Chapter 5  

Reporting, Investigation,
and Punishment

FINDING: Many victims cannot safely and easily report sexual abuse, and those who speak out often do so to no avail. Reporting procedures must be improved to instill confidence and protect individuals from retaliation without relying on isolation. Investigations must be thorough and competent. Perpetrators must be held accountable through administrative sanctions and criminal prosecution.

When Dana Ragsdale entered the Federal Detention Center in Philadelphia in summer 2003, she carried with her a history of childhood sexual abuse. Early during her stay there, another prisoner told Ragsdale that a male officer had sexually assaulted her. As a survivor of sexual abuse, this deeply concerned Ragsdale. In testimony to the Commission, she said she had wanted to report the incident—both to protect the other woman and because she feared for her own safety—but was afraid of speaking out. “I wanted to tell someone, but I knew that inmates who file reports against corrections officials are usually put into isolation. I did not want to be put in the special housing unit, lose my privileges or spend nearly every hour of the day in my cell. Inmates who make reports are often labeled as snitches and risk retaliation by corrections officers or other inmates. I stayed silent and prayed that I would not be victimized.”1

Ragsdale only reported the abuse when she was transferred to a correctional facility in Danbury, Connecticut, with a warden known for her commitment to take allegations of sexual abuse seriously, and Ragsdale also met a staff member she felt she could trust. “I was literally in a state of panic, shaking and sweating profusely like I am right now as I gave them a description of the guard and the name of the inmate being abused. . . . Looking back on it, it was terrifying to be in a situation where I felt completely unsafe, particularly in view of my own history of sexual abuse.”2

Like Dana Ragsdale, many prisoners are reluctant to report abuse they know about or have experienced. This chapter explores reasons why prisoners, as well as staff, stay silent and how to earn their confidence and promote reporting. This chapter also discusses how to achieve significant improvements in investigating allegations of abuse in confinement and in punishing perpetrators—challenging areas in correctional practice, law enforcement, and prosecution.

Breaking the Silence

The persistent silence surrounding incidents of sexual abuse in correctional facilities is a reality that both victims and professionals in the field acknowledge. Capturing the extent of underreporting is difficult, however, and involves giving individuals in confinement an opportunity to provide information about sexual abuse in their facilities on anonymous surveys, collecting information from facilities’ administrative records on incidents of abuse known to corrections officials, and comparing the two sets of data. As a result of PREA, the Bureau of Justice Statistics is much closer to providing these comparisons.3

Although the degree of underreporting is not known, solutions to the problem are clear: Efforts to increase reporting begin by providing easy ways for individuals to communicate information about sexual abuse they have experienced or know about to staff or corrections officials, backed up by a clear policy requiring authorities and staff to act on every allegation. Even when prisoners are willing to report abuse, their accounts are not necessarily taken seriously and communicated to appropriate officials within the facility. “When I told one of the guards I trusted how tired I was of putting up with abuse [by other youth in the facility], he told me to just ignore it,” Cyryna Pasion told the Commission.4 Kendell Spruce testified to the Commission that he was raped by 27 different inmates. “I reported it, but it didn’t ever get me anywhere.”5 And Garrett Cunningham wrote twice to internal affairs and requested a private interview with an investigator to report an officer who had violently raped him and was continuing to touch him inappropriately, but he told the Commission, “They never addressed my concerns and failed to take precautions to protect me.”6

Although some correctional systems and individual facilities have made great strides in this area in recent years, the Commission crafted its standards to guarantee that reporting is encouraged and taken seriously in every correctional facility. A serious response to all reports of abuse that follows clear protocols is also the best way to efficiently handle any false allegations of abuse, which are a concern to many corrections staff and administrators. The standards ensure that anyone can report abuse—
including prisoners’ friends or family members—and know that the allegations will result in an immediate response from the facility. The standards require all staff to act on reports of abuse conveyed verbally or in writing, including anonymous written reports.

Additionally, all employees and volunteers—including those who provide medical and mental health services—have a duty to report sexual abuse. That means they must report any information about or suspicion of abuse, whether it occurred in their facility or another correctional facility. In nearly every correctional facility today, employees already have a duty to report, but fewer facilities extend that obligation to volunteers.7 Administrators must forward reports about sexual abuse that occurred in another facility to the head of that facility. Importantly, unless the law of the jurisdiction states otherwise, the duty to report is not contingent on receiving consent from the provider of the information. Facility administrators need to know about abuse to prevent it in the future and to hold perpetrators accountable. At the same time, the sensitive nature of the information means it must be shared only among staff who have a critical need to know, and prisoners must be clearly informed that all staff have a duty to report.

Preparing staff to meet their obligations is essential. Staff should be educated about the type of information they might hear or receive in writing, trained on how to respond to allegations of abuse as well as less clear signs that abuse might be occurring, and informed that they will be held accountable if they fail to follow reporting procedures.8 Mandatory reporting policies are powerful antidotes to the code of silence. As Matthew Cate, former Inspector General overseeing corrections in California, told the Commission, these defensive postures are common among correctional officers, just as they are among “individuals in any stressful profession, the military, officers on the street, physicians. . . or nurses in an operating room.”9

Some incarcerated individuals will never be comfortable reporting abuse internally. For this reason, the Commission’s standard on inmate reporting requires that prisoners have the option of speaking confidentially with a community-based crisis center or other outside agency. This requirement reflects what some corrections professionals and other experts agree to be the preferred practice. As New York City Corrections Director Martin Horn told the Commission, “I believe very deeply, and we do this in New York, that. . . there must be confidential means of reporting.”10 Information about how to contact the outside agency should be widely posted in the facility and otherwise readily available. The correctional facility and the outside agency must formalize their agreement in a memorandum of understanding specifying that the outside agency has agreed to accept reports of sexual abuse from prisoners and forward them to the head of the facility unless the prisoner wants the report to remain confidential.

Experience in the Arkansas Department of Correction demonstrates that access to hotlines operated by the internal affairs investigative division can promote reports of sexual abuse that otherwise might remain hidden and convince incarcerated individuals that the facility is committed to ending sexual abuse. According to Chief Deputy Director of Institutions Ray Hobbs, “The inmates have new confidence that they will be taken seriously. . . . The first sign was the implementation of the hotline. We had a highly visible case, in the media too, of a male staff member who sexually abused a male inmate. The staff member was sneaky and even took the lens off the cameras so he wouldn’t be seen. He failed to transfer [another] inmate, as he had promised him, and the inmate squealed on him through the hotline.”11 Importantly, this report to the hotline resulted in action on the part of the administration, leading to sanctions for the sexual misconduct. Hobbs told the Commission, “The staff copped-out to it. He was prosecuted and got 5 to 7 years in prison.”

As illustrated by this example, successful efforts to enhance reporting depend both on the accessibility and safety of mechanisms to report and on serious and timely responses by officials once reports are made. Staff should clearly convey these factors, as well as information on ways to report abuse, during sessions to educate prisoners about sexual abuse, their right to be safe, and the facility’s policies. Easy-to-read posters and brochures, available in the native languages of the facility’s prisoner population, should capture the same information.

The results of a proactive approach to reporting can be dramatic. In 2006, the North Carolina Department of Correction received just 31 reports of sexual abuse. The following year, after revising its reporting policies and raising awareness among prisoners and staff, the number of reports jumped to 151. According to Correctional Planner Charlotte Price, “It was a big increase, which we felt was positive, because staff were more aware and inmates were coming forward. . . . The awareness has been our biggest change, and it has helped on every level, including investigations. It has been a positive experience for both staff and inmates.”12 Sharp increases in reporting should be expected when constructive reforms make prisoners feel safer reporting abuse and more confident that the facility will take action. Facilities should be prepared to communicate to the public that increased reporting is a positive development and does not necessarily reflect a rise in actual abuse.

Protection from Retaliation

Necole Brown was sexually abused over the course of 5 years by a corrections officer she first encountered in a Michigan State prison in 1996 who stalked and victimized her even while she was on parole. In her testimony to the Commission, she recalled that the officer “constantly threatened me, that if I told anybody, he would make sure that I would either be punished by being sent to administrative seg[regation] or that I would lose my privileges such as the phone, visits with my family and friends, and even that I would not be allowed to leave the prison. . . He had the ability to write me up for so-called misconduct any time he wanted. . . [T]he more tickets I got, the more good time I lost, meaning the release on parole would be delayed. I felt like I had to do the things that he asked me to do so I could survive in prison and to be able to come home.”13 When Brown finally reported the abuse and sought help from an attorney, the retaliation grew worse and involved other staff. “Correctional officers would interrupt my attorney visits, withhold my mail, search me or try to degrade me in front of other people for no reason.”

Victims of sexual abuse are silenced by threats as well as by actions taken against them, and some are punished when they do speak out. Retaliation by staff can include unwarranted disciplinary action, unfavorable changes in housing and work assignments, and threats of violence against the victim or even the victim’s family. In a letter to the advocacy organization Just Detention International, one prisoner conveyed a chilling threat she received from the male officer who was abusing her: “Remember if you tell anyone anything, you’ll have to look over your shoulder for the rest of your life.”14 An incarcerated person who reports sexual abuse perpetrated by another prisoner also risks retaliation, which can range from violence, to being shunned by other prisoners, to being falsely reported for breaking facility rules.

Isela Gutierrez, who coordinates the Texas Coalition Advocating Justice for Juveniles, told the Commission about a 2007 survey of 3,279 youth in custody by the Texas State Auditor’s Office that suggests that youth have little confidence that the reporting process is credible and safe. Sixty-five percent of juveniles surveyed thought the grievance system did not work, and 43 percent indicated they had firsthand knowledge of residents who experienced retaliation after filing grievances related to physical or sexual abuse. Moreover, half of the juveniles surveyed felt that the Texas Youth Commission did not take immediate action regarding their safety and welfare.15

The culture of the correctional environment can make staff and offenders fearful of reporting. In Baron v. Hickey, a correctional officer reported misconduct that he observed in his facility in 2003.16 As a result, his tires were slashed, he was called a “rat,” and coworkers threatened him.17 He complained more than 30 times to leadership and ultimately resigned. He filed suit against the agency for these retaliatory actions and was awarded $500,000 in damages.

Correctional facilities have to demonstrate a commitment to protecting individuals who report abuse from retaliation. As former Commissioner of the Massachusetts Department of Correction Kathleen Dennehy told the Commission, “We need to create environments where inmates fully disclose incidents of sexual violence.”18 The Commission’s standard in this area requires facilities to monitor prisoners and staff who report abuse for at least 90 days to ensure that they are not experiencing retaliation or threats. If threats or actual retaliation do occur, the facility must take immediate action to stop the threatening behavior. The standard also requires facilities to take affirmative steps to prevent retaliation. Such precautions also may be essential to the investigation because victims and witnesses who feel intimidated are less likely to cooperate with investigators.

