Meredith Esser (University of Wyoming College of Law) has published "Who Bears the Burden When Prison Guards Rape?" on SSRN. Here is the abstract:
Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP). Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years. In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault. However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.
Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims—in a manner inconsistent with other federal early release provisions—and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden. For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances. Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.
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