    [House Hearing, 111 Congress]
    [From the U.S. Government Publishing Office]

       NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                  JULY 8, 2009

                                   ----------

                               Serial No. 111-49

                                   ----------

             Printed for the use of the Committee on the Judiciary

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

        NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  JULY 8, 2009

                                   __________

                               Serial No. 111-49

                                   __________

             Printed for the use of the Committee on the Judiciary

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

                      U.S. GOVERNMENT PRINTING OFFICE
    50-862 PDF                WASHINGTON : 2010
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    20402-0001

                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
    LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
    BRAD SHERMAN, California             GREGG HARPER, Mississippi
    TAMMY BALDWIN, Wisconsin
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York

                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

            Subcommittee on Crime, Terrorism, and Homeland Security

                 ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

    PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
    JERROLD NADLER, New York             TED POE, Texas
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            J. RANDY FORBES, Virginia
    STEVE COHEN, Tennessee               TOM ROONEY, Florida
    ANTHONY D. WEINER, New York
    DEBBIE WASSERMAN SCHULTZ, Florida
    MIKE QUIGLEY, Illinois

                          Bobby Vassar, Chief Counsel

                        Caroline Lynch, Minority Counsel

                                C O N T E N T S

                                  ----------

                                  JULY 8, 2009

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Robert C. ``Bobby'' Scott, a Representative in
      Congress from the State of Virginia, and Chairman, Subcommittee
      on Crime, Terrorism, and Homeland Security.....................     1
    The Honorable Louie Gohmert, a Representative in Congress from
      the State of Texas, and Ranking Member, Subcommittee on Crime,
      Terrorism, and Homeland Security...............................     3

                                   WITNESSES

    Ms. Melissa Rothstein, East Coast Program Director, Just
      Detention International, Washington, DC
      Oral Testimony.................................................     4
      Prepared Statement.............................................     8
    The Honorable Reggie B. Walton, Judge, United States District
      Court of the District of Columbia, Chair, National Prison Rape
      Elimination Act Commission
      Oral Testimony.................................................    15
      Prepared Statement.............................................    16
    Mr. Sean E. Kenyon, Attorney, Hoeppner Wagner & Evans LLP,
      Merrillville, IN
      Oral Testimony.................................................    18
      Prepared Statement.............................................    21
    Mr. Jon Ozmint, Director, South Carolina Department of
      Corrections, Columbia, SC
      Oral Testimony.................................................    25
      Prepared Statement.............................................    28
    Ms. Lisa Freeman, Prisoner RIghts Project, Legal Aid Society of
      New York, New York, NY
      Oral Testimony.................................................    40
      Prepared Statement.............................................    43

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Prepared Statement of the Honorable Louie Gohmert, a
      Representative in Congress from the State of Texas, and Ranking
      Member, Subcommittee on Crime, Terrorism, and Homeland Security    57

                                    APPENDIX
                   Material Submitted for the Hearing Record

    Prepared Statement of Michael W. Macleod-Ball, Interim Director
      and Jennifer Bellamy, Legislative Counsel, Washington
      Legislative Office, the American Civil Liberties Union (ACLU)..    66
    Prepared Statement of the Stop Abuse and Violence Everywhere
      (SAVE) Coalition...............................................    72
    Washington Post Article entitled ``A Prison Nightmare''..........    86
    Report entitled ``National Rape Elimination Commission Report,''
      June 2009......................................................    88

        NATIONAL PRISON RAPE ELIMINATION COMMISSION REPORT AND STANDARDS

                                  ----------

                            WEDNESDAY, JULY 8, 2009

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                                  and Homeland Security
                                    Committee on the Judiciary,
                                                        Washington, DC.

