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Every Friday morning, detainee advocates and family members gather in front of the Broadview Processing Center in Broadview, Ill. to pray for immigrants inside. (Jane Huh)

Immigrant Detainees Have No ‘Plan B’

Women in ICE custody have no assurance of receiving emergency contraception—even if they’re raped.

BY Joyce Lee

'When ICE contracts with these [private prison contractors], it really diffuses their accountability to uphold the basic human rights of immigrants,' says Madhuri Grewal, policy counsel at Detention Watch Network.

Learn more about Plan B access at www.whereisyourplanb.com.

Plan B One-Step is now legally available all over the country—in drugstores, clinics and sometimes even vending machines—for anyone, no ID or prescription necessary. A District Court ruling this spring lifted a controversial FDA requirement that women younger than 17 obtain prescriptions to receive access to the emergency contraceptive and that adult women receive it “over the counter” from a pharmacist, rather than just picking it up from the shelf. Women’s health advocates strongly supported the change, which went into effect in August, saying it’s extremely important for sexual assault victims, who have no way of planning contraception in advance. If Plan B is taken within 72 hours of having unprotected sex, it has an estimated 87 percent chance of preventing pregnancy.

But the thousands of women in immigrant detention centers still evidently have no assurance of emergency contraceptive availability, even though detainees face a high risk of sexual abuse.

In theory, detainees are supposed to have access to emergency contraception. That was spelled out ten years ago in the Prison Rape and Elimination Act (PREA), passed by Congress in 2003 to prevent prison rape on federal, state and local levels. But a September deadline for the Department of Homeland Security (DHS) to implement the emergency contraceptive provisions of PREA flew by, and detainee advocates are impatiently awaiting word.

DHS had plenty of warning about the deadline. The Violence Against Women Act, renewed in March 2013, officially gave the agency until September to implement the provisions of PREA, including providing emergency contraception to detainees in a timely manner following sexual abuse, in its facilities, which include detention centers. And though DHS published an initial draft of the proposal in December 2012, it has yet to publish and implement a final version.

While awaiting a finished plan, U.S. Immigration and Customs Enforcement, the principal investigative arm of the DHS, has relied on general policy directives to protect its detainees. Those policies, however, aren’t exactly effective, say human rights groups. As of 2009, ICE’s Division of Immigrant Health Services (DIHS) denied women in detention access to any contraceptive drugs at all, according to a Human Rights Watch Report.

In 2011, ICE finally issued a policy directive titled “Performance-Based National Detention Standards 2011” (PBNDS) which, in theory, gave victims of sexual assault access to basic responses to sexual abuse such as emergency contraception or abortion services. Gender-neutral assault protections, like limitations on strip searches, were also drafted.

But, as immigrant detention advocates point out, PBNDS is simply a set of rules—much like ones a company might set for its employees. PBNDS doesn't have any teeth to it, especially considering that ICE facilities face no legal penalties for failure to comply by it. And because private prison contractors run 80 percent of ICE facilities, according to Just Detention, advocates say enforcement of PBNDS is inconsistent at best.

“When ICE contracts with these [private prison contractors], it really diffuses their accountability to uphold the basic human rights of immigrants,” says Madhuri Grewal, policy counsel at Detention Watch Network. “Once ICE is contracting with a facility, then that facility is now privately run, and contracts with outside medical or mental health providers.” In other words, ICE does not have the means to ensure that their rules are being enforced.

Asked for comment on EC access, ICE spokesperson Gail Montenegro told In These Times that because male and female detainees are housed in separate units, there is little to no need for emergency contraception. Consensual sex is not allowed in detention centers, she said.

Michelle Brané, director of the Migrant Rights and Justice program at the Women’s Refugee Commissions, says this is a common answer given by ICE officials to questions about contraceptives, but “that’s not the right answer. That’s not a good answer.” Debating whether consensual sex takes place or not misses the point, she says, because it doesn’t account for sexual assault.

ICE says it maintains a “zero-tolerance policy” towards sexual abuse. And an earlier version of PBNDS, published in 2008, contained steps such as unannounced inspections and regular facility visits to prevent and stop sexual abuse in detention centers, according to an ICE statement. ICE reports that it tried to ensure those standards were enforced. In 2009, ICE hired more than 40 Detention Service Managers to check on detention standards enforcement.

