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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”



Sexual Abuse of Women in U.S. State Prisons-#1

Parts: 1 2 3 4

http://hrw.org/

 

Copyright © December 1996 by Human Rights Watch.
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-153-3
Library of Congress Catalogue Card Number: 96-79706

 

CONTENTS

  • ACKNOWLEDGMENTS

I. SUMMARY AND RECOMMENDATION

    • RECOMMENDATIONS TO THE FEDERAL GOVERNMENT
    • ISSUES FOR CONSIDERATION BY ALL STATE GOVERNMENTS
  • II. HISTORICAL AND LEGAL BACKGROUND
    • HISTORICAL BACKGROUND
      • The Characteristics of the Female Prison Population
      • Male Guards in Women's Prisons
      • Male vs. Female Prisoners: Disparate Treatment
    • PERTINENT NATIONAL AND INTERNATIONAL LAW
      • U.S. Law
        • The U.S. Constitution
          • The Eighth Amendment
          • The Fourth Amendment
        • U.S. Department of Justice
          • Criminal Enforcement: Title 18, U.S. Code, Sections 241 and 242
          • Civil Enforcement: CRIPA
          • Civil Enforcement: Title 42, U.S. Code, Section 14141
        • Prison Litigation Reform Act
        • Sexual Contact in Custody: Federal and State Law
        • Access to the Courts and Grievance Mechanisms
      • International Human Rights Law
        • The United States' Non-Compliance
        • The Use of International Law as an Interpretative Guide
          • Custodial Sexual Misconduct as Torture and Cruel, Inhuman, and
            Degrading Treatment
          • Custodial Sexual Misconduct: A Violation of the International Right to Privacy
          • Custodial Sexual Misconduct and International Rights to an Effective Remedy
        • Training
    • CONCLUSION
  • III. CALIFORNIA
    • CONTEXT
      • Custodial Environment
      • State Legal and Regulatory Framework
      • National and International Law Protections
    • ABUSES
      • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
      • Mistreatment of Prisoners Impregnated by Guards
      • Abusive and Degrading Language
      • Privacy Violations
        • Strip Searches
        • Inappropriate Visual Surveillance
      • Avenal
    • THE SYSTEM'S RESPONSE
      • Denial of an Effective Remedy
        • Grievance Procedure
        • Investigations
        • Lack of Confidentiality
        • Retaliation
        • Abuse of Administrative Segregation
        • Lack of Accountability to Prisoners and External Monitors
      • Impunity
    • RECOMMENDATIONS
  • IV. THE DISTRICT OF COLUMBIA
    • CONTEXT
      • State Legal and Regulatory Framework
      • National and International Law Protections
      • Legal Action to Expose and Remedy Abuses
    • ABUSES
      • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
      • Abusive and Degrading Language
    • THE SYSTEM'S RESPONSE
      • The Effect of Women Prisoners v. District of Columbia
    • RECOMMENDATIONS
  • V. GEORGIA
    • CONTEXT
      • Custodial Environment
      • State Legal and Regulatory Framework
      • National and International Law Protections
      • Legal Action to Expose and Prevent Abuses
    • ABUSES
      • Before Cason
        • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
        • Mistreatment of Prisoners Impregnated by Guards
        • Privacy Violations and Mentally Ill Prisoners
      • After Cason
        • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
        • Mistreatment of Prisoners Impregnated by Guards
        • Privacy Violations and Mentally Ill Prisoners
    • THE SYSTEM'S RESPONSE
      • Before Cason
        • Grievance Procedure
        • Internal Investigations
        • Intimidation
        • Staff Reporting
        • Impunity
      • After Cason
        • Investigations and Disciplinary Action
        • Criminal Indictments--Failed Prosecutions
        • Retaliation Against "Jane Does"
        • Changes in Leadership and Administration
        • Failure to Comply with the Court's Orders
        • Failure to Train
        • Handling of Investigations
        • Rehired Former Employees
        • Improved Investigations Procedure
        • Persistent Bias Against Prisoner Testimony
      • Lack of Independent Oversight
    • RECOMMENDATIONS
  • VI. ILLINOIS
    • CONTEXT
      • Custodial Environment
      • State Legal and Regulatory Framework
      • National and International Law Protections
    • ABUSES
      • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
      • Mistreatment of Prisoners Impregnated by Guards
      • Abusive and Degrading Language
      • Privacy Violations
    • THE SYSTEM'S RESPONSE
      • Right to an Effective Remedy
        • Grievances
        • Internal Investigations
        • Bias Against Prisoner Testimony
        • Lack of Confidentiality
        • Use of Polygraph Tests and Administrative Segregation
        • Inappropriate Confiscation of Property
        • Retaliation and Harassment by Officers
      • Impunity
      • Lack of Accountability to External Monitors
    • RECOMMENDATIONS
  • VII. MICHIGAN
    • CONTEXT
      • Custodial Environment
      • State Legal and Regulatory Framework
      • National and International Law Protections
    • ABUSES
      • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
      • Mistreatment of Prisoners Impregnated by Guards
      • Privacy Violations
        • Abusive Pat-Frisks
        • Inappropriate Visual Surveillance
          • Housing Units
          • Searches of the Showers and Toilets
        • Medical Appointments
    • THE SYSTEM'S RESPONSE
      • The Right to an Effective Remedy
        • Flawed Grievance and Investigatory Procedures
          • Effective Denial of the Right to Complain
          • Bias Against Prisoner Testimony
          • Conflicts of Interest
          • The Role of the State Police
          • Retaliation and Punishment
      • Inadequate Documentation
      • Impunity
      • Lack of Independent Oversight
        • Michigan Women's Commission
        • Legislative Ombudsman
        • Department of Justice
      • Lack Of Training
    • RECOMMENDATIONS
  • VIII. NEW YORK
    • CONTEXT
      • Custodial Environment
      • State Legal and Regulatory Framework
      • National and International Law Protections
    • ABUSES
      • Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
      • Mistreatment of Prisoners Impregnated by Guards
      • Abusive and Degrading Language
      • Privacy Violations
        • Body Searches
    • THE SYSTEM'S RESPONSE
      • Denial of an Effective Remedy
        • Grievances
        • Investigations and the Failure to Report
        • Bias Against Prisoner Testimony
        • Conflicts of Interest
        • Retaliation
      • Impunity
    • RECOMMENDATIONS 
  • APPENDIX

    STANDARD MINIMUM RULES FOR THE
    TREATMENT OF PRISONERS

 

ABBREVIATIONS

 

ACLU American Civil Liberties Union

BOFQ Bona Fide Occupational Qualification

BOJS Bureau of Justice Statistics

CCWF Central California Women's Facility

CDC California Department of Corrections

CIW California Institution for Women

CLAIM Chicago Legal Aid to Incarcerated Mothers

CRC California Rehabilitation Center

CORC Central Office Review Committee (New York)

CRIPA Civil Rights of Institutionalized Persons Act

CEDAW Convention on the Elimination of All Forms of Discrimination

Against Women

CTF Correctional Treatment Facility (District of Columbia)

DCDC District of Columbia Department of Corrections

DOCS Department of Correctional Services (New York)

DOJ Department of Justice

DR Disciplinary Report

GBI Georgia Bureau of Investigations

GDC Georgia Department of Corrections

GWCI Georgia Women's Correctional Institution

HVM Huron Valley Men's Prison (Michigan)

IAD Internal Affairs Division

ICCPR International Covenant on Civil and Political Rights

IDOC Illinois Department of Corrections

IG Inspector General

LSPC Legal Services for Prisoners with Children

MHU Mental Health Unit

MDOC Michigan Department of Corrections

MPC Model Penal Code

NCCD National Council on Crime and Delinquency

NIC National Institute of Corrections

NWLC National Women's Law Center

NCWF Northern California Women's Facility

PAC Prison Action Committee (Illinois)

PLRA Prison Litigation Reform Act

PLS Prisoners Legal Services (New York)

RUO Resident Unit Officer

SHU Segregated Housing Unit

VSPW Valley State Prison for Women (California)

YACA Youth and Adult Correctional Agency (California)

 

ACKNOWLEDGMENTS

 

This report was researched and written by Dorothy Q. Thomas, director of the Women's Rights Project; Deborah Blatt, former fellow of the Women's Rights Project; Robin S. Levi, staff attorney of the Women's Rights Project; Sarah Lai, former research associate of the Women's Rights Project; Joanne Mariner, associate counsel of Human Rights Watch; and Regan E. Ralph, Washington director of the Women's Rights Project. In addition, Joanna Weschler, United Nations representative of Human Rights Watch, conducted interviews for this report, and Allyson Collins, senior researcher with Human Rights Watch, helped to frame all its recommendations. Research assistance was provided by Jane Kim, fellow of the Women's Rights Project, and Mona Papillon, former intern of the Women's Rights Project. The report was edited by Dorothy Q. Thomas, Sarah Lai, Joanna Weschler, Joanne Mariner, and Regan E. Ralph, with invaluable editorial oversight from Cynthia Brown, program director of Human Rights Watch. Juan Méndez, former general counsel of Human Rights Watch, and Kenneth Roth, executive director of Human Rights Watch, provided legal review. The report was formatted and proofread by Robert Kimzey, publications director of Human Rights Watch. Special thanks to Evelyn Miah and Kerry McArthur, associates of the Women's Rights Project, and Sonja Lichtenstein, former intern of the Women's Rights Project, for their assistance in the production of this report.

This report would not have been possible without the leadership, guidance, assistance, and on-going work of the organizations and individuals endeavoring to combat sexual misconduct in U.S. state prisons. In particular, we would like to thank Leslie Acoca, Ellen Barry (Legal Services for Prisoners with Children), Karen Bower (American Civil Liberties Union-National Prison Project), Lisa Boardman Burnette, Margaret Byrne, Robert Cullen, Ruth Cassell (Prisoners Legal Services), Barbara Echols (Prison Action Committee), Betsy Fuller (Prisoners' Legal Services), Gail Grieger, Carrie Hempel (University of Southern California Law Center), Christina Jose-Kampfner, Rebecca Jurado (Western State School of Law), Deborah LaBelle, Rhea Mallett, Millard Murphy (University of California/Davis Law School), Brenda Smith (National Women's Law Center), and Gail Smith (Chicago Legal Aid to Incarcerated Mothers). We also wish to thank the Department of Justice staff and state departments of corrections officials and employees who agreed to speak with us.

Most of all, we would like to acknowledge with gratitude and respect the many women prisoners who agreed to speak with us, despite fear of retaliation, for this report. It would not have been possible without them.

The Human Rights Watch Women's Rights Project would also like to thank Herbert and Marion Sandler, the Ford Foundation, the MacArthur Foundation, the Moriah Fund, the Shaler Adams Foundation, and the Sister Fund for their support of its work. This report also was made possible in part by funds granted to Robin S. Levi and Jane Kim through a fellowship program sponsored by the Charles H. Revson Foundation and funds granted to Deborah Blatt through the New York University Law School Public Service Fellowship Fund. The statements and views expressed in the text of this report are solely the responsibility of Human Rights Watch.

I. SUMMARY AND RECOMMENDATIONS

 

This report examines the sexual abuse of female prisoners largely at the hands of male correctional employees at eleven state prisons located in the north, south, east, and west of the United States. It reflects research conducted over a two-and-a-half-year period from March 1994 to November 1996 and is based on interviews conducted by the Human Rights Watch Women's Rights Project and other Human Rights Watch staff with the U.S. federal government, state departments of corrections and district attorneys, correctional officers, civil and women's rights lawyers, prisoner aid organizations, and over sixty prisoners formerly or currently incarcerated in women's prisons in California, Georgia, Illinois, Michigan, New York, and the District of Columbia, which is the nation's capital.

Our findings indicate that being a woman prisoner in U.S. state prisons can be a terrifying experience. If you are sexually abused, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and correctional employees continue to engage in abuse because they believe they will rarely be held accountable, administratively or criminally. Few people outside the prison walls know what is going on or care if they do know. Fewer still do anything to address the problem.

The United States has the dubious distinction of incarcerating the largest known number of prisoners in the world, of which a steadily increasing number are women. Since 1980, the number of women entering U.S. prisons has risen by almost 400 percent, roughly double the incarceration rate increase of males. Fifty-two percent of these prisoners are African-American women, who constitute 14 percent of the total U.S. population. According to current estimates, at least half of all female prisoners have experienced some form of sexual abuse prior to incarceration. Many women are incarcerated in the 170 state prison facilities for women across the United States and, more often than not, they are guarded by men.

The custodial sexual misconduct documented in this report takes many forms. We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women's breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often highly sexualized and excessively hostile.

No one group of prisoners appears to suffer sexual misconduct more than any other, although those in prison for the first time and young or mentally ill prisoners are particularly vulnerable to abuse. Lesbian and transgendered prisoners have also been singled out for sexual misconduct by officers, as have prisoners who have in some way challenged an officer, either by informing on him for inappropriate conduct or for refusing to submit to demands for sexual relations. In some instances, women have been impregnated as a result of sexual misconduct, and some of these prisoners have faced additional abuse in the form of inappropriate segregation, denial of adequate health care, and/or pressure to seek an abortion.

One of the clear contributing factors to sexual misconduct in U.S. prisons for women is that the United States, despite authoritative international rules to the contrary, allows male correctional employees to hold contact positions over prisoners, that is, positions in which they serve in constant physical proximity to the prisoners of the opposite sex. Under the United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), which constitute an authoritative guide to international law regarding the treatment of prisoners and are appended to this report, male officers are precluded from holding such contact posts. However, since the passage of the Civil Rights Act of 1964, U.S. employers have been prohibited from denying a person a job solely on the basis of gender unless the person's gender was reasonably necessary to the performance of the specific job. In the absence of unusual circumstances, U.S. federal courts have been unwilling to recognize a person's gender as meeting this standard with respect to correctional employment. As a result, most restrictions on male officers working in women's prisons that predated the Civil Rights Act have been removed and, by some estimates, male officers working in women's prisons now outnumber their female counterparts by two and in some facilities, three to one.

As a matter of policy, Human Rights Watch supports U.S. anti-discrimination laws and has no objection per se to male officers guarding female prisoners. Nor do we believe that all male officers abuse female prisoners. However, we are concerned that the states' adherence to U.S. anti-discrimination laws, in the absence of strong safeguards against custodial sexual misconduct, has often come at the expense of the fundamental rights of prisoners. Our investigation revealed that where state departments of correction have employed male staff or officers to guard female prisoners, they have often done so absent clear prohibitions on all forms of custodial sexual misconduct and without either training officers or educating prisoners about such prohibitions. Female officers have also sexually abused female prisoners and should, without exception, receive such training. However, in the state prisons for women that we investigated, instances of same-sex sexual misconduct were relatively rare.

Under both international and national law, states are clearly required to prevent and punish custodial sexual misconduct. The International Covenant on Civil and Political Rights (ICCPR) and the International Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Torture Convention), both of which the United States has ratified, require state parties to prohibit torture and other cruel, inhuman, or degrading treatment or punishment and to ensure that such abuse is investigated and punished. The ICCPR further guarantees prisoners a basic right to privacy, which has been interpreted to preclude strip searches by officers of the opposite sex. These rights are further enumerated in the Standard Minimum Rules, which call on governments to prohibit custodial sexual abuse, provide prisoners with an effective right to complain of such misconduct, ensure appropriate punishment, and guarantee that these obligations are met in part through the proper training of correctional officers. In addition, the United States Constitution expressly protects prisoners from cruel and inhuman punishments and has been interpreted to accord prisoners limited privacy rights as well as to guarantee them access to the courts.

The United States is thus clearly bound under its own constitution to prevent and punish custodial sexual misconduct. It is equally bound by international human rights law to take these steps, although in ratifying the ICCPR and the Torture Convention, the United States attempted to limit its treaty obligations in ways that were particularly adverse to the elimination of custodial sexual misconduct. In Human Rights Watch's view, these efforts by the United States to shirk its full international human rights obligations are both bad policy and legally indefensible. Accordingly, we hold the United States to the full scope of the relevant obligations in each treaty.

Neither the nation's capital nor any of the five states investigated for this report are adequately upholding these international and national obligations. All five states and the District of Columbia do have prison rules concerning sexual misconduct, but they are often so vague as to be of little effective use. Rape and sexual assault or abuse, which should clearly be covered by these rules, often are not explicitly mentioned and must usually be read into vague prohibitions on "overfamiliarity" or "fraternization." Few prisons have express policies protecting the privacy rights of prisoners, and fewer still deal expressly with the impropriety of verbal harassment and degradation. While state departments of corrections will usually investigate employees suspected of the most egregious violations of prison rules that govern sexual misconduct, the officers frequently are not punished in accordance with the seriousness of these crimes, and lesser offenses may not be investigated or punished at all.

The District of Columbia and all of the states investigated in this report, with the exception of Illinois, do expressly criminalize sexual misconduct that takes the form of actual sexual contact between officers and prisoners. In some states and the District of Columbia, a first offense of this sort is classified as a felony. In others, it is classified merely as a misdemeanor. But no matter how the offense is classified, state laws are rarely enforced, and when they are, they often carry very light penalties. States' failure to uphold their own laws regarding custodial sexual misconduct reflects their reluctance to prosecute such crimes, largely because of an ingrained belief, except in the most egregious cases, that the prisoner was complicit in the sexual abuse committed against her. In this sense, state officials still widely view criminal sexual misconduct as a victimless crime.

In Human Rights Watch's view, any correctional employee who engages in sexual intercourse or sexual touching with a prisoner is guilty of a crime and should be prosecuted to the fullest extent of the law. As discussed in the legal section of this report, the exact nature of the crime depends on the circumstances under which it is committed and, in particular, on the type and level of pressure the correctional employee exerts on the prisoner. Given the inherently unequal nature of the custodial relationship, however, some type of pressure on the prisoner should be presumed.

In many instances, the use of force by correctional employees to secure sexual relations from a prisoner takes the form of an offer of privileges or goods. Because prisoners are completely dependent on officers for the most basic necessities, the offer or, by implication, threat to withhold privileges or goods is a very powerful inducement. Even when the officer promises or supplies goods or benefits to the prisoner without any implied or perceived threat to her, it is still a more serious offense than if he bestows no goods or benefits at all. This stiffer penalty reflects the fact that prisoners, by definition, have limited resources and privileges, and thus the promise of such rewards always carries special weight.

Even in those cases where an officer engages in sexual relations with a prisoner absent any form of pressure or exchange, he should still be liable for a serious criminal offense. In prison, correctional employees have nearly absolute power over the well-being of prisoners and a corresponding obligation to ensure that this power is never abused. When an officer has sexual contact with a person in his custody, even without any overt pressure or exchange, he commits a gross violation of his professional duty. An inquiry into the victim's alleged consent to such conduct should be unnecessary to establish this professional breach or any other crime of custodial sexual abuse. Rather, the focus should be on the degree of pressure exerted by the guard or employee.

