Ajury recently convicted a former warden of a women’s prison in Dublin, California – also called the "rape club" because of its reputation for sexual violence – of eight charges, including having sex with an incarcerated victims and abusive sexual contact. 

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Who are you going to believe?” James Reilly, Ray Garcia’s attorney, asked jurors during closing arguments, according to local news outlet KTVU. “(A) law enforcement officer with an impeccable record or a convicted felon?”

And this is why it's time to admit that the Prison Rape Elimination Act – in effect for two decades – is not working: The system doesn’t take victims’ accounts as credible. 

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Sexual abuse from prisons to jails

Rampant sexual violence reporting is hardly limited to California:

  • In a Senate report released Tuesday, investigators found that in 19 of 29 facilities, federal employees sexually abused female prisoners over the past decade. The investigation uncovered documents demonstrating that guards confessed to having sexual contact with prisoners but were never prosecuted. 
  • Former inmates in Hawaii are suing the state for 53 rapes in three years
  • In Clark County, Indiana, one jail guard allegedly sold the keys to the women’s facility to male inmates for $1,000.

On Oct. 12, Inspector General Michael Horowitz wrote a memo to the newly appointed director of the Bureau of Prisons, Colette Peters, complaining about the bureau's policy of not relying on inmate statements “to make administrative misconduct findings and take disciplinary action against BOP employees, unless there is evidence aside from inmate testimony that independently establishes the misconduct."

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Other evidence could include video of the abuse, conclusive forensic evidence or an admission of guilt. Apparently, when an incarcerated person complains of sexual harm, their word’s no good.

Sexual misconduct behind bars tripled

It’s not clear how many people this happens to; we’ve lost our grip on the extent of the problem. National standards to prevent, detect and respond to prison rape went into effect a decade ago, but it has been several years since the first set of prison sexual assault data was released. That report showed sexual misconduct behind bars had tripled from 2011 to 2015. 

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Statisticians say the increase of prison sexual misconduct is the result of improved attitudes about reporting, and they could be right. During the pandemic, however, the Bureau of Justice Statistics paused collecting the data – how many assaults were reported, how many were substantiated and how many hang in unsubstantiated limbo – but it expects to resume next year. 

We should watch the number of unsubstantiated reports – meaning they haven’t been proven but they haven’t been disproven, either – which are about 42% of allegations. We need to know whether a “credibility discount” keeps these reports from being included in the substantiated category. 

An unreasonable credibility test is actually baked into the Prison Rape Elimination Act. It requires every investigation to assess inmate credibility even when there’s other corroborating evidence. 

Corroborating evidence is rare, and the Department of Justice knew that when the standards were being drawn up. The Legal Aid Society warned the DOJ that inmate testimony was rarely relied upon. While that may leave only inmate credibility to consider and investigate, as a practical matter, those complaints may automatically be considered baseless. 

The manual is clear that the complainant’s status as an inmate cannot be the sole determinant of credibility, but this is exactly what the Bureau of Prisons is doing. It's violating the law, as the inspector general’s memo makes clear.

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Even the way an individual’s credibility is assessed is problematic. Investigators determine an inmate’s believability with a short list of data points – facts that “rape shield laws” would prevent from being disclosed at trial if the person weren't incarcerated. Investigators are required by law to inquire into the claimant’s history of other allegations, history of vulnerability (English-speaking proficiency, being transgender, etc.), history of other relevant reports like grievances, recent disciplinary infractions, and relationship with the suspect. 

Failing to monitor prisons

The Prison Rape Elimination Act’s failings have focused attention on the auditors, the hundreds of individuals trained and certified by the Department of Justice to review a facility’s practices. Many were certifying failing facilities as being compliant.

A provision allowing auditors to be decertified when their reports don’t match the conditions and practices within a prison was added to reform legislation. But that doesn’t do anything to address the problem that prisoners are reporting sexual victimization and not being believed because of an antiquated and absurd credibility matrix that’s part of the federal government’s rape elimination strategy.

Former prison warden Ray Garcia, left, and his defense lawyer, James Reilly, leave the courthouse in Oakland, Calif. On Dec. 8, 2022, a federal jury convicted Garcia of seven counts involving sexually abusive conduct against three female victims who were serving prison sentences and one count of making false statements to government agents.
Former prison warden Ray Garcia, left, and his defense lawyer, James Reilly, leave the courthouse in Oakland, Calif. On Dec. 8, 2022, a federal jury convicted Garcia of seven counts involving sexually abusive conduct against three female victims who were serving prison sentences and one count of making false statements to government agents.© Jeff Chiu/AP

An important bit of testimony from Garcia’s trial was that a victim said the warden told her he knew exactly how to evade detection by surveillance cameras

Video evidence can corroborate inmate reports. But camera coverage in federal prisons is spotty, as the text of a congressional bill acknowledges. The Prison Camera Reform Act, which the House passed Wednesday and is now ready for President Joe Biden to sign, would require the Bureau of Prisons to submit a plan on how to expand and improve camera surveillance in these facilities within 90 days of enactment. 

But this applies only to federal prisons, which house a mere 11% of inmates. Most incarcerated people won’t get this protection, and they have no recourse because the Prison Rape Elimination Act doesn’t mandate camera installation. States need to follow Congress’ lead and expand camera coverage in all correctional facilities.

Shifting credibility can’t be achieved by fiat power. That will take a longer time. But what can be done now is recognizing that the Prison Rape Elimination Act is not doing its job, and that we’ll need new and different laws to check sexual violence in prisons.

Chandra Bozelko, a columnist, is a member of the Junior Board of the Women’s Prison Association, a 10 for 10 prize winner with the Canary Impact Fund and the author of "Up the River: An Anthology." Follow her on Twitter: @ChandraBozelko

This is part of a series by USA TODAY Opinion about police accountability and building safer communities. The project began in 2021 by examining qualified immunity and continues in 2022 by examining various ways to improve law enforcement. The project is made possible in part by a grant from Stand Together, which does not provide editorial input.

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This article originally appeared on USA TODAY: When a prison is known as the 'rape club,' our justice system has a credibility problem