Mara Keisling And Cecilia Chung Discuss How The Prison Rape Elimination Act (PREA) Affects LGBT People

Taking Rape Out of a Prison Sentence And Why it Matters To LGBT People

Since launching our Voice to Voice conversation series in January, we've tackled lesbian, gay, bisexual and transgender literature, Black History Month, bullying, Pride and more.

Today we bring you a chat between Mara Keisling, Executive Director of the National Center for Transgender Equality, and Cecilia Chung, a member of the San Francisco Department of Public Health Commission and a board member at Just Detention International.

Below Keisling and Chung discuss the Prison Rape Elimination Act, which was passed in 2003 and for which, now, after nearly a decade of study and review, the U.S. Department of Justice has recently issued final regulations to implement.

After you read the Voice to Voice conversation, be sure to check out the National Center for Transgender Equality's "Know Your Rights" resource regarding the PREA standards and how they relate to LGBT people.

Cecilia Chung: The PREA standards are definitely a watershed moment for this country. It's has taken more than ten years of hard work by Just Detention International and the community to get these adopted. I can't tell you how excited we all are at JDI.

Mara Keisling: We're really very excited at NCTE too. We had been working with JDI and others for five, six, seven years, so, we were very relieved to see them published. Over the last six or eight months, our big focus has been to try to get the administration to make sure the PREA standards covered immigration detention. We believe that everyone who is detained should be free of sexual abuse and were disappointed that these standards don’t immediately apply to immigration detention facilities.

Cecilia Chung: We share that disappointment. We’re also glad that NCTE and other LGBT organizations worked so hard with us on getting strong standards. Not everyone sees the connection as clearly as our organizations do.

Mara Keisling: NCTE believes in this work because it affects our community so directly. The National Transgender Discrimination Survey that our organization did with the National Gay and Lesbian Task Force showed that there are a lot of trans people who have experienced incarceration at some point in their lives -- much higher rates than non-trans people. A lot of that is people who faced arrest because they were trans and then a lot of people who faced arrest because being trans caused them to have economic circumstances that put them into criminalized activities that caused them to be arrested. Fifteen percent of the people in our sample who had been in prison had been sexually assaulted while in prison. That's a shocking amount and we don't believe that Americans want anybody to be sexually assaulted. That's not part of the sentence and that should never be part of the sentence.

Cecilia Chung: In addition to that I think that most of what we have learned, from the Bureau of Justice Statistics (BJS) is that LGBT people are 12 times more likely to be sexually abused in prison. According to the BJS there are 216,600 people being abused every year and most of them get sexually abused more than once during the course of the year. This means a whole lot of LGBT people getting abused a whole lot of times.

Mara Keisling: You know what was shocking for me? The BJS report, which was released the same day as the PREA standards, showed that at least half of the sexual assaults were committed by prison employees. So it wasn't majority prisoner on prisoner assault, it was just as likely guards and other people who have total control over prisoners sexually abusing the prisoners. That's just horrifying and that's something I think PREA could reduce or stop with better guidelines on how people are screened and hired, how people are reviewed, and how people are sanctioned when they do commit assaults or when they are accused of committing assaults.

Cecilia Chung: I agree. Also, I am especially excited to see the multiple ways that the standards allow people to report abuse, including anonymously. Even staff members can file reports anonymously if they witness harassment and abuse happening. Of course, as a transgender person I think that the strong PREA policies working with LGBT detainees and how they recognize their transgender prisoners and detainees as vulnerable populations are important. Policies on housing, searching, cultural competency training and privacy while showering are all very important. Those are really giant steps forward and it's really heartening to see the Department of Justice recognize all that.

Mara Keisling: You know as a person who's not worked all that much in the criminal justice system it was really challenging for me to understand the different types of facilities regulated by the standards. Most people don't understand that there's a difference between jails, lock-ups, prisons, and immigration detention sites. Another area I found interesting was that some facilities are no longer allowed to automatically segregate LGBT inmates. The Los Angeles sheriff's department just set up its lock up -- which only houses people for a short period of time -- to have an LGBT specific unit ( and that's OK. But the Santa Ana jail -- that I visited a couple of weeks ago -- which holds people for longer periods wouldn't be allowed to keep its segregated area.

Cecilia Chung: I agree that this policy has created some initial confusion. What our organizations requested -- and what the Justice Department mandates -- is that a facility has to do an individualized vulnerability assessment of all inmates. This is to make sure LGBT inmates are never kept in segregated, inferior units. All vulnerable inmates, including LGBT inmates, can -- and in most cases should -- be housed separately, but they have to have access to all programs and activities that other inmates have.

