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No One Held in US Custody Should Be At Risk for Rape or Sexual Assault

by Christy Carnegie Fujio, JD, MA on December 9, 2011

man in holding cell

Bipartisan efforts are few and far between these days, but finally, there seems to be one issue that House Democrats and Republicans can agree upon: no one held in US custody should be at risk for rape or sexual assault.

This week a bipartisan group of House members is calling on the Obama administration to ensure that the sexual assault prevention measures included in the Prison Rape Elimination Act (PREA) are applied to immigration detention centers as well as to prisons and jails. Tell your Congressman to join the call.

The PREA was unanimously passed in 2003, and after a lengthy study by the National Prison Rape Elimination Commission (NPREC), the Department of Justice (DOJ) proposed the necessary regulations to implement the law in early 2011. These regulations are scheduled to be implemented in February 2012.

Unfortunately, DOJ has so far deliberately declined to make PREA applicable to people being held in the immigration detention system, including unaccompanied immigrant children. DOJ cited procedural concerns because adults and children detained for immigration reasons are under the purview of Department of Homeland Security (DHS) and Office of Refugee Resettlement (ORR), respectively, and not the Department of Justice.

Say what? Yes, DOJ essentially abdicated responsibility for the more than 400,000 people who are detained for immigration infractions each year with an attitude that says “We can’t force our colleagues at other federal agencies to prevent rape at their facilities.”

Consequently, PREA will protect convicted criminals in jails across the US, but it won’t protect civil detainees such as undocumented immigrants being held for speeding tickets. Even in cases where convicted criminals and immigration detainees are held in the very same facility, PREA’s protections will apply only to the convicted criminals because DOJ, not DHS or ORR, has jurisdiction over those people.

Earlier this year, PHR and other human rights organizations sent a letter to President Obama asking him to ensure PREA protection for all immigration detainees. We also submitted comments (including a call to implement PREA at all immigration detention facilities) on the proposed rule to DOJ Senior Counsel Robert Hinchman and Attorney General Eric Holder.

Although DOJ has not publicly responded or indicated its willingness to reconsider its position, rumblings in DC point to DHS as the main obstacle in getting PREA implemented in the immigration detention system.

DOJ’s failure to push for PREA to cover immigration detention facilities may be attributed to its hesitance to step on the toes of fellow executive agencies. But what does DHS have against rape prevention measures? As PHR recently reported, there have been nearly 200 official complaints of sexual abuse in immigration detention facilities since 2007.

Immigration and Customs Enforcement (ICE), the DHS sub-agency in charge of immigration enforcement and detention, maintains that it has a zero-tolerance policy against sexual abuse; yet DHS has not indicated its willingness to adopt regulations under PREA. Instead it clings to its much-delayed Performance Based National Detention Standards (PBNDS), claiming that the eventual implementation of these weak and vague guidelines will cure all deficiencies in the detention system.

Against this backdrop of territorial squabbles among federal agencies, Representatives Bobby Scott (D-Va.) and Frank Wolf (R-Va) are now asking fellow members to sign a letter to DHS Secretary Janet Napolitano urging her to adopt the PREA rules for the entire immigration detention system. You can ask your Representative to sign the letter too.

It does not take an international agreement to know that sexual assault is a grave abuse of human rights. It’s time for the administration to step in and mandate implementation of PREA regulations at all facilities holding immigration detainees, regardless of which federal agency has jurisdiction.

Tell your Congressman that you oppose rape no matter where it occurs, and you expect your government to do the same.


Places: United States

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