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Sexual
Abuse of Women in U.S. State Prisons-#4
Parts:
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2
3
4
Exercise and
sport
21. (1)
Every prisoner who is not employed in outdoor work shall have at
least one hour of suitable exercise in the open air daily if the
weather permits.
(2) Young
prisoners, and others of suitable age and physique, shall
receive physical and recreational training during the period of
exercise. To this end space, installations and equipment should
be provided.
Medical
services
22. (1) At
every institution there shall be available the services of at
least one qualified medical officer who should have some
knowledge of psychiatry. The medical services should be
organized in close relationship to the general health
administration of the community or nation. They shall include a
psychiatric service for the diagnosis and, in proper cases, the
treatment of states of mental abnormality.
(2) Sick
prisoners who require specialist treatment shall be transferred
to specialized institutions or to civil hospitals. Where
hospital facilities are provided in an institution, their
equipment, furnishings and pharmaceutical supplies shall be
proper for the medical care and treatment of sick prisoners, and
there shall be a staff of suitable trained officers.
(3) The
services of a qualified dental officer shall be available to
every prisoner.
23. (1) In
women's institutions there shall be special accommodation for
all necessary pre-natal and post-natal care and treatment.
Arrangements shall be made wherever practicable for children to
be torn in a hospital outside the institution. If a child is
born in prison, this fact shall not be mentioned in the birth
certificate.
(2) Where
nursing infants are allowed to remain in the institution with
their mothers, provision shall be made for a nursery staffed by
qualified persons, where the infants shall be placed when they
are not in the care of their mothers.
24. The
medical officer shall see and examine every prisoner as soon as
possible after his admission and thereafter as necessary, with a
view particularly to the discovery of physical or mental illness
and the taking of all necessary measures; the segregation of
prisoners suspected of infectious or contagious conditions; the
noting of physical or mental defects which might hamper
rehabilitation, and the determination of the physical capacity
of every prisoner for work.
25. (1)
The medical officer shall have the care of the physical and
mental health of the prisoners and should daily see all sick
prisoners, all who complain of illness, and any prisoner to whom
his attention is specially directed.
(2) The
medical officer shall report to the director whenever he
considers that a prisoner's physical or mental health has been
or will be injuriously affected by continued imprisonment or by
any condition of imprisonment.
26. ( I )
The medical officer shall regularly inspect and advise the
director upon:
(a) The
quantity, quality, preparation and service of food;
(b) The
hygiene and cleanliness of the institution and the prisoners;
(c) The
sanitation, heating, lighting and ventilation of the
institution;
(d) The
suitability and cleanliness of the prisoners' clothing and
bedding;
(e) The
observance of the rules concerning physical education and
sports, in cases where there is no technical personnel in charge
of these activities.
(2) The
director shall take into consideration the reports and advice
that the medical officer submits according to rules 25 (2) and
26 and, in case he concurs with the recommendations made, shall
take immediate steps to give effect to those recommendations; if
they are not within his competence or if he does not concur with
them, he shall immediately submit his own report and the advice
of the medical officer to higher authority.
Discipline
and punishment
27.
Discipline and order shall be maintained with firmness, but with
no more restriction than is necessary for safe custody and
well-ordered community life.
28. (1) No
prisoner shall be employed, in the service of the institution,
in any disciplinary capacity.
(2) This
rule shall not, however, impede the proper functioning of
systems based on self-government, under which specified social,
educational or sports activities or responsibilities are
entrusted, under supervision, to prisoners who are formed into
groups for the purposes of treatment.
29. The
following shall always be determined by the law or by the
regulation of the competent administrative authority:
(a)
Conduct constituting a disciplinary offense;
(b) The
types and duration of punishment which may be inflicted;
(c) The
authority competent to impose such punishment.
30. (1) No
prisoner shall be punished except in accordance with the terms
of such law or regulation, and never twice for the same offense.
(2) No
prisoner shall be punished unless he has been informed of the
offense alleged against him and given a proper opportunity of
presenting his defense. The competent authority shall conduct a
thorough examination of the case.
(3) Where
necessary and practicable the prisoner shall be allowed to make
his defense through an interpreter.
31.
Corporal punishment, punishment by placing in a dark cell, and
all cruel, inhuman or degrading punishments shall be completely
prohibited as punishments for disciplinary offenses.
32. (1)
Punishment by close confinement or reduction of diet shall never
be inflicted unless the medical officer has examined the
prisoner and certified in writing that he is fit to sustain it.
(2) The
same shall apply to any other punishment that may be prejudicial
to the physical or mental health of a prisoner. In no case may
such punishment be contrary to or depart from the principle
stated in rule 31.
(3) The
medical officer shall visit daily prisoners undergoing such
punishments and shall advise the director if he considers the
termination or alteration of the punishment necessary on grounds
of physical or mental health.
Instruments
of restraint
33.
Instruments of restraint, such as handcuffs, chains, irons and
strait-jacket, shall never be applied as a punishment.
Furthermore, chains or irons shall not be used as restraints.
Other instruments of restraint shall not be used except in the
following circumstances:
(a) As a
precaution against escape during a transfer, provided that they
shall be removed when the prisoner appears before a judicial or
administrative authority;
(b) On
medical grounds by direction of the medical officer;
(c) By
order of the director, if other methods of control fail, in
order to prevent a prisoner from injuring himself or others or
from damaging property; in such instances the director shall at
once consult the medical officer and report to the higher
administrative authority.
34. The
patterns and manner of use of instruments of restraint shall be
decided by the central prison administration. Such instruments
must not be applied for any longer time than is strictly
necessary.
Information
to and complaints by prisoners
35. (1)
Every prisoner on admission shall be provided with written
information about the regulations governing the treatment of
prisoners of his category, the disciplinary requirements of the
institution, the authorized methods of seeking information and
making complaints, and all such other matters as are necessary
to enable him to understand both his rights and his obligations
and to adapt himself to the life of the institution.
(2) If a
prisoner is illiterate, the aforesaid information shall be
conveyed to him orally.
36. (1)
Every prisoner shall have the opportunity each week day of
making requests or complaints to the director of the institution
or the officer authorized to represent him.
(2) It
shall be possible to make requests or complaints to the
inspector of prisons during his inspection. The prisoner shall
have the opportunity to talk to the inspector or to any other
inspecting officer without the director or other members of the
staff being present.
(3) Every
prisoner shall be allowed to make a request or complaint,
without censorship as to substance but in proper form, to the
central prison administration, the judicial authority or other
proper authorities through approved channels.
(4) Unless
it is evidently frivolous or groundless, every request or
complaint shall be promptly dealt with and replied to without
undue delay.
Contact with
the outside world
37.
Prisoners shall be allowed under necessary supervision to
communicate with their family and reputable friends at regular
intervals, both by correspondence and by receiving visits.
