When Children Are Involved
FINDING: Juveniles in confinement are much more likely than incarcerated adults to be sexually abused, and they are particularly at risk when confined with adults. To be effective, sexual abuse prevention, investigation, and treatment must be tailored to the developmental capacities and
needs of youth.
In summer 2004, the Plainfield Juvenile Correctional Facility in Indiana housed nearly 300 boys, most between the ages of 12 and 18.1 Based on reports of rampant physical violence and sexual abuse, the U.S. Department of Justice began investigating conditions of confinement and the safety of the residents. That investigation revealed pervasive sexual activity of almost unimaginable proportions. Acts of sexual abuse occurred throughout the facility—in dormitories, day rooms, the recreation area, bathrooms and showers, storage closets, and even in the campus security van. Sexual contact among youth was so widespread that authorities at the facility used flow charts to document the incidents, charting each youth involved and the nature of the sexual activities. One incident involved eight boys; another involved 14.
The investigators were especially concerned by the “alarming” age and size disparity between many of the youth involved and noted that “[w]hen older, bigger, and/or more sophisticated youths have access to younger and/or smaller youths, the risk of abuse and exploitation is particularly high.”2 Youth as old as 18 were assaulting or coercing children as young as 12; children weighing as little as 70 pounds were sexually abused by youth outweighing them by 100 pounds. Older youth were inappropriately housed with and had easy access to 12-year-old boys. In one case, a 16-year-old gave a 12-year-old clothing to entice him into having sex with him in the dayroom. In another, an 18-year-old youth attempted on two occasions to force a 12-year-old to have sex with him in a bathroom.
Very little seemed to deter abusive behavior at Plainfield. Assaults often occurred without staff intervening or even being aware of them. At their best, staff ratios were one staff member for 30 youth, and sometimes there was only one staff member to supervise 48 youth, decimating the ability of staff to prevent incidents, protect vulnerable residents, or “respond in a safe and timely manner” when sexual assaults did occur.3 Housing arrangements at Plainfield exacerbated the danger. For example, sexual offenders were housed in large dormitories with bunk beds—a design known to increase the risk of sexual abuse.
In its report, the Department of Justice emphasized that Plainfield administrators had a duty under the U.S. Constitution to take reasonable measures to protect vulnerable residents from abuse and exploitation by more sophisticated, sexually predatory youth and also to provide a “rehabilitative environment for all young sex offenders.”4 State officials converted Plainfield into an adult facility in October 2005, shortly after they received the report.5
A daily snapshot of juveniles in custody in 2006 showed that approximately 93,000 youth ages 20 and under were confined in juvenile facilities in the United States; more than half (55,978) were 16 years old or younger.6 Preventing, detecting, and responding to sexual abuse in these facilities
demands age-appropriate interventions. The Commission’s standards for juvenile facilities parallel those for adult prisons and jails, with modifications to reflect the developmental capacities and needs of children.
This chapter discusses why confined youth are especially vulnerable to sexual abuse and how to protect them, with an emphasis on standards that are significantly different in a juvenile justice context.
Heightened Vulnerability, Special Responsibility
Historically, the juvenile justice system was designed to provide a therapeutic and rehabilitative environment for youth who violate the law.7 Therefore, most juvenile facilities differ from adult prisons and jails in their theoretical emphasis on rehabilitation. Notwithstanding recent punitive approaches to juvenile delinquency, new scientific evidence confirms that youth are especially amenable to treatment. As the Supreme Court noted in 2005, the character of a juvenile is less “fixed” than that of an adult.8 Researchers have identified several features of adolescence that make youth particularly open to rehabilitation, including significant and rapid changes in intellectual capacities and evidence of positive responses to adjustments in family, peer group, school, and other settings that influence development.9 As a result, most youth will mature out of misdemeanor and other criminal behavior between the teenage years and young adulthood; few youth persist in a life of crime as adults.10
Youth may pass through the system once or twice, never to return. Yet if they are sexually abused, they may live with lifelong consequences.11 Juvenile justice agencies thus have an opportunity and a challenge: prevent sexual abuse now, or risk long-term consequences for victims.
Juveniles are not yet fully developed physically, cognitively, socially, and emotionally and are ill-equipped to respond to sexual advances and protect themselves.12 Younger teenagers and preteens, in particular, are unprepared to cope with sexualized coercion or aggression from older, more experienced youth or adult corrections staff, and such abuse may permanently damage them.13 Because of their age, youth are entitled to even greater protections from abuse and unnecessary pain than incarcerated adults. Youth in criminal justice settings have a right to “bodily integrity” under the 14th Amendment of the Constitution, as would any child in school.14 Indeed, when the State exercises custodial authority over children, “its responsibility to act in the place of parents (in loco parentis) obliges it to take special care to protect those in its charge, and that protection must be concerned with dangers from others and self-inflicted harm.”15
It is especially egregious when staff are the perpetrators of sexual abuse against youth and when facilities fail to hold perpetrators accountable. Over a period of almost a year in 1997 and 1998, L.C. was allegedly sexually abused by two staff members of the residential juvenile detention facility in Chalkville, Alabama.16 On one occasion, when L.C. was 16 years old, she was granted a pass to travel to another town to visit her mother. A Chalkville corrections officer followed her there without her knowledge and coerced her into meeting him at a local restaurant. By threatening to use his authority over her at the facility, he made her accompany him to a motel. Once at the motel, he raped her. These off-site rapes happened on two occasions. The officer repeatedly made sexually explicit statements to L.C., said she didn’t seem like a virgin, and told her about having sex with other girls at the facility. L.C. submitted a written complaint reporting the abuse to the facility superintendent, but he wrote back that “he could not control the actions of Chalkville Campus’ employees when they were off-site.”17
The State’s obligation to protect youth in juvenile facilities covers not just staff but also residents, contract employees, and volunteers. The story of A.S., a 15-year-old girl at Chalkville, illustrates the harm caused by failure to protect youth from sexual abuse. Over a period of months beginning in September 2000, a male security guard employed by the Department of Youth Services (DYS) allegedly sexually abused A.S.18 One night, when agency records confirm that he escorted her back to her cottage, the security guard raped her. He continued to threaten and harass her for the rest of his time at the facility. Eight months later, when allegations of sexual abuse at Chalkville reached the police, the assailant was placed on administrative leave. The girl continued to fear for her safety, however, because other staff on leave for sexual abuse still visited the facility. When DYS took no action to reassure her, her emotional trauma escalated until she became suicidal. She was placed in in-patient care, where she remained for the duration of her sentence.
The pervasive misconduct at Chalkville and the systemic failure to respond led 49 girls to bring charges that “male staff had fondled, raped and sexually harassed” them.19 DYS officials received notices about sexual abuse in the form of letters, complaint forms, and incident reports beginning in 1994 and continuing into 2001.20 Although DYS investigated some of the complaints, it ignored many because the girls were “presumed to be liars and troublemakers.”21 One court opinion noted that—with the number of complaints of sexual abuse over such a long period of time, often involving the same staff members—any “reasonable supervisor should have realized that he or she had a bigger problem.”22 Ultimately, the pervasiveness of the abuse was impossible for the State to ignore, and legislation was passed making custodial sexual misconduct a crime.23 Fifteen employees were fired or resigned as a result of the allegations. The litigation ended with a $12.5 million settlement.24
The gravity of what happened in Chalkville cannot be overstated; the risk and consequences of abuse among confined youth deserve serious attention. Rates of sexual abuse appear to be much higher for youth in confinement than they are for adult prisoners. This is true of recorded allegations of sexual abuse as well as incidents that investigators deemed “substantiated.” The Bureau of Justice Statistics (BJS) found that the rate of sexual abuse in adult facilities, based only on substantiated allegations reported to corrections authorities that were captured in administrative records, was 2.91 per 1,000 incarcerated prisoners in 2006.25 The rate in juvenile facilities, also reported by BJS and based on administrative records, was more than five times greater: 16.8 per 1,000 in 2006.26 This difference in rates may be due, in part, to State and local mandatory reporting laws specifying that sexual acts involving persons under a certain age are nonconsensual by definition and must be reported to authorities.
The actual extent of sexual abuse in residential facilities is still unknown.27 At the time this report went to press, the best national data available on the sexual abuse of youth in confinement were based on juvenile facilities’ administrative records of allegations and substantiated or unsubstantiated incidents. To be substantiated, the abuse first has to be reported and recorded by the facility. Substantiating an allegation also requires a formal investigation, availability of adequate and still-viable evidence, and entering a finding that sexual abuse occurred into official records. All these steps can be compromised by reluctance on the part of youth or staff to report abuse or to conduct or participate in an investigation, officials’ concerns about publicity and liability, and a lack of adequate procedures or training on how to respond to reports and investigate alleged incidents.28
As directed by PREA, BJS is now conducting the first nationally representative survey of sexual abuse in residential detention, based on computer-assisted interviews. Youth use a touch screen to respond to a questionnaire accompanied by audio instructions delivered through headphones.29 This research will provide the best estimate yet on rates of abuse in juvenile facilities and allow comparisons with BJS’ groundbreaking sexual abuse surveys of adult prisoners. A pilot study of 645 residents in nine facilities for youth adjudicated for committing severe offenses suggests that juveniles may be more vulnerable to sexual abuse in confinement than anyone imagined. Nearly one of every five youth surveyed (19.7 percent) reported at least one sexual contact during the preceding 12 months or since they had arrived at that facility if they had been there less than 12 months.30 Staff were as likely as youth to perpetrate sexual abuse: nearly 8 percent of the youth interviewed reported sexual contacts with staff involving physical force or threat of force; other types of force or pressure; or sex in return for money, protection, or other special treatment.
Who’s at Risk
In September 2008, the Department of Justice Review Panel on Prison Rape prepared a report on sexual assault in Federal and State prisons that included a comprehensive profile of common characteristics of victims and perpetrators of rape in adult correctional facilities.31 To date, there has been no similarly comprehensive study of the characteristics of youth who are at greatest risk of being victimized or of perpetrating sexual abuse in juvenile facilities.32 However, some characteristics—including past abuse history, small size, inexperience with the justice system, sex, sexual orientation, gender identity, and mental and physical disabilities—may be associated with higher vulnerability to sexual abuse.
Youth in juvenile detention span a wide range of ages and developmental stages. In some States, youth as young as 6 and as old as 20 fall within juvenile court jurisdiction and can be housed, at least in theory, in the same facility.33 This mix is fraught with danger because younger and smaller residents may be particularly vulnerable to force, violence, sexual abuse, and intimidation from older and stronger residents.34 A 2005–2006 BJS survey of juvenile facilities found that, across facilities that provided data, 60 percent of victims of substantiated incidents of sexual violence perpetrated by other youth were 15 years of age or younger. In contrast, victims of staff sexual violence were usually older: 65 percent of staff victims were 16 or 17, and 19 percent were 18 or above.35
Studies in the community suggest that youth with a history of abuse or neglect may be extremely vulnerable to subsequent victimization as well—a risk that can persist into adulthood.36 President of the National Juvenile Detention Association Leonard Dixon testified before the Commission that “[y]outh who enter the juvenile justice system often come to [the facility] from abusive and neglect[ful] families. In Michigan alone, twenty percent of the juvenile justice youth have been victims of child abuse and neglect.”37 These youth often feel powerless at the hands of adults: a feeling likely to be heightened in the authoritarian environment of juvenile detention, where they are expected to follow all orders issued by the adults in charge, submit to strip searches by adults, and depend on those in authority to meet basic needs and protect them from potential perpetrators.
Inexperience with the criminal justice system and commingling juveniles with different offense histories also contribute to the vulnerability of thousands of confined youth. When M.W., a 14-year-old boy weighing 98 pounds, was detained in the reception area of the West Palm Beach, Florida, juvenile detention center after an arrest for burglary, he was placed in a cell by himself.38 Microphones and cameras allowed staff to monitor cells in the detention center, but some officers lacked access to the monitoring equipment, so cell doors were often left open to give counselors a direct view of the youth inside. Officers later placed another boy in the cell with M.W. This boy was 15 years old, 6’2” tall, and weighed 160 pounds. Half an hour later, officers placed an additional boy in the cell. This boy was 16 years old, 6’2” tall, weighed 195 pounds, and had a long history of violent crimes.
Less than 1 hour after the boys entered the cell, one boy attempted to force M.W. to perform oral sex while the other boy watched. An officer, who noticed that the cell door was almost completely closed, entered and witnessed the assault in progress. The officer pulled M.W. out of the cell and asked if he had been hurt. However, M.W. was never given a medical examination or provided mental health treatment while detained at the facility. Several months after the assault, M.W. developed chronic nightmares and posttraumatic stress disorder. A court later awarded $100,000 in compensatory damages to him and $5,575 to his father.
In many jurisdictions, the juvenile justice system is responsible not only for the care and confinement of youth charged with crimes, but also for youth identified as “status offenders” for violating rules that only apply to persons under a certain age. Status offenses are typically minor and include curfew violations, running away, disobeying parental orders, and truancy.39 Some runaways are fleeing abuse and violence at home.40 Youth who are in the custody of child protective services agencies also may end up in the juvenile justice system for minor offenses that would not involve the justice system if they were living with their parents.41 Although States that receive formula grants under the Juvenile Justice and Delinquency Prevention Act of 2002 are prohibited from placing status offenders in secure facilities, many jurisdictions take advantage of exceptions to this rule and confine youth with minor infractions in facilities for serious offenders.42
According to national census data, approximately 4,800 status offenders were in the custody of a juvenile residential facility on census day in 2006.43 This tally increases to nearly 20,000 (or more than one-fifth of all youth in custody) if juveniles who have committed a technical violation, such as a violation of probation or other valid court order, are included.44 In 2002, the Department of Justice’s Civil Rights Division found that 75 percent of girls in two training schools in Mississippi were confined solely for status offenses, probation violations, or contempt of court.45 These youth often have little or no experience with the juvenile justice system and are particularly vulnerable to abuse or coercion by more experienced, sophisticated, and violent residents as well as by staff.
Simply being female is a risk factor. Girls are disproportionately represented among sexual abuse victims in general and in juvenile justice settings. The 2005–2006 BJS survey found that 36 percent of all victims in substantiated incidents of sexual violence in the State systems and local or private juvenile facilities providing data were female, even though girls represented only 15 percent of youth in residential placement in 2006.46 Girls were the victims in more than half (51 percent) of all substantiated incidents perpetrated by staff, compared to being the victims in only 21 percent of incidents perpetrated by other youth.