        The Subcommittee met, pursuant to notice, at 3:55 p.m., in
    room 2141, Rayburn House Office Building, the Honorable Robert
    C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
        Present: Representatives Scott, Gohmert, and Lungren.
        Staff Present: (Majority) Jesselyn McCurdy, Counsel; Karen
    Wilkinson, Fellow, Federal Public Defender Office Detailee; Joe
    Graupensperger, Counsel; Veronica Eligan, Professional Staff
    Member; (Minority) Caroline Lynch, Counsel; Kimani Little,
    Counsel; and Kelsey Whitlock, Staff Assistant.
        Mr. Scott. The hearing will come to order. I would like to
    welcome you to the Subcommittee on Crime, Terrorism, and
    Homeland Security. We are having a hearing on the ``National
    Prison Rape Elimination Commission Report and Standards.''
        Over 7 million Americans are incarcerated in U.S.
    correctional facilities or supervised in the community at the
    cost of more than $68 billion a year. If you are going to lock
    up so many people in this country, prisons and jails should be
    safe and productive places. Prison rape has been shown to have
    a devastating impact on our prisons. Not only does it cause
    severe physical and psychological trauma to its victims, but
    prison rape is recognized as a contributing factor to prison
    homicide, violence against staff, and institutional riots. It
    also increases the transmission of HIV/AIDS, other sexually
    transmitted diseases, tuberculosis, hepatitis B and C, all of
    which exist at a very high rate within U.S. prisons and jails.
    A growing number of HIV/AIDS transmissions and other sexually
    transmitted diseases in prisons increases the incidents of
    these diseases in our communities and exposes and imposes
    threats and costs to society at large.
        Prison pays dearly for ignoring prison rape. Inmates, often
    nonviolent first-time offenders who are sexually assaulted,
    come out of prison severely traumatized and leave prison not
    only more likely to commit crimes but far more likely to commit
    violent crimes than when they entered.
        Prison rape is a crime with institutional implications. The
    Supreme Court in Farmer v. Brennan held that the deliberate
    indifference to the risk of prison rape violates the Eighth and
    14th amendments to the U.S. Constitution. The Supreme Court
    held that while prison conditions may be restrictive or even
    harsh, prison and jail officials must take reasonable measures
    to guarantee the safety of inmates.
        It is particularly troubling that juveniles and men and
    women who are small in stature are at increased risk of sexual
    abuse by the prisoners. Bureau of Justice statistics estimates
    that young people held in juvenile facilities are more than
    five times more likely to be sexually assaulted than adults in
    correctional facilities. Juveniles in adult prisons are also
    disproportionately at risk of being sexually assaulted than
    adults in those facilities. In 2005, the Bureau of Justice
    statistics found that 21 percent of victims of sexual assaults
    in adult jails were youth under the age of 18. Young people are
    not able to respond to sexual advances by older, more
    experienced youth or adults. Correctional officials have a
    moral and legal obligation to protect young people in these
    institutions.
        Merely being female makes a person more vulnerable to
    sexual assault in prison. Women and girls are
    disproportionately represented as victims of sexual assault
    while being incarcerated. According to the Bureau of Justice
    statistics, between 2005 and 2006, 36 percent of all victims of
    sexual assault were female, even though girls represented only
    15 percent of confined youth in 2006.
        Also, people who suffer from mental disability or serious
    mental illnesses are far more likely to be sexually assaulted
    while incarcerated. A California study on sexual abuse in
    correctional facilities found that gay men and women as well as
    transgendered individuals are sexually abused at a much higher
    rate than the general incarcerated population.
        In July 2003, both the Senate and House unanimously passed
    the Prison Rape Elimination Act of 2003, and the bill was
    signed into law a few months later by President Bush. This
    legislation was a bipartisan effort led by Senators Jeff
    Sessions and Ted Kennedy and Frank Wolf in the House and
    myself. The Prison Rape Elimination Act is one of the few
    Federal laws that addresses sexual violence in correctional and
    detentional settings.
        Federal and State detention facilities, including jails,
    prisons, police lockups, private facilities, and immigration
    detention centers are all required to comply with PREA. PREA
    calls for the development of national standards to address
    prison rape and gathering of nationwide statistics about the
    problem, funding for grants to States to combat it, and the
    creation of a Department of Justice review panel to hold
    hearings with correctional facilities about ways to prevent
    inmate sexual assaults.
        On June 23, 2009, a National Prison Rape Elimination
    Commission released its final report* on proposed standards on
    prevention, detection, and monitoring of sexual abuse of
    incarcerated and detained individuals in the United States. The
    long awaited report on standards are the culmination of many
    years of work by Congress, prison reform advocates,
    correctional officials, and sexual assault victims to bring
    attention to this very serious problem.
    ---------------------------------------------------------------------------
        *The report entitled ``National Rape Elimination Commission
    Report,'' is reprinted in the Appendix of this hearing and can also be
    viewed at: http://www.ncjrs.gov/pdffiles1/226680.pdf.
    ---------------------------------------------------------------------------
        I would like to thank the Commission and particularly Judge
    Reggie Walton for his leadership and the leadership of the
    commissioners on this issue.
        During today's hearing, our witnesses will discuss the
    findings of the report, the standards developed by the
    Commission, and the next steps that we need to take. We have
    several distinguished witnesses who will testify about the
    problem and how to keep people who are incarcerated safe from
    sexual assault.
        It is now my pleasure to recognize the Ranking Member of
    the Subcommittee, my colleague from Texas, the Honorable Louie
    Goehmert.
        Mr. Gohmert. Thank you, Chairman Scott, and I do have a
    full 5-minute opening statement. But in view of the fact that
    our witnesses have been here waiting an hour, can I ask
    unanimous consent to give my opening statement after they are
    all finished so that we can move right into their testimony?
        Mr. Scott. Without objection, so ordered.
        I would like to recognize the presence of the gentleman
    from California, Mr. Lungren. If anyone has statements, without
    objection, they will be inserted into the record at this point.
        We have a panel of witnesses who will help us consider this
    issue. Our first witness will be Melissa Rothstein from the
    Just Detention International, formerly the Stop Prison Rape.
    Ms. Rothstein is the East Coast Program Director of Just
    Detention International, an international human rights
    organization dedicated to ending sexual violence in all forms
    of detention. Before opening JDI's Washington, D.C. office, she
    served as Program Director in its Los Angeles headquarters.
    Prior to joining that organization, she was a senior staff
    attorney and director of social work at the Office of Appellate
    Defender in the Public Defender Office in New York City. She is
    a graduate of Columbia Law School, Columbia School of Social
    Work, and Hampshire College.
        Our next witness will be Judge Reggie Walton, who has been
    a U.S. District Court judge for the District of Columbia since
    2001, after being nominated by President Bush. In 2007, Chief
    Justice Roberts appointed Judge Walton to serve as a judge on
    the Foreign Intelligence Surveillance Court. He was also
    appointed by President Bush to serve as a chairperson of the
    National Prison Rape Reduction Commission. Previously, Judge
    Walton served as an Associate Judge of the Superior Court of
    the District of Columbia and Associate Director of the Office
    of National Drug Control Policy. He received a Bachelor of Arts
    Degree from West Virginia State College and his Juris Doctorate
    from American University, Washington College of Law.
        The third witness will be Sean Kenyon, who is an
    experienced trial lawyer with Hoeppner, Wagner & Evans. She
    represents a juvenile who was raped in a South Bend, Indiana
    juvenile facility. She graduated from Indiana University and
    Indiana University School of Law.
        Our next witness will be Jon Ozmint, Director of the South
    Carolina Department of Corrections. He currently serves as
    Chair of the Legal Issues Committee of the Association of State
    Correctional Administrators, and also chairs the Staff Safety
    Committee of the American Correction Association. He is a
    graduate of the Citadel and also attended the University of
    Alabama Law School.
        Our final witness will be Lisa Freeman, Staff Attorney of
    the Prisoners Rights Project of the Legal Aid Society, which
    she has litigated complex civil rights lawsuits involving
    incarcerated men and women in New York State. Following an
    extensive investigation, she brought the Amador v. Andrews
    case, a Federal lawsuit now seeking to change the correctional
    system that fails to protect women in State custody from sexual
    abuse by staff. She has also litigated conditions in New York
    City jails and served as a member of the National Prison Rape
    Elimination Commission Standards Committee.
        Each of the witnesses' written statements will be entered
    into the record in its entirety. I would ask each witness to
    summarize his or her testimony in 5 minutes or less. And to
    help you stay within that time, there is a lighting device at
    the table. When the light switches from green to yellow, you
    will have 1 minute to conclude your testimony. When the light
    turns red, it signals that the 5 minutes have expired.
        I will now begin with Ms. Rothstein.

