A Problem that Must Be Solved
Understanding and Preventing
FINDING: Protecting prisoners from sexual abuse remains a challenge in correctional facilities across the country. Too often, in what should be secure environments, men, women, and children are raped or abused by other incarcerated individuals and corrections staff.
Across the country, corrections officials are confronting the problem of sexual abuse in the facilities they manage. The sexual abuse of prisoners is as old as prisons themselves, but recognition of the duty to protect incarcerated individuals from harm codified in law, human rights documents, and professional standards is a relatively recent development.1 Historically, prisons and jails were conceived of and used solely as holding places.2 Although self-improvement and rehabilitation became a goal in theory, by the end of the 18th
century, filthy living conditions, ongoing criminality, and sexual predation prevailed.3 Prominent English prison reformer Elizabeth Gurney Fry wrote in 1813 of guards treating the women’s ward of London’s Newgate Prison like a brothel.4 In 1826, in one of the first published mentions of prison rape in the United States, the Reverend Louis Dwight, prison reformer and founder of the Prison Discipline Society of Boston, wrote that “boys [were] prostituted to the lust of old convicts” in institutions from Massachusetts to Georgia.5
For more than a century, such protests fell on deaf ears, and the sexual abuse of prisoners remained largely hidden and unexamined.6 Most victims were silent, in many cases fearing retaliation and knowing that authorities were unlikely to believe or help them—or even to record their reports. The lack of reliable data made the problem even more opaque and subject to denial.
T.J. Parsell is among countless individuals who were sexually abused in America’s prisons and jails before the problem was widely recognized or well understood. Parsell was 17 in 1978 when he was sentenced to serve 4 years in an adult prison in Michigan for robbing a Fotomat with a toy gun. In testimony before the National Prison Rape Elimination Commission years later, Parsell recalled, “[I] didn’t last 24 hours before an inmate spiked my drink with Thorazine and then ordered me down to his dorm. . . . [They] nearly suffocated me as they shoved my head into a pillow to muffle my screams. . . . One of them grabbed my hair. . . . and pulled my head down while the others took turns sodomizing me. . . . They were unmoved by my crying.”7
After the rape, Parsell was “too afraid to come forward, even to see a doctor.”8 He told the Commission he felt the assailants “had stolen my manhood, my identity, and part of my soul.” This was only the beginning of continued violent abuse. “Being gang raped in prison has scarred me in ways that can’t be seen or imagined. . . . I’ve undergone years of therapy to get where I am, but I still don’t sleep well at night. I start up at the slightest noise. And as a gay man, I blamed myself for many years. You’re degraded so much in there that after a while you start to believe it.”
Once stories like Parsell’s began to surface, they came in waves. Incarcerated men, women, and youth who had suffered sexual abuse by other incarcerated individuals or corrections staff began talking about their experiences. Their accounts prompted research, legal challenges,
advocacy, development of human rights frameworks addressing custodial rape, creation of new protocols and prevention efforts by corrections
administrators and staff, and new legislation that in combination increasingly shed light on the pervasiveness and nature of the problem. We now know that sexual abuse while incarcerated has devastating effects on prisoners and serious repercussions for their families, correctional facilities, and the public at large.9 We also know that some prisoners are more at risk of being sexually abused than others. Being young and incarcerated for the first time—like Parsell when he entered prison—puts a person at higher risk of victimization. So does being gay. And there are other risk factors. Screening and classification systems, when used consistently, can help identify vulnerable individuals so that facilities can plan housing and services to lessen the risk of sexual abuse. These systems need refinement, along with many other practices that reduce sexual abuse in correctional facilities. Solutions are being designed and implemented, although much work remains to be done.
Passage of the Prison Rape Elimination Act of 2003 ushered in a new era of rigorous national data collection and analysis to add to our knowledge of the nature and scope of the problem.10 Estimates of the annual incidence rates of sexual abuse in America’s prisons, jails, and residential juvenile facilities are now available to complement more focused and in-depth studies of specific facilities or systems.11 The data may not capture the full extent of the problem, but they confirm its scale and the urgent need for reform.
Duty to Protect
The Eighth Amendment of the U.S. Constitution forbids cruel and unusual punishment—a ban that requires corrections staff to protect incarcerated individuals from sexual abuse whenever the threat is known.12 Facilities that fail to implement adequate protective measures risk exposure to civil lawsuits from current and former prisoners and the U.S. Department of Justice. However, this was not always the case. Historically, incarcerated individuals found courts unwilling to intercede on their behalf. In 1809, for example, a court rejected a habeas corpus petition on the grounds that it was not appropriate “to interfere with the jailer in the exercise of the discretion vested in him, as to the security of prisoners.”13 In the majority of decisions through the mid-20th century, judges agreed that it was not their function to supervise the discipline and treatment of incarcerated individuals.14 The Supreme Court ended this hands-off approach with its 1974 decision in Wolff v. McDonnell, in which the Court stated: “There is no iron curtain drawn between the Constitution and the prisons of this country.”15
In the wake of Wolff v. McDonnell, certain aspects of prisoner rights have become clear. For example, in the 1994 case Farmer v. Brennan, a transgender woman alleged that corrections officials failed to protect her from repeated sexual assaults. The Supreme Court ruled unanimously that deliberate indifference to the substantial risk of sexual abuse violates incarcerated individuals’ rights under the Eighth Amendment and that courts have an active, supervisory role in ensuring prisoners’ safety. The court made clear that officials have a duty to protect prisoners because, “having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”16 Furthermore, being violently assaulted in a correctional facility is simply “not part of the penalty that criminal offenders pay for their offenses against society.”17
Jurisdictions cannot use insufficient funding as an excuse for failing to ensure the constitutional rights of incarcerated individuals. The Federal courts have long rejected such arguments.18 Regardless of funding, States and the Federal Government must provide minimum conditions of confinement to incarcerated persons to avoid the Constitution’s prohibition against cruel and unusual punishment.19
With these decisions, courts have underscored their crucial role in protecting the rights of incarcerated individuals. The Supreme Court specifically emphasized the need for judicial oversight, noting that
“judicial intervention is indispensable if constitutional dictates—not to mention considerations of basic humanity—are to be observed in the prisons.”20 Courts will intervene in instances in which facilities tolerate unconstitutional conditions. In discussing this oversight function, the Seventh Circuit observed that “[j]udges are not wardens, but we must act as wardens to the limited extent that unconstitutional prison conditions force us to intervene when those responsible for the conditions have failed to act.”21
Against the Law
After conviction for a drug offense, Marilyn Shirley was placed in a Federal facility in Fort Worth, Texas, for women in need of specialized medical and mental health services.22 One night in March 2000, a senior prison official, who was the only officer on duty at the time, awakened Shirley. He ordered her from her room and took her to the officers’ station. There, he made a call asking for a signal if the supervisor approached the camp. After he hung up the phone, he began kissing and groping Shirley and pushed her into a supply room. “The more that I begged and pleaded for him to stop, the more violent he became,” she told the Commission.23 “He tried to force me to perform oral sex on him.” As she resisted, he became increasingly brutal, throwing her against the wall and slamming her head against it repeatedly. He then violently raped her, all the while warning that if she ever talked about it, no one would believe her.
The assault ended only when the officer received a signal over the radio that someone was approaching. After the attack, he continued to
harass and threaten her. In her testimony, she recounted, “[I] stayed silent for 7 months, having nowhere to hide. I went to sleep every night not knowing if [he] was going to order me out [to] the officer’s station again.”24 She was terrified about what would happen if she reported the assault, only informing the camp administrator on the day of her release months later.
Years after she was raped, Marilyn Shirley still experienced paralyzing panic attacks and intense nightmares. Fear continued to dominate her life, and she took five different medications to treat her conditions. “I see his face everywhere. Every day I relive this rape,” she told the Commission.25
Incarcerated women have always been vulnerable to sexual coercion and abuse.26 For example, in the mid-1800s, the Indiana State Prison ran a “prostitution service” for male guards using female prisoners.27
Efforts to protect and better serve female prisoners began with a movement in the early 1800s to create separate prisons for women. It wasn’t
until 1834 that prisons began to house women separately, and it took another four decades, until 1873, before the first women’s facility was constructed and staffed entirely by women.28 Same-sex staff for women remained the norm until the latter half of the 20th century, when women successfully challenged their exclusion from staff positions in men’s prisons.29 This in turn created opportunities for men to once again enter women’s institutions as workers.30 Cross-gender supervision remains a concern in women’s prisons and has become a concern in facilities for men as well, as female staff make up an increasingly large proportion of the workforce.31
The officer who attacked Shirley was ultimately convicted and sentenced to 12-and-a-half years in prison. However, many incidences of sexual abuse by staff or prisoners are never prosecuted. For most of this Nation’s history, no criminal laws specifically prohibited corrections staff from sexually abusing incarcerated individuals.32 Even as late as 1990, the majority of States and the Federal Government did not have such laws.33 Today in all 50 States, it is a crime for facility staff to engage in any sexual conduct with individuals in custody; similarly, laws prohibit such conduct among staff working for the Federal Bureau of Prisons.34 These laws are essential, but unfortunately, not all explicitly cover staff working in halfway houses and other community-based correctional settings. As of January 2008, eight States did not have laws covering sexual abuse in community corrections.
Successfully prosecuting these cases remains difficult, and sentences tend to be lenient compared to penalties for sexual abuse committed in other settings.35 In three States, sex with a prisoner is still a misdemeanor, not a felony, for corrections staff.36 Prisoners who commit sexual offenses are rarely prosecuted.37 More often they receive administrative sanctions, such as increased custody status or loss of parole.
Beginning to Count
How common is sexual abuse in American correctional settings? Historical accounts describe sexual abuse as a feature of incarceration from the beginning, but our knowledge about the prevalence of these incidents, even today, is extremely limited.38 Only anecdotal reports of sexual abuse existed until the mid-20th century, when Alan Davis conducted his groundbreaking study of sexual abuse in the Philadelphia jail system.39 Released in 1968 and based on in-person interviews with more than 3,300 prisoners and 562 staff members during a 2-year period, this comprehensive study estimated that at least 3 percent of the 60,000 individuals in Philadelphia jails were sexually victimized annually, which translates into at least 2,000 incidents of sexual abuse in 12 months. Two-thirds of the reported incidents were completed rapes. Young, slightly built prisoners seemed to be at extreme risk. Davis was careful to point out that the actual prevalence was probably much higher because many victims were reluctant to report their experiences.
Most subsequent studies have yielded considerably higher prevalence rates, depending on the target population and the amount of time assessed. A 1982 study in a medium-security men’s facility in California, which housed individuals at high risk of abuse in single cells (gay men, mentally ill prisoners, and other high-risk prisoners), found that 14 percent of randomly
selected prisoners reported through an anonymous questionnaire that they had been sexually victimized.40 Rates for gay prisoners (41 percent) were much higher than rates for heterosexual prisoners in the facility (9 percent). A 1996 study, also using anonymous questionnaires, surveyed prisoners and staff in the State prison system in Nebraska.41 Of the 528 men and women prisoners who returned completed surveys, 20 percent reported being pressured or forced to have sexual contact at least once while incarcerated in a Nebraska State facility. In facilities for men, the incident rate was 22 percent. Prisoners reported that staff were the
perpetrators in 18 percent of the incidents. The 264 corrections staff responding to the survey estimated a sexual abuse rate of 15 percent in the State’s prison system.
To date, most of the research on prevalence has focused on incarcerated men; only a few studies have assessed rates among incarcerated women. One such study, conducted in 2002, investigated rates of sexual abuse at three Midwestern prisons for women, each housing maximum-, medium-, and minimum-security prisoners.42 The researchers asked women about experiences of sexual abuse during the entire time they had been incarcerated in that facility. The rate of sexual abuse in one facility—described as a “rough prison”—was 19 percent.43 Many respondents in this facility “cited problems with inadequate surveillance, predatory staff, non-caring and unresponsive staff, and policies that protected rather than punished staff and inmate sexual predators.” Two other facilities had rates of 6 and 8 percent. A little more than half of the reported perpetrators were staff. Only about one-third of the victims reported the incidents to prison officials. Victims who did not report explained that they feared retaliation and that no one would believe them.
More recently, a study conducted from March 2005 to June 2006 of 436 women in a large southern prison found that 17 percent reported experiencing some type of sexual victimization while incarcerated, ranging from penetration, attempted penetration, and sexual touching to sexual abuse without physical contact; 3 percent reported completed rape.44
Understanding the Numbers
Different estimates of prevalence are partly the result of researchers using different definitions of sexual abuse.45 Some studies count only completed acts of nonconsensual sex that involve penetration; others include a wider range of acts, including coercion or sexual pressure, sexualized touching, voyeurism, and exposure.46 The methods researchers use to estimate the prevalence of sexual abuse incidents also have a major impact on their findings.47 Many studies of sexual abuse in prison involve interviews with individual prisoners. Because sexual abuse is a sensitive topic for women and men, and the stigma associated with being a victim is real, individuals may hesitate to report incidents and details in a face-to-face interview.48 Men may be especially reluctant to report sex with other men, even when it involves forced sex, for fear they will appear weak and helpless; heterosexual men in particular may be concerned about being perceived as gay.49
Having prisoners report anonymously on survey forms about sexual abuse addresses some of these concerns, but using written forms has drawbacks as well.50 Literacy rates are often lower among incarcerated persons; some respondents may refuse to participate because they cannot read the survey.51 Requesting help to fill out a written survey negates the privacy of the information, again leading to reluctance to report sexual abuse.52 And many prisoners find it hard to trust promises of confidentiality and anonymity in an environment characterized by a lack of privacy and loss of control.
Recent research studies have begun to take advantage of evolving technology, using laptop computers with touch screens and an accompanying recorded narration to guide people through surveys.53 This method mitigates concerns about reading level and privacy. Respondents still must believe strangers’ assurances of confidentiality, however, so the likelihood of underreporting remains.
Although underreporting may be a large source of the problem, the Commission recognizes that false allegations may also create inaccuracies in prevalence levels.54 Prisoners have been known to fabricate accounts of sexual abuse as a means to achieve some other purpose, such as a change in housing or to manipulate other prisoners or staff. The Bureau of Justice Statistics (BJS) and other researchers design surveys to ask questions of prisoners in several different ways, and they also use analytic tools to assess data for false reports. Moreover, because an anonymous survey captures neither the identity of the reporter nor the accused, there would appear to be little motivation to fabricate accounts in this context, except perhaps to damage the overall reputation of the correctional facility. The extent to which empirical studies of sexual abuse among prisoners unwittingly capture some number of false reports deserves further research.
The First National Incidence Rates
In the Prison Rape Elimination Act, Congress stated that existing data about sexual abuse in correctional facilities was not sufficient to understand the scope of the problem and respond appropriately.55 In particular, the Act called for new research to provide national incidence rates.56 Congress tasked the Bureau of Justice Statistics (BJS) with collecting and reporting those data. BJS launched a groundbreaking effort to discover how many prisoners each year are victims of sexual abuse by other prisoners and by staff as well as the nature of that abuse.
In 2007, BJS surveyed incarcerated men and women in a random sample of 146 State and Federal prisons and 282 local jails across the United States, using audio computer-assisted self-interviews. A total of 63,817 incarcerated individuals completed surveys that formed the basis of the study: 23,398 in State and Federal prisons and 40,419 in local jails. Respondents in prison were asked about incidents of sexual abuse during the 12 months prior to the interview; those who had been incarcerated at that facility for less than 12 months were asked about their experiences since arriving. The average time of incarceration among respondents in prison was 8.5 months. Respondents in jails were asked about sexual abuse incidents during the 6 months prior to the interview or since admission if they had been confined in that facility for less than 6 months. The average time of incarceration among respondents in jail was 2.6 months. All respondents used a touch screen to respond to a questionnaire accompanied by audio instructions delivered through headphones.57
The national scope of these surveys yields the most comprehensive snapshot of sexual abuse in prisons and jails yet available. The data confirm that sexual abuse of prisoners is widespread, with great variation in rates of abuse across facilities, and reveal the presence of force, coercion, and physical injury to incarcerated victims.
In prisons in 2007, 4.5 percent of respondents reported experiencing sexual abuse one or more times during the 12 months preceding the survey.58 Extrapolated to the national prison population, an estimated 60,500 State and Federal prisoners were sexually abused during that 12-month period.
Ten of the facilities in the sample had comparatively high prevalence rates, between 9.3 percent and 15.7 percent. At the other extreme, in six of the facilities sampled, no respondents reported having been sexually abused during this time frame. About 2 percent of all respondents reported incidents in which the perpetrator was another prisoner; 2.9 percent reported incidents perpetrated by corrections staff. (Some respondents had been abused by both staff and other prisoners.) In cases involving staff, a
majority of the victims reported sexual activity beyond being touched in a sexual way.
