts will apply in considering legal and constitutional claims brought against corrections agencies and their employees arising out of allegations of sexual abuse.”139
A. Evaluating Objective Seriousness
While not determinative in and of itself, PREA should be a part
of the analysis about what acts are sufficiently serious to constitute a
constitutional violation under the Eighth Amendment.
Circuit courts that have considered the question have generally
concluded that staff-perpetrated sexual abuse can, but does not necessarily, rise to the level of objective seriousness sufficient for a violation of the Eighth Amendment.140 For example, in Boddie v.
Schneider the Second Circuit concluded that while sexual abuse can
constitute an Eighth Amendment violation, acts by a guard including
squeezing a prisoner’s hand, touching his penis, pressing her body

137. 42 U.S.C. § 15601 (2012).
138. “The standards are not intended to define the contours of constitutionally required conditions of confinement. Accordingly, compliance with the standards does
not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse. Furthermore, while the standards aim to include
a variety of best practices, they do not incorporate every promising avenue of combating sexual abuse, due to the need to adopt national standards applicable to a wide
range of facilities, while taking costs into consideration.” National Standards To Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37107 (June 20, 2012). “The
Department reiterates, however, that this standard, like all the standards, is not intended to serve as a constitutional safe harbor. A facility that makes its best efforts to
comply with the staffing plan is not necessarily in compliance with constitutional
requirements, even if the staffing shortfall is due to budgetary factors beyond its control.” National Standards To Prevent, Detect, and Respond to Prison Rape, 77 Fed.
Reg. 37199 (June 20, 2012).
139. National Standards To Prevent, Detect, and Respond to Prison Rape, 77 Fed.
Reg. 37196 (June 20, 2012).
140. See Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003) (finding that allegations of rape perpetrated by supervisor of work release program satisfied objective
prong of Eighth Amendment test); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.
1997) (“severe or repetitive sexual abuse of an inmate by a prison officer can be
objectively, sufficiently serious enough to constitute an Eighth Amendment violation”) (internal quotation marks omitted); Austin v. Terhune, 367 F.3d 1167, 1171
(9th Cir. 2004) (“the Eighth Amendment’s protections do not necessarily extend to
mere verbal sexual harassment”).

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against his, and calling him a “sexy black devil” were not sufficiently
severe or pervasive to constitute an Eighth Amendment violation.141
Courts determine which acts objectively rise to a level of sufficient seriousness to violate the Eighth Amendment based on “evolving
standards of decency.”142 The Supreme Court has directed attention to
legislation as an important factor in determining the content of contemporary standards of decency.143 The Court has considered both
state and federal statutes in this analysis.144 While the most prominent
recent Eighth Amendment cases that rely on evolving standards of
decency have been sentence proportionality cases, the same standard
applies to conditions of confinement claims.145
The passage of PREA should be considered an indication that
sexual abuse in detention is not consistent with contemporary standards of decency, particularly since it was passed unanimously. The
statutory language insists that “fondling” be understood as a form of
prison rape and creates a “zero tolerance” standard for prison rape.146
The statute and regulations provide a strong indication that contrary to

141. 105 F.3d at 861; see also Jackson v. Madery, 158 F. App’x 656, 661–62 (6th
Cir. 2005) (finding that “unprofessional” rubbing of buttocks during a search did not
rise to the level of a constitutional violation).
142. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (“No static ‘test’ can exist
by which courts determine whether conditions of confinement are cruel and unusual,
for the Eighth Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.”) (internal quotation marks
omitted).
143. See Roper v. Simmons, 543 U.S. 551, 563–64 (2005) (ruling that state legislative enactments rejecting use of the death penalty for juveniles constitute objective
indicia of consensus on evolving standards of decency); Atkins v. Virginia, 536 U.S.
304, 315–16 (2002) (reasoning that federal and state laws prohibiting use of death
penalty for people with mental retardation were particularly powerful indicators of
society’s views given the relative difficulty of passing legislation protective of people
convicted of crimes).
144. See Graham v. Florida, 130 S. Ct. 2011, 2023 (2010), as modified (July 6,
2010) (noting state and federal legislation permitting sentences of life without parole
for juveniles, but also considering the limited use of these laws in practice).
145. See Brown v. Plata, 131 S. Ct. 1910, 1926 n.3 (2011) (noting systemic failures
to provide adequate medical care to prisoners in violation of evolving standards of
decency); Estelle v. Gamble, 429 U.S. 97, 102–05 (1976) (finding that failure to provide medical care violated evolving standards of decency under Eighth Amendment);
see also Alexander A. Reinert, Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory?, 36 FORDHAM URB. L.J. 53, 56
(2009) (arguing that analysis from sentencing proportionality cases could reintegrate
with conditions of confinement analysis).
146. 42 U.S.C. § 15609 (2012) (defining the term “rape” to include “the carnal
knowledge, oral sodomy, sexual abuse with an object, or sexual fondling of a person,
forcibly or against that person’s will”).

