Why the Immigration and Customs Enforcement's new standards will not end the crisis of sexual abuse in immigration detention
Sexual violence in detention is a national crisis in the U.S. The Department of Justice (DOJ) estimates that at least 216,600 men, women, and children are sexually abused in U.S. jails, prisons, and juvenile facilities each year. All available evidence points to similar rates of abuse in immigration detention facilities. To address this crisis, Congress unanimously passed -- and President George W. Bush signed -- the Prison Rape Elimination Act (PREA). Over the last year, Department of Homeland Security (DHS) Secretary Janet Napolitano has resisted application of PREA to facilities run by the DHS's Immigration and Customs Enforcement (ICE), arguing that planned changes to the agency's internal policies would be sufficient. Those policies were finally released last week, and, after careful review, it is clear that Secretary Napolitano is mistaken.
ICE's 2011 Performance-Based National Detention Standards (2011 PBNDS) cover a broad range of detention issues, including polices to prevent and respond to sexual abuse. Secretary Napolitano has testified before Congress that the 2011 PBNDS "exceed anything that would be issued under the Prison Rape Elimination Act." The Secretary is referring to the national standards mandated by PREA, soon to be finalized by the DOJ. A line-by-line analysis comparing the provisions of the 2011 PBNDS and a draft version of the national standards released by the DOJ last year reveal dangerous deficiencies in the 2011 PBNDS -- shortcomings which will leave hundreds of thousands of immigration detainees at risk for sexual abuse.
In PREA, Congress included a mandate for consistent, enforceable national standards, recognizing that confinement systems are unable to police themselves when it comes to preventing sexual abuse. Solving the crisis of prisoner rape -- and it is solvable -- requires a degree of transparency and cooperation that prisons, jails, youth detention centers, and immigration detention facilities simply cannot achieve on their own. The 2011 PBNDS is a case in point. Even though ICE had the benefit of years of research and expert testimony conducted by the bipartisan National Prison Rape Elimination Commission, the 2011 PBNDS are blatantly deficient.
First of all, the 2011 PBNDS are internal agency policies, not enforceable regulations; they were drafted without public review or comment and are not legally binding. By issuing its standards as policies, ICE has created no mechanism for anyone outside the agency to ensure compliance. Further, the policies themselves do not include a provision for qualified, facility-by-facility audits to monitor implementation -- much less the independent audits the National Prison Rape Elimination Commission recommended that each facility undergo every three years. Nothing about the 2011 PBNDS increases the transparency of immigration detention facilities or the ability of outside individuals or organizations to verify that the policies are being implemented consistently and properly.
Equally alarming, the new provisions that are included in the 2011 PBNDS fall woefully short of what is needed to end sexual abuse in detention. Here is a summary of the most troubling provisions:
Coordination: While ICE calls for the identification of a Program Coordinator at each facility, the standards do not specify where this person fits within the management structure, to whom the person reports on issues related to sexual abuse, or the person's relationship with the facility administrator. The standards also do not establish who will serve as a Sexual Abuse Prevention Administrator, a role which would oversee all efforts to end sexual abuse of detainees system-wide.
Hiring: The 2011 PBNDS do not mandate that each facility conduct a background check for hiring and promotions. Background checks are vitally important in identifying potential staff members who are likely perpetrators of sexual assault and therefore should not have unsupervised contact with detainees.
Reporting Abuse: In its new standards, ICE fails to provide detainees with a way to report abuse anonymously. While the standards do attempt to protect the confidentiality of a person reporting sexual abuse, it is unclear how effective the included "need to know" requirement would be. The agency also does not establish a mechanism for third-party reporting (including by outside organizations). Finally, the 2011 PBNDS fail to mandate that staff must be able to report incidents of abuse to the relevant facility personnel in a private manner.
Retaliation: While the 2011 PBNDS mandate that detainees and staff who report sexual abuse must not suffer retaliation, it does not provide meaningful guidance on how their safety will be guaranteed.
Investigation: ICE fails to mandate specific procedures for conducting internal investigations of sexual abuse in a way that preserves evidence. For instance, the 2011 PBNDS do not specify the facility staff member responsible for investigations, nor the agency or persons he or she should contact to carry out a forensic investigation. Additionally, the new standards do not require that a detainee who reports abuse be kept apprised of the status of an investigation.
Training: The 2011 PBNDS require general training of all staff, contractors, and volunteers on sexual abuse response. However, the standards do not mandate that more advanced training be made available to specialized staff; it is merely implied that it be will be offered. Without such training, sexual abuse investigators and medical staff are less likely to learn vital skills, such as how to preserve evidence and provide support and mental health services to survivors in a way that respects their needs.
Oversight: In its new standards, ICE does not require facility upper management to review investigations of sexual assault or to look for ways to reduce incidences of abuse. The 2011 PBNDS also do not require that management staff of larger facilities conduct unannounced rounds, a method of oversight that has proven to deter staff from sexually abusing or harassing detainees.
Consistency: While ICE identifies types of policies that facilities must have in place regarding sexual abuse, it does not require that consistent language be adopted across the system. Rather, the 2011 PBNDS require facilities to craft their own policies, which, accordingly, will vary in effectiveness.
In addition to these deficiencies, the 2011 PBNDS include highly problematic new provisions that were not in earlier drafts of the standards. Most alarming is a caveat that the sexual abuse prevention standards do not apply to facilities that hold detainees for 72 hours or less. Such a misguided limitation will place highly vulnerable detainees at extreme risk for abuse, such as gay and transgender people who tend to be disproportionately targeted for abuse very soon after entering a facility. Notably, PREA applies to police lockups, which also hold individuals for short periods of time. In fact, the DOJ drafted specific standards under PREA to protecting individuals being held in exactly the types of facilities that ICE excludes from coverage.
Additionally, the 2011 PBNDS contain a provision prohibiting all consensual sex between detainees. While this prohibition is a long-standing ICE policy, it has no place in standards addressing sexual abuse. Its inclusion here perpetuates existing stereotypes about sexual abuse in detention and serves no purpose in ending this crisis. If anything, its inclusion will make survivors of sexual abuse less likely to come forward, as failure to prove the abuse could lead to the victim being penalized for having engaged in "consensual" sexual activity.
It is important to note that the 2011 PBNDS are a marked improvement over existing ICE sexual abuse prevention policies. The degree to which these standards fall short of the type of response needed to end sexual abuse in detention, however, is further evidence that Congress was right to mandate the creation and implementation of binding national standards as part of PREA. By far the most efficient way for ICE to combat sexual abuse in its detention facilities is to recognize that, as Congress intended, the national standards mandated by PREA apply to its facilities as well.
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