In jails, 3.2 percent of respondents reported that they had been sexually abused at least once during the prior 6 months or since they had been in that facility. Among those surveyed, 1.6 percent reported abuse by another inmate, and 2 percent reported incidents perpetrated by staff.59 Published reports on the survey of jail inmates include more detailed information than reports on the survey of State and Federal prisoners. In jails, sexual abuse perpetrated by other inmates typically occurred in victims’ cells or rooms, whereas incidents involving staff as perpetrators were most likely to occur in unobserved areas, such as closets, offices, or locked rooms. Approximately 20 percent of all victims said that they had been physically injured during the course of the abuse; most of those (85 percent) reported sustaining at least one serious injury. Women were more likely than men to be sexually victimized (5 percent compared with 3 percent). Rates were higher among younger inmates: 4.6 percent among respondents 18 to 24 years old, compared with 2.4 percent among respondents 25 years and older. Nearly a fifth (18.5 percent) of inmates who identified as homosexual and 9.8 percent who identified as bisexual or “other orientation” reported being sexually victimized, compared with 2.7 percent of heterosexual inmates.
Until recently, what we knew about prevalence rates among incarcerated youth came mainly from facility records of investigated and substantiated allegations of sexual abuse. These records do not reflect incidents that were never reported, those for which an investigation was never conducted even if a report was made, and those for which there was not enough evidence to substantiate a claim. When allegations of sexual abuse are reported to corrections staff and recorded, those allegations, as well as the official responses, become a part of the facility’s administrative records. Substantiated incidents are those for which an investigation was conducted and a finding of sexual abuse recorded. Reporting and record-keeping policies vary greatly across facilities. For example, some facilities record and maintain all allegations of abuse, whereas others only keep data on incidents in which officials substantiated the allegations.
Based on administrative records, youth are at especially high risk of sexual abuse, whether they are confined with other youth or incarcerated with adults. As reported by correctional facilities to BJS, the rate of sexual abuse in adult facilities—based only on allegations reported to correctional authorities and recorded in administrative records—was 2.91 per 1,000 incarcerated prisoners in 2006, across those facilities responding.60 In contrast, the rate in residential juvenile facilities—also reported by BJS and based on administrative records—was more than five times greater: 16.8 per 1,000 in 2006.61 Some of this difference may be due to laws that mandate adult caregivers to report child abuse and laws specifying that all sexual contacts with youth under a certain age are nonconsensual.62 Boys were the victims in nearly two-thirds of substantiated incidents, but girls were overrepresented. Thirty-six percent of all victims in substantiated incidents across the facilities responding were girls, even though girls represented only 15 percent of youth in residential placement in 2006.63
Youth confined with adults also are at high risk of sexual abuse. In 2005, for example, individuals under the age of 18 made up less than 1 percent of all inmates in U.S. jails.64 Yet 21 percent of all victims of substantiated incidents of sexual abuse involving jail inmates that year were under the age of 18.65
At the time of this report, BJS is conducting the first nationally representative survey of sexual abuse among adjudicated youth in residential juvenile facilities. In a pilot study to prepare for the national survey, BJS interviewed 645 youth in nine facilities. Almost all the youth surveyed were male (90 percent) and 15 years or older (91 percent). The facilities housed youth with fairly serious histories: more than a quarter of the youth interviewed had been adjudicated for perpetrating a sexual assault, compared to less than 10 percent of youth in residential placement nationally. Facilities volunteered to participate in the pilot and were selected based on convenience.
In this study, nearly one out of every five youth surveyed—19.7 percent—reported at least one nonconsensual sexual contact during the preceding 12 months or since they had arrived at the facility if they had been there less than 12 months.66 Nonconsensual experiences included sex in return for offers of favors or protection (8.7 percent), sex due to pressure or force other than physical force (8.8 percent), and sex with physical force or the threat of physical force (6.4 percent).
Any sexual contact with staff was considered to be nonconsensual and is therefore included in the 19.7 percent. Sexual contact with other youth reported as consensual is not included. Staff were just as likely as youth to be the perpetrators of nonconsensual sexual abuse. Notably, 7.8 percent of all youth interviewed reported sexual contacts with staff that involved physical force or the threat of force; some other type of force or pressure; or sex in return for money, protection, favors, or other kinds of special treatment.67
In addition to directly surveying individuals confined in adult and juvenile facilities annually, BJS will continue to collect and review
administrative records. Although administrative records can only hint at the actual rates of sexual abuse—at least for now—they have important information to convey. There is evidence, for example, of a 21 percent increase in allegations of sexual abuse comparing administrative records from 2003 (when Congress passed PREA) and 2006.68 Rather than signaling an increase in actual abuse, the rise may indicate that prisoners are more confident reporting sexual abuse when it does occur, that facilities are keeping better records, or both.
Regular review of administrative records nationally can illuminate who reports abuse, characteristics of perpetrators in these cases, circumstances surrounding reported incidents, and how facilities respond to reports of sexual abuse—in particular, what disciplinary or legal sanctions facilities impose on perpetrators and what treatment is provided to victims.69 In the future, BJS also will examine whether certain characteristics of facilities, such as size, security level, crowding, staff ratios, staff demographics, and assaults on staff, are associated with higher rates of sexual abuse.70
The research by BJS, especially the surveys of incarcerated individuals, offers perhaps the most convincing data so far that some level of sexual abuse is a reality in the vast majority of America’s prisons and jails. Important and uninvestigated areas remain: lockups, community corrections settings, detention centers for immigrants, tribal detention facilities operated by the Bureau of Indian Affairs, and those run by the military. The prevalence and scope of sexual abuse in these arenas are virtually unknown.
Facing the Numbers
Even conservative estimates of rates of sexual abuse translate into high numbers of victims each year in America’s vast correctional system.71 In just two decades—between 1987 and 2007—America’s incarcerated population nearly tripled. At the end of 2007, the daily population of U.S. prisons, jails, and juvenile facilities totaled approximately 2.4 million people.72 That figure only hints at the millions of people who cycle through these facilities over the course of a year. And it does not count individuals in pretrial detention, on probation, on parole, or under some other form of correctional supervision in the community.73 By the end of 2007, there were more than 5.1 million adults on probation or parole—about one in every 45 adults in the United States.74 Seventy percent of the adult corrections population is under community corrections supervision, and the numbers are growing.75
Dramatic increases in the prisoner population over the past 20 years are due more to legislative changes than to increases in crime rates.76 The “war on drugs” that began in the 1980s and continued over the last two
decades resulted in new policies requiring incarceration for drug-related offenses that previously involved primarily probation or diversion. Coupled with mandatory-minimum sentences, many more people were incarcerated and for longer periods of time. The “three-strikes” laws, introduced in 1993, mandated sentences from 15 years to life in prison for persons convicted of three crimes.77 As of 2008, nearly half of the States had some form of a “three-strikes” law, although the criteria for applying the law vary across jurisdictions.78 In some jurisdictions, all three crimes must be felonies or violent felonies for the three strikes to count. Other jurisdictions include minor crimes, even misdemeanors, in the calculation, adding to the rapid growth in incarceration.
Along with the rapidly increasing number of people incarcerated, the demographics of those individuals have changed in ways that have flooded facilities with individuals who are especially vulnerable to sexual abuse. The number of incarcerated adult women increased by 757 percent from 1977 to 2007.79 Legislative changes in 45 States since 1992 also made it easier to incarcerate juveniles with adults.80 Between 1990 and 2004, the number of juveniles sentenced to adult jails and prisons increased 208 percent; some jurisdictions incarcerate youth under the age of 16 with adults.81 The types of crimes for which people are incarcerated have changed as well; more than half of all newly incarcerated individuals between 1985 and 2000 were imprisoned for nonviolent drug or property offenses.82
With almost 2.5 million people living behind bars on any given day—an experience that directly shapes the lives of approximately 1 in 130 Americans, including youth—the United States bears a special burden to ensure the safety of prisoners and to protect their rights.83
Hard to Heal
Although sexual abuse typically leaves few visible scars, most victims report persistent, if not lifelong, mental and physical repercussions. Sexual abuse experienced in any environment commonly invokes shock, numbness, withdrawal, and denial.84
Almost all victims of an invasive or violent sexual assault develop some symptoms of posttraumatic stress disorder (PTSD) in the weeks after the attack.85 These include numbing, intrusive thoughts, nightmares, insomnia, flashbacks during which the victim vividly re-experiences the event, outbursts of anger or irritability, and panic attacks.86 For some victims, PTSD symptoms resolve several months after the incident; for others, PTSD becomes chronic. Victims with long-term PTSD are more likely to develop other mental health problems as well.87
Victims of sexual abuse often struggle with long-lasting effects, including anxiety, a sense of alienation and isolation, mistrust of others, hostility, depression, and helplessness.88 Thoughts of suicide are common. In non-correctional settings, one-third to one-half of rape victims consider suicide; between 17 and 19 percent actually attempt suicide.89
The closed nature of correctional facilities can lead to especially devastating effects for sexual abuse victims. In confinement, victims cannot hide from or escape their perpetrators; they are trapped with their assailant unless corrections officials intervene.90 The constant threat of subsequent abuse and physical proximity to danger are likely to increase the risk of developing PTSD and other aftereffects.91 The consequences of sexual abuse may be worse for those who are young, have a past history of sexual abuse, or have a preexisting mental illness.92 Victims cannot easily avail themselves of support networks and resources available outside prison walls, and truly confidential counseling in corrections is virtually nonexistent. These conditions exacerbate post-trauma responses and may prevent healing and recovery. In her testimony before the Commission, Necole Brown described her symptoms after repeated sexual victimization while in prison: “I continue to contend with flashbacks of what this correctional officer did to me and the guilt, shame, and rage that comes with having been sexually violated for so many years. I felt lost for a very long time, struggling with this. . . . I still struggle with memories of this ordeal and take it out on friends and family who are trying to be there for me now.”93
For some victims, the trauma of sexual abuse has physical manifestations. Sexual assault is strongly associated with chronic medical conditions, such as insomnia, fatigue, chronic pain, nausea, ulcers, and disturbed sleeping and eating patterns.94 Almost all victims of forced penetration also experience some type of physical injury, such as soreness, bruising, bleeding, or lacerations.95 Some victims are brutally attacked and sustain severe physical injuries, including concussions, broken bones, and deep lacerations. The physical brutality may be even more extreme when there are multiple perpetrators working together.96 Exposure to the HIV virus and other sexually transmitted diseases is another potential consequence of sexual abuse, one that may not be evident immediately following an assault. Testimony from prison rape survivors who became HIV-positive after being raped illustrates the potential lifelong repercussions of being sexually victimized while incarcerated.97
In 1994, Keith DeBlasio was sentenced to 5 years in a minimum-security Federal prison for fraud.98 He was later transferred to a high-
security facility in Milan, Michigan, and placed in a dormitory with about 150 inmates, dozens of blind spots, and only one officer on duty at any given time. “It was here,” DeBlasio testified “that I was sexually assaulted by the same assailant more times than I can even count.”99 The sexual abuse began when the assailant moved into DeBlasio’s dormitory after spending 3 days in segregation for “brutally assaulting another inmate in a stairwell. . . . There were numerous assaults and a long period of ongoing abuse, especially after prison officials moved my assailant into the same cubicle with me as my bunk mate. I couldn’t defend myself because he had fellow gang members standing watch.”
Eventually, DeBlasio became ill. After repeated requests to medical staff for an HIV test, he was tested and diagnosed as HIV-positive.100 DeBlasio testified that he later learned that “prison officials knew the assailant was emotionally disturbed, on psychotropic medications, a repeat predator with serious mental problems, and yet they did nothing to protect me. . . . I was a nonviolent offender, but I was given a life sentence. I was repeatedly
denied protection from a known predator with HIV.”
Sexual assaults by men against women prisoners also carry the risk of pregnancy, another long-term consequence that may not be detected until weeks or months after the assault.101 Fear of retaliation, threats from the perpetrator, and fear of punishment may keep incarcerated women victims from seeking pregnancy testing or medical care once they realize that they are pregnant. The case of Berry v. Oswalt highlights these risks.102 An officer at the Tucker Women’s Unit in Arkansas raped Laura Berry in 1993. When she informed the officer that she thought she might be pregnant, he forced her to drink quinine and turpentine in an attempt to cause an abortion. When the threat of pregnancy persisted, the officer told Berry to conceal the pregnancy and blame someone else if questioned. The court awarded Berry $80,000 in compensation for the assault and
subsequent abuse she endured.
Sexual abuse damages individual prisoners, often in lasting ways, but the harm does not end there. U.S. correctional facilities
release millions of people every year.103 Individuals suffering from the psychological and physical effects of sexual abuse carry those effects home with them. Many victims require ongoing medical and mental health care, increasing the burden on already struggling public health care systems.104 Individuals dealing with the consequences of sexual abuse may find it difficult to reintegrate into society, relate to their families, and rebuild their lives. Some self-medicate with alcohol and drugs to escape emotional or physical suffering.105 Some turn back to crime,
become homeless, or reenter the criminal justice system.106
Taxpayers bear much of the cost associated with the thousands of sexual assaults in corrections, as illustrated by the testimony of Tom Cahill, an Air Force veteran. Cahill told the Commission about his arrest and subsequent detention for civil disobedience during a labor strike at a factory in 1967. As he entered a crowded holding cell in a San Antonio jail, one prisoner yelled, “fresh meat!”107 After lights out, “Six or seven men beat me and raped [me] while another two dozen just looked away. I remember being bounced off the walls and the floor and a bunk. . . . [I]t went on and on and on. . . . [O]ne of my cellmates told me later that the guards lied and told them I was a child molester. . . . After I was released from jail, I tried to live a normal life, but the rape haunted me. . . . I was diagnosed with post-traumatic stress disorder.”
Cahill estimates that “that one day I spent in jail has cost the Government and the tax payers at least $300,000,” explaining, “I’ve been hospitalized more times than I can count and I didn’t pay for those hospitalizations, the tax payers paid. My career as a journalist and photographer was completely
derailed. . . . For the past two decades, I’ve received a non-service connected security pension from the Veterans’ Administration at the cost of about $200,000 in connection with the only major trauma I’ve ever suffered, the rape.”108
Sexual abuse of prisoners also places great strains on correctional facilities. As Congress stressed in its PREA findings, sexual abuse in correctional settings “increases the costs incurred by Federal, State, and local jurisdictions to administer. . . prison systems.”109 These costs, affecting operations ranging from health care to housing, are extremely hard to quantify.110 For example, victims suffering from the effects of sexual abuse may repeatedly seek counseling or medical care, or break rules in an attempt to escape a perpetrator, whether or not they disclose the abuse. Although the dollar amounts may be elusive, the impact is clear: facilities rife with sexual abuse cannot function effectively.
The sexual abuse of prisoners undermines the very purpose of
corrections in America. It is an offense against the victim, an affront to the interests and values of civil society, and a violation of the highest
order of American legal jurisprudence, which forbids the “unnecessary and wanton infliction of pain” upon prisoners by corrections officials or by other prisoners.111
Answering the Call
Protecting prisoners from sexual abuse is, without a doubt, an enormously daunting challenge for all involved. The reasons are many and are discussed throughout this report. They include gaps in understanding of the problem due to underreporting and a lack of research, insufficient resources for responses to sexual abuse, the challenges of training a vast workforce and enhancing safety in outdated facilities, intricacies of dealing with vulnerable populations, and many more. Despite these complicated factors, a growing and diverse group of individuals, governmental entities, and nongovernmental organizations have worked to answer the call, coming together to confront powerfully this once hidden and unexamined problem.
Prior to PREA, there was no national understanding of the scope of the problem, nor were there coordinated efforts to address it. Yet promising work was taking place, paving the way for subsequent PREA efforts. Beginning in the 1990s, civil rights litigation drew the attention of the corrections field and the public to the issue of staff sexual misconduct.112 In response, organi-
zations and individuals began to acknowledge and address the problem. In 1996, the National Institute of Corrections (NIC) began providing technical assistance and training across the Nation, helping correctional systems focus on effective management to stop staff sexual misconduct, rather than reactive, crisis-driven policymaking.113 In the years leading up to and just after PREA, well-respected professional organizations—the American Correctional Association, the American Jail Association, the American Probation and Parole Association, the Association of State Correctional Administrators, and the National Sheriffs’ Association—
adopted resolutions strongly condemning staff sexual misconduct.114
Human rights, faith-based, and prison rape advocacy organizations raised their voices condemning sexual abuse in confinement, creating the consensus necessary to pass national legislation.115 PREA’s goal is zero tolerance for sexual abuse in correctional settings. The Act proposes to accomplish this through a number of tools, including data collection, research, grants and technical assistance to States to improve their practices, development of national standards, and the reduction of funding to States that fail to comply with the standards.116 PREA’s passage underscores the scope and gravity of the problem—confirmed by the best and most recent data—and signals that Congress is committed to ending sexual abuse in American corrections.117
Already, much work has been done in the wake of PREA. BJS has conducted groundbreaking surveys and published other research findings on the nature and scope of the problem. NIC continues to provide technical assistance and training around the country—every State has received assistance in this area. The National Institute of Justice has funded research on issues surrounding sexual abuse in correctional facilities that promises to deepen our understanding of the best ways to prevent sexual abuse and respond to victims and perpetrators when prevention fails. Professional organizations, including those already mentioned and the International Community Corrections Association, have led significant PREA initiatives, workshops, and trainings. And the Bureau of Justice Assistance has distributed grants to 34 States and one territory, funding that has been used in a variety of innovative ways. The Commission recommends that these important Federal initiatives continue.