     TESTIMONY OF MELISSA ROTHSTEIN, EAST COAST PROGRAM DIRECTOR,
              JUST DETENTION INTERNATIONAL, WASHINGTON, DC

        Ms. Rothstein. Good afternoon, and thank you, Mr. Chairman,
    Judge Gohmert, and Members of the Committee, for holding this
    hear and for inviting me to testify about the National Prison
    Rape Elimination Commission Report and Standards.
        I am the East Coast Program Director of Just Detention
    International. Formerly known as Stop Prisoner Rape, JDI is the
    only U.S. Organization exclusively dedicated to ending sexual
    violence in detention. Specifically, we work to ensure
    government accountability for prisoner rape, to transform
    public attitude about sexual violence in detention, and to
    promote access to resources for those who have survived this
    form of abuse. All of these efforts are guided by the expertise
    of men, women, and children who have endured sexual violence
    behind bars and have been brave enough to share their
    experiences with us.
        Congress' attention to the problem of sexual abuse behind
    bars has been a critical factor in improving inmate safety.
    Thanks to the Prison Rape Elimination Act of 2003, corrections
    officials can no longer deny that sexual violence is a problem
    in their facilities, and leading agencies are already
    developing best practices to improve inmate safety.
        On June 23 the National Prison Rape Elimination Commission
    released its final report and national standards as mandated
    PREA. These documents are arguably the most powerful tool to
    date in the effort to end sexual violence behind bars. The
    Commission's report confirms what we at JDI have long known to
    be true, that sexual violence and detention is not an
    inevitable aspect of incarceration. On the contrary, it can be
    prevented through sound policies, safe practices, and effective
    management. The standards address core prison management issues
    such as staff training, inmate education, housing,
    investigations, and medical and mental health care in the
    aftermath of an assault.
        While broad in scope, the requirements are quite basic, and
    perhaps most importantly they are achievable. JDI is
    collaborating with officials in California and Oregon to bring
    their State prison systems into compliance with the standards
    even before they are required to do so. Both systems have
    already made tangible improvements.
        In California JDI helped secure a community-based rape
    crisis counselor on a sexual assault response team at 31 of the
    State's 33 prisons and provided cross-training so that the
    counselors and prison officials understand each other's
    respective jobs and are able to work together in a constructive
    way.
        In Oregon the Department of Corrections established an
    inmate hotline so that survivors can safely contact the
    inspector general's office when they are too afraid to report
    an assault to a prison official.
        While both States are suffering severe budget deficits
    resulting in spending freezes, their standards implementation
    projects are continuing, both because in the long term
    preventing sexual abuse is cost effective and because it is the
    right thing to do.
        While the passage of PREA and the release of the standards
    represent important milestones in improving inmate safety, we
    are a long way from ending prisoner rape.
        In inmate surveys mandated by PREA, the Bureau of Justice
    Statistics found that 4.5 percent of the more than 1.3 million
    inmates held in Federal and State prisons have been sexually
    abused in the previous year alone and that nearly 25,000 jailed
    detainees have been sexually abused in the previous 6 months.
    These surveys were snapshots reaching only inmates present on a
    particular day. As the annual number of admissions to county
    jails is 17 times higher than the jail population on any day,
    the BJS data represents just the tip of the iceberg. Further
    action is needed to ensure inmate safety and to end this
    egregious form of abuse.
        The Attorney General has 1 year to codify the standards as
    part of Federal regulation. Congress should encourage him to do
    so swiftly and without watering down these crucial provisions.
    NPREK relied on years of deliberation, including public
    hearings, expert working groups, and a public comment period.
    Corrections officials, practitioners, advocates, prisoner rape
    survivors and other stakeholders participated in each process.
    Continued scrutiny will only serve to silence the input of
    those most in need of protection. Indeed, delaying ratification
    will simply allow dangerous conditions to persist in our
    prisons and jails.
        Congress should also encourage the Attorney General to
    establish a mechanism for effective oversight of standards
    compliance, which goes beyond the certification of corrections
    administrators and the auditors with whom they contract.
    Without external monitoring, officials who participate or
    acquiesce in sexual violence are able to act with impunity.
    Additionally, even the most outstanding officials often cannot
    identify problems within their own systems, problems that an
    outsider can recognize, and may not be aware of best practices
    from other jurisdictions. Implementation of the standards must
    include strong external oversight that takes into account
    information from current and former inmates, advocates, and
    other stakeholders along with the assessment of corrections
    insiders.
        Congress must also ensure that other PREA-related
    activities are able to continue and have sufficient funding to
    meet their mandates. In particular, the work of the Bureau of
    Justice Statistics must continue in order to identify trends,
    such as characteristics of inmates targeted for abuse, likely
    perpetrators in dangerous locations within corrections
    facilities.
        State grants must also be restored. To improve safety in
    their facilities corrections officials in many jurisdictions
    seek to develop innovative programs and/or improve their access
    to technology, but they lack the resources to do so. Decreasing
    PREA appropriations have resulted in no grants being awarded
    under the Protecting Inmates and Safeguarding Communities
    Program since fiscal year 2006. Congress should restore its
    commitment to supporting State efforts to combat prisoner rape.
        Congress should also encourage the Department of Justice to
    revise the funding guidelines for the Victims of Crimes Act so
    that rape crisis counselors that rely on victim assistance
    grants are able to serve incarcerated victims.
        In addition to prohibiting the use of more than $300
    million in victim assistance funds each year, the funding
    restriction has caused many rape crisis centers and other
    community-based service providers erroneously to believe that
    they cannot use support from other sources to serve
    incarcerated individuals without jeopardizing their government
    grants. As a result this restriction has had a devastating
    chilling effect on VOCA-funded agencies and their ability to
    serve all crime victims, including victims of rape and
    detention.
        Finally, legislative action is needed to ensure that other
    laws do not thwart PREA's mission. In particular, the Prison
    Litigation Reform Act should be amended to address the
    insurmountable barriers confronted by prisoner rape survivors
    seeking legal redress for the serious abuses they have endured.
    Every day JDI hears from prisoner rape survivors from across
    the country, many whom could not meet the exhaustion
    requirement under PLRA. Short deadlines for filing a grievance,
    coupled with harsh and detailed procedural requirements of many
    facilities grievance systems can be simply impossible to
    navigate while suffering acute trauma from a sexual assault.
        Shockingly, some courts have found that sexual assault on
    its own does not amount to a physical harm, another requirement
    set forth in the PLRA, thereby precluding a survivor from
    receiving any monetary damages. Examples of claims that the
    courts have dismissed before trial and without any findings of
    fact include forced touching, abusive strip searches of women
    by male officers and being, quote, sexually battered by sodomy.
        The PLRA applies to all inmates, including incarcerated
    youth who may have limited legal access to resources and who
    often lack the sophistication to understand detailed procedural
    requirements. Whether housed in adult facilities or juvenile
    facilities, incarcerated youth are more vulnerable to abuse and
    less prone to file lawsuits. While not the primary focus of the
    law, young inmates have been drastically affected by the PLRA.
        The NPREK standards seek to minimize the impacts of the
    PLRA's exhaustion requirement, but they propose only a
    relatively small fix to one of various barriers imposed by the
    law. Congress should provide more comprehensive reform to
    further ease the exhaustion requirement, remove the physical
    injury provision, and exempt juveniles from the law's
    application.
        With the support of a broad-based coalition of faith-based
    groups, human rights organizations, researchers and other
    advocates, PREA passed with unanimous support, confirming that
    combating prison rape is not a partisan issue. Sexual abuse and
    detention is an affront to basic human dignity that cannot and
    should not be tolerated. Now Congress needs to continue its
    effort to ensure that rape and other forms of sexual abuse are
    never part of the penalty.
        Thank you.
        [The prepared statement of Ms. Rothstein follows:]
                    Prepared Statement of Melissa Rothstein

