Virginia Lawyer on Prison Rape: Prisoners Don’t Need Standards, But Access to the Courts

As the DOJ continues to delay in promulgating national standards for the prevention of prison rape, Virginia civil rights attorney Victor Glasberg recently published this letter to the editor in the Washington Post, offering a different take:

The United States neither lacks nor needs “standards” to prevent rape, in prisons or elsewhere. The Eighth Amendment of the Constitution and a host of laws and regulations outlaw the victimization, sexual and otherwise, of prisoners. The problem is that these laws and regulations are not enforced.

The federal judiciary has largely nullified the means prisoners might use to protect themselves. Given the judge-invented “deliberate indifference” standard and the “qualified immunity” defense as well as the stumbling blocks to valid and important prisoners’ claims created by the Orwellian-named Prison Litigation Reform Act, even horrible abuse in prison is routinely un-actionable except against the perpetrator, who is typically judgment-proof as a practical matter.

The promulgation or non-promulgation of “prison rape standards” is a sadly inconsequential sideshow to the main event: providing victims of abuse with legal recourse sufficiently effective to compel changes in the cultures of the prisons and jails where they live.