Sexual Abuse of Women in U.S. State Prisons

Sexual Abuse of Women in U.S. State Prisons-#3

Parts: 1 2 3 4

National and International Law Protections

As discussed in the legal background chapter of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international treaty law that is binding on the the U.S. federal government and its constituent states.⁽⁶⁷⁷⁾ The eighth amendment to the U.S. Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is further augmented by the Fourth Amendment's guarantee of the rights to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from strip searching female prisoners, conducting intrusive pat-frisks, or engaging in inappropriate visual surveillance.

Constitutional protections on prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark prison victories through private litigation, particularly by suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union or the National Prison Project of the National Women's Law Center. However, if certain stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the constitution.

In addition to constitutional protections, prisoners' rights are also protected under international and human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, ratified in 1994. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative institutional fora have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from the victim, punishing her, intimidating her, coercing her, or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. The ICCPR guarantees the prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security.

When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. ⁽⁶⁷⁸⁾

ABUSES⁽⁶⁷⁹⁾

The abuses discussed in this section occurred over a ten-year period from 1986 to 1996. Our own investigation took place from March 1994 through November 1996. We found a serious problem of sexual misconduct in Michigan women's prisons, including rape, sexual assault and abuse, criminal sexual contact, inappropriate visual surveillance, and verbal degradation. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld.

Rape, Sexual Assault or Abuse, and Criminal Sexual Contact

On March 27, 1996, prisoners' rights attorney Deborah Labelle filed a class action suit, Neal/Nunn, on behalf of seven female prisoners and all other females incarcerated in Michigan charging MDOC and several other named defendants with various degrees of sexual assault, sexual harassment, violations of privacy, and physical threats and assaults.⁽⁶⁸⁰⁾ Two of the plaintiffs, Tracy Neal and Ikemia Russell, allege sexual assault by male officers at the Scott Correctional Facility in 1994. A third, Helen Gibbs, alleges that she was sexually assaulted by a male officer at the Florence Crane Women's Facility in 1994. Bertha Clark alleges that a male officer at Scott squeezed her breasts and grabbed her crotch during pat-frisks, and Linda Nunn alleges sex-based, derogatory and abusive name calling and sexually threatening comments by a male officer at Scott. Stacy Barker, whose case is described in more detail below, alleges constant harassment and retaliation at Scott for reporting sexual misconduct by staff members, and "Jane Doe" alleges that male officers at Crane subjected her to constant viewing while dressing and undressing, showering, and using the toilet facilities. All seven women report experiencing sex-based insults, sexual harassment, excessively intrusive cross-gender body searches, constant viewing by male staff and threats of retaliation for reporting staff misconduct.

Such allegations of sexual misconduct are not new to Michigan's women's prisons. Documentation we obtained indicates that these charges are consistent with a pattern and practice of conduct in the women's prisons since, at least, the mid-1980s. In 1984 a prisoner accused a resident unit officer, Alfred Beaster, at Huron Valley Women's Facility,⁽⁶⁸¹⁾ of rape. He ultimately confessed to having sexual relations with a prisoner, but asserted the prisoner was the aggressor. He told the prison investigator that:

The prisoner dropped her pants, he took his penis out, but she did all of the manipulation. That is, she backed onto his erection. Officer Beaster maintained he didn't lay a hand on her. Beaster told the officers that he wasn't sure if he was inside of her or not as she was backing up on him. He did tell the officers that he ejaculated and that she asked him if he squirted inside of her.⁽⁶⁸²⁾

Then, in 1986, a corrections officer at Crane, Raymond Raby, was dismissed after admitting during a police interview that he had sexual relations on a nightly basis with different women incarcerated at Crane. Raby's exploits came to light after a prisoner, Jackie K., reported that Raby molested her. According to Jackie K.'s statement, Raby entered her cell at night and woke her up. He took her into a visiting room where he grabbed her and kissed her, then fondled her breasts and put his finger in her vagina.⁽⁶⁸³⁾ Shortly after Jackie K. complained about him, another prisoner reported seeing an officer fitting Raby's description having oral intercourse with a third prisoner.⁽⁶⁸⁴⁾

In 1988 another woman incarcerated at Crane, Kim J., alleged that she was raped by an officer during the night shift. Kim J. reported the incident to the prison psychologist, who then informed other officials in the prison.⁽⁶⁸⁵⁾ According to a statement Kim J. made, the officer raped her in the laundry room after she submitted to a "shakedown" (pat-frisk). The next morning, she awakened to find the officer in her cubicle with his hand between her legs. The authorities took no action against the officer because the only evidence was her accusation.

In another incident, Officer Bernard Rivers in 1990 admitted entering a prisoner's segregation cell and sexually assaulting her. According to the prisoner, Lisa G., Rivers entered her cell in April 1988 and told her he could positively or negatively affect her parole, depending on how she responded to his sexual advances.⁽⁶⁸⁶⁾ She involuntarily submitted to sexual relations with him. Lisa G. came forward eighteen months later, after Rivers was again assigned to her housing unit, out of fear that he would force her to have sexual relations with him again. MDOC largely ignored Lisa G.'s allegations for four months until she, with the help of her attorney Deborah LaBelle, obtained a court order and wore a wire inside the prison.⁽⁶⁸⁷⁾ She successfully taped a conversation with Rivers. His statements acknowledged the sexual assault and resulted in the sheriff's office recommending prosecution. He committed suicide before trial.

In 1992 the Michigan Women's Commission, a governor-appointed body, launched an investigation into the problems facing incarcerated women, focusing in particular on women incarcerated in county jails.⁽⁶⁸⁸⁾ The commission interviewed fifty-nine women who were formerly held in jail and were either released or transferred to Michigan's prisons or community-based programs.⁽⁶⁸⁹⁾ In each interview, a pre-established series of questions was asked regarding jail conditions including a final, open question, "Are there any concerns you would like to share about conditions here at the prison?"⁽⁶⁹⁰⁾

The prisoners raised a number of concerns in response to the final question, including incidences of rape, sexual assault, and sexual harassment committed by corrections officers. A majority of the women reported sexual harassment and sexual abuse by the guards, ranging from corrections staff demanding sex or sexual favors, often in exchange for certain items, to intrusive pat-downs, to male guards walking through the showers and rooms while the women were undressed.⁽⁶⁹¹⁾ The women's responses to the last question were used to create a final chapter, "Special Report: Women in Prison," of the Women's Commission's Report. At MDOC Director McGinnis's insistence, the section was ultimately deleted from the published report, released in July 1993; the chapter has never been made public in any form.⁽⁶⁹²⁾