During the past two decades, the number of girls in the juvenile justice system as a whole—and in secure detention facilities in particular—increased substantially, due in part to an increase in arrests and detention for technical violations of probation.47 This shifting demographic poses a significant challenge to the juvenile justice system and individual facilities, which were traditionally designed to meet the needs of boys and may not have enough women staff to supervise and monitor girls who enter the system.
Facilities also may be ill-equipped to protect gay, lesbian, bisexual, and gender-nonconforming youth. According to Jody Marksamer, Director for the Youth Project of the National Center for Lesbian Rights, juvenile facilities are often homophobic places that are emotionally, physically, and sexually unsafe for these youth.48 A lawsuit filed by the Hawaii chapter of the American Civil Liberties Union provides a stark illustration of how youth who are gay, transgender, or merely perceived to be gay may be threatened by staff or assaulted and harassed by other youth. This case resulted in a $25,000 settlement to be used for developing new policies at the facility and a $600,000 settlement to three plaintiffs who were subjected to unwanted sexual touching, threatened with rape, and repeatedly harassed because of their sexual orientation.49
Transgender girls are especially vulnerable. Despite their feminine gender and appearance, they are almost always placed in boys’ facilities, where they are expected to shower and sleep with boys.50 Cyryna Pasion told the Commission about the sexual abuse she faced as a transgender girl in the Hawaii Youth Correctional Facility in 2004 and 2005.51 Placed in a boys’ unit against the advice of medical staff and counselors, Cyryna suffered sexual harassment, unwanted touching, taunting, and threats of violence and rape. “I felt tortured and alone,” she told the Commission.52 “The boys threatened to beat me up if I wrote a complaint. . . .”
Youth with physical and mental disabilities who are dependent on others for care are another vulnerable group and may have special difficulty comprehending and communicating danger.53 “Robert,” a severely mentally disabled 15-year-old boy with an IQ of 32, was raped by another resident after corrections officers at the Leon Regional Juvenile Detention Center in Tallahassee, Florida, delegated the duties of bathing and changing Robert’s diaper to a 17-year-old sex offender.54 For these actions, the older boy was later convicted of one count of sexual battery on a victim with a mental defect.55 There are no national data on the prevalence of cognitive and emotional disorders among confined youth, but studies suggest rates are much higher than in the general population of U.S. youth.56 Disorders most commonly noted among confined youth in juvenile facilities include depression, attention deficit/hyperactivity disorder, learning disabilities, posttraumatic stress disorder, and developmental disabilities.57
Identifying and Protecting Vulnerable Youth
Without evidence-based information on risk factors for confined youth, juvenile facilities are at a disadvantage in identifying potential victims and perpetrators, yet they can be held liable for failing to separate vulnerable residents from those most likely to harm them.58 Judgments about placements are frequently made through informal procedures, which may be swayed by bias and are rarely consistent enough to be fair and effective.59 The Commission’s standard on obtaining information about residents of juvenile facilities requires a more stringent approach to screening. Until more research on vulnerability factors for confined youth is conducted, agency and facility staff should use available evidence and professional judgment to develop screening and information-gathering protocols that take into account the risk of sexual abuse in juvenile facilities, and they should develop procedures to keep residents safe without penalizing those who are vulnerable.
At a minimum, facility staff must attempt to gather information about the risk factors described above—both during intake and periodically throughout a youth’s confinement. A variety of sources can provide this information, including facility records, case files, conversations with residents, and court records. Judges often have wide, although by no means absolute, discretion to take into account many factors when making sentencing determinations.60 As a result, facility staff should look to judicial opinions, which may shed light on certain vulnerabilities or other relevant characteristics in the information-gathering process. Because addressing certain personal issues can be traumatic for youth, the standard limits questioning about sexual orientation, gender identity, prior sexual victimization, history of engaging in sexual abuse, and mental and physical health to medical and mental health practitioners. In addition to screening, facilities can take a simple step to protect youth from sexual abuse: encourage all residents during intake to tell staff if they fear being abused. This message, combined with affirmative statements about the facility’s commitment to safety and zero tolerance of sexual abuse, makes it more likely that vulnerable youth will seek protection when they need it—before an assault occurs.
The Commission’s standard on the placement of youth in juvenile facilities mandates that staff use all information about the risk of sexual abuse to determine safe housing, bed, program, education, and
work assignments. Any information that may indicate heightened vulnerability to sexual abuse, including those elements identified in the standard, must be taken into consideration in determining appropriate placements. The Commission strongly discourages the practice of segregating vulnerable residents because isolation may aggravate symptoms of mental illness and limit access to education, programming, and mental health services. Youth may be segregated as a last resort for short periods when less restrictive measures are inadequate to keep them and other residents safe.61
In cases of ongoing danger, the Commission suggests that facilities consider transferring vulnerable youth to other facilities better able to meet their needs. Because vulnerability factors, the mix of potential predators and victims, and other characteristics change over time, staff must reassess residents periodically and adjust placements when necessary to keep all residents safe from sexual abuse. If an incident of sexual abuse occurs and is discovered, staff must reassess placement decisions for the victim and, if the abuse was perpetrated by another resident, for the perpetrator as well.
Reducing sexual abuse requires creating conditions in which every incident is reported and triggers an immediate response. Just crossing that first hurdle can be a challenge, however.62 Many youth are reluctant to report abuse for understandable reasons. They must weigh the ramifications of disclosure, including shame, stigma, the risk that they won’t be believed, the possibility that they will be housed in isolation, and retaliation by perpetrators. Staff who sexually abuse youth may threaten to extend their period of confinement or move them to a more restrictive housing unit or even to a different facility if they report the abuse.63
Recognizing the developmental, emotional, and systemic barriers that discourage youth from reporting sexual abuse, the Commission’s standards require internal reporting procedures to be easy, private, and secure; teenagers and even younger children cannot be expected to follow complicated or impractical grievance procedures. Specifically, the Commission requires facility staff to accept reports from victims and third parties verbally or in writing, including anonymous reports. The standard on reporting also requires that agencies provide youth with at least one way to report sexual abuse to a person or entity not affiliated with the facility or agency.
Many confined youth will look to their parents or to another known and trusted adult in a time of crisis. For this reason, and because juveniles are unlikely to comprehend or appreciate the complex legal procedures involved in a claim of sexual abuse, the Commission requires facilities to provide residents with unimpeded access to their families, attorneys, or other legal representatives. Under the Commission’s standards, information about the facility’s grievance system and sexual abuse must be made available to parents and lawyers, who can help residents understand their rights and procedures within the facility.
Reforms designed to make it easier for youth to report sexual abuse must be grounded in education for residents on the nature of sexual abuse, the facility’s policy of zero tolerance of sexual abuse, procedures for reporting abuse, and the facility’s response to allegations. Because many youth fail to recognize certain coercive and harmful behaviors as “rape” or “abuse”—particularly if they come from backgrounds in which this conduct has occurred—juvenile facilities should work to improve sexual education programs and sexual abuse prevention curricula.
Educational materials and presentations for youth will be of little value, however, if they do not use age-appropriate language and concrete examples, especially when discussing how to report abuse. Given the range of ages in many facilities, a one-size-fits-all approach will not work. Presentations, materials, and follow-up contacts should be structured to match the emotional, cognitive, and sexual development of particular age groupings of children and teens and must reach youth who speak limited or no English, have limited reading skills, are visually impaired, or are deaf. Agencies must also implement appropriate technologies and procedures to ensure that youth with disabilities can report abuse and access medical and mental health services without relying on other residents to translate or relay information.
Training for staff is equally important. Staff often do not understand the distinctive nature of sexual abuse involving children and teens or its potential consequences. This kind of education must include training about the nature of sexual abuse, its effects on youth, and the unique dynamics of dealing with children and adolescents around sexual topics and reporting, coupled with training on the facility’s zero-tolerance policies and reporting and response procedures. Staff must know that they will be held accountable for their actions and omissions. When sexual abuse occurs, all staff—from line staff to leadership—have the responsibility to ensure that the incident is reported and addressed. In 2005, the Department of Justice found that numerous female staff in an Oklahoma juvenile facility had sexual relations with male youth and concluded that the State failed to provide adequate supervision and monitoring to protect youth from inappropriate sexual relationships with staff and other residents.64 In facilities such as these, the failure of administrators and management to adopt and enforce a zero-tolerance policy sends mixed messages to staff and confined youth about the acceptability of sexual abuse in that setting.
Studies of child sexual abuse survivors outside confinement settings have found that children and youth faced with interviews and formal investigative processes may become intimidated or demoralized; attempt to escape the painful aftereffects of abuse or the dangers of retaliation by denying that the incident ever occurred; and recant, change their reports, or refuse to cooperate with investigators.65 Risks for youth in confinement are even greater. To address these challenges, interviewers must be trained to communicate effectively and in a manner sensitive to the specific vulnerabilities and developmental capacities of young victims.66
In spite of efforts to educate youth and train staff, some victims will remain silent following an incident of sexual abuse. Although trauma, fear of retaliation, and limited knowledge of legal rights and procedures discourage reporting among adults, the impact of these factors on youth is even greater. Youth in confinement express serious doubts that their reports will be formally investigated and recount multiple incidents in which officers destroyed grievance forms and refused to follow through on investigations in an effort to protect themselves or their co-workers.67
The Commission’s standards mandate that administrative remedies be deemed exhausted no later than 90 days after a report of sexual abuse is made. State agencies must not dismiss complaints by youth who fail to file a report within a specific time period and should not impose complicated exhaustion requirements before youth can access the courts. Legal precedent supports this view. At least one court has found that the developmental stage of youth is integral to the question of whether a plaintiff has satisfied the administrative exhaustion requirement of the Prison Litigation Reform Act. As long as the State has fair notice of a complaint, juveniles’ “young age, their lack of experience with the criminal system, and their relatively short period of confinement entitle them to greater protection. . . .”68 When the victim of abuse seeks urgent, emergency intervention or injunctive relief from the court to prevent imminent harm, the State agency must deem the resident’s administrative remedies exhausted 48 hours after the report.
The Commission requires that any report of sexual abuse received in any form trigger an agency response and investigation. To be successful, investigators of sexual abuse in juvenile settings need special skills. To ensure that investigators have the knowledge and skills to work sensitively and effectively with child and teen victims of sexual assault, the Commission requires special training. Investigators should understand the developmental capacities and sexual development of children, build rapport with the youth in a safe and private space, pay attention to physical cues from the youth, ask open-ended questions that eventually shift to specific details, and remain nonjudgmental throughout the interview.69
Helping Young Victims Heal
Youth who are sexually abused in confinement and other justice settings are likely to experience serious and long-standing emotional and psychological consequences throughout adolescence and into adulthood.70 Because the experience of sexual abuse is severely damaging, it can increase tendencies toward criminality and substance abuse among youth in confinement.71 Other potential long-term effects include major and persistent depression and posttraumatic stress disorder. Like adult victims of sexual abuse, youth may experience significant problems with impulse control, flashbacks, dissociative episodes, anger, persistent distrust and withdrawal, loss of faith, hopelessness, despair, and a poor sense of self resulting in shame, guilt, and self-blame.72 A history of childhood sexual abuse is strongly correlated with higher rates of attempted suicide, alcohol dependence, nicotine dependence, social anxiety, and divorce.73 For those with a history of sexual abuse, victimization in confinement may recall past experiences and replicate prior traumas, exacerbating negative outcomes.74
Sensitivities about sexual development and body changes add to the damage that may occur as a result of sexual abuse. In 2000, two girls with histories of mental health problems were subjected to numerous invasive strip searches in juvenile detention facilities in Connecticut.75 Facility staff performed several of these searches without any reasonable suspicion that the girls had contraband or posed any other threat. The U.S. Court of Appeals for the Second Circuit, in its decision regarding the searches, quoted the Supreme Court’s view on the vulnerability of children: “‘youth. . .
is a. . . condition of life when a person may be most susceptible. . . to psychological damage.’”76 Because of this, the court reasoned that “children are especially susceptible to possible traumas from strip searches.”77 The court ultimately found that several of the searches were unconstitutional after balancing “the risks to the psychological health of the children from performing the searches and the risks to their well-being and to institutional safety from not performing the searches.”78
Studies suggest that justice-involved girls tend to have higher rates of major depression and anxiety disorders, including posttraumatic stress disorder and somatization, than their male counterparts.79 Adding to the complexity, girls are more likely than boys to enter the juvenile justice system with histories of physical and sexual abuse, which can lead to significant and long-lasting mental health problems. These may be compounded if sexual trauma reoccurs.80 Unfortunately, mental health and other services in many juvenile facilities are “generic, coeducational, and not gender-sensitive or trauma-informed.”81
Medical and mental health practitioners must be able to recognize the signs of sexual abuse and should understand and know how to respond to the developmental and psychological needs of young victims. They must also be trained in the provision of ongoing age-appropriate treatment and care. To ensure staff are prepared to meet these complex obligations, the Commission requires that all full- and part-time medical and mental health care practitioners receive special training.
Sexual abuse incidents occurring within a facility often leave victims without enough confidence in the environment or its staff to report the incident or seek help within the facility. To ensure that young victims receive the care and support they need, facilities must provide residents with access to emotional support from outside victim advocates as well, such as local, State, or national victim support groups, rape crisis organizations, or toll-free abuse hotlines. Perhaps the most effective way to provide access to these services is to establish relationships with community service organizations and transition services, thereby linking residents to the range of services available in the community.
Responding to Young Perpetrators
Youth who perpetrate sexual violence in juvenile facilities present a particularly complicated challenge for facility administrators, who must apply developmentally appropriate discipline or other interventions. Youthful perpetrators of sexual abuse may need treatment as much as, or more than, punishment. Studies have shown that youth who commit sexual offenses typically have a history of severe family problems, separation from parents, neglect, physical abuse, sexual abuse, social awkwardness or isolation, and academic or behavioral problems at school.82 In addition, developmental research suggests that adolescent immaturity and inexperience may limit a youth’s decision-making capacity, especially in highly stressful environments, and cause youth to make poor, shortsighted judgments.83 Successful treatment models address multiple aspects of a child’s life, including behavior modification, family relations, peer relations, and academic performance.84
When abuse perpetrated by a resident is discovered in juvenile justice settings, interventions and decisions about punishment must take into account the social, sexual, emotional, and cognitive development of the juvenile as well as any mental health problems that may have contributed to the abusive behavior. Accordingly, treatment, counseling, educational programs, disciplinary sanctions, and other interventions must ensure the safety of all residents and staff while working to rehabilitate the young perpetrator so that he or she can interact with others in a safe and constructive manner.