38. (1)
Prisoners who are foreign nationals shall be allowed reasonable
facilities to communicate with the diplomatic and consular
representatives of the State to which they belong. (2) Prisoners
who are nationals of States without diplomatic or consular
representation in the country and refugees or stateless persons
shall be allowed similar facilities to communicate with the
diplomatic representative of the State which takes charge of
their interests or any national or international authority whose
task it is to protect such persons.
39.
Prisoners shall be kept informed regularly of the more important
items of news by the reading of newspapers, periodicals or
special institutional publications, by hearing wireless
transmissions, by lectures or by any similar means as authorized
or controlled by the administration.
Books
40. Every
institution shall have a library for the use of all categories
of prisoners, adequately stocked with both recreational and
instructional books, and prisoners shall be encouraged to make
full use of it.
Religion
41. (1) If
the institution contains a sufficient number of prisoners of the
same religion, a qualified representative of that religion shall
be appointed or approved. If the number of prisoners justifies
it and conditions permit, the arrangement should be on a
full-time basis.
(2) A
qualified representative appointed or approved under paragraph
(1) shall be allowed to hold regular services and to pay
pastoral visits in private to prisoners of his religion at
proper times.
(3) Access
to a qualified representative of any religion shall not be
refused to any prisoner. On the other hand, if any prisoner
should object to a visit of any religious representative, his
attitude shall be fully respected.
42. So far
as practicable, every prisoner shall be allowed to satisfy the
needs of his religious life by attending the services provided
in the institution and having in his possession the books of
religious observance and instruction of his denomination.
Retention of
prisoners' property
43. (1)
All money, valuables, clothing and other effects belonging to a
prisoner which under the regulations of the institution he is
not allowed to retain shall on his admission to the institution
be placed in safe custody. An inventory thereof shall be signed
by the prisoner. Steps shall be taken to keep them in good
condition.
(2) On the
release of the prisoner all such articles and money shall be
returned to him except in so far as he has been authorized to
spend money or send any such property out of the institution, or
it has been found necessary on hygienic grounds to destroy any
article of clothing. The prisoner shall sign a receipt for the
articles and money returned to him.
(3) Any
money or effects received for a prisoner from outside shall be
treated in the same way.
(4) If a
prisoner brings in any drugs or medicine, the medical officer
shall decide what use shall be made of them.
Notification
of death, illness, transfer, etc.
44. (1)
Upon the death or serious illness of, or serious injury to a
prisoner, or his removal to an institution for the treatment of
mental affections, the director shall at once inform the spouse,
if the prisoner is married, or the nearest relative and shall in
any event inform any other person previously designated by the
prisoner.
(2) A
prisoner shall be informed at once of the death or serious
illness of any near relative. In case of the critical illness of
a near relative, the prisoner should be authorized, whenever
circumstances allow, to go to his bedside either under escort or
alone.
(3) Every
prisoner shall have the right to inform at once his family of
his imprisonment or his transfer to another institution.
Removal of
prisoners
45. (1)
When the prisoners are being removed to or from an institution,
they shall be exposed to public view as little as possible, and
proper safeguards shall be adopted to protect them from insult,
curiosity and publicity in any form.
(2) The
transport of prisoners in conveyances with inadequate
ventilation or light, or in any way which would subject them to
unnecessary physical hardship, shall be prohibited.
(3) The
transport of prisoners shall be carried out at the expense of
the administration and equal conditions shall obtain for all of
them.
Institutional personnel
46. (1)
The prison administration, shall provide for the careful
selection of every grade of the personnel, since it is on their
integrity, humanity, professional capacity and personal
suitability for the work that the proper administration of the
institutions depends.
(2) The
prison administration shall constantly seek to awaken and
maintain in the minds both of the personnel and of the public
the conviction that this work is a social service of great
importance, and to this end all appropriate means of informing
the public should be used.
(3) To
secure the foregoing ends, personnel shall be appointed on a
full-time basis as professional prison officers and have civil
service status with security of tenure subject only to good
conduct, efficiency and physical fitness. Salaries shall be
adequate to attract and retain suitable men and women;
employment benefits and conditions of service shall be favorable
in view of the exacting nature of the work.
47. (1)
The personnel shall possess an adequate standard of education
and intelligence.
(2) Before
entering on duty, the personnel shall be given a course of
training in their general and specific duties and be required to
pass theoretical and practical tests.
(3) After
entering on duty and during their career, the personnel shall
maintain and improve their knowledge and professional capacity
by attending courses of in-service training to be organized at
suitable intervals.
48. All
members of the personnel shall at all times so conduct
themselves and perform their duties as to influence the
prisoners for good by their example and to command their
respect.
49. (1) So
far as possible, the personnel shall include a sufficient number
of specialists such as psychiatrists, psychologists, social
workers, teachers and trade instructors.
(2) The
services of social workers, teachers and trade instructors shall
be secured on a permanent basis, without thereby excluding
part-time or voluntary workers.
50. (1)
The director of an institution should be adequately qualified
for his task by character, administrative ability, suitable
training and experience.
(2) He
shall devote his entire time to his official duties and shall
not be appointed on a part-time basis.
(3) He
shall reside on the premises of the institution or in its
immediate vicinity. (4) When two or more institutions are under
the authority of one director, he shall visit each of them at
frequent intervals. A responsible resident official shall be in
charge of each of these institutions.
51. (1)
The director, his deputy, and the majority of the other
personnel of the institution shall be able to speak the language
of the greatest number of prisoners, or a language understood by
the greatest number of them.
(2)
Whenever necessary, the services of an interpreter shall be
used.
52. (1) In
institutions which are large enough to require the services of
one or more full-time medical officers, at least one of them
shall reside on the premises of the institution or in its
immediate vicinity.
(2) In
other institutions the medical officer shall visit daily and
shall reside near enough to be able to attend without delay in
cases of urgency.
53. (1) In
an institution for both men and women, the part of the
institution set aside for women shall be under the authority of
a responsible woman officer who shall have the custody of the
keys of all that part of the institution.
(2) No
male member of the staff shall enter the part of the institution
set aside for women unless accompanied by a woman officer.
(3) Women
prisoners shall be attended and supervised only by women
officers. This does not, however, preclude male members of the
staff, particularly doctors and teachers, from carrying out
their professional duties in institutions or parts of
institutions set aside for women.
54. (1)
Officers of the institutions shall not, in their relations with
the prisoners, use force except in self-defense or in cases of
attempted escape, or active or passive physical resistance to an
order based on law or regulations. Officers who have recourse to
force must use no more than is strictly necessary and must
report the incident immediately to the director of the
institution.
(2) Prison
officers shall be given special physical training to enable them
to restrain aggressive prisoners.
(3) Except
in special circumstances, staff performing duties which bring
them into direct contact with prisoners should not be armed.