                                   __________
        Mr. Scott. Thank you.
        Judge Walton.

      TESTIMONY OF THE HONORABLE REGGIE B. WALTON, JUDGE, UNITED
       STATES DISTRICT COURT OF THE DISTRICT OF COLUMBIA, CHAIR,
            NATIONAL PRISON RAPE ELIMINATION ACT COMMISSION

        Judge Walton. Thank you very much, Chairman Scott and Judge
    Gohmert. Thank you very much for giving me the opportunity on
    behalf of the Prison Rape Elimination Commission to appear
    before you today. I would ask that my written testimony be made
    part of the record, and I will summarize.
        When I received a call from the White House on behalf of
    the President 5 years ago, I had no idea what I would be
    getting myself into. We were supposed to exist for only 2
    years, but because of the scope of the mandate it took 5 years
    to complete our work. But I think we have vigorously gone about
    the process of producing a report and proposed standards that
    are common sense and that if implemented will in fact make a
    difference.
        The Commission was comprised of a broad group of
    individuals who had varying perspectives on how these issues
    should be addressed. However, we were able to reach consensus
    regarding each of the recommendations we have made, and we
    believe we got it right. We reached out to a broad segment of
    interested parties to get their views, including members of the
    prison industry, experts in the field, victims who had been
    victimized as a result of sexual assault, and we also opened
    up, even though we weren't required by the statute, two 60-day
    periods of public comment after we issued our initial proposed
    standards and as a result of that made significant amendments
    to what ultimately was our final product.
        As you know, this is a significant problem. I don't think
    anybody can accuse me of being light on crime. I have always
    taken a hard line position regarding crime and punishment. I
    believe when people commit crimes there should be consequences.
    However, in the 25-plus years I have been a judge I have never
    when I indicated a sentence stated that a part of the sentence
    was sexual abuse once somebody was incarcerated. I think it is
    appalling that this still occurs in our society, and we believe
    that with the adoption of our standards it will go a long way
    in eliminating this problem.
        What do our standards say? We say, as was just indicated by
    Ms. Rothstein, that sexual assault is not inevitable. We know
    there are institutions in this country where sexual assault
    does not occur and it starts with strong leadership. Leadership
    has to come from the top, not only of the facilities that
    operate prisons, but also from the political establishment that
    puts out an attitude and a mandate of zero tolerance to this
    type of behavior. We also know that strong leadership will in
    fact instill in those who are in the rank and file the
    appreciation that prison rape and prison sexual assault will
    not be tolerated and there are consequences for it.
        We do believe that training and education, both of inmates
    and staff, goes a long way in sending the message this is
    inappropriate. We know that we have to improve the means by
    which individuals are able to report sexual abuse because now
    many individuals are afraid to do so because of recrimination.
    We also believe that individuals who are sexually abused should
    be treated and receive the same quality of treatment that
    individuals on the outside receive when they are subject to
    sexual abuse. And we also believe that strong oversight is
    important to ensure that the recommendations of the Commission
    that ultimately hopefully will be adopted by the Attorney
    General and at the State and local level are in fact carried
    out.
        In reference to the Prison Reform Elimination Act, as a
    judge on the Federal bench I am appreciative of the fact that
    there are many frivolous lawsuits that are filed, and therefore
    we do not recommend wholesale abolishment of the act, but we do
    believe as it relates to sexual abuse that there should be
    modifications of the act to ensure that individuals do have
    access to the Federal court system.
        We believe that, for example, when you have time limits in
    place that require individuals within days, weeks or months to
    report sexual abuse that you inhibit the ability of individuals
    to have a means of bringing cases before the court because we
    know that the psychological trauma that individuals experience
    as a result of this behavior will in fact sometimes manifest
    itself for a long period of time, and people are not willing or
    even able to come forward to express their concerns.
        We also believe that the physical injury requirement is a
    problem that needs to be addressed and that the exhaustion
    requirement is a problem that needs to be addressed, and we
    think with modifications, reasonable modifications of those
    provisions of the act, it will in fact provide a means by which
    individuals will have access to the court.
        The journey that I have taken with the Commission over 5
    years was a difficult one, but nonetheless we believe that we
    have produced recommendations that if adopted will in fact make
    a difference, and with the assistance of Congress and the
    executive branch we believe that we cannot maybe eliminate the
    problem but go a long way in mitigating the incidents of sexual
    abuse of our prisons and jails and other detention facilities.
        Thank you.
        [The prepared statement of Judge Walton follows:]
                  Prepared Statement of Judge Reggie B. Walton
        Good afternoon. Chairman Scott, thank you for inviting me here
    today, and for the opportunity to speak with the members of the
    Subcommittee on Crime, Terrorism and Homeland Security.
        I am United States District Judge Reggie Walton. For the past five
    years, I've had the honor and privilege of serving as the Chairman of
    the National Prison Rape Elimination Commission.
        In 2003, the President signed the Prison Rape Elimination Act, or
    PREA, into law. The legislation created the Commission and charged us
    with conducting the first national study of government policies and
    practices related to sexual abuse of individuals detained in our
    nation's prisons, jails and other forms of detention facilities. Our
    mandate also required us to develop and propose zero-tolerance national
    standards for the detection, prevention, reduction, and punishment of
    prison rape and other forms of sexual abuse.
        On June 23, 2009, the Commission publicly released its report and
    standards. Federal, state and local corrections officials across the
    country, in all types of facilities have now been provided the first
    comprehensive blueprint for eliminating sexual abuse in confinement or
    detention.
        Congress, speaking through the Prison Rape Elimination Act, found
    that the ``victims of prison rape suffer severe physical and
    psychological effects that hinder their ability to integrate into the
    community and maintain stable employment upon their release from
    prison.'' Those consequences are difficult to quantify, but our
    research has confirmed that the aftershocks of prison rape are felt far
    beyond the prison walls in the cost of services to help former inmates
    address the trauma of prison rape. It is, quite literally, a cost we
    all bear.
        More than 7.3 million Americans are confined in the U.S. or
    supervised in the community, at a cost of more than $68 billion every
    year. Given the Nation's enormous investment, we should ensure that
    these environments are as safe as they can be for those who live and
    work in these facilities. And we must recognize that sexual abuse
    dramatically undermines those goals.
        This reality has been repeatedly confirmed during the five years
    that the Commission has investigated prison sexual abuse. We have been