One of the biggest obstacles to the eradication of custodial sexual misconduct is its invisibility at the state and national level. In the Georgia and District of Columbia correctional systems, for example, it took class actions suits in 1992 and 1994, respectively, to make the problem of sexual misconduct visible outside the confines of the correctional system itself. Only after being sued did the departments of corrections admit that the problem of custodial sexual misconduct existed in their facilities for women and that reforms were needed. Sexual misconduct is often so entrenched that, in those correctional systems where class action suits have not yet occurred or have only recently been initiated, such abuse is still largely an invisible problem or one that the respective correctional systems flatly deny.

The invisibility of custodial sexual misconduct, and hence its deniability, are further fueled by the failure of the states we investigated and the District of Columbia to establish credible internal grievance and investigatory procedures that do not expose complainants to retaliation or punishment. In virtually every prison that we investigated, we found grievance procedures that required the prisoner to confront informally the implicated officer before filing a formal grievance or that informed the officer of a complaint lodged against him while he was still in a contact position with the complainant. Both of these procedures exposed prisoners to retaliation by officers and routinely deterred them from filing sexual misconduct complaints.

Even if a prisoner succeeded in pursuing a complaint of sexual misconduct, we found that internal investigatory procedures, while they exist in all five states and the District of Columbia, were often fraught with conflicts of interest and a bias against prisoner testimony. At times, officers accused of sexual misconduct were assigned to investigate themselves. We also found that in almost every case of custodial sexual misconduct, correctional officials assumed that the prisoner lied and thus refused, absent medical reports or witnesses who were not prisoners, to credit prisoner testimony. Given the closed nature of the prison environment, and the reluctance of officers to testify against their peers, such evidence is often very hard to obtain. Thus, complaints of sexual misconduct can be extremely difficult to substantiate. In Georgia, which took steps to credit prisoner testimony more fairly, the investigation and punishment of sexual misconduct markedly improved.

Virtually every prisoner we interviewed who had lodged a complaint of sexual misconduct faced retaliation by the accused officer, his colleagues, or even other prisoners. In some cases, they also faced punishment by correctional officials. These punishments took the form of write-ups for sexual misconduct, the loss of "good time" accrued toward an early parole, or prolonged periods of disciplinary segregation. In other cases, officials did not overtly discipline prisoners but made use of administrative segregation, ostensibly a protective mechanism, effectively to punish them. Thus, prisoners who had committed no disciplinary infraction whatsoever were subjected to the same treatment as prisoners serving disciplinary sentences. In our view, no justification exists for punishing prisoners for sexual misconduct by officers or staff. Whatever penological benefit that may flow from such measures is far outweighed by their deterrent effect on prisoners who might seek to report such abuse.

As noted above, unless outside organizations or individuals are made aware of incidents of custodial sexual misconduct, complaints of such abuse are likely to be handled almost entirely from within the departments of corrections or even from within the given prison. While most correctional systems that we investigated did sometimes refer suspected criminal sexual misconduct to the state police, these referrals did not always occur, nor were they necessarily carried out promptly, with the result that crucial medical evidence may have been compromised. Moreover, once correctional officials referred such charges to the state police, this often had the unconscionable side effect of ending the departments' own internal investigations into the alleged misconduct. It is at this point in the investigatory process that serious allegations of sexual misconduct can escape the grasp of the prison administration. Often, prison administrators fail to deal appropriately with cases that are returned to them because the allegations do not meet prosecution standards. An employee who may not have been found to commit a crime, but who may nonetheless have violated prison rules, can thus escape punishment altogether.

Meanwhile, in cases of suspected sexual misconduct that authorities consider less than criminal, it is likely that no investigation outside of the prison facility will occur, whether by departmental investigators or the state police. Moreover, any investigation into custodial sexual misconduct at whatever level that does occur may not be recorded or monitored by any central authority. In fact, in no correctional system that we investigated, with the exception of Georgia's, did any such reliable centralized database of sexual misconduct, whether criminal or otherwise, exist. The absence of such a database makes it all the more difficult to monitor the incidence of sexual misconduct, to record the steps taken to remedy it, and to keep track of allegedly abusive employees or those who have been found to have violated prison rules and/or criminal law.

One obvious way to address the clear conflict of interest that exists when a department of corrections investigates itself is to establish independent monitors to oversee correctional facilities. However, in the correctional systems that we investigated, such independent oversight was virtually nonexistent. The District of Columbia, for example, pursuant to a judicial order resulting from the 1994 class action suit, was required to appoint a special monitor who would independently investigate and make recommendations to remedy sexual misconduct within the district's correctional system. But under an August 1996 circuit court decision, the special monitor's position was eliminated pending appeal. The state of Michigan does have a legislative corrections ombudsman who is mandated by the state legislature to oversee conditions in the state's correctional institutions. The ombudsman's investigatory and oversight powers are fairly limited, however, and under 1995 legislation, have been even further curtailed. To our knowledge, none of the other states that we investigated have any kind of effective mechanism for securing the independent monitoring of conditions within their correctional facilities.

Given the lack of independent mechanisms legally authorized to oversee the departments of corrections, nongovernmental monitors and private attorneys have become crucial players in the effort to expose and remedy custodial sexual misconduct. Unfortunately, few national or local organizations or private attorneys that focus on prisoners' rights consistently focus on the problem of sexual misconduct in women's prisons. Those that do face enormous obstacles. These independent nongovernmental monitors, including attorneys, who investigate sexual misconduct often have unduly limited access to prisoners, are shut out of complaint or investigatory processes, are publicly attacked by correctional and even state officials, and find that their work with respect to other custodial issues can be compromised by their attempts to address this one. In addition, these groups and individuals uniformly face severe resource constraints which limit their ability to monitor departments of corrections and which have recently been exacerbated by the passage of the Prison Litigation Reform Act (PLRA), discussed below.

The PLRA, which was signed into law by President Bill Clinton in April 1996, has seriously compromised the ability of any entity, private or public, to combat sexual misconduct in custody. Among other measures, the PLRA dramatically limits the ability of individuals and nongovernmental organizations to challenge abusive prison conditions through litigation. The PLRA invalidates any settlement by parties to such a litigation that does not include a finding or statement that the prison conditions being challenged violate a federal statute or the U.S. Constitution. Because prison authorities never want to admit such violations in the consent decrees that frequently settle prison litigation without trial, such findings are extremely rare. The PLRA further arbitrarily terminates any court order regarding unlawful conditions or practices in a given prison after two years, regardless of the degree of compliance; this is often an unreasonably short time to achieve any meaningful change in the way a prison is operated. Thus, a new trial will usually have to be held in order to make a new finding that problems persist. Finally, the PLRA also restricts court-awarded attorneys' fees, which are the main income for prisoner rights attorneys, and severely limits the authority of federal courts to assign judicial officers to oversee prison reform, a key tool for implementing remedial court orders.

The passage of the PLRA removes the one effective external check on serious abuses--such as those described in this report--and increases the urgency of the need for states themselves to ensure that female prisoners in their custody are not being sexually abused or harassed by male staff in their employ. Where they fail to do so, the United States Department of Justice has the power to prosecute correctional officials who violate federal civil rights statues. These prosecutions are difficult, in part due to stringent intent requirements, and are quite rare. 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. Unfortunately, the PLRA is likely to have a chilling effect on the DOJ's oversight efforts, as well as those of private groups, and has already prompted the department to engage in an ill-advised review of all outstanding consent decrees to establish whether they should be terminated under the PLRA, regardless of whether a state department of corrections has yet filed such a request.

Even prior to the passage of the PLRA, the DOJ fell far short of its international and national obligations to protect against custodial sexual misconduct and to ensure that such abuse was appropriately investigated and prosecuted. Currently the DOJ has no guidelines that stipulate when and how to launch CRIPA investigations into conditions at state prisons and has conducted few such inquiries. The only state that we investigated for this report in which the DOJ has launched a formal investigation under CRIPA is the state of Michigan. Unfortunately, the Justice Department has yet to file suit against the state--despite its clear finding of sexual abuse of women prisoners by guards in Michigan's prisons and the fact that the forty-nine day period that the DOJ must legally wait after issuing findings before it can file such a suit lapsed well over a year ago.

Moreover, although the DOJ regularly receives complaints of custodial sexual misconduct, the department maintains no system for recording such complaints, nor does it systematically monitor the number of complaints concerning any particular institution or type of abuse. Absent such information, it is virtually impossible for the DOJ to ensure that it is fully aware of all the sexual misconduct problems that fall within its jurisdiction. Unfortunately, even if the DOJ were to take much-needed steps to monitor the problem of custodial sexual misconduct more effectively, it would still have to contend with serious budgetary constraints.

The tendency of the U.S. government to neglect the problem of custodial sexual misconduct in state prisons for women is perhaps best exemplified by its first report to the U.N. Human Rights Committee, which monitors compliance with the ICCPR. In the entire 213-page report, the problem of custodial sexual misconduct in U.S. state prisons for women is mentioned only once and then only to state that it is "addressed through staff training and through criminal statutes prohibiting such activity." This statement is at best disingenuous. At worst, it makes clear to the international community, to the people of the United States, to the state departments of corrections and the women they incarcerate, and to us, that the United States has almost completely abdicated its responsibility to guarantee in any meaningful way that the women held in its state prisons are not being sexually abused by those in authority over them.

Human Rights Watch calls on the United States to demonstrate its clear commitment to its international and national obligations to prevent, investigate, and punish custodial sexual abuse in U.S. state prisons for women and makes the following recommendations to the federal government and its constituent states, urging them to step up their efforts to acknowledge and eliminate this pressing problem. Recommendations specific to the District of Columbia and the five states investigated for this report appear at the close of each relevant chapter.

 

RECOMMENDATIONS TO THE FEDERAL GOVERNMENT

 

I. U.S. Congress

1. The U.S. Congress should pass legislation that requires states, as a precondition to receiving federal funding for the construction and maintenance of state prisons and holding cells, to criminalize all sexual contact between correctional staff and prisoners and, as discussed below, to report annually to the DOJ regarding conditions of incarceration in their respective facilities.

 

2. The U.S. Congress should pass legislation that requires states to prohibit departments of corrections from hiring staff who have been convicted on criminal charges, or found liable in civil suits, for custodial sexual misconduct. The names and identifying information of such individuals should be maintained by each department of corrections, in a database that must be checked prior to hiring any correctional staff. This information should be collected by the DOJ data collection office, discussed below, for use by all states.

 

3. The U.S. Congress should appropriate the funds necessary to enable the DOJ to conduct increased and thorough investigations of custodial sexual misconduct and to enjoin prohibited conduct pursuant to CRIPA. These funds should also be used by the DOJ to create an office of data collection, mandated to keep track of complaints of sexual abuse on a state-by-state basis, to issue semi-annual reports regarding such complaints, to provide complainants with information about the mechanisms available to remedy such abuse, and to follow up with the relevant state departments of corrections or federal prisons regarding any issues of concern. The DOJ should be mandated to do outreach about this office to federal and state correctional facilities, prisoners, and other relevant actors, including through the publication of materials about the data collection office that could be posted within correctional facilities. The state-level independent review boards or other oversight mechanisms, discussed below, should also supply information on a regular basis to this office.

 

4. The U.S. Congress should revise certain provisions of the Prisoner Litigation Reform Act that severely limit the ability of prisoners, nongovernmental organizations, and the Department of Justice to challenge unconstitutional conditions in state correctional facilities. Those revisions, at a minimum, should include:

  • repealing 18 United States Code Section 3626(a)(1), which requires that judicially enforceable consent decrees contain findings of federal law violations;
  • repealing 18 United States Code Section 3626(b), which requires all judicial orders to terminate two years after they are issued; and
  • restoring funding for special masters' and attorneys' fees to the levels that prevailed before the passage of the Prison Litigation Reform Act.

5. The U.S. Congress should engage in a review of the CRIPA procedures for certifying the grievance procedures of U.S. correctional systems to ensure that certified procedures will function effectively for complaints of custodial abuse.

 

6. The U.S. should withdraw the restrictive reservations, declarations, and understandings that the it has attached to the ICCPR and the Torture Convention.

 

7. The U.S. Congress should introduce implementing legislation for the ICCPR and the Torture Convention such that persons in the United States could legally enforce the protections of these treaties in U.S. courts; or it should formally declare that both treaties are self-executing and thus capable of sustaining claims in U.S. courts without further legislation.

 

II. U.S. Department of Justice

 

Civil Rights Division

1. The U.S. Department of Justice, as a necessary step toward improving its responsiveness to sexual misconduct and the quality of its information about same, should establish a secure, toll-free telephone hotline to receive complaints of sexual misconduct by correctional staff and should publicize the existence of this service. The hotline should

  • provide prisoners information about their rights and about nongovernmental organizations that they may contact for assistance;
  • forward complaints to both the state officials and the Special Litigation Section and Criminal Section of the DOJ's Civil Rights Division;
  • ensure confidentiality;
  • be accessible under all circumstances, including times when prisoners are in segregation;
  • be viewed as exercising the constitutional right to legal representation, and therefore be free from monitoring by prison officials; and
  • extend its confidentiality to any written correspondence emerging from a prisoner's contact with the hotline.

2. The information collected through the hotline should be used to help compile the semi-annual reports of the office of data collection, suggested above.

 

3. The DOJ should formulate and issue specific, public procedures that detail its investigative process under CRIPA.

 

4. The DOJ should use the information contained in this report and information from other reliable sources to consider initiating additional criminal investigations under 18 U.S.C. Sections 241 and 242.

 

5. The DOJ should exercise its full authority under CRIPA to initiate, with the participation of its Office of Violence Against Women, investigations in the states examined in this report.

 

6. The DOJ should require states, as a condition of continued federal assistance, to report annually to the Civil Rights Division regarding conditions of incarceration in their respective correctional facilities. Such reports should include, among other things, patterns of rape, sexual abuse, and other forms of violence against women. The DOJ should publish an annual report based upon this information.

 

7. The DOJ should appoint an attorney within its Special Litigation section responsible for overseeing all complaints of sexual misconduct lodged with the section.

 

National Institute of Corrections

The National Institute of Corrections (NIC) should develop standards akin to the U.N.'s Standard Minimum Rules, in order to provide national guidelines for the treatment of prisoners to ensure that state corrections procedure and practice comport with international and constitutional protections. One valuable contribution from the NIC would be the development of model grievance, investigatory, and training mechanisms to address in particular many of the concerns raised in this report. These procedures should be developed in close consultation with all relevant parties, including those nongovernmental organizations familiar with prisoner work, including with work on sexual misconduct in women's facilities.

 

III. Executive Branch

1. The U.S. should reinvigorate its efforts to secure ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to the U.S. Senate for ratification, and after ratification, to include in its periodic compliance reports to the CEDAW Committee information regarding federal measures to eradicate the problem of custodial sexual misconduct in U.S. state, as well as federal, prisons.

 

2. The U.S. should include information on custodial sexual misconduct against women prisoners in its next report to the United Nations Human Rights Committee and in its first compliance report to the Committee Against Torture.

 

ISSUES FOR CONSIDERATION BY ALL STATE GOVERNMENTS

 

Most of the recommendations in this report are tailored to address the specific circumstances surrounding the problem of custodial sexual misconduct in each state. Nonetheless, based on our observations in these five states and in the District of Columbia, there are a number of critical cross-cutting concerns that merit urgent consideration by all states. Moreover, based on information that we gathered in the preparation of this report but did not investigate independently, Human Rights Watch is concerned that the problem of custodial sexual misconduct in state prisons, jails, and other custodial facilities for women exists in many states beyond the scope of this report. Accordingly, we call on all U.S. states to consider:

 

  • the need to prohibit expressly sexual misconduct in custody in both the administrative codes for departments of corrections and, where appropriate, in criminal law, in fulfillment of international human rights prohibitions on cruel, inhuman, or degrading treatment and punishment;
  • the need, in every state, to set forth and enforce policies that secure privacy protections and protections against verbal degradation that are consistent with U.S. obligations under international human rights law, such as policies that limit strip searches, pat-frisks, and inappropriate visual surveillance of prisoners by employees of the opposite sex;
  • the need for thorough training for all current and future correctional employees regarding sexual misconduct and cross-gender guarding issues and regarding the implications of international human rights treaties and federal and state laws for the conduct of each prison system and its staff;
  • the need to reward correctional employees, and in particular deputy wardens and wardens, for taking clear action to prevent and punish custodial sexual misconduct and to sanction those who do not;
  • the need to ensure that prisoners who are impregnated by corrections staff are not automatically subject to administrative segregation and that they receive timely and adequate medical care, including psychiatric counseling when requested;
  • the need to ensure that prisoners who become pregnant as a result of custodial sexual abuse are not pressured in any way to undergo abortions;
  • the need to prevent the hiring or rehiring of employees who have previously been fired or resigned from a job as a corrections employee pursuant to allegations of sexual misconduct;
  • the need to establish accessible and effective grievance and investigatory procedures consistent with the right under the ICCPR, the Torture Convention, and the Standard Minimum Rules to file complaints of official misconduct without fear of retribution or punishment;
  • the need to guarantee that such procedures would ensure, inter alia, confidentiality of the complainant during the period of time in which the officer is still potentially in contact with her, ensure that her name is not made available to the general population, and impartial investigations are conducted by persons other than the implicated officials, and include meaningful appeal mechanisms;
  • the need to protect prisoners from retaliation by implicated officers;
  • the need to refrain from directly or indirectly punishing prisoners for sexual misconduct and, in particular, to examine the inappropriate and de facto punitive use of administrative segregation to punish and/or intimidate prisoners involved in investigations of sexual misconduct;
  • the need, consistent with the U.S.'s international human rights obligations, to ensure that those employees who engage in the sexual abuse of prisoners under their protection are punished to fullest extent of the law;
  • the need to ensure that independent monitoring groups, like many of those mentioned in this report, are able to investigate and evaluate the compliance of the state governments and the U.S. federal government with international human rights and domestic civil rights obligations; and
  • the need to establish independent review boards or the equivalent of a legislative corrections ombudsman mandated to receive and investigate complaints of sexual misconduct, including from prisoners, and to provide information on the complaints by these independent entities received to the DOJ office of data collection suggested above.

II. HISTORICAL AND LEGAL BACKGROUND

 

HISTORICAL BACKGROUND

 

Sexual misconduct by prison guards (1) in U.S. women's prisons is occurring in the context of a steadily increasing population of female prisoners--many of whom are first offenders--in state (and federal) prisons. Female prisoners historically have experienced disparate treatment compared to their male counterparts. Many of these female prisoners have personal histories of sexual abuse and are now being guarded more often than not by male officers. Moreover, this misconduct is occurring in a context where prison rules and state law do not adequately address the problem, federal law either does not apply or is sporadically enforced, and international human rights law, which provides clear protections against and remedies for such abuse, is largely ignored. This section describes this historical and legal context.