Furthermore, staff should in no circumstances be provided with
arms unless they have been trained in their use.
Inspection
55. There
shall be a regular inspection of penal institutions and services
by qualified and experienced inspectors appointed by a competent
authority. Their task shall be in particular to ensure that
these institutions are administered in accordance with existing
laws and regulations and with a view to bringing about the
objectives of penal and correctional services.
PART
II: RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners
under Sentence
Guiding
principles
56. The
guiding principles hereafter are intended to show the spirit in
which penal institutions should be administered and the purposes
at which they should aim, in accordance with the declaration
made under Preliminary Observation I of the present text.
57.
Imprisonment and other measures which result in cutting off an
offender from the outside world are afflictive by the very fact
of taking from the person the right of self-determination by
depriving him of his liberty. Therefore the prison system shall
not, except as incidental to justifiable segregation or the
maintenance of discipline, aggravate the suffering inherent in
such a situation.
58. The
purpose and justification of a sentence of imprisonment or a
similar measure deprivative of liberty is ultimately to protect
society against crime. This end can only be achieved if the
period of imprisonment is used to ensure, so far as possible,
that upon his return to society the offender is not only willing
but able to lead a law-abiding and self-supporting life.
59. To
this end, the institution should utilize all the remedial,
educational, moral, spiritual and other forces and forms of
assistance which are appropriate and available, and should seek
to apply them according to the individual treatment needs of the
prisoners.
60. (1)
The regime of the institution should seek to minimize any
differences between prison life and life at liberty which tend
to lessen the responsibility of the prisoners or the respect due
to their dignity as human beings.
(2) Before
the completion of the sentence, it is desirable that the
necessary steps be taken to ensure for the prisoner a gradual
return to life in society. This aim may be achieved, depending
on the case, by a pre-release regime organized in the same
institution or in another appropriate institution, or by release
on trial under some kind of supervision which must not be
entrusted to the police but should be combined with effective
social aid. 61. The treatment of prisoners should emphasize not
their exclusion from the community, but their continuing part in
it. Community agencies should, therefore, be enlisted wherever
possible to assist the staff of the institution in the task of
social rehabilitation of the prisoners. There should be in
connection with every institution social workers charged with
the duty of maintaining and improving all desirable relations of
a prisoner with his family and with valuable social agencies.
Steps should be taken to safeguard, to the maximum extent
compatible with the law and the sentence, the rights relating to
civil interests, social security rights and other social
benefits of prisoners.
62. The
medical services of the institution shall seek to detect and
shall treat any physical or mental illnesses or defects which
may hamper a prisoner's rehabilitation. All necessary medical,
surgical and psychiatric services shall be provided to that end.
63. (1)
The fulfilment of these principles requires individualization of
treatment and for this purpose a flexible system of classifying
prisoners in groups; it is therefore desirable that such groups
should be distributed in separate institutions suitable for the
treatment of each group.
(2) These
institutions need not provide the same degree of security for
every group. It is desirable to provide varying degrees of
security according to the needs of different groups. Open
institutions, by the very fact that they provide no physical
security against escape but rely on the self-discipline of the
inmates, provide the conditions most favorable to rehabilitation
for carefully selected prisoners.
(3) It is
desirable that the number of prisoners in closed institutions
should not be so large that the individualization of treatment
is hindered. In some countries it is considered that the
population of such institutions should not exceed five hundred.
In open institutions the population should be as small as
possible.
(4) On the
other hand, it is undesirable to maintain prisons which are so
small that proper facilities cannot be provided.
64. The
duty of society does not end with a prisoner's release. There
should, therefore, be governmental or private agencies capable
of lending the released prisoner efficient after-care directed
towards the lessening of prejudice against him and towards his
social rehabilitation.
Treatment
65. The
treatment of persons sentenced to imprisonment or a similar
measure shall have as its purpose, so far as the length of the
sentence permits, to establish in them the will to lead
law-abiding and self-supporting lives after their release and to
fit them to do so. The treatment shall be such as will encourage
their self-respect and develop their sense of responsibility.
66. (1) To
these ends, all appropriate means shall be used, including
religious care in the countries where this is possible,
education, vocational guidance and training, social casework,
employment counseling, physical development and strengthening of
moral character, in accordance with the individual needs of each
prisoner, taking account of his social and criminal history, his
physical and mental capacities and aptitudes, his personal
temperament, the length of his sentence and his prospects after
release.
(2) For
every prisoner with a sentence of suitable length, the director
shall receive, as soon as possible after his admission, full
reports on all the matters referred to in the foregoing
paragraph. Such reports shall always include a report by a
medical officer, wherever possible qualified in psychiatry, on
the physical and mental condition of the prisoner.
(3) The
reports and other relevant documents shall be placed in an
individual file. This file shall be kept up to date and
classified in such a way that it can be consulted by the
responsible personnel whenever the need arises.
Classification and individualization
67. The
purposes of classification shall be:
(a) To
separate from others those prisoners who, by reason of their
criminal records or bad characters, are likely to exercise a bad
influence;
(b) To
divide the prisoners into classes in order to facilitate their
treatment with a view to their social rehabilitation.
68. So far
as possible separate institutions or separate sections of an
institution shall be used for the treatment of the different
classes of prisoners.
69. As
soon as possible after admission and after a study of the
personality of each prisoner with a sentence of suitable length,
a programme of treatment shall be prepared for him in the light
of the knowledge obtained about his individual needs, his
capacities and dispositions.
Privileges
70.
Systems of privileges appropriate for the different classes of
prisoners and the different methods of treatment shall be
established at every institution, in order to encourage good
conduct, develop a sense of responsibility and secure the
interest and co-operation of the prisoners in their treatment.
Work
71. (1)
Prison labor must not be of an afflictive nature.
(2) All
prisoners under sentence shall be required to work, subject to
their physical and mental fitness as determined by the medical
officer.
(3)
Sufficient work of a useful nature shall be provided to keep
prisoners actively employed for a normal working day.
(4) So far
as possible the work provided shall be such as will maintain or
increase the prisoners, ability to earn an honest living after
release.
(5)
Vocational training in useful trades shall be provided for
prisoners able to profit thereby and especially for young
prisoners.
(6) Within
the limits compatible with proper vocational selection and with
the requirements of institutional administration and discipline,
the prisoners shall be able to choose the type of work they wish
to perform.
72. (1)
The organization and methods of work in the institutions shall
resemble as closely as possible those of similar work outside
institutions, so as to prepare prisoners for the conditions of
normal occupational life.
(2) The
interests of the prisoners and of their vocational training,
however, must not be subordinated to the purpose of making a
financial profit from an industry in the institution.
73. (1)
Preferably institutional industries and farms should be operated
directly by the administration and not by private contractors.