In short, the landscape is changing. Reporting hotlines and zero-tolerance posters are becoming commonplace. Some agencies and facilities have revolutionized their responses to sexual abuse, instituting sexual assault response teams and organizing in-house multidisciplinary committees to address PREA. Training on PREA is an expected part of curricula for corrections staff nationwide. (See the PREA Initiatives appendix for a sample.) Though the challenge is great, these promising developments mean that pleas for protection and justice by the likes of Elizabeth Gurney Fry and Reverend Louis Dwight no longer fall on deaf ears. The Nation is poised to answer the call to eliminate prison rape.
The chapters that follow discuss a crucial mechanism for eliminating prison rape—national standards developed by the Commission to prevent and detect sexual abuse in every correctional setting and to hold accountable those who perpetrate and permit this abuse.
“Being gang raped in prison has scarred me in ways that
can’t be seen or imagined. . . . I’ve undergone years of therapy
to get where I am, but I still don’t sleep well at night. I start
up at the slightest noise. And as a gay man, I blamed myself
for many years. You’re degraded so much in there that
after a while you start to believe it.”
“There is no iron curtain drawn between the Constitution and the prisons of this country.”
Regardless of funding, States and the Federal Government must provide minimum conditions of confinement to incarcerated persons to avoid the Constitution’s
prohibition against cruel and unusual punishment.
“The more that I begged and pleaded for him to stop, the more violent he became,” Marilyn Shirley told the Commission. “He tried to force me to perform oral sex
on him.” As she resisted, the prison official became increasingly brutal, throwing her against the wall and slamming her head against it repeatedly. He then violently raped her, all the while warning that if she ever talked
about it, no one would believe her.
Only anecdotal reports of sexual abuse existed
until the mid-20th century, when Alan Davis
conducted his groundbreaking study of
sexual abuse in the Philadelphia jail system.
The data confirm that sexual abuse of prisoners is widespread, with great variation in rates of abuse across facilities, and reveal the presence of force, coercion, and physical injury to incarcerated victims.
Extrapolated to the national prison population,
an estimated 60,500 State and Federal prisoners were sexually abused during the 12-month period.
With almost 2.5 million people living behind bars
on any given day—an experience that directly shapes the lives of approximately 1 in 130 Americans, including youth—
the United States bears a special burden to ensure
the safety of prisoners and to protect their rights.
Although sexual abuse typically leaves few visible scars,
most victims report persistent, if not lifelong,
mental and physical repercussions.
An officer at the Tucker Women’s Unit in Arkansas raped Laura Berry in 1993. When she informed the officer that
she thought she might be pregnant, he forced her to drink quinine and turpentine in an attempt to cause an abortion.
Tom Cahill estimates that “that one day I spent in jail has cost the Government and the tax payers at least $300,000,” explaining, “For the past two decades, I’ve received a non-service connected security pension from the Veteran’s Administration at the cost of about $200,000 in connection with the only major trauma I’ve ever suffered, the rape.”
The landscape is changing. Reporting hotlines
and zero-tolerance posters are becoming commonplace.
Some agencies and facilities have revolutionized
their responses to sexual abuse, instituting sexual assault response teams and organizing in-house multidisciplinary committees to address PREA.
FINDING: Sexual abuse is not an inevitable feature of incarceration. Leadership matters because corrections administrators can create a culture within facilities that promotes safety instead of one that tolerates abuse.
Toni Bunton heard the guard coming down the hallway. He wore cheap cologne, and his breath smelled like cigarettes. He scuffed his boots against the floor and opened the door to her cell in Scott Correctional Facility, a women’s prison in Plymouth Township. ‘Come here,’ he ordered. The guard pulled Bunton into a bathroom. She wore jogging pants, a T-shirt and socks. She was the guard’s prized possession, a pretty young thing, as he said, ‘just the way I like ‘em,’—short and cute with brown hair, brown eyes and porcelain skin.”1
So begins a Detroit newspaper’s account of a culture inside a Michigan prison that allowed widespread sexual abuse of women prisoners by male officers. According to Bunton, she was just 19 when the officer pushed her against the bathroom sink and raped her, smiling as he walked away. It took more than a decade for Bunton to speak publicly about this rape and being the victim of seven other sexual assaults between 1993 and 1996.
When Bunton found her voice, it was one that people believed.
In February 2008, a jury in Ann Arbor determined that the Michigan Department of Corrections, the former director of the department, and the warden at Scott knew about the “sexually hostile prison environment,” where nearly a third of male officers allegedly engaged in sexual misconduct and failed to protect Bunton and nine other women.2 The jury awarded the women $15.4 million and then did something out of the ordinary; they apologized. “We the members of the jury. . . as representatives of the citizens of Michigan, would like to express our extreme regret and apologies for what you have been through.”3 In January 2009, the Michigan Court of Appeals upheld the jury’s verdict.4 This case was only the beginning. More than 500 women who are or were incarcerated in Michigan prisons are suing the State in a class action lawsuit.
Even before women in Michigan began telling their stories in court, human rights organizations and the U.S. Department of Justice alleged extensive sexual assaults by corrections staff over a period of years in several women’s prisons in Michigan. In the early 1990s, advocacy groups warned the Michigan Department of Corrections that “sexual assault and harassment are not isolated incidents and. . . fear of reporting such incidents is a significant problem.”5 It was not until a group of women brought civil actions in 1996 and the Department of Justice’s Civil Rights Division filed suit in 1997 that corrections officials in Michigan began to address the issue. In its investigation, the Department of Justice found evidence of criminal behavior ranging from sexual assault to officers exposing their genitals to prisoners.6 Faced with these allegations, the Michigan Department of Corrections signed a settlement agreeing to severely limit male corrections officers’ access to incarcerated women and to educate officers and prisoners about sexual abuse.7
Over the last few years, corrections leaders in Michigan have implemented additional reforms, including training for officers designed to shape a culture that prevents abuse.8 New work assignment rules, including banning male officers from the housing units where women live, were designed to prevent sexual misconduct and harassment.9 Administrators refer all allegations of sexual misconduct or abuse to internal affairs as well as to the Michigan State Police for investigation, and there are now tougher legal penalties for staff who have sexual contact with incarcerated persons.10 As of May 2009, the approximately 2,000 women prisoners in Michigan will all be housed in a facility in Ann Arbor with health care, education, and other programming provided in part by the University of Michigan.11
To allow any level of sexual abuse in a correctional setting creates a security breach that jeopardizes the safety of staff and prisoners.12 This chapter explores the essential role of corrections administrators in preventing sexual abuse in the correctional settings they oversee. Simply stated, the problem cannot be solved without committed, enthusiastic leadership within the profession. The Commission has defined clear standards that corrections administrators can champion to prevent sexual abuse and make facilities safer for everyone—reforms in the underlying culture, hiring and promotion, and training and supervision that vanguard members of the profession are already implementing.
From the Top Down
The class action lawsuit in Michigan revealed an unhealthy correctional culture in which sexual abuse flourished. Rhode Island Corrections Director A.T. Wall explained to the Commission that a facility’s culture is its “way of life . . . [t]he sum of the attitudes or the norms, the values, the beliefs, of those people who live and work in it.”13 In hierarchical organizations like correctional facilities, that “way of life” is shaped from the top down. Although changing the culture is an enormous challenge, wise and impassioned leaders can do it.14 As Wall noted, “Culture is not inherent. Culture is learned, and therefore, it can be changed.”15
In 2006, the Urban Institute surveyed 45 State departments of corrections about their policies and practices on preventing sexual abuse and conducted in-depth case studies in several States.16 Not surprisingly, the surveys and the case studies identified strong leadership as essential to creating the kind of institutional culture necessary to eliminate sexual abuse in correctional settings.17 In his testimony, Martin Horn, Commissioner of the New York City Department of Corrections, agreed. Culture change “has to start at the top, and you have to talk about it. And if we don’t talk about it, the people under us won’t,” he told the Commission.18
“[C]ulture is passed by word of mouth and by behavior. You have to walk the walk and talk the talk. You have to do it consistently. You can’t sell out. You have to be willing to take the anger that people may direct at you for trying to change the culture.”
Recognizing that corrections leaders need knowledge and skills to craft and champion reforms, the National Institute of Corrections (NIC) has offered technical assistance and training to the field on staff sexual misconduct since 1996. Over the years, that assistance has included executive briefings; strategies to assist executive and senior-level staff; workshops conducted in partnership with national, State, and local professional associations; and help developing the critical management and operational practices that minimize staff sexual misconduct. Corrections administrators in every State have received assistance from NIC. The Commission recommends that NIC continue to conduct training and educational programs and to offer technical assistance to Federal, State, tribal, and local authorities responsible for the prevention, investigation, and punishment of prison rape.
Zero Tolerance “with Teeth”
The positive culture Horn and Wall allude to is rooted in the idea and ethics of zero tolerance for sexual abuse. “I’m talking about zero tolerance with teeth,” Wall testified.19 In such cultures, staff and incarcerated individuals understand what constitutes sexual abuse, know penalties exist for perpetration by prisoners or staff, and believe management will treat all incidents seriously. Staff are alert to warning signs and prepared to implement approved procedures in response to incidents, facilities encourage reporting of abuse, and prisoners are confident that genuine investigations will follow. Staff also know that there are penalties for simply standing by when sexual abuse is occurring and for non-reporting, whether the abuse is perpetrated by prisoners or other staff. The Commission’s first two standards require that every correctional agency have a written policy mandating zero tolerance for all forms of sexual abuse in all correctional settings, whether they are operated by government or by private companies working under contract with the government.
Zero-tolerance policies prohibit any sexual contact between staff, volunteers, or contractors and incarcerated individuals. Moreover, all forms of forced or coercive sexual contact occurring among incarcerated persons will be fully investigated, sanctioned (if authority to do so exists), and referred for prosecution if the prohibited conduct violates State criminal laws.20 Facilities in which administrators and management do not emphasize a zero-tolerance culture intrinsically tolerate some level of sexual abuse. An unclear or inconsistent policy sends mixed messages to staff and incarcerated persons about the acceptability of sexual abuse in that setting.
Good leaders not only have a policy on paper, they ensure that the policy is reflected in practice by carefully assessing and responding to attitudes, beliefs, and values that support or conflict with a culture of zero tolerance. Such an assessment demands recognizing that some line officers as well as managers may use sexual abuse and exploitation to manipulate and control prisoners for personal gain or gratification. The abuse in Michigan prisons was not unique. Landmark class action lawsuits describe other correctional environments in which the systemic sexual abuse of incarcerated individuals by staff and other prisoners flourished over time.21
Creating a genuine culture of zero tolerance hinges on making the right decisions about who to hire, retain, and promote; providing comprehensive training for staff and education for prisoners on sexual abuse; and using modes of supervision that encourage appropriate contact between staff and prisoners while also setting clear limits. “[I]t’s not a sprint. It’s a marathon,” Wall explained.22
The Right Staff
In December 2002, while working a night shift at the Pennington County Jail in Rapid City, South Dakota, a new recruit entered a woman’s cell three times after the facility was locked down for the night—in clear violation of facility regulations—and sexually abused her each time.23 Once, when she resisted, he slammed her head against the wall so forcefully that he set off his CB radio. The recruit was under the supervision of a senior corrections officer who “was supposed to observe [him] closely.”24 The facility also had monitoring devices, including a panel of lights indicating whether cell doors were locked or unlocked, and the supervisor had a clear view of the victim’s cell from his post. The court concluded that, because “entry of a correctional officer into a cell after lockdown was an unusual and (literally) noteworthy event,” the supervisor would have known that the officer had no legitimate reason to enter the victim’s cell, much less to enter it multiple times.25 At one point, the new officer showed his supervisor drawings he had taken from the victim’s cell. Despite these warnings, the supervisor did nothing to prevent the assault, nor did he document the cell entry as required or report the incident to his superiors.
As this case illustrates, without a commitment to zero tolerance among managers and line staff—and a willingness to intervene—sexual abuse cannot be prevented. Hiring and retaining high-quality employees is one of the main challenges facing corrections officials.26 As one department director noted, “We all have the responsibility to attract, hire, and retain qualified staff in a relatively low-paying, relatively high-risk profession with relatively unpleasant working conditions and hours.”27 The kind of culture change many administrators want and that the Commission believes is required would greatly improve the work environment. Yet that shift in culture depends in part on hiring, retaining, and promoting individuals who will not only refrain from sexual abuse, but also actively work to prevent it and to reestablish safety when it occurs.28
One way to attract this caliber of staff is through strategic recruiting efforts. Critically reviewing previous recruitment initiatives, highlighting positive aspects of correctional employment (e.g., job stability and security), focusing on a variety of media to advertise vacancies, and personalizing the selection process may play a role in creating a strategic and proactive recruitment plan. A recent study focusing on effective recruitment and retention of jail staff found a variety of such efforts already in place.29 These included intern programs to help students envision corrections as a career option, community outreach to improve the image of the jail, and mentoring and leadership programs to support new hires.
Careful vetting of all job applicants is also essential to maintaining quality staff. The Commission’s standards require conducting criminal background checks, making efforts to obtain relevant information from past employers, and questioning applicants about past misconduct. For States in which the law limits a prospective employer’s right to inquire about previous employment, especially disciplinary actions or arrests not leading to conviction, the Commission urges correctional agencies to ask job applicants to sign waivers (unless they are also prohibited from doing so by law) affirming that the applicant foregoes his or her legal right to claim libel, defamation, or slander regarding any information provided by previous employers.
Preventing sexual abuse in correctional settings necessitates screening for staff and prospective staff who have a history of sexual misconduct, either in correctional settings or in the community. To meet the Commission’s standard prohibiting hiring or promoting anyone who has engaged in prior sexual abuse, administrators must thoroughly screen all new job applicants and make promotions contingent on a similarly careful review of every staff member’s conduct while employed. Past perpetration of sexual abuse in any setting, including in the community and within the family, is a warning sign that an individual poses a risk that must be carefully evaluated.30 Nonsexual physical abuse is also a warning sign.31 Even behaviors demonstrating disrespect, such as a pattern of yelling at or demeaning incarcerated individuals, indicate that a staff member may find it difficult to support a zero-tolerance approach to sexual abuse and indeed may act to undermine such a policy.32
Biases and prejudice also may influence the willingness or ability of staff to support a zero-tolerance policy. One study found that some officers were more willing to protect heterosexual prisoners from abuse than those with other sexual identities.33 Biases against any group, including women, create hostile environments that prevent staff from protecting these individuals.34 In discussing women’s facilities, psychiatrist Terry Kupers warned, “when there is an acceptance of misogynist jokes, of. . . little slaps on the bottom. . . when the management does not stop that and does not want to hear about it, that is where sexual assault occurs.”35
Psychological tests can flag many of these risk factors as well as positive attributes.36 Studies suggest, for example, that successful corrections officers tend to be emotionally stable—particularly when it comes to anger and impulse control—dependable, rational, and mature.37 To identify the best candidate for the job, the vetting process also should explore an applicant’s willingness to foster a culture that discourages abuse and to intervene to prevent abuse in specific situations, including in those difficult situations in which the perpetrator is another corrections staff member.
Finally, corrections administrators face the challenge of retaining their best staff. One way to retain corrections staff is to keep salaries competitive with other law enforcement agencies.38 Low salaries, especially in relation to other law enforcement jobs, are one reason people leave jobs in corrections for work in other professions.39 However, funds to provide competitive salary lines are often extremely limited. Correctional facilities urgently need support in developing competitive compensation and benefits packages.