Protective measures may include moving a prisoner to a different housing unit, transferring them to a different facility, or adjusting staff work assignments. Transfers, however, should not be an automatic response, especially since they may involve disrupting an investigation, provision of needed services, and in some cases access to family. Talking to prisoners about their safety concerns can be constructive and suggest a range of possible precautions. Case-by-case assessments will help prevent transfers that prisoners could perceive as punitive. Because segregation can have a negative impact on a prisoner’s mental health, staff should only use segregation when absolutely necessary to ensure the safety of the prisoner and integrity of the investigative process.19 As noted above, some prisoners who would otherwise report abuse remain silent because they cannot bear the restrictions of life in segregation.

Investigating Without Fail

Eventually Necole Brown contacted a lawyer, who helped her report the officer who was abusing her. “Investigators interviewed me, but failed to follow up on information about my complaint,” Brown told the Commission.20 She testified that the local prosecutor also declined to pursue the case because he believed the evidence was insufficient. The Commission’s standards on investigation are intended to ensure that every allegation of sexual abuse is thoroughly investigated. The stakes are high: failure to investigate allegations sends a message to staff and prisoners that speaking out may put the victim at risk but has no consequences for the abuser. In such environments, silence prevails and abuse flourishes. Unless investigations produce compelling evidence, corrections administrators cannot impose discipline, prosecutors will not indict, and juries will not convict abusers.

Six years after the passage of PREA, many statewide correctional systems and individual facilities now have policies, protocols, and staff in place to investigate allegations of sexual abuse. (See the PREA Initiatives appendix for a sample.) Prison and jail staff across the country have attended professional training programs on investigating sexual abuse. According to Lorie Brisbin, an investigator working for the Idaho Department of Correction, PREA was a catalyst for improving investigations in facilities statewide, and the results have been dramatic: “We have a case that is going through the courts right now [where one prisoner raped another prisoner]. Our staff did such a good job securing the crime scene that it is a solid case. This would not have happened before PREA. . . .
We have never had an inmate-inmate prosecution at all.”21 The Georgia Department of Corrections also implemented sweeping reforms, including a policy to investigate all allegations of sexual abuse and the provision of specialized training for investigators. According to Angela Grant, Deputy Warden of Care and Treatment at Pulaski State Prison, “We have investigators now who only deal with sexual assault cases. There are specialists in all four of our regions. We are doing more thorough investigations. We referred eight cases in 2007 for prosecution. . . . We are now more proactive and definitely pursue these cases all the way to prosecution.”22

Although advances such as those in Idaho and Georgia are extremely encouraging, there are still facilities—particularly those that confine juveniles, those under the umbrella of community corrections, and smaller jails—that lag behind in this crucial area.23 Weaknesses and gaps are not necessarily for lack of effort. Training and resources specifically for staff of juvenile facilities, for example, have only been available recently.24

The Commission’s first standard on investigation is clear: facilities have a duty to immediately and thoroughly investigate every allegation of sexual abuse to completion, including reports by third parties and anonymous reports. Investigators must pursue direct and circumstantial evidence, whether or not the alleged victim confirms that the abuse occurred and is willing to cooperate. Even if the person who reported the abuse later wants to withdraw the complaint, the investigation must continue if the facts indicate that abuse may have occurred. The transfer or release of prisoners involved in an investigation, either as victims or witnesses, and the reassignment, termination, or resignation of involved staff may complicate an investigation but do not justify closing it before completion. Complainants must be notified in writing about the outcome of the investigation and any disciplinary or criminal sanctions imposed, consistent with what laws in the jurisdiction allow.

Allegations of sexual abuse always warrant an administrative investigation; a criminal investigation is often necessary as well. Criminal and administrative investigations conform to different rules and procedures. A criminal investigation focuses on determining whether there is sufficient evidence to prove that the alleged abuser violated specific criminal statutes and, therefore, should be prosecuted. The focus of a criminal investigation is relatively narrow, the standard of proof stringent, and the potential penalties severe. An administrative investigation, which is wider in scope, is two pronged: first, it focuses on whether sufficient evidence exists to demonstrate that the alleged abuser violated agency policies and should be disciplined; second, it assesses whether training, practices, or policies should be revised to prevent future sexual abuse.

Many correctional agencies rely on outside law enforcement agencies to conduct criminal investigations, and some agencies enlist outsiders to conduct administrative investigations, although that practice is less common. Whenever agencies outsource investigations, the Commission’s standards require that the correctional agency attempt to develop a memorandum of understanding with the law enforcement agency; the Commission suggests specifying roles and responsibilities in the agreement. More than a mere formality, such agreements can improve the quality of investigations. According to Kimberly Hendricks, PREA coordinator in the Oregon Department of Corrections, the department’s memorandum of understanding enabled law enforcement to begin investigating much sooner following an allegation of abuse. “Everyone is clear [about] roles and timelines. It got a more rapid response. It has improved the information flow.”25

The Commission’s standard establishing the duty to investigate is followed by a detailed standard to ensure the quality of investigations. The quality of an investigation and resulting written report will determine whether the process is viewed as credible and greatly influences decisions to prosecute and/or impose administrative sanctions. As stated in this standard, effective sexual abuse investigations are prompt, thorough, objective, and conducted by individuals who have received special training in sexual abuse investigations. Additionally, the standard specifies that all investigations must meet the following requirements:

• Investigations are initiated and completed within the timeframes established by the highest-ranking facility official, and the highest-ranking official approves the final investigative report.

• Investigators gather direct and circumstantial evidence, including physical and DNA evidence when available; interview alleged victims, suspected perpetrators, and witnesses; and review prior complaints and reports of sexual abuse involving the suspected perpetrator.

• When the quality of evidence appears to support criminal prosecution, prosecutors are contacted to determine whether compelled interviews may be an obstacle for subsequent criminal prosecution.

• Investigative findings are based on an analysis of the evidence gathered and a determination of its probative value.

• The credibility of a victim, suspect, or witness is assessed on an individual basis and is not determined by the person’s status as inmate or staff.

• Investigations include an effort to determine whether staff negligence or collusion enabled the abuse to occur.

• Administrative investigations are documented in written reports that include a description of the physical and testimonial evidence and the reasoning behind credibility assessments.

• Criminal investigations are documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and provides a proposed list of exhibits.

• Substantiated allegations of conduct that appears to be criminal are referred for prosecution.

Many of these requirements are discussed in the sections that follow.

Proceeding Without Delay

Timeliness is essential. An investigation of sexual abuse must begin as soon as possible after the alleged incident. Physical evidence degrades quickly. In addition, launching an investigation immediately reassures victims and witnesses that officials are taking their allegations seriously, which can facilitate cooperation and increase the likelihood of gathering strong evidence.

Completing investigations without delay is equally important. Although particularly complex investigations will take more time and deadlines should reflect that reality, the goal in every investigation must be to work efficiently and adhere to the timeline established by the highest-ranking facility official. Protracted investigations undermine the facility’s credibility and become increasingly difficult as evidence disappears and key witnesses’ memories fade. It is unfair to victims as well as the accused to allow allegations of sexual abuse to linger unresolved for months or years.26 In some States (including California, Florida, Louisiana, Maryland, and Rhode Island), an investigation must be completed within 1 year, or no administrative discipline may be imposed.27 Such policies should put pressure on officials to complete investigations quickly. Without strong and committed leadership, however, these policies could become a reason to allow investigations to linger or wither.

Of course, when victims and witnesses report abuse long after it occurred, investigators operate under compromised circumstances. U.S. Attorney for the Northern District of Florida Gregory Miller captured what is at stake in his testimony to the Commission: “Delays in reporting put the investigators at a disadvantage from the outset. During the interval between the time when the crime is committed and when it is brought to law enforcement’s attention, valuable physical evidence can be lost or destroyed. As days and even months intervene, the victim’s memory of the details or the date or time of the assault may blur, making it difficult to corroborate their account through prison work schedules or other means.”28 Texas prosecutor Gina DeBottis told the Commission that “if [a victim] waits over 96 hours, it’s very difficult to collect [physical] evidence.”29 In a 2006 study of sexual abuse in the Texas prison system, research confirmed that in a majority of substantiated cases—those in which an investigation determined that sexual abuse occurred—reports were made on the same day or within 2 days of the assault.30

Gathering Evidence

Investigating sexual abuse that has occurred in correctional facilities is complex, requiring skill and sensitivity.31 In some States and localities, however, individuals responsible for investigating sexual abuse in correctional facilities receive no specialized training.32 Moreover, many facilities around the country rely on State or local police officers, who may have little or no experience investigating cases in a correctional facility.33 According to a report published by the National Institute of Corrections, many sexual abuse investigators are so unfamiliar with the dynamics inside a correctional facility that they cannot operate effectively, making mistakes that are in some instances glaring.34 A staff member in one correctional facility remembered an investigator who “came in and asked a whole housing unit of inmates if they had witnessed an assault.”35 Serious missteps in interviewing victims, witnesses, and suspects can undermine or even ruin an investigation.

“[The] investigator was so frightening and insensitive,” Dana Ragsdale recalled in her testimony to the Commission.36 “He propped his feet up on his desk, he crossed his arms, and he glared at me.” Investigators need to understand and be responsive to the dynamics of victimization, not only to be sensitive but also to be effective. Victims are often reluctant to discuss a sexual assault with someone who is or appears to be unsympathetic to their situation.37 One corrections staff member commented, “You can’t just ask an inmate point blank if he has been assaulted. Part of the job is building rapport with inmates. You have to lead up to these questions.”38

“In the practice of interviewing victims of sexual abuse, there are many times when what the victim is not saying speaks volumes about what has happened or what is not happening,” Chief Inspector of the Rhode Island
Department of Corrections Aaron Aldrich told the Commission.39 “Active listening is so much more than just remaining silent when the victim is speaking. It’s about getting the trust of that person. It’s about convincing the victim that you are willing to do whatever it takes to make a bad situation better. It’s not about asking a question and receiving an answer. It’s about asking a question and gauging a response. Each victim is different. Some are emotionally shattered. Some are angry and exhibit negative actions. . . . [S]ome might quite coolly deny that anything ever happened or took place.” At the most fundamental level, according to Aldrich, investigators must be able to see the prisoner as a victim. “Investigative personnel can be trained [and] proficient [in] investigatory techniques, standards, [and] protocols and yet fail in securing either successful prosecution or termination of violators if they do not recognize the basic premise that an offender can also be a victim. . . .”40