In February 1993 the Office of the Legislative Corrections Ombudsman, a post attached to the state legislature, conducted a second investigation of sexual misconduct at both Scott and Crane.⁽⁶⁹³⁾ McGinnis asserts that the ombudsman's findings refuted the information compiled by the Women's Commission, even though a significant percentage of the women surveyed reported that sexual harassment and sexual misconduct were problems in the prison.⁽⁶⁹⁴⁾

In June 1994 the U.S. Department of Justice launched an investigation into prison conditions for women incarcerated at the Scott and Crane facilities pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA). The purpose of the investigation was to determine whether there were any violations of the prisoners' constitutional rights. On March 27, 1995, U.S. Assistant Attorney General Deval Patrick wrote a twelve-page letter to Michigan Governor John Engler that detailed the DOJ's findings. The DOJ concluded:

[T]he sexual abuse of women prisoners by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding and other threats to the physical safety and well-being of prisoners, violates their constitutional rights.⁽⁶⁹⁵⁾

According to the DOJ letter, "nearly every woman . . . interviewed reported various sexually aggressive acts of guards."⁽⁶⁹⁶⁾ The DOJ found that prisoners at Scott and Crane had been raped, sexually assaulted, and subjected to groping and fondling during pat-frisks. Additionally, they were subjected to "improper visual surveillance by guards" who:

routinely stand outside the cells of individual prisoners and watch them dress or undress, stand in the shower areas and observe showers and use of toilet facilities. Male maintenance workers stand and watch women inmates who are naked or in various states of undress as well--all on a regular basis without legitimate need. . . . We are unaware of any effort to accommodate the legitimate privacy interests of prisoners.⁽⁶⁹⁷⁾

The status of the DOJ's investigation is discussed in more detail below.

In 1994 we interviewed two women--Stacy Barker and Charlene Billups-Hein--who both sued MDOC for repeated sexual abuse by male corrections officers that they endured at the Huron Valley Women's Prison, now closed, and Scott. Barker was raped and sexually assaulted by the same officer, Craig Keahy, over a period of nearly a year and a half, beginning in October 1989.⁽⁶⁹⁸⁾ She told us, "He would come to my room or detail [once or twice a week] and force me to perform different sexual acts on him. He would threaten or harass me, like 'I'll make your time hard for you . . . I have the keys.'"⁽⁶⁹⁹⁾ He was discovered by other officers on various occasions leaving Barker's room off-duty but was always allowed to return to her unit and never reprimanded for violation of rules. After a while, his attacks became more violent. She told us, "He'd say things like, 'Come on and suck my dick'. . . . He'd pull my hair, unzip his pants and force himself in my mouth." Keahy was subsequently discovered by other prison officers, in August 1991, leaving the room of a second woman prisoner. They looked into the prisoner's room and saw that she was naked. While the prisoner initially denied anything had occurred, she was taken to the hospital and an examination was performed which detected the presence of semen. Keahy was convicted in December 1991 on two counts of fourth-degree sexual conduct with a prisoner, a misdemeanor.⁽⁷⁰⁰⁾ He was sentenced to community service.

Charlene Billups-Hein was housed in segregation when a male corrections officer, David Rose, started coming to her cell in the early mornings in June and July 1992.⁽⁷⁰¹⁾ According to Billups-Hein, Rose came and spoke with her one night when she was crying and upset. Rose told her he had been having sexual relations with other prisoners and asked her to have sexual intercourse with him. He listed the names and identification numbers of the women with whom he was having sex, many of whom were housed in the segregation unit. According to Billups-Hein, he stated that he had been watching her for a long time and that she would be his fourteenth resident. He had not approached her earlier, Rose said, because she was "with women," implying that she was a lesbian. She told us that she submitted to sexual relations with the officer because she felt that she did not have any choice. When he approached her on subsequent occasions, the officer allegedly brought her various things, such as cigarettes, makeup, perfume, candy, and cookies. She said they had sexual intercourse and that she performed oral sex on him a number of times. Officer Rose was charged with criminal sexual conduct third degree and acquitted. He was returned to Scott where he is currently employed and is reportedly under investigation for renewed charges of sexual misconduct with a different prisoner.

Other women we interviewed in 1994 reported similar assaults by male officers and staff. In late 1993, Anne B. was taking a break from her work assignment in a back room when her supervisor came in.⁽⁷⁰²⁾ He approached her from behind and started kissing her. He then pulled her to the ground and had sexual relations with her. She told us, "I felt uncomfortable. It wasn't something I wanted. . . . After that, he acted as if nothing happened. He did his job, I did mine." Anne B. discussed the rape with other women on her work assignment, who described similar encounters with the same employee, although none of them admitted actually submitting to sexual intercourse.

Another incarcerated woman we interviewed, Gloria P., told us that Officer A was assigned to guard her room when she was admitted to a hospital outside the prison for medical treatment.⁽⁷⁰³⁾ During her stay in the hospital, he became increasingly assertive, touching her, making comments like, "You need a man like me," or suggesting she take a shower and helping her undress. He once turned on a nude dance show on the television in the hospital room and made comments such as, "I like women with a lot of butt" or made reference to their breasts. One day, he sat on the edge of her bed and kissed her. On another occasion, she told us, he kissed her breasts and she performed oral sex on him.

According to Gloria P., "It went on from there, and we had a relationship in the sexual sense" in the hospital and once she returned to the prison. Everyone, including staff, she said, knew about the relationship. She explained, "That person never gets tickets [disciplinary write-up], never needs a pass, could go wherever they wanted and, if anybody ever had a problem with her, he'd [take care of it]."⁽⁷⁰⁴⁾ During this time, he brought her various things, such as nail polish, money, a ring, and candy. One night, she stated, the relationship "got really intense"--he started rubbing her hair while other prisoners were watching, and they went into a nearby closet to kiss. Within days, Gloria P. was moved to another unit but continued to see Officer A in the yard, or he would switch shifts with officers on either her unit or a neighboring unit in order to see her.

On February 22, 1996, we interviewed an attorney representing a female prisoner who was charging a male officer at Scott with sexual assault.⁽⁷⁰⁵⁾ The assault occurred during the midnight shift on July 31, 1995. The prisoner was asleep in her cell when the officer entered, tied her down to her bunk, sexually abused her, and hit her repeatedly. The officer eventually left and during the early hours of the morning, another officer found the prisoner tied to her bed and badly beaten. The prisoner was taken to the hospital and then returned to Scott. The officer was placed on leave immediately and eventually charged with first-degree criminal sexual conduct. He pled guilty to assault with intent to commit criminal sexual contact and received four years probation, one of which he must serve in jail.⁽⁷⁰⁶⁾

In mid-1996, we obtained information about a December 26, 1995, sexual assault by a male officer on a female prisoner at Scott. The assault allegedly occurred during the midnight shift when the officer on duty came into the prisoner's cell, unzipped his pants, and raped her. After hearing a noise outside her cell, he told her to meet him in the bathroom area, where he raped her again. After coming into her cell later in the night and raping her another time, he told her the rapes would be "our little secret." The prisoner reported the rapes on January 9, 1996. She was visited by an inspector at the facility that same day and by a state police officer the following day. At this writing, the prisoner is still incarcerated at Scott and has no knowledge about the progress of the investigation. The officer has not been assigned to her unit but is still working at the facility.