 

The Characteristics of the Female Prison Population

Women constitute only a tiny minority of the prison population in the United States, (2) representing just over 6 percent of all prisoners at the end of 1995. (3) However, their relatively small presence should not obscure a dramatic increase in their numbers over the last fifteen years. According to the Department of Justice's Bureau of Justice Statistics (BOJS), the number of women entering U.S. state and federal prisons between 1980 and 1994 has increased by 386 percent. (4) This increase is significantly higher than that of men, whose population rose 214 percent in the same period. (5) The growth in the number of female prisoners, according to observers, results less from a shift in the nature of the crimes women commit than it does from the so-called war on drugs and related changes in legislation, law enforcement practices, and judicial decision-making. (6) In fact, drug-related offenses accounted for 55 percent of the increase in the female prison population between 1986 and 1991. (7) African American women, who make up 14.5 percent of the general U.S. population, (8) constitute 52.2 percent of the prison population (9) and have been hardest hit by this increase. (10) Moreover, BOJS figures indicate that almost 70 percent of women in U.S. prisons are incarcerated for drug, property, or public order offenses. Just over 30 percent are incarcerated for violent crimes, such as murder, robbery, or assault. (11) Many are incarcerated in the 170 state confinement facilities across the United States that house women. (12)

The increasing incarceration of women has had a tremendous impact on their families and children. Eighty percent of incarcerated women have at least one child, and the majority of these are single mothers. (13) In New York, for example, more than 75 percent of all women in prison have children, and two-thirds of the women have children under the age of eighteen. (14) While many women maintain contact with their children during incarceration, 54 percent are never visited by their children. (15) Several factors contribute to this small percentage of visits, including the distance of the prison from the children's home, the travel time, and the lack of resources to finance such trips. Research indicates that the children of incarcerated mothers suffer from immediate and enduring adverse effects on their relationships with peers and irreparable harm to the mother-child relationship. (16) More disturbing, these children may be at a greater risk of future incarceration themselves. (17)

Statistics indicate that anywhere from 40 to 88 percent of incarcerated women have been victims of domestic violence and sexual or physical abuse prior to incarceration, either as children or adults. (18) According to Christine Kampfner, a clinical psychologist who has worked with women who kill their batterers, "sexual abuse is an important consideration when you look at incarcerated women." (19) She studied seventy women around the country who had killed their batterers and found that 85 percent had been sexually abused at some point prior to their incarceration. (20) The abuse had an enormous impact on how the women responded to incarceration, particularly their relationships with male guards. Kampfner asserted that the women often relive the trauma and suffer flashbacks, particularly when the corrections officers search them and conduct pat-frisks. Many women with a prior history of sexual abuse are particularly vulnerable to sexual abuse in prison. According to Kampfner, women prisoners respond to abusive authority figures in prison much as they have prior to incarceration. She continued, "The women are so needy and in need of love, they are set up for oppression. The only way they know is to exchange their bodies [to meet this need]." (21)

This history of sexual abuse among many women prisoners has prompted two federal appellate courts to uphold or impose restrictions on the role of male corrections officers within two particular women's prisons. In one case, the U.S. Court of Appeals for the Seventh Circuit held that, considering the women's history of sexual and physical abuse, sex could be used as a bona fide occupational qualification (BFOQ) to restrict male officers from working on the housing units. (22) In the second case, the female prisoners' histories of sexual and physical abuse led the Ninth Circuit to rule that cross-gender pat-frisks constitute cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. (23)

 


Male Guards in Women's Prisons

Men have historically worked in U.S. women's prisons as corrections officers, although, in deference to the potential for sexual misconduct, their role has at times been restricted to noncontact positions. (24) However, with the passage of Title VII of the Civil Rights Act of 1964 and the introduction of equal employment rights for women, many of the restrictions on male corrections officers working in women's prisons were eliminated to make way for female corrections officers working in men's prisons. (25) According to a 1992 survey in Corrections Compendium, a monthly newsletter for corrections professionals, men now constitute the majority of corrections officers working in women's prisons, outnumbering their female counterparts at times by two or three to one. (26)

The introduction into U.S. prisons of cross-gender guarding was met with a flurry of lawsuits, filed primarily by male prisoners contesting the invasion of their privacy by female officers. Female prisoners, traditionally less litigious and outspoken, have contested the role of male officers to a lesser extent. Corrections officers of both sexes also have sued in several cases with some success to contest sexually discriminatory hiring practices and restrictions imposed by prison administrators. In Torres v. Wisconsin Department of Health and Social Services, the Seventh Circuit permitted the superintendent of a women's prison in Wisconsin to restrict male correctional officers from working in the housing units, because, considering the women's histories of physical and sexual abuse, rehabilitation could not be achieved with male officers in the units. The Seventh Circuit found that, "given the very special responsibilities of these [male correctional officers] and the obvious lack of guideposts for them to follow," a certain measure of discretion in restricting their employment was permissible. (27)

In addition, in a suit in Georgia alleging sexual misconduct in women's prisons, lawyers negotiated a consent decree that prohibited male officers from working in the housing units. However, rather than adhering to this limited restriction, in March 1996 the Georgia Department of Corrections commissioner, Wayne Garner, began transferring male officers out of one women's prison altogether. He planned to continue transferring staff--and to implement similar transfers at Georgia's other two women's prisons--until no male staff was in a contact position with women prisoners. The new policy was challenged immediately by the Georgia State Employees Union on anti-discrimination grounds. In late August 1996, after the Georgia Equal Employment Opportunity Commission initiated an investigation into the transfers, the Georgia Department of Corrections ended the policy and returned all the transferred guards back to their original facilities.

While, as noted below, Human Rights Watch does not as a matter of policy oppose the presence of male officers in female prisons per se, we agree in principle with the notion that some restrictions should be placed on the role of the male officers within women's prisons, particularly in light of evidence that incarcerated women in the United States and elsewhere have been raped and sexually assaulted by male employees. (28) While we recognize that incarceration brings with it necessary and legitimate limitations on certain rights of the prisoner, in no way does it justify the complete abrogation of her rights to bodily integrity and to some degree of privacy.

 

Male vs. Female Prisoners: Disparate Treatment

Historically, incarcerated women have been treated less well than men while their gender-specific needs have been ignored. (29) Until recently, most states maintained only one prison facility for women, often located a significant distance from a major urban center. As a result, many female prisoners were, and remain, geographically isolated from their children, as well as from legal and community resources. (30) Statistics reveal that more than 60 percent of all women are incarcerated more than one hundred miles from their child's place of residence, while under 9 percent are incarcerated within twenty miles. (31) As the female prison population has grown, a number of states have opened additional facilities to hold women prisoners, although these facilities have not necessarily eased their geographic isolation. (32) California, for example, opened three new prisons for women in the last ten years, all located in rural communities. Similarly, Illinois converted two of its men's prisons to co-correctional facilities. Both facilities are located even further from Cook County, which is home to almost 60 percent of the female prison population in the state, than Dwight, the original women's prison.

Because of their small numbers, women are more likely to be incarcerated in a maximum security facility, where women of all security levels are either commingled or separated by internal housing classifications. Men, in contrast, generally are assigned to prisons based on a variety of factors, including their criminal offense, prior criminal history, and psychological profile. Also, because of the greater number of male institutions, men stand a much better chance of being housed near their place of residence, thus making it easier for family, friends, and attorneys to visit. (33)

In comparison to prisons for men, rules within women's prisons tend to be greater in number and pettier in nature. Women prisoners are commonly cited for disciplinary offenses that are typically ignored within male institutions, and, while they are less violent than their male counterparts, they appear to receive a greater number of disciplinary citations for less serious infractions. (34) A study of Texas prisons conducted by Dorothy McClellan, an associate professor of criminal justice at Corpus Christi State University, found that female prisoners in the course of one year received almost five times as many citations as male prisoners. (35) McClellan found that the women were cited most commonly for offenses such as disobeying a direct order or violating a written or posted rule. (36) In fact, more than one in three citations for women over a one-year period were for violating written or posted rules. (37)

In addition, women in prison often do not receive comparable educational and vocational programs to those made available to men, and they also have fewer opportunities for job-training and work-release, less access to social services, fewer visitors, and "they are more likely to be treated like children." (38) Beginning in the late 1970s, incarcerated women began to sue state departments of corrections all over the United States to challenge such disparate treatment as a violation of the equal protection clause of the U.S. Constitution. (39) Over the years, incarcerated women have successfully challenged certain conditions of incarceration--in particular, the denial of minimum security facilities and their related privileges, (40) harsher parole standards, (41) and the transfer of women to other states to serve their sentences because their home state lacked a long-term prison facility for women. (42) On these issues, courts generally have ruled in the women's favor.

However, challenges to disparate educational and vocational programming have met with more mixed success. In contrast to the above issues, which tend to focus on a particular state, the absence of equal education and programming opportunities in women's prisons is an issue that cuts across state lines. When suits have been settled out of court, states have generally agreed to augment and improve prison programming for women. (43) But, when a department of corrections declines to settle a suit and the case goes to trial, incarcerated women have fared less well. Many courts reviewing such suits have permitted states a degree of discretion to develop programming for women, limited by the requirement that states provide women with "parity of treatment" rather than equal treatment to that of male prisoners. This test requires prison officials "to provide women inmates with treatment facilities that are substantially equivalent to those provided for men--i.e., equivalent in substance, if not in form--unless their actions . . . nonetheless bear a fair and substantial relationship to achievement of the State's correctional objectives." (44)

In 1994, in Klinger v. Department of Corrections, (45) the Eighth Circuit Court of Appeals reversed a district court decision directing the state of Nebraska to provide programs and services "substantially equivalent" to those offered men. In that case, the circuit court determined that inferior programming could be justified because women prisoners in the state were not "similarly situated" to incarcerated men. Similarly, in 1996 the U.S. Court of Appeals for the District of Columbia reversed a district court decision mandating additional programming for women prisoners because the appellate court found that the lower number of female prisoners made it reasonable that fewer programs were offered. (46) The circuit court's decision in Klinger and its doctrine of "parity of treatment" leave women prisoners with fewer resources and opportunities for personal improvement than male prisoners.

 

PERTINENT NATIONAL AND INTERNATIONAL LAW

 

U.S. Law

U.S. law clearly obligates both the federal and state governments to prohibit sexual misconduct. The U.S. Constitution prohibits cruel and unusual punishment--including official sexual misconduct--and guarantees a right to privacy. In addition, federal statutory law expressly criminalizes custodial sexual contact between prisoners and corrections staff. Unfortunately, however, these constitutional protections have rarely been applied for the benefit of women prisoners, and the Department of Justice (DOJ), which is authorized to protect prisoners' constitutional rights, has pursued cases of custodial sexual misconduct only to a very limited extent. (47) Moreover, federal statutory provisions barring custodial sexual contact between prisoners and corrections staff apply only to federal facilities, not state facilities, where the majority of prisoners in the United States are held. (48) Finally, while just over half of the states have enacted criminal provisions barring custodial sexual contact, these state laws have been, at best, erratically enforced and in some twenty-three states, simply do not exist.

The result is that even though there are, in theory, a variety of laws designed to protect female prisoners in the United States against custodial sexual misconduct, relatively few instances exist in which these protections have functioned successfully. This section describes such protections in detail and illustrates how inadequacies in the laws and limits to their enforcement contribute to the problem of sexual misconduct in U.S. women's prisons. This section also demonstrates that, although international human rights law offers additional protection against criminal sexual misconduct, the U.S. government is bound by but has not fully complied with these international norms as they relate to this abuse.

 

The U.S. Constitution

States are bound to uphold a prisoner's rights under the U.S. Constitution. If a state neglects that duty, the main method of enforcement is through litigation, primarily through lawsuits filed by prisoners alleging personal harm. Such a lawsuit may seek injunctive relief; that is, it may request the court to stop the state from engaging in the unconstitutional conduct. In addition, prisoners may seek financial compensation from government authorities for a violation of his or her constitutional rights. The two constitutional amendments most relevant to custodial sexual misconduct are the eighth, which bars cruel and unusual punishments, and the fourth, which prohibits unreasonable searches and seizures.

 

The Eighth Amendment

The Eighth Amendment to the U.S. Constitution bars cruel and unusual punishments. The Supreme Court has ruled that the provision prohibits "only the unnecessary and wanton infliction of pain." (49) This prohibition has been given content through judicial interpretation. To prove an Eighth Amendment violation, plaintiffs must prove not only an objective injury, either physical or otherwise, but also subjective intent on the part of authorities to cause that injury. In terms of objective injury, the pain must be sufficiently serious such that it violates contemporary standards of decency. (50) In addition, the responsible prison official must have had a "sufficiently culpable state of mind." (51) The standard for "sufficiently culpable" differs depending on whether the suit alleges excessive physical force or abusive conditions of incarceration. To receive redress under the Eighth Amendment for excessive physical force, a prisoner must prove that a prison official or officials acted "maliciously and sadistically." (52) To challenge abusive conditions of incarceration, a prisoner must demonstrate that prison officials acted with "deliberate indifference" in subjecting her to such conditions. (53)

A number of federal courts have examined the protections provided by the Eighth Amendment in the context of sexual abuse. In Farmer v. Brennan, the Supreme Court ruled that a prison official violates the Eighth Amendment if, acting with deliberate indifference, he exposes a prisoner to substantial risk of sexual assault. (54) The court found in Farmer that sexual abuse "serves no legitimate penological objective." In 1993 in Jordan v. Gardner, the Ninth Circuit found that in light of the fact that 85 percent of the women prisoners in the Washington Corrections Center for Women had experienced sexual or physical abuse, pat searches conducted by male officers violated the Eighth Amendment's prohibition on cruel and unusual punishment. (55) In addition, two recent cases in the District of Columbia have ruled that sexual contact between prison officials and prisoners violates the Eighth Amendment. (56)

 

The Fourth Amendment

In addition to providing protection against custodial sexual abuse, the U.S. Constitution also provides a right to privacy through the Fourth Amendment. The Fourth Amendment states in relevant part, "the right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." (57) While the Supreme Court has stated that prisoners should be accorded those rights that are not inconsistent with the legitimate objectives of incarceration, the actual scope of prisoners' right to privacy has not yet been established by the Supreme Court. Two Supreme Court cases have examined the right to privacy for incarcerated persons. The first, Bell v. Wolfish, (58) found that body cavity searches after contact visits were reasonable because of security concerns but also stated that convicted prisoners do not forfeit all constitutional protections by reason of confinement. (59) The second relevant case, Hudson v. Palmer, (60) held that prisoners do not have a reasonable expectation of privacy in their cells but did not address whether prisoners retain a right to bodily privacy.

In fact, many lower federal courts have recognized this limited right to bodily privacy. Courts have upheld limitations on cross-gender frisks (61) and almost uniformly prohibited cross-gender strip searches. (62) Several courts have held that occasional or infrequent viewing of prisoners naked during showers or during body searches is acceptable when it occurs respectfully and in the least intrusive manner possible. (63) But the regular viewing of prisoners of the opposite sex who are engaged in personal activities, such as undressing, using the toilet facilities or showering, when not reasonably necessary, has been found to constitute a violation of the prisoners' right to bodily privacy. (64) Only rarely have courts refused to recognize a right to privacy at all. (65)

Despite court rulings upholding prisoners' limited right to bodily privacy, prison authorities in the states we visited have largely neglected to establish clear guidelines and procedures to protect this right. At the same time, male guards constitute a significant percentage of the officers in the women's prisons we investigated, and their presence in women's prisons without such guidelines often has limited prisoners' ability to maintain their privacy rights. Moreover, even in those states where policies upholding prisoners' right to bodily privacy do exist, they are routinely violated. As a result, female prisoners also suffer inappropriate searches and visual surveillance by guards, frequently accompanied by lewd remarks and gestures.

 

U.S. Department of Justice

The U.S. Constitution may be enforced by the U.S. Department of Justice (DOJ) acting under statutory authority. The DOJ may criminally prosecute a person "acting under the color of state law" (66) for violating a prisoner's constitutional rights, under Title 18, United States Code, Sections 241 and 242. (67) The DOJ also may investigate allegations of constitutional rights violations in a state's prisons under the Civil Rights of Institutionalized Persons Act (CRIPA) and sue a state civilly. In addition, the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) added Title 42, United States Code, Section 14141, under which the DOJ also may enforce the constitutional rights of prisoners through a civil suit. These statutes, however, are subject to prosecutorial discretion, and the DOJ has no affirmative obligation to act.

 

Criminal Enforcement: Title 18, U.S. Code, Sections 241 and 242

The evidentiary burden under Title 18, United States Code, Sections 241 and 242 makes it extremely difficult to convict someone under criminal law for violating a prisoner's constitutional rights. To convict a public official, the DOJ must not only prove beyond a reasonable doubt that a constitutional right has been violated, but also that the public official had the "specific intent" to deprive a prisoner of a constitutional right. (68) The specific intent requirement creates a substantial burden for the DOJ to meet because it must show that an official knowingly and willfully participated in violating a prisoner's constitutional right. (69)

One commentator has noted that the U.S. government has provided only limited resources for the prosecution of such suits. (70) During the Reagan and Bush administrations, the number of personnel and amount of money dedicated to investigating and prosecuting civil rights violations by law enforcement remained constant, as did the number of investigations, indictments, and convictions. Yet, at the same time, money allocated to law enforcement increased. According to Justice Department data, of approximately 11,000 complaints reviewed under these statutes, only sixty-five cases were filed for prosecution in 1994--half of 1 percent. (71) To our knowledge, no corrections officials in the states that we investigated are being criminally prosecuted for violating a woman prisoner's civil rights through sexual misconduct.

 

Civil Enforcement: CRIPA

The DOJ may also institute civil suits for abuses in state and local prisons which violate the civil rights of prisoners under the Civil Rights of Institutionalized Persons Act (CRIPA). (72) Congress passed CRIPA in 1980 to enable the federal government to investigate and pursue civil suits against state institutions that the U.S. attorney general suspects of violating constitutional rights. Prior to the enactment of CRIPA, the U.S. government had only limited authority to intervene in private lawsuits alleging a violation of constitutional rights inside state institutions. (73) Prior to suing a state under CRIPA, the DOJ must have "reasonable cause to believe" that a state institution engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" that violate the U.S. Constitution. Reasonable cause may be obtained through an investigation of a prison. According to the DOJ, it decides to investigate when it acquires a "sufficient body of information" to indicate the existence of abuses that may rise to the level of a constitutional violation. (74) The DOJ receives information from a variety of sources, including individual prisoners, public interest and defense attorneys, corrections staff, and politicians. The DOJ receives very few complaints about sexual misconduct directly from women prisoners; rather, private attorneys relay the majority of such complaints. (75) Although the DOJ regularly receives prisoner complaints, it maintains no system for recording individual complaints, nor does it monitor the number of complaints concerning any particular institution or type of problem.