A thorough investigation obtains all direct and circumstantial evidence of the alleged incident. In most situations, investigators have to aggressively and creatively pursue corroborating evidence. When victims and witnesses are not cooperating—out of fear or adherence to a code of silence—or when they cooperate initially and later recant, corroboration can clarify otherwise perplexing events and salvage an investigation. As Cynthia Schnedar, Counsel to the Inspector General for the U.S. Department of Justice, told the Commission, “[T]he key to any successful prosecution is corroboration, corroboration, corroboration.”41

Best practices for gathering evidence include: visitor lists, camera footage, telephone logs, staff time cards, post assignment records, descriptions of areas where incarcerated persons are not generally allowed, statements from co-workers and housing mates, and patterns of abuse documented in past complaints and investigations.42 Gathering that evidence requires training as well as special tools. Body wires, electronic monitoring, controlled calls, and polygraphs are among the tools that investigators may have available to them.43

Director of the Rhode Island Department of Corrections A. T. Wall captured the nature of this kind of investigative work in his testimony to the Commission. In a correctional facility, “[e]verybody talks to everybody all the time. And so an aggressive investigator has options. You talk to everybody anywhere near the alleged perpetrator or the victim. You get statements. You look at logs. You review camera footage. You monitor the recorded telephone calls. You take it to the community. You talk to former cellmates who are now living in freedom. You talk to family members. You consider controlled phone calls. You look at possibly, in some cases. . . using a wire. And ultimately you also, as I’ve said before, have to get the investment of staff. . . . [I]f they think the security risk is great enough or they are offended enough by the content, they will tell you what you need to know, but you have to till that soil by working with staff to change their attitudes.”44

Getting the “investment of staff” often hinges on having the support of unions. Labor and management should structure agreements in ways that facilitate, or at least do not impede, thoroughly investigating staff accused of sexual misconduct.45 (See Chapter 2 for more information about collective bargaining agreements.)

Although results from polygraphs and computerized stress voice analyzer tests do not constitute admissible evidence in a courtroom, agencies do rely on them when evaluating whether to pursue a case. Polygraph findings or refusal to take a polygraph should never be used as the only reason to suspend or close an investigation or as the sole basis for determining whether or not an allegation is true, however.46

Proper use of Miranda- and Garrity-type warnings is also critical. In Garrity v. New Jersey, the Supreme Court ruled that statements taken under threat of terminating employment are considered compelled statements and cannot be used directly or indirectly against the suspect in a criminal investigation or prosecution.47 The standard Garrity warning includes the following notice: “If you do answer, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. However, these statements may be used against you in relation to subsequent departmental charges.”48 Whether and when to compel a statement depends on a variety of factors, including the nature of the offense and the likelihood of criminal prosecution. Caution should be used in making this decision and also in determining how to use such statements and whether to share them with officers assigned to the criminal investigation.

Analyzing the Evidence

In some cases, the most difficult component of an investigation is reviewing the evidence and reaching findings consistent with what the evidence shows. Objectivity is obviously crucial. An investigator must be able to weigh and analyze the evidence without bias toward any party or the outcome. For example, irrelevant discrepancies in testimony or the inability to recall detail should never become the basis for deciding that testimony is unreliable. Similarly, investigators must not scrutinize evidence in cases involving staff more strictly than evidence in cases among prisoners.

In situations where one prisoner has allegedly abused another prisoner, “the question of consent goes to the heart of the matter,” Wall told the Commission, “because investigators are going to have to find ways to interpret and understand the relationship that took place. And that’s going to be a particular challenge for the profession.”49 Distinguishing between consensual and nonconsensual sex in an environment in which sex is traded for protection or comfort is difficult, especially absent physical injury and witnesses. In a study of women prisoners published in 2008, participants suggested that “young, naive, or scared offenders entered into relationships with more aggressive women, offering commissary and sexual intimacy in return for protection. Yet, female inmates typically saw these relationships as consensual.”50 The study of the Texas prison system previously mentioned revealed that line staff in one facility for women expect the prisoners to have sex with one another and viewed it as “part of the[ir] life style.”51 Although consensual sex may be a reality in correctional facilities for women as well as for men, when confronted with an allegation of abuse between prisoners, investigators must not erroneously or prematurely conclude that the encounter was not forced.

Through training, investigators can learn the characteristics of an objective investigative process and outcome and how to recognize and reject stereotypes that hinder objectivity.52 They may learn, for example, not to assume that a sexual encounter is consensual simply because there are no discernible physical injuries or because the alleged victim or perpetrator is homosexual. Although training cannot overcome deeply rooted prejudices, when it is accompanied by good supervision, investigators are more likely to remain objective as they weigh the evidence and formulate their findings.

To promote objectivity when investigating allegations of sexual abuse by staff, some correctional agencies now require that staff based outside the facility where the incident allegedly occurred conduct the criminal investigation. It also may be prudent to request independent law enforcement agencies to criminally investigate high-profile cases. The involvement of an outside law enforcement agency can reduce concerns about conflicts of interest as well as Garrity violations that could compromise the criminal case.53

Investigators also need clear guidance on what the evidence must show to substantiate allegations in an administrative investigation and to refer a case to a prosecuting authority. To ensure that the standard of proof in administrative investigations is fair and consistently applied whether the alleged perpetrator is a staff member or a prisoner, the Commission’s standards explicitly require investigators to base their conclusions on what the “preponderance of the evidence” shows. This standard of proof is significantly less stringent than what is required to convict someone of a crime but is adequate to protect individuals from being labeled as perpetrators and punished without cause. The Commission’s standards require the lead investigator to provide a written report of the findings, accompanied by supporting documentation, to the highest-ranking facility official.

Because specialized training for sexual abuse investigators is so important and because the deficits in some correctional systems and facilities are so great, the Commission’s standards require facilities to ensure that investigators are trained in the most up-to-date approaches to investigating sexual abuse in a correctional setting and to maintain written documentation showing that investigators have completed such training. The standard on training specifies minimum components for training programs: techniques for interviewing sexual abuse victims, proper use of Miranda and Garrity warnings when interviewing alleged perpetrators, protocols for collecting evidence in a correctional facility, and the evidentiary criteria required to substantiate a case for administrative sanctions and, separately, for referral to a prosecuting authority.

The Commission also recognizes that, in many correctional facilities and their surrounding local jurisdictions, investigators are scarce. One correctional administrator commented, “We need three investigators for 500 inmates. I have one.”54 Jail administrators often have difficulty getting local police to investigate reports of sexual abuse in their facilities.55 Several prison administrators have commented that law enforcement in their jurisdictions is stretched so thin that the State police asked the legislature to allocate additional resources to the department of corrections so that the department could hire internal affairs investigators with the authority to make arrests.56

Coordinating Responders

Any report of sexual abuse in a correctional facility must trigger an immediate response from security staff; forensic, medical, and mental health care practitioners; investigators; and the head of the facility. To meet the needs of victims while conducting a thorough investigation likely to hold perpetrators accountable, the Commission’s standards require these professionals to coordinate their efforts. Facility administrators have a responsibility to specify the scope and nature of what must be coordinated. Formal coordination in response to reports of sexual abuse is already a feature in some State correctional systems, including Alabama, Arkansas, Colorado, Connecticut, Minnesota, Ohio, Oregon, and Utah.57 Corrections departments should work with community-based sexual abuse advocates to develop a model of coordination intended to be truly responsive to the needs of victims in a correctional setting.58

Coordination sounds simple but can be challenging to realize in practice. Cross-training is crucial because each responder needs to understand the impact of his or her work on the situation overall. Clear channels of communication and flexibility are also important so that the professionals involved can adapt how they work together based on the circumstances of the incident and when it is reported. For example, if a prisoner reports an illicit relationship that occurred 6 months earlier with a corrections officer, an investigator will likely take the lead, working in coordination with any mental health practitioners involved. In contrast, if a prisoner reports being raped by an officer earlier that same day, a forensic medical examiner, a housing/security officer, and medical and mental health practitioners may take the lead initially, working closely with an investigator.

Corrections officers or other security personnel often respond to reports of sexual abuse before anyone else. Their first duty, under the Commission’s standards, is to ensure the immediate safety of the victim by separating the victim and alleged abuser. Their other immediate actions, as mandated under the Commission’s standards, have a significant impact on the investigation. They are responsible for securing the crime scene and instructing the victim not to take any actions that could destroy semen, saliva, skin cells, hair, and other physical evidence. For many victims, their initial instinct is to take a shower or throw away clothing they were wearing during the assault.59 “They get rid of this evidence because of their shame. . . and ignorance. . .” one corrections officer commented.60 Such feelings are normal and common among victims of sexual abuse.

First responders set the stage for the work of forensic examiners. When the sexual abuse has occurred recently and the allegation is rape, the Commission’s standards require facilities to offer the victim a forensic exam by a specially trained professional. Sexual assault forensic examiners
and sexual assault nurse examiners (SANEs) have the knowledge and skills to document physical findings and collect pertinent evidence from victims, including evidence that the sexual activity was not consensual.61 They recognize what evidence is important, how to preserve it, how to establish a chain of custody, and how to prepare the evidence for submission to a crime lab for analysis. Skill in this area is critical to successfully investigating and prosecuting sexual abuse.

As forensic nurse Leanne Holland told the Commission, “[W]hen I was an emergency room nurse, not that I wasn’t qualified, but I did not have the specialized training that I have today. . . . [T]hose cases did not go forward with prosecution, and those offenders, those perpetrators, are most likely still out there. . . compared to last week when there were three guilty pleas as a result of my education and training and working collaboratively with a team to, hopefully, make a difference in someone’s life.”62
An evaluation of SANE programs and multidisciplinary sexual assault response teams published in 2003 by the National Institute of Justice found that they improve the quality of forensic evidence and increase the ability of law enforcement to collect information, file charges, and prosecute and convict perpetrators while also providing better emergency health care for women who have been sexually assaulted.63

According to the International Association of Forensic Nurses, at least 276 SANE programs operate throughout the United States and its territories. Most (75 percent) are based in hospitals, but some (25 percent) operate in other settings.64 The Commission recognizes that specially trained forensic examiners are not readily available in all communities, particularly in rural areas. Forensic professionals who provided advice to the Commission have expressed an interest in expanding the network of trained examiners to ensure that victims of rape in any correctional facility have the option of receiving a thorough forensic exam.

Because physical evidence is crucial to a successful investigation, the Commission’s standards require correctional facilities to implement a protocol that dictates how to collect, maintain, and analyze physical evidence and that stipulates the responsibilities of the forensic examiner. In developing a custom protocol, facilities must consult the 2004 U.S. Department of Justice’s Office of Violence Against Women publication “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” (or subsequent editions, or similarly comprehensive and authoritative protocols developed after 2004).65 At the time of its publication, law enforcement officials and forensic medical examiners considered the national protocol the gold standard of sexual assault evidence protocols.

