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When the Law Is a Trap

The Prison Rape Elimination Act often revictimizes incarcerated survivors by expanding the power of the prison over them.


Prison is a space of precarity. ​​Its routines are disorienting—often purposely so. Basic regimens become nonsensical, with showers and recreation scheduled at inconvenient times. And yet, as described by Silas McMurphy, an incarcerated person in Michigan, amid this precarity there is one choice that he can grasp—one bit of control in the otherwise unpredictable world around him. Under the federal Prison Rape Elimination Act (PREA), McMurphy can report a sexual assault he experienced to prison authorities. In doing so, he triggers an investigation, an acknowledgment of his pain, a bid for safety and justice. “I can,” writes McMurphy (and using the peculiar argot of the law), “change my PREA score.”

This is how PREA is meant to function, anyway. Passed by Congress in 2003, the act aims to address sexual assault in all correctional facilities in the United States. Theoretically, under PREA any victim can file a report and elicit increased protection by staff and external oversight bodies, strengthening the likelihood of redress and justice. The act achieves this by mandating reporting to federal investigators, increasing targeted training for guards, extending surveillance in prison, and pushing for healthier leadership and accountability.

The lived reality is often rather different, though. In his essay, McMurphy goes on to express his fears about what will happen if he actually reports his sexual assault to prison authorities: “I’m afraid the staff will retaliate and move me into a room with a gang banger. I don’t want to be raped again. I’m labeled a ‘potential aggressor’ but I’m supposed to be a ‘potential victim’.” In other words, McMurphy can report under PREA, but doing so might beget further violence and abuse. McMurphy’s narrative casts PREA as an act with dual force, providing a tangible opportunity to do something, but also holding the potential to victimize him further.

McMurphy’s essay is one of more than fifty pieces in the American Prison Writing Archive (APWA) that discuss PREA. Housed at Johns Hopkins University, the digital archive has collected over 3,300 essays by incarcerated people since 2012. The archive solicits nonfiction and poetry submissions about experiences with the criminal legal system via ads placed in prison publications (and, increasingly, by word of mouth). Submissions that follow these guidelines are accepted into the archive and digitized as quickly as possible. The APWA provides rare, public-facing, collective insight into how incarcerated writers experience, understand, and choose to communicate their time in prison. It also offers incarcerated people a platform to share their writing with the world: submitters explicitly grant permission for their writing to be made public on the web and for the APWA to promote the use of their work as a resource for academics, journalists, and the public at large.

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Since access to prison remains limited for journalists and advocacy groups, the writing in the archive offers a vital window into the impact that a policy such as PREA has on the lives of incarcerated individuals. Typically, the tools used to evaluate the impact of PREA are quantitative data produced by the Bureau of Justice Statistics and advocacy groups. These data show that the act has had some successes—for example, there was a decrease between 2003 and 2020 in reported sexual assaults in youth facilities, and an increased awareness about sexual assault by facilities’ staff. But these conclusions derive from outside-in methods of information gathering, and thus lack the insights provided by essays such as McMurphy’s, which foreground the lived experience of incarcerated people themselves. By providing an inside-out account of PREA, incarcerated authors produce an understanding of the legislation’s consequences as they unfold in prison.

And the essays in the archive paint a damning picture of PREA. For incarcerated writers, the act is, at best, frustratingly ineffective. In fact, in all fifty essays that touch on PREA (as of spring 2022), I found not a single account of a successful PREA report. On the contrary, the accounts in the APWA describe escalating violence toward incarcerated people who try to receive the protections offered by PREA.

One telling example of PREA’s escalating violence is the account offered by author “A.” A., who requested anonymity and whose work is currently only available for private viewing at APWA, wrote a detailed account to the APWA of the retaliation and emotional abuse she faced after reporting under PREA. While A. was initially hopeful that her report would physically distance her from her attacker, she soon discovered that the employee in charge of all PREA cases was close friends with her assailant. As she recounts, the person who raped her was released back into the general population, and A., left vulnerable and feeling like a target was on her back, asked to be placed in protective custody. This provided an opportunity for retaliation—she was kept in solitary confinement for ninety days, a full month after she should have been released. As A.’s case demonstrates, instead of mitigating and preventing sexual, physical, and psychological violence, PREA can function as an instrument that compounds and elongates them.

PREA’s toxic effects aren’t limited to the person reporting; they can, and often do, impact anyone involved in an investigation. APWA author Rodrigo Gonzalez, Jr., for example, was asked to cooperate with an investigation into an assault perpetrated by a guard. He initially resisted because of threats of retaliation already made by the guard, but the investigator told him, “That’s your problem.” Gonzalez cooperated and the accused guard subsequently traced the testimony back to Gonzalez. The guard then began falsifying disciplinary violations, thus confining Gonzalez to a cell, which the author alleges was contaminated with a highly infectious virus. This had the effect of halting his assistance in the investigation. Eventually, Gonzalez was found guilty of threatening the guard despite ample evidence to the contrary—including two written testimonies from eyewitnesses. The verdict restricted Gonzalez’s access to the commissary and recreation. Although the investigator was aware of Gonzalez’s participation in an investigation against the guard, the report noted that the guilty verdict was based solely on the guard’s statement.

