The Prison Rape Elimination Act (PREA) and the importance of litigation in its enforcement: holding guards who rape accountable.

• Author: Reid, Elizabeth A.
• Position: Prison Law Writing Contest

I don't even know how to begin this story. I do my best to shove it deep down inside and keep it there, out of sight. But something needs to be said about what happened. It just has to be told as it was--bluntly and without hesitation. So take a warning: this story is graphic and despicable. Rape always is. Strangely, it's the little things that haunt me most. A whiff of cologne. The jingling of keys. The turn of a lock. In a click, I am back in that room. Locked in the room that is the subject of sweats and nightmares that shake me from my sleep. Even now, five years later.

NO. 07-2-01513-0

THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

1. INTRODUCTION

   1. The Plaintiffs in this case are women who have been, are, or will be confined by the Washington Department of Corrections (DOC). They bring this lawsuit to challenge specific acts of sexual assault by prison guards, as well as the systematic failure of DOC to take the steps necessary to prevent sexual assaults by staff in their institutions and to hold offending staff members accountable.

   2. Article I, Section 14 of the Washington State Constitution guarantees to every person incarcerated in the DOC that they will not be subject to cruel punishment....

   3. Subjecting women to an environment in which they are sexually assaulted, and in which sexual assaults are likely to occur, is cruel punishment.

   4. The Class Defendants have a special relationship with inmates in DOC which arises because when a person is arrested and imprisoned for the protection of the public, she is deprived of her liberty as well as her ability to care for herself.

   5. As a result of this special relationship, the Class Defendants have a duty to keep prisoners incarcerated in DOC facilities in health and safety. This includes the duty to take reasonable precautions to protect prisoners from sexual assaults by DOC employees and other prisoners.

   6. The Class Defendants have a duty to properly supervise correctional officers and dismiss those who have sexual contact with prisoners.

   7. As detailed in this complaint, the Class Defendants have breached their duties and, in turn, subjected Plaintiffs to cruel punishment in violation of Washington's Constitution, by incarcerating women in an environment in which sexual assaults have occurred and are likely to occur in the future.

   8. As further detailed in this Complaint, the individual correctional officers named herein have committed the intentional torts of assault, battery, and intentional infliction of emotional distress by committing sexual assaults and engaging in sexual misconduct. (1)

   Sexual assault is a popular subject for the prisons. The prison administration vigorously publicizes the Prison Rape Elimination Act (PREA). They tell us we have rights. They tell us that we don't have to be subjected to any unwanted attention from the guards or other employees. They tell us they are there to help us. It even sounds noble. It sounds as if they believe what they are saying. Unfortunately, we later realized that they were simply going through the required motions. On the surface, PREA looks terrific; it appears to be a sincere effort to prevent sexual abuse. But it's always what's under the surface that matters, isn't it? And under the cloak of PREA, things have not changed. There are still guards forcing themselves on prisoners. There are still guards making sexual remarks to prisoners. And there are still those in Administration who allow sham investigations to take place, ultimately finding in favor of their staff. The charges are always "unfounded." The victim is humiliated and then discredited. We cannot win if we come forward.

   In 2006, if an inmate made an allegation of sexual abuse against a staff member, the first thing that happened is that the inmate was moved to segregation. She would stay there as long as it took to conduct an "investigation." Oftentimes, this took many months. The victim remained in segregation as if she had done something wrong. If an inmate happened to be at work release and alleged that a staff member was inappropriate with you, the first thing that happened was that you were put in restraints, placed in a car, and returned to prison. Straight to segregation you went. There was a penalty for reporting sexual abuse under PREA; a stiff penalty. Everyone knew this. So there was a decision to make. Speak up and go to the hole for months only to be found incredible. Speak up and be returned to prison and stay in the hole until your release date. Speak up and paint a great big target right on your forehead. There was no winning when you spoke up. The only option left was to be abused and not say a word. To anyone. Even telling another inmate could backfire because they could tell and off to the hole you'd go. The only bright side to having to keep quiet? We are used to that. That's what we do. Those things that are too painful, too degrading, too awful to deal with? We kept quiet. Over and over and over again. We kept quiet. I had felt helpless in my life before prison. But I had to go to prison to understand what true powerlessness was ...

4. CLASS ACTION ALLEGATIONS

   ....

   34. There are questions of law and fact common to the class.

   35. The questions of law and fact common to all members of the Class include but are not limited to: (a) whether Class Defendants breached their duty to prevent the infliction of cruel punishment as prohibited by Article 1, Section 14 of the Washington Constitution; (b) whether Class Defendants breached their duty to keep prisoners in health and safety; (c) whether Class Defendants are liable for their employees' failure to properly investigate claims of sexual assault pursuant to the theory of respondeat superior; (d) whether Class Defendants have negligently retained correctional staff, including those who have sexually assaulted prisoners; and (e) whether the Class Defendants have negligently supervised correctional staff, including those who have sexually assaulted prisoners.

   ....

   39.... There is a continuing and substantial public interest in these matters.

5. FACTUAL ALLEGATIONS

   ....

   1. Multiple Sexual Assaults Have Occurred at DOC Facilities Where Women Are Incarcerated

      ....

      Defendant [1]

      ....

      60. In or about February 2006, Jane Doe 1 was directed to move to a new cell.

      61. When Jane Doe 1 was packing up her belongings to move cells, Defendant [1] came into her room and blocked the only entry to and exit from the room.

      62. On this occasion, Defendant [1] sexually assaulted Jane Doe 1 by fondling her breasts, kissing her, and forcing her to perform oral sex upon him.

      ....

      ...