Promoting staff who demonstrate a commitment to preventing sexual abuse is another way to keep good staff and send a clear message to everyone in the facility. Over time, those promotions will produce a higher-caliber staff and management structure and make it easier to create and sustain a safe and orderly environment. But promotions and raises alone will not solve the problem. Even the best staff will succumb to stress and burnout without the right guidance and support from their managers and leaders.40
Progress in Training and Education
In 1997, Human Rights Watch surveyed State corrections departments and the Federal Bureau of Prisons about steps they were taking to address the problem of prison rape. Only a few departments, including Arkansas, Illinois, Massachusetts, North Carolina, New Hampshire, and Virginia, responded that they trained corrections officers to recognize, prevent, and respond to sexual assault among incarcerated persons.41 When the Urban Institute surveyed 45 State departments of corrections nearly a decade later in 2006, 36 departments reported offering training on sexual abuse for frontline staff.42 Training initiatives also have reached law enforcement agencies that operate lockups and other short-term holding facilities. A training curriculum specifically for law enforcement and a guide to developing policy are now available online, and trainings have been provided on site to individual agencies and through national and State conferences.43 According to Susan McCampbell, President of the Center for Innovative Public Policies, these training efforts are essential because “very few [law enforcement] agencies have heard of PREA. The potential impact of PREA on these facilities is different than for jails and prisons, due to the visibility and size of the [detention] function within the agency, the condition and flexibility of the physical plants, [and] the ability of agencies to screen and segregate arrestees,” among other issues.44
The Commission recognizes the profession’s investment to date in training staff. This is an area in which much has been done. The standards in this area are designed to ensure that no facility is left behind and that training programs everywhere meet certain basic criteria. The Commission believes most jurisdictions can meet these goals without burdensome or unrealistic financial investment. Today there are many resources that correctional agencies can turn to for help. For example, the Safe Prisons Program developed by the Texas Department of Criminal Justice and the Ten Point Plan created by the Ohio Department of Rehabilitation and Correction both feature comprehensive training programs for staff.45 An appendix in each volume of the Commission’s standards lists suggested topics and procedures for training line staff.
The Commission’s standards in this area are based on evidence showing that effective training programs focus on prevention and intervention, include training in meeting the medical and mental health needs of victims, and are grounded in clear policies. They should be provided at the beginning of employment and be updated or expanded annually.46 The main objectives of a training program on sexual abuse are to ensure that staff, volunteers, and contractors understand the facility’s or agency’s zero-tolerance policy and that no sexual abuse will be tolerated, are aware of the dynamics of sexual abuse in adult and juvenile correctional settings, possess the knowledge and skills necessary to prevent abuse from occurring, identify early warning signs that someone is at risk of being abused, and take the appropriate actions when they learn about an incident of sexual abuse. Role-play exercises and opportunities to rehearse or discuss responses to sexual abuse and misconduct can help to dispel discomfort and are good preparation for dealing with actual situations.47 In addition, trainings must cover the responsibility of staff, volunteers, and contractors to report any signs of sexual abuse and the consequences for failing to do so.
The Commission requires that training also include how to communicate effectively and professionally with incarcerated persons, including those of different races, ethnicities, cultural and religious backgrounds, ages, genders, sexual orientations, and cognitive abilities.48 Effective communication builds trust between prisoners and staff, which is essential to create an environment in which individuals feel comfortable seeking protection and reporting abuse. Drawing on what they learn, staff should consistently model the attitudes and behaviors they expect their peers as well as prisoners to display.49
To determine whether facilities are meeting mandatory requirements for training, administrators must maintain written documentation about the training provided, including signed verification by participants that they understand the information conveyed. This kind of documentation, and good training generally, will help facilities defend themselves when prisoners file lawsuits against them and may discourage litigation altogether.50
The corollary to staff training is conveying the same information about zero tolerance and related policies to all persons incarcerated in a facility. A strong educational program on sexual abuse sends the message that an agency will not tolerate sexual abuse by staff or prisoners and that preventing abuse and holding perpetrators accountable are top priorities. Trainings should include information on warning signs of sexual abuse and ways for prisoners to protect themselves.51 Equipped with this information, incarcerated individuals are better able to protect themselves and others by seeking help when necessary and are more likely to report abuse when it does occur.
The Commission’s standard requires correctional facilities to inform individuals during the intake process about their right to be protected from sexual abuse and how to report suspicions or incidents of abuse and, soon thereafter, to engage prisoners in a detailed, interactive educational session. Facilities have an obligation to convey information in formats accessible to all prisoners, including those who speak a language other than English; have limited English proficiency; are deaf, visually impaired, or otherwise disabled; or who have limited reading skills. Educational information must also reach individuals in solitary confinement and protective custody, and facilities are required to document in writing participation in educational sessions. As with staff training, periodic refresher courses are important and required. The Commission also believes that crucial information about sexual abuse, facility policies, and the rights of incarcerated persons should be widely available at all times through posters, handbooks, and other means.52
Patrolling and Protecting
In his testimony before the Commission, San Francisco Sheriff Michael Hennessey talked about daily life in a correctional facility that relies on what’s known in the profession as direct supervision. “[T]he deputy is right there amongst them and everybody is talking to him,” Hennessey said.53 “They’re complaining about food. They’re complaining about their clothing. They’re complaining about their release date. And in the meantime they can also say, ‘By the way, I think something is going down between this inmate and that inmate.’”
In a direct supervision facility, officers are stationed in living units and supervise incarcerated individuals by moving around and interacting with them and with other staff members.54 Direct supervision allows officers to get to know individual prisoners. The officers’ movements and locations are, by definition, fluid and somewhat random, thus preventing dead zones—locations and periods of time when prisoners know they will not be watched. Direct supervision enables officers to directly observe behavior and to intervene and prevent sexual abuse, and it also allows incarcerated individuals easy access to staff without attracting attention, making it easier to report sexual abuse.55 This type of supervision provides an enhanced level of safety while also allowing incarcerated persons some privacy and movement. For these reasons, the Commission believes this is the most promising mode of supervision for preventing sexual abuse in correctional facilities and that agencies and facilities should use it whenever possible.
In reality today, many jails and prisons rely on a different method of supervision, dictated by the structure of facilities built to confine people in rows of cells. An officer patrols these corridors or along catwalks at designated intervals in what is known as linear surveillance. Officers have only brief and intermittent views of prisoners and may have little or no opportunity for meaningful contact.56 Such supervision structures empower dominant and predatory prisoners or groups and make preventing sexual abuse more difficult. As Cynthia Malm, a former jail administrator from Madison County, Idaho, told the Commission, “In a linear jail, inmates often are in control of the housing units because the officer cannot see what is happening inside the unit at all times. The officer makes checks usually every 30 minutes, which leaves a lot of time for inmates to engage in illicit behavior.”57
A third type, remote indirect supervision, has emerged as monitoring technologies and correctional architecture have evolved. Used primarily in high-security facilities, officers are stationed in secure control booths, from which they observe incarcerated individuals via video and other monitoring equipment and lock and unlock gates and doors remotely.58 Officers have only sporadic direct contact with prisoners, and the physical barriers separating them from the individuals they are responsible for protecting can compromise their ability to intervene and stop abuse.59
The Commission’s standards require correctional facilities to provide the supervision necessary to protect incarcerated persons from sexual abuse. The Commission believes it is possible to meet this standard in any facility, regardless of design. Installing cameras in a linear jail, for example, would enhance prevention and detection, if coupled with routine, unscheduled patrols by officers. Technologies are not replacements for skilled and committed security officers, but they can greatly improve what good officers are able to accomplish.
Sexual abuse can occur almost anywhere in a facility, but it is the “hiding places or blind spots,” according to Sheriff Hennessey, “where most of the mischief or illegal activity takes place.”60 Although his remark sounds obvious, Hennessey emphasizes the point because facilities can be rife with blind spots. They include areas that may not be routinely supervised—the chapel, for example, or work areas such as the kitchen during off-hours. Showers tend to be a danger spot as well as empty hallways, closets, and stairwells. Any place out of an officer’s line of sight or too dim to see clearly poses a risk. Corrections professionals believe that there is a particularly high risk for sexual assault by other incarcerated individuals when they are housed together in a cell or in crowded dormitories.61
Because eliminating blind spots is a key to effective supervision, the Commission’s standard requires management to examine areas in the facility where sexual abuse has occurred to assess whether physical barriers, inadequate staffing, or lack of monitoring technology may have contributed to its occurrence and to undertake needed improvements.
Adding Electronic Eyes and Ears
Monitoring blind spots before abuse occurs is an even better way to protect prisoners and avoid lawsuits. Michelle Tafoya was assigned to cooking and cleaning duties in the Huerfano County, Colorado, jail where she was detained.62 The jail had installed surveillance cameras in areas where past sexual assaults had occurred, but not in the kitchen, because it had never been the site of a sexual assault. On two occasions in December 2001 when Tafoya was on kitchen duty alone, a male officer who knew her whereabouts sexually assaulted her. In deciding this case, the court noted that the facility “knew that blind spots remained even after the installation of the new cameras, and knew that having some cameras in the jail was not enough to deter assaults in [remaining] unmonitored areas.”63
The Commission’s standard in this area requires correctional facilities to make use of cost-effective and appropriate monitoring technologies to aid staff supervision by assessing, at least annually, the need for and feasibility of incorporating additional monitoring equipment or new technologies. Commander Donald Rodriguez of the Los Angeles County Sheriff’s Department told the Commission that cameras, if well-placed, discourage prisoners and staff from engaging in abuse; increase the number of areas that staff can monitor at one time; and, when cameras capture misconduct or abuse on video, provide an objective record of what happened to support investigations.64 Many facilities now use closed-circuit television video surveillance, in which video cameras transmit a signal to a limited set of monitors. Digital video recorders allow images to be stored directly on a computer hard drive in greatly compacted formats, permitting staff to quickly review footage. Cameras equipped with motion or vibration sensors that trigger recording or send an alert to a central control monitor provide an efficient way to monitor isolated or intermittently used areas, such as stairways, closets, chapels, and property storage rooms. Some facilities also use audio surveillance technologies.
Radio frequency identification (RFID) is another technology, albeit an expensive one, with the potential to reduce sexual assault in correctional environments. RFID tags are commonly used in security access cards, smart cards used in credit and debit transactions, and for tracking shipments. Corrections staff can use RFID to track the movements of prisoners and staff and plot them on a two-dimensional computer-generated grid, showing their locations at all times.65
RFID has already stirred interest among corrections officials. The California Department of Corrections and Rehabilitation tested an RFID system to track prisoners and found that it lowered rates of violence, illegal conduct, and property damage in its facilities (as well as detecting people going through the food line more than once).66 The Commission recommends that NIC provide technical assistance to Federal, State, tribal, and local authorities who plan to introduce or enhance monitoring technology in their correctional facilities.
Setting Limits on Cross-Gender Supervision
Clothed pat-down searches, strip searches, body cavity searches, and visually observing individuals while undressed are necessary security procedures. However, searches carried out by staff of the opposite gender heighten the potential for abuse. Ironically, rules that required officers to meet a daily quota of pat-down searches for weapons, drugs, or other contraband—five pat-downs per shift—facilitated some of the abuse that occurred in women’s prisons across Michigan in the 1990s. A Detroit newspaper account reported that “[s]ome officers did it the proper way, quickly and with professionalism. But others exploited this directive, picking out the pretty women to search, the ones who were young and had long sentences.”67
Former Michigan prisoner Toni Bunton, a plaintiff in the class action lawsuit, recalled one incident that took place in the prison’s recreation yard. “Give me a shakedown,” an officer commanded Bunton.68 According to what she wrote in her prison journal, she lifted her arms, and the officer “rubbed his hands down her neck, across her back and around to her chest. He caressed her breasts. He rubbed her stomach. He squeezed her buttocks, rubbing up and down her thighs. His hand brushed against her pelvic bone, as he pulled himself closer to her. Another officer watched. ‘That’s the way you do it,’ the second officer said.”
State corrections officials claimed they had written policies prohibiting the abuse of authority in this context and did not realize some officers took advantage of the requirement to pat-down prisoners. Today, those requirements have changed in Michigan. Only women staff are permitted to search incarcerated women, except in cases of emergency.
In the Commission’s view, the risks are present whether the officers are female or male.69 Case law, policy, and common perceptions of sexual abuse in correctional facilities have focused on male officers abusing their authority with female prisoners.70 Historically, few women worked in corrections, but this situation is changing rapidly. As Martin Horn told the Commission, “Forty percent of my officers are women. My last three recruit classes, approximately 50 percent of the new officers are women. In the next 3 years, one-third of my workforce is eligible to retire. Three years from today more than 50 percent of the officers in New York City will be women supervising men. We’re going to have to deal with this issue of cross-gender supervision.”71
Some of the women who have joined corrections, like some of the men, are willing to cross the line to use their authority in sexually abusive ways. “[W]e have to be very careful and very attentive to our female staff who work with male inmates as well as our male staff who work with females,” Richard Stalder, past president of the Association of State Correctional Administrators and the former Louisiana Corrections Secretary, told the Commission.72
The Commission understands that cross-gender supervision can have benefits for incarcerated persons and staff. Many experienced corrections professionals believe, for example, that women officers have a calming effect in male units. The Commission’s standard on this issue is not
intended to discourage the practice generally or to limit employment opportunities for men or women. To prevent abuse, however, the standard on this subject strictly prohibits nonmedical staff from conducting cross-gender strip and visual body cavity searches—except in the case of emergency—
because of their extraordinarily intrusive nature. The standard also mandates that corrections administrators restrict nonmedical staff from conducting cross-gender pat-down searches and viewing prisoners of the opposite gender who are nude or performing bodily functions except in emergency situations or under other extraordinary or unforeseen circumstances.
Several courts have recognized that prolonged and direct viewing by male staff violates an incarcerated woman’s right to privacy. In Jordan v. Gardner, women at the Washington Correction Center for Women, containing minimum- and medium-security units and a special needs center, challenged a cross-gender supervision policy based on the claim that it violated their Eighth Amendment right to be free from cruel and unusual punishment.73 Prior to January 1989, the facility had a policy that allowed only women officers to search women prisoners. On July 5, 1989, a new warden—
citing the need for an increase in the number of searches—ordered corrections officers of either gender to conduct searches. The court noted that the warden adopted this policy despite the fact that more than 85 percent of women in the facility had reported a history of past sexual abuse and that facility staff warned the warden about the psychological impact cross-gender searches would have on these women. In light of these facts, the court found that the policy violated the Eighth Amendment because the warden was deliberately indifferent to the pain it would cause so many women in the facility.
In Colman v. Vasquez, the plaintiff had a documented history of sexual abuse and was placed in a Federal prison program for survivors of sexual abuse.74 Despite her history, male officers forced her to endure multiple pat-down searches that sometimes included inappropriate touching and unwarranted sexual advances. The court found that the circumstances could violate the Fourth Amendment’s prohibition against unreasonable searches and its more general guarantee of a right to some measure of bodily privacy.75 States also may be liable for sexual abuse if facilities have a policy and practice of permitting male staff to view and supervise incarcerated women, especially in isolated or remote settings, without female staff present.76
Some courts have found that incarcerated men hold a right to privacy that protects them from certain conduct as well. In Wilson v. City of Kalamazoo, corrections staff forced newly booked men to strip and placed them in cells naked, without any covering.77 Each man was monitored by video surveillance, at times by female corrections officers. In finding that these men had some right to privacy, the court noted that the “plaintiffs were denied any and all means of shielding their private body parts from viewing by others, at least by video surveillance, for at least six, and as many as 18, hours.”78 These decisions and others echo the Supreme Court’s declaration in Turner v. Safley that “prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”79
Bargaining with the Unions
Both labor and management have a stake in reducing sexual abuse in correctional facilities. Collective bargaining agreements should feature an explicit commitment from unions and their members as well as management to support a zero-tolerance
approach to sexual abuse. Without such a commitment, there is little common ground upon which to build when negotiating about policies, procedures, and training.
Cooperation between unions and management in many areas is essential if the Commission’s standards are to be real and meaningful in practice. Management also should involve union representatives when a facility assesses and considers implementing new technologies, partly because staff members are more likely to embrace new technologies when unions understand them and can articulate their benefits. For example, staff may be initially apprehensive about the introduction of surveillance technologies, such as cameras. Union representatives can explain that these technologies help protect staff from false allegations of sexual misconduct and make the work environment safer.
A particularly thorny issue in management–union relations, and one with significant repercussions in the area of sexual abuse, concerns management’s authority to reassign or sanction staff. For example, in some States when a staff member bids on and wins a job, it becomes his or hers to keep. In this situation, union rules may prevent facility management from moving the staff member to another assignment against his or her will.80
The case of Riley v. Olk-Long illustrates how such bidding systems can make it difficult to ensure safety and hold abusers accountable.81 In January 1995, two women at the Iowa Correctional Institution for Women reported that a male officer had sexually assaulted them. The facility conducted an investigation. Although it was deemed inconclusive, the officer received a 10-day suspension for threatening “‘to get the snitch’” who reported his behavior.82 In June 1995, a report circulated that the same officer had picked up a paroled prisoner at a bus stop en route to her work release program. He allegedly took her home, had sex with her, and later drove her to her destination. His supervisor investigated the report but could not substantiate it because the former prisoner did not report the incident to her residential correctional facility or her parole officer. In October 1995, the officer accosted Pamela Riley. He asked if she was having sex with her roommate and if he could watch. Approximately 10 days later, he entered her room during a lockdown and attempted to reach under her nightshirt but left when she resisted. On another occasion, he rubbed against her from behind while grabbing her breasts. Riley was afraid to report the harassment and abuse for fear she would not be believed and would be disciplined. The officer remained in his post until someone actually witnessed him sexually abuse Riley when he went into her room during a routine head count of prisoners in November 1995. At that point, nearly a year after the initial reports, the officer was terminated. He was charged and pled guilty to sexual misconduct.
