Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm, Gabriel Arkles, NYU Journal of Legislation and Public Policy (2014)

In this article author Gabriel Arkles gives a scholarly analysis of the role of the Prison Rape Elimination Act (PREA) in prison litigation. Though PREA does not create a private right of action or affirmative defense, both plaintiffs and defendants have invoked it in litigation. Arkles argues the courts have not responded to these invocations consistently, raising questions about what role the statute and its regulations should have in evaluation of claims and defenses. He maintains that, in a legal landscape where it is increasingly difficult to rely on an implied right of action, the question of the appropriate impact of federal legislation and regulation on separate claims in lawsuits takes on particular importance. Though Arkles acknowledges that PREA has helped some people, he presents examples of instances where it has failed, harming the people it should protect. The article examines current approaches to PREA litigation and includes recommendations for improving those approaches.