    motivated and united not just by our charge from Congress, but also by
    the deeply moving accounts of sexual abuse that we heard from victims
    and their families.
        These accounts were augmented by a path-breaking survey in 2007 by
    the Bureau of Justice Statistics (``BJS''), under the auspices of PREA.
    The BJS estimated that in the twelve months preceding its survey,
    60,500 state and federal prisoners had been sexually abused. The
    results of a pilot study on juvenile detention by BJS were even more
    disturbing, finding far higher rates of abuse.
        These stunning statistical results likely understate reality
    because they rely on prisoner self-reporting. Among the Commission's
    findings is the fact that in many facilities, inmates cannot easily and
    safely report prisoner rape. In still more cases, prisoners refuse to
    do so, because they are afraid of retaliation from staff or other
    inmates, or because they fear they will not be believed.
        Informed by the BJS survey outcome and material from other federal
    agencies, the Commission consulted with hundreds of state and local
    officials, correctional staff, survivors of sexual abuse, medical
    personnel and academic and legal experts in a wide range of relevant
    fields. We also conducted an exhaustive review of the available
    professional and academic literature on prison sexual abuse.
        We identified nine major findings on the causes and consequences of
    a problem that has been widely acknowledged, but poorly understood.
    They are now presented and thoroughly discussed in the NPREC report. We
    also developed a four volume set of proposed standards to address
    prison rape and sexual abuse in correctional settings, including, adult
    prisons and jails, lockups, community corrections, and juvenile
    facilities.
        Among our key findings is that prison rape is not inevitable. The
    existing data show that when corrections officials demonstrate
    leadership, they can create a culture within facilities that promotes
    safety, instead of tolerating abuse.
        Developing that leadership is challenging. But the available data
    and our own research led the Commission to conclude that trained and
    committed corrections officials are the critical factor in keeping
    facilities safe.
        We also concluded that few correctional facilities are subject to
    the kind of rigorous internal monitoring and external oversight that
    would reveal why abuse occurs and how to prevent it. Dramatic
    reductions in sexual abuse depend on both.
        It is clear that the most effective prevention efforts are targeted
    interventions that reflect where, when, and under what conditions
    sexual abuse occurs. Sexual abuse incident reviews, as the Commission's
    standards would require, produce the kind of information administrators
    need to deploy staff wisely, safely manage high-risk areas, and develop
    more effective policies and procedures.
        Correctional agencies must also collect uniform data on these
    incidents. However, even the most rigorous internal monitoring is no
    substitute for opening correctional facilities to outside review. The
    Commission therefore requires detailed, robust audits of compliance
    with its standards by independent auditors at least every three years.
        In another of our major findings, we concluded that many victims
    cannot safely and easily report sexual abuse, and those who speak out
    often do so to no avail.
        Reporting procedures need to be significantly improved to build
    confidence and prevent retaliation, without relying on isolation of the
    victims. Investigations of reported abuse must be thorough and
    competent, and perpetrators must be held accountable through
    administrative sanctions and criminal prosecutions.
        Those are just a few of the significant conclusions our Commission
    reached. In addition to our key findings, the Commission also submitted
    proposed standards to the Department of Justice and other state and
    federal officials to help eliminate prison rape. The standards were
    developed after consultation with correctional officials, survivors,
    and sexual abuse experts and a comment period during which we received
    feedback from more than 225 organizations and individuals.
        Our proposed standards address hiring, training, staff and inmate
    education, monitoring, investigation, and oversight in a wide range of
    correctional facilities, including prisons, jails, lock-ups, juvenile
    detention centers, and community corrections. As required by PREA,
    Attorney General Holder now has one year to issue final rules based on
    these standards.
        Congress can further facilitate effective responses to sexual abuse
    in confinement and detention. Beyond providing funding to continue the
    robust initiatives of the Department of Justice under PREA, Congress
    should amend the Prison Litigation Reform Act, the Violence Against
    Women Act, and revise language in the 1996 Guidelines on Victim
    Assistance that direct the use of funds from the Victims of Crime Act.
        Based on testimony from legal experts, survivors and their
    families, we recommend that Congress amend the administrative
    exhaustion provision and physical injury requirement in the Prison
    Litigation Reform Act. These can create unreasonable barriers for
    victims of sexual abuse to gain access to our federal courts. The
    Commission further recommends that Congress amend the Violence Against
    Women Act (VAWA) Reauthorization of 2005 to include incarcerated
    victims of sexual abuse as a class served under VAWA notwithstanding
    the nature of their criminal convictions. The Commission heard
    testimony from practitioners that limitations placed on VAWA and
    Victims of Crime Act (VOCA) funding restrict their ability to provide
    services to certain categories of inmates, even when they have been the
    victims of sexual abuse.
        The members of the Commission have been shocked and saddened by the
    personal accounts we have heard. But amid darkness we have discovered
    inspiration and hope--Inspiration in the resilience and determination
    demonstrated by survivors who are willing to expose and oppose sexual
    abuse in correctional facilities--Hope because of the many correctional
    staff and supervisors who currently confront and work to resolve this
    persistent problem. PREA has raised the consciousness of many
    corrections officials--and the elected officials to whom they report--
    about the importance and feasibility of responding to rape and other
    forms of sexual abuse. But there is still much to be done. The
    Commission trusts that our report and national standards will convince
    everyone of the need to act now.
        As the Commission's assignment concludes, another phase of the work
    begins. The standards the Attorney General promulgates will be
    immediately applicable to the federal Bureau of Prisons. The action
    then moves to the states. After the promulgation of standards by the
    Attorney General, state systems will have one year to comply, or risk
    losing five percent of any federal funding they receive for prison
    purposes.
        Along with my distinguished and committed colleagues on the
    Commission, I am proud to offer our report and standards as the next
    step toward creating correctional and detention settings that are safe
    and free of the danger and shame of sexual abuse.
        The Commission members remain ready to assist the Attorney General,
    Congress, our Nation's many corrections and detention leaders and
    staff, and others as they move forward on this matter of legal and
    moral consequence to incarcerated individuals, those who are
    responsible for their safety, and the American public.
        Thank you again for inviting me to be here today on behalf of the
    Commission, and for the opportunity to speak to our proposed standards
    and our key findings and recommendations.
                                   __________