Several correctional agencies, including the Arizona Department of Corrections, have adapted the national protocol to reflect the significant differences of collecting forensic evidence in a confinement setting as opposed to in the community, including that the victim and perpetrator are usually located within the same facility, that the offender may be in a position of authority, that confidentiality is seldom possible, and that victims are less likely to cooperate with the investigation.66 Given the prevalence of sexual abuse in correctional facilities and the need to improve evidence collection, the Commission recommends that the Department of Justice develop a forensic evidence protocol specifically adapted to confinement and that can be used in all correctional facilities.

Criminal and administrative investigators should be involved as soon as possible after an incident of sexual abuse is reported, and the Commission’s standards require investigators to coordinate their separate efforts. In particular, individuals conducting an administrative investigation must coordinate with criminal investigators as well as prosecutors, facility administrators, and their legal counsel before taking compelled statements, which, as discussed, cannot be used against a defendant in a criminal case.67

When responders coordinate their work, each person can be more effective. Investigators may have more success interviewing victims and assessing their credibility, for example, if they consult first with mental health practitioners. Clinical input about the effects of trauma can help an investigator properly assess the person’s statements, especially if the victim appears under- or over-emotional. Even basic coordination between investigators and victim advocates can have a benefit.68 A woman who was sexually abused in a California prison and was initially uncooperative later gave the investigator all the information he needed to refer the case for prosecution after he told her that she would be able to talk confidentially with a counselor from a local rape crisis center. “My impression is that the inmate viewed the offer of confidential counseling services as a gesture of trust and concern,” Wendy Still, former Associate Director of Female Offender Programs for the California Department of Corrections and Rehabilitation, told the Commission.69 (See Chapter 6 for information about the many benefits of providing outside counseling to incarcerated victims of sexual abuse.)

Security staff also have a role to play beyond their immediate response. For example, many correctional systems designate specific staff to handle housing and other security issues that arise in conjunction with allegations of sexual abuse.70 Individuals in that role should coordinate with other responders to ensure that their decisions support the victim’s recovery and do not unnecessarily restrict the victim’s movements within the facility and participation in work, education, and other programming.

Unsubstantiated but Not Untrue

Consistently and thoroughly investigating reports of abuse encourages incarcerated persons and staff to speak out and facilitates holding perpetrators accountable. No national data have been collected on how often correctional facilities investigate reported abuses, and there is no body of research describing the quality of those investigations. We do know, however, that correctional facilities substantiate allegations of sexual abuse at very low rates. According to a report by the Bureau of Justice Statistics, facilities substantiated just 17 percent of all allegations of sexual violence, misconduct, and harassment investigated in 2006.71 That same year, 29 percent of allegations were determined to be “unfounded”—meaning that investigators concluded that sexual abuse did not occur. But the majority of allegations—55 percent—were “unsubstantiated,” which means that investigators could not determine whether or not the abuse occurred.

Substantiation rates in some States are considerably lower than the national rate. For example, the 2006 study conducted in Texas found that only 43 out of 1,938 allegations of sexual assaults by inmates, or approximately 2 percent, were substantiated.72 The situation in California appears similar. “The California correctional system today houses about 167,000 human beings inside its walls,” State Senator Gloria Romero told the
Commission.73 “Yet when we took a look at the statistics that were reported stemming from [PREA], the State [substantiated] 23 inmate-on-inmate sexual assaults and 75 staff-on-inmate assaults in the prison walls within the last year. . . . If we take a look at the Division of Juvenile Justice in California, formerly known as the California Youth Authority, there were nine [substantiated] allegations of sexual assaults that were made in a population of about 3,000. . . . So if we look at those statistics collectively, clearly we find [that] either California is doing tremendously well, we’re very safe, or California just hasn’t gotten it right. I tend to think it’s the latter.”

An “unsubstantiated” finding may be the result of a poor-quality
investigation or reflect the legitimate difficulty of gathering sufficient evidence. Whatever the cause, the high proportion of unsubstantiated
allegations—coupled with a failure to understand the difference between “unsubstantiated” and “unfounded”—can lead legislators, judges, and the public to conclude that sexual abuse of prisoners is less prevalent and serious than it really is.

Prisoners do sometimes fabricate accounts of sexual abuse, for example, to punish or control a staff member or another inmate, to be moved to a different housing unit, or to avoid shame and possibly also disciplinary action when caught in a consensual sexual act with another inmate.74 There is no reason to believe, however, that extremely low substantiation rates are attributable to a high number of false allegations. There is very limited research on false reporting and no consensus on rates. The more rigorous studies of false reporting in the community (as opposed to in confinement) suggest that rates might range from 2 to 8 percent.75 Certainly, there are motivations and rewards for falsely reporting sexual abuse in a correctional facility that have no parallel in the community. At the same time, the real risks associated with reporting even genuine sexual abuse are a strong disincentive to fabricating allegations.

So why are so few allegations of sexual abuse substantiated? As discussed, many problems can compromise the success of investigations, starting with a lack of clear policies on reporting and investigations and failure to establish a coordinated response. Other common problems include: too few investigators and not enough resources to support their work, a lack of specialized training for investigators, a weak protocol for the collection and preservation of evidence, the difficulty of investigating delayed reports of abuse, and a lack of coordination between administrative and criminal investigators.

Prosecuting Abusers

The corrections officer that Dana Ragsdale reported for sexual abuse continued to work at the Federal Detention Center in Philadelphia and at one point assaulted a woman so brutally she hemorrhaged and was sent to the hospital. He was eventually charged with and pleaded guilty to felony counts of engaging in sexual acts with three women prisoners, but he was not prosecuted for assaulting the woman who first confided in Ragsdale. The officer received 4 months in jail for sexual misconduct with three incarcerated women, followed by 3 years of probation—“in my view an inexcusably short sentence,” Ragsdale told the Commission.76

No culture of safety and of zero tolerance for sexual abuse can exist when perpetrators operate with impunity, without fear of serious consequences for their behavior, and are free to retaliate against or further victimize their accusers or others. If perpetrators are not held accountable, victims and witnesses of abuse will view reporting as futile and remain silent.77 Punishing perpetrators also has a deterrent effect, cautioning those who might be inclined to engage in abuse to think twice.78 And it is, of course, what justice requires.

The reality today, however, is considerably different. Despite the fact that most incidents of sexual abuse constitute a crime in all 50 States and under Federal law, very few inmate and staff perpetrators of sexual abuse in correctional settings are prosecuted. According to data collected by the Bureau of Justice Statistics, only 33 percent of substantiated cases of sexual abuse between prisoners and 45 percent of substantiated cases involving staff perpetrators were referred for prosecution in 2006, the most recent year for which data are available.79 Given that the substantiation rate nationally is just 17 percent, the proportion of cases referred for prosecution is small indeed.

There are no national data on how many referred cases are actually prosecuted; however, the Commission repeatedly heard testimony that prosecutors decline most referrals. Data provided by the Colorado Department of Corrections and the Federal Bureau of Prisons provide encouraging counterpoints. From 2005 to 2008, prosecutors in Colorado accepted 31 of the 65 cases referred. Over nearly a decade, from October 1999 to April 2009, 1,622 complaints of sexual abuse were submitted to the U.S. Office of the Inspector General. During this same time period, Federal prosecutors accepted 166 of the 321 cases presented and prevailed in 133 cases, either by verdict, plea, or pretrial diversion.

Prosecutors cite several reasons for turning away cases: the investigations were too poorly conducted to support a successful prosecution, the potential criminal penalties are minimal, and juries are generally unsympathetic toward incarcerated victims and unwilling to believe their allegations.80 As Martin Horn told the Commission, overburdened prosecutors “choose not to prosecute crimes when committed behind bars by individuals already serving a long sentence.”81 According to John Rees, Commissioner of the Kentucky Department of Corrections, the difficulty of winning cases of staff sexual misconduct is a significant disincentive for prosecutors. In his testimony to the Commission, Rees described these cases as “extremely difficult and extremely complicated. . . . [U]nfortunately. . . the weight of the testimony of a convicted felon is held in the balance when put up against an individual who has not been convicted of a felony.”82

In some jurisdictions, other dynamics are in play: some prosecutors do not view incarcerated individuals as members of the community and as deserving of their services as any other victim of crime. In smaller jurisdictions where the correctional facility is a major employer, a “company town” mentality may predominate, with prosecutors reluctant to take on cases in which the defendant is a corrections officer.

Limited views about what constitutes sexual abuse and who engages in abuse also can be a barrier to prosecution. Patricia Caruso, Director of the Michigan Department of Corrections, testified to the Commission about a case in which a female staff member had sexually abused a male prisoner: “I know that sometimes people feel that parties may be in love or that it is ‘consensual.’ There may be things in the world that fit that criteria. In prison they do not. . . . For a long time, it was more acceptable for women [than men] to resign and go on with their life. That is not acceptable in this department.”83 Caruso went to the Prosecuting Attorneys Association of Michigan and talked to them specifically about issues of staff sexual misconduct.84 In her experience, stereotypes can be overcome, in this case by educating prosecutors and juries about how female staff have helped male prisoners escape, brought dangerous contraband into the facility, and put other prisoners’ lives in danger by sharing confidential information.

Caruso requires prison wardens throughout Michigan to take the same kind of initiative. “I told the wardens when you have a case of sexual misconduct, I expect you to go personally to your local prosecutor. Part of being a warden—I was a warden more than half of my career in this department. . . is having a personal relationship in your community with local law enforcement,” Caruso said.85 Jesse Neely, Executive Assistant to the Commissioner of the Tennessee Department of Correction, agreed about the need to raise awareness. “State attorneys general and district attorneys need to be educated regarding PREA” to become more “sympathetic to the cause,” he told the Commission.86

Dialogue between corrections professionals and prosecutors should continue to occur through workshops and trainings organized by each group’s professional associations. The process began through a project sponsored by the Washington College of Law at American University and funded by the National Institute of Corrections to train prosecutors on investigating allegations of staff sexual misconduct with offenders.87 There also are national models of prosecutorial collaboration. In Massachusetts, for example, county district attorney offices have appointed a “prison liaison.”88 In Pennsylvania, from 1998 through 2005, corrections officials worked with district attorneys to convict 10 staff members of sexual misconduct.89 The State of Texas has taken an unusual step. A special unit, funded through the governor’s office, is charged with prosecuting all crimes that occur within any State correctional facility.90 Prosecutors in the unit encounter many of the above-mentioned difficulties, but their specialized experience, according to Chief Prosecutor Gina DeBottis, has enabled them to develop specific strategies for cases of prison sexual violence.91 The conviction rate for inmate and staff sexual abuse is modest but increasing annually.92

