10/2/2014 Does the US Prison System Expose Transgender Prisoners to Rape? | VICE United States

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American jails aren't safe for transgender inmates but might be on the road to reform. Photo via Flickr user Daniel Oines

Last Friday, a district court judge ruled that D. B., a transgender former prisoner who wasincarcerated in Orlando, had no right to sue Orange County, Florida, for putting her at excessiverisk and showing deliberate indifference to her safety. After she was arrested on charges ofunarmed burglary right before her 38th birthday, she told guards that she was afraid to betossed in with the general population, but her cries were ignored, and she was subsequentlyraped by her 18-year-old cellmate, Josh Bailey, in December 2009.

According to court documents, D. B. asked to be put in protective custody almost as soon asshe was jailed awaiting trial. (She would ultimately be sentenced to five years after pleading nocontest.) After an investigation conducted by the prison found no reason to grant her request,she was housed alongside the male inmates, who began “shaking their penises” at her andissuing threats.

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DOES THE US PRISON SYSTEM EXPOSETRANSGENDER PRISONERS TO RAPE?By Jessie Burkett Oct 1 2014

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10/2/2014 Does the US Prison System Expose Transgender Prisoners to Rape? | VICE United States

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Most states don't have prison facilities for people like D. B., and her case raises a question thatwas first asked 20 years ago when a trans woman named Dee Farmer won a Supreme Courtcase that allowed people to sue prisons for deliberate indifference. Of course, it's not an easything to prove. But as a slew of news stories, lawsuits, and studies build the case that transpeople are especially vulnerable, corrections departments across the country are poised to re-evaluate their protocols.

US District Judge Gregory Presnell, however, said that D. B. can't sue Orange County fornegligence. In doing so, he ignored years worth of mounting evidence that trans women areat extreme risk when placed with the general population.

“I'm a little baffled by it,” says Valerie Jenness, who gave a deposition in the case and isperhaps the foremost academic expert on prison violence against trans women. “But it's gonnaget increasingly difficult to deny that trans folks who are locked up in a whole host of facilitiesare differentially vulnerable.”

Jenness is the author of a 2007 landmark study called “Violence in California CorrectionalFacilities: An Empirical Examination of Sexual Assault,” which showed that 59 percent oftransgendered women housed in men's facilities are sexually abused in prison, versus just 4percent of cis men.

Although awareness of trans issues has increased dramatically since the study's release, thesame lack of accountability is still rampant within corrections departments. The same day thatthe ruling in D. B.'s case came out, BuzzFeed published a horrifying account of a trans womanin Georgia being forced to share a holding cell with her rapist, who then assaulted her again inMay 2012. (Jenness will be deposed in that case as well.)

In a lot of ways, D. B.'s story is one that has played out in courtrooms across the country. Afterbeing diagnosed with gender dysmorphia, she removed her scrotum, got breast implants, andstarted taking female hormones. Even though she presented to the world as female and alteredher genitals to reflect that, she was still housed with male prisoners.

Yet her case was unique in one key way: Bailey, the man who assaulted her, was ultimatelyconvicted of rape in April 2010 and sentenced to 25 years. That's something that Jenness hasn'tseen happen. Usually, she told me, the cases revolve around proving the assault occurred in thefirst place.

“We don't have to say 'alleged,' because it's been determined,” she tells me. “We're finallybeyond whether she's been raped or not. It's a stunning case.”

But given that D. B. had expressed fear multiple times before the rape happened, it could havebeen prevented. The judge, in deciding that D. B. couldn't prove the jail had put her at"excessive risk," relied on depositions from guards there, as well as a deposition from Jenness,who said that trans inmates are at 13 times the risk of assault as that faced by other inmates.According to the summary judgment issued Friday, “Some of the corrections officers deposedfor the case agreed with D. B. that transgender inmates were at greater risk for assault, butothers disagreed or testified that transgender inmates faced varying degrees of risk, just as therest of the population did.”

The judge concluded that, despite the overwhelming evidence that jail is very dangerous fortrans people, Orange County is innocent because officials there were unaware of that evidence.Still, there's clearly a need for prison workers and policy makers to come up with a housingsolution that doesn't add sexual assault to trans people's sentences.

That might mean removing trans prisoners from the general population, although the NationalCenter for Lesbian Rights reports on its website that “administrative segregation also results inexclusion from recreation, educational, and occupational opportunities, and associational rights.”While that might not be ideal, other versions of this solution go way, way too far. Solitary Watch,a site devoted to prison reform, reported in August that at least seven trans inmates in NewYork were forced to endure long-term solitary confinement. And about half of the womeninterviewed by the site said that the isolation made them prime targets for sexual assault byguards.

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10/2/2014 Does the US Prison System Expose Transgender Prisoners to Rape? | VICE United States

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What's more, Chris Daley, who works for an organization called Just Detention, told me thatsome trans women wouldn't necessarily feel safe in a women's prison either. And while LACounty has a separate pod for trans women and gay men, it's gotten mixed reviews. Clearly,there's no one-size-fits all solution.