On November 4, 1996, we received reports of an alleged sexual assault at the Camp Branch facility. The assault occurred on October 29, 1996 and was allegedly committed by a civilian food service employee. State troopers were contacted and are investigating the case. To date, no warrant has been issued.

Prisoners who are not involved with officers often witness their sexual activities with other prisoners. According to Frances U., when she worked nights in the school building, she often saw officers in the library with their pants down with a prisoner. She told us, "We would watch officers taking women to the basement. If you couldn't find an officer, you would wait to see which room he came out of. It runs rampant."⁽⁷⁰⁷⁾

Mistreatment of Prisoners Impregnated by Guards

As a result of custodial sexual misconduct, some prisoners have been impregnated by corrections staff. These women are particularly vulnerable to harassment by staff and to the punitive investigatory measures at times employed by MDOC. The experience of one woman, Anne B., whom we interviewed in 1994, is particularly telling. In 1993 Anne B. reported that she had been sexually assaulted by a corrections employee and requested a pregnancy test. Almost immediately after the test results returned positive, the authorities removed her from the prison where the assault occurred and placed her in a segregated cell at Huron Valley Men's Prison (HVM) infirmary.

While at HVM, Anne B. was locked in for nearly twenty-four hours a day and denied access to a phone. Attorney Deborah LaBelle told us that she learned of Anne B.'s predicament only through another prisoner at HVM who contacted LaBelle.⁽⁷⁰⁸⁾ Anne B. was removed from her cell only for meetings with MDOC staff investigating her pregnancy. According to Anne B., these investigators repeatedly interrogated her about the circumstances of her pregnancy. One investigator threatened to keep her in segregation throughout her pregnancy, take away her accrued good time, and return her to the facility where she was assaulted unless she assisted with the investigation. Anne B. also told us that this investigator pressed her to have an abortion, repeatedly asking her, "Don't you think it'd just be better for you and the child to just have an abortion?"⁽⁷⁰⁹⁾ She resisted this pressure and carried her pregnancy to term.

Anne B. was released from segregation after nearly three months and placed in the general population at another women's prison in the state. She told us that in this new facility she had been continuously harassed by prison staff about what she had told investigators and whether she reported who impregnated her. The doctor at this prison reportedly refused to treat Anne B. during her pregnancy, and she had to receive prenatal care from a doctor in a nearby town.

In February, 1996, we learned of another female prisoner who had been sexually assaulted by a male officer during an August 1995 stay in a hospital at the Huron Valley Men's Prison, where she had been sent for treatment for an ongoing medical problem. The prisoner had taken a shower and was toweling off in the bathroom when the officer, an employee of the HVM who had been guarding her, entered the room and had sexual relations with her. Subsequent to the incident, she requested a pregnancy test and was found to be pregnant. The baby was determined by a paternity test to be his, and he was charged with fourth degree criminal sexual misconduct, to which he pled no contest.⁽⁷¹⁰⁾ A person familiar with the case told us that after the prisoner decided to report the officer, she was harassed by other officers at Scott. One officer reportedly told her that it might make her time easier if she did not pursue the case.

Privacy Violations

Despite clear decisions in U.S. courts and relevant international law, Michigan has no policy in place to ensure the privacy of incarcerated women. MDOC makes no distinction between male and female corrections officers in conducting pat-frisks or searches of a prisoner's cell or the shower and toilet areas.⁽⁷¹¹⁾ In practice, male corrections officers patrol these areas and are in a position to view incarcerated women in a state of undress or while using the shower or toilet facilities.

MDOC's use of male corrections staff in the housing units of the women's prisons and the dearth of restrictions on their job assignments appear to be rooted in a 1982 federal court decision, Griffin v. Michigan Dept. of Corrections.⁽⁷¹²⁾ Griffin was a class action lawsuit filed by female corrections officers who alleged that they were unfairly discriminated against, in violation of Title VII of the Civil Rights Act banning sex discrimination, because MDOC limited their job assignments to female facilities and they were denied positions in the over twenty men's prisons. These assignments, in turn, adversely affected their professional advancement. At the time, the MDOC restricted female corrections officers from working on the housing units in the men's prisons for the security and safety of the female officers and for reasons of prisoner privacy and rehabilitation.⁽⁷¹³⁾

The judge in Griffin flatly dismissed the contention that prisoners had a constitutionally protected right to privacy. He found that:

Any contention by [MDOC] that they are entitled to the Title VII [bona fide occupational qualification] exception on the basis of the prisoner's right to privacy . . . is without merit. Prisoners do not possess any protected right under the Constitution against being viewed while naked by corrections officers of the opposite sex.⁽⁷¹⁴⁾

The judge's blunt denial to prisoners of a constitutionally protected right to privacy was made without reference to or consideration of any legal precedent and was strikingly inconsistent with similar decisions from other jurisdictions that predated Griffin. Prior to 1982, other courts repeatedly recognized that prisoners had a constitutionally protected right of privacy, including the right to be protected from being unduly observed while naked or while using the toilet.⁽⁷¹⁵⁾ Where the employment rights of corrections officers were at issue, the courts directed the state to balance the equal employment opportunities of the corrections officers with the need to protect the prisoners' right to privacy. Griffin, however, decided otherwise.

MDOC has chosen to rely on Griffin rather than on other federal court decisions since Griffin that ordered or allowed prison officials to protect prisoners from unwanted and unwarranted intrusions on their privacy by guards of the opposite sex.⁽⁷¹⁶⁾ The court did not address the privacy rights of female prisoners which subsequent courts have acknowledged are entitled to a different analysis. A number of decisions have specifically dealt with the role of male corrections officers, upholding or directing limitations on cross-gender pat-downs or frisks by corrections officers of the opposite sex,⁽⁷¹⁷⁾ and permitting the removal of male officers from the housing units.⁽⁷¹⁸⁾ In some of these decisions, the court has explicitly stated that Griffin is the exception rather than the rule.⁽⁷¹⁹⁾ Strikingly, in contrast MDOC's combative approach to Glover and its tendency to appeal virtually every adverse district court ruling, it did not appeal Griffin.