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cases such as Boddie, these forms of sexual abuse are now
intolerable.147
A single federal statute in and of itself is probably not sufficient
to indicate the shift in standards of decency that the Court seeks in
Eighth Amendment cases. However, PREA is not alone in expressing
condemnation for sexual abuse in detention. Most states prohibit any
sexual contact between guards and prisoners.148 Indeed, a district
court has already come to the conclusion that sexual abuse in detention no longer accords with evolving standards of decency, without
reference to PREA.149 In that case, a prisoner alleged that a guard
fondled his chest, genitals, and buttocks repeatedly and inappropriately during a pat frisk, describing it as fun and then telling the prisoner to take his “sweet ass” to the yard.150 The court reasoned that
while the incident was similar to the incident in Boddie, societal standards had evolved since then as evidenced by the increased number of
states criminalizing sexual contact between guards and prisoners.151
Taking PREA into account when considering the constitutional
claims of prisoners could lead to substantively different outcomes. For
example, in Green v. Brown, the district court adopted the magistrate
judge’s recommendation “disregard[ing]” the plaintiff’s assertions
with regard to PREA.152 The court also dismissed the plaintiff’s claim
under the Eighth Amendment, ruling that a guard verbally sexually
harassing, masturbating in front of, threatening, and exploiting a prisoner was not objectively serious enough to rise to the level of a constitutional violation.153 If the court had considered PREA’s relevance to
an analysis about how serious an act of sexual abuse need be before
147. 42 U.S.C. § 15602 (2012) (declaring “zero tolerance” for sexual abuse in
detention).
148. See, e.g., 2008 KY. REV. STAT. ANN. § 510.120 (West); MASS. GEN. LAWS
ANN. ch. 268, § 21A (West 2008); MONT. CODE ANN. § 45-5-502 (2013); NEB. REV.
STAT. § 28-322.02 (2008); S.D. CODIFIED LAWS § 22-22-7.6 (2013); UTAH CODE
ANN. § 76-5-412 (LexisNexis 2012); VA. CODE ANN. § 18.2-64.2 (2014); WASH.
REV. CODE ANN. § 72.09.630 (West 2004).
149. Rodriguez v. McClenning, 399 F. Supp. 2d 228, 238 (S.D.N.Y. 2005).
150. Id. at 232.
151. Id. at 237.
152. No. 10-CV-02669-WYD-MEH, 2011 WL 3799047, at *3 (D. Colo. Aug. 29,
2011).
153. Id. at *1; see also Monts v. Greer, No. 5:12-CV-258-MP-GRJ, 2013 WL
5436763, at *3 (N.D. Fla. July 15, 2013), report and recommendation rejected sub
nom. Monts v. Dep’t of Corr., No. 5:12-CV-00258-MP, 2013 WL 5436758 (N.D. Fla.
Sept. 27, 2013) (dismissing claim of prisoner who was forced to expose his anus while
a guard masturbated and made sexual comments as not sufficiently serious to constitute an Eighth Amendment violation and noting that PREA does not provide a private
right of action).