(2) Where
prisoners are employed in work not controlled by the
administration, they shall always be under the supervision of
the institution's personnel. Unless the work is for other
departments of the government the full normal wages for such
work shall be paid to the administration by the persons to whom
the labor is supplied, account being taken of the output of the
prisoners.
74. (1)
The precautions laid down to protect the safety and health of
free workmen shall be equally observed in institutions.
(2)
Provision shall be made to indemnify prisoners against
industrial injury, including occupational disease, on terms not
less favorable than those extended by law to free workmen.
75. (1)
The maximum daily and weekly working hours of the prisoners
shall be fixed by law or by administrative regulation, taking
into account local rules or custom in regard to the employment
of free workmen.
(2) The
hours so fixed shall leave one rest day a week and sufficient
time for education and other activities required as part of the
treatment and rehabilitation of the prisoners.
76. (1)
There shall be a system of equitable remuneration of the work of
prisoners.
(2) Under
the system prisoners shall be allowed to spend at least a part
of their earnings on approved articles for their own use and to
send a part of their earnings to their family.
(3) The
system should also provide that a part of the earnings should be
set aside by the administration so as to constitute a savings
fund to be handed over to the prisoner on his release.
Education
and recreation
77. (1)
Provision shall be made for the further education of all
prisoners capable of profiting thereby, including religious
instruction in the countries where this is possible. The
education of illiterates and young prisoners shall be compulsory
and special attention shall be paid to it by the administration.
(2) So far
as practicable, the education of prisoners shall be integrated
with the educational system of the country so that after their
release they may continue their education without difficulty.
78.
Recreational and cultural activities shall be provided in all
institutions for the benefit of the mental and physical health
of prisoners.
Social
relations and after-care
79.
Special attention shall be paid to the maintenance and
improvement of such relations between a prisoner and his family
as are desirable in the best interests of both.
80. From
the beginning of a prisoner's sentence consideration shall be
given to his future after release and he shall be encouraged and
assisted to maintain or establish such relations with persons or
agencies outside the institution as may promote the best
interests of his family and his own social rehabilitation.
81. (1)
Services and agencies, governmental or otherwise, which assist
released prisoners to re-establish themselves in society shall
ensure, so far as is possible and necessary, that released
prisoners be provided with appropriate documents and
identification papers, have suitable homes and work to go to,
are suitably and adequately clothed having regard to the climate
and season, and have sufficient means to reach their destination
and maintain themselves in the period immediately following
their release.
(2) The
approved representatives of such agencies shall have all
necessary access to the institution and to prisoners and shall
be taken into consultation as to the future of a prisoner from
the beginning of his sentence.
(3) It is
desirable that the activities of such agencies shall be
centralized or coordinated as far as possible in order to secure
the best use of their efforts.
B. Insane
and Mentally Abnormal Prisoners
82. (1)
Persons who are found to be insane shall not be detained in
prisons and arrangements shall be made to remove them to mental
institutions as soon as possible.
(2)
Prisoners who suffer from other mental diseases or abnormalities
shall be observed and treated in specialized institutions under
medical management.
(3) During
their stay in a prison, such prisoners shall be placed under the
special supervision of a medical officer.
(4) The
medical or psychiatric service of the penal institutions shall
provide for the psychiatric treatment of all other prisoners who
are in need of such treatment.
83. It is
desirable that steps should be taken, by arrangement with the
appropriate agencies, to ensure if necessary the continuation of
psychiatric treatment after release and the provision of
social-psychiatric after-care.
C. Prisoners
under Arrest or Awaiting Trial
84. (1)
Persons arrested or imprisoned by reason of a criminal charge
against them, who are detained either in police custody or in
prison custody (jail) but have not yet been tried and sentenced,
will be referred to as "untried prisoners,' hereinafter in these
rules.
(2)
Unconvicted prisoners are presumed to be innocent and shall be
treated as such.
(3)
Without prejudice to legal rules for the protection of
individual liberty or prescribing the procedure to be observed
in respect of untried prisoners, these prisoners shall benefit
by a special regime which is described in the following rules in
its essential requirements only.
85. (1)
Untried prisoners shall be kept separate from convicted
prisoners.
(2) Young
untried prisoners shall be kept separate from adults and shall
in principle be detained in separate institutions.
86.
Untried prisoners shall sleep singly in separate rooms, with the
reservation of different local custom in respect of the climate.
87. Within
the limits compatible with the good order of the institution,
untried prisoners may, if they so desire, have their food
procured at their own expense from the outside, either through
the administration or through their family or friends.
Otherwise, the administration shall provide their food.
88. ( I )
An untried prisoner shall be allowed to wear his own clothing if
it is clean and suitable.
(2) If he
wears prison dress, it shall be different from that supplied to
convicted prisoners.
89. An
untried prisoner shall always be offered opportunity to work,
but shall not be required to work. If he chooses to work, he
shall be paid for it.
90. An
untried prisoner shall be allowed to procure at his own expense
or at the expense of a third party such books, newspapers,
writing materials and other means of occupation as are
compatible with the interests of the administration of justice
and the security and good order of the institution.
91. An
untried prisoner shall be allowed to be visited and treated by
his own doctor or dentist if there is reasonable ground for his
application and he is able to pay any expenses incurred.
92. An
untried prisoner shall be allowed to inform immediately his
family of his detention and shall be given all reasonable
facilities for communicating with his family and friends, and
for receiving visits from them, subject only to restrictions and
supervision as are necessary in the interests of the
administration of justice and of the security and good order of
the institution.
93. For
the purposes of his defense, an untried prisoner shall be
allowed to apply for free legal aid where such aid is available,
and to receive visits from his legal adviser with a view to his
defense and to prepare and hand to him confidential
instructions. For these purposes, he shall if he so desires be
supplied with writing material. Interviews between the prisoner
and his legal adviser may be within sight but not within the
hearing of a police or institution official.
D. Civil
Prisoners
94. In
countries where the law perm its imprisonment for debt, or by
order of a court under any other non-criminal process, persons
so imprisoned shall not be subjected to any greater restriction
or severity than is necessary to ensure safe custody and good
order. Their treatment shall be not less favorable than that of
untried prisoners, with the reservation, however, that they may
possibly be required to work.
E. Persons
Arrested or Detained Without Charge
95 Without
prejudice to the provisions of article 9 of the International
Covenant on Civil and Political Rights, persons arrested or
imprisoned without charge shall be accorded the same protection
as that accorded under part I and part II, section C. Relevant
provisions of part II, section A, shall likewise be applicable
where their application may be conducive to the benefit of this
special group of persons in custody, provided that no measures
shall be taken implying that re-education or rehabilitation is
in any way appropriate to persons not convicted of any criminal
offense.
