Legislative History

In September 2003, the United States Congress unanimously passed the Prison Rape Elimination Act (PREA). The Act was the culmination of a collaborative effort between human rights, faith-based, and prison rape advocacy. The aim of the Act is to create “zero tolerance” for prison rape by using a variety of tools or mechanisms including data collection; grants to the states; technical assistance to the states to improve their practices; research; the development of national standards; and the diminution of federal criminal justice assistance to states who fail to comply with the standards.

Prison Rape Elimination Act

While prison rape has been an abiding feature of U.S. prisons almost since their inception, the event that contributed most to the passage of the Prison Rape Elimination Act was the 2001 publication of No Escape: Male Prisoner Rape by Human Rights Watch (HRW). Though HRW had published several reports on sexual violence in U.S. prisons dating back to its initial report on the rape of female prisoners,  there was little traction in Congress to pass legislation aimed at ending sexual violence in custody.

In fact, an early effort to pass legislation introduced by Congressman John Conyers, Jr. (D. MI) to create a registry of staff involved in sexual abuse of inmates in custody failed to garner enough support even for consideration. The legislation, “The Custodial Sexual Abuse Act of 1998,” was stripped from the reauthorization bill for the “Violence Against Women Act” and was never reintroduced.

The initial version of PREA only sought to address male prison rape. In the initial congressional hearing, most of the survivors were male. One of the significant critiques of the initial legislation was its failure to include sexual violence against women in custody, which was more likely to be staff initiated. In its second iteration, PREA included staff sexual misconduct against inmates, but continued to focus heavily on male-on-male inmate rape.

Human rights organizations like Human Rights Watch and Stop Prisoner Rape were critical in defining the contours of PREA. Essentially, they made political and strategic concessions, such as explicitly providing that PREA does “not create a private right of action” and “protects the Eighth Amendment rights of prisoners” in order to secure PREA’s passage.” These concessions neutralized concerns raised by powerful unions and the corrections community in response to the earlier Custodial Sexual Abuse Act of 1998 - that the legislation would create a new avenue for prisoner litigation, resulting in damage awards and attorneys’ fees. PREA passed unanimously in both houses of Congress. In this way, regardless of the underlying political and strategic reasons behind its passage, PREA signaled an important shift toward more humane treatment of persons in custody.  

"PREA signaled an important shift toward more humane treatment of persons in custody."

Professor Brenda V. Smith

Excerpts from: Smith, Brenda V. “The Prison Rape Elimination Act: Implementation and Unresolved Issues” Criminal Law Brief, American University Washington College of Law Washington, DC; 10-18 (Spring 2008).