Power, Silence, and Sexual Abuse in Custody: A Constitutional and Human Rights Analysis of Women’s Safety Behind Bar

Abstract

This paper analyzes sexual abuse of women in custody in the United States as both a constitutional violation and a breach of international human rights law. Drawing on Amnesty International reports, Bureau of Justice Statistics data under PREA, and oversight findings from the OIG, it documents persistent patterns of staff-perpetrated sexual misconduct—ranging from assault to coercive “consensual” contact—alongside systemic underreporting driven by fear of retaliation, evidentiary hurdles, and staff codes of silence. The analysis situates custodial sexual abuse within international prohibitions on torture and cruel, inhuman, or degrading treatment (ICCPR, ICESCR, DEVAW) and within U.S. constitutional doctrine recognizing prisoners’ rights to bodily integrity and freedom from deliberate indifference under the Eighth Amendment. It further examines intersectional vulnerabilities (including race, disability, language, sexual orientation, and gender identity, with particular risks to transgender women), and maps uneven state statutory frameworks, noting remaining gaps (e.g., Vermont’s absence of a specific prohibition, defenses premised on “consent,” and penalties that chill reporting by criminalizing prisoners). The paper argues that zero tolerance under PREA requires enforceable standards, independent investigations, felony-level penalties for staff misconduct, and survivor-centered remedies, and concludes that bridging the law–practice gap is essential to ensure women’s safety behind bars.