By Kali Cohn
Summer Legal Intern
Two weeks ago, Attorney General Eric Holder signed the 2003 Prison Rape Elimination Act (PREA)’s implementation regulations, which set forth detailed processes for sex abuse prevention, detection, and response to criminals in federal prison. These critical regulations come on the heels of the Department of Justice (DOJ)’s recent study surveying prison inmates about sexual violence, where 1 in 10 inmates identified themselves as victims of sex abuse while serving time. Albeit much overdue, the PREA regulations represent an important step in addressing sex abuse during confinement.
There’s just one problem: PREA doesn’t cover immigrant detainees.
PREA only covers DOJ criminal facilities. Since immigrant detainees haven’t committed a criminal offense, they’re detained in DHS and other civil facilities exempt from PREA regulations. (The ACLU of Texas recently filed a federal class-action damages lawsuit on behalf of three immigrant women who came to the United States seeking a safe harbor from violence and persecution in their home countries – read about it here). To address the problem, the Obama administration issued a memo on May 17 asking all PREA-exempt federal confinement facilities to create procedures in line with PREA. The memo is a glimmer of hope in the face of continued sexual abuse against immigrant detainees in federal custody.
But there’s bad news: President Obama’s requirements are just that – Obama’s requirements. Since they’re not congressionally mandated, they aren’t law. That leaves no guarantee that the President’s requirements will be lasting or meaningfully enforced – especially after a change in administration.
Even worse: the federal agencies running the facilities, like DHS, have 360 days before they have to finalize any plans – a time-period that jeopardizes the provisions of the order, given the possibility that Obama may not be re-elected.
This bad news is especially troubling given the DHS’s own inability to implement meaningful internal practices to prevent sex abuse in ICE facilities.
All the while, sex abuse against detainees – including asylum seekers – continues to run rampant.
In fact, between 2007 and mid-2011, nearly 200 allegations of sexual abuse came from immigrant detainees in facilities across the US – a number that most consider just the tip of the iceberg, given the widespread underreporting of sex abuse, especially by detainees.
So yet again, we’re waiting another year to see if there will be actual government protection of immigrants in detention against sex abuse.