The Commission’s standards require correctional agencies to attempt to formalize a relationship with the prosecuting authority in their jurisdictions through a memorandum of understanding or other agreement. These agreements should be the basis for making cases of prison sexual violence a higher priority for prosecutors. They can also provide a framework for the kind of working relationship that leads to effective investigations and more criminal convictions. As Aaron Aldrich told the Commission, such agreements are “imperative.”93

Although prosecutors must endeavor to take on and win more cases in court, San Francisco Sheriff Michael Hennessey reminded the Commission that just the fact of a referral can have a deterrent effect on prisoners who might otherwise perpetrate sexual abuse. “[Confinement facilities] have very effective grapevines, . . . and inmates know what’s taken seriously and what’s not taken seriously. And if a person is. . . booked and charged with sexual assault in a county jail, even if there [is no] prosecution because of evidence or witness problems, they know that that has happened. . . . [I]f [the perpetrator goes] to another institution, . . . when the State prison officers classify that person, they’re going to red flag it. . . ,
and that may prevent sexual assault at the next facility. . . .”94

Tightening Administrative Sanctions

Every allegation of sexual abuse must trigger an administrative investigation; when the investigation substantiates those allegations, the perpetrator of the abuse must be disciplined. Sanctions should never be the sole response to rape and other serious forms of sexual abuse. Until more cases are successfully prosecuted, however, many perpetrators of serious sexual abuse will be subject only to administrative discipline, making sanctions in these cases especially important. It is crucial that sanctions be fair, consistent, and sufficiently stringent to serve as a deterrent to continued abuse. Applying sanctions in an arbitrary or biased fashion undermines their purpose and the broader mandate to demonstrate zero tolerance to sexual abuse. Unfortunately, no national data exist on which to base conclusions about whether correctional facilities are consistently meting out discipline appropriate for the culpability and conduct of perpetrators. The data available provide only a basic breakdown of the sanctions applied.

According to data collected by the Bureau of Justice Statistics on substantiated incidents of sexual abuse in 2006, the sanctions for staff perpetrators of sexual abuse, applied alone or in combination, were: discharge (44 percent of all sanctions), demotion/diminished responsibilities (1 percent), reprimand/discipline (10 percent), and transfer to another facility (1 percent).95 In addition, although not technically sanctions, the outcomes also included resignation prior to the investigation (26 percent) and resignation after the investigation was completed (7 percent). When the perpetrators of abuse were other prisoners, the Bureau of Justice Statistics reported the following sanctions, applied alone or in combination: placement in solitary confinement (78 percent of all sanctions), cell confinement (16 percent), placement in a higher level of custody (22 percent), loss of privileges (20 percent), and transfer to another facility (22 percent).96

When staff perpetrate sexually abusive contact or penetration, termination must be the presumptive sanction according to the Commission’s standards. Termination may also be the appropriate response when staff deliberately or repeatedly violate sexual abuse policies, such as the duty to report. Union contracts affirm the ability of employers to discipline staff for just cause, although in practice, some agreements either limit an agency’s ability to sanction staff or provide avenues that too easily allow sanctions to be overturned. Agencies and unions should amend such agreements. Institutional safety is impossible without equilibrium between a union’s obligation to protect its members and management’s duty to impose reasonable sanctions. Correctional agencies must also provide law enforcement agencies and relevant licensing entities with the names of all terminated staff to help prevent an employee fired for sexual abuse from being employed by a facility in another jurisdiction and potentially abusing prisoners there.

When prisoners perpetrate sexual abuse, the Commission’s standards require that discipline be commensurate with the nature of the abuse, the prisoner’s disciplinary history, and the sanctions imposed in response to similar offenses by other prisoners with comparable histories. When determining what type of sanction, if any, to impose, the disciplinary process must consider whether a mental disability or mental illness may have contributed to the abusive behavior. Interventions designed to address and correct underlying reasons or motivations for sexual abuse, such as requiring the perpetrator to participate in therapy or counseling, also must be considered.

Sanctions should support the facility’s zero-tolerance policy without being unduly punitive or counterproductive. In particular, perpetrators should not be placed for prolonged periods in disciplinary segregation because conditions in these units have the potential to cause or aggravate symptoms of mental illness and to limit access to needed mental health services.97 Finally, facilities should fully integrate their disciplinary process with their classification system, triggering a review of the prisoner’s classification to manage the risk that the person will sexually abuse other prisoners.

Although agencies must sanction staff for sexual contact with prisoners, incarcerated persons should not be punished for their involvement, regardless of whether or not the encounter was allegedly consensual. The power imbalance between staff and prisoners vitiates the possibility of meaningful consent. In addition, the threat of being punished for a relationship deemed to be consensual would deter prisoners from reporting sexual abuse by staff.

Of course, prisoners sometimes engage in sexual relationships with staff to further illicit activities. The U.S. Department of Justice’s Office of the Inspector General found that Federal prisoners had engaged in sexual relations with staff to obtain drugs; use unmonitored phones; communicate with other prisoners while in isolation; learn sensitive information about other prisoners, such as who may be acting as an informant; or access information that could help them escape.98 Prisoners should be held responsible for these crimes and rule violations but not for any underlying sexual relationship with staff that facilitated their behavior.

In sum, everyone who engages in sexual abuse in a correctional facility or other corrections setting must be held accountable for their actions. There has been too little accountability for too long. The Commission designed its standards in this area to change the dynamic by encouraging incarcerated individuals and staff to report abuse and by requiring correctional facilities to protect those who speak out, conduct effective investigations, and ensure appropriate punishment.

Inmate reporting

The facility provides multiple internal ways for inmates to report easily, privately, and securely sexual abuse, retaliation by other inmates 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 inmates 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-2), except when an inmate requests confidentiality. Staff accepts reports made verbally, in writing, anonymously, and from third parties and immediately puts into writing any verbal reports.

Third-party reporting

The facility receives and investigates all third-party reports of sexual abuse (IN-1). At the conclusion of the investigation, the facility notifies in writing the third-party individual who reported the abuse and the inmate named in the third-party report of the outcome of the investigation. The facility distributes publicly information on how to report sexual abuse on behalf of an inmate.

“When I told one of the guards I trusted how tired
I was of putting up with abuse [by other youth in the facility], he told me to just ignore it.”

Staff and facility head reporting duties

All staff members are required to report immediately and according to agency policy any knowledge, suspicion, or information they receive regarding an incident of sexual abuse that occurred in an institutional setting; retaliation against inmates 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 policy, to make treatment, investigation, and other security and management decisions. Unless otherwise precluded by Federal, State, or local law, medical and mental health practitioners are required to report sexual abuse and must inform inmates of their duty to report at the initiation of services. If the victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the facility head must report the allegation to the designated State or local services agency under applicable mandatory reporting laws.

Reporting to other
confinement facilities

When the facility receives an allegation that an inmate was sexually abused while confined at another facility, the head of the facility where the report was made notifies in writing the head of the facility where the alleged abuse occurred. The head of the facility where the alleged abuse occurred ensures the allegation is investigated.

“Remember if you tell anyone anything, you’ll have to look over your shoulder for the rest of your life.”

Agreements with outside public entities and community service providers

The agency maintains or attempts to enter into memoranda of understanding (MOUs) or other agreements with an outside public entity or office that is able to receive and immediately forward inmate reports of sexual abuse to 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 inmates with confidential emotional support services related to sexual abuse and (2) help victims of sexual abuse during their transition from incarceration to the community (RE-3, MM-3). The agency maintains copies of agreements or documentation showing attempts to enter into agreements.

Agency protection against retaliation

The agency protects all inmates and staff who report sexual abuse or cooperate with sexual abuse investigations from retaliation by other inmates or staff. The agency employs multiple protection measures, including housing changes or transfers for inmate victims or abusers, removal of alleged staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or cooperating with investigations. The agency monitors the conduct and/or treatment of inmates or staff who have reported sexual abuse or cooperated with investigations, including any inmate disciplinary reports, housing, or program changes, for at least 90 days following their report or cooperation to see if there are changes that may suggest possible retaliation by inmates or staff. The agency discusses any changes with the appropriate inmate or staff member as part of its efforts to determine if retaliation is taking place and, when confirmed, immediately takes steps to protect the inmate or staff member.

The stakes are high: failure to investigate allegations sends
a message to staff and prisoners that speaking out may put the victim at risk but has no consequences for the abuser.
In such environments, silence prevails and abuse flourishes.

Duty to investigate

The facility investigates all allegations of sexual abuse, including third-party and anonymous reports, and notifies victims and/or other complainants in writing of investigation outcomes and any disciplinary or criminal sanctions, regardless of the source of the allegation. All investigations are carried through to completion, regardless of whether the alleged abuser or victim remains at the facility.

Agreements with outside law enforcement agencies

If an agency 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 inmates, the agency 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 confines inmates under the age of 18 or other inmates who fall under State and local vulnerable persons statutes, the agency 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 confinement facilities. When the agency 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 maintains a copy of the agreement or documentation showing attempts to enter into an agreement.

Criminal and administrative agency investigations

Agency investigations into allegations of sexual abuse are prompt, thorough, objective, and
conducted by investigators who have received special training in sexual abuse investigations (TR-4). When outside agencies investigate sexual abuse, the facility has a duty to keep abreast of the investigation and cooperate with outside investigators (RP-3). Investigations also include the additional elements listed on pp. 108–109.

According to a report published by the National Institute of Corrections, many sexual abuse investigators are so unfamiliar with the dynamics inside a correctional facility that they cannot operate effectively, making mistakes
that are in some instances glaring.

“Investigative personnel can be trained [and] proficient [in] investigatory techniques, standards, [and] protocols and yet fail in securing either successful prosecution or termination of violators if they do not recognize the basic premise that
an offender can also be a victim. . . .”

Evidence standard for administrative investigations

Allegations of sexual abuse are substantiated if supported by a preponderance of the evidence.

Specialized training: Investigations

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 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.

Coordinated response

All actions taken in response to an incident of sexual abuse are coordinated among staff first responders, medical and mental health practitioners, investigators, and facility leadership. The 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.

Staff first responder duties

Upon learning that an inmate was sexually abused within a time period that still allows for the collection of physical evidence, the first security staff member to respond to the report is required to (1) separate the alleged victim and abuser; (2) seal and preserve any crime scene(s); and (3) instruct the victim not to take any actions that could destroy physical evidence, including washing,
brushing his or her teeth, changing his or her clothes, urinating, defecating, smoking, drinking, or eating. If the first staff responder is a non-security staff member, he or she is required to instruct the victim not to take any actions that could destroy physical evidence and then
notify security staff.

Evidence protocol and forensic medical exams

The agency follows a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. The protocol must be adapted from or otherwise based on the 2004 U.S. Department of Justice’s Office on Violence Against Women publication “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” subsequent updated editions, or similarly comprehensive and authoritative protocols developed after 2004. As part of the agency’s evidence collection protocol, all victims of inmate-on-inmate sexually abusive penetration or staff-on-inmate sexually abusive penetration are provided access to forensic medical exams performed by qualified forensic medical examiners. Forensic medical exams are provided free of charge to the victim. The facility makes available a victim advocate to accompany the victim through the forensic medical exam process.

