By: Victoria, WoLF Volunteer

The Prison Rape Elimination Act (PREA) was established in 2003 to create a floor for rape and sexual assault responses in detention facilities, a minimal set of standards meant to prod facilities to better protect inmates. Beginning in 2013, PREA was expanded to require frequent auditing and annual reporting. This expansion has resulted in each state producing yearly anonymized reports with overall numbers and rate of sexual assault and rape. These reports break down the numbers of allegations into three categories: substantiated (investigated and found to be true), unsubstantiated (unable to determine the validity), and unfounded (investigated and found to be false). Additionally, the reports are broken down into inmate-on-inmate allegations and staff-on-inmate allegations.

Beginning in May of 2021, Women’s Liberation Front (WoLF) submitted a series of public records requests trying to establish how many of these sexual assaults were happening to female inmates. Separation of data based on sex is not required by PREA standards, possibly because of the male-focus of most prison reform activism. We submitted to the state of New York a request for the full records of the substantiated inmate-on-inmate assaults and the unsubstantiated inmate-on-inmate assaults. Differentiating between the substantiated and unsubstantiated allegations, we believed, would give us a fuller picture of whose allegations actually got investigated thoroughly. What we got back from the state is presented below but shows a frustrating picture of how prison abuse is reported in New York State’s prison system.

Table 1: Breakdown of the rape rates in New York State prisons versus the general New York State population followed by the raw data for the prison rape rate calculations

WoLF’s request for documentation of the unsubstantiated allegations was not denied but rather was “fulfilled” with zero documents, because New York State, to our best knowledge, does not keep documentation of the investigations into these sexual assault and rape allegations unless the investigation is completed and found to be substantiated. As a result, our table shows no data for unsubstantiated PREA allegations. A report from the National Prison Rape Elimination Commission (NPREC) in June 2009 pointed out this type of discrepancy saying:

“No national data have been collected on how often correctional facilities investigate reported abuses, and there is no body of research describing the quality of those investigations. We do know, however, that correctional facilities substantiate allegations of sexual abuse at very low rates.”†

However, despite the commission knowing of these issues and recommending updates to the PREA, no updates requiring documentation of investigation are currently required.

More disturbingly, we see that the rape rate per 100,000 is very low compared to the overall state report rate with the exception of the year 2014. While it is difficult to compare the numbers of rapists in the general population to the numbers of incarcerated rapists due to a huge number of factors, we can only assume that the prison population would be a place where violence, including sexual violence, would be more likely to be committed. Subsequently, a rate that is lower than even the general population raises questions about the transparency of the reporting bodies. It is important to note here that the rape rate per 100,000 increased dramatically for the general population between 2014 and 2015 due to a change in reporting implemented by the state. It is unclear if this change influenced the spike in reporting in the prison population in 2014 or if these phenomena were separate.

The results of this request also revealed a discrepancy between the released documentation and New York State’s own reporting of the aggregate totals of PREA incidents. Below you can see the numbers of substantiated PREA allegations released to us via the records request and the number of substantiated PREA allegations that New York State reports have occurred. We have been unable to determine what the basis for this discrepancy is.

Table 2: Comparison of the records released by New York State following out public records request and the records reported by New York State in their most recent PREA annual report

The hurdles that we have faced in trying to understand the prison rape problem have been disheartening. Poor records keeping compounds with a seeming lack of care for prisoner safety and results in data more farcical than scientific. However, it is the data that we have going forward. It will serve as the baseline for comparison for every prison reform within New York State prisons. How will we know if the addition of trans-identified males (men who identify as women) increases the rape rate against female prisoners? We likely won’t. How will we know if better monitoring systems reduce the rape rate? We likely won’t. 

The only way that we can fix the situation is to demand better going forward. We need better-mandated reporting, detailed data disaggregation (including by sex), and more transparent investigations into prison assault. Gathering this data is an important first step in a long march towards ensuring the safety of female prisoners.

* 2019 Final Data. Crime in New York State https://www.criminaljustice.ny.gov/crimnet/ojsa/Crime-in-NYS-2019.pdf (accessed Jun 28, 2021).

** Based on documents received from public records request

*** Based on “Admission and Releases 2014” through “Admissions and Releases 2020”; Reports available on https://doccs.ny.gov/research-and-reports

† National Prison Rape Elimination Commission Report, June 2009 https://www.ojp.gov/pdffiles1/226680.pdf (accessed June 28, 2021)

‡ Annual Report on Sexual Victimization: An Analysis of 2014-2018 Sexual Abuse and Sexual Harassment Data; Published June 2021. https://doccs.ny.gov/system/files/documents/2021/06/annual-report-on-sexual-victimization-2014-2018-with-2019-aggregated-data-final.pdf (accessed June 28, 2021)