If a facility decides to impose disciplinary sanctions on a juvenile perpetrator, the discipline must be proportional to the offense committed and commensurate with the perpetrator’s disciplinary history. Discipline also should be consistent with that meted out to other residents for similar conduct and with similar disciplinary histories. Juvenile disciplinary sanctions should be fully integrated with screening and placement decisions to promote safety and security. Any act of sexual abuse by a juvenile perpetrator must trigger a reassessment of placement decisions to address the individual’s risk of being sexually abusive toward other residents. Disciplining residents with prolonged periods of isolation, however, is potentially very dangerous for the resident, and the Commission strongly discourages this practice.85 The facility also must ensure that the perpetrator understands his or her rights and responsibilities during the disciplinary process. These safeguards will promote fairness and legitimacy in the system of discipline and foster a sense of responsibility and accountability on the part of the perpetrator.
Discipline must also account for the stage of the youth’s psychosocial and sexual development. Adolescence is a time of sexual confusion and experimentation. This developmental reality should be kept in mind when determining interventions, supports, and sanctions.86
Confined with the Grown-Ups
Although the Juvenile Justice and Delinquency Prevention Act of 2002 prohibits the incarceration of juveniles with adults except in very limited circumstances, this protection does not apply to youth who are prosecuted as adults.87 Approximately 200,000 youth are tried as adults each year; in some States, there is no minimum age at which a youth can be tried as an adult.88 Between 1990 and 2004, the number of juveniles in adult jails increased 208 percent.89 Currently, children as young as 13 and 14 are housed in adult facilities.90 Data collected in 2006 show that, on any given day, almost 8,500 youth under the age of 18 are confined with adults in adult prisons and jails.91 Two-thirds are held in jails, and the others are incarcerated in State and Federal prisons.92
In terms of risk for sexual abuse while in confinement, youth incarcerated in adult prisons and jails are probably at the highest risk of all. For example, juveniles comprised less than 1 percent of jail inmates in 2005, yet they accounted for 21 percent of all victims of substantiated incidents of inmate-perpetrated sexual violence in jails that year.93 Although the risks appear somewhat lower, youth do not fare much better in State prisons. Youth accounted for less than 0.2 percent of all inmates under State correctional control, yet in 2005 they represented 0.9 percent of all victims of substantiated incidents of inmate-perpetrated sexual violence. To give the bigger picture, 7.7 percent of all victims of substantiated violence perpetrated by people confined in adult prisons and jails combined were under the age of 18 in 2005.94
Although only 20 percent of youth in juvenile facilities are confined for a violent offense, nearly 50 percent of adult prisoners are violent offenders sentenced for greater lengths of time than youth in juvenile facilities.95 The environment is especially difficult for juveniles to navigate safely because many adult facilities fail to provide juveniles with basic services, such as prison survival skills, family counseling, career training, and educational programming.96 Research consistently shows that youthful prisoners who lack the experience and knowledge to cope with the volatile, predatory environment common in prisons and jails are at greater risk for sexual abuse while housed there.97 Recent efforts have hinted at the extent of the problem by bringing to light the previously undocumented stories of young prisoners who were sexually victimized.98
Civil rights attorney Deborah LaBelle told the Commission that 80 percent of the 420 boys sentenced to life without parole in three States—Michigan, Illinois, and Missouri—reported that, within the first year of their sentence, they had been sexually assaulted by at least one adult male prisoner.99 She also told the Commission that girls as young as 14 years old were being housed along with adult women under the supervision of male staff and asserted that girls confined in an adult prison are 20 times more likely to be sexually assaulted by staff than by prisoners in the general population.100 Risks of negative effects following sexual assault, such as suicide, are compounded by the lack of special programming for juveniles in most State adult facilities.101
Confining youth with an adult and more experienced criminal population has very little deterrent value and has failed to improve public safety.102 In fact, a recent study found that youth transferred to the criminal justice system are more likely to reoffend.103 As long as youth remain in adult prisons and jails, facility staff and State administrators must recognize this group as an especially vulnerable population requiring additional protection. Accordingly, the Commission has designed a number of standards to protect vulnerable populations within adult facilities, including youth. Specifically, the Commission requires that, during intake into adult prisons and jails, agency staff screen prisoners for risk of victimization, including youthfulness in age or appearance, and use the information gathered to make appropriate housing, bed, work, education, and program assignments.
Because of the extreme risk of sexual victimization for youth in adult facilities, the Commission urges that individuals below the age of 18 be held separately from the general population. This may present difficulties for smaller facilities, where separating youth from adults might mean housing youth in an infirmary or in administrative segregation. Transferring such youth to facilities more suited to their needs should be considered; in any case, careful attention should be paid to ensure that youth have the support, education, and programming necessary for healthy development.
At Risk While Under Community Supervision
Youth are also vulnerable to sexual victimization while under juvenile justice supervision in the community. Nearly half (48 percent) of the more than 1.1 million youth who received some juvenile court sanction in 2005 were placed under the supervision of State, local, or county probation officers or counselors.104 These youth can be assigned to a wide range of community settings, such as small group homes, therapeutic foster care, therapeutic day centers, and day and evening reporting centers.105 Not much is known about the prevalence of sexual abuse among youth supervised in the community. Despite the lack of data, however, sexual abuse does occur.
In October 2005, a 50-year-old man who had served as a youth probation officer for 11 years with the Oregon Youth Authority (OYA) was sentenced to 80 years in prison for sexually abusing the boys in his care.106 Victims and their families complained to OYA officials for years about this officer, but they took no action and the man continued to supervise young boys.107 D.B., a 14-year-old mentally disabled boy with ADHD, fell under the officer’s supervision in 1994 after the boy was arrested for firing a cap gun in his front yard. The officer promised D.B.’s grandmother that “the boy would receive the best treatment the state had to offer.”108 She reluctantly gave up custody of D.B., and the boy was placed in Lakeside Shelter in Corvallis, Oregon, which conducts mental health evaluations.109 The grandmother became concerned that something was wrong when the officer “began to rub her grandson’s back, neck and shoulders ‘erotically’” during a meeting to plan his treatment.110 An investigation later revealed that the officer checked D.B. out of the shelter on several occasions, taking him to his home for hours at a time. When shelter officials recommended that D.B. be placed in a more secure facility, the probation officer intercepted the order and had him placed in a foster home in Portland instead, where a police affidavit later confirmed that the man was “a frequent visitor.”111 Although the boy’s grandmother wrote repeatedly to OYA officials reporting her suspicions of sexual abuse, D.B. was left in the foster home under the officer’s supervision for nearly a year.
While D.B.’s grandmother “fought unsuccessfully” to protect him, another developmentally disabled boy, A.M., was placed on the officer’s caseload.112 Although A.M. never said anything about sexual abuse while under the officer’s supervision, his aunt became suspicious when she found out that A.M. spent nights at the man’s home. The officer also tried to cut off communication between A.M. and his aunt. She too reported her concern to the authorities, but they told her that she was being “‘overly sensitive [and] that [the officer] was a good caseworker’. . . .”113 In 1998, the officer placed A.M. in the same foster home where D.B had been abused. When his aunt visited the home, she discovered that it had photos of naked men on the walls and several sexually explicit statues. She confronted the officer, then called his supervisor, who told her, “‘Officer M. knows what he’s doing, and we really don’t have another place for [A.M.].’” The boy remained under the officer’s supervision for 4 years, until he was sent to prison at age 18 for commission of an assault.
It wasn’t until the officer was finally arrested for the sexual abuse of minors in 2004 that A.M. began to describe the abuses he had suffered. His aunt stated that, “Everything you can imagine happening to a child happened to him” under the officer’s care.114 The probation officer was charged with the sexual abuse of five boys and more than 70 counts of sex crimes with minors. But reporting the abuse began to haunt A.M.; his aunt reported that his “mood turned dark and he was having trouble coping—afraid that if the trial became too public, he would be labeled a homosexual and a snitch.” Just 5 days before he was scheduled for release from prison in January 2005, A.M. hanged himself. Law enforcement officials said that “at least seven additional victims. . . [were] either unwilling or too emotionally unstable to testify.”
As with other corrections staff, the men and women who supervise youth in the community should be adequately supervised to ensure they do not engage in abuse. Even well-intentioned staff should be trained in how to maintain appropriate boundaries with the youth they supervise and must be clearly informed that any sexual misconduct will be punished. Similar to the Commission’s approach to youth in other correctional settings, the community corrections standards recognize that juveniles are less developed than adults and therefore are especially vulnerable to abuse. Accordingly, education about sexual abuse for youth under supervision must incorporate age-
appropriate information and methods.
Youth under community supervision may have more access to services and protections provided by the community than confined youth; they are protected by State or local vulnerable persons statutes, for example. To take advantage of existing protections, the Commission requires that agencies convey reports of sexual abuse made by youth to the entity responsible for enforcing these statutes and also outsource investigations regarding allegations of sexual abuse to this entity. Youth who do not feel comfortable reporting sexual abuse internally would then have this avenue, among others, for reporting abuse and accessing support services.
The Commission’s inquiry into the sexual abuse of youth in juvenile justice and adult corrections has revealed disturbing information about the prevalence, gravity, and consequences. Youth deserve, and are legally entitled to, care and protection; hope lies in the fact that necessary precautions and remedies are clear and rehabilitation remains a guiding principle in the field of juvenile justice.
Youth may pass through the system once or twice, never to return. Yet if they are sexually abused, they may live with lifelong consequences. Juvenile justice agencies thus have
an opportunity and a challenge: prevent sexual abuse now,
or risk long-term consequences for victims.
The officer repeatedly made sexually explicit statements
to L.C., said she didn’t seem like a virgin, and told her
about having sex with other girls at the facility.
Youth in juvenile detention span a wide range of ages
and developmental stages. In some States, youth as young as 6 and as old as 20 fall within juvenile court jurisdiction and can be housed, at least in theory, in the same facility. This mix is fraught with danger.
“Youth who enter the juvenile justice system often come to [the facility] from abusive and neglect[ful] families. In Michigan alone, twenty percent of the juvenile justice youth have been victims of child abuse and neglect.”
According to Jody Marksamer, Director for the Youth Project of the National Center for Lesbian Rights, juvenile facilities are often homophobic places that are emotionally, physically, and sexually unsafe for these youth.
Obtaining information about residents
During intake and periodically throughout a resident’s confinement, employees obtain and use information about each resident’s personal history and behavior to keep all residents safe and free from sexual abuse. At a minimum, employees attempt to ascertain information about prior sexual victimization or abusiveness; sexual orientation and gender identity; current charges and offense history; age; level of emotional and cognitive development; physical size/stature; mental illness or mental disabilities; intellectual/developmental disabilities; physical disabilities; and any other specific information about individual residents that may indicate heightened needs for supervision, additional safety precautions, or separation from certain other residents. This information may be ascertained through conversations with residents at intake and medical and mental health screenings; during classification assessments; and by reviewing court records, case files, facility behavioral records, and other relevant documentation from the residents’ files. Medical and mental health practitioners are the only staff permitted to talk with residents to gather information about their sexual orientation or gender identity, prior sexual victimization, history of engaging in sexual abuse, mental health status, and mental or physical disabilities. If the facility does not have medical or mental health practitioners available, residents are given an opportunity to discuss any safety concerns or sensitive issues privately with another employee.
“Robert,” a severely mentally disabled 15-year-old boy with an IQ of 32, was raped by another resident after corrections officers. . . delegated the duties of bathing and changing Robert’s diaper to a 17-year-old sex offender.
Placement of residents in housing, bed, program,
education, and work
Employees use all information obtained about the resident at intake and subsequently to make placement decisions for each resident on an individualized basis with the goal of keeping all residents safe and free from sexual abuse. When determining housing, bed, program, education and work assignments for residents, employees must take into account a resident’s age; the nature of his or her offense; any mental or physical disability or mental illness; any history of sexual victimization or engaging in sexual abuse; his or her level of emotional and cognitive development; his or her identification as lesbian, gay, bisexual, or transgender; and any other information obtained about the resident (AP-1). Residents may be isolated from others only as a last resort when less restrictive measures are inadequate to keep them and other residents safe, and then only until an alternative means of keeping all residents safe can be arranged.
The facility provides multiple internal ways for residents to report easily, privately, and securely sexual abuse, retaliation by other residents or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse. The facility also provides at least one way for residents to report the abuse to an outside public entity or office not affiliated with the agency that has agreed to receive reports and forward them to the facility head (RP-3). Staff accepts reports made verbally, in writing, anonymously, and from third parties and immediately puts into writing any verbal reports.
The facility receives and investigates all third-party reports of sexual abuse and refers all third-party reports of abuse to the designated State or local
services agency with the authority to conduct investigations into allegations of sexual abuse involving child victims (IN-1 and RP-4). At the conclusion of the investigation, the facility notifies in writing the third-party individual who reported the abuse and the resident named in the third-party report of the outcome of the investigation. The facility distributes information on how to report sexual abuse on behalf of a resident to residents’ parents or legal guardians, attorneys, and the public.
In 2005, the Department of Justice found that
numerous female staff in an Oklahoma juvenile facility
had sexual relations with male youth and concluded that
the State failed to provide adequate supervision and monitoring to protect youth.
Resident access to outside support services and legal representation
In addition to providing on-site mental health care services, the facility provides residents with access to outside victim advocates for emotional support services related to sexual abuse. The facility provides such access by giving residents the current mailing addresses and telephone numbers, including toll-free hotline numbers, of local, State, and/or national victim advocacy or rape crisis organizations and enabling reasonable communication between residents and these organizations. The facility ensures that communication with such advocates is private, to the extent allowable by Federal, State, and local law. The facility informs residents, prior to giving them access, of the extent to which such communications will be private, confidential, and/or privileged. The facility also provides residents with unimpeded access to their attorney or other legal representation and their families.