Abusive Pat-Frisks

MDOC does train corrections officers in the proper procedure for conducting pat-frisks: they should use the back of their hand, rather than the palm, when searching the chest and genital areas.⁽⁷²⁰⁾ MDOC policy requires each nonhousing corrections officer to search at least five "randomly selected" prisoners per shift. These searches are intended to prevent prisoners from possessing contraband; under departmental policy "no search shall be conducted for the purpose of harassing or humiliating a prisoner."⁽⁷²¹⁾

Nonetheless, male corrections officers frequently abuse their power to conduct random pat-frisks in a degrading and sexually hostile manner. During pat-frisks and pat-searches, male officers often use their open hands and fingers to grope or grip a women's breasts and nipples, vagina, buttocks, anus, and thighs. They reportedly target certain women, usually the younger ones, while older, long-term prisoners are rarely frisked. Joann F. told us:

The male officers sit by the door to the kitchen and shake the women down as they leave. We watch the way they do it and who they pick. I watched one who felt a woman down in front of everyone else as she left. It's always male officers at the door in the kitchen who do the shakedowns.⁽⁷²²⁾

Carol H. noted, "The [women] look ashamed because they have the officer pawing at their body. It depends on what you look like, what you have on. You can guess who and when they are going to shake a [woman] down."⁽⁷²³⁾

Corrections officers have used the frisks and pat-searches to exercise undue power and control over incarcerated women. When ordered to submit to a frisk or pat-search, a woman must comply or risk disciplinary action. In some instances, women who have requested that a female corrections officer conduct the frisk or who have pulled away during an offensive frisk have received major misconduct tickets for disobeying a direct order. Such tickets have resulted in administrative segregation and loss of good time and disciplinary credits. According to one grievance we reviewed, prisoner Maxine Q. was being pat-frisked by Officer W when, she alleged, he cupped her breasts and then groped her vagina as he ran his hands between her legs. Maxine Q. pulled away and requested the presence of a female officer. A second prisoner who witnessed the frisk contacted a female officer. Maxine Q. then agreed to continue the frisk. The male officer wrote two misconduct tickets against her for disobeying a direct order to submit to a frisk and for creating a disturbance, both of which constitute a serious disciplinary offense. In another incident, a prisoner was found guilty of assaulting a resident unit officer (RUO) and placed in segregation after she pushed the male officer's hands off her breasts during a pat-frisk. Another prisoner had previously filed a grievance against the same RUO for fondling her breasts and groping her during a pat-frisk.

On June 15, 1995, MDOC introduced a housing unit policy requiring female prisoners to wear bras.⁽⁷²⁴⁾ In some instances, officers have required female prisoners to lift their shirts in order to ascertain whether or not they are complying with that policy.

While the policy stipulates that a strip search should be performed by employees of the same sex as the prisoner, it creates several broad exceptions. A male staff member may strip search a female prisoner he is assigned to transport outside the facility or in case of emergency. A male supervisor may be present during a strip search if his presence is "required by policy."⁽⁷²⁵⁾

Inappropriate Visual Surveillance

Housing Units

Crane currently houses 447 women in an open dormitory setting.⁽⁷²⁶⁾ Initially, there were four units per building, with each unit separated into a cubicle with two or four women per cubicle. The cubicles were placed against the walls with six- to eight-foot partitions on the sides and front providing privacy. MDOC has now begun to eliminate the partitions in front of and between the cubicles, thereby eliminating all privacy. A woman prisoner reported being called on by MDOC to assist in the removal of the partitions. Moreover, as of early 1996, the majority of the housing units at Crane have all male officers. All the assistant unit managers are male. Female prisoners report being forced to dress and undress under the direct supervision of officers and staff of the opposite gender.

On January 8, 1996 Michigan prisoners' rights attorney Deborah LaBelle filed a motion in federal district court, as part of the ongoing Glover litigation, protesting the removal of privacy partitions in the women's housing units at Crane.⁽⁷²⁷⁾ To date, attorneys pursuing the motion have received over 200 letters from women incarcerated at Crane noting that the loss of privacy has caused "the loss of their last vestiges of dignity." Prisoners report in these letters that:

officers come and go without announcing themselves;

it is extremely hard to dress without being in full view of the other inmates, along with many male officers;

it is not right that they have to be subjected to this open dorm atmosphere with the majority of officers being male;

they live in an open dorm and are subject to constant viewing from any individual passing their unit. They do not even have space to get dressed in the living area, and if they reach out their hands while dressing and so does their neighbor, they can touch one another; and

the officers walk in at every opportunity without prior notice, sometimes catching them nude or in various other stages of undress.

In mid-1996, the court ruled that the January 8 motion was within its jurisdiction pursuant to Glover, and the judge stated his intent to visit the facility. The visit has not yet occurred. However, during a recent visit to Crane pursuant to the Neal/Nunn class action suit, a visit which was discontinued in the middle because of a temporary stay of the suit granted to MDOC by the district court of appeals, attorneys acting for the women prisoners reported that in one of the units, partitions have been reinstalled. This is a positive step. However, the new partitions are only four feet in height, and as the cubicle areas are double-bunked, the women on the top bunk in particular will still be vulnerable to constant viewing by male officers.

Searches of the Showers and Toilets

Prisoners we interviewed stated that some male corrections officers routinely patrol the showers and toilet areas while the women are using these facilities. Such checks, ostensibly a means to insure that no sexual misconduct is occurring between prisoners, are entirely unwarranted, since the facilities are designed particularly to allow for proper monitoring.⁽⁷²⁸⁾ In practice, however, male corrections officers appear to abuse their authority freely to conduct "searches"; they fail to announce their presence in the area and pull back shower curtains on prisoners to comment or stare. At times, this occurs even after a prisoner has been asked to identify herself and show her face. Carol H. told us that officers come into the bathrooms while they are in use to "chitchat" or get water. As she put it:

The women can complain and bitch, but it doesn't do any good. The [officers] pull the curtains back and look. There is an agreement that male [officers] could look under the curtain, and as long as the feet were in the right position, they would not pull back the curtain. But, they do it anyway. . . . If we complain, the male guards respond, "I can do what I damn well please" or, "Well, we've got to have shower checks."⁽⁷²⁹⁾

When Carol H. objected to the officer's conduct, he responded, "You don't have anything I haven't seen before." She filed a grievance that was denied, she was told, because officers are permitted to conduct shower checks.

Medical Appointments

Male corrections officers have also accompanied women on gynecological visits and while female prisoners are giving birth, and remained in the examination or delivery room. One prisoner, Nina L., filed a grievance over the lack of privacy during gynecological exams, stating that she felt uncomfortable discussing her medical condition or undressing in front of the male officer. She asked the officer if he would step outside while she was examined, but he refused. Nina L. pursued the grievance until it was reviewed by the warden, who told her that it was prison policy for the officer to keep the prisoner in his sight, and that the prisoner could have refused the outside medical visit.⁽⁷³⁰⁾ In other words, the prisoner was expected to choose between foregoing medical treatment or undressing in front of a male officer.

