Sexual assault in prisons and jails is a serious and ongoing problem. Well over a decade ago, Justice Stevens noted that at least “one million people have been sexually assaulted in the Nation’s prisons over the last 20 years.” In 2015 alone, correctional administrators reported 24,661 allegations of sexual victimization in prisons, jails and other adult correctional facilities–and this only represents allegations that were actually reported. The actual number of incidents is certainly significantly higher.
In its recent decision in JKJ v. Polk County, the Seventh Circuit affirmed a jury verdict against a Wisconsin county jail officer found to have sexually assaulted a pretrial detainee. At the same time, however, the Court threw out the jury’s finding that the county itself was liable for failing to prevent the officer’s abuse.
Judge Michael Scudder disagreed on the county’s liability. Although the jail had a written policy prohibiting sexual abuse, he observed in dissent that such a policy may not suffice as a cure where a jail receives credible reports of abuse and fails to respond meaningfully.
“What worries me about today’s decision,” Scudder wrote, “is that, as a very practical matter, municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct in violation of a bright-line policy prohibiting sexual contact with inmates.” He continued that such a “view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ.”
Last week, along with the American Civil Liberties Union and Just Detention International, we filed a friend of the court brief asking the full Seventh Circuit to rehear the case—because it is important and deserves the attention of the full Court. As we argue in the brief, correctional facilities should take affirmative steps to prevent sexual abuse, not just rely on policies that say “don’t do it.”
At the very least, prison and jails should provide for meaningful, confidential reporting of sexual abuse. In general, survivors of sexual abuse are less likely to report their abuse to the authorities than survivors of other violent crimes. Only 32% of rapes and sexual assaults in the United States were reported to the police in 2015. Underreporting is a deeper problem in a corrections environment, where reporting procedures are inadequate, responses to reports of abuse are ineffective, and fear of retaliation is the norm. These realities make it all the more important for prisons and jails to implement policies that ensure safe reporting—policies that are vigorously enforced and carefully monitored, not issued one day and forgotten the next.