During the intake process, staff informs residents of the agency’s zero-tolerance policy regarding sexual abuse and how to report incidents or suspicions of sexual abuse in an age-appropriate fashion. Within a reasonably brief period of time following the intake process, the agency provides comprehensive, age-appropriate education to residents regarding their right to be free from sexual abuse and to be free from retaliation for reporting abuse, the dynamics of sexual abuse in confinement, the common reactions of sexual abuse victims, and agency sexual abuse response policies and procedures. Current residents are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all residents to ensure that they know the agency’s most current sexual abuse policies and procedures. The agency provides resident education in formats accessible to all residents, including those who are LEP, deaf, visually impaired, or otherwise disabled as well as inmates who have limited reading skills. The agency maintains written documentation of resident participation in these education sessions.
Accommodating residents with special needs
The agency ensures that residents who are limited English proficient (LEP), deaf, or disabled are able to report sexual abuse to staff directly, through interpretive technology, or through non-resident interpreters. Accommodations are made to convey
all written information about sexual abuse policies, including how to report sexual abuse, verbally to residents who have limited reading skills or who are visually impaired.
The agency trains all employees
to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and under relevant Federal, State, and local law. The agency trains
all employees to communicate effectively and professionally with all residents. Additionally, the agency trains all employees on a resident’s right to be free from sexual abuse, the right of residents and employees to be free from retaliation for reporting sexual abuse, the dynamics of sexual abuse in confinement, and the common reactions of sexual abuse victims. Current employees are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all employees to ensure that they know the agency’s most current sexual abuse policies and procedures. The agency maintains written documentation showing employee signatures verifying that employees understand the training they have received.
In addition to the general training provided to all employees (TR-1), the agency ensures that agency investigators conducting sexual abuse investigations have received comprehensive and up-to-date training in conducting such investigations in confinement settings. Specialized training must include techniques for interviewing young sexual abuse victims, proper use of Miranda- and Garrity-type warnings, sexual abuse evidence collection in confinement settings, and the criteria and evidence required to substantiate a case for administrative action or prosecution referral. The agency maintains written documentation that
investigators have completed the required specialized training in conducting sexual abuse investigations.
Specialized training: Medical and mental health care
The agency ensures that all full- and part-time medical and mental health care practitioners working in its facilities have been trained in how to detect and assess signs of sexual abuse and that all medical practitioners are trained in how to preserve physical evidence of sexual abuse. All medical and mental health care practitioners must be trained in how to respond effectively and professionally to young victims of sexual abuse and how and to whom to report allegations or suspicions of sexual abuse. The agency maintains documentation that medical and mental health practitioners have received this specialized training.
Youthful perpetrators of sexual abuse may need treatment
as much as, or more than, punishment.
Exhaustion of administrative remedies
Under agency policy, a resident has exhausted his or her administrative remedies with regard to a claim of sexual abuse either (1) when the agency makes a final decision on the merits of the report of abuse (regardless of whether the report was made by the resident, made by a third party, or forwarded from an outside official or office) or (2) when 90 days have passed since the report was made, whichever occurs sooner. A report of sexual abuse triggers the 90-day exhaustion period regardless of the length of time that has passed between the abuse and the report. A resident seeking immediate protection from imminent sexual abuse will be deemed to have exhausted his or her administrative remedies 48 hours after notifying any agency staff member of his or her need for protection.
Interventions for residents who engage in sexual abuse
Residents receive appropriate interventions if they engage in resident-on-resident sexual abuse. Decisions regarding which types of interventions to use in particular cases, including treatment, counseling, educational programs, or disciplinary sanctions, are made with the goal of promoting improved behavior by the resident and ensuring the safety of other residents and staff. When imposing disciplinary sanctions in lieu of or in addition to other interventions, the facility informs residents of their rights and responsibilities during the disciplinary process, including how to appeal sanctions, and only imposes sanctions commensurate with the type of violation committed and the resident’s disciplinary history. Intervention decisions must take into account the social, sexual, emotional, and cognitive development of the resident and the resident’s mental health status.
Civil rights attorney Deborah LaBelle told the Commission that 80 percent of the 420 boys sentenced to life without parole in three States—Michigan, Illinois, and Missouri—reported that, within the first year of their sentence, they had been sexually assaulted by at least one adult male prisoner.
“Everything you can imagine happening to a child
happened to him” under the officer’s care. The probation officer was charged with the sexual abuse of five boys
and more than 70 counts of sex crimes with minors.
FINDING: Individuals under correctional supervision in the community, who outnumber prisoners by more than
two to one, are at risk of sexual abuse.
The nature and consequences of
the abuse are no less severe, and
it jeopardizes the likelihood of their successful reentry.
The Shea Farm Halfway House in Concord, New Hampshire, is a minimum-security facility for women transitioning back to the community after being incarcerated in State prison. In 2002, an officer who had been accused of sexual harassment against a woman corrections officer at another facility was transferred to become the night supervisor at Shea Farm. In this position, he had a significant amount of power over the approximately 45 women living there. “He had the authority to lower their security classification, approve or limit overnight leave requests, telephone privileges, and/or visits with family members, and essentially, he had the ability to write the women up for disciplinary infractions and ‘send them back behind bars,’” Sandra Matheson, Director of the State Office of Victim/Witness Assistance at the New Hampshire Attorney General’s Office, told the Commission.1 As Matheson and others would later learn, he used this power to repeatedly sexually abuse and violently assault residents. According to Matheson, he told the women that nobody would believe them, that he was a good friend of the Director of Community Corrections, and that if the Director did not believe a corrections officer who had accused him of acting inappropriately, the Director certainly would not believe them.2
Despite these warnings, in June 2005, one woman came forward to report the abuse. After a lengthy State police investigation, the supervisor was indicted on 54 charges involving 12 different women in the halfway house. The charges included multiple counts of violent sexual assault; vaginal, oral, and anal rape; and punching and choking the women in his care.
As Kimberly Hendricks, PREA Coordinator for the Oregon Department of Corrections, observed, “PREA is not just about prisons.”3 Individuals under community supervision are also at risk of sexual abuse. By the end of 2007, there were more than 5.1 million adults under supervision in the community, either on probation or parole.4 This figure translates to about one out of every 45 adults in the United States, and the numbers are growing.5 During 2007, the community supervision population expanded by more than 100,000 people.6 Seventy percent of the adult corrections population is now under some form of community corrections supervision.7 As both Federal and State governments attempt to reduce incarceration costs in the face of looming deficits, the number of individuals under some form of community supervision—before, after, or in lieu of confinement—is likely to rise. With this expected increase comes a greater burden to ensure that these women, men, and children are protected from sexual abuse.
Leaders in community corrections have already undertaken promising efforts to address the problem of sexual abuse. For nearly a decade, the National Institute of Corrections (NIC) has provided information, training, and technical assistance to the field on staff sexual misconduct.8 For example, in 2005, NIC convened a town hall meeting at the American Probation and Parole Association National Training Conference and held a meeting of Statewide Probation and Parole Network executives in 2008. Community corrections professionals from around the country discussed implications of PREA for their work and outlined a systematic approach for dealing with sexual abuse in community corrections settings.9 As this report goes to press, the American Probation and Parole Association, in conjunction with the International Community Corrections Association and the Pretrial Justice Institute, is developing a handbook for frontline
community corrections staff and supervisors on preventing and responding to sexual abuse.10
In addition to standards governing secure correctional settings, the Commission has developed a full set of standards for community corrections. Standards addressed here emphasize aspects of community corrections that distinguish it from traditional custodial settings. This chapter discusses the wide range of practices known collectively as community corrections; dynamics and circumstances of supervising people in the community that increase the risk of sexual abuse by staff or by other supervisees; and reasons why efforts to prevent, detect, and respond to sexual abuse have taken shape more gradually in this segment of corrections.
Many and Varied
Community corrections is an umbrella term encompassing a diverse array of agencies, facilities, and supervision structures on the Federal, State, and local levels. The Commission’s standards define community corrections as the “supervision of individuals, whether adults or juveniles, in a community setting as a condition of incarceration, pretrial release, probation, parole, or post-release supervision.”11 Supervision can occur in halfway houses like Shea Farm, prerelease centers, treatment facilities, and other places where individuals reside pursuant to a court order or condition of supervision for purposes of confinement, care, and/or treatment. These facilities may be owned by public, private, or nonprofit agencies.
Supervision provided in a community-based residential facility is similar to what may occur in a prison, jail, or juvenile facility, but there are also significant differences. Residents in community corrections facilities usually are allowed to work, attend school, participate in treatment and other support programs in the community, and receive medical care in the community. Consequently, their supervision extends beyond the walls of a facility. Thus, they have greater freedom than individuals confined in prisons, jails, or secure juvenile facilities.
Nonresidential supervision is even more diverse and less structured. It can include probation, parole, pretrial supervision, court-mandated substance abuse treatment, court diversionary programs, day-reporting centers, community service programs, probation before judgment, furloughs, electronic monitoring, and home detention. Individuals generally live in their own homes and have an even greater degree of freedom, as long as they abide by the conditions of their release agreement. They may report to a community corrections officer to update their status or for drug testing, or an officer may visit them at their home or workplace. These meetings may take place at predetermined times or randomly, and they can occur at any hour, day or night.
There is also great variety in the number and type of agencies responsible for providing residential and nonresidential supervision in the community. Responsibility for community corrections may reside with the judiciary, the executive branch, departments of corrections, or some combination of these or other government entities.12 In the Federal system, courts—specifically Federal judges—are responsible for supervising individuals in the community. Each State varies in the way community corrections is organized and operated. A State’s department of corrections may control community supervision, or supervision may be decentralized, with authority over community corrections located at the county or municipal level.13
In some States, a separate statewide agency oversees community corrections; in other States, authority resides with the State in some localities, whereas other localities administer their own system.14 In addition, government entities often contract with for-profit and nonprofit organizations to operate residential facilities, conduct nonresidential supervision, and provide programming.15 The mix of entities involved in community corrections in a particular jurisdiction, and the wide range of operational models around the country, make it uniquely challenging to develop and implement regulations to protect individuals from sexual abuse.
Increasing reliance on contractors to provide direct services will likely accompany the rapid growth of community corrections.16 Contractors are often the most cost-effective way to provide a wide variety of services, especially over a large geographic area.17 Governments contract with other public agencies, nonprofit organizations, and private corporations to provide services. Outsourcing carries the risk, however, that contractors will fail to adhere to the agency’s policies and meet the same standards. This is particularly troubling when the policies concern the safety of individuals under supervision.
Community corrections agencies are accountable for sexual abuse incidents, regardless of whether the circumstances in which the abuse occurred were under the direct control of the agency or a separate organization working under contract with the agency.18 Community corrections authorities should make special provisions so that people under their jurisdiction who are supervised by others remain safe from sexual abuse. The Commission’s standards mandate that community corrections agencies must make certain that any public or private entities contracted to provide residential housing or supervision are committed to eliminating sexual abuse and adhere to the community corrections agency’s policies and procedures as well as the standards for responding to sexual abuse incidents. They must also ensure that contract entities and their staff are trained about sexual abuse and their roles in implementing the agency’s policies and procedures. Community corrections agencies must contract only with organizations committed to eliminating sexual abuse. Only in emergency situations, after failing to find an organization that meets the Commission’s standards, can the agency
use another organization.
Despite the increasingly high number of people under some form of community supervision, there is a lack of research on this population.19 Although the Bureau of Justice Statistics now conducts comprehensive national surveys of people confined in prisons, jails, and juvenile facilities to assess rates of sexual abuse, no similar survey of people under supervision in the community has been conducted. This leaves a critical gap in knowledge about the prevalence of sexual abuse, both in residential and nonresidential settings.
The Commission’s standards require community corrections agencies to regularly and systematically collect data on staff sexual abuse as well as abuse that occurs between persons under supervision in the community. Although improving administrative data does not negate the need for surveys and other research, it will increase knowledge about prevalence of sexual abuse in community corrections settings. The data will also help community corrections agencies develop a more complete understanding of the circumstances under which sexual abuse occurs; risk factors associated with victimization and perpetration; and how sexual abuse may relate to community reintegration, recidivism, and other issues. Using this information, community corrections agencies can then develop and implement informed policies and procedures to prevent sexual abuse.
Community corrections agencies also have an opportunity to increase understanding of the prevalence of sexual abuse in custody by
collecting data on reports of prior sexual abuse that occurred while individuals were confined in a prison, jail, or a juvenile residential facility. Although some victims of sexual abuse in secure facilities report the abuse while still incarcerated, others do not disclose their experience until after they are released.20 Collecting these data and reporting back to the facilities where the abuse occurred will help administrators of those facilities maintain more accurate records of sexual abuse and will also provide insights on reasons people choose not to report abuse until they are released. With this information, correctional facilities can begin to address gaps in reporting structures and data collection and, most importantly, the safety concerns of victims who delay reporting until after they are released.
Same Rights and Protections
As in other correctional settings, courts have found that sexual abuse in community corrections violates the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment.21 As a result, community corrections agencies, like prisons and jails, have a special responsibility to protect the people they supervise.
When determining liability, courts also have determined that the authority staff have over the individuals they monitor makes a truly consensual sexual relationship impossible.22 Courts will look closely at an agency’s efforts to prevent sexual abuse, including staff training, reporting policies, and how the agency investigates allegations, sanctions perpetrators, and responds to victims.23 Finally, courts will look to make sure that community corrections agencies protect anyone who reports abuse from retaliation.24
Judicial decisions have also expanded protection of individuals in community corrections by holding agencies responsible for the actions of anyone in a supervisory position.25 For example, in Smith v. Cochran, Pamela
Smith was in jail but on a work release program and assigned to the Department of Public Safety (DPS). While working there, Smith’s supervisor on the job sexually assaulted her.26 After her release, Smith filed a lawsuit, alleging an Eighth Amendment violation. Although the DPS supervisor claimed that, because they were co-workers, the Eighth Amendment did not apply, the court ruled that “[i]mportant penological responsibilities were delegated to him as an employee of DPS” and that individuals “acting under that delegated authority also bore the duty under the Eighth Amendment to refrain from using excessive force against prisoners.”27
Gaps in legal protection under the law remain, however. Although 42 States and the District of Columbia specifically prohibit sexual contact or abuse between community corrections staff and individuals they monitor, many limit coverage to staff with “supervisory or disciplinary authority.”28 This definition overlooks the possibility of a community corrections staff member who does not directly supervise a parolee but who can still influence that person’s community corrections status. For example, a nonsupervisory staff member may retaliate against someone who resists sexual advances by persuading their supervisor to change the parolee’s status or by reporting false parole violations. A parolee might be coerced into sexual relations with a community corrections officer if threatened with the possibility of losing parole or probation status.