No national data have been collected on how often correctional facilities investigate reported abuses, and there is no body of research describing the quality of those investigations. We do know, however, that correctional facilities substantiate allegations of sexual abuse at very low rates.

Agreements with the prosecuting authority

The agency maintains or attempts to enter into a written MOU or other agreement with the authority responsible for prosecuting violations of criminal law. The agency maintains a copy of the agreement or documentation showing attempts to enter into an agreement.

“I told the wardens when you have a case of sexual misconduct, I expect you to go personally to your local prosecutor.”

Until more cases are successfully prosecuted, however,
many perpetrators of serious sexual abuse will be subject
only to administrative discipline, making sanctions
in these cases especially important.

Disciplinary sanctions for staff

Staff is subject to disciplinary sanctions up to and including termination when staff has violated agency sexual abuse policies. The presumptive disciplinary sanction for staff members who have engaged in sexually abusive contact or penetration is termination. This presumption does not limit agency discretion to impose termination for other sexual abuse policy violations. All terminations for violations of agency sexual abuse policies are to be reported to law enforcement agencies and any relevant licensing bodies.

Disciplinary sanctions for inmates

Inmates are subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative ruling that the inmate engaged in inmate-on-inmate sexual abuse or following a criminal finding of guilt for inmate-on-inmate sexual abuse. Sanctions are commensurate with the nature and circumstances of the abuse committed, the inmate’s disciplinary history, and the sanctions meted out for comparable offenses by other inmates with similar histories. The disciplinary process must consider whether an inmate’s mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed. Possible sanctions also include interventions designed to address and correct underlying reasons or motivation for the abuse, such as requiring the offending inmate to participate in therapy, counseling, or other programs.

Chapter 6  

Treating Trauma

FINDING: Victims are unlikely to receive the treatment and support known to minimize the trauma of abuse. Correctional facilities need to ensure immediate and ongoing access to medical and mental health care and supportive services.

It was a warm July night in the District of Columbia and the jail’s air conditioning was not working, so staff left the cell doors open.1 The senior officer in charge, a woman, was known to organize events where women inmates stripped and danced naked on the dining room tables. As inmates and male and female staff mingled in the heat on this particular evening in 1995, an officer started playing loud music in the dining room. A crowd soon formed and several inmates began dancing. Sunday Daskalea, the victim of ongoing sexual harassment while detained at the jail, fled to her cell, afraid of being forced to participate. After a few minutes, the officer in charge demanded that Daskalea be brought out. The music stopped and the crowd, which now also included maintenance workers, began chanting Daskalea’s name.

Two inmates dragged Daskalea out of her cell and into the center of the crowd, where the officer in charge ordered her to dance. Daskalea complied, removing all her clothes except her underwear, but was so frightened that her legs trembled. Staff and inmates watched her as she danced, “shouting and clapping; some flashed money.”2 One inmate grabbed Daskalea and rubbed baby oil all over her body. When Daskalea fell to the floor, that inmate lay on top of her, rubbing her body against Daskalea’s. When Daskalea was questioned about the incident a few days later, she told the interviewer she was afraid something would happen to her if she provided any details. Indeed, a few days later, all of her underwear was confiscated as “contraband” and she was placed in solitary confinement, initially without a mattress.3

This was only the latest in a string of abusive incidents Daskalea had suffered at the facility. On one earlier occasion, an officer pulled her out of her cell and forced her into a room where a male inmate, known for his sexual misconduct, was waiting. The man attacked Daskalea and attempted to rape her. The sexual harassment and abuse escalated over time. Daskalea reported the abuse to jail officials and to the judge who sentenced her; although the judge held a hearing and recommended that Daskalea be moved out of the D.C. jail for her safety, jail authorities took no action.4

Completely without protection, Daskalea became crippled by fear. She slept only during the day, afraid of what officers might do to her at night. She testified in court that she felt “constant stress, anxiety, and dread of imminent sexual attack.”5 Even her release from jail in August 1995 did not free her. Daskalea suffered from insomnia, struggled with eating disorders, and “spent months emotionally and psychologically debilitated, withdrawn and depressed.” According to the U.S. Court of Appeals for the District of Columbia, “These injures are hardly surprising or unexpected in light of the abuse Daskalea suffered. . . . [I]t
does not take an expert to confirm the jury’s common sense with respect to both their existence and cause.”6 The court awarded Daskalea compensatory damages for mental and emotional distress. Court records do not reveal what clinical treatment, if any, Daskalea received following the attempted rape and the extraordinary abuses she endured while confined, but her testimony suggests that she was in urgent need of counseling and support services while she was incarcerated and after her release.

As corrections administrators work to create a protective environment in the facilities they manage, they also have a legal duty to ensure that when systems fail and abuse occurs, victims have unfettered access to appropriate medical and mental health services.7 Healing from sexual abuse is difficult under the best circumstances; without adequate treatment, recovery may never occur. This chapter describes common mental and physical effects of sexual abuse—underscoring why treatment is so important—and explores why many victims do not seek or receive the medical and mental health care they need and to which they are entitled by law.

An Assault on Body and Mind

As sexual assault nurse examiner Jennifer Pierce-Weeks told the Commission, experiences of sexual abuse have the potential to harm a person in every dimension of life: “psychological, physical, spiritual, and social. . . .”8 Potentially long-lasting psychological aftereffects of sexual abuse are well documented. They include posttraumatic stress disorder (PTSD), anxiety disorders, fear of loud noises or sudden movements, panic attacks, and intense flashbacks to the traumatic event.9 Each of these consequences alone has the ability to re-traumatize victims for years.10

Almost all victims of an invasive or violent sexual assault develop some symptoms of PTSD, although the symptoms may not show up until weeks or months after the abuse.11 PTSD is not unique to victims of sexual abuse; it is a possible response to any life-changing event that is destructive and destabilizing.12 Symptoms of PTSD vary and include sadness, explosive anger, feelings of hopelessness, changes in memory or thinking, feeling marked or changed in a permanent way, obsessing about the event or persons involved, relating to others differently, losing trust in others, and other detrimental reactions.13 Some victims experience PTSD for just a few weeks or months; for others, the symptoms are long lasting and hard to overcome.

Hope Hernandez was raped by a corrections officer in 1997 in the hospital ward of the same jail in which Daskalea was sexually abused. In her testimony to the Commission, Hernandez spoke about the lasting effects of sexual assault. “Although it’s been eight years, I’m still suffering from the effects of that rape. On the one-year anniversary of this rape, I kept seeing the guard’s face over me. . . . I wanted to see something besides his face. . . . [M]y husband has tried to be intimate with me. All I could see was this guard’s face flashing back in my mind, and I would become ill.”14 Such vivid flashbacks are not uncommon for victims of sexual abuse.15

Avoiding stimuli likely to trigger a flashback or other emotional responses is particularly difficult in a correctional facility, where victims may regularly encounter the setting where the abuse occurred—in some cases their own cell. It also may be impossible to avoid their abuser, causing them to continually relive the incident and maintaining the trauma.16 When victims remain at risk of repeated abuse, their fears are both rational and debilitating. For this reason, the Commission’s standards require first responders to separate the victim from the alleged abuser. (See Chapter 5 for a detailed discussion of responsibilities of first responders.)

“I’ve abused drugs and alcohol and tried to kill myself on the installment plan,” Chance Martin told the Commission. “I couldn’t successfully commit suicide; although, I wanted to worse than anything in the world.”17 At age 18, Martin was sexually abused while incarcerated in the Lake County Jail in Crown Point, Indiana. Martin’s wish to end his life is not atypical among victims of sexual abuse. In non-correctional settings, one-third to one-half of rape victims consider suicide; between 17 and 19 percent actually attempt suicide.18 Young women are particularly susceptible to thoughts of suicide following a traumatic personal event.19 For young women and girls, any experience that threatens their sense of safety or one that unsettles their understanding of morality can lead to thoughts of self-harm.20

There also appears to be a strong correlation between the psychological responses to trauma and self-mutilating behaviors, such as head-banging, cutting, and swallowing razors or glass.21 A study of teenage girls who had experienced sexual abuse found that almost half of them suffered from clinical levels of depression, anxiety, and PTSD, and 62 percent engaged in self-mutilating behavior.22 Victims may use self-mutilation as punishment if they blame themselves for the abuse, or they may be using physical pain to block unbearably painful emotions.23 The risk of suicide and self-mutilation make it especially important for sexual abuse victims to have immediate access to treatment and for medical and mental health care professionals and other corrections staff to monitor survivors closely and respond quickly to any warning signs.

Studies of incarcerated individuals also suggest that men and women victims may react differently and in varying degrees to sexual trauma.24 In addition to the psychological responses already described, reactions of males to sexual victimization by other men in confinement may include feeling that one has lost “status” in the facility, lack of confidence in one’s masculinity, and feeling that one has been made more feminine as a result of the abuse.25 Male victims who did not identify as gay or bisexual prior to their incarceration may develop confusion about their sexual orientation or gender identity if sexually victimized by other men. Other
prisoners or staff also may taunt a male victim about being a “woman” or make the victim feel that his sexual orientation was compromised as a result of the experience.26

Sexual abuse and emotional and psychological responses may also lead to serious medical conditions. For both men and women, responses like chronic anxiety, hyper-arousal, sleep disturbances, and eating disorders are strongly associated with development of long-term health problems, including cardiovascular disease, ulcers, and a weakened immune system.27 Women victims can develop fibromyalgia, a chronic disorder characterized by musculoskeletal pain and tender spots across the body.28 Rape of women by men also carries the risk of pregnancy.29 Studies indicate that sexual abuse victims have poorer physical functioning in general and more physical ailments than non-abused individuals, even after controlling for emotional disturbances such as depression.30

In addition to the mental and physical problems that stem from sexual abuse, many victims are physically injured during the course of a sexual assault. Depending on the degree of force, the size of the perpetrator in relation to the victim, and any weapons involved, physical injuries can include bruises, lacerations, bleeding, broken bones, concussions, knocked-out teeth, internal injuries, and even more serious physical damages.31 Physical injuries incurred by women as a result of rape also may lead to persistent pelvic pain, excessive menstrual bleeding and cramping, and other gynecological disorders.32

A study of incarcerated men found that more than half of all sexual assaults resulted in physical injury. Men assaulted by other prisoners were somewhat more likely than those assaulted by corrections staff to be injured physically (67 percent compared with 53 percent). Only a quarter of the injuries documented in this study—those to the anus or throat—were a direct consequence of forced penetration. However, victims of sexual assaults by other prisoners were more likely to sustain internal injuries or be knocked unconscious than victims of physical but nonsexual assaults.33

