Rape Behind Bars: New Rules to Protect LGBTQ Inmates, but Will Immigration and Customs Enforcement Comply?

After living in Tucson, Arizona, for 20 years, Tanya Guzman-Martinez was detained by Immigration and Customs Enforcement (ICE) and placed in a detention center for suspected undocumented immigrants. Guzman-Martinez identifies and lives as a woman, but ICE ignored her transgendered status and put her in a male housing unit where she endured “extreme” harassment and abuse, including two sexual assaults, at the hands of guards and male detainees, according to a the American Civil Liberties Union (ACLU).

Detention officers routinely harassed Guzman-Martinez, calling her “dog” and “faggot” and mocking her for wearing a ponytail and cuffing her pants legs. In 2009, Justin Manford, a former guard at the private Corrections Corporation of America facility, threatened to lock up Guzman-Martinez in the “hole” and have her deported if she did not ingest semen he produced in a cup.

Manford was later convicted of his crime, but the ACLU claims the detention facility did not do enough to prevent Guzman-Martinez from being assaulted again, this time by a male inmate who harassed her for some time before forcibly grabbing her. Guzman-Martinez has since been released and is seeking asylum. She suffers from anxiety, depression and a fear of law enforcement, but because of her immigration status, she could be thrown back into the same detention center in the future.

Stories like Guzman-Martinez’s are a common reality in America’s prison and detention systems. Civil rights activist say ICE is notorious for failing to keep hard numbers on sexual assaults in immigration detention centers, but rates of sexual assault in prisons and jails are better known and alarmingly high in LGBTQ populations.

Transgender rights activists report that trans women are thirteen times more likely to be sexually assaulted while incarcerated than other prison inmates. In addition, 34 percent of bisexual men and 39 percent of gay men in state prisons reported being sexually victimized while only 3.5 percent of heterosexual male inmates reported such abuse, according to a Justice Department Study released last week. Lesbian and bisexual women are twice as likely to be sexually harassed or assaulted by state prison staff than heterosexual women. In all, nearly 10 percent of all inmates surveyed reported being sexually victimized in state prisons.

New National Standards for Prisons and Jails

Here’s the good news: last week, the Justice Department released new national standards for preventing and responding to rape cases in all prisons, jails and juvenile detention facilities that receive federal funds. The announcement comes after years of deliberation by a Congressionally appointed commission charged with implementing the Prison Rape Elimination Act (PREA), which Congress passed unanimously in 2003. The new standards received general praise from LGBTQ activists who worked with the commission to tailor the rules, especially in regards to protecting the rights and personal dignity of transgender people.

The new standards require prison and jail staff to consider housing for an inmate in male or female facility on a case-by-case basis, and the decision cannot based solely on genital status. The rule with result in more trans women being housed with other women, according to the National Center for Transgender Equality (NCTE). Prison and jail staff will also be required to be trained in communicating professionally with transgender, gender nonconforming and intersex inmates to aid in assessment of inmate vulnerabilities to sexual abuse.

“The safety of trans people behind bars is of particular concern because too often trans people are incarcerated only because they are transgender or because of how they’ve been forced to live because of being trans,” said NCTE Director Mara Keisling.

The rules also ban body searches and examinations solely to determine inmates’ genital status and limit the use of segregated units for LGBTQ inmates that can stigmatize individuals. Male prison workers are also banned from conducting pat-down searches on female inmates in prisons and jails, and in juvenile facilities, officers can only pat down inmates of their same gender.

But Will ICE and DHS Comply With PREA?

Civil rights activists say the new rules may not guarantee justice and protection for a immigration detainees like Guzman-Martinez, whose harrowing experience in the Arizona detention facility does not stand alone. Unlike jails and prisons, which are governed by the Justice Department, detention facilities for non-US citizens awaiting deportation operate under Department of Homeland Security (DHS) jurisdiction, which has resisted implementing the new PREA standards and, instead, favors its own internal standards.

Last week, President Obama signed an executive order requiring DHS and all other federal departments to comply with PREA, but the order gave DHS 120 days to write and propose its own rules to meet the law’s requirements. White House officials say that DHS and other agencies are best positioned to write and implement their own rules for detention facilities, but civil rights and LGBT groups want more oversight and worry that more LGBT immigrants will continue to suffer in the meantime.

“DHS has an abysmal track record of preventing and investigating the serious and systemic problems of sexual assault and abuse in its facilities,” said ACLU legislative council Joanne Lin. “With the continuing problem of rampant sexual assault in immigration detention facilities across the country, it’s highly questionable whether DHS is able to police itself, particularly because its own internal standards that will serve as a blueprint for PREA compliance fall far short of PREA’s protections for detainee safety.”

ICE, for example, does not systemically track the number of sexual assaults in detention facilities like the one in Eloy, Arizona, where Guzman-Martinez was held, according to the ACLU. ICE documents obtained last year by the ACLU under the Freedom Of Information Act, however, noted 185 allegations of sexual abuse in detention facilities since 2007, including eight in the privately run detention center where Guzman-Martinez was held.

LGBT detainees often do not report sexual abuse to authorities due to lack of knowledge of reporting mechanisms and fear of retaliation and deportation. Sometimes, they simply get deported before their case can be investigated. The dehumanizing conditions and treatment at detention centers also make it difficult for victims to deal with trauma. Consider this story related by an Arizona immigration attorney to the ACLU in 2011:

My client … has no criminal record, and before leaving [his] home county, was raped … While he was detained in Florence, he was raped by another detainee in the bathroom. It was reported to the police, but the prosecutor in Pinal County declined to prosecute. After the rape, he was placed in isolation. He couldn’t eat, couldn’t sleep; just kept reliving trauma. He is completely alone, not even a television … When he is brought to visitation (or anywhere else), he is shackled hands, feet, and waist. They refuse to take off the shackles even to speak with me, and this is despite the fact that we are in a non-contact booth through a glass window.

Over the past year, DHS Secretary Janet Napolitano has argued against applying PREA standards to detention facilities, saying revisions to DHS and ICE internal standards will be sufficient. Just Detention International (JDI), a human rights organization focused on detainee and prison issues, recently reviewed the new internal DHS standards, and although they mark an improvement, the organization says the standards are full of holes when compared to the new PREA standards for prisons and jails.

Now, DHS has eight months to propose and implement its own standards to comply with PREA despite calls from advocates who want better standards to be introduced immediately. JDI Deputy Director Chris Daley told Truthout that it’s crucial for DHS to allow independent audits of its efforts to stop sexual assault, and the group plans to continue to push for more oversight and hold detention facilities to the same standards as prisons and jails. In the meantime, vulnerable populations in America’s detention facilities must sit and wait for much needed reforms.