This type of far-reaching retaliation often compounds preexisting stratification and division within prisons, upholding rather than disrupting systems of violence against particularly vulnerable incarcerated people. Many APWA authors detail how the reporting structure is especially harmful toward gender-nonconforming people. Ebony Delaney, a transgender woman of color in a men’s prison, explains how PREA is often a tool used to further the dehumanization of trans people. After filing a report, trans victims are recast as manipulative perpetrators:

[S]hould the administration choose to act, in most cases the transgender [person] is viewed as a liar, slut or instigator. She is labeled, defined and more often than not, punished by being placed in confinement and deprived of the few rights and privileges she has. At the same time, the perpetrator is viewed as the victim or someone who has been coerced, manipulated or seduced. He is [lauded] as a survivor and someone who was ‘doing what he needed to do.’ In a bizarre twist, he is considered a hero for ‘shaming’ and ‘bringing down a faggot’.

In Delaney’s account, PREA grants an opportunity not for healing, but for guards and other incarcerated people to enact additional violence against trans women, affirming the status quo of masculinity within prison.

The broad reach of retaliation against reporters does not only punish those involved in investigations; it can also intimidate future victims and delay or disrupt access to reporting, such as in the case of Gregory Swaffar. After Swaffar was assaulted, he waited until he was transferred to another facility to go to authorities about his experience to avoid retaliation. All the same, his attacker still managed to find out about the report, because the gangs at Swaffar’s new facility were affiliated with gangs in his previous facility. As a result, Swaffar’s food, clothes, and toiletries were poisoned with floor wax and he faced years of physical and psychological abuse at the hands of both guards and other incarcerated people.

Despite such harrowing accounts of PREA’s shortcomings, incarcerated people do not uniformly experience PREA as a failure, or as only a failure. Tracy Lee Kendall, for example, points to an overall improvement in safety since the introduction of the act. A few other writers invoke PREA to legitimize their experiences, suggesting the presence of a law like PREA allows them to declare that what happened to them was not just tragic—it was also illegal.

Other APWA writers demonstrate that while PREA is an ineffective and often traumatizing tool if used to challenge those in power, it can be useful for reorganizing their physical proximity to other incarcerated people. The modicum of agency this affords is often used for purposes that Congress did not consider when creating the legislation. In her essay “Short,” Anna Vanderford recounts how in her facility people often use PREA to retaliate against ex-girlfriends and to avoid debt:

PREA . . . was a real weird weapon at this facility for awhile. If you called PREA, the prison had to lock up the presumed aggressor for an investigation. So all these presumed victims called PREA, because they were mad at their women, they wanted to make their lovers jealous, they owed someone for dope.

Vanderford herself recalls how she served a month in a special housing unit (solitary confinement) for a false PREA report filed against her by a roommate—the roommate had tried to make her girlfriend jealous by reporting Vanderford for trying to “brush up against her.”

In another instance, Mikel Ashford describes how a cellmate reported him in order to avoid contact with specific guards. Earlier in the day, his cellmate, who was transgender, remarked: “I have to get out of this cell. These officers know me, I really have to get out of here.” Later that day, Ashford was handcuffed and taken for investigation; his cellmate had filed a report so that she could be housed alone: “I couldn’t believe it. [My cellmate] wrote a note to the officers claiming I did something as fraudulent as this. I was upset, overall I was embarass[ed].” PREA provided Ashford’s cellmate a tool to navigate housing arrangements and personal safety. This was a rare opportunity for her to assert her desires in prison.

As demonstrated in both Ashford’s and Vanderford’s testimonies, such use of PREA is zero sum: it usually means adverse effects for someone and an opportunity to exercise a limited form of agency for another. Nonetheless, for people who have essentially no control over their own lives, it can present a rare opportunity to exercise agency. If the essays are any indication, these instances of dubious “positive” uses of PREA are most likely dwarfed by cases of assault victims finding themselves on the receiving end of the law’s retributive apparatus.

The abuse of PREA detailed in the APWA is an example of the very dynamics that create systemic sexual violence in prison to begin with. The statute was conceived in a prison system where courts grant (and uphold) vast discretionary power to prison administration and guards in the name of maintaining order and discipline. The Supreme Court has gone so far as to begin interpreting violations of the Eighth Amendment not through definitions of what “excessive force” is, but through whether that force can be justified and deemed necessary by the defendants at the time. This vast access to, and reliance on, discretionary power enables those with positions of authority inside prisons to essentially regulate themselves.