Only 25 States, the District of Columbia, and the Federal Government have statutes explicitly stating that consent is not a defense to allegations of staff sexual misconduct.29 In Marion County, Illinois, a male community corrections supervisor was jailed for an alleged relationship with a former prisoner in home detention. The officer was charged with three felony counts of sexual misconduct for engaging in a relationship with a woman he was monitoring on home detention. According to the Marion County prosecutor, the relationship was “consensual” but “completely
Even when State laws are explicit, some agencies have taken the step of instituting policies stating that staff are not permitted to engage in sexual relationships with any individual under the agency’s supervision.31 In Prince William County, Virginia, two women officers were arrested for having sexual relations with a man on house arrest.32 In this case, it was unclear if either woman had actual supervisory authority over the man. However, according to State law and department policy, they were deemed to have supervisory authority by nature of their employment.33
A Complex Relationship
Although an individual confined in a locked correctional facility obviously cannot flee a potential abuser, the relative mobility of someone under supervision in the community is no guarantee of safety. Less structured environments and highly personal modes of supervision carry unique risks. Individuals under community supervision may experience sexual abuse at the hands of other supervisees, but the dynamics of community corrections may make them more vulnerable to staff sexual abuse.
In both residential and nonresidential community supervision, staff have virtually unlimited access to individuals, sometimes in private and intimate settings. Barbara Broderick, Chief Probation Officer for the Maricopa County Adult Probation and Parole Department in Arizona, described the risks to the Commission, noting that “staff contact clients in their homes, at their places of business, at community offices, at counseling offices and educational programs, etc.”34 In Ramsey County, Minnesota, for example, a male community corrections officer, visiting a former prisoner’s apartment to discuss her failure in a drug treatment program, instead requested and had sex with her.35 Broderick also noted that because community corrections staff work with significantly less direct supervision than their counterparts in secure correctional facilities, it is much easier for them to conceal sexual abuses, “making the task of detecting and responding to abuse all the more difficult.”36
Thomas Beauclair, Deputy Director of NIC, made similar points in his testimony to the Commission. “Community corrections workers generally work autonomously and have large caseloads. . . . [M]uch of their work allows significant discretion and is done outside normal office parameters and away from supervisors and peers. . . . [B]y the very nature of their work, staff and offenders can be put in difficult situations.”37
The different roles staff are called upon to play also present risks. Staff not only monitor and try to control the behavior of individuals they supervise, they also aim to facilitate behavior change.38 They operate as enforcement officers in the interest of public safety and also function as counselors and social workers, helping with job preparation, determining appropriate living environments, recommending treatment programs, and providing moral support. Drawing and maintaining boundaries is a challenge even for staff with the best intentions.39 The ambiguity of the supervisor’s role may be especially pronounced in smaller communities, where staff are already familiar with some of the individuals they supervise, perhaps from school or previous employment, and also know and interact with their families. These connections may influence staff to relax the professional boundaries their role requires.40
An individual’s conditional release status gives supervising officers significant leverage, which can also be used to facilitate sexual abuse. As Barbara Broderick pointed out, “the issue of intimidation or retaliation may be [even] greater when the abuse occurs outside of an institutional setting.”41 Staff may explicitly or implicitly threaten to revoke an offender’s community status and return them to prison or jail by falsely reporting that the offender has not complied with the terms and conditions of their release. Such threats carry great weight because individuals under supervision in the community are typically desperate to avoid being incarcerated. Unlike in a prison or jail setting, where other staff or prisoners may be in a position to confirm or deny that the person violated a regulation, in the community corrections context, there may be no one to challenge the supervisor’s version of events other than the individual in question. This power imbalance makes people under community corrections supervision extremely vulnerable to staff who abuse their authority.42
Clear policies rooted in an ethic of zero tolerance of sexual abuse coupled with good training can mitigate these dangers by giving staff the direction, knowledge, and skills they need to maintain appropriate relationships with the individuals they supervise.43
Of course, preventing sexual abuse begins with hiring the right staff. Community corrections agencies must be committed to thoroughly vetting all job applicants by conducting criminal background checks, making diligent efforts to consult prior employers, and directly questioning applicants about any previous misconduct. Agencies should also elicit applicants’ views about maintaining appropriate relationships with the
individuals they supervise. The Commission’s standards expressly prohibit hiring or promoting anyone with a history of sexual abuse.
Screening and Responding
Having trained staff screen individuals during intake is essential to preventing sexual abuse in residential community corrections settings. The Commission’s standards require staff to use a written screening instrument to identify individuals who may be potential victims or perpetrators of sexual abuse. Effective and systematic screenings are critical to preventing future sexual abuse and providing
appropriate support services to victims. Research on the most effective methods for screening sexual abusers and victims in community corrections is evolving. However, it is clear that screening strategies must address the full range of factors affecting the conduct of individuals under supervision.44 Criteria and risk factors may differ, depending on age, developmental stage, gender identity, and whether the individual is male or female. The Commission’s standards require screening at intake and recommend reviews on a periodic basis, depending on the length of involvement of the person under residential supervision. The Commission also urges staff to review the screening results within 60 days of the initial screening and every 90 days thereafter. Screening strategies and assessment instruments should also be reviewed over time for effectiveness and suitability. The Commission encourages community corrections officials to consult emerging research to ensure the most up-to-date screening instruments are used in the community corrections arena.
The use of objective risk and needs assessments to develop treatment and other programming plans is the core of any good community corrections program.45 Results from screenings and assessments enable community corrections agencies to effectively assign people to programs that will provide the most benefit while reducing risks to others and the community at large.46 Information from secure facilities about sexual victimization or aggression involving former prisoners also substantially improves the screening and placement process. Jeff Renzi, Associate Director of Planning and Research at the Rhode Island Department of Corrections, spoke about the importance of alerting community corrections staff to known victims and perpetrators of sexual abuse in confinement when he said, “No one is walking out tomorrow without probation and parole knowing who is a victim and a perpetrator.”47 Upon learning of sexual victimization or abusiveness during initial screenings or from staff at secure facilities, community corrections officers must consider that information when making decisions about work assignments, treatment or interventions, appropriate housing, and the type of supervision that may be necessary to ensure safety and successful reintegration.
Duty to Report
The silence surrounding sexual abuse may be even greater in the field of community corrections than in some prisons, jails, lockups, and juvenile facilities, especially in the arena of nonresidential supervision. Staff may mistakenly believe that consensual
relationships with individuals under their supervision are permissible, and individuals under supervision are often afraid to resist or report staff who perpetrate sexual misconduct.
Staff who work in the field of community corrections have a duty to report any knowledge or suspicion of sexual abuse involving individuals under supervision. This obligation, according to the Commission’s standards, is no different than what is required of any other corrections staff member. All corrections staff must receive training on their agency’s reporting policies and protocols to fulfill their responsibilities.48 In addition to developing clear zero-tolerance policies and training staff in their implementation, administrators should consistently discipline staff when they fail to uphold their duty to report.
If individuals in community corrections report sexual abuse that occurred while they were incarcerated, community corrections staff may find themselves serving as “first responders” to abuse incidents that are long past. In these situations, the community corrections agency must report back to the facility where the incident occurred or to the agency overseeing that facility. Correctional facilities have an obligation under the Commission’s standards to thoroughly investigate every report of sexual abuse, regardless of whether or not the victim is still incarcerated in the facility where the incident took place. (See Chapter 5 for detailed discussion of reporting and investigation.)
Although this requirement seems simple enough, Jacqueline Kotkin,
Field Services Executive for the Vermont Department of Corrections, told the Commission, “Because probation and parole may be organizationally and geographically removed from prison, jail and other corrections residential settings, reporting allegations of prior institutional abuse often proves challenging.”49 Kotkin stressed the importance of developing “clear, understandable procedures” for reporting allegations in accordance with department policies and State laws.50 For example, in North Carolina, the Division of Community Corrections (part of the Department of Corrections) has a policy requiring any report of sexual abuse involving an employee or agent of the Department of Corrections be forwarded to the head of the department.51 This kind of clear directive enables community corrections staff to know what to do when they receive reports of past sexual abuse. Although such procedures are essential everywhere, they are easier to develop in States such as North Carolina with a unified correctional system.52 In decentralized systems, it may be useful to designate a particular entity that could act as a clearinghouse for this type of information, ensuring that administrators receive information about sexual abuse that occurred in a facility they manage.
A Real Communal Effort
Responding effectively to an incident of sexual abuse requires cooperation and coordination among a range of professionals: agency staff who will be first responders, forensic specialists, mental health professionals, victim advocates, investigators, prosecutors, and agency leadership. Because community corrections operates in the community, rather than apart from it, these agencies may have access to skilled professionals with experience in responding to sexual abuse. In her testimony before the Commission, Anadora Moss, President of The Moss Group, Inc., stressed the importance of collaborating with community partners in the context of community corrections.
“In partnering with groups such as faith based organizations, sexual assault experts, counseling professionals, and law enforcement, the community corrections universe must wrap these partnerships around the mission of reentry. . . for all clients and offenders suffering from sexual victimization.”53
Coordinated sexual assault response teams (SARTs) are widely recognized as an optimal way to respond to incidents of sexual abuse. SARTs exist in many communities and may be available to partner with local correctional agencies. Where SARTs do not exist, the Commission’s standards require community corrections agencies to ensure multidisciplinary collaboration by some other means. The U.S. Department of Justice’s “A National Protocol for Sexual Assault Medical Forensic Examinations: Adults/Adolescents” is the recommended resource.54 (Appendix A of the protocol provides methods to customize sexual abuse investigations for diverse community settings.55)
Establishing formal partnerships with victim advocates and other support services in the community is essential. Individuals under community supervision may not be comfortable reporting recent or past sexual abuse to a staff member of the agency. Although some individuals have constructive relationships with their supervising officers, that is not always the case. When staff perpetrate the abuse, it may be difficult or impossible for individuals to be confident that the agency will believe abuse allegations and protect them from retaliation. Therefore, the Commission’s standards require that individuals under supervision have the option of reporting abuse to an outside agency and are able to request confidentiality, if they prefer.
Additionally, community-based advocates are likely to be the only source of professional counseling for victims of sexual abuse. As discussed in detail in Chapter 6, medical and mental health effects of sexual abuse may be severe and long-lasting. The trauma of recent or past sexual abuse may hinder a person’s ability to integrate into the community, restore connections with family or other intimates, refrain from abuse of alcohol or other drugs, and find and maintain stable employment. Without the necessary support, victims may find themselves violating conditions of supervision and perhaps facing incarceration as a result.56 In the most extreme cases, individuals who were sexually abused while incarcerated may act out their anger by perpetrating physical or sexual violence when they return to the community.57 For all these reasons, community corrections agencies have an obligation to ensure that victims of sexual abuse receive the ongoing mental health care they need to heal. Fulfilling that requirement depends on forging strong and formal partnerships with community-based victim advocates and other appropriate services providers.
The Commission’s standards require community corrections agencies to attempt to establish memoranda of understanding (MOUs) with appropriate community-based agencies to receive reports of sexual abuse and immediately forward that information to the agency, unless the person had requested confidentiality, and to provide emotional support and other specialized services to victims. If partnerships with local service providers are not possible, victims must be given information about how to contact regional or national groups that can meet these needs.
The work of investigating and prosecuting sexual abuse also is challenging, requiring cooperation among corrections administrators, investigators, medical and mental health care providers, victim
advocates, prosecutors, and others. Very few community corrections agencies employ their own investigative staff. Smaller agencies simply cannot afford to hire investigators, and even some larger agencies do not have legal authority to conduct criminal investigations.58 As a result, community corrections agencies typically depend on local police, State bureaus of criminal investigation, or some other law enforcement entity to investigate allegations of sexual abuse.
Reliance on outside law enforcement entities to conduct these investigations creates a need for agreement on the roles and responsibilities of outside investigators as well as the agency’s expectations in terms of timeliness, gathering and sharing evidence, informing victims, and other key issues. The Commission’s standards mandate that community corrections agencies attempt to establish MOUs or other formal agreements with outside law enforcement agencies. For some community corrections agencies, forging such agreements is new terrain. Even when agencies rely on external investigators, however, community corrections staff will be the first responders and, therefore, need clear direction and training on how to secure a crime scene and preserve evidence.
Formal agreements with prosecuting authorities are just as important; diligent attempts to establish MOUs with prosecutors are also
required under the Commission’s standards. One of the most effective ways to demonstrate zero tolerance is to prosecute perpetrators to the full extent permitted by law. In some jurisdictions, however, prosecutors do not prioritize these cases and may be even less aware and informed about sexual abuse in community corrections than about abuse that occurs in prisons, jails, and juvenile facilities.59 In the process of forging an MOU, community corrections officials have opportunities to educate prosecutors about the reality and repercussions of sexual abuse in this context. They also can learn from prosecutors about how to improve investigations so that more perpetrators are held accountable.
The Director of Probation and Parole for Louisiana, Eugenie Powers, told the Commission, “To the extent that offenders are treated humanely while they are detained or incarcerated, it is expected they will integrate more successfully into the community.”60 Community corrections has the opportunity to strengthen the success of this transition by protecting men, women, and youth from sexual abuse while they engage in the difficult work of establishing productive, law-abiding lives.
As both Federal and State governments attempt
to reduce incarceration costs in the face of looming deficits,
the number of individuals under some form of community supervision—before, after, or in lieu of confinement—
is likely to rise. With this expected increase comes
a greater burden to ensure that these women, men,
and children are protected from sexual abuse.
The mix of entities involved in community corrections
in a particular jurisdiction, and the wide range of
operational models around the country,
make it uniquely challenging to
develop and implement regulations to
protect individuals from sexual abuse.