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amounting to cruel and unusual punishment, the court might not have
dismissed the case on those grounds. Similarly, in Todd v. Smith,154 a
court held that because the prisoner had had sex “voluntarily” with an
officer who promised him better treatment in exchange for sex, the
incident did not rise to the level of a constitutional violation. However,
both PREA and many states’ criminal laws indicate a very different
understanding, because of the power and control that prison staff hold
over every aspect of prisoners’ lives and because prisoners are obligated to follow orders of prison staff or face further punishment.155 If
the court had considered the impact of these laws on evolving standards of decency, it might have given the plaintiff’s claim more
weight.
B. Evaluating Subjective Knowledge
In terms of the subjective prong of the deliberate indifference
test, the Supreme Court has held that actual knowledge may be inferred if a risk is “longstanding, pervasive, well-documented, or expressly noted by prison officials . . . .”156 While some courts have held
that knowledge of a “general risk” alone is insufficient to support an
Eighth Amendment claim,157 courts adopting that limitation still reason that general knowledge may contribute to a finding of deliberate
indifference.158 PREA has extensively documented and forced significant attention among detention officials to the problem of sexual
abuse in detention, the vulnerabilities of particular groups of prisoners
(such as transgender,159 disabled,160 and young161 prisoners), and ac154. No. 1:12-1554, 2013 WL 3716606, at *1 (W.D. La. July 15, 2013).
155. 28 C.F.R. § 115.6 (2014) (defining sexual abuse of a prisoner by a staff member
to include any contact between the penis and vulva or anus, and any contact between
the mouth and vulva, penis, or anus); see also Rodriguez, 399 F. Supp. 2d. at 238
(noting that only four states did not criminalize correctional officers having sexual
contact with prisoners).
156. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
157. See, e.g., Wooler v. Hickman Cnty., 377 Fed. App’x. 502, 506 (6th Cir. 2010);
Dunn v. Hawk, 215 F.3d 1329 (7th Cir., 2000) (“[D]eliberate indifference entails not
only awareness of a general risk but also recognition that the risk is significant in a
particular situation.”).
158. See Rich v. Bruce, 129 F.3d 336, 340 n.2 (4th Cir. 1997); see also Counterman
v. Warren Cnty. Corr. Facility, 176 Fed. App’x 234, 238 (3d Cir. 2006) (“Actual
knowledge can be proven circumstantially where the general danger was obvious; that
is, where ‘a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,’ and where ‘circumstances
suggest that the defendant official being sued had been exposed to information concerning the risk and thus must have known about it.’ ”) (quoting Beers-Capitol v.
Whetzel, 256 F.3d 120, 131 (3d Cir. 2001)).
159. 28 C.F.R. § 115.41(d)(7) (2014).
160. 28 C.F.R. § 115.41(d)(1) (2014).

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tions that can aggravate or mitigate vulnerability to sexual abuse.
Given the extensive requirements of tracking, reporting, training, and
planning to comply with PREA and its regulations, it is increasingly
implausible that anyone from line staff to commissioner would remain
genuinely ignorant of many of the facts that could contribute to a deliberately indifferent mindset on the subject of vulnerability to sexual
abuse in detention. Thus, courts should consider the possibility that
PREA can also illuminate the subjective component of the Eighth
Amendment standard.
This analysis might have led to a different outcome in Surratt v.
Walker, where a prisoner alleged that a guard sexually assaulted her
after he had already sexually assaulted other prisoners.162 The prisoner
alleged that the specific knowledge from past complaints against the
officer, when combined with more general knowledge from PREA
and other sources, was sufficient for a finding of deliberate indifference.163 The court disagreed, noting that the prison had not substantiated the prior complaints and that general knowledge was not
sufficient to prove deliberate indifference.164 Instead, the court should
have considered the evidence of knowledge from PREA and the past
reported incidents to constitute sufficient evidence to permit the plaintiff to present her case to a jury, and so denied the defendants’ motion
for summary judgment.
Similarly, in Lobozzo v. Colorado Department of Correction, the
plaintiff tried using PREA statistics to show the prevalence of prisoner-perpetrated rape in facilities under the defendant agency’s control.165 The Tenth Circuit granted the defendants’ motion for summary
judgment in that case, explaining that while such statistics could be
relevant in an appropriate case they were not sufficient to show deliberate indifference in part because of a lack of specificity to the plaintiff’s particular facility and characteristics.166 The overwhelming
evidence of prevalent sexual assault in the defendants’ facilities
should have received more weight, permitting the plaintiff’s claim to
survive summary judgment.

161.
162.
163.
164.
165.
166.

28 C.F.R. § 115.41(d)(2) (2014).
08-01228, 2011 WL 1231312 at *5 (C.D. Ill. Mar. 29, 2011).
Id. at *3.
Id.
429 Fed. App’x 707, 711 (10th Cir. 2011).
Id. at 712.