Mara Keisling: I also found the rules about administrative segregation really important. We had a trans woman visit our office a couple of months ago. She was an undocumented immigrant and she was arrested for something unrelated, I think it was a traffic stop. Even though she had already applied for asylum, she was held in a jail because she was undocumented. An immigration detention facility in Virginia held her in solitary confinement for 9 months. When her asylum hearing came up, she was found to be a credible applicant in about five minutes and released. When you talk to corrections officials, they’ll say she had to be housed this way to protect her. It’s so outrageous. She was clearly harmed by being held in a cell by herself for 23 hours a day with no access to programs or activities. The PREA standards will minimize this kind of travesty by requiring a much more thorough analysis of housing for transgender people -- including possibly housing us based on our gender identity regardless of our surgical status.

Cecilia Chung: That's a definite improvement that our organizations worked hard to win. So facilities covered by the PREA standards will have to do this analysis. One of the places we didn’t win, though, was application of these rules to immigration detention facilities. While the rules will apply immediately to other federal facilities, immigration detention facilities are excluded from coverage.

Mara Keisling: It was a tough loss. But, our organizations did secure recognition by the administration that PREA applies to all federal facilities. The President issued a memorandum ( saying that all federal agencies with confinement facilities -- including those who run immigration detention facilities -- have one year to finalize rules for these facilities which meet the requirements of PREA.

Cecilia Chung: That is a good point. The disappointing part is that the hundreds of thousands of people in immigration detention need these policies now. We have every reason to believe that sexual abuse in ICE detention is way under reported. Cases like Esmeralda Soto's happen more than we can imagine. Esmeralda, a colleague of mine from JDI, had the courage and resources to report her rape by a facility staff member. She fought every step of the way to hold him accountable for what he did. Unfortunately, not everyone can do this. That's where we really need to continue to voice our concerns and raise awareness and work with these facilities to get and implement strong standards.

Mara Keisling: I agree. In fact, implementation is where the change will happen. We have to watch everyone -- Federal Bureau of Prisons, state corrections departments, individual prisons, state prison wardens, staff at the local county jails -- to make sure they are providing the leadership needed to turn these standards into on-the-ground practices. Up the street from where I live there's a police lock-up where they just keep people on a short term basis before they move them over into a more secure facility. There's a lot of room here for these regulations to be ignored, to be misapplied, or to just blatantly be thrown out. We need people all over the country to start to look into what the prisons and jails in their area are doing.

Cecilia Chung: I think that as someone who really believes this is one of the final frontiers of human rights and public health, we have to continue to pay close attention. We are only going to get real change if people in communities around the country hold their local and state facilities accountable for living up to PREA. This is an issue on which people across the political spectrum can agree.

Mara Keisling: That was one of the more interesting parts of PREA. You have to give credit to those who deserve it there. It was passed by a Republican House of Representatives, a Republican Senate, and signed by a Republican president. You have to give credit where it is due; this is definitely a bipartisan issue. This is something that should be -- and largely is -- an absolute no brainer for everybody.

You're a commissioner for the Department of Public Health in San Francisco. I know you're work on this has primarily been as a board member of Just Detention International, but I also see it as very much a public health issue.

Cecilia Chung: It is. All kinds of sexual violence has public health implications, especially in detention facilities. Most people who spend time in jail and prison come back out to the community. The trauma and other negative health consequences that result from sexual abuse in detention therefore come back to the community with them. There is a lot of research to be done in this area.

There is a UCSF researcher who has done some research around African-American inmates who have this incarcerated experience. We know that African-American men and women have a high HIV prevalence and are also over-represented in our criminal justice system. We must continue to look into what connections there are between these two injustices.

Mara Keisling: The stigma involved in sexual abuse can be really, really horrible. Just the helplessness of being sexually assaulted, just feeling victimized can have really dramatic mental health implications on people.

Cecilia Chung: Absolutely. And that affects a person’s ability to re-integrate with society after release. This trauma can significantly impact a survivor’s ability to hold on to housing or a job, to relate to family and friends, and to meaningfully contribute to society. I’ve seen it. As a transgender woman, as an immigrant, as a person of color I can tell you that the prison system primarily affects my community the most. Not just me, it affects my friends and my family because those are the people that I interact with.

Mara Keisling: As somebody who works in a transgender organization, one of the most disheartening things about working in this policy area is that we occasionally hear from transgender people who are upset that we're working on prison issues or immigration issues. That really hurts. Morally, I really believe that we have an obligation to protect the most vulnerable people. If we're going to say that we as a society are going to incarcerate people, for whatever reason, we have a moral duty to protect them while they're in our custody.

At the same time, at NCTE we work on these issues because they affect our population. And, really, even if we aren’t immigrants ourselves, many of us come from immigrant families -- even if it goes back two or three generations. And, because of the discrimination our community faces, many transgender people end up working in the street economy out of necessity. It just doesn’t make sense to me to think “this isn’t our issue.”

Cecilia Chung: I really agree. Also, we, as trans people, are a very small group. We need to build alliances and coalitions with marginalized and oppressed groups in order to be heard. Doing this kind of work is an important component of that. I think that this is a better way to fight our fight because in return when we look to find supporters for our issues, such as ENDA, we might be able to count on them to support us rather than feeling like we're all alone on that.

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