1. Not all
sexual misconduct is committed by prison guards. Non-security
correctional employees also have been found to engage in such
abuse. Throughout this report, we use the terms guard, officer,
employee, and staff interchangeably, except in describing
specific acts of sexual misconduct. In this case, we give the
exact professional status of the officer or non-security
employee involved.
2. The
U.S. has the largest known prison population in the world at 1.6
million. China has the next largest known figure at 1.2 million.
However, estimates from the U.S. General Accounting Office from
July 1990 places the number of Chinese prisoners between one and
twenty million, with most believing that the actual population
is much higher than official estimates.
3.
According to the Bureau of Justice Statistics, women represented
6.3 percent of all U.S. prisoners in 1995. Leslie Acoca and
James Austin, The Crisis: Women in Prison (San
Francisco: National Council on Crime and Delinquency, 1996), p.
1. The Women in Prison study, while including an
analysis of national data, concentrated primarily on three
states--California, Connecticut and Florida--during an
eighteen-month period between May 1994 and December 1995. The
study included face-to-face interviews with 151 randomly
selected women in state prisons in these three states.
4. Ibid.
5. Ibid.
6. Russ
Immarigeon and Meda Chesney-Lind, Women's Prisons:
Overcrowded and Overused (San Francisco: National Council
on Crime and Delinquency, 1992), p. 3.
7. Tracy
L. Snell and Danielle C. Morton, Bureau of Justice Statistics
Special Report, "Women in Prison: Survey of State Prison Inmates
1991," March 1994.
8. See
http://www.census.gov/population/socdemo/race/black/tab1.dat.
9.
Telephone interview, Tracy Snell, statistician, Bureau of
Justice Statistics, Nov. 6, 1996.
10.
Between 1986 and 1991, the number of black non-Hispanic women in
state prisons for drug offenses nationwide increased more than
eightfold, from 667 to 6,193. The increase was almost double
that for black non-Hispanic males and more than triple that for
white non-Hispanic females. Marc Mauer and Tracy Huling,
Young Black Americans and the Criminal Justice System: Five
Years Later (Washington, D.C.: The Sentencing Project,
1995).
11. Snell
and Morton, "Women in Prison: Survey."
12.
Telephone interview, Tracy Snell, statistician, Bureau of
Justice Statistics, Nov. 6, 1996.
13. Acoca
and Austin, The Crisis, p. 8.
14. The
Correctional Association of New York, "Women in Prison Fact
Sheet" (November 1994).
15.
Barbara Bloom and David Steinhart, Why Punish the Children?
A Reappraisal of the Children of Incarcerated Mothers in America
(San Francisco: National Council on Crime and Delinquency
(NCCD), 1993), Table 2-9. The NCCD's figures are based on a
survey of mothers in jail and prisons in eight states and the
District of Columbia.
16.
Barbara Bloom, "Incarcerated Mothers and Their Children:
Maintaining Family Ties," in American Correctional
Association: Female Offenders: Meeting the Needs of a Neglected
Population (1993). According to Ellen Barry, Director,
Legal Services for Prisoners with Children in San Francisco,
children who enter the foster care system when their mother is
incarcerated are at serious risk of never being reunified with
her. Barry attributes this problem to the lack of programs and
services within the prisons to prepare the women for
reunification after release. Without such programs, Barry
argues, it is "virtually impossible for her . . . to reunify
with the child." Ellen Barry, "Reunification Difficult for
Incarcerated Parents and Their Children," Youth Law News,
July-August 1985, p. 16.
17. Bloom,
"Incarcerated Mothers and Their Children...," citing an
unpublished doctoral study conducted at Brandeis University
which estimated that the children of inmates were five to six
times more likely than their peers to be incarcerated.
18. BOJS
studies repeatedly find that four in ten women in prison were
either physically or sexually abused at some time prior to
incarceration. Snell and Morton, "Women in Prison: Survey," p.
5; Lawrence A. Greenfield and Stephanie Minor-Harper,
Special Report: Women in Prison (Virginia: Bureau of
Justice Statistics, 1991), p. 6. These figures, however, may be
conservative, as state-specific studies have generally yielded a
higher percentage of women reporting prior sexual or physical
abuse. A 1988 study found that 88 percent of the incarcerated
women sampled had experienced at least one major form of prior
abuse: childhood physical abuse, childhood sexual abuse, adult
rape or adult battering. Immarigeon and Chesney-Lind,
Women's Prisons: Overcrowded and Overused, p. 6. The NCCD
study found that 67.5 percent of women reported physical or
sexual abuse as children, and 71.5 percent reported such abuse
as adults. Acoca and Austin, The Crisis, p. 58.
19.
Interview, Christina Kampfner, psychologist, Ann Arbor,
Michigan, May 17, 1994.
20. Ibid.
21. Ibid.
22.
Torres v. Wisconsin Department of Health and Human Services,
859 F.2d 1523 (7th Cir. 1988), cert. denied, 489 U.S.
1017 (1989).
23.
Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).
24. For
example, in New York, prior to 1976, only women could serve as
corrections officers at the women's prison at Bedford Hills,
while men were allowed to work on the grounds and in the schools
and library. See also Clarice Feinman, Women in the Criminal
Justice System (Connecticut: Praeger Books, 1994), pp.
159-177.
25. Under
Title VII, an employer may not discriminate on the basis of sex
unless an employee's sex is a bona fide occupational
qualification (BFOQ), i.e. a qualification that is "reasonably
necessary" to perform the specific job. In the absence of
unusual circumstances, U.S. federal courts have been unwilling
to characterize a person's sex as a BFOQ. Dothard v.
Rawlinson, 433 U.S. 321 (1977); Forts v. Ward, 621
F.2d 1210 (2d Cir. 1980); Griffin v. Michigan Department of
Corrections, 654 F. Supp. 690 (E.D. Mich. 1982);
Gunther v. Iowa State Men's Reformatory, 462 F.
Supp. 952 (N.D. Iowa 1979), affirmed, 612 F.2d 1079
(6th Cir. 1980), cert. denied, 446 U.S. 966 (1980).
26. In
Illinois, for example, 29 percent of male corrections officers,
or around 1,700, worked in women's facilities while the state
employed only 793 women as corrections officers.
27.
Torres, 859 F.2d, p. 1523.
28. See
Asia Watch (now Human Rights Watch/Asia) and Women's Rights
Project, A Modern Form of Slavery: Trafficking of Burmese
Women and Girls into Brothels in Thailand, (New York: Human
Rights Watch, 1993), pp. 89-94; Asia Watch (now Human Rights
Watch/Asia) and Women's Rights Project, Double Jeopardy:
Police Abuse of Women in Pakistan, (New York: Human Rights
Watch, 1992); Americas Watch (now Human Rights Watch/Americas)
and Women's Rights Project, Untold Terror: Violence Against
Women in Peru's Armed Conflict (New York: Human Rights
Watch, 1992).