In a domain where guards have near-absolute control, sexual assault becomes a means of maintaining and enacting this power. In women’s prisons, guards are the main perpetrators of rape. In men’s prisons guards encourage the rape of feminine men and trans women, maintaining norms of masculinity and violence that divide incarcerated people and keep guards at the top of prison hierarchy. Thus, any law that seeks to meaningfully decrease sexual violence in prison would need to challenge the discretionary power of guards over the bodies and lives of incarcerated people.

The discord between PREA’s stated intentions and its violent effects lies in the act’s inability to challenge the power structures in prison that create systemic sexual violence. There were prior attempts to address the intimate entanglement of guards and sexual violence within prison, such as with the failed Custodial Sexual Abuse Act (CSAA) in 1997. The CSAA highlighted guards as perpetrators of prison rape, and subsequently died in Congress due to the lobbying of prison guard unions.

PREA, in contrast, tiptoes around the reality of sexual assault in prison, shifting the blame for sexual violence from structures of authority to individual criminality. Testimony before Congress centered a racialized presentation of sexual violence, focusing heavily on narratives of white victims and Black perpetrators despite no statistical evidence to back up this portrayal. At the same time, PREA hands increased surveillance power to guards, simultaneously obscuring and enabling the central role of guards in perpetrating and perpetuating sexual violence in prison.

Several APWA authors even go so far as to demonstrate not only how PREA has been integrated into the status quo of guard power and violence within prison, but also how it enables an expansion of guards’ discretionary authority. One of the avenues guards can most easily exploit is the ability to justify their actions as security procedures and, in doing so, actively flaunt the guidelines of PREA. The most prevalent form this takes in APWA essays is the use of mass strip searching to terrorize and control incarcerated people. For example, public strip searches took place frequently at Charles A. Brownell’s correctional facility:

ADC appears to enjoy mass strip searches or ‘gang’ strip searches of both male and female Inmates . . . and comment sexually and visually on bodies. . . . Inmates are then forced to go to the bathroom, drop their underwear . . . and ‘spread their cheeks’ in front of everyone.

In fact, PREA imposes important limits on strip searches, particularly cross-gender searches, which the incidents Brownell describes certainly violate. Nonetheless, because PREA was conceived within a court system that upholds guard discretion in the name of security, it is impotent by design in these cases. As such, PREA becomes not just a site of ineffective regulation, but a site for the expansion of guard power through the flaunting of the act.

Likewise, APWA author John James recounts:

[Guards are] stripping searching us 8 times a day they started Saturday and Sunday so I’ve been stripped naked 16 times in two days along with about 100 other inmates. Also night shift is stripping us in the day room with no protective walls subjecting to expose our selfs in public if we don’t strip we . . . don’t shower, no dayroom, nothing.

There is no security objective in these searches. These public strip searches function instead as a means of collective punishment, of asserting dominance and power over incarcerated people—and PREA does nothing to restrain the guards from carrying this out.

Looking back, twenty years after PREA’s passing, it seems inevitable that the act would fail to address sexual violence in prison. Had the law actually challenged the discretionary power and violence of guards, it would have been nearly impossible for it to get through Congress. The effects of this fatal flaw are clear throughout the essays in the APWA. Over and over, authors demonstrate how the act is warped to protect, rather than disrupt, the systems of power and violence that uphold U.S. carceral institutions.

The writing of incarcerated people in the APWA also provides a collective testimony of the ways that PREA further destabilizes incarcerated people’s lives at a crucially vulnerable moment. I often think of A., the author who was kept in solitary for ninety days because her assailant’s friend was in control of her report. A.’s writing casts PREA as the catalyst of her now distorted and vacant world:

In prison, you stumble forward in life and just exist. Walking feels like swimming in mud. Food has no taste but I cannot get enough. I am desperate for sleep but hate sleeping. I lost a job I loved, a room with great roommates . . . my property, freedom of movement, trust, faith in people and the belief in doing the right thing. My crime had been to dare and report being sexually assaulted and asked for the protection of the Prison Rape Elimination Act.

Prison is typically viewed as a place devoid of any choice. But essays such as A.’s demonstrate that this is not the complete picture. There was a life in prison for A. before PREA, one that she emphasizes felt fuller, safer, freer. There were choices, including mechanisms offered by PREA that she felt empowered enough to invoke—without realizing that she had, in fact, sprung a trap on herself. It is an additional cruelty that in exercising the limited choices she felt were available to her—finding a reserve in her to fight for her rights—the institution silenced her, dragged her down, and made her “swim in the mud.”

A.’s story is about the loss of a life—a shared, closely mourned loss that weaves throughout the essays about PREA in the archive. When assembled into a collective, the incarcerated writers of the APWA demonstrate, over and over, the intimate ways PREA has become a lure for those who would dare to still believe in a safe way forward.

Image: Akin Cakiner/Unsplash