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C. Evaluating Other Claims
PREA and its regulations could also be a helpful source for
courts to consider in Fourth Amendment claims. In some situations,
plaintiffs could credibly offer and courts could appropriately evaluate
aspects of PREA as evidence that the connection a defendant offers
between a restriction and an interest is not necessarily valid or rational, or that alternative means of accomplishing the interest are readily available. PREA could also shed light on the weight to give the
individual’s expectation of bodily privacy. A unanimous act of Congress, the research it commissioned, and the regulations the DOJ and
DHS promulgated should not be dismissed as irrelevant to the reasonableness of expectations of prisoners and actions of prison officials.
Courts should also consider PREA when relevant to the merits of
prisoners’ tort claims. To the extent that states167 and the federal government168 have abrogated their sovereign immunity, prisoners may
bring tort claims about conditions of confinement including sexual
abuse in detention. In determining what constitutes negligence in
prison cases, courts have frequently considered standards that are not
directly judicially enforceable as relevant evidence.169
For example, the en banc D.C. Court of Appeals reversed a judgment notwithstanding the verdict in a negligence case against the District of Columbia for causing the death of a prisoner with
schizophrenia who was being held in the mental health unit of the
jail.170 A guard saw the prisoner getting anally penetrated by three
other prisoners and later slumping naked on the floor of his cell in a
pool of feces and vomit.171 Neither that guard nor any other prison
167. See, e.g., N.Y. CT. CL. ACT § 8 (McKinney 1969); FLA. STAT. ANN. § 768.28
(West 2011); MONT. CODE ANN. § 2-9-102 (2013). Limitations on jurisdiction, caps
on damages, and other restrictions are not uncommon. See, e.g., GA. CODE ANN. § 5021-23 (2013) (restricting jurisdiction to Georgia state courts); MISS. CODE. ANN. § 1146-5 (West 2013) (waiving immunity but capping damages at $500,000).
168. Federal Torts Claim Act, 28 U.S.C. § 1346 (2012).
169. See, e.g., District of Columbia v. Moreno, 647 A.2d 396, 400 (D.C. 1994)
(finding expert testimony inadequate in part because of lack of specific discussion of
American Correctional Association standards); Keys v. Dep’t of Rehab. & Corr.,
2004-Ohio-2751, No. 2002-01594, 2004 WL 1192076 (finding expert testimony unpersuasive in part because expert “acknowledged that he was not aware of any statutory provision, administrative, departmental or Post-Order rule, or any accreditation
standard, that was violated with respect to any of the conditions he criticized”);
Sanchez v. New York, 784 N.E.2d 675, 675 n.2 (N.Y. 2002) (finding a triable issue of
fact as to foreseeability in a negligent supervision claim existed in part based on testimony about standards for supervision issued by the State Commission of Correction).
170. Finkelstein v. District of Columbia, 593 A.2d 591, 593 (D.C. 1991).
171. Id. at 592–93.

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staff intervened, and they eventually discovered he was dead.172 In
finding that the jury had sufficient basis for finding liability and reversing the trial court’s judgment notwithstanding the verdict, the
Court of Appeals relied on expert testimony about American Correctional Association (ACA) standards.173 ACA standards are not judicially enforceable, but are used in a voluntary accreditation process.174
The expert testified that according to the standards, supervision should
have been more frequent and intervention should have happened
earlier.175
There have been virtually no opinions on tort claims referring to
PREA, aside from constitutional cases with supplemental state law
claims not discussed on their merits. One exception I discuss elsewhere.176 The other demonstrates appropriate treatment of PREA. In
Giraldo v. California Department of Correction & Rehabilitation, a
transgender woman sued the state correctional agency after other prisoners raped her.177 She alleged that the agency had been negligent in
placing transgender women in male facilities with no meaningful precautions to promote their safety.178 A lower court dismissed her claim,
finding that the prison did not owe a duty of care to protect prisoners
in its custody.179 The appellate court reversed, relying in part on
PREA in finding that a duty did exist based on the vulnerability and
dependence of prisoners on prison officials.180
D. Evaluating Defenses
Because on its face PREA was intended primarily to benefit prisoners, courts should be wary of attempts to use PREA to benefit
prison official defendants in prisoners’ rights litigation.181 While
prison officials are generally entitled to deference with regard to their
172. Id. at 593.
173. Id.
174. Id.
175. Id.
176. See supra notes 88–90 and accompanying text; infra notes 186–192 and accompanying text.
177. 85 Cal. Rptr. 3d 371, 375 (Cal. Ct. App. 2008).
178. Id.
179. Giraldo v. Cal. Dep’t of Corr., No. CGC-07-461473, 2007 WL 4355775 (Cal.
Super. Ct. June 15, 2007).
180. Giraldo, 85 Cal. Rptr. 3d at 385 (“It is manifestly foreseeable that an inmate
may be at risk of harm, as the recently enacted PREA and SADEA show, recognizing
the serious problem presented by sexual abuse in the prison environment.”).
181. Cf. Cannon v. Univ. of Chi., 441 U.S. 677, 689 (1979) (considering whether
plaintiff was intended beneficiary of act in determining whether right of action
existed).