Once the DOJ decides to investigate, it must first file a letter with the state and the prison's director stating its intention to investigate and giving state officials seven days notice. In practice, we were told, the time between giving notice and visiting a facility often exceeds seven days for logistical reasons. (76) During an investigation, DOJ investigators--attorneys with the DOJ and consultants--conduct personal interviews with prisoners, tour the facilities, and review documentation and institutional records to determine whether unconstitutional conditions exist. The DOJ takes the position that it has the authority under CRIPA to determine whether unconstitutional conditions exist, including the right to enter state prisons to examine such conditions. (77) In 1994, one federal court in Michigan refused to issue a court order giving the DOJ access to investigate. (78) This decision, however, appears to be the exception rather than the rule. (79)

Once the on-site investigation is complete, the DOJ must issue a letter to the state which summarizes its findings and sets forth the minimum steps necessary to rectify any unconstitutional conditions found. Under CRIPA, forty-nine days after this letter is received by the state, the DOJ may sue the state to remedy the constitutional violations. The U.S. attorney general must personally sign the complaint and, according to DOJ representatives, all possibility of a settlement must be exhausted. As a result, suits are generally filed well after this forty-nine-day period has passed. The DOJ told us that CRIPA contemplates that the state and the DOJ will attempt an amicable resolution of the problem and that many cases are, in fact, resolved through negotiated settlements and consent decrees. (80)

The DOJ is currently exercising its authority under CRIPA to examine conditions in Michigan's women prisons. (81) In June 1994, the DOJ notified Michigan Governor John Engler of its intent to investigate allegations of sexual abuse and other constitutional violations in Michigan's two women's prisons, Scott Correctional Facility and Florence Crane Correctional Facility. As stated above, Michigan declined to give the DOJ investigators access to the prison. When the DOJ filed suit to compel access, a district court judge refused to issue a temporary restraining order requiring that access be granted. (82) The state subsequently permitted DOJ attorneys to interview prisoners during regular visiting hours and in a nonconfidential setting, but denied the DOJ permission to tour the prisons. (83)

Following these interviews the assistant U.S. attorney general, Deval Patrick, sent a letter to Governor Engler setting forth the DOJ's findings. (84) The DOJ found:

 

[T]he sexual abuse of women inmates 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 inmates violates their constitutional rights. (85)

 

The letter recommended remedies to resolve these constitutional violations. (86) To our knowledge, the Michigan Department of Corrections has taken no steps to adopt the recommended measures. Although the mandatory forty-nine-day waiting period has long since elapsed, no suit has been filed, and the DOJ maintains that Michigan is still "under investigation." (87)

 

Civil Enforcement: Title 42, U.S. Code, Section 14141

The Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) added another statute under which the DOJ may enforce the constitutional rights of prisoners. This statute, codified as Title 42, United States Code, Section 14141, states that it is unlawful for any governmental authority or person acting on behalf of any governmental authority

 

to engage in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. (88)

 

The DOJ may sue for declaratory and equitable relief if there is reasonable cause to believe that such a pattern or practice exists. Because the law was enacted recently, its exact scope remains unclear. However, some indications as to its potential application to custodial sexual misconduct are available. The DOJ cited the statute in its findings letter to Michigan Gov. John Engler and stated that, in addition to CRIPA, "the pattern or practice of sexual abuse of women inmates by guards violates [Section 14141]." (89)

The law appears to require a lower burden of proof to challenge abusive treatment by law enforcement officials than CRIPA. CRIPA requires showing a pattern or practice of "egregious or flagrant conditions" causing grievous harm before the DOJ may file suit. By contrast, the new statute does not require that the "pattern or practice of conduct" be "flagrant and egregious," only that it deprive a person of her constitutional rights or rights secured under federal law. In addition, the DOJ may sue under Section 14141 without extensive prior consultation with the relevant department of corrections, as required under CRIPA.







 

Prison Litigation Reform Act

In April 1996 President Clinton signed the Prison Litigation Reform Act (PLRA) into law as part of the Balanced Budget Down Payment Act II of 1996. (90) PLRA dramatically limits the ability of individuals, nongovernmental organizations, and even the Department of Justice to challenge abusive prison conditions through litigation. PLRA invalidates any settlement by the parties to such litigation that does not include an explicit finding or statement that the conditions challenged in the lawsuit violate a federal statute or the constitution. Because prison authorities never want to admit such violations in the consent decrees which frequently settle litigation without trial, such findings are extremely rare. Requiring such findings will make it difficult for parties to reach a settlement in any future prison reform suits, particularly because they would render correctional officials vulnerable to private civil suits. Consequently, most cases are likely to be pursued through a costly and time-consuming trial stage. Further, PLRA arbitrarily terminates any court order against unlawful prison conditions or practices after two years, regardless of the degree of compliance; this is often an unreasonably short time in which to achieve any meaningful change in the way a prison is operated. Thus, a new trial will usually have to be held in order to make a new finding that the old problems persist. The PLRA also restricts court-granted attorneys' fees, the main income for prisoners' rights attorneys. Such restrictions are clearly likely to curtail prison reform litigation. Finally, PLRA severely limits the authority of federal courts to assign judicial officers to oversee prison reform, a key tool for implementing remedial court orders.

PLRA has already begun to affect prison reform efforts. According to Associate Attorney General John Schmidt, the DOJ is engaging in an ill-advised review of all outstanding consent decrees to establish whether they should be terminated under PLRA, regardless of whether the state department of corrections has yet filed any such request. (91) Several municipalities have filed to have their consent decrees overturned, (92) and consent decrees in New York City (governing jails) and in South Carolina were terminated under PLRA, (93) pending appeal. In addition, in the District of Columbia the U.S. Court of Appeals recently remanded the issue of general living conditions and fire safety for female prisoners to the district court to be decided in light of PLRA. (94)

 

Sexual Contact in Custody: Federal and State Law

The federal government and a fair number of states have criminalized sexual intercourse or sexual contact with a prisoner by a prison employee. Under Title 18, United States Code, Section 2241, it is a felony offense, classified as aggravated sexual abuse, to knowingly cause a person in a federal prison to engage in sexual intercourse by using or threatening the use of force. This offense carries a sentence of imprisonment for any term of years or life. Under Title 18, United States Code, Section 2243 it is also a criminal offense, classified as sexual abuse of a minor or ward, for a person with "custodial, supervisory, or disciplinary" authority to engage in sexual intercourse with or to touch sexually a prisoner in a federal prison. (95) The possible term of imprisonment for this offense is up to one year for sexual intercourse and six months for sexual touching. The only defense specified for this crime is for the defendant to prove that he is married to the victim. These provisions apply only to federal prisons and cannot be applied against corrections officers in state prisons.

The Model Penal Code (MPC), (96) a suggested framework for state penal laws, includes a provision criminalizing both sexual intercourse with and sexual touching of a prisoner by prison staff. Although the MPC is in many respects outdated and in need of amendment, it does classify sexual intercourse with a prisoner as sexual abuse (97) and classifies sexual contact (98) as a form of sexual assault. However, both constitute only misdemeanor offenses under the MPC. The majority of states follow neither the federal law's nor the MPC's framework.

To our knowledge, twenty-seven states and the District of Columbia expressly criminalize sexual intercourse with or sexual touching of a prisoner by prison staff. (99) Five other states have laws that could be read to prohibit sexual contact with a prisoner but which do not refer specifically to incarceration or prison. (100) There are significant differences in the scope of these laws, the way they are categorized, the defenses allowed under them, and their accompanying penalties. (101) In some states, the crime of custodial sexual abuse is limited to sexual activity involving actual penetration; other states define it to include a broad range of sexual acts. In addition, the classification of the offense of custodial sexual contact varies greatly from state to state. Oklahoma, for example, classifies it as a form of rape, while many other states describe it as a form of sexual assault or sexual abuse. Significantly, some states, such as Georgia, Arkansas, and Florida, explicitly provide in their criminal statutes that consent is not a defense. By contrast, in a small number of other states, coercion is specifically required. Further, in three states--Arizona, Nevada, and Delaware--the prisoner is also guilty of a crime if the two are found to have engaged in sexual activity. (102) In the view of Human Rights Watch, whatever penological interests may be served by laws that penalize the prisoner for sexual contact with a corrections employee are outweighed by the deterrent effect such punishments will have on the reporting of custodial sexual abuse by prisoners. In addition, while Human Rights Watch does not oppose punishment for prisoners who knowingly submit false allegations of sexual misconduct, such punishment should be used sparingly and only in those instances in which the false report was malicious or manifestly in bad faith.

When we began this investigation, only two of the states that we visited, Michigan and Georgia, had provisions in their penal codes criminalizing sexual contact with a prisoner, and those two states categorize the crime quite differently. While Michigan classifies all sexual contact with a prisoner as a high misdemeanor offense under its rape law, in Georgia the prohibition against sexual contact with prisoners is not contained in the state's rape law but is defined as the distinct felony of sexual assault. Georgia's law does not differentiate between touching and intercourse. The District of Columbia enacted a provision in December 1994 making both sexual intercourse and sexual contact with a prisoner a form of "sexual abuse." Both are felonies. (103) In New York, a bill passed by the New York state legislature and signed by Gov. George Pataki on July 2, 1996 criminalized all sexual contact between a corrections employee and a prisoner. (104) California passed a bill in 1994 that prohibits all sexual intercourse in custody between corrections staff and prisoners--the first violation of this prohibition is a misdemeanor; any subsequent violation is a felony. Illinois has no such law.

As the above summary suggests, existing federal and state laws regarding sexual contact in custody--both intercourse and touching--provide a hodgepodge of often inadequate and inconsistent protections against sexual intercourse or sexual touching between an officer and a prisoner. The absence of appropriate, clear and consistent federal and state legal prohibitions on sexual intercourse and other forms of sexual contact only contributes to the prevalence of such abuse in women's prisons across the United States and the failure adequately to prosecute it. Legal reform is therefore of utmost importance if custodial sexual abuse in U.S. prisons is to be successfully eliminated.

Accordingly, Human Rights Watch supports legislative changes in state rape and sexual assault laws to recognize that a correctional officer who engages in sexual relations with a prisoner is committing a serious crime. Where sexual intercourse or touching is accompanied by the overt use or threat of force, retribution, or coercion, it constitutes rape or sexual assault and should be considered a felony offense.

In many instances, the use of force by correctional staff to secure sexual relations with prisoners can take the form of the promise or provision of goods or other non-material benefits. Because of the restricted nature of the prison environment, promises of privileges or goods which the corrections officers are authorized to withhold or supply can carry with them actual or implied threats of deprivation. When correctional employees abuse their authority in this way, it should be understood as a form of pressuring the prisoner to engage in sexual relations and should be prosecuted as rape or sexual assault.

In other cases, correctional officers may offer goods or privileges but without any actual or perceived threat to the prisoner. This conduct should still be punished more severely than in those cases in which no rewards are offered or bestowed at all. This stiffer penalty reflects a recognition that prisoners have limited resources and privileges, and thus the promise of benefits always carries special weight. These cases, in which the provision or promise of benefits or goods in exchange for sexual relations was not overtly or, by implication, coercive, nor was it understood by the prisoner as such, should be prosecuted as felonious sexual abuse.

In still other cases, guards engage in sexual intercourse or touching with prisoners absent force, coercion or the exchange of material goods or privileges. Despite the lack of overt or implied force or coercion or of any type of exchange, this conduct should still be considered a criminal sexual act. Any person with custodial power over another has enormous authority; within the confines of a prison, that authority is nearly absolute. Officers have the power to influence everything from a prisoner's parole date, to her work assignment, to her access to essential goods and amenities, and they have a corresponding obligation to ensure that this power is never abused. Thus even in the absence of the implied or actual use of force or any exchange of privileges or goods, for an officer to step across the line and have sexual relations with a person in his custody is a gross violation of professional duty. This act may not constitute rape, sexual assault, or sexual abuse but should, at a minimum, be recognized as criminal sexual contact and be punishable as a felony. An inquiry into the victim's alleged consent to such conduct should be unnecessary to establish this breach of professional duty or any other crime of custodial sexual abuse. Rather, the focus should be on the degree of pressure exerted by the officer or other correctional employee to determine the seriousness of the offense.

 

Access to the Courts and Grievance Mechanisms

Under the U.S. Constitution, prisoners are guaranteed access to the courts to challenge their incarceration, prison conditions, or other abuses. The U.S. Supreme Court has held that the constitution requires that prisoners have access to either adequate law libraries or legal services to exercise their right of access to the courts. (105) However, the Supreme Court recently limited the right to legal assistance. The court held in Lewis v. Casey that a prisoner must prove that shortcomings in the law library or legal assistance program actually hindered her efforts to pursue a "nonfrivolous" legal claim. (106) The court also stated that delays of up to sixteen days in providing legal assistance or materials to prisoners segregated from the general population for disciplinary or security reasons, which were the product of regulations reasonably related to legitimate penological interests, were constitutional, even if such delays caused the prisoner actual injury. (107) Although Casey stated that such prisoners are usually the most dangerous and violent prisoners, (108) we found that women prisoners were often placed in administrative segregation for reporting custodial sexual misconduct. Thus, the holding in Casey could allow prison officials to prevent these women from pursuing legitimate legal claims based on this misconduct.

Lower federal courts, interpreting the constitutional right of access to the courts, have rejected as unconstitutional practices or procedures instituted by prison administrators that hinder or restrict open access. (109) Nor may prisoners be punished for allegations made in their court papers. (110) In addition, legal correspondence and legal papers are protected from censorship by prison administrators. While the Supreme Court has upheld rules that allow prison administrators to open and inspect correspondence to or from attorneys, such inspection must occur in the prisoner's presence. (111) Lower federal courts have interpreted the Supreme Court's ruling to mean that prison administrators should not read a prisoner's legal mail and that legal mail may not be withheld from a prisoner on the basis of its content. (112) The states we visited have incorporated such provisions into their administrative codes, policies, or directives governing legal correspondence but do not always respect such protections in practice. (113)

While access to the courts is a constitutionally guaranteed right, federal law permits and encourages state departments of corrections to enact grievance mechanisms to handle prisoner complaints outside the context of a lawsuit. These mechanisms are intended to respond to a broad array of complaints within the prison, ranging from problems receiving mail, to inaccuracies in a prisoner's account of a particular incident, to staff misconduct and abuse. States may, at their option, request to have their grievance procedure certified under CRIPA. (114)

Notwithstanding women prisoners' formally recognized right to complain of abuses, in every women's prison discussed in this report, we found routine violations of these basic due process protections with respect to complaints of sexual misconduct. No state we visited adequately ensures that female prisoners can speedily and effectively complain of such abuse with confidence that it will be impartially investigated and remedied and without fear that they will face retaliation or even punishment. International human rights law sets forth additional protections against and potential remedies for such problems, but unfortunately, as the next section details, U.S. noncompliance with these norms effectively denies women prisoners their full array of rights.

 

International Human Rights Law

As the above section suggests, U.S. state and federal laws do provide some important protection from custodial sexual misconduct. However, international human rights laws, by which the U.S. is also bound, provide some protections currently denied to prisoners under U.S. law. Unfortunately, in both law and practice, the U.S. often falls short of meeting its obligations to ensure that these protections are available to those who suffer such abuse. The United States has ratified the two principal international treaties that protect the human rights of prisoners: the International Covenant on Civil and Political Rights (ICCPR) in 1993 and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment and Punishment (Torture Convention) in 1994. The U.S. is also bound by the principles set forth in the Universal Declaration of Human Rights on torture and cruel, inhuman or degrading treatment or punishment, which have the weight of customary law. (115) In addition, the United Nations Standard Minimum Rules for the Treatment of Prisoners, (116) the Basic Principles for the Treatment of Prisoners, (117) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (118) provide authoritative guidance under international law for interpreting the more general rules of the ICCPR and Torture Convention. (119)

These international laws contain protections that clearly apply to custodial sexual abuse. Under the ICCPR and the Torture Convention, for example, state parties are obligated to ensure that no one is subjected to torture or to cruel, inhuman or degrading punishment and treatment. (120) These treaties and the Standard Minimum Rules for the Treatment of Prisoners further require states to ensure that those who engage in such abuse are appropriately punished and that individuals seeking to complain about such ill-treatment are provided with an effective remedy. Finally, Article 17 of the ICCPR protects all individuals against arbitrary interference with their privacy, and the Standard Minimum Rules specify that the privacy of female prisoners should be respected by male corrections staff.

The remainder of this section details the full scope of the U.S. obligations under international human rights law, the manner in which the U.S. is wrongfully attempting to limit these obligations or is failing to apply them, and the specific acts of custodial sexual misconduct to which the U.S. should ensure that the full scope of its international obligations are applied.

 

The United States' Non-Compliance

The U.S. government has ratified the ICCPR and the Torture Convention and thus is bound by the instruments. At the same ti me, however, the U.S. attempted to limits obligations under these treaties by attaching reservations, declarations, and understandings to both. (121) Several of these reservations, declarations, and understandings were designed to limit U.S. accountability under the treaties in ways that are extremely adverse, among other things, to the elimination of custodial sexual misconduct. In Human Rights Watch's view, as discussed below, the U.S. reservations and declarations in this regard are both politically ill-conceived and legally indefensible. Accordingly, we hold the U.S. to the full scope of the relevant international obligations.

Human Rights Watch takes particular issue with the fact that in ratifying the ICCPR and Torture Convention, the United States declared the provisions of both treaties to be "non-self-executing;" that is, without enabling legislation, they could not be relied upon to bring suit in U.S. courts. The United States then failed to adopt any enabling legislation to remedy this shortcoming. If the U.S. retains the non-self-executing declarations and fails to adopt legislation, it effectively denies individuals the right to sue the government for noncompliance with these treaties. (122)

The U.S. government justifies the lack of such legislation by asserting that existing state and federal law adequately protect against violations of the treaty. Thus far, the U.S. has not enacted legislation to implement the provisions of the ICCPR, and the only legislation enacted to implement the Torture Convention allows individuals who claim that they were tortured outside the United States to file suit in U.S. courts. (123) According to an internal State Department memorandum, the U.S. government believes that no further implementing legislation is necessary to allow individuals tortured within the U.S. to file suit under the Torture Convention because all fifty U.S. states already prohibit torture under their criminal statutes. But this rationale is inadequate to meet U.S. obligations under international human rights law. The State Department view presupposes that state legal systems are enforcing prohibitions on torture and other cruel, inhuman, or degrading treatment or punishment, when, as this report demonstrates, some states are not. In such circumstances, the federal government has a duty to enforce the prohibition against these acts both by pressuring state prosecutorial authorities to pursue such cases and by creating a separate federal crime to ensure that the failure of states to enforce these protections does not leave victims of such abuse without any federal recourse.