In responding to a civil suit against the facility, prison officials contended that the collective bargaining agreement with the union precluded them from either permanently assigning the officer to an area where he did not have direct contact with prisoners or assigning another employee to shadow him. They also argued that under the agreement, they believed that they had insufficient cause to fire him. The court did not agree, however. The warden and the director of security were held personally liable and were required to pay monetary damages. An appellate court later upheld this decision, maintaining that the collective bargaining agreement did not change the fact that the facility was “responsible for providing a safe environment for inmates” and had failed to do so.83
Given challenges like these, it is crucial that labor and management reach agreements that allow reassignment of officers when safety is at issue. Wisconsin’s Department of Corrections brought in union leadership in the beginning of its PREA initiative and engaged in early collaboration on policy and practice regarding sexual abuse.84 Rick Raemisch, the Secretary of the Wisconsin Department of Corrections, said that “the union was never against the principle of PREA,” but it was “concerned about the process. . . . Working with the union is important to success in implementing PREA.”85
Administrators can also devise creative interim solutions to protect incarcerated persons, such as paid administrative leave and surprise observations by supervisors.86 Technological monitoring may also be useful to deter or document abuse while an investigation is ongoing.
Collective bargaining agreements also should support disciplinary sanctions for perpetrators of sexual abuse. Such agreements protect both the facility and the union. Wayne Meyers, a staff representative for the American Federation of State, County, and Municipal Employees, told the Commission,
“[A]s a union rep, we give them due process, but they’re a safety and security issue to us. And if they are found guilty and did commit this, we’re not interested in having them work with us either.”87
Corrections staff may have appeal rights if they are terminated from their job. A National Academy of Public Administrators panel, formed at the Commission’s request, found that unions have often negotiated to ensure a grievance procedure that offers resolution by arbitration, which may run counter to zero-tolerance responses to sexual abuse.88 According to Joseph Gunn, former Executive Director of the California Corrections Independent Review Panel, the appeals process in California is flawed in just that way. A staff member who has been disciplined may appeal to a State Personnel Board and, “[i]n the majority of cases that are appealed to this board, they overturn management’s recommendations for discipline, and all that does is weaken management’s authority and also enhance the code of silence.”89 The Pennsylvania State Police’s disciplinary process, which also applies to the Department of Corrections, provides a better model.
Serious acts of misconduct mandate dismissal, and management’s decision is final when a serious infraction has occurred.
With strong leadership and clear policies, corrections administrators can foster a culture within every facility that promotes safety. The Commission intends for its standards to support these efforts. As veteran professional and director of the Rhode Island Department of Corrections, A.T. Wall said, “When we as leaders can connect your standards to the approaches that we are taking to foster the changes we seek, then the values of PREA will take root in our agencies. They will outlast the Commission and they will outlast us.”90
To allow any level of sexual abuse in a correctional
setting creates a security breach that
jeopardizes the safety of staff and prisoners.
Good leaders not only have a policy on paper, they ensure that the policy is reflected in practice by carefully assessing and responding to attitudes, beliefs, and values that support or conflict with a culture of zero tolerance.
Zero tolerance of sexual abuse
The agency has a written policy mandating zero tolerance toward all forms of sexual abuse and enforces that policy by ensuring all of its facilities comply with the PREA standards. The agency employs or designates a PREA coordinator to develop, implement, and oversee agency efforts to comply with the PREA standards.
Contracting with other entities for the confinement of inmates
If public correctional agencies contract for the confinement of their inmates, they do so only with private agencies or other entities, including other government agencies, committed to eliminating sexual abuse in their facilities, as evidenced by their adoption of and compliance with the PREA standards. Any new contracts or contract renewals include the entity’s obligation to adopt and comply with the PREA standards and specify that the public agency will monitor the entity’s compliance with these standards as part of its monitoring of the entity’s performance.
Hiring and promotion
The agency does not hire or promote anyone who has engaged in sexual abuse in an institutional setting or who has engaged in sexual activity in the community facilitated by force, the threat of force, or coercion. Consistent with Federal, State, and local law, the agency makes its best effort to contact all prior institutional employers for information on substantiated allegations of sexual abuse; must run criminal background checks for all applicants and employees being considered for promotion; and must examine and carefully weigh any history of criminal activity at work or in the community, including convictions for domestic violence, stalking, and sex offenses. The agency also asks all applicants and employees directly about previous misconduct during interviews and reviews.
“Psychiatrist Terry Kupers warned, “[w]hen there is an acceptance of misogynist jokes, of . . . little slaps on the
bottom . . . when the management does not stop that and does not want to hear about it, that is where sexual assault occurs.”
The agency trains all employees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and relevant Federal, State, and local law. The agency trains all employees to communicate effectively and professionally with all inmates. Additionally, the agency trains all employees on an inmate’s right to be free from sexual abuse, the right of inmates and employees to be free from retaliation for reporting sexual abuse, the dynamics of sexual abuse in confinement, and the common reactions of sexual abuse victims. Current employees are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all employees to ensure that they know the agency’s most current sexual abuse policies and procedures. The agency maintains written documentation showing employee signatures verifying that employees understand the training they have received.
Volunteer and contractor training
The agency ensures that all volunteers and contractors who have contact with inmates have been trained on their responsibilities under the agency’s sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and relevant Federal, State, and local law. The level and type of training provided to volunteers and contractors is based on the services they provide and level of contact they have with inmates, but all volunteers and contractors who have contact with inmates must be notified of the agency’s zero-tolerance policy regarding sexual abuse. Volunteers must also be trained in how to report sexual abuse. The agency maintains written documentation showing volunteer and contractor signatures verifying that they understand the training they have received.
A strong educational program on sexual abuse sends the message that an agency will not tolerate sexual abuse by staff or prisoners and that preventing abuse and holding perpetrators accountable are top priorities.
During the intake process, staff informs inmates of the agency’s zero-tolerance policy regarding sexual abuse and how to report incidents or suspicions of sexual abuse. Within a reasonably brief period of time following the intake process, the agency provides comprehensive education to inmates regarding their right to be free from sexual abuse and to be free from retaliation for reporting abuse, the dynamics of sexual abuse in confinement, the common reactions of sexual abuse victims, and agency sexual abuse response policies and procedures. Current inmates are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all inmates to ensure that they know the agency’s most current sexual abuse policies and procedures. The agency provides inmate education in formats accessible to all inmates, including those who are LEP, deaf, visually impaired, or otherwise disabled as well as inmates who have limited reading skills. The agency maintains written documentation of inmate participation in these education sessions.
Accommodating inmates with special needs
The agency ensures that inmates who are limited English proficient (LEP), deaf, or disabled are able to report sexual abuse to staff directly, through interpretive technology, or through non-inmate interpreters. Accommodations are made to convey all written information about sexual abuse policies, including how to report sexual abuse, verbally to inmates who have limited reading skills or who are visually impaired.
Security staff provides the inmate supervision necessary to protect inmates from sexual abuse. The upper management officials responsible for reviewing critical incidents must examine areas in the facility where sexual abuse has occurred to assess whether physical barriers may have enabled the abuse, the adequacy of staffing levels in those areas during different shifts, and the need for monitoring technology to supplement security staff supervision (DC-1). When problems or needs are identified, the agency takes corrective action (DC-3).
“[T]he deputy is right there amongst them and everybody is talking to him,” Hennessey said. “They’re complaining about food. They’re complaining about their clothing. They’re complaining about their release date. And in the meantime they can also say, ‘By the way, I think something is going
down between this inmate and that inmate.’”
Assessment and use of monitoring technology
The agency uses video monitoring systems and other cost-effective and appropriate technology to supplement its sexual abuse prevention, detection, and response efforts. The agency assesses, at least annually, the feasibility of and need for new or additional monitoring technology and develops a plan for securing such technology.
Limits to cross-gender viewing and searches
Except in the case of emergency, the facility prohibits cross-gender strip and visual body cavity searches. Except in the case of emergency or other extraordinary or unforeseen circumstances, the facility restricts nonmedical staff from viewing inmates of the opposite gender who are nude or performing bodily functions and similarly restricts cross-gender pat-down searches. Medical practitioners conduct examinations of transgender individuals to determine their genital status only in private settings and only when an individual’s genital status is unknown.
“Give me a shakedown,” an officer commanded Bunton. According to what she wrote in her prison journal, she lifted her arms, and the officer “rubbed his hands down her neck, across her back and around to her chest. He caressed her breasts. He rubbed her stomach. He squeezed her buttocks, rubbing up and down her thighs. His hand brushed against her pelvic bone, as he pulled himself closer to her. Another officer watched. ‘That’s the way you do it,’ the second officer said.”
“[T]he union was never against the principle of PREA,” but it was “concerned about the process. . . . Working with the union is important to success in implementing PREA.”
“When we as leaders can connect your standards to the approaches that we are taking to foster the changes we seek, then the values of PREA will take root in our agencies. They will outlast the Commission and they will outlast us.”
FINDING: Certain individuals are more at risk of sexual abuse than others. Corrections administrators must routinely do more to identify those who are vulnerable and protect them in ways that do not leave them isolated and without access to rehabilitative programming.
Just weeks after entering Clemens Unit, a State prison in Brazoria County, Texas, Rodney Hulin began pleading with prison officials to protect him from other prisoners who were repeatedly beating and raping him and forcing him to perform oral sex. “I’m afraid to go to sleep, to shower or just about anything else. I am afraid that when I am doing these things, I might die at any time. Please, sir, help me.”1
Rodney was 16 years old when he entered Clemens Unit in 1995 and small even for his age, weighing about 125 pounds and standing just 5’2” tall. He had been convicted of second-degree arson with property damage totaling less than $500 as a result of setting a neighborhood dumpster on fire, and he had been sentenced to 8 years in adult prison.2 Rodney’s mother,
Linda Bruntmyer, told the Commission the whole family was afraid that Rodney would be “targeted by older and tougher inmates.”3 Indeed, the first rape occurred almost immediately and was confirmed by a medical examination that revealed tears in Rodney’s rectum. Despite Rodney’s pleas to be moved out of the general population, after receiving medical treatment he was returned to the same unit where he had been raped. Rodney continued to write urgent requests for a transfer; these requests were also denied. According to Bruntmyer, prison staff told her son that he did not meet “emergency criteria” and that he needed to “grow up.”4 Desperate, Rodney started breaking rules so that staff would place him temporarily in the prison’s disciplinary segregation unit, where his attackers could not reach him.5 Officials eventually moved Rodney to a segregated unit, but the transfer came too late. After only 75 days in the facility, Rodney committed suicide by hanging himself in his prison cell.6
Courts have clearly established that correctional facilities have a duty to protect incarcerated persons from harm and cannot display
“deliberate indifference.”7 Rodney’s tragic experience at Clemens Unit raises
some hard questions: Why didn’t Rodney’s age, his obvious physical
vulnerability, and his palpable fear trigger a response that protected him from repeated rapes when he entered Clemens? How can corrections
officials protect the Rodney Hulins under their care? As the past president
of the Association of State Correctional Administrators and the former
Louisiana Corrections Secretary Richard Stalder told the Commission,
“[W]e have many, many special needs populations in our jails and prisons. . . .
[T]hey’re going to need a different kind of attention than someone who is not fragile.”8
A limited amount of research points to factors that increase the risk of sexual abuse in confinement.9 Most of this research has focused on the risks of being abused by other prisoners rather than by staff and on vulnerability factors for men and boys rather than women and girls. This chapter discusses those factors and also explores what corrections administrators can do to identify and protect vulnerable individuals.
Young, Small, and Naive
You can’t show any fear, they pick up on that. You gotta show strength. . . . Never look down, like you’re afraid to look ‘em in the eye. . . . You gotta be a man all the time, and a man according to the standards in here.”10 As the comment above suggests, abusive prisoners notice and take advantage of any sign of fear, loneliness, or uncertainty. Younger, smaller individuals and those who are unfamiliar with prison culture—both male and female—are more vulnerable to abuse, partly because they feel overwhelmed and appear ill at ease.11 Initial offers of friendship or protection may suddenly become manipulative or morph into demands for “payback.”12
Chance Martin was 18 years old and still in high school when he was arrested for possession of hashish and detained in a county jail in Indiana in 1973. He told the Commission, “I must have looked as scared and dejected as I felt, because this guy came up and sat on the bunk next to me and said, ‘Let’s cheer you up and play some cards.’ I couldn’t even figure out what they were playing. . . but then they said, ‘Okay. You lost. Pay up.’”13 Payment turned out to be a brutal gang rape by at least six men. Martin never reported the rape that happened on his first day in jail, but he told the Commission that he carries the scars of that experience with him every day.
Corrections officers also may target inexperienced or naive prisoners. Interviews with women residing in California prisons have indicated that some male corrections officers seek out “younger female prisoners who are new to the prison system or unfamiliar with the prison environment” and those serving short sentences who “want to go home” and, therefore, are less likely to file complaints.14 In another case, for example, the court found that female staff members at an alternative juvenile facility for those with learning disabilities and mental illness had sexually targeted younger male residents.15
“Turned Out” or Traumatized
T.J. Parsell was raped for the first time in 1978 when he entered Riverside Correctional Facility in Ionia, Michigan. His experience illustrates how being known as a victim literally attracts predators. “I hoped no one would find out about it, but as I walked the yard in a daze, other inmates pointed and laughed,” he told the Commission.16 “Once an inmate has been turned out, he’s considered a target wherever he goes.” According to Robert Dumond, a researcher and clinician with expertise in prison sexual abuse, the culture inside men’s correctional facilities makes it extremely difficult for prisoners to change such perceptions, even over time.17 Unless facility managers and administrators take decisive steps to protect these individuals, they may end up being abused throughout their terms of incarceration.
Even if survivors are not branded as easy targets, the emotional scars of being previously sexually abused—either inside the facility or previously in the community—can create a vulnerability to future abuse. Sexual abuse prior to incarceration appears to be much more common among incarcerated women than men. Studies found that from 31 to 59 percent of incarcerated women reported being sexually abused as children, and 23 to 53 percent reported experiencing sexual abuse as adults.18 The Bureau of Justice Statistics also found that incarcerated mentally ill prisoners were more than twice as likely to have a history of prior sexual abuse as the general incarcerated population.19 Past victimization may contribute to feelings of helplessness in the face of danger and inhibit victims’ ability to seek protection.20 Effects of these prior experiences, coupled with social messages that threats and acts of victimization are inescapable parts of life, put them at increased risk of further exploitation.21
Peddle v. Sawyer documents how a male corrections officer in a Federal women’s prison in Danbury, Connecticut, sexually assaulted a prisoner, Sharon Peddle, whose case file described a history of sexual abuse and vulnerability to being manipulated by men she viewed as authority figures.22 The officer, who had been investigated several times for sexually abusing other prisoners, read Peddle’s case file without authorization. He then sexually assaulted her regularly throughout 1995 and 1996 and threatened to have her transferred to another facility, away from her family members, if she told anyone or refused to submit to him. Other officers were aware of the abuse, and some even helped to facilitate it. A fellow officer in the housing unit would call Peddle out of her cell and leave her with the abusive officer in an area where they would not be observed. Even after she was reassigned to a special mental health unit for victims of chronic abuse, the officer followed her. He arranged to be reassigned to the unit and “regularly woke Ms. Peddle and took her to the TV room or stairwell where he compelled her to submit to oral and vaginal sex.”23 After more than a year of raping Peddle, the officer was arrested and pled guilty to six counts of sexual abuse.
Disabled and At Risk
Unlike being young or inexperienced, some risk factors may be
longer-lasting. Physical and developmental disabilities and mental illnesses can significantly affect an individual’s ability to function and remain safe in a correctional facility. Individuals with severe developmental disabilities are at especially high risk of being sexually abused. Their naivety, tendency to misinterpret social cues, and desire to fit in make many developmentally disabled individuals vulnerable to manipulation and control by others.24 If they’ve previously lived in group homes or other institutions, they may have been conditioned to follow directions from others without regard to their best interests or safety and may have a history of mistreatment and abuse by the time they enter a correctional facility.25
Past traumatic experiences condition some developmentally disabled men and women to expect abuse and view submission as a requirement for survival. Prisoners in Kuskokwim Correctional Center in Bethel, Alaska, brutally assaulted a developmentally disabled inmate in his 40s and a much younger man. According to Sean Brown, the attorney who represented the men and who prevailed in a civil lawsuit against the department of corrections, “One of the [victims] had his eyebrows ripped off, was kicked and hit, and was sexually assaulted with a toilet plunger”—abuses that occurred not over the course of minutes or hours, but over 3 days.26
For men, women, and juveniles coping with serious mental illness, both the disease itself and the treatment can render them extremely vulnerable.27 Symptoms ranging from hallucinations and paranoia to anxiety and depression may make it difficult to build the kind of supportive social networks that could protect prisoners from sexual abuse.28 Psychotropic medications often have side effects, such as sleepiness, slowed reactions, uncontrolled movements, and withdrawal, that increase a person’s vulnerability as well.29 Moreover, medications are often dispensed in open areas of the facility during peak traffic periods, such as around meal times, effectively “outing” people with a mental illness.