Male officers have also reportedly watched prisoners giving birth. Michelle T., a former prisoner, told us that she was accompanied by two male officers in the delivery room while she was giving birth. According to Michelle T., the officers handcuffed her to the bed while she was in labor and positioned themselves where they could view her genital area while giving birth.⁽⁷³¹⁾ She told us they made derogatory comments about her throughout the delivery.⁽⁷³²⁾

THE SYSTEM'S RESPONSE

MDOC Director Kenneth L. McGinnis has acknowledged that sexual misconduct does occur within Michigan's prisons.⁽⁷³³⁾ However, he has repeatedly contended that the department has "zero tolerance for such behavior,"⁽⁷³⁴⁾ despite the contrary findings of the Women's Commission, the Legislative Correction's Ombudsman, and the U.S. Department of Justice. Unsurprisingly, in light of its failure to recognize the problem of sexual misconduct, MDOC has also failed to take adequate steps to respond to this abuse. In particular, the department's grievance, investigatory, and disciplinary procedures and practices and its manner of treating prisoners who have complained of sexual misconduct are in urgent need of reform. Moreover, the role of the state criminal justice system in investigating and prosecuting criminal sexual misconduct needs to be enhanced and its record improved.

The Right to an Effective Remedy

As discussed in the legal background chapter of this report, international human rights law obligates national governments not only to prohibit torture and cruel, inhuman, or degrading treatment, but also to ensure that when such abuses occur, they can be reported and fully and fairly investigated without the complainant fearing punishment or retaliation from the authorities.⁽⁷³⁵⁾ In addition, under U.S. law, prisoners are also guaranteed access to the courts to challenge prison conditions or other prison problems.

Flawed Grievance and Investigatory Procedures

Michigan has both general grievance and investigatory procedures that can be applied to sexual misconduct. The state's grievance procedure, in principle, allows prisoners to challenge "alleged violations of policy and procedure, unsatisfactory conditions of confinement, official acts, or denial of rights which directly affect them." It is a three-stage process which allows for a first-stage internal complaint to a grievance coordinator, a second stage appeal to the warden, and a third stage appeal to the director of MDOC itself. At each stage, both prisoners and staff are required to respond to and/or appeal grievances within proscribed time periods. As with grievance procedures in other states, Michigan requires the prisoner to consult informally with the staff person involved before filing a formal grievance. The only exceptions to this process are grievances regarding racial discrimination or staff corruption, which may be submitted directly to the director. Whether sexual misconduct is considered a form of staff corruption is not expressly indicated.

According to MDOC, three potential mechanisms may be employed to investigate charges of sexual misconduct raised by prisoners: institutional investigations, internal affairs investigations, and referrals to the state police. Which mechanism is used depends on the nature and seriousness of the allegation and the individual involved.⁽⁷³⁶⁾

Inspectors operating within the prisons commonly endeavor to substantiate the prisoner's claim through conversations with the officer, the prisoner and any witnesses or other relevant parties. The results of this investigation are then shared with a supervisor who makes a recommendation to the warden, usually orally, about what additional steps, if any, should occur. According to an April 1994 MDOC policy directive, whenever investigations conducted at this level indicate that an employee is "alleged to have committed criminal activity of a major magnitude,"⁽⁷³⁷⁾ including sexual assault, prison officials must "immediately notify" the department's internal affairs section.

While these procedures exist, there appears to be no clear guidelines to determine when a particular mechanism, alone or in conjunction with another, will be used, and prison officials retain a considerable amount of discretion in determining whether or not an investigation of whatever sort should be initiated.⁽⁷³⁸⁾ Moreover, in practice they have often effectively denied women the right to complain of such abuse and are fraught at all levels of the process with a bias against prisoner testimony and conflicts of interest. Finally, the process of filing a complaint of sexual misconduct or having it investigated routinely subjects complainants to retaliation and punishment.

Effective Denial of the Right to Complain

While Michigan's grievance procedure may not be flawed on its face and has been certified under the CRIPA process described in the legal background chapter of this report, it is highly ineffective for reporting and addressing sexual misconduct. Problems begin at the initial, informal step in the process requiring prisoners to confront the officer against whom they are filing a grievance. Where prisoners fail to take this step, their grievances have been rejected.⁽⁷³⁹⁾ Yet, the fact that they will have to confront their abuser often deters women from reporting sexual abuse for fear of the retribution discussed in more detail below. In reviewing MDOC's grievance procedure, the DOJ stated that this requirement has the purpose, intent, or effect of intimidating the inmates and discouraging the filing of grievances.⁽⁷⁴⁰⁾

Moreover, even if the prisoner were to succeed in lodging a complaint without first confronting the officer, her complaint is likely to be made known to him almost immediately. While Human Rights Watch believes that the officer should have the right to confront the complainant, MDOC often allows this to happen when he is still in a contact position over her. This further exposes prisoners to retaliation and so deters them from filing grievances of sexual misconduct that it effectively denies them their right to complain. Moreover, her complaint is often made know to persons not directly related to the incident.

Bias Against Prisoner Testimony

Where women prisoners do decide to lodge a formal grievance of sexual misconduct, they face a review and investigatory procedure that is tainted by a pervasive bias against prisoner testimony. Corrections officers responding to grievances of sexual misconduct generally deny that the incidents ever occurred. In one grievance we reviewed, an officer responded to a prisoner's complaint of an offensive pat-frisk in the following manner, "I shake down [frisk] everybody the same way, no exceptions. . . . The balance of the allegations are untrue. At no time did these allegations ever happen or occur [emphasis in the original]." In another grievance, the officer responded, "The statement in this grievance is a flat out lie and therefore there is not merit to it." In a third, the officer asserted that the prisoner wrote the grievance as a means to avoid a disciplinary ticket, stating, "This grievance has been filed in an attempt to get out of one misconduct. . . . This grievance has been falsified and is totally untrue." On this basis, the grievance is then denied.

The officers' denials do not, in and of themselves, constitute a violation of the procedure; some grievances may result from misunderstandings or prisoners' mischaracterization of a situation. And prisoners are granted the right, at their own initiative, to lodge an appeal. However, the problem is that reviewing officers--warden, captains, or sergeants--have often accepted without further inquiry the accused's blunt assertions that the prisoner lied. In one case, a prisoner filed grievances against two officers, one of whom was in training, for standing in the showers and watching the prisoners. The responding officer denied any unprofessional conduct. When the prisoner appealed her grievance to Warden Carol Howes at Crane, Howes responded that action would be taken where there were instances of abuse or where the prisoner's claim could be verified. She deemed the prisoner's own complaint insufficient to support the allegation of abuse and dismissed it.