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internal policies, this deference is not unfettered.182 Congress entrusted DOJ with the authority to implement PREA;183 thus, only DOJ
regulations interpreting PREA should receive Chevron deference.184
At a minimum, any use of PREA to justify an infringement of
prisoners’ constitutional rights should bear a close relationship to the
actual content of the statute and regulations, in sharp contrast to some
past practices. For example, the court in Lowry 185 should have referred to the text of PREA. If it had done so, it would have noticed
that PREA supported the plaintiff’s claim, rather than the defendant’s
argument. As such, the court should have looked much more skeptically at the nexus between the defendant’s “legitimate penological objective” and the defendant’s conduct, denying the defendant’s motion.
A correction to the lopsided treatment of PREA-related claims
and defenses could also have resulted in a different outcome in A.B. 186
In that case, the court disregarded the agency’s noncompliance with
PREA provisions when evaluating the plaintiff’s argument against immunity for negligence. However, it effused over the agency’s partial
compliance with PREA when justifying its decision absolving the
agency of any culpability for the repeated rapes of a woman it incarcerated.187 On the former point, it selectively considered the grantmaking aspect of PREA, rather than the regulatory and enforcement
provisions.188 On the latter point, it did not consider the language of
PREA at all.189 If it had, it might have noted that PREA regulations
require a good deal more than simply telling officers that it is wrong to
182. See, e.g., Hudson v. McMillian, 503 U.S. 1, 6 (1992) (“[Prison officials] should
be accorded wide-ranging deference in the adoption and execution of policies and
practices that are needed to preserve internal order.”); Amos v. Md. Dep’t of Pub.
Safety & Corr. Servs., 178 F.3d 212, 222 (4th Cir. 1999) vacated, 178 F.3d 212 (4th
Cir. 1999) (“[T]he courts cannot simply defer blindly to either the decisions of the
DOJ or to those of prison officials.”).
183. 42 U.S.C. § 15605 (2012) (granting DOJ authority to create regulations implementing PREA); 42 U.S.C. § 15603 (2012) (granting DOJ authority to implement
PREA through conducting research).
184. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984); Amos v. Md. Dep’t of Public Safety and Corr. Servs., 178 F.3d 212, 222 (4th
Cir. 1999), vacated, 178 F.3d 212 (4th Cir. 1999) (“This permissible deference to
prison authorities, however, must be balanced with the great deal of deference due the
DOJ in this area, since Congress has spoken through the DOJ with respect to interpretation of the ADA.”).
185. See supra notes 106–111 and accompanying text.
186. W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., No. 13-0037, 2014 WL
5507522 (W. Va. Oct. 31, 2014).
187. Id.
188. Id.
189. Id. (“The undisputed facts demonstrate that D.H. was trained annually on PREA
and unquestionably understood that sexual contact with inmates was prohibited.”).

R

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rape, which was the primary form of compliance the court noted.190
Courts should also not accept apparent partial PREA compliance as a
reason to reject Eighth Amendment and RLUIPA claims, as they did
in Crane 191 and Prison Legal News 192 respectively.
In some of the other cases discussed in Section II.B above, this
approach might not have changed the outcome, but it would have
changed the reasoning. For example, in Hammons,193 the court should
have directly rejected the defendant’s assertion that PREA prevented
permitting prayer oils, given the absence of any statutory or regulatory
language supporting such an interpretation.
E. Evaluating Exhaustion
Courts should also interpret means of reporting prison rape that
facilities offer pursuant to PREA as proper means of exhausting administrative remedies for purposes of the PLRA. Requiring prisoners
to pursue multiple channels for reporting sexual abuse, particularly
when contrary to directions from the prison, not only makes no sense
and aggravates the already serious barriers to relief for imprisoned
survivors of sexual abuse, but also creates a bizarre result exactly contrary to the intent of PREA and its regulations.
At least one court has already demonstrated an appropriate analysis of the exhaustion issue. The Idaho District Court ruled that a prisoner could continue with her claim about a guard sexually assaulting
her during a pat frisk despite not having filed a grievance, because the
prison had created an alternative remedy through the PREA hotline,
which the plaintiff did use.194 Other courts should follow this reasoning, rather than the reasoning used in cases like Tracy v. Coover.195
REFORM