        Mr. Scott. Ms. Kenyon.

    TESTIMONY OF SEAN E. KENYON, ATTORNEY, HOEPPNER WAGNER & EVANS
                         LLP, MERRILLVILLE, IN

        Ms. Kenyon. Good afternoon, Chairman Scott, Ranking Member
    Gohmert. My name is Sean Kenyon. I practice law in northwest
    Indiana and have been admitted to practice since 1991. Since
    mid-2003 I have been representing a young man who at the age of
    15 was raped while held in the South Bend juvenile facility. My
    testimony today will focus on his particular case and what I
    have learned through the investigation of matters involving
    him. In the interest of privacy I will refer to him as John.
        I have interviewed approximately a dozen other juveniles or
    their parents who either have been confined in the South Bend
    facility or another facility in the State of Indiana. I have
    also read many reports and assessments of the South Bend
    juvenile facility, as well as other facilities in the State of
    Indiana.
        When he entered the facility John came with a history of
    mental illness. He had been diagnosed with depression and was
    taking medications for depression at the time. Like most of the
    students who enter that system, his medications were soon
    completely discontinued by the staff.
        I have constructed a fairly comprehensive timeline
    detailing the events of his confinement based on the interviews
    that I have done, his self-reporting, an examination of the
    records maintained by the State. His first 3 weeks in the South
    Bend facility seemed to have been largely uneventful.
    Thereafter in mid-October 2002, during a visit from his mother,
    he tried to pass a note to her. The guards would not allow that
    to occur. That incident seemed to be the beginning of what
    became a downward spiral of events. About 4 days after his
    mother's visit the medical records note that he awoke in the
    medical unit at the facility, but it wasn't clear at that time
    whether he had suffered a seizure or been involved in some sort
    of fight or altercation. He had bruises near his left ear and
    left eye. And about 1 week later he was seen again with a lump
    or swelling on his lower lip. Sometime in late October John was
    raped. A much larger boy than John raped him and at least one
    other boy served as a lookout and may have helped to hold John
    down. John struggled unsuccessfully. He doesn't have a really
    good memory of the event and he has never provided a great
    amount of detail. While at the facility he did not report being
    raped but did state to the medical staff that he had been
    messed with and that he had recently been jumped by offenders
    in the unit.
        It was after his release about 6 months later that his
    mother began to suspect that he may have been raped. She
    questioned him further at that time, sought medical examination
    and therapy for him.
        Without question the records maintained by the Department
    of Correction in Indiana documenting his incarceration from
    early November 2002 reflect a very different young man than the
    individual who entered the facility. His records note that by
    that time he was suicidal. The physician ordered him to be
    moved to a facility where he could be assessed by a
    psychiatrist because there was no staff psychiatrist in that
    facility. The physician reported his assessment and recommended
    a plan for transfer to the superintendent, and the
    superintendent advised that John would be transferred the next
    day as that particular day was a holiday for the Department of
    Correction.
        In the meantime, because John had expressed suicidal
    ideations and had actually worked to twist a bed sheet into a
    rope to be used to attempt or to commit suicide, the physician
    ordered John placed on suicide watch, directing that he be
    checked at 5-minute intervals. No transfer as recommended by
    the physician was arranged by the Administration. Three days
    later two more physicians recommended that he be transferred to
    a facility with 24-hour nursing care for observation,
    psychiatric intervention, and for his safety. Again, however,
    that transfer did not take place.
        Instead he spent most of November, December 2002, and part
    of January 2003 in segregation at the South Bend juvenile
    facility either for medical suicide watch or for disciplinary
    segregation. His survival strategy became clear. Each time that
    he was removed from a segregation area back to a general
    dormitory facility he would act out to be put back in
    segregation, which would allow him to be free from access by
    the other students. In isolation he was able to keep himself
    safe from what I deemed to be a survival of the meanest
    environment. He feared a number of things, including
    retribution. And in fact there were a number of instances when
    he suffered some kind of beatings from other students. He was
    only 15 at the time. He was very small in size. And he and a
    number of other adolescents who I have interviewed have
    repeatedly advised of harassment, abuse, and sexual assaults
    carried out by older and larger youth on the younger ones. In
    addition, many of the students reported that the guards at the
    facility sometimes encouraged and enabled fighting and even bet
    on who would win the fights. So it wasn't always easy for the
    students at the facility to go to the guards and advise of
    problems that they were experiencing.
        In addition, the design of the building and lack of
    staffing at the facility added to the fear of retribution.
    Assessments that have been done by the United States Department
    of Justice and the State of Indiana itself have indicated that
    it was understaffed and insufficient cameras in the
    dormitories. As a result there were hidden spaces where
    students had the opportunity to harm others.
        In John's case his fear of retribution proved justified.
    When released in January 2003 from segregation he was beaten
    and needed sutures to stitch up the injuries to his head.
    Thereafter his mother worked for 3 months to secure his release
    and was eventually able to do so only by prevailing on the
    Governor of the State.
        [The prepared statement of Ms. Kenyon follows:]
                      Prepared Statement of Sean E. Kenyon

                                   __________

    TESTIMONY OF JON OZMINT, DIRECTOR, SOUTH CAROLINA DEPARTMENT OF
                       CORRECTIONS, COLUMBIA, SC

        Mr. Ozmint. Thank you all for the opportunity to testify
    here today, Mr. Scott and Mr. Gohmert.
        First of all, with regard to the PREA rape elimination--to
    the PREA process and the Commission I would extend my thanks to
    Judge Walton. That Commission has done yeoman's work. I know
    how difficult. I have been a director for the entire time that
    they have been in existence, and we have had the opportunity to
    provide input. And when I look at the makeup of the Commission
    and Judge Walton and think of how difficult his task has been,
    I do want to extend the thanks on my behalf, but also on behalf
    of the Association of State Correctional Administrators. He has
    been more than willing to listen to our concerns throughout the
    process.
        Along those lines I would add, and this is in my written
    testimony, when I was a prosecutor it was always common for
    lawmakers at the State and Federal level to want to hear from
    us before they crafted policy. One of the strange things, and I
    came to corrections from the outside, I did not grow up working
    in the prison system, I was a prosecutor, deputy attorney
    general, that was my path to this job. I have been surprised at
    how little input correctional administrators often have into
    the public policymaking process. And as an outsider coming in I
    can tell you all this, that there is no more--there is no group
    of professionals that I have ever worked with who have a
    broader, more expansive view of and stake in what they do to
    safe and humane operation of prisons than the prison directors
    across this country at the Federal level and in the Territories
    of the United States. And for that reason I thank you for the
    opportunity to be here.
        With regard to the standards put forth by the Commission we
    really--most of those standards--for example, in my State, we
    are doing that. I mean we are mandatory reporting. We have the
    1-800 number. We have had that in place for years. We have
    State laws that require us to investigate prison rape, any
    allegation of sexual assault. Do I need to stop now?
        Mr. Scott. No.
        Mr. Ozmint. Any allegation of sexual assault, mandatory
    investigations. So with one exception we don't really have many
    issues with the standards that are put forth. And we are going
    to work with the Attorney General's office through the Director
    of the Bureau of Prisons in making our concerns, our limited
    concerns about those standards known with this one caveat.
        These standards, many of these standards will cost money.
    And I come from a State where I am expected to run a prison
    system on $13,100 per inmate per year. That is lower than
    anybody in the country. And so if you decide that you are going
    to impose some of these standards on the States, then you need
    to realize some funding needs to come with that because my
    legislature is not going to provide that funding. That is just
    the reality of operating prisons in South Carolina.
        I have been asked to specifically address the suggested or
    the proposed rollbacks to the Prison Litigation Reform Act. And
    my comments in that regard are I find myself in the unique
    position as a State official of defending the actions of the
    Federal Congress. I think, Mr. Scott, that you all got the
    Prison Litigation Reform Act right. I can't think in my
    lifetime, my short lifetime of practicing law and watching
    Congress and watching public policy, of an example where a more
    balanced, bipartisan, you had President Clinton in the White
    House, you had a push because, sure, the Prison Litigation
    Reform Act was aimed at frivolous lawsuits, that was part of
    it, and, sure, you had court orders all over the country, and
    quite frankly, Mr. Scott, it was the elected officials of this
    country who felt like they had lost control of their prisons,
    the people who get votes for a living. That is really what
    resulted in the Prison Litigation Reform Act.
        But when you look at the language of that act and the
    language that this report proposes to roll back, I think the
    language is genius, and I am going to read it to you. No action
    shall be brought--and this was with respect to exhaustion
    only--no action shall be brought until such administrative
    remedies are--as are available have been exhausted. And that is
    where I think we are dealing with a myth. And here is how I
    define the myth. The myth is the Federal District Court judge
    who is disinterested in whether or not those remedies were
    really available. And what my written testimony does is to try
    to make that point, that in the implementation, the
    interpretation and implementation of PLRA, Mr. Scott, it has
    done exactly what this Congress wanted it to do. It has not
    gone too far one way or the other. And the judges of this
    country, the Federal judiciary across this country from the
    Supreme Court down to the Federal District Court in the
    Southern District of Alabama, have all interpreted that act in
    a way that preserves the rights of inmates to have access to
    those administrative remedies.
        [The prepared statement of Mr. Ozmint follows:]
                        Prepared Statement of Jon Ozmint