Moreover, to the extent that state or federal law defines torture, for example, more narrowly than does international law, individuals should be able to invoke the broader definition of torture available under international law to attack actions not prohibited by the narrower definition of torture under the state or federal law. For example, the existing U.S. implementing legislation regarding the Torture Convention defines torture much more restrictively than does international law. The Torture Convention defines one element of torture as causing "severe mental pain or suffering." The U.S. legislation, however, recognizes only mental suffering that is prolonged and that results from one of four things--intentional or threatened harm, administration of "mind-altering substances," threat of imminent death, or threat that another person will be killed or physically harmed. (124) The U.S. legislation thus recognizes as torture only those acts that meet additional requirements not found in the international standard. This definition of torture limits the applicability of the Torture Convention and denies the treaty's broader protections to individuals who have suffered acts that, under the internationally recognized definition, would constitute torture.

Human Rights Watch is equally concerned that in ratifying the ICCPR, the U.S. government attempted, through its reservation to Article 7 prohibiting torture or cruel, inhuman, or degrading treatment, to limit the treaty's applicability to only the eight amendment, which addresses exclusively cruel and unusual punishments. As a consequence, individuals that suffer acts that Article 7 of the ICCPR prohibits but that have not been recognized as violations of the U.S. Constitution, cannot claim the broader protection of the treaty and may thus be left with no recourse whatsoever. Although much of the sexual misconduct discussed in this report is arguably prohibited by the U.S. Constitution as cruel and unusual punishments, not all of it is encompassed by this protection. Thus, acts of torture or cruel and inhuman punishment that do not meet the eighth amendment's stringent intent requirements--whereby, as discussed above in greater detail, prison officials are culpable only if they acted maliciously and sadistically--may not be covered. Moreover, the U.S. government itself has stated that degrading treatment--clearly prohibited by the ICCPR and the Torture Convention--is "probably not . . . prohibited by the U.S. Constitution." (125)

While international law does permit governments to make reservations to international treaties, such reservations cannot be incompatible with the object and purpose of the treaty. (126) The view of Human Rights Watch that the U.S. reservations and declarations discussed above are in fact incompatible, is supported by comments of the U.N. Human Rights Committee, which has responsibility for interpreting and monitoring compliance with the ICCPR. In a General Comment, the committee stated that countries must not ratify a treaty with exceptions "designed to remove [guarantees to provide the necessary framework for securing the rights in the ICCPR]." (127) The U.S. reservations have also been challenged by several other states parties to the treaties.

The U.S. reservation to Article 7--limiting its scope to acts already prohibited by U.S. law--has been cited as incompatible with the object and purpose of the ICCPR by several governments, including Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden. (128) Since treaties have to be interpreted in good faith and in accordance with their plain meaning, the effect is not that the ratification of the treaty is invalid, but that the reservation is invalid. Therefore, Human Rights Watch holds the U.S. to be bound by the full scope of the right.

The Human Rights Committee has further asserted that reservations that effectively deprive individuals of the means to secure their rights are not acceptable. (129) The fact that the United States has declared the ICCPR and the Torture Convention to be non-self-executing and thus has denied individuals federal recourse to remedy human rights violations prohibited by these treaties that are not being remedied in state courts, effectively denies individuals the ability to challenge these violations in any court. Arguably then, the U.S. declaration effectively denies individuals access to the means by which they might secure the rights protected by the ICCPR. (130) As such, the declaration that the treaty is non-self-executing is incompatible with the object and purpose of the treaty. (131)

However, regardless of whether a treaty is self-executing, the president or executive branch is obligated to ensure that it is executed faithfully, because under the constitution international treaties are part of the supreme law of the land. Therefore, at a minimum, if the U.S. government is to live up to its international obligation to prevent and remedy custodial sexual misconduct, it should revise existing federal laws to comply with its international obligations under both the ICCPR and the Torture Convention, instruct law enforcement and other government bodies to act in conformity with the ratified treaties, monitor federal and state bodies for compliance with the treaty obligations, and sue state authorities for noncompliance. The U.S. Supreme Court has stated that U.S. domestic law should be construed by courts to avoid violations of the U.S. government's obligations under international law, including customary law. (132)

Moreover, the fifty states, although not themselves parties to international treaties, are obliged to obey federal law, which includes customary international law and all international treaties ratified by the U.S. Senate. (133) Where state practices or laws are inconsistent with international treaties acceded to by the U.S., the state must change such practices or laws, or the federal government must compel the state to comply with the international treaties. (134) The U.S. government itself acknowledged in an understanding to the ICCPR that the federal government would implement the ICCPR to "the extent that it exercises legislative and judicial jurisdiction over the matters," and that it would ensure that state and local authorities fulfill their obligations under the ICCPR in the areas over which they have jurisdiction. (135)

 

The Use of International Law as an Interpretative Guide

Custodial Sexual Misconduct as Torture and Cruel, Inhuman, and

Degrading Treatment

Most of the custodial sexual misconduct in this report constitutes either torture or cruel, inhuman, or degrading treatment as defined by international law. A number of instances of sexual intercourse between officers and prisoners in custody documented in this report involve prison staff members who use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse. These cases constitute rape and therefore, torture. (136) Prison staff have also used force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women's genitals or breasts. As the testimonies in this report demonstrate, these acts often involve a violent assault that causes severe physical and mental suffering. As such, they, too, amount to torture.

Other instances of sexual intercourse that we documented which do not amount to rape but constitute sexual abuse as defined above, may also constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. This is also true of sexual touching that amounts to sexual assault. Other forms of sexual misconduct that do not constitute rape or sexual assault or abuse, rise to neither the level of torture nor of cruel or inhuman treatment, but may be condemned as degrading treatment, that is, treatment that causes or is intended to cause gross humiliation or an insult to a person's dignity. (137) This includes inappropriate pat or strip searches and verbal harassment.

The manner in which strip searches and pat searches are conducted, while clearly infringing upon the privacy rights of prisoners, can also constitute a form of degrading treatment. The mere performance of a strip search or a pat search by a correctional officer for the purpose of controlling contraband is not, in and of itself, degrading treatment. For example, the use of close body searches for a valid purpose has been upheld under international law. (138) However, the fondling and groping of women in the course of a strip search or a pat search serves no penological purpose; it is extraneous to the search for contraband and unnecessarily invades a prisoner's physical integrity and humiliates her. Furthermore, the use of pat searches as a means of retaliation, and the targeting of specific women for such searches without due cause, also violates these principles and constitutes degrading treatment.

The prohibition on degrading treatment also extends to the use of demeaning language, where the employment of such language is intended to dehumanize and weaken an incarcerated person. (139) In the Greek case, the European Commission found that "psychological pressure designed to break the will" of prisoners, including verbal harassment and humiliation, was prohibited under Article 3 of the European Convention on Human Rights. It specifically relied on examples in which officials told prisoners, "you have excrement in your soul. . . . Your daughters are prostitutes." (140) While isolated name calling may not rise to the level of degrading treatment, a pattern of such language or the use of such language in combination with obscene gestures and physical advances may create an environment of pressure or harassment that leads to humiliation sufficient to constitute degrading treatment.

 

Custodial Sexual Misconduct: A Violation of the International Right to Privacy

In the same way that the U.S. government is accountable under international law for preventing torture and ill-treatment, it is also required to uphold prisoners' privacy rights as codified in the ICCPR and the Standard Minimum Rules. In fact, unlike the articles governing torture and ill-treatment, the U.S. government did not enter a reservation to Article 17 of the ICCPR with respect to the right to privacy other than the non-self-executing declaration that applied to all the substantive articles of the treaty. The U.S. government's decision not to enter any reservations with respect to this right in particular, suggests that the U.S. intends to comply fully with the ICCPR standard or, at least, that such standard is not understood to impose any obligation greater than that under current U.S. law.

The Human Rights Committee, which interprets the ICCPR, has spoken directly to the use of personal and body searches. In its General Comment 16 to Article 17, the committee stated:

 

So far as personal and body searches are concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body searches by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex. (141)

 

In hearings before the U.N. Human Rights Committee, the U.S. government has taken the position that it is substantially in compliance with the right to privacy as established by the ICCPR. The U.S. government told the Human Rights Committee that:

 

In order to protect the privacy of female inmates, only female officers are permitted to conduct strip searches or body cavity searches, except in cases of emergency situation. Male officers work in the women's housing units, but they are admonished to respect the inmates' privacy by not intentionally observing them in a state of undress. (142)

 

However, our investigation revealed that such protections quite often are not in place in the state prisons, and that in practice, norms regulating the role of male officers are not followed for both body searches and housing areas. With respect to the use of male guards to conduct strip searches, in particular, we find that the U.S. falls far short of ensuring the protections provided under international law. We found that strip searches often occur in the presence of male officers and that pat-frisks are conducted in an abusive manner by male guards. Moreover, Michigan and California explicitly permit all corrections officers to make random and unannounced searches of housing areas.

We affirm the Human Rights Committee's general comment opposing cross-gender strip searches as a necessary measure to protect the privacy of incarcerated women as well as their individual dignity and bodily integrity. Strip searches, except in extreme and limited cases of emergency, should only be conducted by corrections officers of the same sex as the prisoner and in a location where individuals of the opposite sex are not in a position to observe the search. To the extent possible, we also believe that pat searches should be carried out by corrections officers of the same sex. We recognize that pat searches are less invasive than strip searches, but evidence indicates that corrections officers have used such searches to grope women and violate their personal dignity and bodily integrity. Corrections officers of both sexes must be fully trained to conduct pat searches in a respectful and professional manner.

 


Custodial Sexual Misconduct and International Rights to an Effective Remedy

International law also obliges the United States to ensure that prisoners may raise complaints of ill-treatment, that such complaints are investigated promptly and impartially that abusers are punished, and that complainants are protected from retaliation or punishment. As with respect to the right of privacy, the U.S. did not reserve on any of these articles under either the ICCPR or the Torture Convention. Thus, the U.S. has indicated its willingness to comply fully with these protections. Unfortunately, U.S. practice with respect to guaranteeing an effective remedy in cases of custodial misconduct again falls far short of the international standards set forth in detail below.

Article 13 of the Torture Convention requires the United States to ensure that a person alleging she was tortured or ill-treated has the right to complain, (143) as does Article 3 of the ICCPR, which requires an effective remedy for all rights contained in the convention. As noted above, the authoritative Standard Minimum Rules provide a more detailed structure to protect this right and to ensure that prisoners are able to gain access to a complaint mechanism. Rule 35 mandates that prisoners receive written information about the "authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable [her] to understand [her] rights and [her] obligations." Rule 36 stresses the right of prisoners to raise a complaint to one of several individuals, including the director of a prison, a prison inspector or the central administration. (144) The Rule also provides that unless these complaints are "evidently frivolous or groundless," prison administrators must respond promptly and "without undue delay." The authoritative Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that prisoners "have the right to make a request or complaint regarding [their] treatment . . . to the authorities responsible for the administration of the place of detention and to higher authorities, and, when necessary, to appropriate authorities vested with reviewing or remedial powers." (145)

The ICCPR and Torture Convention, furthermore, obligate the U.S. to provide and ensure that certain remedies are available to those prisoners alleging acts of torture or cruel, inhuman or degrading treatment or punishment. The Human Rights Committee, the body officially charged with interpreting the ICCPR, has ruled that the prohibition on torture and cruel, inhuman, or degrading treatment or punishment in Article 7 carries with it a positive obligation for state parties to investigate complaints of ill-treatment effectively, punish those found guilty, and provide remedies to the victim, including compensation. (146) The Torture Convention explicitly sets forth these requirements in Article 12. (147) The Body of Principles also underscores the importance of these protections by imposing in Principle 7 an obligation on government agents to report allegations of misconduct and by directing governments to conduct impartial investigations when they receive such complaints. (148)

Each of the states we visited provides a grievance mechanism to prisoners. However, we found that obstacles often hinder the ability of prisoners to file complaints or to see them fully pursued. Prisoners do not always receive information about the grievance mechanism, and some women we interviewed were entirely unfamiliar with the grievance process. In addition, an informal stage included in the grievance process in several states we visited often discourages women from filing complaints and prevents their complaints from reaching appropriate higher authorities. The informal level is particularly problematic in cases of sexual misconduct because it requires the woman to confront her abuser, and in essence, request him to acknowledge that he has abused her and violated her rights before she can file a formal complaint. Women prisoners who understandably fear taking this step are thus effectively shut out of the grievance system and denied the right to raise their charge through the complaints procedure. We also found that official investigations of staff misconduct often were fraught with many of the same irregularities as the grievance process.

Provisions governing the right of prisoners to complain of misconduct and the duty of state officials to investigate such allegations frequently are accompanied by an obligation to protect complainants from retaliation and mistreatment. Article 13 of the Torture Convention provides that steps must be taken to protect the complainant and her witnesses from all ill-treatment or intimidation in retaliation for filing a complaint or providing information. Such protections are reiterated in the Body of Principles; Principle 33 emphasizes a prisoner's right to complain of mistreatment and explicitly requires that a complainant not "suffer prejudice" for making a complaint. Yet, in the U.S. women's prisons that we investigated, such retaliation--and in some cases, official punishment--was commonplace.

We found that many prisoners who raised allegations of staff sexual misconduct were placed in administrative segregation or protective custody. There is nothing in either U.N. resolutions or any international human rights convention providing for the physical separation of either the prisoner who raises a complaint of staff misconduct or her witnesses. Rather, international law recognizes that such segregation is often punitive. (149) Within the Standard Minimum Rules, segregation is addressed solely in terms of the punishment of prisoners and is viewed as a punitive measure. (150) International law also mandates that efforts be made to limit the application of solitary confinement, for whatever purpose. (151)

This does not mean, however, that segregation or solitary confinement per se, constitutes a violation of a prisoner's rights, in particular, since a state has a positive obligation to protect the bodily integrity of the prisoner. In the U.S. this protective, rather than punitive, practice is often termed "administrative segregation" or "protective custody." Unfortunately, in the women's prisons that we visited, we found that administrative segregation or protective custody is not only viewed as punitive by many prisoners, but, in fact, often is punitive. Such protective custody has in some cases amounted to solitary confinement. (Prisoners placed in administrative segregation or protective custody, who have committed no disciplinary offense, are subjected to the same treatment as prisoners serving disciplinary sentences.) To make matters worse, they are denied the basic protections that are available to those prisoners placed in segregation on disciplinary grounds.

Therefore, in our view, administrative segregation or protective custody is inherently punitive for prisoners who have filed a complaint of staff misconduct because it results in the physical separation of the prisoner from the general population and correspondingly results in a certain loss of freedom within the confines of the prison when the prisoner herself has done nothing wrong. Its use, therefore, should be restricted to circumstances when the prison administration has reasonable cause to believe that the prisoner's safety is in jeopardy, consistent with the international legal obligation to protect a prisoner's bodily integrity, or when a prisoner explicitly requests protective custody within prison, particularly since segregated custody on nondisciplinary grounds may be perceived as a repercussion for raising a complaint of staff mistreatment. The use of such segregated custody must be accompanied by procedural regulations that are at least as protective as those required for prisoners sentenced to segregation for disciplinary offenses since the prisoner has committed no offense. And, as much as possible, ordinary treatment and privileges should be maintained for prisoners in segregation for non-punitive purposes.

 

Training

One important method for preventing sexual misconduct is to provide appropriate training for guards. The Standard Minimum Rules mandate training for officers on how to carry out their professional duties. Rule 47(2) requires that all corrections personnel "be given training in their general and specific duties and be required to pass theoretical and practical tests." Rule 47(3) further specifies that prison staff maintain and improve their knowledge and professional capacity by attending training during their employment in prisons. Standard Minimum Rule 35(1) also calls for prisoners to be provided with written information about the regulations governing the treatment of prisoners, authorized methods of seeking such information and making complaints, and whatever else is necessary to enable her to understand her rights and obligations. If the prisoner is illiterate, such information must be provided orally.

Yet, in the prisons we investigated we found little voluntary effort by the departments of corrections to train corrections officials charged with guarding women in custody. For example, little, if any, information was provided concerning the impact of previous sexual abuse on incarcerated women. Security techniques, prisoner profiles, and other training materials are often based upon the model of a male prisoner. States inadequately train corrections officers working in women's prisons on the obligation to refrain from sexual contact, verbal degradation or privacy violations. The departments of corrections that did conduct training for guards with which we are familiar, Georgia and the District of Columbia, were both compelled to do so pursuant to court orders. The state of Michigan did initiate a training program that would include cross-gender guarding situations, but to our knowledge, it has yet to address the specific issue of custodial sexual contact.

In addition, according to our interviews, most women in prison were not informed of what constituted proper conduct by guards or staff and were unaware of the procedures for filing grievances and complaints. In our investigation, we found that the only women well-informed about these standards and procedures were those who had been in prison for a long time or who had received instruction from outside nongovernmental organizations--instruction provided when departments of corrections took the positive step of facilitating training for prisoners. Most notably, Brenda Smith of the National Women's Law Center conducts a voluntary training for women incarcerated in the District of Columbia. This four-month class occurs three times a year and provides information on issues from child custody, medical care, and reproductive health to sexual misconduct, dispute resolution, and plans for post-incarceration life. This series, according to Smith, has made the women more sophisticated about these issues and better able to resolve problems without external intervention. Nongovernmental organizations in the other states we visited also conducted training, but most were unable to get the access necessary for such a complete program.

 

CONCLUSION

 

Given the grave nature of custodial sexual misconduct described in this report, there is simply no excuse for the U.S. government to deny women in prison the full scope of protections against this abuse available to them under international law. Nor is it defensible in any way for the United States to argue, as it did in its first report to the U.N. committee responsible for overseeing compliance with the ICCPR that the problem of custodial sexual misconduct is addressed under U.S. law, "through staff training and through criminal statutes prohibiting such activity." (152)

Nothing could be further from the truth. In fact, the problem of sexual misconduct is not being adequately addressed under state administrative or criminal laws, and protections available at the federal level, while they cover much of the abuse discussed in this report, do not protect against it all. Human Rights Watch calls on the federal government, as a matter of some urgency, to recognize this fact and to take immediate steps to guarantee to women and all other persons incarcerated in the U.S. the full scope of rights available to them under international law.