AND

IV.
RETRENCHMENT

Those who successfully lobbied for PREA, and the prisoners and
advocates who shaped PREA regulations during the extensive
rulemaking process, surely hoped for better outcomes in litigation than
I have described. While perhaps few were optimistic enough to imagine total elimination of sexual abuse in detention, it seems unlikely
190. Id.
191. See supra note 104 and accompanying text.
192. See supra note 101 and accompanying text.
193. See supra note 93 and accompanying text.
194. Barkey v. Reinke, 1:07-CV-471-S, 2010 WL 3893897, at *6 (D. Idaho Sept. 30,
2010).
195. See supra note 127 and accompanying text.

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that they sought or predicted worsened conditions for prisoners experiencing sexual abuse. And yet, for at least some prisoners, PREA has
worsened conditions. It has provided a route for prison officials to
trick prisoners into filing complaints about sexual abuse one way, then
keep them from bringing a lawsuit because they didn’t do it in another. It has provided an excuse for staff of facilities to force unwanted penetrative exams on prisoners and to place more prisoners in
solitary confinement. Meanwhile, courts have cursorily rejected many
prisoners’ arguments about how PREA should help them.
The problem is not even so limited. In this Article, I have focused
exclusively on litigation. However, regulations and everyday practices
raise more concerns about the ways that PREA has been used against
prisoners, especially prisoners particularly vulnerable to sexual abuse
in detention.196
While these are not the only stories that can be told about PREA,
it is significant that they can be told at all.197 Reva Seigel describes the
tendency of law to change without altering fundamental power relations as “preservation through transformation.”198 While significant
shifts have occurred in response to resistance from communities of
color and women, legal structures tend to adapt, co-opt, or appear to
accommodate particular strains of dissent while retaining unjust dynamics and social hierarchies.199 Thus, even when it seems that key
196. See Jason Lydon, A Message from Jason, BLACK AND PINK NEWSLETTER (Apr.
2013) (“Prison officials can claim to have implemented PREA policies without actually changing anything for the lived experience of prisoners.”); DEAN SPADE, NORMAL
LIFE: ADMINISTRATIVE VIOLENCE, CRITICAL TRANS POLITICS, AND THE LIMITS OF
LAW 91 (2011) (“It is unclear whether the new rules have reduced sexual violence, but
it is clear they have increased punishment”); Idaho Dep’t of Corr., Procedure Control
No. 325.02.01.001, Prison Rape Elimination 5 (2009) (prohibiting prisoners in
women’s prisons from having masculine haircuts and prisoners in men’s prisons from
having effeminate haircuts under guise of compliance with PREA); Comments on
Prison Rape Elimination Act Proposed Regulations, SYLVIA RIVERA LAW PROJECT,
(May 10, 2010) http://archive.srlp.org/files/SRLP%20PREA%20comment%20Docket
%20no%20OAG-131.pdf (quoting trans prisoner as saying, “There’s zero tolerance
for us [gay and trans prisoners] anymore, on account of PREA.”).
197. Cf. Lisa Crooms, Everywhere There’s War: A Racial Realist’s Reconsideration
of Hate Crime Statutes, 1 GEO. J. OF GENDER & L. 41, 44 (1999) (asserting that while
stories of Black people convicted of race-based hate crimes against White people are
not the only stories that can be told, it is disturbing that they can be told at all).
198. Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy,
105 YALE L.J. 2117, 2178 (1996).
199. Reva B. Siegel, Why Equal Protection No Longer Protects: The Evolving
Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1113 (1997) (“The
ways in which the legal system enforces social stratification are various and evolve
over time. Efforts to reform a status regime bring about changes in its rule structure
and justificatory rhetoric . . . In short, status-enforcing state action evolves in form as
it is contested.”); see also Derrick A. Bell, Jr., Brown v. Board of Education and the

