PREA and the Criminalization of LGBTQ Youth

• LGBTQ youth are twice as likely to experience family conflict, child abuse, and homelessness as other youth.[ii] The emotional and physical abuse LGBTQ youth face from unaccepting families can cause them to flee their homes. Often, public programs are not intersectional and do not provide for the specific needs of LGBTQ youth. As a result, many become homeless and for survival sometimes resort to criminal behavior such as petty theft, selling drugs, and survival sex.[iii] This behavior, while done out of necessity to survive, carries a risk of engagement with the criminal justice system.
• Biased school discipline and the school-to-prison pipeline. According to the ACLU, “the ‘school-to-prison pipeline’ is a disturbing national trend wherein children are funneled out of public schools into juvenile and criminal justice systems.” As schools increasingly rely on law enforcement to manage issues that were in the past handled in-house, they become increasingly linked to the juvenile justice system.[iv] This trend disproportionately affects LGBTQ youth, turning a place intended for education and growth into a funnel to the juvenile justice system and a catalyst for sexual victimization.[v]

Facing a High Risk of Sexual Abuse in Detention Not only are LGBTQ youth criminalized and funneled into the juvenile justice system, but they are also more likely to be victims of sexual violence once inside. The ­­Bureau of Justice Statistics reported that 14.3% of non-heterosexual youth (gay, lesbian, bisexual, and other sexual orientations) were victims of sexual abuse in detention in the 12 months prior to the study, versus 8.9% of heterosexual youth.[vi] Statistics compiled in “Unjust: LGBTQ Youth Incarcerated in the Juvenile Justice System” illustrate the horrifying rates at which LGBTQ youth are targeted for sexual victimization compared to their heterosexual peers in detention:[vii]

• Sexual contact with staff is experienced by
  • 15% of gay and bisexual boys vs. 8.9% of heterosexual boys
  • 6% of lesbian and bisexual girls vs. 2.2% of heterosexual girls
• Peer sexual assault is experienced by
  • 6% of gay and bisexual boys vs. 1.9% of heterosexual boys
  • 7% of lesbian and bisexual girls vs. 4.1% of heterosexual girls

The Prison Rape Elimination Act (PREA) was put in place to combat the human rights crisis that is prison rape in the United States, and includes provisions specifically aimed at protecting LGBTQ populations.

The PREA Standards and Protections for LGBTQ Youth [viii] Five PREA standards for juvenile facilities are in place to combat sexual abuse against LGBTQ residents:

• 115.315: Limits to cross-gender viewing and searches. Transgender and intersex youth should NOT be searched or examined just to find out the resident’s genital status, and all staff members should be trained on how to conduct searches of transgender and intersex residents.
• 115.331: Employee training. Staff, volunteers, and contractors must be trained on how to communicate effectively and professionally with residents, including LGBT, intersex, and gender nonconforming youth.
• 115.341: Obtaining information from residents. Within the first 72 hours of a resident’s arrival, the facility should collect information about that resident’s history and behavior to reduce the risk of sexual abuse by or upon the resident. Agency staff must screen for “any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse.”
• 115.342: Placement of residents in housing, bed, program, education, and work assignments. Housing, bed, program, education, and work assignments are made based on the information gathered from the screening process. LGBT and intersex residents are not to be housed, etc. based solely on their gender identity or sexual orientation or considered at risk of being sexually abusive just based on this identification. This placement should be done on a case-by-case basis and the resident’s own views with respect to safety should be “given serious consideration.” Finally, transgender and intersex residents should be given the opportunity to shower separately from other residents.
• 115.386: Sexual abuse incident reviews. Facilities are required to conduct sexual abuse incident reviews after every sexual abuse investigation, unless the allegation has been determined to be unfounded. The review team must consider whether the incident was motivated by an inmate’s “gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status or perceived status…”

As the PREA standards were passed in 2012, there has been very little research done and published on their effectiveness.

Next Steps and Resources When working to end the problem of prison rape, we must take a comprehensive, intersectional approach. Holding juvenile detention facilities accountable for implementing these standards to the fullest is of extreme importance, but we also must tackle the issues that allow so many LGBTQ youth to become involved with the juvenile justice system in the first place.  Our prevention efforts and our response to the issue of prison rape must be LGBTQ­-inclusive. No one deserves to be sexually assaulted. Rape is not part of the punishment. Below are links to various resources and organizations to help in your fight to end the criminalization of LGBT youth and prison rape.   Just Detention International PREA Resource Center Standing with LGBT Prisoners: An Advocate’s Guide to Ending Abuse and Combating Imprisonment ACLU: School-to-Prison Pipeline LGBT People and the Prison Rape Elimination Act End the Abuse: Protecting LGBTI Prisoners from Sexual Assault

Center for American Progress, Movement Advancement Project, “Unjust: How the Broken Criminal Justice System Fails LGBT People,” Movement Advancement Project, February 2016, (http://www.lgbtmap.org/file/lgbt-criminal-justice.pdf); Center for American Progress, Movement Advancement Project, “Unjust: How the Broken Criminal Justice System Fails LGBT People of Color,” Movement Advancement Project, August 2016, http://www.lgbtmap.org/policy-and-issue-analysis/criminal-justice-poc.