Contracting to house or supervise defendants/
offenders under community
If public community corrections agencies contract for housing or supervision of their defendants/offenders, they do so only with private agencies or other entities, including nonprofit or other government agencies, committed to eliminating sexual abuse, as evidenced by their adoption of and compliance with the PREA standards. Any new contracts or contract renewals include the entity’s obligation to adopt and comply with the PREA standards and specify that the public agency will monitor the entity’s compliance with these standards as part of its monitoring of the entity’s performance. Only in emergency circumstances, in which all reasonable attempts to find a private agency or other entity in compliance with the PREA standards have failed, should a contract be entered into with an entity that fails to comply with these standards. The public agency must document these efforts.
Although some victims of sexual abuse in secure
facilities report the abuse while still incarcerated,
others do not disclose their experience until after
they are released.
The agency or facility collects accurate, uniform data for every reported incident of sexual abuse using a standardized instrument and set of definitions. The agency aggregates the incident-based sexual abuse data at least annually. The incident-based data collected includes, at a minimum, the data necessary to answer all questions from the most recent version of the BJS Survey on Sexual Violence. Data are obtained from multiple sources, including reports, investigation files, and sexual abuse incident reviews. The agency also obtains incident-based and aggregated data from every community corrections facility with which it contracts.
As in other correctional settings, courts have found
that sexual abuse in community corrections violates
the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment. As a result, community corrections agencies, like prisons and jails, have a special
responsibility to protect the people they supervise.
The agency or facility trains all employees to be able to fulfill their responsibilities under agency or facility sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and under relevant Federal, State, and local law. The agency or facility trains all employees to communicate effectively and professionally with all defendants/offenders. Additionally, the agency or facility trains all employees on a defendant/offender’s right to be free from sexual abuse, the right of defendants/offenders and employees to be free from retaliation for reporting sexual abuse, the dynamics of sexual abuse, and the common reactions of sexual abuse victims. Current employees are educated as soon as possible following the agency’s or facility’s adoption of the PREA standards, and the agency or facility provides periodic refresher information to all employees to ensure that they know the agency’s or facility’s most current sexual abuse policies and procedures. The agency or facility maintains written documentation showing employee signatures verifying that employees understand the training they have received.
Less structured environments and highly personal modes
of supervision carry unique risks. Individuals under community supervision may experience sexual abuse
at the hands of other supervisees, but the dynamics of community corrections may make them more vulnerable
to staff sexual abuse.
Hiring and promotion
The agency or facility does not hire or promote anyone who has engaged in sexual abuse in an institutional setting or who has engaged in sexual activity in the community facilitated by force, the threat of force, or coercion. Consistent with Federal, State, and local law, the agency or facility makes its best effort to contact all prior institutional employers for information on substantiated allegations of sexual abuse and must run criminal background checks for all applicants and employees being considered for promotion and examine and carefully weigh any history of criminal activity at work or in the community, including convictions or adjudications for domestic violence, stalking, and sex offenses. The agency or facility also asks all applicants and employees directly about previous misconduct during interviews and reviews.
Screening for risk of
All defendants/offenders are screened during intake to assess
their risk of being sexually abused by other defendants/offenders
or sexually abusive toward other defendants/offenders. Employees must review information received with the defendant/offender as
well as discussions with the
defendant/offender. Employees must conduct this screening using a written screening instrument tailored to the gender of the population being screened. Although additional factors may be considered, particularly to account for emerging research and the agency’s or facility’s own data
analysis, screening instruments must contain the criteria described below. For defendants/
offenders under the age of 18 or applicable age of majority within that jurisdiction, screening must be conducted by medical or mental health practitioners. If the facility does not have medical or mental health practitioners available, these young defendants/offenders are given an opportunity to participate in screenings in private. All screening instruments must be made available to the public upon request.
At a minimum, employees use the following criteria to screen male defendants/offenders for risk of victimization: mental or physical disability, young age, slight build, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), prior sexual victimization, and the defendant/offender’s own perception of vulnerability.
(continued on adjoining page)
Screening for risk of
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At a minimum, employees use the following criteria to screen male defendants/offenders for risk of being sexually abusive: prior acts of sexual abuse and prior convictions for violent offenses.
At a minimum, employees use the following criteria to screen female defendants/offenders for risk of sexual victimization: prior sexual victimization and the defendant/offender’s own perception of vulnerability.
At a minimum, employees use the following criteria to screen female defendants/offenders for risk of being sexually abusive: prior acts of
Use of screening information
Employees use information from
the risk screening (SC-1) to inform housing, bed, work, education, and program assignments. In many community corrections facilities, it is difficult, if not impossible, to keep defendants/offenders totally separate or segregated from each other. However, the facility can determine, based on the screening information, whether a particular defendant/offender should receive greater supervision, should have more frequent contact with staff, or is more appropriately housed in some alternative type of placement. The facility makes individualized determinations about how to ensure the safety of each defendant/offender.
Lesbian, gay, bisexual, transgender, or other gender-nonconforming defendants/offenders are not placed in particular housing assignments solely on the basis of their sexual orientation, genital status, or gender identity.
The silence surrounding sexual abuse may be even greater
in the field of community corrections than in some
prisons, jails, lockups, and juvenile facilities.
Staff and agency or facility head reporting duties
All staff members are required to report immediately and according to agency or facility policy any knowledge, suspicion, or information they receive regarding an incident of sexual abuse that occurred in a facility setting or while under supervision; retaliation against defendants/offenders or staff who reported abuse; and any staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse or retaliation. Apart from reporting to designated supervisors or officials, staff must not reveal any information related to a sexual abuse report to anyone other than those who need to know, as specified in agency or facility policy, to make treatment, investigation, and other security and management decisions. Unless otherwise precluded by Federal, State, or local law, staff medical and mental health practitioners are required to report sexual abuse and must inform defendants/offenders of their duty to report at the initiation of services. If the victim is under the age of 18 or applicable age of majority within that jurisdiction, or considered a vulnerable adult under a State or local vulnerable persons statute, staff must report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
SARTs exist in many communities and may be available
to partner with local correctional agencies.
Reporting to other agencies or facilities
When the agency or facility receives an allegation that a defendant/offender was sexually abused while in a community corrections facility or while under supervision, the head of the agency or facility where the report was made notifies in writing the head of the agency or facility where the alleged abuse occurred. The head of the agency or facility where the alleged abuse occurred ensures the allegation is investigated.
All actions taken in response to an allegation of sexual abuse are coordinated among staff first responders, medical and mental health practitioners, investigators, and agency or facility leadership. The agency’s or facility’s coordinated response ensures that victims receive all necessary immediate and ongoing medical, mental health, and support services and that investigators are able to obtain usable evidence to substantiate allegations and hold perpetrators accountable.
Agreements with outside public entities and
community service providers
The agency or facility maintains or attempts to enter into written memoranda of understanding (MOUs) or other agreements with an outside public entity or office that is able to receive and immediately forward defendant/offender reports of sexual abuse to agency or facility heads (RE-1). The agency also maintains or attempts to enter into MOUs or other agreements with community service providers that are able to: (1) provide defendants/offenders with confidential emotional support services related to sexual abuse and (2) help victims of sexual abuse during their transition from a community corrections facility into the community. The agency or facility maintains copies of written agreements or documentation showing attempts to enter into agreements.
Agreements with outside law enforcement agencies
If an agency or facility does not have the legal authority to conduct criminal investigations or has elected to permit an outside agency to conduct criminal or administrative investigations of staff or defendants/offenders, the agency or facility maintains or attempts to enter into a written MOU or other agreement specific to investigations of sexual abuse with the law enforcement agency responsible for conducting investigations. If the agency or facility confines defendants/offenders under the age of 18 or applicable age of
(continued on adjoining page)
Agreements with outside law enforcement agencies
(continued from adjoining page)
majority within that jurisdiction,
or other defendants/offenders who fall under State and local vulnerable persons statutes, the agency or facility maintains or attempts to enter into an MOU with the designated State or local services agency with the jurisdiction and authority to conduct investigations related to the sexual abuse of vulnerable persons within community corrections facilities. When the agency or facility already has an existing agreement or long-standing policy covering responsibilities for all criminal investigations, including sexual abuse investigations, it does not need to enter into a new agreement. The agency or facility maintains a copy of the written agreement or documentation showing attempts to enter into an agreement.
Agreements with the
The agency or facility maintains or attempts to enter into a written MOU or other agreement with the authority responsible for pro-
secuting violations of criminal law.
The agency or facility maintains a copy of the written agreement or documentation showing attempts to enter into an agreement.
FINDING: A large and growing number of detained immigrants are at risk of sexual abuse. Their heightened vulnerability and unusual circumstances require special interventions.
The Krome immigration detention facility in Miami, Florida, opened in 1980. As early as 1983, reports of sexual abuse began to emerge.1 These reports persisted for years and ranged from rape to sexual molestation to trading sex for favors.2 In May 1990, the Federal Bureau of Investigation began investigating sexual and physical abuse at Krome.3 Despite the glare of publicity and an ongoing investigation, the abuse apparently continued. In early 1991, a woman detainee said she was raped by a staff member in the health clinic. Advocates were told an investigation had been conducted and the U.S. Department of Justice would produce findings. An official report was never made public, and it appears no disciplinary or legal actions were taken.
More than 8 years later, in August 1998, officers at Krome wrote a memo complaining about the treatment of women and children, reporting that criminal and male detainees shared the same restroom with minors, women and children ate their meals on the floor, and there were only six beds for 39 women to sleep or sit on.4 In their complaint, they noted that when officers had reported concerns in the past, they were labeled as troublemakers. Again, no action was taken.
Widespread reports of sexual abuse at Krome resurfaced in May 2000; some of the same staff implicated in the sex scandal in 1990 were subjects of the new allegations as well.5 In her testimony before the Commission, Cheryl Little, of the Florida Immigrant Advocacy Center, reported that sexual abuse at Krome appeared to be pervasive and involved allegations against at least 15 Immigration and Naturalization Service (INS) officers and one public health service officer. A Department of Justice investigation that year revealed that roughly 10 percent of female detainees at Krome had come forward with reports of sexual misconduct by INS officers that included sexual harassment, fondling during searches, and sexual assault.6 Two women were impregnated by officers during their time at Krome.7 As recently as 2008, the Florida Immigrant Advocacy Center reported sexual abuse at the Krome facility.
The prevalence of sexual abuse in immigration detention facilities is unknown, but accounts of abuse by staff and by detainees have been coming to light for more than 20 years. As a group, immigration detainees are especially vulnerable to sexual abuse and its effects while detained due to social, cultural, and language isolation; poor understanding of U.S. culture and the subculture of U.S. prisons; and the often traumatic experiences they have endured in their culture of origin.8 Preventing, detecting, and responding to sexual abuse of immigrants in custody requires special measures not included in the Commission’s standards for correctional facilities. These measures are contained in a set of supplemental standards that apply to any facility that houses individuals detained solely because their right to remain in the United States is in question.
This chapter discusses the special circumstances and vulnerabilities of adult and child immigration detainees—a subject that has yet to receive the attention and research it merits—and how the Commission’s supplemental standards can decrease their risk of sexual abuse and ensure they receive help if victimized.
The Commission’s work in this area will advance efforts by U.S. Immigration and Customs Enforcement (ICE) to protect detainees from sexual abuse. ICE first published standards regarding the treatment of detainees in detention in 2000. When ICE updated and reconfigured those standards as performance-based detention standards in 2008, it expanded the standards to include sexual abuse prevention. Although the ICE standards are not enforceable in court, they cover important topics, such as screening and classification of detainees and procedures for reporting sexual abuse. The Commission’s standards build upon and in some areas exceed the ICE standards by including more specific requirements. Combined, the two sets of standards can make detention safer for hundreds of thousands of immigrants—individuals we have a duty to protect as long as they remain in our custody.
Knowing Who They Are
In the 15 years from 1994 to 2009, the number of immigrants held in detention pending a judicial decision about their legal right to remain in the United States increased nearly 400 percent.9 For the 2009 fiscal year, ICE budgeted enough money to detain 33,400 people on any given night and more than 400,000 people over the course of the year.10
Who comprises this increasingly large group of de facto prisoners? As Asa Hutchinson, Former Under Secretary for Border and Transportation Security at the U.S. Department of Homeland Security, noted, most immigrants in detention do not have criminal backgrounds.11
Approximately one out of every 10 immigration detainees is seeking
asylum—petitioning for safe haven in the United States, often after fleeing severe and life-threatening violence in his or her home country.12 Other categories of detainees include adults and children who entered the country without the proper documentation, families confined together, and thousands of “unaccompanied” children without families in the United States.
Unaccompanied minors from birth to age 18 are generally transferred from the Department of Homeland Security custody to the Office of Refugee Resettlement (ORR) and may remain in custody for several months.13 In 2008, an estimated 10,350 unaccompanied children were transferred into ORR custody.14 ORR places unaccompanied children and teenagers in a variety of settings, including foster care, shelters, group homes, and secure juvenile detention facilities. A few detainees have committed crimes that place them at risk of deportation.
What all immigration detainees have in common is an indeterminate wait while their immigration case proceeds through the court system. For adults, the waiting can take place in “service processing centers” operated by ICE, contract detention facilities, local jails, State and Federal prisons—where they may commingle with the general prisoner population—and short-term detention facilities run by Customs and Border Protection (“Border Patrol”). ICE also has two family facilities specifically to house parents and children together.
Isolated and Defenseless
Many factors—personal and circumstantial, alone or in combination—make immigration detainees especially vulnerable to sexual abuse. One of the most pervasive factors is social isolation. As Anne Wideman, a clinical psychologist from Arizona, told the Commission, “Many immigrants have shared with me that they don’t fit into their particular group in detention. Either they’re too home country or they’re too Americanized to fit into their particular group. This increases their isolation and their lack of protection [from] violence.”15
The isolation and confusion immigration detainees experience inside a locked facility is often exacerbated because they are far from family, friends, lawyers, and, in some cases, anyone who even speaks their language. Shiu-Ming Cheer, a legal advocate with the South Asian Network in Los Angeles, told the Commission, “Vietnamese-speaking detainees have been held in rural Texas jails for years without any information given to them in their native language. This increases the likelihood of sexual abuse.”16
Some detainees left their home countries because of life-threatening civil and political unrest or to escape physical or sexual abuse from family members. Many of them have witnessed beatings, rapes, or killings and experienced severe physical and sexual assault themselves before immigrating to the United States. Asylum seekers and refugees who fled violence or starvation in their home countries often have posttraumatic stress disorder (PTSD) and other trauma responses.17 Hallmarks include difficulty problem-solving and a sense of hopelessness and lack of control, all of which make individuals more susceptible to sexual victimization and also less likely to report it.18 “They become easily overwhelmed by what is happening to them and have difficulty deciding on and following through with a course of action to change the situation,” Wideman testified.19
A 2003 study by Physicians for Human Rights, based on interviews with 70 detained asylum seekers, found that detention has a particularly debilitating impact on them, especially on torture survivors, noting, “Detention can induce fear, isolation and hopelessness, and exacerbate the severe psychological distress frequently exhibited by asylum seekers who are already traumatized.”20 A quarter of the asylum seekers interviewed reported having been sexually assaulted prior to immigrating. Not surprisingly, the study found extremely high levels of depression (86 percent), anxiety (77 percent), PTSD (50 percent), and worsened psychological health (70 percent) among asylum-seeking detainees.