 

Most U.S. department of corrections' regulations do not incorporate the United Nations standard that no male staff shall enter a women's institution unless accompanied by a woman. Nonetheless, the important underlying issue of sexual abuse is addressed



 

III. CALIFORNIA

 

California has the largest number of incarcerated women in the United States and the world's two largest women's prisons, the Central California Women's Facility and the recently opened Valley State Prison for Women, both in Chowchilla. Two lawsuits filed in 1995 alleging constitutional violations in California's prisons for women, one of which concerned sexual assault (153) and the other alleging inadequate medical care, (154) have led the California Department of Corrections (CDC) to take some action against individual employees when directly confronted with evidence of their misconduct. Overall, however, the CDC has failed to prevent sexual misconduct in its women's facilities, and such abuse is commonplace, in some instances amounting to sexual abuse, assault, or rape.

Our investigation, based on interviews with female prisoners, their attorneys, attorneys active on two civil suits, and sociologists familiar with the California prison system and the CDC, revealed serious flaws in the system's current pattern of response to sexual misconduct in its facilities. California has few administrative or, where appropriate, criminal protections against custodial sexual misconduct and fails to train male officers adequately concerning appropriate conduct or to counsel female prisoners about this issue. Moreover, the CDC procedures for reporting and investigating complaints of such abuse are inadequate, biased in favor of officers and often expose female prisoners to retaliation. Not until 1994 did California take the welcome step of criminalizing all sexual contact in custody.

Given California's steadily growing female prison population, it behooves the state to engage in substantial prison reform before the problem of sexual misconduct escalates. We strongly urge California to adopt substantive reforms in its prison rules and general practice relating to sexual misconduct that will ensure the reporting, effective investigation and, ultimately, punishment of custodial sexual misconduct. We also call on the CDC to make significant improvements in officer training and prisoner counseling with respect to this problem.



 

CONTEXT

 

Custodial Environment

At present, slightly over 50 percent of corrections officers within California's women's prisons are men. (155) This means that, day to day, female prisoners in California are supervised by male officers more often than by female officers. Yet, California has few effective guidelines for male guards working with female prisoners in women's prisons.

As noted above in the legal background section, Human Rights Watch does not oppose the presence of male guards in contact and supervisory positions in women's prisons per se. However, we are concerned that California has taken few steps to protect against the potential for sexual misconduct that arises out of this cross-gender guarding situation. In fact, we found that training for California corrections officers regarding security and contact with prisoners concentrates primarily on male prisoners. According to a 1995 report described in greater detail below, the only training provided for corrections officers of either sex assigned to work with women addresses the proper procedure for pat-searching women. (156)

Correctional authorities also fail to inform female prisoners about the risk of custodial sexual misconduct or the availability of mechanisms to report such misconduct should it occur. Yet most women enter prison ill-equipped to deal with the potential problem. A 1995 study found that an overwhelming percentage of women incarcerated in California experienced physical, sexual and emotional abuse prior to incarceration. (157) According to the study, 71 percent experienced physical abuse on an ongoing basis before the age of eighteen, while 62 percent reported ongoing physical abuse after the age of eighteen. Forty-one percent of incarcerated women reported being sexually abused before they turned eighteen, while 41 percent reported such abuse after the age of eighteen. This is a population largely unaccustomed to having recourse against abuse; all the more necessary, then, for the state to present the available means of recourse clearly and in an accessible fashion.

The potential for custodial sexual abuse in California is exacerbated by the rising female prison population and resultant overcrowding. California's female prison population increased by 450 percent between 1980 and 1993, a rate that significantly outpaced that of men. (158) By 1995, the women's population in California had risen to over 9,000 prisoners, compared to 1,316 in 1980, (159) and women now account for nearly 6.5 percent of the total California prison population. As of November 30, 1995, approximately 40 percent of women incarcerated in California state facilities were African American, and approximately 30 percent were Latina. (160) Nearly 55 percent were serving their first prison sentence. The majority of women within the California prison system are committed for nonviolent offenses; in fact, since 1982, the proportion of women imprisoned for violent offenses has decreased. (161) The war on drugs, in particular, has contributed to the rapid growth of the female prison population: one-third of all women in the California prisons are serving sentences for nonviolent drug offenses. Of these, most were convicted for offenses such as "possession" or "possession for sale." (162)

This burgeoning female prison population has led to serious overcrowding in the California Institution for Women (CIW), Central California Women's Facility (CCWF), and Northern California Women's Facility (NCWF), all three of which, as well as the California Rehabilitation Center (CRC), a drug treatment and rehabilitation facility, were operating at between 60 to almost 100 percent over capacity as of April 9, 1995. (163) The recently opened Valley State Prison for Women (VSPW) has reduced the pressure on the other prisons somewhat, but they continue to operate over capacity. Attorneys and volunteers told us that this overcrowding places a severe strain on prison resources and has reduced the correctional system's capacity to supervise the conduct of male officers with respect to female prisoners. (164)

Close to 80 percent of all women incarcerated in California are mothers who have at least two dependent children. (165) Nonetheless, most California women's prisons are located far from the major urban areas where most of the prisoners' children and families live. For instance, CIW is approximately five hours by bus from Los Angeles, the nearest city, and Chowchilla is similarly inaccessible. Further, the CDC has taken action specifically to limit visitation; it is considering requiring children to visit their incarcerated parents unsupervised. The accompanying adult already is refused admittance to a state prison in many cases, requiring the child to undergo a body search alone. (166) Moreover, California has recently decided to reduce attorneys' and volunteers' access to women prisoners for interviews and telephone contact. (167) We ourselves received cooperation from the CDC only after repeated requests for information. (168)

State Legal and Regulatory Framework

The state of California prohibits all sexual intercourse between corrections staff and prisoners. The first violation of this prohibition is a misdemeanor; any subsequent violation is a felony. Beyond this criminal prohibition, Title 15 of California's administrative code (also known as the Director's Rules), which governs the CDC and the treatment of prisoners, contains only a general and vague provision prohibiting corrections staff from engaging in "personal transactions" with prisoners, parolees or their relatives. (169) The administrative code does prohibit prisoners from engaging in sex, (170) but we were unable to learn from the CDC whether prisoners sexually involved with corrections staff, rather than with other prisoners, may be punished under this provision.

The CDC's operations manual, which reflects the Director's Rules for the CDC, states that employees should be suspended, or placed on administrative leave, "in most cases [where they are] subject to dismissal because they . . . have shown unacceptable familiarity with inmates." (171) But, exactly what constitutes "unacceptable familiarity" is nowhere explained. Thus, California's prison rules contain no clear definition of nor prohibitions on sexual misconduct, nor do they set forth the appropriate disciplinary sanctions for such conduct should it occur.

Despite the vagueness of the operations manual, at least one warden of a California women's prison has interpreted Title 15 clearly to prohibit any personal involvement by guards with prisoners. Teena Farmon, warden of CCWF, wrote in a memorandum to staff dated July 24, 1995, that the Director's Rules "are clear regarding expectations of staff. . .Anything other than authorized physical contact, authorized verbal or written communications, or involvement with any inmate/parolee or their family, is a violation of policies and procedures and in some cases can be a violation of the law." (172) In her memorandum, Farmon explicitly asserted that officers must not establish a personal relationship with a prisoner or provide personal favors or preferential treatment to any prisoner. In addition, Farmon required guards to inform supervisors if any of their colleagues were violating the rules. Farmon also stated that since CCWF opened in October 1990, eighteen employees have been fired because of "overfamiliarity" with prisoners and parolees. However, no independent prisoner advocates were able to confirm this figure.

California does expressly mandate that prisoners be treated humanely by prison staff. Title 15, Section 3004, of the state's administrative code establishes that "inmates have the right to be treated respectfully, impartially and fairly by all employees." With respect to verbal abuse in particular, the code goes on to provide, in Section 3391, that:

 

Employees shall be alert, courteous, and professional in their dealings with inmates . . . Inmates shall be addressed by their proper names and never by derogatory or slang reference . . . Employees shall not use indecent, abusive, profane, or otherwise improper language while on duty.

 

This express protection of prisoners' right not to be subjected to verbal degradation by officers is welcome and might serve as a model for other states that we visited, most of which do not possess such prohibitions. Unfortunately, it is rarely honored in practice within the California correctional system.

 

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 and customary law that is binding on the U.S. federal government as well as its constituent states. (173) The eighth amendment to the constitution, which bars cruel and unusual punishments, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from inappropriately viewing or strip searching female prisoners or conducting intrusive pat-frisks on female prisoners.

Constitutional protections for 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 victories through private litigation, particularly suits litigated by prisoners' rights such as the National Prison Project of the American Civil Liberties Union (ACLU). However, if certain stringent 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 protected under international 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 or Punishment, ratified in 1994. The ICCPR guarantees prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international bodies have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a particular purpose, such as obtaining information from a victim, punishing her, intimidating or 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 any particular purpose.

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. (174)

 

ABUSES (175)

 

The abuses discussed in this section occurred from 1990 through 1996. Our own investigation took place between July 1994 and November 1996. We found that custodial sexual misconduct in California includes rape, sexual assault, and criminal sexual contact. In addition, we found pervasive and constant violations of women's privacy and degrading language and treatment.

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

Prisoners in California are subjected to sexual misconduct in many different forms. It can involve sexual intercourse or inappropriate sexual touching between corrections staff (176) and prisoners, constant and highly sexualized verbal degradation of the prisoners, and unwarranted invasions of their privacy.

California has a history of inappropriate sexual contact between male officers and female prisoners in its women's prisons. In July 1990 the Orange County Register ran a series of investigative articles on CIW alleging rape, corruption, and negligent medical care and documenting retaliation against women and correctional employees who spoke out about such practices. According to the Register, Harold Delon Anderson, the son of the former CIW warden, Kathleen Anderson, was dismissed in October 1987 amid allegations that he had forced ten incarcerated women to submit to sexual relations with him. (177) Internal investigations and other documentation obtained by the Register indicated that Anderson forced some of the women into sexual relations repeatedly, over a period of months or years. Corrections staff reportedly discovered him on three separate instances in "compromising positions" with prisoners before any disciplinary action was taken. One female corrections officer who exposed Anderson's actions was allegedly threatened and harassed by coworkers. (178) At the time the article ran in the Register, the CDC had treated Anderson's behavior as a personnel matter and had not referred the case to the county prosecutor for a criminal investigation. (179)

Three years after the Register story, the state Commission on Female Inmate and Parolee Issues also raised concerns relevant to sexual misconduct in custody. (180) A report issued by the commission in 1995 found that the CDC had no policy for respecting the privacy rights of incarcerated women and that the only training the CDC provided for male correctional staff working with incarcerated women was procedural training on how to conduct appropriate body searches. (181) The commission recommended that several changes be instituted, among other things to protect prisoner privacy rights and train correctional staff about characteristics specific to incarcerated women. With respect to sexual misconduct in particular, the commission recommended:

 

The CDC should continue to aggressively conduct training regarding inappropriate sexual conduct toward female inmates. The CDC should maintain its policy of treating as a matter of utmost seriousness, any inmate grievance alleging a breach of these rules by its employees, and should respond through disciplinary channels and, where appropriate, through criminal sanctions. (182)

 

Our own investigation, conducted from April 1994 to November 1996, indicates that rape, sexual assault and abuse, and criminal sexual contact persist in California's women's prisons. Two women we interviewed alleged that male corrections officers raped or attempted to rape them. Uma M. told us that she first experienced a long period of harassment in late 1993 by a male corrections officer, including being observed by him while in the shower, being "cornered" by him in the prison laundry room, and having him hit her on her buttocks or grab her breasts as she walked by. On one occasion the guard, Officer G, left her a note under her pillow with his phone number and address on it. He also once went to her family's home and started asking questions about her personal life.

The situation with Officer G escalated until one day he entered Uma M.'s cell while her cellmates were at breakfast and raped her. She told us:

 

I felt fear real quick. I knew something was wrong and I didn't want to look. [Officer G] pulled the blanket. I sat up and tugged at the blanket. The other guard had the garbage can in the door and then the whole blanket came off. . . . He just tore my whole shirt. That's when he assaulted me sexually. [Officer H] yelled at [Officer G] to calm down and left. I was screaming, yelling and crying. Martha across the hall was banging on her window. While he was still in the room, I went into the shower. I felt dirty. (183)

 

According to Quintin N., another prisoner we interviewed, a young Hispanic woman approached her in the fall of 1994 to complain about Officer G. (184) Officer G allegedly told the young woman that he would "take care of her" and asked her whether "she likes a big chorizo [sausage]."

Rose S. told us that she was sexually assaulted by a corrections officer on her work assignment. (185) According to Rose S., Officer R began pressuring her for sex and making sexually explicit comments in early 1994 shortly after she arrived at the prison. Officer R would approach her on "the yard" [prison grounds] and ask her when she was going to lay out because "he wanted me to show him some skin." Then, when she was on the yard, she said, "He and two other officers would say things like, 'Let's go in and have a threesome.'" One day Rose S. arrived at her work assignment early and discovered Officer R alone. When she noticed that the supervising officer was not there, Officer R replied that he had arranged time for them to be alone. Rose S. wrote in a statement that Officer R:

 

got up off [the] couch. [He] went to the front door and locked it. Came back, turned the lights out and walked up to me, put his hand on my shoulders, and said, "Are you going to break me off some of that?" I told him, "No, I have only eleven [months] left, and I don't need any trouble." Then he unzipped his pants pulled out his penis, started playing with it, then he started [fondling] my breast. Then he said, "You are at least going to give me some head." I shoved him and told him no, got up off the desk and turned the lights on. By this time, there were other workers outside the door. One of the workers had seen me locked inside. [Officer R] told me, "Sit down in the chair and don't say anything," because he was not going to let any of them in, so I did as I was ordered but one of the workers, pushed her way in and . . . came straight back and saw me sitting in the chair. (186)

 

Rose S. told us that she later learned that another woman allegedly was raped by Officer R a year earlier. Officer R reportedly picked the other woman up in a prison vehicle and took her to a supply area where he forced her to perform oral sex on him.

In addition to the cases of rape and attempted rape, we also learned of cases involving sexual assault of prisoners by corrections staff. Staff of Legal Services for Prisoners with Children (LSPC), a San Francisco-based organization, told us that several women at CCWF have been sexually assaulted by a prison doctor. (187) This attorney told us that one prisoner had described being assaulted during a medical visit regarding a lump on her neck in August 1994. The doctor conducted a vaginal examination and, according to the prisoner, made remarks about how tight she was and how long it had been since she had sexual intercourse. A medical assistant was present during the exam, but she reportedly moved behind a screen and did nothing to stop the doctor. The prisoner stated that the doctor then "played with her" and touched her in a sexual way. He never examined the lump on her neck.

The same doctor reportedly forced another female prisoner, who had complained of stomach cramps, to get on all fours on the examining table and then gave her a prolonged and painful rectal examination. (188) In addition, LSPC also has received complaints about a male nurse on the CCWF prison medical staff. One woman, who has a disabling medical condition that leaves her physically unable to resist sexual assault, reported that the male nurse repeatedly entered her cell and at times, groped and fondled her. (189) Other times, he would make sexual and degrading comments. Such actions made the prisoner vividly recall her experiences of childhood sexual abuse. In 1996 another prisoner also complained to the prison officials that this same nurse was sexually assaulting her. She wore a hidden microphone that led to prison officials catching the nurse attempting to assault her. The nurse was reportedly removed from the premises immediately and is reportedly on administrative leave without pay while CDC investigates the situation. (190)

In 1995 the Post-Conviction Justice Project at the University of Southern California filed a lawsuit against the Protestant chaplain and his supervisors at the California Institute for Women. (191) The suit alleges that the chaplain sexually assaulted female prisoners, thus violating the eighth amendment's prohibition against cruel and unusual punishment. In addition, the suit asserts that women prisoners were afraid to worship with the chaplain and thus, their freedom of religion was infringed. Although some prisoners reported the sexual assaults to prison staff in October 1994, no action was taken against the chaplain until February 1996. At that time, subsequent to the filing of the lawsuit in October 1995, the chaplain was barred from the prison, but only after he reportedly assaulted another women. (192)

We found that, at times, sexual relations between officers and prisoners do not involve the officers' overt use or threat of force, punishment or retaliation. Instead, officers abuse their authority by offering prisoners otherwise unavailable goods and services if they submit to sexual demands. Women we interviewed told us that male corrections officers often use the promise of such favorable treatment to draw female prisoners into sexual relations. According to Rebecca Jurado, a law professor and attorney who has worked for many years with female prisoners in California, the women may see nothing out of the ordinary or abusive about this exchange. Given that a number of women prisoners' personal histories include sexual abuse, she told us many women often simply accept such practices as a condition or element of incarceration. (193)

Uma M. told us of a pattern on her hall, where one officer would "pop" [release] certain prisoners' doors while other prisoners were at breakfast. The prisoners would then meet the officer at his station or another location. She told us:

He would shut the lights down low and pop certain women's doors. One girl Jeanne F. used to go to the officer's room and get stuff. Or, she would go to the laundry room. Other days, he would pop another girl. (194)

 

Uma M.'s observations were supported by Ximena L., another prisoner, who reported similar conduct by other officers. She told us that the relationships often start in a familiar pattern: "They start calling them into the office or come on very nice. They give you ice [cubes], pop you out after hours. They give you an extra phone call." (195) In exchange for such favorable treatment, the prisoners provide sex.

According to women whom we interviewed, male officers in California target "like radar" younger female prisoners who are new to the prison system or unfamiliar with the prison environment. Nancy C. told us that the male officers often "pick on the first timers, it seems. They mess with newcomers." While in the receiving area (196) at CCWF, Nancy C. said she observed one male officer who "went through" three women on her unit over a period of approximately six months. According to Nancy C., who worked with one of these women, the officer:

 

would have things for her [the other prisoner] to do where she would have to go to a vacant room or the supply closet. It happened several times . . . The one girl was a little disoriented. The police was just being an opportunist and taking advantage of it. (197)

 

She believes the officer was subsequently transferred to a men's facility.

In some instances, prisoners engage in sexual contact with officers absent any overt coercion or exchange. Ximena L., who has been serving a long prison term, told us, "There are relationships going on. Some are consensual and some not. There have always been sexual relationships. The majority are not consensual. They are doing it for drugs and can't say no. Some are initiated by the girls." (198)

Susan R. has been incarcerated for several years. She told us that beginning in 1990, she became sexually involved with a corrections officer, primarily out of loneliness. She said:

 

I have no visits. No outside contacts whatsoever. So when a male figure shows you a little attention it made me feel special, worthy of something, someone . . . When he showed me attention, I jumped at it. I built this up in my mind. When I first saw him, I was attracted to him. He's no prize but for some reason I was attracted. He started joking, making catty remarks . . . I jumped at it. I wanted the attention. (199)

 

Susan R. said that she often stayed at her work assignment during dinner to be with him. Later, she said, when he was assigned to her housing unit, she had sexual relations with him in the laundry room, ice room, storage closet or the showers.