                                   __________
        Mr. Scott. Thank you, Mr. Ozmint.
        Ms. Freeman.

    TESTIMONY OF LISA FREEMAN,, PRISONER RIGHTS PROJECT, LEGAL AID
                   SOCIETY OF NEW YORK, NEW YORK, NY

        Ms. Freeman. Good afternoon, Chairman Scott. Thank you for
    the opportunity to share our experience and knowledge about
    jail and prison matters with this Committee. Thank you, Judge
    Gohmert and Members of the Committee.
        I am an attorney at the Prisoners Rights Project at the
    Legal Aid Society of New York, and what brings me here today is
    my experience as counsel, along with Dori Lewis and the pro
    bono assistance of Debevoise & Plimpton, in the Federal lawsuit
    Amador v. Andrews.
        Amador is a case challenging the sexual abuse of women
    prisoners by male staff in the New York State prisons and the
    administrative policies that have allowed this kind of abuse to
    continue without remedy for years. We enthusiastically support
    the National Prison Rape Elimination Commission standards to
    ensure that prisons have effective systems for the prevention,
    detection, and response to assault. In particular, however, we
    urge Congress to take on the Commission's call for immediate
    action to reform the Prison Litigation Reform Act, or the PLRA.
        In direct contradiction to what Mr. Ozmint just testified
    to, we consider the injustice that we have faced in Amador to
    be the direct result of this ill-conceived act. We brought
    Amador because when women in the custody of the New York State
    Department of Correctional Services complain that they have
    been sexually assaulted by staff the Department takes no
    action--you will let me know if I need to stop too, right--the
    Department takes no action against the officer unless the woman
    has physical proof.
        Plaintiffs have reported assault by officers about whom the
    Department had received repeated complaints by other women for
    years. None of these women's complaints were credited because
    they lacked physical proof. As a result the Department
    continues to allow these officers to guard women prisoners even
    alone on the housing unit at night.
        One of our plaintiffs even reported she was raped by an
    officer and that he had shaved his pubic area, a fact that was
    subsequently confirmed. Nonetheless, this officer continues to
    guard women prisoners today and has reportedly been promoted.
    And despite this outrageous situation in New York our claims
    have been unable to proceed because of the exhaustion
    requirement of the PLRA.
        We have spent the last 6 years litigating whether the 16
    named plaintiffs, each of whom alleges sexual assault by staff,
    sufficiently exhausted their available administrative remedies
    to allow their claims for systemwide relief and for money
    damages to go forward.
        Why has this process been so difficult? Because the PLRA
    has been used as a weapon to prevent meritorious claims of
    prisoners from ever being heard in court. In New York the
    Department repeatedly told all women prisoners that if they
    were sexually assaulted they could complain to anyone they felt
    comfortable speaking with and their complaint would be
    investigated by the Sex Crimes Unit of the Inspector General's
    office.
        So each of our plaintiffs did just that. They complained to
    the Sex Crimes Unit and their complaint was investigated. No
    one told them they needed to file a grievance. Nonetheless, the
    Department came into court and claimed that despite the
    explicit information they had given in writing to the
    plaintiffs these women had failed to exhaust because they
    hadn't filed a grievance. The District Court agreed and
    dismissed all of these women's claims.
        Three plaintiffs had in fact filed grievances and appealed
    them because they had happened to speak to lawyers who advised
    them to do so even though any reasonable person would have
    believed it was unnecessary. By the time the District Court
    decided the exhaustion issue more than 4 years after the case
    was brought only one of these plaintiffs had remained in
    custody. Incredibly, the District Court dismissed her claim for
    systemwide relief because it found her grievance didn't
    sufficiently identify the prison administrators or specific
    policies that enabled her rape. In effect, the court demanded
    that her grievance set forth complex theories of supervisory
    liability, demanding that it tell prison administrators not
    just that she had been raped but explain to them how it was
    that their policies were not working and who in the
    departmental hierarchy was responsible.
        These are the sort of questions that lawyers spend months
    or longer trying to determine. Prisoners who are poorly
    educated and are almost always proceeding without lawyers at
    this stage cannot reasonably be expected to provide this kind
    of information. They only know the Department has a purported
    zero tolerance policy for sexual abuse. They aren't told prison
    policies for training or supervising staff, let alone policies
    for internal departmental investigations.
        Finally, victims of assault, of sexual assault, as has been
    mentioned, are often additionally trying to cope with the
    trauma of the assault as well as the very real fear of
    retaliation for reporting the incident at all. On appeal the
    Attorney General went so far as to claim that even a
    plaintiff's grievance that requested that the Department train,
    assign, and supervise its staff so that the inmate would not
    again be subjected to sexual assault, a grievance that was
    dictated in large part by an attorney, was insufficient to
    allow her systemwide claims to go forward because it didn't say
    how these policies should be changed.
        These impossible standards for exhaustion effectively
    immunized prison administrators from meritorious lawsuits. Even
    if the District Court's decision is reversed on appeal, as we
    hope it will be, hundreds of women have been subjected to
    departmental policies over the last 6 years that we believe are
    unconstitutional and as a result have been exposed to the
    unnecessary risk of sexual assault, and thousands of dollars
    have been spent while the issue of exhaustion has been
    litigated.
        And believe it or not, our plaintiffs are the lucky ones.
    Unlike the vast majority of prisoners, they have legal counsel
    and legal counsel with significant financial resources. But
    even these plaintiffs have been unable to proceed so far with
    their claims because of the PLRA.
        The law cannot be allowed to exempt prison administrators
    from a legal challenge if they simply create opaque mechanisms
    and contest exhaustion in every case. The law cannot be allowed
    to prevent American citizens from access to the courts to
    protect their most basic human rights.
        We endorse the Commission's call for reform of the
    exhaustion requirement for victims of sexual abuse, and we
    further call for repeal of the PLRA's exhaustion requirement
    for all prisoners. The injustice that has been done in Amador
    could happen to any prisoners and must not be allowed to recur.
        Thank you.
        [The prepared statement of Ms. Freeman follows:]
               Prepared Statement of Lisa Freeman and Dori Lewis