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legal and social constituencies have agreed that a particular practice is
disagreeable, if it is a major part of current institutional practices and
power relations then significant and often subtle resistance emerges to
eliminating it. Indeed, prison law reform in particular can lead to unintended and damaging results.200
Sexual abuse in detention involves deeply entrenched hierarchies
based on race, gender, and disability. People of color, disabled people,
and trans people are much more likely to be incarcerated than white
people, nondisabled people, and people who are not transgender.201
Once within detention, people of color, disabled people, women, and
trans people are often targeted for sexual abuse.202 As such, the comInterest-Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980) (“The interest of
blacks in achieving racial equality will be accommodated only when it converges with
the interests of whites . . . [T]he fourteenth amendment . . . will not authorize a
judicial remedy providing effective racial equality for blacks where the remedy sought
threatens the superior societal status of middle and upper class whites.”).
200. See Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 LAW & SOC’Y REV. 731, 760 (2010) (describing prison litigation
which has the effect of legitimizing the prison system); Alexander L. Lee, Nowhere to
Go But Out: The Collision Between Transgender and Gender-Variant Prisoners and
the Gender Binary in America’s Prisons 44 (Spring 2003) (unpublished comment),
available at http://www.justdetention.org/pdf/nowheretogobutout.pdf) (describing unintended consequences in terms of prison expansion of women’s reformatory
movement).
201. See DAVIS , supra note 1, at 28–29; Tushar Kansal, Racial Disparity in Sentencing: A Review of the Literature, THE SENTENCING PROJECT (Jan. 2005), available at
http:// www.sentencingproject.org/doc/publications/rd_sentencing_review.pdf (discussing the findings of studies that show Blacks and Latinos are fundamentally disadvantaged in the criminal justice system as it pertains to sentencing and the decision to
incarcerate); Justice On Trial - The Leadership Conference on Civil and Human
Rights, THE LEADERSHIP CONFERENCE, http://www.civilrights.org/publications/justice-on-trial/ (last visited Nov. 9, 2014) (citing statistics that speak to the entrenched
nature of discrimination against racial minorities in terms of traffic stops and immigration efforts); San Fran. Dep’t of Health, The Transgender Community Health Project (Feb.18, 1999), available at http://hivinsite.ucsf.edu/InSite?page=cftg-02-02
(finding that sixty-five percent of transgender women and twenty-nine percent of
transgender men had a history of incarceration); JAIME M. GRANT, LISA A. MOTTET &
JUSTIN TANNIS, INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL TRANSGENDER DISCRIMINATION SURVEY 163 (2011), available at http://transequality.org/
PDFs/NTDS_Report.pdf (noting that sixteen percent of trans people had been incarcerated in jail or prison); Jean Stewart and Marta Russell, Disablement, Prison, and
Historical Segregation, 53 MONTHLY REV. (2001) https://monthlyreview.org/2001/07/
01/disablement-prison-and-historical-segregation (noting around 30% of prisoners
have hearing loss, 55% of incarcerated youth have learning disabilities, and one sixth
to one fourth of California prisoners have a “serious mental disorder”).
202. See Beth Ribet, Naming Prison Rape As Disablement: A Critical Analysis of the
Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy, 17 VA. J. SOC. POL’Y & L. 281, 289 (2010)
(noting that disabled people are more likely to be targeted for prison rape and that
prison rape may also cause disabilities); Kim Shayo Buchanan, E-Race-ing Gender:

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plex resistance to more fundamental change through law reform that
Seigel describes may help to explain on a broader level the limited and
at times perverse impact of PREA.
Alice Ristroph further explains how any attempt to separate sexuality from carceral punishment cannot succeed. She argues that incarceration is inherently a sexual punishment because of the extent of
corporal control that carceral systems exert over prisoners.203 If Ristroph is right, and incarceration cannot be fully desexualized,204 then
as long as incarceration persists any attempts to remove the sexual
aspects of the punishment must be, at best, incomplete.
These observations comport with those of Angela Y. Davis and
others that incarceration cannot be “fixed,” because it is not “broken”—the violence and social hierarchies enforced through detention
systems are not accidental or superficial aspects of incarceration, but
rather intrinsic to their function.205 Despite Congress’s incremental
move toward increasing bodily autonomy and sexual self-determination of prisoners through seeking to eliminate sexual abuse in detention, the more fundamental commitment to retaining total control over
the bodies and behaviors of prisoners retains its force in jurisprudence.