Dumond told the Commission that “[j]ails and prisons in the United States have become the de facto psychiatric facilities of the 21st century,” housing more mentally ill individuals than public and private psychological facilities combined.30 The data back up this assertion: a survey of prisoners in 2006 suggests that more than half of all individuals incarcerated in State prisons suffer from some form of mental health problem and that the rate in local jails is even higher.31
Research on sexual abuse in correctional facilities consistently documents the vulnerability of men and women with non-
heterosexual orientations (gay, lesbian, or bisexual) as well as individuals whose sex at birth and current gender identity do not correspond (transgender or intersex).32 Scott Long, Director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch, told the Commission, “[E]very day, the lives and the physical integrity of lesbian, gay, bisexual, and transgender people are at stake within our prison systems.”33 The discrimination, hostility, and violence members of these groups often face in American society are amplified in correctional environments and may be expressed by staff as well as other incarcerated persons.34
Men’s correctional facilities tend to have very rigid cultures that reward extreme masculinity and aggression and perpetuate negative stereotypes about men who act or appear different.35 In this environment, gay, bisexual, and gender-nonconforming individuals are often the targets of sexual abuse precisely because the dominant “straight” males expect and demand submission.36 Criminal justice research indicates that some officials “erroneously assume that inmates who are homosexual or presumed to be homosexual are consenting to the sexual act,” which may cause them to ignore those incidents.37
Male-to-female transgender individuals are at special risk. Dean Spade, founder of the Sylvia Rivera Law Project, testified before the Commission that one of his transgender clients was deliberately placed in a cell with a convicted sex offender to be raped.38 The assaults continued for more than 24 hours, and her injuries were so severe that she had to be hospitalized. Legal cases confirm the targeting of transgender individuals. In 2008, a male officer at the Correctional Treatment Facility in the District of Columbia was convicted of sexually assaulting a transgender individual in the restroom by forcing her to perform fellatio on him.39
Like the individual just discussed, most male-to-female transgender individuals who are incarcerated are placed in men’s prisons, even if they have undergone surgery or hormone therapies to develop overtly feminine traits.40 Their obvious gender nonconformity puts them at extremely high risk for abuse.41 Cecilia Chung, a transgender woman, testified before the Commission about her experience of being placed in the “gay pod” at the San Francisco jail in 1993. “Unfortunately, the gay pod contained all kinds of inmates, and that includes sexual predators. . . . One of the inmates sexually propositioned me, and it caught me off guard. I was too intimidated to deny him. I did not know what would happen to me if I said no. . . . I had sex out of fear.”42 In determining whether to house transgender individuals in men’s or women’s facilities, the Commission requires individualized determinations based on other factors in addition to the person’s current genital status.
Lesbian and bisexual women also are targeted in women’s correctional settings. One study reported that a quarter of the women sexually abused in several Midwestern correctional facilities were either lesbian or bisexual—a higher proportion than their representation in the correctional population.43 The majority of the abuse of lesbian women was perpetuated by male corrections officers. One woman from an Illinois prison told Human Rights Watch that some male corrections officers regarded her sexual orientation as a challenge and recalled one officer saying, “You need a good man,” before he sexually assaulted her.44
Screening and Classification of Prisoners
When Glen Goord, former Commissioner of the New York State Department of Correctional Services, testified before the Commission, he talked about classification as an integral part of prevention. “[P]lacing resources and
emphasis on classification allows us to address a potential problem even before it starts.”45
In the most basic terms, classification is the process of assessing and sorting prisoners to promote safety and security within facilities and meet the needs of individual prisoners. Over the decades, classification has evolved from little more than ad hoc decisions to an increasingly objective, evidence-based process—the “principal management tool for allocating scarce prison resources efficiently and minimizing the potential for violence. . . .”46
Classification needs to be objective and free of individual biases. According to James Austin, the former Executive Vice President of the National Council on Crime and Delinquency, “Without an objective classification system, it is impossible to determine which inmates should be separated from one another, how staff should be deployed, how best to control crowding, how to avoid unnecessary litigation, and how to plan the next generation of correctional facilities. Without classification, a correctional facility can never be truly secure.”47
There are two forms of classification: external and internal. External classification determines which security level and facility within the system is most appropriate, based on the person’s crime or the charges against them; their criminal history and any escape attempts; and other significant factors, including age and gang affiliation.48 Internal classification occurs when someone enters a facility and focuses primarily on how that person should be housed and the programming and resources required based on his or her past conduct, vulnerabilities, and special needs, such as mental or physical health care.49 Some facilities, particularly jails and jurisdictions with limited security levels or capacity, conduct these screenings concurrently; the availability of bed space often significantly affects screening decisions.
Whatever the process, careful screening for risk of sexual abuse as a victim or perpetrator must occur during both external and internal classifications to protect vulnerable prisoners.50 Without this process, vulnerable individuals may be forced to live in close proximity or even in the same cell with sexual assailants. Screening is a critical part of the classification process when trying to prevent sexual abuse by other incarcerated individuals. Unfortunately, there is not yet research on how to screen individuals to protect them from abuse by staff.
Because many characteristics that make individuals susceptible to abuse may not be immediately apparent, careful screening is important to identify special needs and vulnerabilities.51 In the past, screening focused primarily on spotting predatory prisoners, based primarily on their past offenses.52 However, there is almost no research on risk factors for perpetration of sexual abuse while incarcerated, thus making it challenging to identify potential abusers.53 Fairly consistent evidence, however, identifies characteristics that increase a prisoner’s risk of sexual victimization. Evidence-based, objective screening instruments designed to identify these risk factors are vital tools to protect vulnerable individuals from abuse by other prisoners.54 Use of information gained from effective screening enables corrections staff to plan for safety and needed resources. Standardizing the process also reduces the chance that a staff member’s personal views or lack of expertise will bias assessments.
Facilities are required to use a written instrument to guide the screening process. The first of the Commission’s standards on the subject specifies areas of inquiry that every instrument must cover when screening men and, separately, women. As National Institute of Corrections (NIC) Director Morris Thigpen testified, to be effective, screening “systems need to be responsive to gender differences.”55 The screening process also must solicit incarcerated persons’ views about their own vulnerability. A NIC study supports this aspect of the standard, finding their perspectives to be essential.56 In addition to looking for markers of vulnerability, the standard requires screening for signs that a prisoner may abuse others. Although there is much less research on perpetration than victimization, facilities must at least screen men for prior acts of sexual abuse and convictions for violent offenses and women for prior acts of sexual abuse.
Some correctional agencies, including the Federal Bureau of Prisons and the California Department of Corrections and Rehabilitation, now use written instruments to screen all incoming prisoners specifically for risk of sexual assault. Evidence-based screening should become routine nationwide, replacing the subjective assessments that many facilities still rely on and filling a vacuum for facilities that do not conduct targeted risk assessments.57 The Commission intends for its standards in this area to accelerate progress toward this goal by setting baseline requirements for when and how to screen prisoners for risk of being a victim or perpetrator of sexual assault and how to use the results of these screenings.
Correctional health care practitioners have an important role to play in the screening process as well. Most correctional facilities conduct brief medical and mental health assessments during intake and more comprehensive evaluations a week or two later.58 According to the Commission’s standard on this aspect of screening, staff must inquire about any past experience as a victim or perpetrator of sexual abuse. Staff also must clearly inform prisoners that they are not required to answer such questions and should explain that any information they do provide will be given to other staff on a need-to-know basis as governed by law or agency policy. If a prisoner discloses information about sexual victimization that occurred in the community, the standard requires correctional health practitioners to obtain informed consent from the prisoner—unless the person is under the age of 18—before sharing any information about that victimization with facility staff responsible for making housing, program, education, and work placements. The standards also require that all screeners receive training in how to inquire about sensitive personal information, ranging from disabilities to sexual orientation.59
Screening an individual only at intake is not sufficient. Even the most skilled interviewers may fail to elicit complete answers during the initial screening. Additionally, some risk factors, such as mental illness; fear of being assaulted; and a propensity to manipulate, control, or abuse others, may develop or become apparent only after a person has spent some time confined in a facility.60 For these reasons, the Commission mandates regular review of sexual abuse risk assessments: recommending reviews within 6 months of the initial screening and every year thereafter in prisons, and within 60 days of the initial screening and every 90 days thereafter in jails.
The research underlying risk assessment continues to evolve even as this report goes to press, and requirements outlined in the standards are only a starting point. The Commission urges corrections administrators to craft and refine their screening instruments to reflect the latest research. Tailoring screening instruments to reflect the demographic and site-specific culture of the facilities these administrators operate as well as what they learn about the characteristics of victims and perpetrators through regular review of their own incident data will enhance the instruments’ effectiveness. NIC advises correctional agencies to review their screening protocols and classification systems annually and conduct a formal evaluation every 3 years.61
Using Screening to Enhance Safety
To be effective, the results of these screenings must then drive decisions about housing and programming. When Kenneth Young was sentenced to 5 years in prison for a counterfeit deal amounting to $42 in 1988, he described himself as “small, young, white, and effeminate.”62 After a few months in a lower-security facility, Young was placed in a two-person cell in a high-security Federal prison in Lewisburg, Pennsylvania, among prisoners convicted of serious crimes. Young’s first cellmate continuously threatened him with sexual abuse. After repeated requests, Young was moved, only to face immediate assaults and threats from his new cellmate. This new cellmate eventually attached a razor blade to a toothbrush and, holding it to Young’s throat, forced him to perform a sexual act. Young wrote letters to prison officials detailing this attack and others to no avail. Finally, he became so desperate for help that he flooded his cell to attract officers’ attention. As punishment, Young was placed in a “dry cell” with no access to running water, a toilet, or a shower for 96 hours.
In ruling in Young’s favor in Young v. Quinlan, the court stated, “It would be an abomination of the Constitution to force a prisoner to live in his own excrement for four days. . .” and noted that prison officials subjected Young to “dehumanizing conditions” while ignoring his urgent pleas for help.63
Courts have commented specifically on the obligation of correctional agencies to gather and use screening information to protect prisoners from abuse. While awaiting trial in a State prison in Puerto Rico in 1999, Jesús Manuel Calderón-Ortiz was detained in a housing unit with violent prisoners.64 The lone officer on duty, stationed in an enclosed control area at the entrance of the unit, could not see into the cells, and made no patrols that day. No one intervened when four prisoners from Calderón-Ortiz’s unit entered his cell, threw a blanket over his face, and threatened to kill him. They then gang-raped him for more than half an hour, leaving him unable to move because of his injuries.
In deciding in his favor, the First Circuit concurred with allegations that “‘housing inmates without adequate regard to their custody and security needs and/or adequate classification is “unreasonably dangerous”. . .’”
and stated that “‘at a constitutional minimum [correctional facilities] must adopt some system of classifying and housing prisoners to assure [sic] that a prisoner’s propensity for violence as well as an inmate’s emotional and physical health be accounted for so as to minimize the risk of harm from fellow inmates to which the prisoners are now exposed.’”65
Protection Not Segregation
The Commission’s second standard on screening requires correctional agencies and facilities to use the information gathered to separate vulnerable individuals from likely abusers in housing, employment, education, and other programming.
When Alexis Giraldo was sentenced to serve time in the California correctional system, her male-to-female transgender identity and appearance as a woman triggered a recommendation to place her in a facility with higher concentrations of transgender prisoners, where she might be safer.66 Officials ignored this recommendation and sent her to Folsom Prison in 2006.
At Folsom, a male prisoner employed as a lieutenant’s clerk requested Giraldo as his cellmate; the facility granted this request. He then “‘sexually harassed, assaulted, raped, and threatened’ [her] on a daily basis.”67 Soon thereafter, the cellmate introduced Giraldo to another prisoner, who subsequently requested Giraldo as his cellmate. That request was also granted. Giraldo’s new cellmate also raped and beat her daily. It was only after her cellmate attacked her with a box cutter and raped her that officials moved Giraldo to a more protected environment. In ruling on this case, an appellate court in California found that “the relationship between them is protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself from harm inflicted by others. This. . . is the epitome of a special relationship, imposing a duty of care on a jailer owed to a prisoner.”68
Even when corrections administrators intend to fulfill their “duty of care,” they sometimes intervene too late. Kendell Spruce said he was “scared to death” when he entered an Arkansas State prison in 1991 at the age of 28.69 Within 2 weeks, he was raped at knifepoint. Afterward, officials placed him in protective custody, but he was not safe there either. The unit also housed known sexual offenders, who often become the targets of abuse in prison. “I was put in a [double] cell with a rapist who had full-blown AIDS. Within 2 days he forced me to give. . . him oral sex and anally raped me. I yelled for guards, but it was so loud in there, no one came to help me.”70 Spruce began to break prison rules, believing that the punishment—administrative segregation, which involved being locked day and night in a cell alone—was the only thing that would save him.
Kendell Spruce’s experience reveals failures in screening and classification, day-to-day management of bed space, and supervision that are not unusual. Corrections staff may rely on segregation units to protect vulnerable prisoners from sexual abuse, and some victims experiencing severe assaults may seek transfer to segregation to escape their attackers. These placements are intended to be temporary but, in practice, can last for months.71
Relying on segregation in any form to protect vulnerable prisoners from sexual abuse presents several serious problems. These units typically cannot accommodate everyone needing protection.72 Additionally, the living conditions in protective custody may be as restrictive as those imposed to punish prisoners. In a typical protective custody unit, individuals are placed in maximum-security cells.73 Privileges are greatly reduced, with as little as an hour a day outside the cell for exercise, extremely limited contact with other prisoners, and reduced or no access to educational or recreational programs.74
Professor Vincent M. Nathan, a consultant to the U.S. Department of Justice in several investigations conducted under the authority of the Civil Rights of Institutionalized Persons Act, contends that all types of segregation “carry with them a level of control that is punitive in effect if not in intent,” and noted that any programming available is likely to be presented via closed circuit television.75 Serving time under these conditions is exceptionally difficult and takes a toll on mental health, particularly if the victim has a prior history of mental illness.76 Studies confirm that psychological distress increases along with the degree of restrictions in segregation.77
The Commission’s standards allow facilities to segregate victims or potential victims of sexual abuse only as a last resort. The standard permits facilities to place individuals in protective custody, especially if they request it, but only on a short-term basis. When an individual is vulnerable to sexual abuse and feels threatened, providing protective custody while other remedies are arranged may be the only way to prevent an attack.78 While aiming to keep these placements short-term, facilities must also provide programming, employment, and education to every extent possible: the Seventh Circuit has applied the principle of equal protection in this area.79 Moreover, research suggests that academic and vocational programs are associated with lower recidivism and better employment opportunities after release.80
When prisoners at high risk of victimization cannot be safely housed anywhere other than in segregation, the Commission suggests that facilities consider a transfer to another facility. The Commission discourages the creation of specialized units for vulnerable groups, and the standard specifically prohibits housing assignments based solely on a person’s sexual orientation, gender identity, or genital status because this practice can lead to labeling that is both demoralizing and dangerous.81 Many corrections administrators agree. San Francisco Sheriff
Michael Hennessey told the Commission that his city’s jails no longer have so-called gay units.82
The Risks of Crowding
In Taylor v. Michigan Department of Corrections, the court described Timothy Taylor as “five foot tall, 120 pounds. . . mildly mentally retarded with an IQ of 66, . . . youthful looking features, and [suffering from] a seizure disorder.”83 The court also noted that Taylor had a history of suicidal behavior. Despite assessments within the facility that Taylor “belonged to a class of prisoners likely to be a target of sexual pressure in prison and that he could easily be in danger if placed in the general prison population,” he was transferred to a prison dormitory to save bed space for new arrivals.84 Soon after moving into the dormitory in September 1985, another prisoner sexually assaulted Taylor.
Crowding is both a risk factor—environmental rather than personal—
and a real barrier to carving out safe spaces for vulnerable prisoners. In 2007, 19 States and the Federal system were operating at more than 100 percent of their highest capacity.85 An equal number of States operated at somewhere between 90 and 99 percent of capacity. One study found that facilities designed for 1,800 women held almost 4,000, and cells designed for four women held eight.86
Forced to accommodate a larger prisoner population than most facilities were designed to house, administrators have taken drastic measures.87 Cells designed for one person now hold two, with double-celling now the norm in many facilities, significantly increasing the opportunities for sexual abuse.88 Many corrections administrators make use of any unoccupied space as housing.89 Facilities convert day rooms, cafeterias, classrooms, storage areas, and basements into makeshift dormitories, with intrinsic risk for abuse and supervision challenges.90
Larger prison and jail populations, combined with staff shortages, typically mean that officers have more people to supervise, making it harder for officers to prevent abuse.91 An Oregon corrections officer described a dorm in his facility with 88 prisoners and only one officer “working the floor.”92 As a facility’s population expands, prisoners also have fewer or no opportunities to participate in education and job training. Idleness and the stress of living in crowded conditions lead to conflict.93 Employment, education, and other programming prepare incarcerated individuals to become law-abiding members of communities instead of individuals so damaged by abuse they have little hope of success after release.94 Meaningful activities will not end sexual abuse, but they are part of the solution.