                                   __________

        Mr. Scott. Thank you. Judge, do you have questions?
        Mr. Gohmert. I won't use my full time, but I would like to
    ask Judge Walton, you had mentioned that we know that there are
    facilities where prison rape does not occur. You had mentioned
    that it usually has to start with the top down. So there are
    facilities where rape does not occur. And obviously, as you all
    know, you can't rehabilitate somebody while they are being
    sexually assaulted. They just don't work together.
        How have those facilities been able to avoid sexual assault
    without having the adjustment to the PLRA?
        Judge Walton. Well, they have taken seriously the issue.
    They have zero tolerance policies in place. They have very well
    developed classification systems whereby they are able to
    identify individuals who are potential predators and those who
    are potential victims, and they make sure that those
    individuals are not commingled. They have educated their staff
    about the importance of not permitting this to occur,
    appreciating that when this occurs it does put everybody at
    risk in the prison facility, including those who are there to
    guard and protect. They have put in place systems that provide
    a means by which individuals are able to report sexual assault
    when it occurs.
        Mr. Gohmert. Because that is something we heard is a
    problem before. If you have to file your complaint with the
    same person that is committing the acts, it doesn't do you a
    whole lot of good. So they have implemented some way to make
    sure that complaints still can be filed without being filed
    with the people that are causing the problem.
        Judge Walton. Means by which they are able to make reports
    to individuals on the outside, a process internally that
    permits them to make a report where it is not going to end up
    being reported to the individual responsible for the abuse. And
    strong oversight to make sure that the policies that they have
    adopted will in fact be followed.
        Mr. Gohmert. Okay. Thank you. I appreciate that insight. I
    do have concerns when--of course under Texas tort law you
    normally have to have some type of physical injury in order to
    get monetary damages. I would be more open toward perhaps
    injunction, something like that, to prevent things from
    happening without opening the flood gates of tax dollars that
    might be better used fixing the system instead of----
        Mr. Scott. Let's let the Judge respond to that. What is the
    justification for the requirement for physical injury? I mean
    you can do a lot of damage to someone without--I mean
    waterboarding doesn't leave physical injury. I assume that
    would be a violation of rights. What is the justification for
    the physical injury requirement?
        Judge Walton. Well, I am sure Congress believes that, and
    justifiably so, and I am not one who comes here without a
    vested interest in this issue because even with the act in
    place I still receive many frivolous lawsuits being filed by
    inmates.
        Mr. Scott. Until you have had some kind of hearing, if you
    get 100 complaints, one of them is meritorious, 99 frivolous,
    the only way to deal with that is to dismiss the 99 and hear
    the--and continue to hear the one. How do you screen out--and
    the other way of doing it is just not hear anything, including
    the meritorious claims. How do you deal with the fact that you
    don't know whether something is frivolous until you have
    actually looked into it?
        Judge Walton. I mean obviously that is a difficult call
    that Congress will have to make if the statute is going to be
    amended. However, if this is perceived, and I hope and believe
    it should be, as a significant issue that must be addressed by
    this country then I think there will be maybe consequences that
    have to come with that amendment, and that may mean that we
    will have to entertain some of the suits that may be frivolous
    in order to ensure that we are not barring those suits that do
    in fact have merit. I doubt very seriously that you are going
    to have hordes of people who are going to report that they were
    sexually abused just for the sake of saying that they were
    sexually abused. It is a humiliating thing to occur.
        Mr. Scott. So that specific exception to the physical
    injury would not be, that wouldn't be a problem?
        Judge Walton. Absolutely not. I mean if somebody is--a male
    who is incarcerated is forced to perform oral sex on another
    inmate there is not going to be any physical injury. But the
    psychological injury that that will cause is probably going to
    be a lifetime event.
        Mr. Scott. Do you have other questions?
        Mr. Gohmert. Just I know that in Texas the reason, and of
    course you know, that under the idea of the king is sovereign,
    the only way you can sue the Federal Government or the State
    government normally is if they agree to be sued. And so what we
    really need to focus on is the most important thing here to
    prevent sexual abuse in the prison or is it to provide money
    damages. I would think our number one goal is to provide money
    damages, but--I mean not provide, not provide money damages but
    to just stop the abuse. And I certainly appreciate the
    Commission's finding. People should be accountable when these
    things happen, and I appreciate that finding as well Judge by
    the Commission.
        But anyway thank you, Chairman. I hope we can work
    something out. Our goal is to stop prison sexual abuse. And
    apparently it can be done. And I have dealt with thousands of
    felony defendants and you can't tell me that they are not
    above, some of them, conspiring together to figure out ways to
    get money damages if that is something available to them, and I
    would like to avoid that.
        Thank you, Chairman.
        Mr. Scott. And we also have an interest in running
    facilities that conform to the Constitution, and how to do that
    and separate the frivolous from the meritorious is a challenge
    we have to deal with.
        And so I would like to thank our witnesses for their
    testimony today. Members may have additional written questions
    which we will forward to you and ask that you answer as
    promptly and as quick as possible so that your answers can be
    made part of the record. The hearing record will remain open
    for 1 week for the submission of additional materials.
        And without objection, the Subcommittee stands adjourned.
        Mr. Gohmert. I would ask unanimous consent to insert my
    opening statement into the record.
        Mr. Scott. Without objection.
        [The prepared statement of Mr. Gohmert follows:]
    Prepared Statement of the Honorable Louie Gohmert, a Representative in
     Congress from the State of Texas, and Ranking Member, Subcommittee on
                    Crime, Terrorism, and Homeland Security

                                   __________

        Mr. Gohmert. Thank you.
        Mr. Scott. Without objection, the Subcommittee stands
    adjourned.
        [Whereupon, at 4:52 p.m., the Subcommittee was adjourned.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

      Prepared Statement of Michael W. Macleod-Ball, Interim Director and
     Jennifer Bellamy, Legislative Counsel, Washington Legislative Office,
                   the American Civil Liberties Union (ACLU)

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

            Washington Post Article entitled ``A Prison Nightmare''

     Report entitled ``National Rape Elimination Commission Report,'' June
                                      2009