The Prison Rape Elimination Act (PREA) is perhaps the most significant law reform project undertaken on U.S. prison issues in the twenty-first century. In the decade since PREA was enacted, it has been invoked by both plaintiffs and defendants and mentioned in hundreds of opinions, even though PREA does not create a private right of action or affirmative defense. This article provides the first scholarly analysis of the role of PREA in prison litigation. The author argues that courts have addressed PREA in ways that have disserved prisoners and contributed to the perpetuation of sexual harm. The article first provides background on PREA and on the constitutional and statutory standards that govern most claims related to sexual abuse in detention. Second, it describes and analyzes the key ways in which PREA has failed prisoners. Third, it lays out proposals for judicial approaches to PREA that would make better doctrinal and normative sense than current trends, including using PREA to inform judicial understandings of “evolving standards of decency” under the Eighth Amendment. Fourth and finally, it reflects on the implications of this analysis for larger questions about law reform and social justice
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