It is critical that lawmakers tackle the problem of overcrowding head on. As Timothy Taylor’s experience illustrates, vulnerable individuals become even more vulnerable under these conditions. If facilities and entire systems are forced to operate beyond capacity and supervision is a pale shadow of what it must be, our best efforts to identify vulnerable individuals through objective screening and to protect them from sexual assault by acting on those assessments will fall far short of the goal PREA is designed to reach.
“[W]e have many, many special needs populations in our jails and prisons. . . . [T]hey’re going to need a different kind of attention than someone who is not fragile.”
“You can’t show any fear, they pick up on that. You gotta show strength. . . . Never look down, like you’re afraid to
look ‘em in the eye. . . . You gotta be a man all the time,
and a man according to the standards in here.”
“One of the [victims] had his eyebrows ripped off,
was kicked and hit, and was sexually assaulted with
a toilet plunger”—abuses that occurred not over
the course of minutes or hours, but over 3 days.
“[E]very day, the lives and the physical integrity of lesbian,
gay, bisexual, and transgender people are at stake
within our prison systems.”
Screening for risk of victimization and abusiveness
All inmates are screened during intake, during the initial classification process, and at all subsequent classification reviews to assess their risk of being sexually abused by other inmates or sexually abusive toward other inmates. Employees must conduct this screening using a written screening instrument tailored to the gender of the population being screened. Although additional factors may be considered, particularly to account for emerging research and the agency’s own data analysis, screening instruments must contain the criteria described below. All screening instruments must be made available to the public upon request.
At a minimum, employees use the following criteria to screen male inmates for risk of victimization: mental or physical disability, young age, slight build, first incarceration in prison or jail, nonviolent history, prior convictions for sex offenses against an adult or child, sexual orientation of gay or bisexual, gender nonconformance (e.g., transgender or intersex identity), prior sexual victimization, and the inmate’s own perception of vulnerability.
At a minimum, employees use the following criteria to screen male inmates for risk of being sexually abusive: prior acts of sexual abuse and prior convictions for violent offenses.
At a minimum, employees use the following criteria to screen female inmates for risk of sexual victimization: prior sexual victimization and the inmate’s own perception of vulnerability.
At a minimum, employees use the following criteria to screen female inmates for risk of being sexually abusive: prior acts of sexual abuse.
Over the decades, classification has evolved from little
more than ad hoc decisions to an increasingly objective, evidence-based process—the “principal management tool
for allocating scarce prison resources efficiently and minimizing the potential for violence. . . .”
Medical and mental health screenings—history of sexual abuse
Qualified medical or mental health practitioners ask inmates about prior sexual victimization and abusiveness during medical and mental health reception and intake screenings. If an inmate discloses prior sexual victimization or abusiveness, whether it occurred in an institutional setting or in the community, during a medical or mental health reception or intake screening, the practitioner provides the appropriate referral for treatment, based on his or her professional judgment. Any information related to sexual victimization or abusiveness that occurred in an institutional setting must be strictly limited to medical and mental health practitioners and other staff, as required by agency policy and Federal, State, or local law, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments. Medical and mental health practitioners must obtain informed consent from inmates before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the inmate is under the age of 18.
Use of screening information
Employees use information from the risk screening (SC-1) to inform housing, bed, work, education, and program assignments with the goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of being sexually abusive. The facility makes individualized determinations about
how to ensure the safety of each inmate. Lesbian, gay, bisexual, transgender, or other gender-nonconforming inmates are not placed in particular facilities, units, or wings solely on the basis of their sexual orientation, genital status, or gender identity. Inmates at high risk for sexual victimization may be placed in segregated housing only as a last resort and then only until an alternative means of separation from likely abusers can be arranged. To the extent possible, risk of sexual victimization should not limit access to programs, education, and work opportunities.
No one intervened when four prisoners from
Calderón-Ortiz’s unit entered his cell, threw a
blanket over his face, and threatened to kill him.
They then gang-raped him for more than half an hour,
leaving him unable to move because of his injuries.
As a facility’s population expands, prisoners also
have fewer or no opportunities to participate in
education and job training. Idleness and the stress of
living in crowded conditions lead to conflict.
FINDING: Few correctional facilities are subject to the kind of rigorous internal monitoring and external oversight that would reveal
why abuse occurs and how to prevent it.
Dramatic reductions in sexual abuse depend on both.
Beginning in fall 2003, the Texas Youth Commission (TYC), the agency responsible for the care and custody of all youth committed to Texas juvenile facilities, began receiving reports of sexual misconduct at the West Texas State School.1 Concerned school staff reported that the assistant superintendent and the school principal called boys out of their dorm rooms during the night to spend time alone with them.2 TYC administrators in Austin did not respond to those reports for nearly a year. Finally, in late 2004, a high-ranking TYC director who knew one of the suspected administrators was sent to the school to investigate. Despite the fact that the school’s security log showed that boys were indeed being called out of their rooms to be with the assistant superintendent after hours and that he had unauthorized access to the student grievance box, the TYC official declared the allegations of sexual abuse to be unfounded and urged one of the staff members who had reported abuse to be more supportive of the administration.3
A few months later, in February 2005, two boys approached a volunteer math tutor and told him something “icky” was going on.4 One boy confided that the assistant superintendent was sexually abusing him and claimed he could name five other boys who were similarly victimized. Later that week, the tutor witnessed the same man escorting students to a conference room near his office after hours. The tutor immediately informed the state police agency, the Texas Rangers, who conducted a thorough investigation and uncovered long-standing sexual abuse by the assistant superintendent and the school principal.
A subsequent internal investigation by the TYC’s Inspector General confirmed the Rangers’ findings—noting that the assistant superintendent and school principal had taken boys into darkened broom closets and out on the grounds in golf carts at night and sexually molested them. The internal investigation also alluded to a pervasive culture of secrecy, suppression of reporting, and retaliation.5 Corrections staff had threatened victims with lengthened sentences and lack of services after release if they reported the abuse; boys who dared to complain were punished. The report noted that the superintendent had received multiple reports of wrongdoing by the assistant superintendent but failed to respond properly or report the allegations to more senior administrators in Austin. Both men were allowed to resign quietly; the principal subsequently became principal of a charter school in another part of Texas. The school’s superintendent was briefly suspended but later promoted. The high-ranking TYC director who failed to uncover any abuse received no sanctions.6 Until 2007, a story of extensive sexual victimization, deliberate indifference, and massive cover-up seemed to just fade away in the vast landscape of West Texas.
Indeed, what stands out most in the story up to this point is the complete lack of accountability. The only people watching out for the children were the staff, yet when they diligently reported the incidents, their reports were ignored. At the time, the systems and mechanisms were not in place that would have made it impossible for TYC officials to look the other way. This chapter describes such systems and mechanisms: ones corrections administrators create and manage internally to monitor themselves, and others that are intentionally beyond their direct control but that have significant impact on reducing sexual abuse in correctional facilities.
Incident Reviews: Micro to Macro
Incidents of sexual abuse are as dangerous to a facility’s overall safety as nonsexual assaults. They constitute a breach of security that demands a full inquiry into what factors allowed sexual abuse to occur. The Commission’s standards establish two levels of review: at the incident level following any occurrence of abuse and at the facility or agency level at regularly planned intervals.
The most effective prevention efforts are targeted interventions that reflect where, when, and under what conditions sexual abuse occurs as well as how staff respond. That knowledge can be gained through routine incident reviews following every report of sexual abuse. These reviews reveal patterns, such as vulnerable locations, times of highest risk, and other conditions.
Although investigations to substantiate allegations and collect the evidence necessary to support sanctions or criminal prosecution offer many insights, they are not enough. Systematic incident reviews generate information administrators need to make efficient use of limited resources, deploy staff wisely, safely manage high-risk areas, and develop more effective policies and procedures.7 A number of State departments of corrections already conduct some type of review of sexual abuse incidents, including departments in Alabama, Arizona, Colorado, North Carolina, Pennsylvania, and Utah.8
The Commission’s standard on this subject requires correctional facilities to treat every report of sexual abuse as a critical incident to be examined by a team of upper management officials, with input from line supervisors, investigators, and medical and mental health practitioners. The sexual abuse incident review takes place at the conclusion of every sexual abuse investigation, unless the allegation was determined to be unfounded. By reviewing all facts and circumstances surrounding an incident and the quality of the facility’s response, officials can spot problems and take steps to remedy them.
A critical incident review may reveal, for example, dangerous, unmonitored areas of a facility, housing assignments that put vulnerable individuals at risk of sexual abuse, officers who are not complying with facility regulations, divisive racial dynamics motivating sexual abuse, or slow responses by frontline staff. A review will also reveal what is working well: This might include reporting mechanisms, screening for risk of victimization, collection of forensic evidence, or cooperation between investigators and mental health staff. A clear protocol should guide the review so that staff conduct each one in the same way. The Commission’s standard requires the review team to prepare a report for the facility head that summarizes the review’s findings and recommendations.
As Doug Dretke, former Director of the Texas Department of Criminal Justice, told the Commission: “Internal accountability begins with knowing what is actually occurring within a prison facility.”9 The Commission’s standards require correctional agencies to collect uniform data on every reported incident of sexual abuse from sources that must include investigation files and incident reviews and to aggregate those data at least annually.10 Agencies must collect information from each facility or program with which an agency contracts. At a minimum, facilities must collect the data necessary to answer all questions on the most recent version of the Bureau of Justice Statistics’ Survey on Sexual Violence. The Commission encourages administrators to collect any additional data that would help them understand and address the problem of sexual abuse in their systems.
Aggregate data are especially useful in documenting patterns and trends and in measuring performance within facilities and throughout entire correctional systems. The Commission urges standardization of the questions across jurisdictions so that information can be compared. Uniform data collection puts an end to each department (or correctional facility) creating its own reports and analysis with different rules for interpretation; instead, information can be compared across systems and over time.11 Former Secretary of the North Carolina Department of Correction Theodis Beck told the Commission about the benefits of collecting and tracking data statewide: “Data related to inmate-on-inmate assaults and inappropriate relationships between staff and inmates are maintained electronically in the Department’s offender population unified system. . . . The database tracks information regarding perpetrators of sexual violence, victims of sexual violence, and inmates involved in inappropriate relationships with employees. Th[ese] data [are] readily accessible for analysis and help. . . correctional staff to make appropriate housing assignments and provide proper supervision of these inmates.”12
Correctional agencies must report these data to the proper officials and make aggregate sexual abuse data available to the public to review at least annually through their Web sites or, if an agency does not have a Web site, through other means. The objective is transparency that meets the public’s right to be accurately informed about the functioning of a crucial government institution and that also protects corrections administrators and all staff from false impressions or accusations about sexual abuse in the facilities they operate.13
Because sexual abuse databases will include names and sensitive personal information, security is required to safeguard the privacy of individuals involved in sexual abuse incidents and guarantee the integrity of the data. Suggested security restrictions include limiting the number of persons who have access to the data and storing the data in an encrypted form in a secure location. Before publishing aggregate data or releasing them to anyone outside of the agency, all personal identifiers must be removed so that individual prisoners cannot be identified. The Commission’s standard requires agencies to retain their sexual abuse data for at least 10 years unless State law mandates earlier disposal.
The data that correctional agencies collect, aggregate, and review form the basis for taking action to reduce sexual abuse. According to the Commission’s standard, each facility must formulate corrective action plans based on what the data reveal about trends, patterns, and persistent problems. Beck put it this way: “We can’t make a dent in this problem if we don’t have a full understanding of what is really going on inside our facilities. . . . With accurate data in hand, our final step is to critically examine our actions and our outcomes.”14 The standards also require correctional agencies to prepare annual reports that describe problems, the specific action plans a facility will follow to correct them, and action plans for the agency as a whole. The annual report also must compare the current year’s data and action plans with those from prior years and assess the agency’s progress in addressing sexual abuse. Administrators are required to submit their reports to the appropriate legislative body and make them readily available to the public through the agency’s Web site or through other means.
Routine incident reviews, data collection, and analysis allow administrators to spot and correct problems before they spiral out of control and to refine good practices. Yet even the most rigorous internal monitoring cannot replace the value of opening up correctional facilities to review by outsiders. In her testimony before the Commission, Professor Michele Deitch, a nationally recognized expert in oversight of correctional systems, talked about how internal and external mechanisms work together to help corrections leaders operate safe and humane facilities, contending, “Effective prison management demands both internal accountability measures and external scrutiny. The two go hand-in-hand, and neither is a replacement for the other.”15
Any time institutions bear responsibility for the control of dependent individuals, it is imperative that there be outside reviews to ensure the proper treatment and safety of persons in their care. To meet this imperative, the Commission requires detailed, robust audits by qualified independent auditors in all correctional facilities to measure compliance with the standards. Independent audits give corrections administrators the opportunity to receive objective feedback on their performance from skilled reviewers and enhance the public’s understanding of what goes on behind the walls of America’s prisons and jails.
Audits are not a new idea. The American Correctional Association (ACA), the leading corrections professional organization in the country, has issued professional standards and accredited correctional facilities based on audits of compliance with those standards since the 1970s.16 ACA accreditation is an extensive, labor-intensive process for both auditors and corrections administrators. It involves a review of documents supporting the facility’s compliance with the standards and a 3-day in-person audit of the facility. ACA then submits the results of its inquiry to a three-to-five-member panel of the Commission on Accreditation for Corrections—professionals across a range of disciplines with expertise in correctional practice. During a hearing, a facility representative has the opportunity to discuss issues and address concerns from the panel before it makes a recommendation about accreditation. Correctional facilities pay ACA to audit them, and the process is strictly voluntary.
Although ACA has been a leader in promoting accountability within the corrections profession and publishes a list of all accredited facilities on its Web site, ACA audits and their results also are not always available to the public. These audits are the property of each jurisdiction to publish or not; as a matter of policy, ACA does not release them. Additionally, the ACA standards are less comprehensive than the Commission’s standards in terms of the causes of sexual abuse and the mechanisms necessary to prevent and respond to abuse.
In its standards, the Commission outlines an audit process that promotes transparency as well as accountability. Specifically, the Commission requires independent audits to measure compliance with its standards at least every 3 years. The independence of the auditor is crucial. The individual or entity cannot be employed by the correctional agency but may be a staff or contract worker hired by the jurisdiction or someone authorized by law, regulation, or the judiciary to perform audits. The auditor must be prequalified through the U.S. Department of Justice to perform audits competently and without bias. The Commission recommends that the National Institute of Corrections design and develop a national training program for this purpose. The ability to operate without constraint is crucial. The auditor must have unfettered access to all parts of the facility as well as all documents, staff, and prisoners. The agency must publish the auditor’s report on its Web site, if it has one, or otherwise make it easily available to the public.
The comprehensive information generated by independent audits and the corresponding corrective action plans—coupled with the rigor and transparency of the process—will enhance public confidence in correctional agencies and their willingness and ability to prevent sexual abuse. When audits show an agency struggling or failing to prevent sexual abuse, outsiders will have the data they need to intervene.
In February 2007, as Texas Youth Commission Director Dwight Harris sat before the Texas Senate Finance Committee presenting his agency’s fiscal needs, a senator confronted him with the allegations of sexual abuse at the West Texas State School. A legislative staffer had been tipped off a few months earlier in October 2006.17 Harris tried to assure the Committee that “his staff had done everything in their power to address” the problem—even claiming that staff had alerted the Texas Rangers—and that the investigation was closed.18 Not persuaded, the Texas Legislature formed a Joint Select Committee on Operation and Management of the TYC to investigate the entire system.
The Ranger who conducted the 2005 investigation at the West Texas State School testified before the Committee about what he had seen,
remembering, “When I interviewed the victims. . . I saw kids with fear in their eyes, kids who knew they were trapped in an institution within a system that would not respond to their cries for help.”19 After deploying investigators throughout the State, the Committee found that youth had filed a stunning 750 complaints of sexual misconduct against TYC corrections officers and other TYC staff since 2000. In June 2007,20 the Texas Legislature enacted a series of reforms, including multiple external oversight mechanisms for the TYC. The two administrators were ultimately indicted on various charges, including sexual assault and improper sexual activity with persons in custody.21 Outcomes for the victims in the West Texas State School are unknown.