29. For a
historical overview of incarcerated women since the nineteenth
century, see Nicole Hahn Rafter, Partial Justice: Women,
Prisons and Social Control (London: Transaction Publishers,
1990). According to Rafter, women historically have received
inferior care, including less attention and fewer resources.
Their care has also been marked by gender stereotyping, with
vocational training and opportunities targeted at jobs
traditionally viewed as appropriate for women. These
disparities, she found, remain entrenched in the treatment of
women in prison today. Ibid., p. xxx.
30. Rafter
found that women's reformatories were intentionally built in
rural communities to "shield inmates from the corrupting
influence of the city." Ibid., p. xxvii.
31. Bloom
and Steinhart, Why Punish the Children, Table 2-10.
32. While
this problem is not unique to women prisoners, it is more
extreme because there are relatively fewer women's prisons.
33. For
example, in Connecticut all incarcerated women were designated
as "Placement in facility nearest to community of residence not
necessary," while 58 percent of male inmates received priority
placement in the facility nearest their community of residence,
significant others/family members or community resources.
Considering the large number of single mothers who are
incarcerated in Connecticut, this assessment was based upon the
availability of women's facilities rather than on the women's or
their families' needs. Acoca and Austin, The Crisis, p.
30.
34.
Dorothy Spektorov McClellan, "Disparity in the Discipline of
Male and Female Inmates in Texas Prisons," Women & Criminal
Justice, Volume 5, Number 2, 1994.
35.
According to McClellan's study, 245 incarcerated women received
3,698 citations in the course of a year while 271 male prisoners
received only 786. Ibid., p. 76.
36. Ibid.
37. Of the
3,698 citations received by women, 1,322 were for disobeying a
written or posted rule and 841 for refusing to obey orders.
Ibid.
38. Ibid.,
p. xxxi.
39. In
1983 twenty-seven states were involved in litigation involving
the women's prisons, but only three of those faced
discrimination suits. By 1988 one author found that at least
fifteen states were involved in equal protection suits. Rafter,
Partial Justice, p. 198. Relying on the Equal
Protection Clause in the Fourteenth Amendment of the U.S.
Constitution, the U.S. Supreme Court has held that no state may
discriminate on the basis of sex unless such discrimination
serves an important government objective and is substantially
related to the achievement of that objective. United States
v. Virginia, 116 S.Ct. 2264 (1996). For further discussion
of the application of the Equal Protection Clause to sex
discrimination, see Susan Deller Ross and Ann Barcher, The
Rights of Women: Basic ACLU Guide to a Woman's Rights (New
York: Bantam, 1983), pp. 1-15. The Fourteenth Amendment provides
in its relevant part "No State shall make or enforce any law
which shall . . . deny to any person within its jurisdiction the
equal protection of the law."
40.
Molar v. Gates, 98 Cal. App. 3d 1 (1979).
41.
Cosgrove v. Smith, 697 F.2d 1125 (D.C. Cir. 1983).
42.
Park v. Thompson, 356 F. Supp. 783 (D. Haw. 1973).
43.
Lawsuits filed in Illinois and California, for example, were
settled out of court. In both cases, the respective department
of corrections introduced improvements in the programming they
provided for incarcerated women.
44.
Glover v. Johnson, 478 F. Supp. 1075, p. 1079 (E.D. Mich.
1979). The reforms won by incarcerated women in Michigan were
ultimately undermined by departmental noncompliance. See Rafter,
Partial Justice, pp. 199-201.
45. 31
F.3d 727 (8th Cir. 1994), certiorari denied, 115 S.Ct.
1177 (1995).
46.
Women Prisoners of the District of Columbia Department of
Corrections v. District of Columbia, 93 F.3d 910 (D.C.
Circuit, 1996). The appellate court compared the programming
difference between female and male prisoners to that between
Smith College, a small, private women's college, and Harvard
University, a large, co-educational university. Ibid., pp.
26-27.
47.
Telephone interview, Karen Bower, staff attorney, National
Prison Project, American Civil Liberties Union, November 1,
1996.
48. Each
of the fifty states operates and maintains its own prison
system. These systems are separate and distinct from the federal
prison system, which is overseen by the Federal Bureau of
Prisons. Most crimes are prosecuted in state courts, under state
criminal law, and prisoners are sentenced to terms in state
institutions.
49.
Whitley v. Albers, 475 U.S. 312, p. 319 (1986).
50.
Hudson v. McMillian, 503 U.S. 1, p. 14 (1992)
51.
Wilson v. Seiter, 501 U.S. 294, p. 298 (1991)
52.
Hudson, p. 10; and Whitley, pp. 320-321.
53.
Wilson, p. 303. The Supreme Court did not define
"deliberate indifference" in Wilson. In a 1994
decision, however, it ruled that prison officials must know of
the risk and fail to take reasonable measures. Farmer v.
Brennan, 114 S. Ct. 1970 (1994).
54.
Farmer, pp. 1976-1984.
55.
Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993)
56.
Women Prisoners of the District of Columbia Department of
Corrections v. District of Columbia, 877 F. Supp. 634
(D.D.C. 1994), reversed on other grounds, No. 95-7041
(D.C. Cir. August 30, 1996); Thomas v. District of Columbia,
887 F. Supp. 1 (D.D.C. 1995).
57. Fourth
Amendment, U.S. Constitution.
58. 441
U.S. 520 (1979).
59. The
Supreme Court stated that "courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it and the place in which it is
conducted." Bell, p. 559.
60. 468
U.S. 517 (1983).
61. See,
for example, Jordan v. Gardner, 986 F.2d 1521 (9th Cir.
1993); Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982).
In addition, the Seventh Circuit in Madyun v. Franzen,
704 F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S.
996 (1983), upheld an Illinois policy prohibiting male guards
from pat-frisking female prisoners while permitting female
guards to pat-frisk male prisoners. The Seventh Circuit examined
the policy difference from the perspective of employment rights
rather than privacy. It found that a restriction on the role of
female guards in male prisons would negatively impact their
equal employment opportunities, while there was no indication
that men suffered from a lack of opportunity because they were
precluded from pat-frisking female prisoners. Madyun,
p. 962.
62. See,
for example, Hardin v. Stynchcomb, 691 F.2d 1364 (11th
Cir. 1982), rehearing denied, 696 F.2d 1007 (11th Cir.
1983) and Canedy v. Boardman, 16 F.3d 183 (7th Cir.
1994).
63. See,
for example, Cookish v. Powell, 945 F.2d 441, p. 447
(1st Cir. 1991); Grummett v. Rushen, 779 F.2d 491, p.
495 (9th Cir. 1985); Miles v. Bell, 621 F. Supp. 51, p.
67 (D. Conn. 1985)
64. See,
for example, Fortner v. Thomas, 983 F. 2d 1024, p. 1030
(11th Cir. 1993); Cookish v. Powell, 945 F.2d 441, p.