The Racial Construction of Prison Rape, in MASCULINITIES AND THE LAW: A MULTIDIMENSIONAL APPROACH 187, 187 (Frank R. Cooper & Ann C. McGinley eds.,
2012) (explaining that Black prisoners are particularly likely to be targeted for sexual
abuse by staff and multiracial prisoners are particularly likely to be targeted for sexual
abuse by other prisoners); Valerie Jenness et al., Violence in Correctional Facilities:
An Empirical Examination of Sexual Assault 3 (2007), available at http:// ucicorrections.seweb.uci.edu/pdf/FINAL_PREA_REPORT.pdf (finding rates of sexual assault
for trans women 13 times higher than for prisoners in men’s prisons overall); Paul
Guerino & Allen J. Beck, Sexual Victimization Reported by Correctional Authorities,
2007- 2008 at 6 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/
svraca0708.pdf (“Females represent 7% of sentenced prison inmates but accounted for
21% of all victims of inmate-on-inmate sexual victimization in federal and state prisons. Similarly, females account for 13% of inmates in local jails but 32% of all
victims.”).
203. See Alice Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139
(2006) (explaining that sexual coercion is an inherent aspect of mass confinement).
204. See id. at 184 (“At best, it seems that extensive surveillance and strict control of
prisoners could reduce the incidents of physically violent rape, but such measures
come at the price of prisoners’ autonomy and may only increase distortions of sexuality within the prison. However we define rape, however we resolve the difficult issues
of force and nonconsent, there remains ‘the institution of confinement itself.’ ”).
205. See, e.g., DAVIS, supra note 1, at 28 (describing racism of prison industrial
complex and its role in continuing enslavement); Abolish Prisons! An Interview with
Isaac Ontiveros, AK PRESS (March 7, 2014), http://www.revolutionbythebook.akpress
.org/abolish-prisons/ (“We don’t see the prison-industrial complex as broken; we see
it working very, very well at surveilling, policing, imprisoning, and killing exactly
who it targets.”).

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My analysis of PREA litigation confirms that concerns about potential harms of well-intentioned law reform projects are warranted.
The costs of PREA have been substantial, although because I have not
assessed the benefits of the legislation or tried to weigh them against
those costs it would be premature for me to attempt an assessment of
how worthwhile the legislation is overall.
My analysis also demonstrates that the impact of a particular law
reform measure does not hinge solely on what that measure says.206
The meaning of PREA is not yet settled more than a decade after its
passage. The dynamic processes of power, resistance, cooptation, and
struggle continue. Particularly in light of the pressures to the contrary,
courts and administrators must exert the utmost vigilance to implement the change in law that Congress and stakeholders sought to bring
about. Even these efforts may prove inadequate without accompanying cultural change, social mobilization, and decarceration.207
The doctrinal shifts I outlined constitute one aspect of what we
would need to prevent further perversion of PREA into a measure that
harms, rather than supports or protects, imprisoned survivors of sexual
abuse. It would take no great ingenuity, just uncommon integrity and
attention to the language of the law, for courts to shift PREA from
both sword and shield in the hands of detention officials, to a tool
available to those PREA ought to help.
CONCLUSION
Despite its articulated goal of ending sexual abuse in detention,
PREA has often failed imprisoned survivors of sexual abuse in litigation, and has even been turned against them. In the past ten years,
courts have often disregarded the potential of PREA to support prisoners’ claims, but have not shown the same disregard to use of PREA as
a prison official’s defense. In the course of this litigation, courts have
rarely devoted even cursory attention to actual language of the statute
or the recently promulgated regulations.

206. See SPADE, supra note 196, at 223 (critiquing shortcoming of social justice
approaches that focus on formal legal recognition).
207. Id. at 91 (“[R]eform efforts have been incorporated into the project of prison
expansion”); MICHELLE ALEXANDER, THE NEW JIM CROW: MASS-INCARCERATION IN
AN AGE OF COLOR-BLINDNESS 230 (2010) (“Gains can be made, yes, but the new
caste system will not be overthrown by isolated victories in legislatures or courtrooms.”); Thompson, supra note 12, at 123 (“[A]s prison and corrections officials
look to implement the PREA, it becomes clear that much work remains in facilitating
the sort of cultural change that could lead to the reduction or elimination of rape in
prison and jail.”).

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While normatively and doctrinally wrong, these results are not
shocking. Making meaningful change to reduce sexual abuse in detention demands major shifts in power relations of which courts form a
part.
I have shown a few of the ways in which courts may do their part
to appropriately incorporate PREA into their analyses. For example,
courts should consider PREA a sign of shifting standards of decency
for Eighth Amendment purposes, recognizing a broader spectrum of
sexual abuse as rising to the level of a Constitutional violation. The
extensive information PREA has provided detention officials should
also factor into assessments of their subjective frames of mind.
These shifts in adjudication, unfortunately, will not end sexual
abuse in detention. We must address far more fundamental problems
before that will come to pass. They would, however, prevent some of
the miscarriages of justice currently happening in the name of that
goal.