Wednesday, November 09, 2005

The horrific case of Roderick Johnson, the Texas prisoner who allegedly was forced into sexual slavery by prison gangs, has brought welcome media attention to the issue of prison rape.

The occurrence of prison rape is not only a terrible violation of an inmate's human rights, but also an indictment of any institution that is unable to adequately protect the people it is charged with housing safely. As a society, we should care about these kinds of abuses, and we should demand accountability from public officials with regard to prisoner safety. We need to know the extent of prison rape, why it is happening, and what can be done to prevent its occurrence.

Unfortunately, however, the dialogue has shifted to a meaningless and potentially dangerous debate about whether Texas is worse than any other state when it comes to the problem of prison rape. American-Statesman reporter Mike Ward's front-page article ("Inmate's case raises profile of prison rapes," Oct. 24) highlighted the fact that Texas has the most reported prison rapes. Advocates challenged agency officials to explain the fact that Texas logged 550 complaints of inmate-on-inmate sexual assaults in 2004, when Ohio came in second with 86 reported rapes.

While a superficial review of these numbers might suggest that something is askew, the fact is that the criticism is based on a misunderstanding of how the numbers have been calculated. This is more than a concern about unjustified blame; it is a fear that this misplaced criticism could end up driving the problem of prison rape underground.

The federal Prison Rape Elimination Act of 2003 required the U.S. Department of Justice's Bureau of Justice Statistics to gather data about the extent of prison rape in every state. But data collection is by no means a straightforward process. One major challenge is that states will be ranked by the numbers of reported rapes, and those rankings will be presented to Congress. Therefore, agencies have a built-in incentive to keep their figures artificially low.

States retain considerable discretion as to their methods for collecting and reporting data. Although the Bureau of Justice Statistics made some efforts to ensure that all non-consensual sexual activity among prisoners is included in the data, there is no uniform definition, for example, of what constitutes "consent." What about the prisoner who feels pressured to provide sexual services to another inmate in exchange for protection?

An agency with a disincentive to report statistics may interpret this as voluntary sexual activity, not rape. Or states may choose, as California has apparently done, to include only those cases that it substantiates. To its credit, Texas has chosen, however, to include all alleged claims of rape within its reporting requirements, a step that carries considerable political risks for the agency but a move that is essential if the issue is to be effectively tackled.

Both advocates and the media need to avoid taking these reported figures, both in Texas and in other states, to mean more than they do. The statistics are no more than a starting point in a national conversation about what constitutes prison rape and how agencies should respond to allegations.

It is a mistake to confuse the numbers of reported rapes with the actual number of rapes (which could be either higher or lower). And it would be equally misleading to compare states as though it is an apples-to-apples comparison. Clearly it is not.

As a long-time observer and former court-appointed monitor of the Texas prison system, I have a deep and abiding concern about the problem of prison rape. But I have no idea how Texas' record on this front compares with any other state's, and neither does anyone else. I do know that Texas is not running away from its problem in the way it reports its statistics.

This kind of finger-pointing will have a chilling effect on the way states report prison rape, which won't serve anyone's interest not the prisoners who suffer from these traumatic assaults; not the agencies, which need an expansive definition of prison rape so they can begin to address the problem; not the National Prison Rape Reduction Commission, which needs to assess the true extent of the occurrence of sexual assault of prisoners so it can develop recommendations; and not the public, which deserves to have a transparent prison system.

We need to encourage the reporting of prison rape, and those states that take the problem seriously enough to use expansive definitions of rape and broad data collection methodologies - despite the risk of being penalized - should be applauded, not criticized.

Deitch is a 2005-06 Soros Senior Justice Fellow and teaches criminal justice policy at the UT's LBJ School of Public Affairs. She previously served as a court monitor in the landmark Texas prison reform case of Ruiz v. Estelle, and is now drafting the American Bar Association's standards on prison legal issues.