447 (1st Cir. 1991); Cumbey v. Meachum, 684 F.2d 712
(10th Cir. 1982); Lee v. Downs, 641 F.2d 1117, p.1119
(4th Cir. 1981); Forts v. Ward, 471 F. Supp. 1095, p.
1099 (S.D.N.Y. 1979).
65.
Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995),
petition for certiorari filed 64 U.S.L.W. 3823, Civil
Action No. 95-1951 (May 28, 1996); Griffin v. Michigan
Department of Corrections, 654 F. Supp. 690, p. 703 (E.D.
Mich. 1982)("inmates do not possess any protected right under
the Constitution against being viewed while naked by corrections
officers of the opposite sex") ; Bagley v. Watson, 579
F. Supp. 1099 (D. Or. 1983) ("male prisoners . . . have no
federal constitutional rights to freedom from clothed 'pat-down'
frisk searches and/or visual observations in states of undress
performed by female correctional officer guards").
66. "Under
color of state law" means that a state official must be using
her authority as a state official when the violation occurs. A
state official may still be acting under color of law even if
her conduct violates state law. Screws v. United States,
325 U.S. 91, p. 109 (1945). The "misuse of power" must be made
possible by the actor's authority under state law. Ibid.
67.
Sections 241 and 242 are both general civil rights provisions,
and their application is not limited exclusively to abuses
within prisons. Title 18, United States Code, Section 241
provides, in relevant part: "[i]f two or more persons conspire
to injure, oppress, threaten, or intimidate any person in any
State . . . in the free exercise or enjoyment of any right or
privilege secured to him [or her] by the Constitution or laws of
the United States, or because of his [or her] having so exercise
of the same . . . [t]hey shall be fined or imprisoned not more
than ten years, . . . or both."
Section
242 provides, in relevant part: "Whoever, under color of law,
statute, ordinance, regulation, or custom, willfully subjects
any person in any State . . . to the deprivation of any rights,
privileges, or immunities secured or protected by the
Constitution or laws of the United States . . . shall be fined
under this title or imprisoned not more than one year, or both;
and if bodily injury results from the acts committed in
violation of this section or if such acts include the use, the
attempted use, or threatened use of a dangerous weapon,
explosives, or fire, shall be fined under this title or
imprisoned not more than ten years, or both; and if death
results from the acts committed in violation of this section or
if such acts include . . . aggravated sexual abuse, or an
attempt to commit aggravated sexual abuse, . . . shall be fined
under this title, or imprisoned for any term of years or for
life, or both, or may be sentenced to death."
68.
Screws, p. 103 (regarding 18 U.S.C. Section 242);
United States v. Guest, 383 U.S. 745, p. 760 (1966)
(regarding 18 U.S.C. Section 241).
69.
Screws, pp. 101-103.
70. Paul
Hoffman, "The Feds, Lies and Videotape: The Need for an
Effective Federal Role in Controlling Police Abuse in Urban
America," Southern California Law Review, Volume 66, p.
1522 (1993).
71. 1995
Department of Justice Congressional Authorization and Budget
Submission, Volume 1, Civil Rights Division.
72. 42
U.S.C. Section 1997 et seq.
73. See,
for example, Canterino v. Wilson, 538 F. Supp. 62 (W.D.
Ky. 1982); Senate Reports Number 96-416, 96th Congress, Second
Session (1980), reprinted in 1980 United States Code
Congressional and Administrative News, pp. 787, 797.
74. The
investigation itself must be triggered by a published report or
information from a source with personal knowledge about
allegations that constitutional rights are being violated.
75. It is
important to note that the special litigation section of the DOJ
(which enforces CRIPA) does not accept collect telephone
calls--the only means by which prisoners can make long-distance
telephone calls.
76.
Telephone interview, Department of Justice, Washington D.C., May
8, 1995.
77. Ibid.
78.
United States v. Michigan, 868 F. Supp. 890 (W.D. Mich.
1994).
79. Courts
prior to the Michigan decision repeatedly upheld DOJ requests to
enter institutions and conduct investigations. See U.S. v.
County of Los Angeles, 635 F. Supp. 588 (C.D. Cal. 1986);
U.S. v. County of Crittenden, Civil Action No.
JC89-141, 1990 WESTLAW 257949 (E.D. Ark. December 26, 1990).
80.
Telephone interview, Department of Justice, May 8, 1995.
81. The
DOJ also has investigated conditions in women's prisons in
Alabama and Arizona. It issued findings letters regarding both
states. In Alabama, the DOJ found violations involving health
care, discipline, and the physical plant. In addition, it found
"credible reports" of sexual contact between corrections staff
and prisoners. The DOJ denounced such contact as "reprehensible
and intolerable" and stated that, given the custodial
environment, "the sexual relationships are not appropriate or
truly 'voluntary.'" Letter from Deval Patrick, assistant
attorney general, Civil Rights Division, U.S. Department of
Justice, to Fob James, governor, Alabama, March 27, 1995. The
DOJ's investigation in Arizona identified "an unconstitutional
pattern or practice of sexual misconduct and constitutionally
unacceptable invasions of privacy rights." Such misconduct
included, but was not limited to, rape, sexual touching, and
degrading language. The privacy violations consisted of officers
viewing women prisoners while they used showers and toilets.
Letter from Deval Patrick, assistant attorney general, Civil
Rights Division, U.S. Department of Justice, to J. Fife
Symington, governor, Arizona, August 8, 1996. Both
investigations remain open.
82.
United States v. Michigan, pp. 902-903.
83. Letter
from Deval Patrick, assistant attorney general, Civil Rights
Division, U.S. Department of Justice, to John Engler, governor,
Michigan, March 27, 1995.
84. Ibid.
This letter is required under CRIPA prior to actually filing
suit against the state.
85. Ibid.
86.
Suggested remedies included developing policies and procedures
requiring the reporting of any suspected sexual abuse; not
disciplining prisoners for reporting alleged sexual abuse;
requiring pat-down searches to be conducted in a professional
manner and not to be more intrusive than necessary; and
mandating that guards, individual maintenance workers, and other
visitors not be permitted to observe prisoners while naked,
showering, or using toilet facilities. Ibid.
87.
Interview, Department of Justice, October 1, 1996.
88. 42
U.S.C. Section 14141(a).
89. Letter
from Deval Patrick, assistant attorney general, Civil Rights
Division, U.S. Department of Justice, to John Engler, governor,
Michigan, March 27, 1995.
90. This
discussion is drawn from a memorandum by Mark Kappelhoff,
legislative counsel, American Civil Liberties Union, on Prison
Litigation Reform Act-Impact on Children and Women, June 14,
1996.
91.