As with the grievance procedure, the integrity of the investigative process is often compromised by a bias against prisoner testimony. MDOC proceeds on the assumption that any statement made by a prisoner is per se not credible and insufficient in and of itself to support a charge against a corrections employee. Documentation we obtained reveals that MDOC has repeatedly stated that it will not uphold an employee's dismissal where the only evidence of inappropriate or illegal conduct is the prisoner's testimony. While prisoners must prove the veracity of their allegations of sexual misconduct by prison staff, their words and the words of other prisoners around them who may have witnessed the incident are deemed insufficient. Meanwhile, a corrections employee's statement is presumed, prima facie, to be a true and accurate portrayal of what transpired.⁽⁷⁴¹⁾

From our interviews and the documentation we obtained, it seems that after a prisoner comes forward to allege sexual misconduct, she is repeatedly interviewed and required to prepare a written statement. The accused employee is also questioned informally or receives a short set of questions designed by the investigator. These questions often require no more than a yes or no response from the officer and can be fairly leading, such as: "Have you today or previously had any contact with that is sexual in nature or that could be considered to be sexual by her?" "Have you ever been alone with for any reason, either today or previously?" "Have you had any contact of any kind with either today or previously?"⁽⁷⁴²⁾ Their responses in the negative to the questions posed have sometimes proven sufficient to close any further inquiry into a prisoner's charges.

Bias against prisoner testimony exists even in cases where prisoners pass polygraph examinations. Kim J., a prisoner discussed above, passed a polygraph examination regarding her charges that an officer raped her. The accused officer refused to submit to a polygraph exam. MDOC declined to proceed with any disciplinary action because, according to documents we obtained, it "[does ] not recognize prisoner testimony, nor [does it] recognize results of polygraph examinations."⁽⁷⁴³⁾

This tendency to reject prisoner testimony out of hand has had a chilling effect on the reporting of sexual misconduct and has allowed abusive staff to continue working unchecked, free to abuse other prisoners. In 1986 a prisoner at Crane asserted that she had sexual relations with a corrections officer, Don Davenport, in exchange for favorable treatment. When she stopped meeting him, she allegedly began to receive misconduct tickets from this officer and others on his shift.⁽⁷⁴⁴⁾ Three additional prisoners were interviewed who substantiated various elements of the prisoner's account.⁽⁷⁴⁵⁾ Davenport and a second officer, who was partially implicated, denied the allegations. The institution discontinued its investigation for undisclosed reasons within two weeks, three days after receiving notice from the county prosecutor that he would take no further action.⁽⁷⁴⁶⁾ No separate disciplinary inquiry was instituted, and Davenport remained employed at Crane. He was subsequently convicted in 1989 for arranging an attack on a female prisoner after she reported that he was bringing drugs into the facility and sexually harassing prisoners.

Even a series of complaints from prisoners indicating a pattern of abuse by a particular officer sometimes proved inadequate to substantiate charges of sexual abuse where the only victims and witnesses were prisoners. In March 1993 four prisoners at Scott alleged a pattern of sexual harassment by the resident unit officer (RUO) on their unit, ranging from abusive pat-frisks to inappropriate shower checks. One prisoner asserted that the RUO fondled and groped her during a frisk while another complained that he tried to pull the shower curtain back while she was showering. A third prisoner was found guilty of assaulting the officer and put in segregation after she pulled away during a frisk when the RUO fondled her breasts. The women's allegations of mistreatment were supported by letters and statements from other prisoners on the unit.⁽⁷⁴⁷⁾ The investigator dismissed the prisoners' allegations as a conspiracy to remove the officer from the unit. In so doing, the investigator cited interviews he had with prisoners who had not raised complaints, but gave no reason why those prisoners were deemed more credible than the ones who reported the abuse and the ones who prepared statements.

In addition to frequently dismissing prisoners' allegations out of hand, MDOC has sometimes also failed to respond to corrections staff's reports of a pattern of sexual misconduct by particular officers. Between January and October 1992, staff and prisoners reported that a food service supervisor at Scott was overfamiliar or sexually involved with various prisoners. In the first incident, in January 1992, an officer reported finding a prisoner in this employee's car while the prisoner worked a maintenance detail.⁽⁷⁴⁸⁾ The food service director dismissed the officer's report because another employee witnessed the prisoner standing a few cars away, despite the latter having arrived on the scene later.⁽⁷⁴⁹⁾ Although the food service supervisor received a written reprimand following the car incident and an oral reprimand subsequent to a separate incident, the prison administrators made no apparent effort to investigate a possible pattern of ongoing misconduct with a series of prisoners.

In Stacy Barker's case, prisoners and staff repeatedly alleged seeing Officer Keahy leaving her cell when he was working the night shift. The institution initiated an investigation but took no action against the officer for over a year and a half, until he was discovered engaging in sex with another prisoner. As noted above, he was later tried and convicted in December 1991. Similarly, no action was taken against Raymond Raby for over a year, despite several reports by sergeants and his supervisor that he was engaged in inappropriate sexual conduct: in one report, his supervisor stated he saw Raby leaving a prisoner's cell with his shirt untucked; in another, Raby was allegedly seen running away from the women's housing area. While Raby was suspended temporarily, he was later reinstated for a year despite these reports. He was finally dismissed after he confessed to the state police that he was having sex with prisoners on a nightly basis.⁽⁷⁵⁰⁾ He was never prosecuted.

Conflicts of Interest

The legitimacy of the grievance and investigatory procedures is undermined completely in cases where officers are assigned to investigate themselves. According to Joan Yukins, the warden of Scott Correctional Facility, as late as 1995 it was departmental policy to allow an employee to participate in investigating a grievance against him or her.⁽⁷⁵¹⁾

While the creation of institutional inspectors and an internal affairs section are important steps toward guaranteeing the impartiality of the grievance and investigatory procedures, we found that the credibility of such investigations is still undermined by many of the same procedural irregularities that we discovered with respect to the grievance procedure, including bias against prisoner testimony, conflicts of interest, and fear of retaliation or punishment.

In one 1988 case that we reviewed, a male captain accused of inappropriately strip searching a prisoner was placed in charge of the investigation into his own misconduct. After interviewing the prisoner himself and obtaining exculpatory statements from officers under his supervision, the captain concluded that the prisoner's allegation had no merit. The warden upheld the captain's finding and did not question the inherent conflict of interest in an officer investigating himself.

The prisoner involved subsequently received a ticket for major misconduct for interference with the administration of rules--a ticket that can result in segregation and loss of good time credit--for having made a "false accusation." The hearing officer on the ticket determined that the captain would have to have intentionally engaged in conduct that could affect his rank and continued employment in order for the prisoner's allegation to be true. In other words, in the prison administration's eyes, no corrections staff person would knowingly engage in misconduct that could affect his employment; therefore, the prisoner must have lied.