Patty T. told us that she became involved with an officer for many of the same reasons that motivated Susan R.--she was alone, separated from her family, and seeking care and attention. Patty T. described her situation. "I wasn't really close with others in prison. I worked and went to school and kept myself busy. I was just interested in getting out of prison." (200) She was drawn to an officer who supervised her work assignment and had a relationship with him that lasted over a year and a half. According to Patty T., "I totally initiated it. I went after him for a while. I worked the guard and finally he decided he would deal with me." The relationship ended when she became pregnant by the officer and he received a transfer to another facility. (201)

Unfortunately, prisoners who considered themselves to be equal partners in sexual relations with officers often later found that it was difficult to extricate themselves from the officers' control. Nancy C., a former prisoner who has served in both CIW and CCWF, told us that she was sexually involved with a corrections officer at CIW in the mid-1980s. She said the officer "was always bringing me stuff, cologne, money." She told us she had sexual intercourse with the corrections officer on two occasions, but met him several times, in her words, "to mess around." Ultimately, Nancy C. had difficulty getting away from the officer. After she refused to continue sexual relations, he persisted in his pattern of appearing outside her door. He reportedly wanted to meet her at the airport upon her release from prison.

 

Mistreatment of Prisoners Impregnated by Guards

Over the years, incarcerated women have become pregnant by California's corrections employees. These women, or those with knowledge about the pregnancy or about efforts to terminate the pregnancy, often are harassed and punished by prison officials. In early 1994 we learned that a prisoner at CIW was impregnated by a civilian employee and tried to terminate the pregnancy herself. The prisoner's attempt to abort came to the attention of prison officials and, in March 1994, three other women who reportedly had knowledge about the pregnancy and abortion attempt were sent to administrative segregation for extended periods. They were eventually released without charges.

Patty T., mentioned above, became pregnant as a result of a sexual relationship with a corrections officer in the mid-1980s. After learning she was pregnant, she indicated to the prison doctor that she wanted an abortion. Prison officials reportedly used Patty T.'s desire to have an abortion as a tool in their investigation to press her to reveal the identity of the man who impregnated her. The authorities waited approximately two months after she came forward before sending her out for the abortion. During the investigation, Patty T. was repeatedly questioned by high-ranking officers at the prison. She told us, describing their questioning:

 

They'd bring me into the office and ask how, when and who--even to the point of saying things about my son who was eleven or twelve years old. I had family visits and he could stay over. They were insinuating this was the only male I had come into contact with. (202)

 

She, however, was not willing to provide the officer's name to prison officials. She was placed in administrative segregation for two weeks after the abortion. After a hearing was held, she was released, and no charges were filed against her.

The following year, prison officials reportedly attempted to use Patty T.'s hopes of entering the Community Prisoner Mother Infant Care program again to pressure her to reveal the identity of the officer who had impregnated her. The Mother Infant Care program is an alternative sentencing program that allows a limited number of women who are mothers to serve their sentence in a residential community setting with their children. (203) A few days before a court hearing regarding the program, Patty T. was called into the administration offices and, she told us, "They went through it all over again. They said they wouldn't let me go . . . until I told them who the father was." (204)

 

Abusive and Degrading Language

We found that some male corrections officers disregard the California Administrative Code's provisions on humane treatment, described above, and employ sexually abusive and obscene language when speaking with or referring to prisoners. At times, such language is used as a prelude to groping and making physical advances toward the prisoners. Such language and conduct pervade the prison environment in California and reinforce among many women prisoners the belief that there are no regulations on how the corrections staff behaves toward them.

Patty T. told us that another officer who supervised her work assignment harassed and badgered her and other prisoners. (205) According to Patty T., "The police [corrections officer] who used to work there used to harass the women and say real nasty things. Like if they were ugly, he would tell them." The officer was also assigned to her housing unit for a time, during which he reportedly tried to watch her undress and made "little remarks." According to Patty T., women were permitted to hang towels over the windows in their cell doors when changing to allow for a certain amount of privacy. One day, the officer repeatedly pulled the towel down each time she hung it up. She told us, "Because I would not give him attention, he did things to upset me."

Women we interviewed said that female prisoners are often referred to as, and directly called, bitches, whores, sluts and prostitutes. Corrections officers at CCWF have reportedly announced over the loudspeaker, "If you want to get your dinner, you better get your asses over here" or, "All you bitches and whores get into your rooms." (206) Some male corrections officers perceive the women as prostitutes and persistently label them as such. Vanessa B. told us that corrections officers said things to her when she had family visits such as, "Have you visited your tricks?" or "One of your johns?" (207)

At times, degrading language and sexual innuendo are accompanied by offensive groping of women's bodies. Tammy P., a former prisoner, told us she was groped by an officer while incarcerated at Avenal State Prison (which no longer holds women). (208) Once, she was changing her tampon when she noticed that Officer A had followed her into the bathroom and was watching her. As Tammy P. turned to leave, Officer A reportedly grabbed her vagina and asked, "Do you think I could have a piece of that?" Officer A was also the corrections officer assigned to her work detail, where he propositioned women and commented on their bodies. According to Tammy P., "He'd come into the kitchen, at breakfast or lunch, and say things like. 'How big do you like 'em?' or, 'Is it big enough for you?' He did this all the time." At other times, he would come into the kitchen and grab his genitals, or tell the women, "You shouldn't bend over like that in front of me." As Tammy P. told us, "It was the way he looked at you, like he was undressing you." Other women on her shift reportedly filed grievances regarding his conduct, but no action apparently was taken to reprimand Officer A and his conduct continued unabated.

Degrading language is also prevalent at Valley State Prison for Women's (VSPW) Special Housing Unit. (209) One woman housed at VSPW wrote, "Because I am twenty pounds overweight, I am constantly harassed by certain male guards and called names. . . . I feel we should be treated with the same respect we must show the guards. We definitely are not shown that." (210) Guards there also specifically abuse those prisoners identified as lesbians.

Many of the prisoners are deeply disturbed by such degrading, sexual language and behavior. According to Vanessa B., "Nothing that you do that's positive and right is taken that way . . . If you look nice, they will try to humiliate you and make you feel less than human." Vanessa B. considers herself a positive role model for other prisoners and has served on the Warden's Advisory Committee (211) but finds it difficult to endure the badgering from correctional staff.

At CCWF, women's sanitary supplies often are rationed or distributed in ways that seem designed to humiliate women prisoners. Women in some units at CCWF are provided a limited ration of sanitary napkins, tampons and toilet paper bimonthly, regardless of need. (212) Under the policy, prisoners told us, additional supplies are not provided either when women run out or if they are locked out of their cells when they begin menstruating. Some corrections officers use the requests for sanitary supplies as an opportunity to denigrate women. According to Vanessa B., "They will throw it [the sanitary napkin] to you and say, 'Here's your surfboard,' or they will say, 'Use toilet paper.'" Male corrections officers have also reportedly told women who request additional supplies to "stuff toilet paper in your pants," "turn it over," or "recycle it." Women who requested toilet paper have been told to "use your muumuu" (213) or "use your shirt." Women in administrative segregation in VSPW who need extra sanitary napkins must request them, one at a time, from the mostly male guards. One woman reported that she had to wait until she had menstrual blood running down her leg before she could get a sanitary napkin. (214) In another reported case, male guards threw a packet of sanitary napkins onto the floor, in response to a request for sanitary napkins, and the prisoner had to "fish" for the packet by using a string, with which she was supposed to catch the packet and drag it along the floor into her cell. While she tried to get the napkin, the guards shouted encouragement and bet on whether she would be successful. (215)

 

Privacy Violations

As discussed in more detail in the legal background section of this report, prisoners retain an internationally protected right to privacy except when limitations on this right are demonstrably required by the nature of the prison environment. In addition, several U.S. courts, including the Ninth Circuit Court of Appeal, which has jurisdiction over California, have concluded that prisoners retain some right to bodily privacy. In particular courts in the Ninth Circuit have recognized that prisoners have a right not to be strip searched by officers of the opposite sex, except in cases of emergency, to be protected from routine inappropriate visual surveillance by officers of the opposite sex and, in case of female prisoners, not to be subjected to pat-frisks by male officers.

In 1981, in Bowling v. Enomoto, a male prisoner sued the CDC alleging his right to privacy was violated by the presence of female officers who often saw him undressing, showering, and using the toilet. (216) The court in Bowling directed the CDC to develop a procedure for protecting prisoner privacy similar to that employed in New York's women's prisons pursuant to Forts v. Ward. (217) In a suit with similar allegations filed a few years later, Grummett v. Rushen, (218) the Ninth Circuit Court of Appeals, while recognizing that the prisoners had a constitutional right to privacy, rejected the male prisoners' claims because the CDC already had in place definitions of the duties of female corrections officers designed to minimize viewing of male prisoners in a state of undress. (219) The court also rejected the prisoners' claim that pat-searches conducted by female officers violated their constitutional right to privacy under the Fourth Amendment.

However, the Ninth Circuit Court of Appeals later determined that the use of male corrections officers to pat-search female prisoners violates the eighth amendment to the U.S. Constitution. In Jordan v. Gardner, (220) women incarcerated in Washington State challenged the introduction of a policy that would have permitted male corrections officers to conduct pat-searches on female prisoners. The Ninth Circuit determined that in light of the women's history of abuse, pat-searches carried out by male officers violated the eighth amendment's prohibition on cruel and unusual punishment. Materials sent to us by the CDC indicate pat-searches are still governed by a provision in the Operations Manual drafted in 1989, which does not mandate same-sex pat-searches. (221)

Despite these rulings and clear international standards upholding prisoners' privacy rights, the 1995 Report of the California Commission on Female Inmates and Parolee Issues, mentioned at the start of this chapter, found that in California "in the case of issues such as female inmate privacy, the CDC has developed no policy at all." (222) Under California's administrative code, male corrections officers may not perform strip searches but are otherwise granted broad authority to enter prisoners' cells and living areas. (223) Corrections officers, in general, may conduct clothed searches of prisoners and perform unannounced, random inspections, including of a prisoner's cell and living area. (224) While "living area" is not defined, our interviews indicate that it is understood to include shower and toilet facilities. Title 15 also requires that strip searches should be conducted in a professional manner that avoids embarrassment and indignity to prisoners and that such searches should be conducted outside the view of others whenever possible. (225) Nonetheless, these rules leave too much to officer discretion with respect to the prisoner's right to privacy and create unnecessary opportunities for privacy-related sexual misconduct to occur.

 

Strip Searches

As stated above, California law prohibits male officers from conducting cross-gender strip searches. However, this protection is meaningless if strip searches are carried out by female officers while in the presence of male colleagues. Yet, we have received reports that women incarcerated at CCWF have been forced to strip and be searched in the presence of male corrections employees. Ellen Barry, of LSPC, told us that she received a letter from a prisoner in February 1995 alleging that women prisoners were required to submit to strip searches while in the receiving area at CCWF in a location where male corrections officers were working and while male transportation officers were passing through. The prisoner who contacted the attorney included her name and identification number and those of two other women prisoners who were stripped under the same conditions. She also attached a petition signed by over fifty women prisoners alleging they were stripped under similarly invasive conditions. One male guard, in particular, was mentioned by several women in CCWF as being known for standing in the doorway and leering during strip searches. (226) The prisoner also filed a grievance about the searches. In response, a sergeant at CCWF conceded that the searches occurred as described, but stated that male officers and employees were not obligated to alter their movements to avoid being present while the searches were conducted and, thus, that no misconduct occurred.

A woman placed in administrative segregation in VSPW wrote a prisoner advocacy organization that prior to taking a shower she had to strip naked, bend over at the waist and spread her cheeks, in the full view of all staff, including men and women. (227) In addition, she wrote that guards would make rude comments about prisoners' bodies during strip searches and at other times.

 

 

 

Inappropriate Visual Surveillance

A number of prisoners also told us they had been subjected to inappropriate visual surveillance by male officers. At CIW, current and former prisoners told us they are permitted to cover their cell windows when using the toilet or changing. (228) However, not all corrections officers respect this practice. Our interviews indicate that some male corrections officers have instructed women to leave their window clear while others have removed towels or other items used to cover the window. When Nancy C. was at CIW, she told us, a male corrections officer used to peek through her window to watch her or her cellmate change. In other cases, according to Ximena L., male officers enter the women's cells even when the window is covered.

At CCWF, the structure of the living units reportedly contributes to unnecessary viewing by male corrections officers. Prisoners told us that each living unit, which houses up to eight women, has a wide window that opens to the corridor. (229) Unlike at CIW, prisoners at CCWF told us they may not cover this window for short intervals while changing. Male officers, who are routinely stationed on the housing units, wander the corridors at all hours and do not always announce their presence. A large majority of officers in the CCWF housing units are men, and female prisoners sometimes go twenty-four hours without seeing a female officer. A number of women reported that male corrections officers enter living units while women are dressing or showering, on the pretense of conducting a search. At CCWF, male guards routinely watch women use the toilets and showers. Afterwards the guards make degrading remarks about the prisoners' bodies. (230) According to Olga G., "You are never sure when you will get walked in on." Vanessa B. told us:

 

When you take a shower, they'll come in and talk to you . . . When they walk down the hall, they can see you depending on your height through the window. They will stand outside your window or flash their lights, or they will come in and search the room while you are in the shower and tell you to come out. (231)

 

The shower doors are constructed to cover the body only partially, concealing the women from her shoulders to knees.

Women in VSPW are accorded virtually no bodily privacy in administrative segregation. If a female prisoner has to use the bathroom during her three-hour exercise period, she must use a toilet that is directly below the guard tower, which usually is staffed by a male guard. (232) Often, the woman must request toilet paper from this same guard. In addition, male guards regularly watch women prisoners shower. The showers are positioned such that all male guards have an unobstructed view of the women showering. The guards reportedly try to engage the women in conversation while they are showering, and if they fail, the guards often will make degrading comments about the women. (233) We have also received reports that female prisoners in VSPW often must receive their medical exams, including gynecological exams, in the presence of male guards. (234)






 

Avenal

Seven former prisoners sued the CDC for violations of privacy between December 1988 and March 1991. (235) The CDC opened two sections for women at Avenal, then a men's prison, on a temporary basis to alleviate overcrowding at CIW. Avenal was structured as an open dormitory environment with few physical or privacy barriers. Prior to their arrival, the only structural change was the installation of opaque screens along the walkways. These screens provided only limited protection--they were approximately three feet high, and were placed off the ground allowing for visibility from underneath. From certain areas in the facility, male corrections officers had an unobstructed view into the showers, enabling them to observe a woman's naked body from her neck to below her knee. Women's cubicles similarly offered limited protection from being viewed while naked--doors were not installed in the housing units of one section, and many of the doors were removed from housing units in the second section. Women could also be viewed while using the toilet. One common toilet facility abutted the guards' office, separated only by a large plate glass window. This gave the officers an unobstructed view of the women using the facilities. Paper was only irregularly put on the window to shield the toilets from viewing by the male officers. In another area, the women's toilets were visible from the officers' platform.

The overwhelming majority of officers at Avenal were men-- approximately 90 percent. These officers were directly counseled by the program administrator, one of whom was assigned to each yard, to enter and patrol regularly the showers, sleeping areas and toilets to check for any "misconduct." The program administrators rejected, "for security reasons," proposals to have officers announce their presence prior to entering an area. The women were not only subjected to constant viewing by male officers, but were also viewed by nonsecurity personnel and visitors to the prison on tours. On a number of occasions, such persons were brought through the women's yards even when the women were undressed or using the toilets.

Within this environment, women were exposed to constant physical observation and harassment by male staff. We interviewed two women formerly held at Avenal. According to Quintin N., at times officers would walk into the showers or "they would watch you change your Kotex or go to the bathroom. At times, they would come and talk to you when you were on the toilet." (236)

The privacy panels did little to conceal the women from the male correctional officers. According to Quintin N., the officers intentionally sat in certain locations so they could watch the women showering and used to play a game--"name those buns"--trying to identify a particular woman by looking at her naked buttocks. She also told us that when women tried to hang a towel to provide some privacy while dressing, officers would pull it down, smile and remark, "You know you can't do that."

Tammy P. supported Quintin N.'s observations. She told us, "I felt like I had no privacy, nowhere to go. I felt exposed at all times . . . I almost lost my mind." (237) The officers, she said, would walk through the sleeping areas at night and in the morning when women were dressing and undressing.

Conditions at Avenal were further exacerbated by the fact that the CDC issued extremely revealing nightgowns to the women imprisoned there. The gown, which we saw, had a low scoop neck, was cut to fit tightly against the body, and was virtually transparent. It did not reach the knees.

Both women we interviewed also experienced problems with abusive pat-frisks by male officers. Tammy P. told us, "They would use their palms. One guard would get real close, lean against you when he did the search. They all used their palms going over the breasts and through the crotch." (238) Quintin N., similarly, told us she was groped by an officer during a frisk. As she described it, "Officer E put his hands on me . . . At first I didn't believe it and just looked back at him. . . This kind of stuff went on together with everything." (239)

 

THE SYSTEM'S RESPONSE

 

The CDC told us that it investigates every allegation of sexual misconduct and refers reports of alleged felonies to the local District Attorney's Office. (240) According to the CDC, in 1994-95 it received only ten reports of sexual misconduct in its facilities, half of which were closed because of insufficient evidence. Of the remaining five reports, three resulted in firing of the abusive employees. Despite these welcome disciplinary actions, our investigation suggests that they address only a fraction of the sexual misconduct occurring in California's facilities. At present, the mechanisms for reporting and investigating such abuse are seriously flawed. In addition, potential complainants perceive that they could face retaliation and thus, are reluctant to come forward. Until these problems are addressed, it will be difficult fully to expose and eliminate sexual misconduct in California's prisons. Only one case was referred to the local District Attorney. (241)

 

Denial of an Effective Remedy

International human rights law obligates national governments to ensure that when prison abuses occur they can be reported and investigated without the complainant fearing undue punishment or retaliation. Moreover, in the United States, prisoners are guaranteed access to the courts to challenge prison conditions or other prison problems. (242)

 

Grievance Procedure

Under California's administrative code, prisoners may complain about "any departmental decision, action, condition or policy perceived by [the prisoner] as adversely affecting their welfare." (243) These complaints are known as 602s, the number on the grievance form that a prisoner must file. Both prisoners and attorneys observed, however, that in practice 602s are generally ineffective in addressing complaints of sexual misconduct by corrections officers. According to Professor Jurado, the grievance mechanism functions adequately for routine or clear-cut complaints regarding property or problems with a prisoner's account, but not for what she characterized as "interpersonal" issues. (244) Ximena L. also told us that the grievance procedure works well with technical things: "At the first level, you usually get some idiotic response. You usually need to get to [the second level] to get it fixed." But, she told us, if the grievance raises a problem with an institutional policy or sexual harassment, it generally will be denied.