Written Testimony of John Schmidt, associate attorney general,
U.S. Department of Justice, before the Committee on the
Judiciary U.S. Senate concerning Implementation of the Prison
Litigation Reform Act, September 25, 1996.
92. As of
June 1996, those included New York City, California, Texas,
Iowa, South Carolina and the District of Columbia.
93.
Summary of Prison Litigation Reform Act, National Prison
Project, American Civil Liberties Union, August 29, 1996.
94.
Women Prisoners of the District of Columbia Department of
Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir.
1996).
95. 18
United States Code Section 2243 "Sexual abuse of a minor or
ward." In its relevant part, Section 2243 (b) reads: "Whoever, .
. . in a federal prison, knowingly engages in a sexual act with
another person who is (1) in official detention; and (2) under
the custodial, supervisory, or disciplinary authority of the
person so engaging; or attempts to do so, shall be fined under
this title, imprisoned not more than one year, or both."
A "sexual
act" is defined under 18 United States Code Section 2246(2) as:
"(A) contact between the penis and the vulva or the penis and
the anus and . . . contact involving the penis occurs upon
penetration, however, slight; (B) contact between the mouth and
penis, the mouth and vulva, or the mouth and the anus; or (C)the
penetration, however slight, of the anal or genital opening of
another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person."
Sexual
contact is defined as "the intentional touching, either directly
or through clothing, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent to abuse,
humiliate, harass, degrade or arouse or gratify the sexual
desire of any person." 18 United States Code Section 2246(3).
96. The
Model Penal Code was drafted by the American Law Institute in
1962 as a model for state and federal penal codes. To our
knowledge, no state has adopted the Model Penal Code in its
entirety.
97. Model
Penal Code Section 213.3(1)(c). Sexual intercourse with a
prisoner falls under the Section entitled "Corruption of Minors
and Seduction," which addresses statutory rape and abuse by
those in a guardian or supervisory position. The provision reads
in its relevant part: "A male who has sexual intercourse with a
female not his wife, or any person who engages in deviate sexual
intercourse or causes another to engage in deviate sexual
intercourse, is guilty of an offense if: . . . the other person
is in custody of the law or detained in a hospital or other
institution and the actor has supervisory or disciplinary
authority over [her]." Deviate sexual intercourse is defined in
Model Penal Code Section 213.0 as "sexual intercourse per os or
per anum between human beings who are not husband and wife...."
98. Sexual
contact is defined as "any touching of the sexual or other
intimate parts of the person for the purpose of arousing or
gratifying sexual desire." Ibid., Section 213.4(8). Section
213.4 further provides: "A person who has sexual contact with
another not his spouse, or causes such other to have sexual
conduct with him, is guilty of sexual assault, a misdemeanor, if
. . . the other person is in custody of law or detained in a
hospital or other institution and the actor has supervisory
authority over [her]."
99. In
analyzing state laws prohibiting sexual contact between women
prisoners and correctional staff we relied on extensive research
done by the National Women's Law Center. For a full text of the
report, see National Women's Law Center, Fifty-State Survey on
State Criminal Laws Prohibiting the Sexual Abuse of Women
Prisoners, November 1996. The states that criminalize sex in
custody are Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana,
Iowa, Kansas, Louisiana, Maine, Michigan, Missouri, Nevada, New
Jersey, New Mexico, New York, North Dakota, Rhode Island,
Wisconsin, and South Dakota. See Ariz. Rev. Stat. Ann. §13-1419;
Ark. Code Ann. §5-14-109; Cal. Penal Code §289.6; Colo. Rev.
Stat. Ann. §18-3-404; Conn. Gen. Stat. §§53a-71 and 53a-73a;
Del.
Code
Ann. title 11, §1259; Fla. Stat. Ann. §944.35; Ga. Code Ann.
§16-6-5.1; Haw. Rev. Stat.
§§707-731
and 707-732; Idaho Code §18-6110; Iowa Code §709.16; La. Rev.
Stat. Ann. title 14, §134.1; Me. Rev. Stat. Ann. title 17-a,
§253; Mich. Comp.
Laws
Ann. §750-520e(d); Nev. Rev. Stat. Ann. §212.187; N.J. Stat.
Ann. title 2C, Chapter 14 §2; N.M. Stat. Ann.
§30-9-11;
N.Y. Penal §130.05(3)(e); N.D. Cent. Code §12.1-20-06; R.I. Gen.
Laws § 11-25-24; S.D. Codified Laws Ann. §24-1-26.1.
There has
been a fair amount of recent legislative action on this issue. A
few of the above states--Arizona, California, Delaware, Florida,
New York, Rhode Island and the District of Columbia--enacted
their laws within the past two years.
100. North
Carolina has a provision that bars someone with supervisory or
disciplinary power over someone or "having custody over someone
in an institution, whether such institution be private,
charitable or governmental," from having sexual intercourse or
contact with that person. N.C. Gen. Stat. §14-27.7. Ohio and
Oklahoma have similar prohibitions. Ohio Rev. Code Ann. §2907.03
and Okla. Stat. Ann. title 21, §114. Wyoming's statute is the
broadest of this type--it bars anyone in a "position of
authority" from using that authority to "cause the victim to
submit" to sex. Wyo. Stat. §6-2-303. The Texas statute bars a
public servant from coercing another person "to submit or
participate" in sexual conduct. Tex. Code Ann. §22.011.
101. The
criminal sanctions for engaging in custodial sexual contact vary
from state to state. In most states, the crime is classified as
a felony, but a few states classify it as a misdemeanor. There
is a fair degree of variation in the possible prison sentences
that may be imposed, although most states' penalties stay within
the one to five year range.
102.
Nevada law punishes prisoners for sexual conduct with prison
staff only when the conduct is voluntary. By contrast, the
Arizona statute punishes prisoners who have sexual contact with
custodial staff without reference to whether such contact was
voluntary; and the Delaware statute specifies that prisoners are
criminally responsible for sexual relations with corrections
employees and that consent is no defense to the crime. When a
guard rapes a prisoner, state statutes criminalizing rape can be
used to prosecute the guard. In such instances, prisoners
clearly should not be prosecuted for sexual misconduct. However,
given the unwillingness of states to recognize the different
forms of coercion used by guards to secure sexual contact with
prisoners, the real possibility exists under these statutes that
a victim of rape could have the crime against her go
unrecognized and instead be prosecuted for unlawful sexual
relations.
103. A
person found guilty of sexual intercourse with a prisoner, or
first degree sexual abuse of a ward, may be imprisoned up to ten
years and fined; and, a person found guilty of sexual contact
with a prisoner, second degree sexual abuse of a ward, may be
imprisoned up to five years and fined. It appears that the
District of Columbia uses the term "sexual abuse" for all forms
of sexual assault, including rape. D.C. Code 1981 Section
22-4100 et seq.
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