In August 1992 a deputy warden at Scott headed an investigation in which he and eleven other staff members were implicated in various acts of overfamiliarity with prisoners. The investigation was triggered by an anonymous letter sent to the legislative ombudsman. The deputy warden was put in charge of questioning the staff and reporting back to the warden. Not surprisingly, the deputy warden cleared himself of the allegations, stating in his memorandum to the warden, "This is the most ludicrous, ridiculous, trumped up lie I have ever been accused of. I unequivocally deny these charges . . ."⁽⁷⁵²⁾ To our knowledge, no further review was conducted.

In one case that we investigated, Phyllis W. reported a corrections officer for continuously harassing her and making comments about her buttocks, charges that the officer flatly rejected. Although he was the accused, the officer went on to participate in the "investigation" into Phyllis W.'s grievance, which entailed an interview with her by the officer and his superior. During the interview, Phyllis W. refused to answer several questions and appealed her grievance to the second level of review, wherein she restated her allegations. The appeals officer apparently considered the previous interview to be adequate and rejected her grievance. He wrote:

Your grievance has been thoroughly investigated. The investigation failed to find conclusive evidence to support your claim. Because your claim has not been substantiated, no further action is recommended.

The Role of the State Police

Not all investigations into alleged sexual misconduct are handled exclusively by the given prison or MDOC. Cases of suspected criminal conduct are at times referred to the state police. MDOC's internal affairs section coordinates these referrals in conjunction with other departmental investigators.⁽⁷⁵³⁾ According to a summary of sexual misconduct complaints provided to Human Rights Watch by MDOC, of thirty-nine complaints it recorded at the Crane and Scott facilities in 1994 and 1995, twenty-seven were referred to the state police.⁽⁷⁵⁴⁾ However, these referrals did not necessarily result in disciplinary action. Only five of the twenty-seven referrals appear to have been sustained.⁽⁷⁵⁵⁾ Of particular concern to Human Rights Watch is that in some instances, referrals to the state police have had the effect of discontinuing the departments own investigation. Thus, as in the Davenport case mentioned above, an employee that the state decides not to prosecute may, as a result of the department of correction's failure to pursue its own investigation, also escape sanction for a violation of prison rules.

Retaliation and Punishment

Although MDOC clearly prohibits reprisal for the filing of a grievance,⁽⁷⁵⁶⁾ the threat of retaliation pervades the prison environment in Michigan. Such retaliation can function as punishment for having reported misconduct⁽⁷⁵⁷⁾ or as a means of coercing prisoners to acquiesce to unwanted sexual relations with corrections employees, and acts as a powerful deterrent to the reporting of sexual misconduct by corrections staff.

From the outset, the accused employee is informed of the name and prison identification number of the complainant, even though it is often unnecessary to reveal the identity of the prisoner. While, as noted earlier, Human Rights Watch supports the right of the accused to confront his accuser, we believe that MDOC does not take adequate steps to ensure that this does not result in retaliation against the prisoner. For example, in one April 1992 investigation, the deputy warden for custody requested an employee's phone bills to document allegations that the officer had permitted prisoners to call his home. The request was accompanied by the heading "staff investigation for over familiarization with . . ." and listed the names of several prisoners. The officer was still in a contact position over the prisoners when the request was made, thus unduly exposing them to the possibility of retaliation.

Prisoners who have themselves reported sexual misconduct through the grievance or investigatory process, or those whose abuse was revealed by others, have been subjected repeatedly to room searches, pat-frisks and disciplinary tickets. According to attorney Deborah LaBelle, "harassment is constant and insidious" for those who challenge sexual abuse: "They receive misconducts for the most minute infractions of rules that are not generally enforced against anyone else."⁽⁷⁵⁸⁾ Barker described her experience after allegations came to light:

It's normal to do it [frisk] a certain amount of times. But at times I can be shaken down before I leave the unit, when I come in, while I'm in the unit. And when I'm the only one that this is happening to, I feel that's harassment. Certain officers just say certain things. And it's just really hard being in a situation like this and speaking up about something.⁽⁷⁵⁹⁾

Charlene Billups-Hein, for example, was repeatedly ticketed for minor infractions. After she came forward, officers and prisoners treated her, in her words, "like the bubonic plague," making derisive comments and encouraging others to avoid or ignore her.⁽⁷⁶⁰⁾ She told us that whenever she walked by one particular officer, he told those around him to shut up, and they stared at her as she walked by.

Gloria P., who was also involved in a different investigation of an officer, has had similar experiences. She told us:

Officer C would follow me everywhere I went. He was the yard officer. Or, he would stand by another officer and talk about me in a loud voice, but not talking to me. To this day, he says, "I hate you" whenever he sees me.⁽⁷⁶¹⁾

When her father or brother visit, according to Gloria P., "He would tell other prisoners, 'She don't like p-u-s-s-y-s [sic].'"

In Carol H.'s experience, "To complain, you can file a grievance, but that will bring instant retaliation to you."⁽⁷⁶²⁾ She observed that when women approach the officer to discuss the grievance informally, as required by departmental policy, the officer will often respond, "Well, if you file that grievance, I will write you up for a misconduct." Carol H. continued, "He's not supposed to do that, it's against policy. The ticket sticks because it's his word against hers." In her experience, prisoners who "want to go home," such as those with short sentences or approaching parole, are less inclined to complain.

People outside the prison who are related to or working with a prisoner have also been forced to endure forms of retaliation ultimately targeted at the prisoners. Christina Kampfner, a clinical psychologist who was permitted under court order to counsel one prisoner who was raped by a corrections officer, reported that she was routinely forced to wait up to two hours before being cleared to enter the prison and repeatedly had to present the court order to gain access.⁽⁷⁶³⁾ This occurred even though she visited the prison on a regular basis. As a result, she had to leave extended periods of time free and was forced to reduce the number of times she visited the prison. Stacy Barker's family reportedly experienced similar problems. According to Barker, her parents contacted the prison several days prior to a visit to ensure that she had visits available. But when they arrived at the prison they were informed, erroneously, that no visits remained for the month. The visitation date in question happened to be the birthday of Barker's daughter, who had joined her grandparents for the denied visit.

Even if MDOC were to take the welcome step of removing the accused officer from any contact with the complainant, this is no guarantee that the prisoner will escape retaliation. Because complaints are often made known to persons not directly related to the incident, other officers may retaliate against the prisoner on behalf of their colleague. In Joann F.'s experience, a woman can report the misconduct of a corrections officer who consequently may be reprimanded, but the abuses do not necessarily cease because the guilty officer's friends on the force may write misconduct tickets against the complainant.⁽⁷⁶⁴⁾ Carol H. has observed a similar pattern of retaliation. As she described it, "If one officer is writing up a prisoner, then it's more apparent what's going on. So they use the good ole boy network where others will write her up."⁽⁷⁶⁵⁾ Similarly, if an officer said a prisoner did something, other officers would usually vouch for that officer.