Children in detention also are particularly vulnerable. The Border Patrol apprehended an estimated 90,000 children along the southern U.S. border in 2007, and most were quickly repatriated.21 Some may be detained in Border Patrol facilities, however, while awaiting repatriation. In these holding centers, children are often in close proximity with adults and, therefore, in danger of sexual abuse. Some detained children have suffered through terrifying experiences that may have stripped away their defenses and even led them to expect abuse. “Some of these children are victims of human trafficking, brought to the U.S. for sexual exploitation or forced labor. Other children are smuggled into the U.S. on thousand-mile journeys, at each stop of the way at incredibly high risk for abuse and sexual exploitation,” Sergio Medina, Field Coordinator with Lutheran Immigration and Refugee Service, told the Commission.22 Once in detention, the aftereffects of traumas they have experienced, coupled with fear of their circumstances and of the adults in charge, leave them extremely vulnerable to sexual abuse by adult caretakers and also by predatory youth.
Immigration detainees may be especially vulnerable to sexual abuse by staff because they are confined by the same agency with the power to deport them. In this context, officers who are inclined to abuse their authority have an astounding degree of leverage, especially when detainees are not well-informed of their rights and lack access to legal counsel. In the words of Cheryl Little, immigration officers “hold the key”—or at least it can appear that way.23 Little told the Commission that deportation officers have propositioned women whose cases they control, telling them that if they want to be released they need to comply with the officers’ sexual demands.
Reason to Remain Silent
As in other correctional settings, immigration detainees fear retaliation by perpetrators, that their reports will not be believed, and that reports will be handled in a way that is damaging. However, for immigrants, the fear of deportation is an additional and critical barrier. Immigration detainees’ greatest fear is often of causing any trouble that might damage their case.24
After women detainees at the Krome immigration detention facility in Miami reported sexual abuse by staff, several of them wrote to then Attorney General Janet Reno, telling her, “We are afraid. . . each time one of us is interviewed by investigating officers. . . . [S]ome of the women who have given statements have either been transferred or deported to their countries.”25 At one point, two of the women whom officers viewed as “‘ringleaders’” behind the allegations were transferred to the maximum security Federal Detention Center in downtown Miami and held in isolation for 12 and 13 days, respectively.26 During this time, staff did not allow them to call their attorneys or their families, and they had no access to recreation; they were even denied shampoo and combs. When they appeared before the grand jury, their hair had not been combed for 10 days.
The determination of the victims at Krome to seek justice and protection is unusual. Fearing the possibility of retaliatory deportation, immigration detainees tend to be less likely than other prisoners to challenge the conditions of their confinement.27 Families are threatened with separation, creating enormous pressure on parents that they will lose their children if a family member causes disruption.28 For asylum seekers, the prospect of deportation often carries especially severe consequences. And if detainees come from countries where prisoners are routinely treated poorly or even tortured, they may be unlikely to believe that detention officers will protect them from sexual abuse even if they do report it.29
The fear of stigma if they report sexual victimization also may be more severe for some immigrant victims than for others in confinement. In many cultures, families and communities view victims of sexual assault very unsympathetically after the abuse becomes known.30 Sexual abuse victims may be perceived as disgracing the family and even be at risk for retaliation by their own family members. This added danger, coupled with unfamiliarity with the processes of reporting or even with the right to report, makes it even less likely that immigration detainees will disclose sexual abuse experiences.
Reporting sexual abuse can be especially difficult for detained children. Most of them do not have guardians, attorneys, or advocates whom they trust and can confide in. One unaccompanied minor, a 17-year-old boy detained in the San Francisco Bay area, was the victim of ongoing sexual abuse by a staff member. According to Tom Plummer, Staff Attorney for Legal Services for Children in San Francisco, the alleged conduct included the staff person visiting the boy’s bedroom during evening bed checks, sitting on the bed with him, touching him on the face and neck, kissing him, and expressing intimate affection and physical attraction.31 The boy reported the abuse to staff on at least four occasions. When no one took action to stop the behavior, he felt forced to disclose his sexual victimization during a house meeting in front of his peers.
Another teenage boy, interviewed by Physicians for Human Rights, recalled that: “[A] detainee tried to touch me in my personal place, and it made me very uncomfortable. . . . The others were making fun of me. The last time, I pushed him and told him to go. I defended myself and I was put in segregation. The guards didn’t give me an opportunity to explain. They just told me it was my fault. . . . I told one of the officers that another detainee bothered me and touched me in the night. I was ashamed to tell the officer, but I tried. The officer didn’t pay attention. He said he can’t do anything. . . [now] I am afraid to complain because I fear I will be put in segregation.”32 Forty percent of asylum-seeking detainees interviewed by Physicians for Human Rights reported that they had been threatened with disciplinary segregation while detained; 26 percent were actually placed in segregation at some time during their detention.33
An atmosphere of intimidation in a facility can also suppress reporting.34 Fifty-four percent of detainees interviewed by Physicians for Human Rights reported that they had experienced verbal abuse while in detention, including being called criminals and liars and being yelled and sworn at, often in circumstances they did not understand.”35 This is not an environment in which victims of sexual abuse are likely to speak out.
There are other institutional barriers that block or discourage victims and witnesses from reporting abuse. The ICE detention standards require the posting of information about how to report sexual abuse.36 A “sexual assault awareness” poster is to be displayed in English and Spanish with a “sexual assault awareness information” pamphlet distributed in most detention facilities.37 The poster encourages victims of a sexual abuse to report the assault and promises confidentiality for the reported information. Posters may not be enough to inform all detainees of their rights and the process, however, especially those who are not fluent in the language. And grievance procedures can seem impossibly complex, especially for detainees who speak languages other than English or Spanish.
A 2006 audit by the U.S. Department of Homeland Security’s Office of the Inspector General revealed that detainees often do not receive information on reporting and grievance procedures in a language they can understand.38 Detainees who don’t speak English or Spanish must request assistance from others to translate materials they are given or to write letters or fill out forms reporting the abuse—a serious barrier given the sensitive nature of the subject matter.39 Additionally, if victims of sexual abuse see other complaints go unanswered, from poor medical care to denial of religious services, they may have little confidence that their claims of sexual abuse will be treated any differently.40
Screen and Separate
The Commission’s standards for adult prisons and jails require that specific criteria be used to screen all incarcerated persons for risk of victimization and abusiveness. (See Chapter 3 for a detailed discussion of screening.) In the immigration context, additional precautions are required. Although most immigrants in detention do not have criminal histories, the Commission’s supplemental standards require facilities to make every reasonable effort to obtain and review the prior institutional and criminal records of all immigration detainees before screening them for risk of victimization and abusiveness.
Additionally, when immigration detainees are confined in prisons, jails, and lockups, the supplemental standards require separate housing for immigrants. Bryan Lonegan, who provides legal assistance to immigrants detained in northern New Jersey jails, told the Commission, “when those [immigrants] were detained last week, they were all held in the same jail with the people who were jumping the turnstiles, people who were there for shoplifting or drug offenses. . . . The point is, that within the jails that I work in northern New Jersey, there is no way to distinguish potential violators from the people who would be violated.”41
Screening must also look for signs of heightened vulnerability. Currently, the initial assessment required by the ICE detention standards does not include screening for all of the characteristics that may indicate vulnerability to abuse, such as self-reported history of past abuse, gender, sexual orientation, or physical appearance.42 Recognizing that some immigration detainees are more at risk of sexual abuse than others, the supplemental standards require culturally competent employees to assess all detainees for risk of victimization and abusiveness and to provide heightened protection for individuals identified as vulnerable. Today, not all facilities take even basic precautions, such as separating detainees by gender or age.
The Commission also is concerned that the default mode of protection for vulnerable detainees has become housing them in conditions approaching isolation. Depending on conditions in protective custody cells and units, isolation can enhance the feeling of aloneness already common among immigration detainees and lead to depression and other problems.43 For individuals from cultures that emphasize close interpersonal connections, isolation may be particularly destructive. Language barriers further intensify the isolation experience of protective custody. Detainees also may experience segregation as punishment and remain silent instead of reporting sexual abuse.
Educate to Protect
Immigration detainees will be less vulnerable to sexual abuse if they know their rights and the protections and support available to them. The Commission’s supplemental standard on inmate education mandates that sexual abuse education for immigration detainees be provided in the detainees’ own language, in terms that are culturally appropriate, and that it be conducted by a qualified individual with experience communicating about these issues to a diverse population.
ICE has made progress toward meeting this requirement through its own standard mandating facilities to provide information about sexual abuse through an orientation handbook, an orientation video, and a poster encouraging detainees who become victims of sexual abuse to report the assault to “any staff person you trust.”44 However, a 2006 audit of five detention facilities by the Homeland Security’s Office of the Inspector General found that all five facilities distributed handbooks to detainees that did not explain the process for reporting allegations related to abuse. Some detainees were not aware that they could report allegations related to abuse or civil rights violations directly to the Department of Homeland Security’s Office of the Inspector General or that there were reporting procedures for officer’s sexual misconduct.45
The Commission’s standards not only require every detainee to receive a handbook upon admission to the facility—as ICE’s own standards already mandate—but also outline information that the handbook must cover: the agency’s zero-tolerance policy toward sexual abuse and all the related policies, how to report an incident of sexual abuse, detainees’ rights and responsibilities in regard to sexual abuse, and how to contact organizations in the community that provide sexual abuse counseling and legal advocacy for detainee victims of sexual abuse. When facilities receive reports of sexual abuse, the supplemental standard regarding data collection requires them to record the victim’s immigration status and to update that information at the conclusion of the investigation.
Lifelines to the Outside World
Confinement, by definition, involves separating individuals from the community, at least to some degree. Immigration detainees, more than other confined populations, are likely to be almost entirely cut off from the world outside the facility in which they are residing. Individuals are often held in remote facilities, far from family or friends, and may be linguistically and culturally isolated within the detention setting. Often advocacy groups in the surrounding community lack the language skills and cultural competency to assist them.
Diocesan Migrant and Refugee Services administers ICE’s Legal Orientation Program to detention facilities in and around El Paso, Texas. According to Iliana Holguin, the organization’s Executive Director, “Many times the [Legal Orientation Program] is the only opportunity that detainees have to ask a nongovernmental official for information related to their particular case, for an explanation of the court system which they will soon be forced to navigate, and to express their concerns regarding the conditions of their detention or report any abuses that may have occurred while being detained.”46 Although detainees have periodic contact with immigration judges, those judges have no jurisdiction over the conditions of their detention.
Preventing and responding to sexual abuse among immigration detainees requires ensuring that detainees can easily contact outside entities authorized to receive and respond to reports of sexual abuse. The Commission’s standards in this area echo what ICE’s own standard already requires: facilities must provide immigration detainees with access to telephones with free, preprogrammed numbers to ICE’s Office for Civil Rights and Civil Liberties and to the Department of Homeland Security’s Office of the Inspector General. They also must have access to telephones to contact diplomatic or consular personnel from their countries of citizenship, along with a list of those phone numbers.47
Although many facilities have a telephone system, a U.S. Government Accounting Office (GAO) investigation in 2007 found widespread problems. Of the 17 facilities GAO visited that used this system, 16 had problems that restricted detainees’ abilities to reach their consulates, nongovernmental organizations, pro bono legal assistance providers, and the Department of Homeland Security’s Office of the Inspector General complaint hotline. The contractor detainee telephone system was extremely cumbersome and complicated to use. “For example, at Pamunkey Regional Jail [in Hanover, Virginia] the automated system required eight different actions by the user to place a call. One of these actions added further confusion by instructing a detainee to select ‘collect call’ in order to make a pro bono telephone system call.”48 GAO also found that the Inspector General’s number was blocked or otherwise restricted at 12 of the facilities.
Immigration detainees who are victims of abuse also need a lifeline to organizations with experience providing support and counseling for immigrant victims of crime. Attorneys and paralegals are not generally trained in how to counsel individuals who have been raped or have been victims of sexual assault.49 For these reasons, the Commission’s supplemental standards require facilities to attempt to reach formal agreements, such as a memorandum of understanding, with one or more local or, if not available, national organizations equipped to provide both legal advocacy and confidential emotional support services to immigration detainees who are victims of sexual abuse. The standards also require facilities to make contact information for these organizations easily accessible and to ensure that detainees can communicate with outside advocates on a confidential basis, to the extent allowed by law.
Culturally Appropriate and Effective
Even though the Commission’s supplemental standards emphasize the need to link victims of sexual abuse with culturally competent outside advocates, facilities still must ensure that their own staff can respond appropriately to sexual abuse. The first line of response to sexual abuse in detention facilities may be staff and frontline providers, yet most are not trained to respond to sexual victimization.
In her testimony before the Commission, Anne Wideman observed that medical staff in detention facilities often are not available to respond to sexual abuse victims and that staff are not well trained in detecting or following up on sexual abuse.50 According to Cheryl Little, doctors evaluating sexual abuse victims at the Krome detention facility in Miami did not even conduct a gynecological exam after reported incidents of sexual victimization.51 Bryan Lonegan believes there are other forces at work as well: “The pressure on the medical staff is to limit the cost of medical care inside the facility. And with that, people look the other way.”52 Lonegan has known of practitioners who provided a substandard level of care. “I had a client who had anal fissures because he had AIDS, and for that he was given Motrin.”