Exposure to HIV and other sexually transmitted infections is another potential consequence of sexual abuse, although if a prisoner is infected with one of these diseases, the symptoms may not be evident for months following an assault. Michael Blucker tested negative for HIV when he
was admitted to the Menard Correctional Center in Illinois in 1993 but, approximately a year later, after being raped multiple times by other prisoners, Blucker tested positive.34 Although he eventually lost his lawsuit against
the corrections staff he believes were deliberately indifferent to his victimization, his case prompted Illinois legislators to pass a law protecting
prisoners against acts that have the potential to result in an “unadjudicated death sentence.”35

In 2005–2006, 21,980 State and Federal prisoners were HIV positive or living with AIDS.36 Researchers believe the prevalence of hepatitis C in correctional facilities is dramatically higher, based on number of prisoners
with a history of injecting illegal drugs prior to incarceration. Sexually transmitted infections, such as gonorrhea, syphilis, and chlamydia, are also prevalent in the incarcerated population.37 According to testimony before the Commission, the Centers for Disease Control and Prevention (CDC) lacks data to assess the
extent to which sex in correctional facilities, whether rape or consensual, contributes to the high prevalence of HIV in prisons and jails.38 One CDC study did find that individuals in confinement may contract HIV in a variety of ways, including sexual contact.39

The CDC has made a number of recommendations to address and potentially mitigate the risk of HIV/AIDS for incarcerated individuals and the community, including HIV education, peer-education programs, testing, and prevention counseling for prisoners.40 The CDC study also noted that “providing condoms to sexually active persons is an integral part of HIV prevention interventions outside of prison.”41 The Commission does not endorse the use of condoms in prisons and notes that sexual activity, whether consensual or not, is generally prohibited in correctional systems, but refers to this study because we believe that the incidence of HIV in certain populations outside correctional systems is likely attributable in part to such activity within correctional systems.

Because of the disproportionate representation of minority men and women in correctional settings, it is likely that the spread of these diseases in confinement will have an even greater impact on minority men, women, and children and their communities. As such, the Commission recommends that funds be made available to the appropriate entities for research into whether consensual and/or nonconsensual sexual activity in the corrections system may play a role in infecting populations outside corrections with HIV/AIDS and other sexually transmitted infections.

A Duty to Care and Unmet Needs

While incarcerated in the Women’s Correctional Institute in New Castle, Delaware, in 1995, Valerie Daniels was sexually assaulted by one of the officers working in the facility.42 The officer entered Daniels’s cell, forced her to perform oral sex on him, and then proceeded to vaginally rape her. Daniels did not report the rape or seek treatment until she began to feel ill and suspected she might be pregnant. A positive pregnancy test conducted at the facility’s health center confirmed her suspicions. Although Daniels reported feeling upset following the rape and had a history of emotional problems as well as developmental disabilities, she was not offered rape counseling or any other form of therapy at the facility, but only prescribed antidepressants. Daniels failed to persuade the court that prison officials were deliberately
indifferent to her health care needs. However, experts testified on her
behalf that antidepressants alone are not an appropriate form of treatment for a woman who has been raped.

More than three decades have passed since the U.S. Supreme Court established in Estelle v. Gamble that deliberate indifference to the health of prisoners is a form of cruel and unusual punishment.43 Since then, correctional agencies have struggled, and sometimes failed with tragic results, to meet the medical and mental health care needs of a large and often ill prisoner population. According to surveys of prisoners conducted by the Bureau of Justice Statistics (BJS) in 2004, 44 percent of people confined in State correctional facilities and 39 percent of Federal prisoners reported a current medical condition.44 Self-reports of mental illness are even higher. In the same BJS survey, more than half of incarcerated individuals reported a recent history or symptoms of a mental heath problem—56 percent of State prisoners, 45 percent of Federal prisoners, and 64 percent of jail inmates.45 Medical and mental health care for adults and youth in confinement deserves careful attention.

BJS is also the primary source of national data about the availability of treatment. A study published in 1999 that focused on mental health care found that only 60 percent of Federal and State prisoners and 41 percent of individuals confined in jails reported receiving necessary mental health services.46 More recently, independent researchers analyzed BJS’ 2002 survey of jail inmates and 2004 survey of State and Federal prisoners and found that many prisoners with persistent problems had never been examined by a health care professional in the facility where they were incarcerated.47 This problem was much worse in jails than in prisons: 68 percent of jail inmates with medical problems reported never being examined, compared with 14 percent of Federal prisoners and 20 percent of State prisoners.

Although the National Commission on Correctional Health Care (NCCHC) developed a set of standards that clearly define what is needed to run a functional medical and mental health program, prisons and jails are not required to comply with those standards.48 NCCHC accreditation requires a fee and is strictly voluntary; many facilities elect not to engage in this process. As a result, only 225 jails, 135 prisons, and 59 juvenile
detention facilities are currently NCCHC accredited.49

Correctional health care is seriously underfunded almost everywhere, and most facilities are in dire need of additional skilled and compassionate
health care practitioners.50 Appropriate mental health screening and treatment, in conjunction with careful classification, will protect vulnerable prisoners from sexual victimization. (See Chapter 3 for a detailed discussion of risk and vulnerability.) When abuse does occur, providing appropriate treatment often is the most effective way to promote recovery and reduce the chance that the trauma of sexual abuse will lead to lasting or life-threatening medical or mental health problems.

Delivering Quality Care by Trained Professionals

Given the potentially severe and long-lasting medical and mental health consequences of sexual abuse, the Commission’s standards require facilities to ensure that victims have unimpeded access to emergency medical treatment and crisis intervention as well as continuing medical and/or mental health evaluations and care for as long as necessary.

Generally, emergency care after sexual assaults includes diagnosing and treating any physical injuries, arranging for a forensic medical exam when appropriate and with the victim’s consent, assessing the victim’s medical and mental health needs, and planning follow-up care. Health practitioners, not security or other staff, must determine the nature and scope of the treatment based on their professional judgment. The quality of this initial response is crucial. As Jennifer Pierce-Weeks told the Commission, “receiving compassionate care at the time of the assault by an appropriately trained examiner. . . can assist all victims in their short and long-term healing process.”51

The initial response is only the beginning. The Commission designed its standard on ongoing treatment to ensure that skilled medical and mental health care practitioners assess and respond to a victim’s evolving medical and mental health care needs. Victims of sexual abuse may experience health problems that manifest weeks or months after the abuse has occurred. In terms of ongoing medical care, the Commission strongly urges medical staff to encourage victims to be tested for HIV and viral hepatitis 6 to 8 weeks following an incident of abuse and to obtain pregnancy tests in cases of vaginal penetration. These tests must be voluntary. The standard also requires facilities to conduct a mental health evaluation of all known abusers and to provide the treatment recommended.

Although diagnosing and treating emotional and psychological repercussions of sexual abuse is complex, there are a number of effective interventions and treatment modalities.52 In particular, studies suggest that group therapy is an effective intervention for victims of sexual abuse because it offers a supportive environment, prevents victims from feeling isolated, and validates their experiences and feelings.53 Because correctional facilities are closed environments, the use of group therapy should be carefully handled—victims could be in danger if sensitive information filters out beyond the group to other prisoners or staff. Clinicians have used other treatment approaches with victims of sexual abuse, including psycho-education and cognitive behavioral therapy, and can easily adapt these approaches to correctional settings.54 The challenge, clinicians agree, is finding the right intervention for victims at each stage of the healing process.

Incarcerated individuals often do not report sexual abuse. In such cases, ensuring appropriate treatment hinges on knowing when an incarcerated individual’s mental or physical health problems might indicate that abuse has occurred. For this reason, the Commission’s standards require correctional facilities to ensure and document that all full- and part-time medical and mental health care practitioners receive training in the detection and assessment of sexual abuse. Correctional administrators seeking guidance on how to meet this standard can look to their peers in Alabama, Minnesota, and Texas. These systems provide this kind of training to the health care practitioners who work in their facilities.55

The appropriate treatment method for victims of sexual abuse may vary, depending on the type of facility or setting. For example, the more open, communal nature of community corrections may allow for types of treatment that would not work as well in more secure settings. Treatment in juvenile facilities will also differ from treatment in adult facilities due to the psychological, cognitive, and developmental differences between youth and adults. As a result of these differences, the Commission’s Standards for juvenile facilities require that medical and mental health practitioners working with youth be specially trained on how to provide treatment to young victims of sexual abuse.

The Commission’s standard on ongoing medical and mental health treatment requires that care provided in correctional facilities match what is generally acceptable to medical and mental health care professionals. The Commission acknowledges that meeting this seemingly simple standard is a real challenge, especially for facilities in remote locations, where specialists, community providers, and other treatment resources may be scarce. Partnerships between correctional systems and local medical and mental health care providers are helping to meet this need. Hampden County, Massachusetts, was one of the first places to pilot such a program, referred to as Community Oriented Correctional Health Services. Through the program, doctors, nurses, and case managers from the community serve as the medical and mental health care practitioners in the jail. Hampden County’s success inspired other jurisdictions, including Washington, D.C., and Ocala, Florida.56 Similar partnerships are in place elsewhere. For example, the Connecticut Department of Correction contracts with the University of Connecticut to provide health care to all State prisoners. Incarcerated individuals who are victims of sexual assault can receive free counseling and other medical and mental health services for as long as necessary.57

Such partnerships operate with the goal of raising the quality of correctional medical and mental health care and ensuring that all victims of sexual abuse have access to adequate treatment during and after their period of confinement.58 Continued care is important to the long-term medical and mental health of victims and also to protecting community health—each year, jails and prisons release more than 1.5 million people with infectious diseases, many of which can spread through sexual contact.59

Addressing an Ethical Dilemma “as Old as Prisons Are Themselves”

Regardless of the quality of available treatment, some victims of sexual abuse in confinement settings may be reluctant to access medical and mental health services.60 When sexual abuse occurs in the community, victims—unless they are children—can see a doctor or counselor and be assured that the information they provide will remain confidential. Anyone can understand the desire for absolute confidentiality, especially when the circumstances involve something as intimate as sexual abuse, but the nature of life in a correctional facility and the goals of safety and security make that impossible. “Absolute confidentiality is a nice idea. And in an ideal world, I would concur wholeheartedly,” Art Beeler told the Commission.61 Beeler, a former warden of the Federal Correctional Complex in Butner, North Carolina, explained that facility staff need to know when abuse occurs and who is allegedly involved to adequately protect victims. “Without [this information], a correctional officer or unit staff member may house the [victim] with the perpetrator’s best buddy. Or worse yet, with the perpetrator. . . . If this information was not available to correctional personnel, your decision in housing an offender may be, in fact, a death sentence.”62

Former Medical Director of the New Mexico Department of Corrections Mike Puisis raised the same concerns in his testimony to the Commission, “Medical professionals [who work in correctional facilities] should be required to report rape. . . . [M]edical ethics and patient safety are the reasons that reporting rape should be a professional obligation. Hopefully, the reporting of rape will result in the safety of the patient.”63

Although the potential consequences of withholding information are clear, striking the right balance in terms of sharing sensitive information among corrections staff is not easy. As Beeler noted, “The ethical dilemma of whom to share information with in a prison environment is probably as old as prisons are themselves. On one side. . . is the desire that the information not be shared with those who do not have the sensitivity to handle the information in a professional manner. On the other side is the need to keep staff and inmates safe and the institution secure.”64

The Commission believes that absolute confidentiality is not in the best interest of the victim or the safety of the facility. The standards require that all facility staff, including medical and mental health care practitioners,
report any allegations or suspicions of sexual abuse. Many States—including
New Mexico where Puisis worked, as well as California, Georgia, and Texas—already have policies that meet this standard. At the same time, correctional mental and medical health care professionals must discreetly handle information provided by victims of sexual abuse, sharing it with other staff only on a need-to-know basis and following clear protocols. They also must inform prisoners of their duty to report before providing services.