In the end, it took outsiders with authority—the Texas Legislature—to reveal the sexual abuse of children within the TYC and to hold those responsible for the abuse accountable. But the legislature did not stop there. In addition to the Joint Committee, the legislature created a permanent ombudsman to oversee the TYC. Will Harrell currently occupies that post and believes his role is important even in facilities in which administrators and staff are working diligently to do the right thing. “If you walk by a problem every single day, you begin to think that’s just the way that it is,” Harrell testified to the Commission.22 “To bring in external fresh eyes is usually helpful to a local administrator.”
Many corrections administrators share Harrell’s views. “It’s a good thing when outsiders come in and take a look at the place, and there may be something that I can be doing a little bit better,” Joseph Oxley, former Sheriff of Monmouth County, New Jersey, told the Commission.23 Across the country, there is growing recognition that the watchful eyes of outsiders can help transform institutions that had been “insular, opaque places,” in the words of Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation and former Inspector General of the department.24 The problem of sexual abuse, in particular, “cannot be solved without some form of public oversight of our Nation’s prisons and jails,” Cate told the Commission.25
For some time now, several States and localities have been developing forms of external oversight that vary widely in scope, function, and authority—from ombudsmen like Harrell to Ohio’s eight-member legislative committee, also forged in the wake of allegations of sexual and other abuse of juveniles. Other examples of correctional oversight include what appears to be a unique grand jury system in Oregon, a board of visitors in Maine, and a Prison Society in Pennsylvania. A board of correction monitors New York City jails, whereas in Los Angeles, the Office of Independent Review oversees every investigation of officer misconduct.
In 2006, many of the Nation’s corrections leaders, along with lawmakers, judges, journalists, advocates, and scholars, participated in a conference at which they reached consensus about the value of and need for external oversight of America’s prisons and jails.26 Based on that consensus, the American Bar Association (ABA) adopted a formal resolution urging Federal, State, and territorial governments to “establish public
entities that are independent of any correctional agency to regularly monitor and report publicly on the conditions in all prisons, jails, and other adult and juvenile correctional and detention facilities operating within their jurisdiction.”27
Although the resolution does not impose a particular model of external oversight and acknowledges the value of multiple forms of oversight, its 20 requirements capture the characteristics that experts and practitioners generally agree are necessary to achieve true accountability and transparency.28 Perhaps most important, the person or body overseeing corrections must operate independently of any public or private entity that could exert enough pressure to compromise or corrupt its work.
Beyond independence, other key characteristics include the authority and capacity to monitor facilities and examine past abuses to prevent future problems; a mandate to regularly inspect facilities without necessarily providing advance notice; unfettered and confidential access to prisoners, staff, documents, and other materials; a holistic approach, drawing on diverse sources of information; a mandate to publicly report findings and require a prompt and public response from the correctional agency; and adequate resources and control over its budget.29 The Commission believes that when external oversight is strong in these ways, everyone’s interests are served, perhaps especially those of corrections administrators who depend on educated legislatures and the public to support significant reform in the facilities they manage.
Several oversight entities incorporate at least some of these factors. California’s Office of the Inspector General (OIG) is one of the most complex in terms of formal authority and operational design. As a matter of law, the OIG has a “golden key” to California’s State-run prisons and juvenile facilities. OIG staff have the authority to enter any facility at any time and speak to any person or review any documentation. The OIG also has subpoena powers, authority to arrest and to seek search warrants, and a mandate to provide real-time oversight of the department’s own internal affairs investigations. In addition, a special ombudsman within the OIG is specifically tasked to investigate reports of sexual abuse that the department may have mishandled.30 To ensure transparency, the OIG is required to post results of its semiannual facility audits and other facility reviews on its Web site, along with summaries describing the outcomes of criminal and administrative investigations and the department’s own staff disciplinary processes. Complete institutional separation from the California Department of Corrections and Rehabilitation, a 6-year appointment for the inspector general with removal only for cause, and a budget determined by caseload strengthen the OIG’s independence.31
External oversight by inspectors general, ombudsmen, legislative committees, or other bodies would work hand-in-hand with regular audits of the Commission’s standards. The Commission endorses the ABA’s resolution on external oversight and urges governments to act quickly to create forms of external oversight strong enough to make all correctional facilities more transparent, accountable, and, ultimately, safe.
When Protection Requires Court Intervention
Courts cannot replace internal monitoring, audits, and ombudsmen or inspectors general, yet society depends on them when other modes of oversight fail or are lacking altogether. According to Margo Schlanger, an expert on prison litigation, court orders have had an enormous impact on the Nation’s jails and prisons. “In requiring or forbidding specified policies and practices, court orders are a major part of the regulatory backdrop against which many types of governmental and nongovernmental actors operate.”32 Beyond the reforms courts usher in, their scrutiny of abuses elicits attention from the public and reaction from lawmakers in a way that almost no other form of oversight can accomplish.
Corrections officials themselves have told us that they rely in part on litigation to command the resources they need to protect prisoners from sexual abuse. In her testimony before a House Judiciary Subcommittee, former Warden of San Quentin State Prison and former head of the California Department of Corrections and Rehabilitation Jeanne Woodford said, “Any good prison administrator should not fear the involvement of the courts. From my experience over the last 30 years as a corrections official, I have come to understand the importance of court oversight. The courts have been especially crucial during recent years, as California’s prison population has exploded, and prison officials have been faced with the daunting task of running outdated and severely overcrowded facilities. . . . All of this court intervention has been necessary because of my state’s unwillingness to provide the Department with the resources it requires. These lawsuits have helped the state make dramatic improvements to its deeply flawed prison system.”33
Cason v. Seckinger, filed in 1984, was one of the first court cases to reveal pervasive sexual abuse and compel system-wide reforms.34 The case against the Georgia Department of Corrections grew to include more than 200 women prisoners, many of whom experienced sexual abuse by staff, among other unconstitutional conditions. Clear procedures for reporting and investigating complaints of abuse, treatment and counseling for victims, and staff training were among the requirements imposed by the magistrate judge in this case and accepted by the department.35 Most importantly, corrections staff were specifically prohibited from sexually harassing or abusing women prisoners.
As discussed, State facilities have a duty to protect those under their supervision. The Supreme Court has held that, “When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”36 If prisoners are sexually abused because the correctional facility failed to protect them, they have a right to seek justice in court.37 This could take the form of financial compensation for past abuses that corrections officials could and should have prevented or “injunctive relief,” which requires the facility to put specific protections in place to prevent sexual abuse in the future.
Civil court cases such as Cason v. Seckinger have the potential to spark reforms reaching far beyond the individual plaintiffs to protect other prisoners. This is true for individual and class-action lawsuits alike. In February 2009, for example, a panel of three Federal judges announced its preliminary intention to order California to reduce its prison population by as much as a third. The court found that California’s “desperately overcrowded” facilities violate prisoners’ rights under the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment.38 The judges issued the decision after a trial in two long-running cases brought by prisoners who claimed that medical staff could not provide adequate health care in such overcrowded facilities.39
Beginning in the 1960s, successful prisoner litigation secured important improvements in prison conditions and increased protection for prisoners’ rights. Concerned about a perceived rise in frivolous lawsuits by prisoners, Congress enacted the Prison Litigation Reform Act (PLRA) in 1996 to “reduce the quantity and improve the quality of prisoner [law]suits.”40 This occurred despite the fact that the number of lawsuits had remained relatively stable between 1993 and 1996, even with a substantial increase in the prison population.41
Statements by sponsors of the PLRA indicate that the law was never intended to erode the constitutional rights of prisoners.42 But the PLRA requirements present such serious hurdles that they block access to the courts for many victims of sexual abuse. The dire consequences for individual victims are obvious. What is perhaps less apparent is the way the law has constrained the ability of courts to play the role that is a part of their mandate.
The PLRA’s provisions apply to all Federal civil suits about prison life that incarcerated persons may bring, including claims based on physical abuse, sexual abuse, and use of excessive force.43 Under the PLRA, corrections officials can move to have prisoners’ legal claims dismissed for failure to properly exhaust “administrative remedies” before filing suit. Correctional agencies define those remedies and the grievance process, which typically includes filling out specific complaint forms within specific time frames and moving through several levels of appeal. Any mistakes, such as using an incorrect form, may forever bar an incarcerated individual from real access to the courts.44
Jeanne Woodford testified before a House Judiciary Subcommittee that “it is absurd to expect prisoners to file grievances. . . without ever making a mistake.”45 Woodford reminded the subcommittee members that “[m]any of these prisoners are mentally ill or barely literate.”46 Woodford went on to give examples of circumstances that may derail any prisoner’s claim completely, noting that “prisoners may be transferred from one institution to another or paroled before they are able to fulfill each level of appeal. Grievances may be rejected because the prisoner could not clearly articulate his complaint, or for a minor problem such as using handwriting that is too small.”47
The more convoluted or technical the process, the more likely prisoners will fail in their efforts to exhaust their administrative remedies. Facilities’ deadlines for filing a grievance or an appeal are usually very short; prisoners have at most 3 weeks to begin the grievance process, and in some facilities, the window is only 48 hours.48 In civil lawsuits against schools or hospitals, by contrast, the statute of limitations is typically no less than 1 year.
Garrett Cunningham was raped in the prison laundry by the officer charged with supervising his work. Even before the rape, Cunningham was frightened. The officer had made lewd comments, watched him while he showered, and touched him inappropriately during searches for contraband.49 When Cunningham reported the abuse to the Assistant Warden of the Luther Unit in Navasota, Texas, and to his second in command, they said he was exaggerating. Even the prison psychologist offered no real help. One day in September 2000, the officer assaulted Cunningham as he finished his job in the prison’s laundry, knocking him to the floor. The officer was literally twice his weight and could have easily overpowered him, but he handcuffed Cunningham and then violently raped him. Cunningham testified that, “When I screamed from the terrible pain, [the officer] told me to shut up. . . . After it was over, I was dazed. He took me to the shower in handcuffs, turned on the water and put me under it. I was crying under the shower and saw blood running down my legs.”50
Afterward, the officer warned Cunningham that if he reported what happened he would have him transferred to a rougher unit where prison gang members would rape him repeatedly. He told Cunningham that prison officials were his friends and would do nothing. Cunningham was too frightened to file a grievance. As he testified before a House Judiciary Subcommittee, “At first, I didn’t dare tell anyone about the rape. . . . [To begin the process of exhausting the facility’s administrative remedies]
I would have had to file a first prison grievance within 15 days. . . . I had no idea, at that point, that I was even required to file a grievance in order to bring a lawsuit. Even if I had known, during those first 15 days, my only thoughts were about suicide and. . . how to get myself into a safe place. . . so I would not be raped again.”52 Instead, he wrote twice to internal affairs for help and requested a private interview with an investigator, but they never responded. The officer was never prosecuted but was later convicted for sexual offenses against another prisoner in the Luther Unit. He never served time.
“For me, I have found no justice,” Cunningham told members of the Subcommittee.52 “Because I didn’t file a grievance with the friends of [the assailant] within 15 days of being raped by him, I was forever barred from filing a lawsuit about it in Federal court. My hope is that Congress will acknowledge the realities of prison life, which makes ‘exhausting administrative remedies’ under the PLRA impossible at times.”53
At least one court has held that officials cannot “play hide-and-seek with administrative remedies” and that a remedy that is “unknown and unknowable is unavailable.”54 But simple awareness of the grievance procedure from a facility handbook may not be enough. Incarcerated persons experiencing the trauma of sexual abuse, as well as those with vulnerabilities such as mental illness or developmental disadvantages, may have extreme difficulty filling out the correct forms and meeting the strict deadlines. (See Chapter 5 for a detailed discussion of what correctional facilities must do to facilitate the reporting of sexual abuse.)
The PLRA also requires plaintiffs to prove physical injury to receive compensatory damages.55 A few courts have found that sexual assault alone does not constitute a “physical injury” as defined in the PLRA.56 That requirement and these court rulings fail to take into account the very real emotional and psychological injuries that often follow sexual assault, ranging from temporary fear and emotional numbness to nightmares and major depressive episodes that can occur months or years after an assault. In the words of the Second Circuit, determining that sexual assault meets the physical injury requirement of the PLRA is “a matter of common sense.”57 Medical professionals, corrections experts, and victim advocates have provided extensive information indicating that requiring individuals who are sexually abused in correctional facilities to exhaust all available administrative remedies has consequences far beyond the PLRA’s objective. The Commission also is convinced that victims of sexual abuse are losing vital avenues for relief because they cannot prove physical injury as defined in the PLRA. Victims deserve their day in court.
The Commission recommends that Congress amend the administrative exhaustion provision and physical injury requirement in the PLRA to remove barriers to the courts for victims of sexual abuse. In the meantime, corrections officials must take immediate steps to change unreasonable administrative policies. The Commission understands that officials should have an opportunity to investigate and respond to a complaint before having to defend themselves in court. This is both fair and conserves scarce resources in the way the framers of PLRA intended. However, there is no reason that a sexually victimized prisoner should have to file a grievance within several days or weeks after being sexually assaulted or successfully complete every step of a complex process to seek protection and compensation in court.
The Commission’s standard requires corrections agencies to adopt a policy stating that a victim of sexual abuse is deemed to have exhausted his or her administrative remedies within 90 days after the incident of sexual abuse is reported, even if someone other than the victim makes the report and regardless of when the abuse allegedly occurred. Finally, the standard recognizes that there may be emergency situations in which a prisoner is in immediate danger and only a court order will provide protection. In such cases, the standard requires correctional agencies to deem that all administrative remedies have been exhausted within 48 hours after the report is made.
Oversight by the Department of Justice
Correctional facilities are also subject to oversight by the U.S. Department of Justice. The Civil Rights of Institutionalized Persons Act, passed in 1980, allows the department to investigate any correctional facility suspected of routinely subjecting prisoners to “egregious or flagrant conditions” in violation of the U.S. Constitution.58 The investigations culminate in “finding letters” that include recommendations for specific reforms that can then become the basis of court-filed civil complaints. By statute and practice, the Special Litigation Section takes a problem-solving approach and tries to work cooperatively with agencies under investigation. The strength of the evidence gathered and the threat of costly litigation is usually enough to compel reforms; the lawsuits are most often settled, usually with a settlement agreement filed simultaneously with the court complaint.
In 2006, for example, the Department of Justice began a broad investigation of the King County Jail in Seattle.59 Although the Federal investigation covered a range of problems, a “string of allegations” against King County corrections officers for sexual misconduct triggered Federal involvement.60 In a report prepared following the agency’s request for assistance from the National Institute of Corrections and released around the same time that the Department of Justice launched its investigation, the department found that “a sexualized work environment, meager training and poor communication [were] among the root causes of the string of sexual-misconduct allegations against corrections officers with the King County Department of Adult and Juvenile Detention.”61 Corrections officials signaled their willingness to cooperate with Federal investigators and hired consultants to suggest how to curtail sexual misconduct within the main jail.62
The Department of Justice concluded its investigation approximately
1 year later, in November 2007, finding that persistent conditions in the county jail violated the constitutional rights of prisoners.63 Among the many specific failings outlined in its finding letter, the department found that the King County Jail lacked the mechanisms necessary to thoroughly investigate complaints of sexual abuse, noting that, “A number of these investigations remain open, while others have been closed with ‘undetermined’ or ‘non-sustained’ findings and ‘no discipline due to timeliness.’. . . Essential elements of an internal investigation system includes [sic] a comprehensive investigation procedures manual, and adequately trained investigators to implement the investigations process. [King County Correctional Facility] is lacking in both of these essential elements.”64 The letter required jail administrators and county officials to work cooperatively with the Department of Justice to resolve the problems and avoid a lawsuit.
It took a year of negotiation for the two parties to agree on specific reforms, although corrections officials disagreed with the department’s finding that the constitutional rights of prisoners were violated.65 The reforms approved in January 2009 by the Metropolitan King County Council include commitments to improve internal investigations, medical and mental health care, and suicide prevention to benefit victims of sexual abuse and prevent future incidence of abuse.66 Nationally recognized experts will monitor the agreement, which will remain in effect for up to 3 years.
As this case illustrates, Federal investigations are a potentially powerful form of oversight, but only a few correctional agencies have come under the scrutiny of the Special Litigation Section in recent years.67 The Commission urges the Department of Justice to provide adequate resources to the Special Litigation Section.
The Department of Justice also has authority to criminally prosecute anyone “acting under color of state law” for violating a prisoner’s constitutional rights.68 Criminal prosecution at the Federal level is essential when local jurisdictions lack the political will or resources to prosecute cases of sexual abuse. Criminal prosecutions should be used in addition to, not instead of, systemic reform of policies and practices that fosters a culture of safety.
Preventing sexual abuse in any correctional facility fundamentally rests with the leadership of that facility and each staff member’s ability and willingness to make protecting prisoners a priority. But good intentions and commitment are not enough. Leaders need robust mechanisms and systems to monitor their facilities, identify problems, and implement reforms. They need to apply that discipline internally and to accept it from outside. The very nature of prisons, jails, and other correctional settings demands that government and the public have multiple means to watch over them and to intervene when both the institution and individuals are at risk.