A report by two refugee advocacy organizations examining family detention facilities found inadequate medical and mental health services, including lack of access to doctors and inappropriate treatment of serious symptoms. The report concluded that “staff should receive continued specialized training in the unique physical and psychological needs of immigrant families.”53 Some immigrants come from cultures in which emotional distress is expressed somatically.54 In its report, Physicians for Human Rights recommended that facility staff should receive training in how physical symptoms and complaints may serve as indicators of sexual abuse.55
In July 2008, Congress repealed the statutory ban against visits or migration to the United States by HIV-positive persons.56 As this report went to press, the U.S. Department of Health and Human Services is considering modifying its regulations to remove HIV from the list of communicable diseases. Currently, immigrants known to be HIV-positive request a waiver to seek legal status in the United States—a requirement that applies to all immigrants with communicable diseases.57 Because of this additional administrative hurdle and the possibility that requests for waivers can be denied, the Commission’s supplemental standards require facilities to counsel all detainees about the immigration consequences of a positive HIV test at the time they are offered testing. Medical practitioners should keep abreast of the most current state of the law regarding HIV status and its consequences for the immigration process.
Addressing deficiencies in correctional health care is a complex and vexing issue, requiring training for staff and other interventions mandated in the Commission’s core standards. (See Chapter 6 for more information.) The Commission designed its supplemental standard on staff training to ensure that all staff can at least identify signs of sexual abuse among immigration detainees and provide an initial response that is culturally appropriate and effective. The mixture of languages, cultural traditions, and personal experiences represented among immigration detainees nationally makes adequate training a significant challenge. Detainees come from cultures with differing notions of appropriate sexual behavior, and their own experiences of sexual abuse vary widely, along with how they understand the repercussions of reporting abuse to government authorities.
The Commission’s supplemental standard on training aims to be responsive to these realities by requiring that all employees, including medical and mental health practitioners and investigators, be trained in cultural sensitivity toward diverse understandings of acceptable and unacceptable sexual behavior, appropriate terms and concepts to use when discussing sex and sexual abuse with a culturally diverse population, sensitivity and awareness regarding past trauma that immigration detainees may have experienced, and knowledge of all existing support services for detainees, both within and outside the facility.
Justice Interrupted: Transfers and Removals
In testifying before the Commission, Bryan Lonegan described what happened after a detainee in El Paso lodged a complaint about sexual abuse: “He made the complaint, and the next thing you know he was sent over to New Mexico. And then he was bounced back to Texas again and then back down into New Mexico. And during that time he was trying to maintain correspondence with somebody who would address his complaint. And every time he was transferred, he lost his legal papers, he lost his documents. He was never able to receive [the] documents back.”58
Immigration detainees are housed in hundreds of facilities around the country and are often transferred among facilities as they await a decision in their court case.59 Reasons for transfers usually involve space availability, cost, and security. The experience of frequent transfers is obviously hard on detainees and compromises their ability to build and present a strong case in immigration court. When a detainee is the victim of sexual abuse, transfers interrupt—and sometimes completely derail—the complaint process, as the story of the detainee from El Paso illustrates. Additionally, immigrants who are victims of certain sex crimes may be eligible for a special visa that allows them to remain in the country, so it is critically important that an investigative finding be made while the detainee still has an opportunity to apply for such a visa.60
In some cases, ICE decides to transfer a known victim or witness of sexual abuse to protect the person from subsequent abuse or retaliation for reporting. Although protective measures are essential and mandated, the Commission’s supplemental standard on protection forbids transferring or deporting a detainee who reports sexual abuse until an investigation has been completed, except at the detainee’s own request.
When staff cannot protect victims and witnesses in the facility where the abuse occurred, ICE must consider releasing and monitoring them in the community during the course of the investigation. Immigration detainees are in civil custody, and most have not committed crimes in the United States. Furthermore, research has shown that immigrants can be supervised in the community without undue risk of flight. A test of intensive community supervision in New York City from February 1997 to March 2000 showed that 91 percent of participants attended all required court hearings.61 The test also found community supervision was more cost-effective than detention.
Specifically for Families
F amilies who are in ICE custody are currently detained in several facilities in the United States. Stays are not always brief: women with children, including babies and toddlers, may be detained for days, weeks, or even months.62 Although families can be held in Customs and Border Protection facilities—typically for short periods of time—and in regular detention facilities operated by or under contract with ICE, most parents and children who are detained together are housed in one of two family detention facilities, operated exclusively for this purpose.
In testimony before a congressional subcommittee on immigration, Texas Representative Sheila Jackson noted that family facilities often are modeled on the criminal justice system. Immigrants in these facilities are “deprived of the right to live as a family unit, denied adequate medical and mental health care, and face overly harsh disciplinary tactics.”63 The Lutheran Immigration and Refugee Services report concluded that, in addition to the need for specialized training about immigrant families, “[a]ll staff training should be based upon a child and family welfare model and not a criminal or juvenile justice model.”64 The report also found health care to be inadequate, citing the inability of adults and children to get access to doctors and inappropriate treatment of serious symptoms. Compounding these conditions, Michelle Brané, Director of the Detention and Asylum Program for Women’s Refugee Commission, contends that families are sometimes threatened with separation, creating enormous pressure on parents that they will lose their children if a family member causes disruption.65
According to the Commission’s standards, housing and other placement decisions based on a child or adult’s risk of sexual abuse must preserve the integrity of the family unit and strive to keep members together. Screening criteria used in facilities for adults and those used in facilities for children are generally inappropriate in a family context. The purpose of family facilities is to keep families together, so protection cannot be accomplished by separating individuals on the basis of age, gender, or sexuality. There is almost no research to suggest what screening criteria might be appropriate, so the burden is on ICE to develop good protocols that protect individuals from abuse while maintaining family unity.
Disincentives for reporting abuse may be even greater when parents and children are confined together with little or no privacy. Under the Commission’s standards, facilities must somehow ensure that both adults and children can report abuse in a confidential manner. This is especially important in the situations where children are at risk of abuse within the family unit.
Family facilities must be sensitive to parents’ desire to protect their children from sexual abuse and even from hearing about abuse unnecessarily because that may disturb a child. Facilities also must be responsive to the discomfort a parent might feel discussing sexual abuse in front of their children. The Commission’s standards require investigators and health care practitioners to question parents confidentially, away from their children, about any incident of sexual abuse. On the other hand, when children are known or suspected to be victims of sexual abuse, the standards require parents to be present when investigators are questioning their children and allow parents to be present during medical and mental health exams, unless the parent is the alleged abuser. A qualified mental health practitioner must make the decision to exclude a parent from an interview or medial exam based on suspicion of abuse.
Florida immigrant advocate Cheryl Little concluded her testimony to the Commission by stating, “Detainees [in Florida] have paid a heavy price for sexual misconduct by their jailers and the message to victims is clear: Complain and you are transferred to a remote facility far removed from your lawyer and loved ones or, worse, you risk deportation. . . . The message to abusive guards is likewise clear: No matter the seriousness of the abuse, you are not likely to be punished or held accountable for your acts.”66 The decades of unchecked sexual abuses at the Krome facility are one example, albeit extreme, that protections for immigration detainees and accountability for perpetrators are not what they should be. Almost equally concerning, we know less about this area of confinement than any other, yet it is one of the fastest growing and an area in which preventing, detecting, and responding to abuse is especially challenging.
The prevalence of sexual abuse in immigration detention facilities is unknown, but accounts of abuse by staff and by detainees have been coming to light for more than
20 years. As a group, immigration detainees are especially vulnerable to sexual abuse and its effects while detained
due to social, cultural, and language isolation; poor understanding of U.S. culture and the subculture of
U.S. prisons; and the often traumatic experiences
they have endured in their culture of origin.
Immigration officers “hold the key”—or at least it can appear that way. Little told the Commission that deportation officers have propositioned women whose cases they control, telling them that if they want to be released they need to comply with the officers’ sexual demands.
“We are afraid. . . each time one of us is interviewed by investigating officers. . . . [S]ome of the women who
have given statements have either been transferred or deported to their countries.”
“[A] detainee tried to touch me in my personal place,
and it made me very uncomfortable. . . . The others were making fun of me. The last time, I pushed him and told him to go. I defended myself and I was put in segregation.
The guards didn’t give me an opportunity to explain.
They just told me it was my fault. . . .”
Supplement to Screening for risk of victimization and abusiveness
The facility makes every reasonable effort to obtain institutional and criminal records of immigration detainees in its custody prior to screening for risk of victimization and abus-
iveness. Screening of immigration detainees is conducted by employees who are culturally competent.
Use of screening information
Any facility that houses both inmates and immigration detainees houses all immigration detainees separately from other inmates in the facility and provides heightened protection for immigration detainees who are identified as particularly vulnerable to sexual abuse by other detainees through the screening process (SC-1). To the extent possible, immigration detainees have full access to programs, ed-
ucation, and work opportunities.
Sexual abuse education (TR-3)
for immigration detainees is provided at a time and in a manner that is separate from information provided about their immigration cases, in detainees’ own languages and in terms that are culturally appropriate, and is conducted by a qualified individual with experience communicating about these issues with a diverse population.
Every detainee is provided with an ICE Detainee Handbook upon admission to the facility, and a replacement is provided whenever a detainee’s handbook is lost or damaged. The Detainee Handbook contains notice of the agency’s zero-tolerance policy toward sexual abuse and contains all the agency’s policies related to sexual abuse, including information about how to report an incident of sexual abuse and the detainees’ rights and responsibilities related to sexual abuse. The Detainee Handbook will inform immigration detainees how to contact organizations in the community that provide sexual abuse counseling and legal advocacy for detainee victims of sexual abuse. The Detainee Handbook will also inform detainees how to contact the Office for Civil Rights and Civil Liberties, the Office of the Inspector General (OIG) for the Department of Homeland Security (DHS), and diplomatic or consular personnel.
Immigration detainees, more than other confined populations, are likely to be almost entirely cut off from
the world outside the facility in which they are residing.
Supplement to Data collection
The facility collects additional data whenever an immigration detainee is the victim or perpetrator of an incident of sexual abuse in custody. The additional incident-based data collected indicate whether the victim and/or perpetrator was an immigration detainee, his or her status at the initiation of the investigation, and his or her status at the conclusion of the investigation.
Supplement to Inmate reporting
The agency provides immigration detainees with access to telephones with free, preprogrammed numbers to ICE’s Office for Civil Rights and Civil Liberties and the DHS OIG. In addition, the agency must provide immigration detainees with a list of phone numbers for diplomatic or consular personnel from their countries of citizenship and access to telephones to contact such personnel.
Supplement to Inmate access to outside confidential support services
All immigration detainees have access to outside victim advocates who have experience working with immigration detainees or immigrant victims of crime for emotional support services related to sexual abuse. The facility provides such access by giving immigration detainees the
current mailing addresses and telephone numbers, including toll-free hotline numbers, of local,
State, and/or national organizations that provide these services and enabling reasonable communication between immigration detainees and these organizations. The facility ensures that communications with such advocates is private, confidential, and privileged to the extent allowable by Federal, State, and local law. The facility informs immigration detainees, prior to giving them access, of the extent to which such communications will be private, confidential, and/or privileged.
Supplement to Agreements with outside public entities and community service providers
Any facility that houses immigration detainees maintains or attempts to enter into memoranda of understanding (MOUs) or other agreements with one or more local or, if not available, national organizations that provide legal advocacy and confidential emotional support services for immigrant victims of crime (RE-3,
MM-3). The agency maintains copies of agreements or documentation showing attempts to enter into agreements.
Employee training and
specialized training of
investigators and medical and mental health care
Any facility that holds immigration detainees provides special additional training to employees,
including medical and mental health practitioners and investigators. This additional training includes the following topics: cultural sensitivity toward diverse understandings of acceptable and unacceptable sexual behavior, appropriate terms and concepts to use when discussing sex and sexual abuse with a culturally diverse population, sensitivity and awareness regarding past trauma that may have been experienced by immigration detainees, and knowledge of all existing resources for immigration detainees both inside and outside the facility that provide treatment and counseling for trauma and legal advocacy for victims.
Supplement to Ongoing medical and mental health care for sexual abuse victims and abusers
All immigration detainees are counseled about the immigration consequences of a positive HIV test at the time they are offered HIV testing.
Supplement to Protection of detainee
victims and witnesses
ICE never removes from the country or transfers to another facility immigration detainees who report sexual abuse before the investigation of that abuse is completed, except at the detainee victim’s request. ICE considers releasing detainees who are victims of or witnesses to abuse and monitoring them in the community to protect them from retaliation or further abuse during the course of the investigation.
“He made the complaint, and the next thing you know he was sent over to New Mexico. And then he was bounced back to Texas again and then back down into New Mexico. And during that time he was trying to maintain correspondence with somebody who would address his complaint. And every time he was transferred, he lost his legal papers, he lost his documents. He was never able to receive [the] documents back.”
Screening of immigration detainees in family facilities
Family facilities develop screening criteria to identify those families and family members who may be at risk of being sexually victimized that will not lead to the separation of families. Housing, program, educational, and work assignments are made in a manner that protects families and in all cases prioritizes keeping families together.
Reporting of sexual abuse in family facilities
The facility provides parents with the ability to report sexual abuse in a manner that is confidential from their children. The facility also provides children with the ability to report abuse by a parent confidentially to staff.
Investigations in family
Parents are questioned confidentially by investigators about any incident of sexual abuse, away from their children. A parent or parents are present when a child is questioned by investigators about any incident of sexual abuse, unless (1) the child has alleged abuse by the parent or (2) staff suspects abuse by the parent. The decision to exclude a parent from an interview based on staff suspicion of abuse by that parent is always made by a qualified mental health practitioner.
Access to medical and mental health care in family facilities
All family members are offered mental health counseling (as required in MM-2 and MM-3) when one family member is a victim of sexual abuse in the facility. Following an incident of sexual abuse, parents and adult family members are examined confidentially by medical and mental health practitioners and away from children. Following an incident of sexual abuse, a parent or parents are allowed to be present during all medical and mental health examinations of a minor child, unless (1) that child has alleged sexual abuse by the parent or (2) staff suspects abuse by the parent. The decision to exclude a parent from an examination based on staff suspicion of abuse by that parent is always made by a qualified mental health practitioner. In the event that a child is sexually abused, a qualified mental health practitioner interviews the child to determine whether either parent was present or aware of the abuse and whether the parent or parents were threatened in connection with the abuse.