Because physician-patient confidentiality is a hallmark of medical care in the community, doctors, nurses, and counselors must be clearly informed about their duties as mandatory reporters. The Commission’s standard on training for medical and mental health practitioners requires facilities to ensure that all full- and part-time staff receive training on how and to whom to report information about sexual abuse. Policies on mandatory reporting must also be covered in sexual abuse education programs for prisoners. Clear policies communicated effectively to both medical and mental health care practitioners and prisoners ensure that everyone has the same understanding of what mandatory reporting entails.

Offering Other Options

Many incarcerated individuals will only access medical or mental health treatment if they feel confident that doing so will not put them at risk for further harm. Individuals who testified before the Commission often expressed fear that speaking out about abuse and naming abusers may lead to retaliation.65 Retaliation can take many different forms. Lost privileges, internal sanctions, and threats of injury are possible when individuals name perpetrators of sexual abuse. Victims as well as witnesses may be reluctant to seek treatment because they are afraid to name the perpetrator and follow through with a formal complaint and investigation. (See Chapter 5 for a more detailed discussion.) For these reasons, the Commission’s standards mandate that medical and mental health care practitioners provide a sexual abuse victim needed treatment, regardless of whether he or she names the perpetrator. Without this policy, sexual abuse victims may decide that the risk of further harm is too great and elect not to access treatment.

The Commission realizes that some victims will never feel comfortable or safe disclosing their experience of sexual abuse to a corrections employee. The standards, therefore, require facilities to give prisoners information about how to contact victim advocates and other support services in the community and underscore that victim communication with outside advocates be private and confidential to the extent permitted by law. Meeting this standard can be as simple as prominently posting toll-free hotline numbers. However, the Commission requires correctional facilities to try to develop real relationships with community-based organizations, formalized through memoranda of understanding—not only to fulfill this particular standard but, when possible, to ensure that victims of sexual abuse have support as they transition from the facility back to their home communities. Collaborations with community-based crisis centers are currently in place in numerous States, including California, Iowa, Ohio, Pennsylvania, and Utah.66

“Paths to Recovery,” a pilot program operated by Just Detention International (formerly Stop Prisoner Rape) in collaboration with the California Department of Corrections and Rehabilitation, pairs community-based rape crisis professionals with nearby prisons. As of early 2009, the program was being tested in two sites. Sexual abuse counselors travel to these prisons to provide confidential services to survivors of sexual abuse regardless of whether the abuse occurred in that facility or elsewhere. Wendy Still, former Associate Director of Female Offender Programs and Services for the department, believes the program is accomplishing much more than its frontline service objective. “If survivors of sexual assault know that confidential support services are available, if they see the institution providing for their emotional as well as medical needs, they will be more likely to access the services and. . . feel safe enough to file these formal complaints so that proper action may be taken against the perpetrator.”67 As Still highlighted in her testimony, the impact of providing quality treatment services reaches beyond individual victims to foster an environment in correctional facilities that actively discourages sexual abuse.

Eliminating Cost as a Barrier to Treatment

Cost may also be a barrier to treatment for victims of sexual abuse. In the majority of States, legislatures have passed laws authorizing correctional agencies to charge prisoners for medical care.68 Fees and co-payments are viewed as a way to reduce budget deficits and eliminate abuses of the sick call system, assuming that prisoners are willing to pay only when they really need to see a doctor, nurse, or therapist. The problem, however, is that an unknown and perhaps large number of prisoners who “opt out” actually need medical or mental health care. Most incarcerated individuals have scant financial resources, and some delay seeking treatment until their symptoms worsen or until they need emergency care because a fee as little as $5 is beyond their means. When New Jersey implemented a $5 co-payment for medical care in prisons in the mid-1990s, for example, a 60 percent drop in sick calls followed.69 Recent research across 36 States indicates that co-payment programs reduced sick calls between 16 and 50 percent.70

Victims of sexual abuse should not have to consider whether they can afford to see a doctor or a counselor. The Commission’s standards require facilities to provide emergency medical and mental health care services to victims of sexual abuse free of charge. Meeting this standard in facilities that currently charge prisoners for emergency care will require changes in policy and practice. Many correctional systems go further by crafting co-pay and fee-for-service systems that include exemptions for chronic care. Because sexual abuse can lead to ongoing medical and mental health problems, and because victims may delay reporting abuse, the Commission urges systems that already have such exemptions to include common and persistent aftereffects of sexual abuse among the list of chronic health problems. For those correctional systems without such exemptions, the Commission encourages them to consider this approach.

Financial barriers to treatment come in other forms, as well. In her written testimony for the Commission, Sandra Matheson, Director of the State Office of Victim/Witness Assistance at the New Hampshire Attorney General’s Office, described a case involving a corrections officer at Shea Farm Halfway House in Concord and the multiple abuses he perpetrated against women confined there during the early 2000s.71 (See Chapter 8 for more details on this case.) After describing the physical brutality and sexual assaults women residents at Shea Farm endured, Matheson went on to explain how the New Hampshire Department of Corrections responded when the abuse came to light.

Matheson worked with the Director of Community Corrections to set up a meeting for women at Shea Farm to brief them on the case and to offer support services. The department also brought in mental health practitioners and a local rape crisis center. Because of their lack of trust in the system after the assaults, the women were not comfortable seeking treatment from the department’s mental health practitioners; they wanted to see a therapist within the community.72 In recognition of the costs associated with obtaining outside treatment, Matheson helped victims file a claim with the State’s Victim Compensation Program. However, the women of Shea Farm suffered another setback: the State denied their claims due to a rule that prohibited inmates from receiving compensation for these services.

The prohibition in New Hampshire on compensating formerly incarcerated individuals stems from the 1984 Victims of Crime Act (VOCA). Money from the Act funds victim assistance and crime compensation programs. Office for Victims of Crime guidelines prohibit using VOCA money to serve incarcerated victims of sexual violence, even if the victimization occurred while in custody. Similarly, grants administered under the Violence Against Women Act (VAWA) cannot be used to assist incarcerated victims of sexual abuse who have been convicted of domestic or dating violence, sexual assault, or stalking. The Commission recommends that the VOCA grant guidelines be changed and that Congress amend VAWA to acknowledge that all survivors of sexual abuse deserve treatment and support services.

Unimpeded access to treatment, care by qualified medical and mental health care practitioners, and structured collaborations with outside providers are critical to ensuring that incarcerated victims of sexual abuse receive the medical and mental health care services they need to heal, be safe, and begin rebuilding their lives.

Daskalea testified in court that she felt “constant stress,
anxiety, and dread of imminent sexual attack.” Even her
release from jail in August 1995 did not free her. Daskalea suffered from insomnia, struggled with eating disorders,
and “spent months emotionally and psychologically debilitated, withdrawn and depressed.”

“Although it’s been eight years, I’m still suffering from the effects of that rape. On the one-year anniversary of this rape, I kept seeing the guard’s face over me. . . . I wanted to see something besides his face. . . . [M]y husband has tried to be intimate with me. All I could see was this guard’s face flashing back in my mind, and I would become ill.” Such vivid flashbacks are not uncommon for victims of sexual abuse.

Sexual abuse and emotional and psychological responses may also lead to serious medical conditions. For both men and women, responses like chronic anxiety, hyper-arousal, sleep disturbances, and eating disorders are strongly associated with development of long-term health problems, including cardiovascular disease, ulcers, and
a weakened immune system.

A study of incarcerated men found that more than half
of all sexual assaults resulted in physical injury.

More than three decades have passed since the U.S. Supreme Court established in Estelle v. Gamble that deliberate indifference to the health of prisoners is a form of cruel and unusual punishment. Since then, correctional agencies have struggled, and sometimes failed with tragic results, to meet the medical and mental health care needs of a large and often ill prisoner population.

Access to emergency medical and mental health services

Victims of sexual abuse have timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment. Treatment services must be provided free of charge to the victim and regardless of whether the victim names the abuser. If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders take preliminary steps to protect the victim (OR-3) and immediately notify the appropriate medical and mental health practitioners.

“[R]eceiving compassionate care at the time of the assault by an appropriately trained examiner. . . can assist all victims in their short and long-term healing process.”

Ongoing medical and mental health care for sexual abuse victims and abusers

The facility provides ongoing medical and/or mental health evaluation and treatment to all known victims of sexual abuse. The evaluation and treatment of sexual abuse victims must include appropriate follow-up services, treatment plans, and, when necessary, referrals for continued care following their release from custody. The level of medical and mental health care provided to inmate victims must match the community level of care generally accepted by the medical and mental health professional communities. The facility conducts a mental health evaluation of all known abusers and provides treatment, as deemed necessary by qualified mental health practitioners.

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 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.

“Absolute confidentiality is a nice idea. And in an ideal world, I would concur wholeheartedly,” Art Beeler told the Commission. Beeler explained that facility staff need to know when abuse occurs and who is allegedly involved to adequately protect victims.

Inmate access to outside confidential support services

In addition to providing on-site mental health care services, the facility provides inmates with access to outside victim advocates for emotional support services related to sexual abuse. The facility provides such access by giving inmates 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 inmates and these organizations. The facility ensures that communications with such advocates are private, confidential, and privileged, to the extent allowable by Federal, State, and local law. The facility informs inmates, prior to giving them access, of the extent to which such communications will be private, confidential, and/or privileged.

Victims of sexual abuse should not have to consider whether they can afford to see a doctor or a counselor.