Also troubling is that the judge had to force the defense counsel to stop laughing while cross-examining his own client, D. B., according to a report from the blog CourtWatch Florida. So notonly did the prison guards not take her warnings seriously,but the victim became an object ofridicule when seeking justice. It's just another part of a vicious cycle in which prison guardsdiscount trans people's fears and transphobia from attorneys and jurors keep them from gettingjustice after they come forward as victims of assault.

But Jenness is hopeful the tide is turning. As for shifting public opinion, trans people are morevisible than ever in American culture. Laverne Cox, from Netflix's wildly popular Orange Is theNew Black, was on the cover of Time this past May, for instance.

And things appear to be shifting in the corrections world as well. In 2012, the Federal Bureau ofPrisons implemented the Prison Rape Elimination Act, which calls for transgender inmates toundergo individual assessments to determine what housing solution would make them feel mostsafe. The Department of Homeland Security has asked Jenness to prepare training materials soImmigration and Customs Enforcement officers know how to deal with trans inmates. In her roleas an educator, Jenness also noticed that people are more cognizant of these issues thanthey've ever been before.

“I predict in the next three, five, seven years you'll see some trans folks prevail,” she says. “Ipresent slideshows to officers now about trans issues, and people don't even blink. In fact, Ithink I'm boring them.”

By: Jessie BurkettOct 1 2014Tags: transgender, LGBTQ, LGBT, Rape, prison rape, prisons, prison system, jail, criminal justice, sexual violence,trans, trans prison inmates, DB, Dee Farmer, Valerie Jenness, Just Detention, Prison Rape Elimination Act, NationalCenter for Lesbian Rights, florida, Orlando

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John Cady · Tempe, Arizona

What kind of society simply accepts rape as a part of punishment for crimes? The fact that it happensat all is barbaric and shameful, no matter who it happens to or what their crime was. The State shouldnot be free to impose rape as a form of punishment, and by allowing it to happen that is exactly whatis going on. It truly saddens me to see people talk about this as if its not a big deal, this is the UnitedStates of America in the 21st Century, its time we stop acting like the 15th century Ottoman EmpireReply · Like · · Follow Post · 13 hours ago3

Tyson Arbuthnot · Top Commenter · San Francisco, California

It should be strict liability. Get raped, and you're entitled to a six-figure payment from theprison, with no need to prove negligence. That would solve the problem very fast.Reply · Like · · 12 hours ago1

Todd Dunning · · Top Commenter · University of California, Irvine

Considering all the people in the world who deserve and need help, violent criminals in prison whodress up like women - and protest when they're raped - would not be at the top of the list.Reply · Like · · Follow Post · Edited · 14 hours ago

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John Cady · Tempe, Arizona

Well, what a heartless thing to say.Reply · Like · · 13 hours ago3

Tyson Arbuthnot · Top Commenter · San Francisco, California

You release that this TG woman did not commit a violent crime, right? Not that your pointis valid either way.Reply · Like · · 12 hours ago2

Todd Dunning · · Top Commenter · University of California, Irvine

John Cady Not at all heartless. When you make a choice in life there are consequences.Do you think maybe that dressing as a woman in prison is pretty likely to get a result? Itmakes the rest of us look just as stupid for sympathizing with them.

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makes the rest of us look just as stupid for sympathizing with them.Reply · Like · Edited · 12 hours ago

Julian Jj · Top Commenter

Everyone gets raped in prison....if anything, the transgenders have it easier than the guys that DON'Tlike weewee in the pooper....Reply · Like · · Follow Post · 15 hours ago

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Darlene Carrasquillo · Top Commenter

That's so dumb, that's also implying that a straight woman will enjoy rape because she's afemale...Reply · Like · · 14 hours ago7

Paul Cash · Top Commenter · Austin, Texas

nah, he's just saying if it's already stretched out it's not gonna hurt as badReply · Like · 12 hours ago

Todd Dunning · · Top Commenter · University of California, Irvine

Darlene Carrasquillo Wrong Darlene. I don't think you want to compare women'sstandards with your average male drag queen.Reply · Like · 10 hours ago

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Kln Gls · Fresno, California

I'm 5'5'' and if I get sent to prison I want special considerations because I'm a short guy, much shorterthan the average inmate. There should be a special prison for short people; as psychology andstatistical history have taught us, being a small individual is identified by alpha males (and thoseseeking to be alpha males) as being a weaker member of the group (subconsciously). Thesubconscious thought of that weakness can lead to smaller people being a more prevalent target ofaggression, due to the aggressor seeing a small person as "weak" or "feeble". This can lead to moreattacks on short people. I DEMAND SEPARATE PRISONS FOR SHORT PEOPLE!!! :)Reply · Like · Follow Post · 8 hours ago

Kate Quinn · Dublin, Ireland

1) No one suggested separate prisons.

2) You're right, special consideration should be given to short males if they are atheightened risk of assault.

Why would you argue against people in prison being kept safe?Reply · Like · about an hour ago

Nik FromNyc · Top Commenter · Harvard University

Prisons are chock full of loudmouth obnoxious hell. Assholes make it all into universally anti-capitalistic, disempowering GANGS. Any white guy in jail has to become a racist skin head, or elsebecome dead.

STOP LETTING PRISONERS TALK TO EACH OTHER, to create Crime University.

Problem solved.

Rikers Island, 2012, -=NikFromNYC=-Reply · Like · Follow Post · Edited · 14 hours ago