Retaliation or the threat or fear of reprisal from corrections staff serves as a very effective way to keep women in sexual relationships with the officers. Within the prisons, some women may enter into seemingly uncoerced sexual relationships with corrections staff. However, women who seek to end these relationships often experience retaliation, hostility and increasingly violent sexual demands. Gloria P. was repeatedly harassed by Officer A. When she learned she was granted parole, she told him she was going home. He reportedly responded, "No you aren't. You are staying with me."⁽⁷⁶⁶⁾ She told us she sought to end the relationship with him because he had become ever more hostile and verbally abusive. He began to write her disciplinary tickets and to accost her verbally, often in front of other prisoners and/or officers. The situation worsened until one evening she reportedly cursed at him in front of other officers and received a major misconduct ticket that resulted in the revocation of her parole.

In some cases, prisoners who have accused corrections staff of sexual misconduct have been effectively punished by the institution for coming forward. Often, after alleging sexual misconduct, female prisoners are involuntarily placed in segregation, ostensibly for their own protection, without any charge being filed against them, pending the institution's investigation of their cases. While the prisoner suffers what amounts to punishment for coming forward, often no action is taken against the implicated officer. He generally remains on duty and continues to have responsibilities over and contact with other prisoners. In one case we reviewed from 1990, the institution determined that sufficient evidence existed, including corroborating statements by other staff and prisoners, to refer the case to the Michigan state police. The officer had allegedly cornered and groped a prisoner. While the warden determined that a suspension of the officer was not necessary, she still sent the prisoner to segregation without her consent, supposedly for her own protection. Kim J., mentioned above, was also sent involuntarily to segregation while her charges that an officer raped her were investigated. She was subsequently transferred to a higher-security facility. The officer, to our knowledge, was never disciplined in any way.

The combination of bias against prisoner testimony, conflicts of interest, and fear of retaliation that pervades the MDOC grievance and investigatory procedure makes complaints of sexual misconduct extremely difficult to substantiate. Even if prisoners do decide to complain, their testimony often will not be credited, absent medical evidence or witnesses who are not prisoners. Given the closed nature of the prison environment, such evidence is often very difficult to obtain. Thus, for example, of the thirty-nine reported complaints of sexual misconduct MDOC recorded in 1994 and 1995, only five were sustained.⁽⁷⁶⁷⁾

Inadequate Documentation

One of the biggest obstacles to eradicating sexual misconduct is its invisibility both within and beyond the correctional system. The hidden nature of the problem reflects not only the obstacles to substantiating such complaints, but also MDOC's failure fully to record such complaints and any investigation of them in a consistent and centralized fashion. When allegations of sexual misconduct are not substantiated, no formal record of the complaint is kept with respect to the implicated officer.⁽⁷⁶⁸⁾ Thus, an officer may have had several allegations of sexual misconduct lodged against him, but because no complaint was ever substantiated and no disciplinary action was ever taken, the allegations are unlikely to appear in his or her personnel file. Clearly, no officer should be held to account for abuses he or she was not proven to commit. However, the state's failure to keep a formal record of sexual misconduct allegations by the officer named not only renders it unlikely that the future conduct of the officer will be adequately monitored, but also makes it virtually impossible to collect information about a past pattern or practice of alleged sexual misconduct which might prove relevant to substantiating subsequent allegations of abuse.

MDOC officials have noted that any complaints of sexual misconduct, at whatever level, whether substantiated or not, should be referred to a supervisor. However, it is clear that there is no written policy in this regard and no clear department-wide system of keeping track of complaints of or investigations into sexual misconduct. A given correctional facility may or may not be able to report at any specific moment exactly how many complaints of sexual misconduct have been lodged at the facility or in what manner they have been or are being addressed. In addition, no guarantee exists that reports of investigations from within the facility are necessarily contained in monthly reports by the wardens to the director of MDOC. According to Joan Yukins, the warden at Scott, no format exists to report to the central office on a monthly basis regarding investigations of overfamiliarity or disciplinary actions, including dismissals taken with respect to them.⁽⁷⁶⁹⁾ As a result, legitimate cases of sexual misconduct, valuable evidence in support of complaints of such abuse, the records of known abusers, and the proper oversight of supervisors are falling through the cracks. This not only puts the prisoners at greater risk of sexual misconduct but also makes it more difficult to monitor such abuse effectively. As such, it raises the question of whether MDOC's own figures regarding sexual misconduct, cited above, are reflective of the full scope of the problem.

Impunity

According to MDOC policy, the disciplinary sanction for maintaining an improper relationship with a prisoner, including romantic, sexual or overly familiar relationship, is discharge.⁽⁷⁷⁰⁾ While MDOC has actually dismissed staff over the years, we reviewed a significant number of past investigations that reveal that MDOC, instead of dismissing corrections employees found guilty of sexual misconduct, often allowed them to resign or to voluntarily transfer to men's facilities. Director McGinnis has acknowledged that resignation or transfer in lieu of discipline "occurs periodically" in Michigan's facilities,⁽⁷⁷¹⁾ but that such actions usually function as a form of settlement when a dismissal appears unlikely to be upheld during the civil service proceeding or labor relations arbitration that accompanies such sanctions.

Aside from being an inappropriate penalty, the option of resignation in a number of cases has resulted in the rehiring of implicated staff who had never been exonerated of sexual involvement with prisoners. Resignation does not prevent such employees from seeking future employment as corrections officers either with MDOC or elsewhere. Beaster, the residential unit officer who admitted having sexual relations with a prisoner but claimed that she had backed into his erect penis, was permitted to resign. He subsequently worked for the department of corrections in a neighboring state.⁽⁷⁷²⁾ A second corrections officer was rehired, with back pay, six months after he voluntarily resigned rather than face an investigation into allegations of sexual misconduct. The institution had collected letters and pictures he sent to the prisoner while she was incarcerated. The officer was suspended three months later for overfamiliarity with another prisoner. A third corrections officer, who resigned from Crane for "romantic involvement" with a prisoner, contacted the institution about future employment. He was informed that he could be reconsidered for employment once the prisoner was no longer at the facility.

While an offer to resign or transfer may occur after an official finding that sexual misconduct took place, it can also be used to sidestep the disciplinary process altogether. In these cases, a employee may resign once faced with the likelihood of a disciplinary hearing before any formal finding of sexual misconduct is made. For example, in one 1992 case we investigated involving a resident unit officer at Scott, the officer denied having sexual relations with the prisoner but then failed a polygraph exam. He was allowed to resign voluntarily in lieu of discipline. Because no disciplinary hearing ever occurred, no record of the employee's suspected activity will be retained by MDOC. The employee may thus seek work elsewhere in the correctional system, and no guarantee exists that his past record of alleged sexual misconduct will be known to his new employers.

Where officers are not offered the option