[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





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                       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







                                 
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