According to the ACLU, however, which obtained ICE’s records through a Freedom of Information Act request in 2011, there were around 200 allegations of sexual assault against guards and inmates in immigrant detention centers from 2007-2011. Though many cases involved male guards assaulting female detainees, cases of assault among inmates and of detainees assaulted on their way to the airport to be deported were recorded as well.

Plus, as Brané points out, not every case of assault is likely to be reported. “We’ve had cases come to our attention in which ICE or the local facility staff or administration has not taken seriously allegations of sexual assault,” Brané said. “Or where people are afraid of saying something because they don’t feel [safe enough to go to a] person.”

PBNDS 2011 was an effort to improve upon the 2008 standards by filling gaps in services, including medical and mental healthcare, and sexual assault response standards. But it’s still vague—it provides its prisons with guidelines for policies, and then orders all facilities to write their own policies regarding sexual abuse prevention and response. As a result, there are inconsistencies across the board in these policies’ effectiveness against sexual assault, including access to emergency contraception, wrote Lovisa Stannow, executive director of advocacy group Just Detention International, in a 2012 Huffington Post article.

Brané agrees that the potential for highly varied regulations results in confusion among facility authorities. “Historically, what we have found is that detention staff and administration generally have very little knowledge on what the direct procedures are,” Brané says. When detention center officials are asked about procedures addressing sexual assault, officials preface their answers with “if it’s a valid claim,” Brané says.

When asked for elaboration on what a “valid claim” is, officials grow frustrated and angry, Brané says. Because of this, she doubts that detainees are regularly given access to the reproductive health care they need. “I can say pretty confidently, I don’t think [emergency contraception] being provided [in response to assault] is very consistent,” continues Brané, who has done extensive research on detention centers. “I think people would really have to insist upon it to get it.”

Should DHS finally provide a final draft on PREA, the contracts ICE signed with its private prisons pose another challenge. In order to implement PREA in all detention centers, ICE must change those contract terms, according to comments submitted by Detention Watch Network on DHS’s initial PREA draft. Currently, as PBNDS 2011 mandates, detention centers draft their own standards on sexual abuse prevention. Presumably, ICE could change the terms of the contracts when they are renewed. But, in many cases, Detention Watch points out, contracts don’t have an end date—they go on indefinitely until either party decides to end the contract.

Brané says ICE is often unwilling to insist on condition improvement in private detention centers because that would open up contract negotiations. According to Brané, ICE is specifically afraid prisons might ask for more bed space, which ICE would have to pay for. But there is no need for ICE to shy away from the prospect of renegotiation, she points out, because contracts are a business deal, and ICE is the customer.

Though Grewal points out that the high cost of doctors and medications means it’s in corporations’ best interests to minimize the medical services they offer detainees, ICE could easily leverage its position as the buyer to push for more humane conditions in all private prisons, Brané says. In other words, ICE does not have to wait for contracts to be up but could negotiate new ones immediately after DHS releases the final PREA draft.

ICE spokesperson Montenegro declined to comment on the matter of contracts.

Medical conditions overall in ICE have improved vastly the past few years, immigrant detention advocates acknowledge. But sexual assault continues to plague detention centers, Brané says, and the vague policies surrounding responses to it, including availability of emergency contraception, just aren’t adequate.

“Frankly, PREA is law, it’s federal law,” Brané says. As soon as DHS releases its finalized PREA plans, ‘[ICE] just needs to comply.’

This story is part of the Reproductive Justice Reporting Project, an initiative of the Media Consortium in partnership with the Association of Alternative Newsmedia, made possible with a grant from the Quixote Foundation. Learn more about this issue at www.whereisyourplanb.com.

Joyce Lee is a Fall 2013 intern at In These Times and junior at Northwestern University. She is interested in immigration law, human trafficking and photojournalism. Her work has been published at The Chicago Bureau, the Juvenile Justice Information Exchange and Youth Policy. Follow her on Twitter at @joyceslee.

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