Our interviews indicate that the grievance procedure is difficult for women to access. First, prisoners entering the system receive no training on how to use the procedure and many women do not know how to file a grievance. Some California prison administrators have inhibited or obstructed efforts by women prisoners to provide training or instructions to other prisoners through prison law libraries. The law librarian at one prison, for example, reportedly would not allow Quintin N. to make copies of the 602 form or of an information sheet that she prepared for the prisoners on how to file a grievance, despite a provision of Title 15 which states that "an inmate, parolee or other person may assist another inmate or parolee with preparation of an appeal unless the act of providing such assistance would create an unsafe or unmanageable situation." (245) Second, while Title 15 mandates that appeals forms be "readily available," this was not the case in at least one California prison that we visited.

The grievance process further requires corrections officers to participate willingly in the grievance process and to respond in a responsible and professional manner to a prisoner's complaint. (246) Officers do not, however, always respect the procedure. Prisoners we interviewed told us that some corrections officers, when presented with a 602 form, have simply thrown the grievance out and/or mocked the prisoner who filed it. According to Susan S.:

 

[Corrections officers] will tear it up and throw it in the garbage . . . Or, [they] will say, "Go ahead and 602 me because I know it won't go nowhere." Most 602s will get thrown in the garbage before you go away. It's a joke to them. (247)

 

California, like Michigan, requires the prisoner to speak with the offending staff member prior to filing a formal appeal. (248) This informal level is waived in limited circumstances, such as actions that the appeals coordinator determines cannot be resolved informally and alleged misconduct by a "departmental peace officer." (249) Misconduct and "departmental peace officer" are not defined. Even though incarcerated women may bypass this informal level, in Professor Jurado's experience and in the experience of other attorney advisors, the grievance eventually filters back to the officer. As a result, women feel threatened or afraid to lodge grievances because corrections officers ultimately will know that they complained. (250) The U.S. Department of Justice, in reviewing a similar requirement in the Michigan grievance procedure, stated that "this requirement has the purpose, intent or effect of intimidating the inmates and discouraging the filing of grievances." (251)

Even when women have filed grievances, they have often faced official bias against prisoner testimony. After the assault on Uma M. detailed in the section on rape and sexual assault above, she told us that she informed a prison investigator about Officer G's previous harassment, his visit to her family's home and his offer to bring her certain items. An investigation was subsequently initiated into Officer G's conduct. According to Uma M., the investigator opened her interview by asserting that she would not believe any charges of sexual misconduct, stating, "Do you know how many girls say they've been sexually harassed? What do you want, to go home early?"

This bias against prisoners has also manifested itself in prison officials' selective enforcement of grievance procedures. In one case we investigated, a sergeant did not respond to a prisoner's grievance concerning an inappropriate strip search mentioned above for nearly four weeks, more than three weeks beyond the statutorily mandated period for his response. The authorities nonetheless accepted his response. However, when the prisoner subsequently appealed the sergeant's response to the first level of review, the CCWF's appeals coordinator denied the appeal solely because it was received after the fifteen-day period set forth in Title 15. He never reached the merits of her complaint. (252) The appeals coordinator then denied a second grievance filed by the prisoner regarding the sergeant's initial delay in responding to her grievance on the basis that it was "not an appeal issue."

Corrections officials, in reviewing prisoner grievances, often use a prisoner's prior receipt of disciplinary tickets to deny her grievance or to argue that she is lying. This occurs even when the officer's conduct and his issuing the disciplinary ticket itself are at issue. In one grievance we reviewed, a prisoner reported an officer who, she alleged, pulled her into the guards' office and repeatedly called her a "bitch" and a "fucking bitch." According to the prisoner, the officer then handcuffed her and removed her from the unit. On appeal, CDC officials determined there was no merit to the prisoner's claim because the officer had placed her in administrative segregation following the alleged incident and because her "file [was] replete with misconduct reports which depict a serious pattern of misbehavior." In other words, because the officer disciplined the prisoner at the time of the incident and because she had received disciplinary tickets in the past, her allegation of wrongdoing was deemed meritless.

 

Investigations

In general, we found that CDC's investigative procedures are fairly ad hoc. Moreover, they often are punitive against the complainant, lack any pretense of confidentiality, are largely closed to outside monitors, including the complainants' attorneys, and often expose the prisoners to retaliation and, in some cases, punishment.

As mentioned in the background section above, international human rights law obligates the United States to investigate complaints of ill-treatment effectively. However, California's Title 15 neither specifies a mechanism for investigating allegations of staff misconduct nor indicates when an investigation is required. (253) Instead, the CDC's operations manual, which consists of internal guidelines and not law, governs investigations. (254) The operations manual indicates that allegations of employee misconduct should first be investigated by the Internal Affairs Division of the CDC as a prerequisite to disciplinary action against an employee. However, the manual does not identify what triggers an investigation into alleged staff misconduct or any procedures or time frame for the conduct of such inquiries. (255) We found that investigations are usually conducted at the institutional level by an investigator based at the prison in question. (256)

 

Lack of Confidentiality

Effective protection of the confidentiality, and hence safety, of complainants and witnesses is essential to the integrity of any grievance or investigative process. Absent such a guarantee, the fear of retaliation against complainants has a chilling effect on those who might report alleged sexual misconduct. In California, a woman's identity may initially be protected when corrections officials question an implicated officer, but her identity is not always concealed as the investigation progresses or once it concludes. From our interviews, it appears that some corrections officers under investigation for alleged sexual misconduct were provided with the name of the prisoner or prisoners during the course of the investigation. Provisions of the CDC's operations manual, which governs employee discipline, in fact provide that employees be given a copy of the investigation report, including a summary of the witnesses' statements and their full names, before any disciplinary action may be taken. This procedure is not problematic where an implicated officer has been suspended and is no longer in direct contact with a prisoner, but such precaution is not always taken. Thus, the revelation of the complainant's identity can expose her to the possibility of continued abuse.

Confidentiality is also jeopardized by a provision in Title 15 of the administrative code that encourages corrections officers to review a prisoner's central file "for assistance in better understanding the [prisoner]." (257) A prisoner's central file contains personal information regarding the prisoner, including her criminal and personal history, as well as copies of grievances and documents relating to her role in an investigation. While Title 15 counsels officers that the information is "private and privileged," the access, in and of itself, abrogates any privacy or privilege the prisoner may have with respect to this information. Title 15 also provides that the contents of a prisoner's central file "will not be the subject of banter between employees or between employees and the [prisoner] to whom it pertains or with other [prisoners]." (258) Our interviews indicate, however, that corrections officers have disregarded this provision and have exploited their knowledge of information contained in the central file to harass and badger prisoners.

Two women we interviewed reported that corrections officers knew things about previous investigations or grievances that could only be learned through their central files. This information was then used by the officer to harass the prisoners. According to Patty T., a correctional officer on her unit made a comment to her and her roommate about her pregnancy and the abortion she had undergone. (259) Quintin N. told us that she grew suspicious that officers were looking into her files when one or two began questioning her about her role in the Avenal litigation. She subsequently requested permission to see her central file and told us that she discovered that grievances and other information related to the Avenal lawsuit had tabs placed on them indicating that someone had reviewed her files and particularly her past complaints. (260)

In both Rose S.'s and Uma M.'s cases, other corrections officers also obtained information about the investigation. Rose S. remained at the prison during the investigation, and her participation became known because she was repeatedly interviewed and called to meet the prison investigator. (261) According to Uma M., officers at a second prison were aware of her role in the investigation into Officer G and made specific reference to Officer G's suspension. (262) Ximena L. made similar observations to us. She told us that it is "a very dangerous thing to do" to make a report of sexual misconduct against a corrections officer. Prisoners, she said, lacked someone to "run to," they are "without credibility, [without] people who will help [them] or believe in [them]." In her experience, "An awful lot of [women] just silently endure it . . . [They] keep quiet and serve out their term." (263)

 

Retaliation

The absence of confidentiality, both with respect to the employee when he holds a contact position over the prisoner and with respect to the prison population more generally, enhance the risk that complainants will face retaliatory actions without redress, despite Title 15's clear statement that "no reprisal shall be taken against an inmate . . . for filing an appeal." Our interviews indicate that women who have filed grievances and women who participate in investigations are harassed by corrections staff. According to Quintin N., "Most of the women here are afraid to file a 602 because they think they'll get in trouble. Most women here do not know the procedure and the cops [guards] will take reprisals." (264) Tammy M. resisted a friend's suggestion to come forward after Officer A groped her in the bathroom. "[M]y friend tried to get me to go tell. I wouldn't do it, out of fear. I envisioned them putting me in the hole [segregation]. People were thrown in the hole there all the time, for anything." (265) The officers fuel this fear. Ximena L. told us, "It is easy to intimidate those with no education or those with shorter sentences . . . People are very leery about raising allegations." (266)

Women who have assisted prison officials in investigating sexual misconduct have faced harassment and retaliation. Uma M. told us that after she alleged sexual misconduct, she was repeatedly harassed by staff as well as prisoners sympathetic to the staff. Corrections officers, she reported, repeatedly questioned her about her role in the investigation and called her out of her cell to tell her such things as, "You think that was bad, now you're in my unit. Wait until you see what we do with you here." Everyone, she said, knew she played a role in having Officer G suspended. The harassment from corrections officers continued even after she was transferred to a different facility. At the second prison two officers pulled her from her room, handcuffed her and took her into their office, where they proceeded to badger her. In an apparent reference to Officer G, they reportedly asked her whether she was going to get one of their colleagues suspended. (267)

Rose S. experienced harassment from other officers that she believes stemmed from the investigation into her allegation of attempted rape. Corrections officers allegedly searched her cell repeatedly and made snide remarks such as, "The best thing is to squash this." She told us, "Every day you hear it--'you rat,' 'you slut' . . . They are harassing me to the point where it's getting ridiculous." (268) The female prisoner at CCWF, who was allegedly assaulted by a male nurse, has also experienced harassment from other guards and her fellow prisoners. The harassment reportedly stemmed from the fact that she reported the guard's behavior even though they were both African American. (269)

Rebecca Jurado corroborated the prisoners' accounts of reprisal. She told us that the environment within the women's prisons serves as a strong deterrent to raising complaints and filing grievances, particularly about issues such as sexual misconduct. Since both corrections officers and prisoners appear to profit from the most pervasive form of this abuse--the exchange of sexual favors for preferential treatment, money or goods--they oppose anyone who challenges the status quo. This, Jurado told us, gives rise to a climate hostile to complaints of sexual misconduct. Prisoners who tell get a "snitch jacket" from officers and other prisoners--they are labeled and thereby isolated from the prison community. (270)

 

Abuse of Administrative Segregation

Efforts by California to remedy the lack of appropriate confidentiality in its grievance and investigatory procedures and to ensure that complainants will not be retaliated against will be of little value unless they are accompanied by the assurance that the state will not punish prisoners if they speak out. At present, no such assurance exists and, in fact, women who complain of sexual misconduct are often punished. Of particular concern to us is the placement of prisoners who report sexual misconduct in administrative segregation while an investigation is pending. In VSPW, according to Millard Murphy, a law professor at the University of California, Davis, many of the women in administrative segregation are there because they resisted pat searches that they perceived as sexually degrading. (271)

We also are concerned about reports of women who have complained about the medical staff at CCWF and were then placed in administrative segregation. (272) Title 15 of California's administrative code contains a vague provision which corrections officials exploit to segregate prisoners even when they have done no wrong. The provision states that a prisoner may be placed in administrative segregation if her "presence [in the general population] presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity." (273) Title 15 also provides that the prisoner may be held in administrative segregation for ten days without a hearing, and the prisoner receives a review of the segregation order every thirty days thereafter. There is no outside limit on the time spent in segregation. (274)

While administrative segregation is clearly intended as a legitimate means to isolate prisoners who pose a risk to others or who have violated the rules, this provision also has been used to isolate rule-abiding prisoners who have reported abuse by corrections employees. Moreover, Title 15 requires that the conditions of administrative segregation "approximate" those of the general population. However, we found that women housed in administrative segregation pending an investigation have been kept there for extensive periods of time and denied access to the telephone and visits with their attorneys. They were permitted to leave their rooms for shorter periods than those in general population and reported receiving inadequate and inedible food. Prisoners held in administrative segregation at CIW reported that there were rats and bugs in the cells and that the food arrived cold, with bird droppings in it. (275)

Carrie Hempel, an attorney and law professor, told us that one of her clients was kept in administrative segregation for over three months. (276) The prisoner was sent to administrative segregation after another prisoner, who was impregnated by a staff member, attempted to self-administer an abortion. Hempel's client was one of three prisoners placed in administrative segregation at the prison for allegedly having knowledge of the incident, while prison officials purportedly investigated. While in administrative segregation, the prisoner was not permitted to telephone an attorney. In addition, upon the prisoner's placement in administrative segregation, her personal property was confiscated and her space within the general population reassigned. At the time we spoke with Hempel, prison officials had returned only certain items to the prisoner and she was experiencing difficulties obtaining the rest. No charges were ever filed against Hempel's client, or the other two women, who both spent more than thirty days in segregation. The male staff member was reportedly suspended.

Uma M., who reported having been raped by an officer, was repeatedly placed in administrative segregation for long periods of time throughout the first half of 1994. According to Uma M., after she came forward, she was transferred to a second prison while officials at the first prison conducted an investigation. At this second prison, she was initially placed in the general population and then moved by an assistant warden to administrative segregation, where she was housed for over a month. She told us prison officials denied her privileges of the general population even though she was sent to administrative segregation "for the security of the institution" and not on a disciplinary offense. Uma M. was subsequently transferred a second time and once again placed in administrative segregation for nearly six weeks for the "security of the institution," again due to her role in the investigation at the first facility. (277)

This punitive use of administrative segregation during investigations strongly deters prisoners from bringing allegations of misconduct by correctional officers. Prisoners believe that if they come forward, they will be placed in segregation while the institution decides how to respond to the complaint. According to Ximena L., "People can't really come forward. If it's an allegation of substantial wrongdoing by an officer against a prisoner, you can count on going to jail [administrative segregation]."

 

Lack of Accountability to Prisoners and External Monitors

Improvements in California's response to prisoner complaints of sexual misconduct would be that much more likely, and effective, if they were adopted in cooperation with external, independent monitors, including prisoners' attorneys. At present, however, such external advocates have inadequate access to prison facilities and to prisoners, and are consulted infrequently, if at all, with respect to these issues. Moreover, significant barriers exist to prisoners' communication with those outside the system. Prisoners are permitted only one collect telephone call every two weeks unless they obtain special privileges through their work details or through the willingness of particular staff. Legal visits are also restricted to certain days and times, and legal calls are difficult to arrange. (278) When we contacted one prison to obtain information about the procedure for arranging legal visits, we were given the procedure but informed that we would have to give additional notice if we were with the American Civil Liberties Union (ACLU) and looking into medical care issues.

California enacted legislation in August 1994 to restrict prisoners' rights and their access to those outside the prisons even further. Under Title 15, a prisoner's visits may only be restricted "as is necessary for the reasonable security of the institution and safety of persons." (279) The legislation amended Section 2601 of the California Penal Code to grant prison officials broader authority to limit visits, allowing the denial of visitation if they determine that this would serve a "legitimate penological interest." (280) The provision appears to permit prison officials the same, broad discretion in denying legal as well as family visits. Although the language may be unconstitutional (plans to challenge it are underway), prior to a court ruling it could lead to severe limitations on the rights of prisoners to access the court.

Prisoners housed in administrative segregation are further limited in their ability to contact their attorneys. As mentioned above, according to Carrie Hempel, one of her clients was denied telephone calls completely after she was sent to administrative segregation and was forced to contact Hempel in writing. This delayed Hempel's efforts to pursue her client's case with prison officials. Hempel experienced even more difficulties when she attempted to visit her client. She told us that, contrary to Title 15, prison officials initially would allow her to see the prisoner only in a noncontact, nonconfidential setting. (281) Prison officials eventually granted the prisoner a confidential, noncontact visit only after she persisted and waited approximately two and one-half hours.

According to Hempel, who directs a legal clinic at the University of Southern California that provides legal representation to women at CIW, officials at the prison have not been open to meeting with clinic representatives. In contrast, prison officials at the Terminal Island men's prison had been receptive to the legal clinic and they were able to establish a good working relationship. (282)

California also has taken steps to reduce journalists' access to prisoners by prohibiting reporters from interviewing prisoners in the prison. (283) According to J.P. Tremblay, assistant secretary of the Youth and Adult Correctional Agency (an executive body), as of December 1995 the ban was a temporary measure to discourage the media glamorization of certain prisoners. The ban would be in force until new guidelines could be drafted that distinguished between "legitimate news and entertainment news." (284) However, when justifying the prohibition on reporters, Tremblay cited Vaughn Dortch, whose media exposure had been limited to recounting his experience of being scalded during a forced bath while in prison. This suggests that part of the ban's rationale was to prevent prisoners from publicizing certain prison conditions. On March 29, 1996, the CDC further restricted prisoners' ability to correspond confidentially with reporters by filing proposed revisions to prison regulations that would make the media ban permanent and allow the CDC to read prisoners' letters to reporters. (285) Tremblay stated the latter revision was designed to prevent prisoners from requesting help for escapes. (286) Prisoners may still call reporters on the phone, but such conversations are monitored randomly.

 

Impunity

One of the most troubling aspects of the CDC's failure to respond adequately to sexual misconduct is its consistent unwillingness adequately to discipline or punish correctional officers who engage in such abuse. As noted above, California does have a law criminalizing actual sexual misconduct in custody. However, according to the CDC's own figures, this only rarely results in referral for prosecution. Of the total of ten reported complaints of sexual misconduct in 1994-95, only one case was referred to the district attorney. (287)

Testimony we received from prisoners indicates that, in some cases, corrections officers and other employees allegedly involved in sexual relations with prisoners are suspended or moved to noncontact positions pending investigation. (288) Quintin N. provided us with the names of seven male officers--including Officers G and R--who were reportedly suspended from the prison where she was incarcerated amid, she believed, allegations of sexual misconduct. However, according to the testimony we received, although the officers are temporarily suspended, they often return to the facility after an investigation ends, or are transferred to another prison. Investigators reportedly told Rose S. that if she was transferred to another facility, Officer R would return to the prison.

We learned, moreover, that the CDC does not always respond promptly with disciplinary action. As mentioned above, in 1993 seven women formerly incarcerated at Avenal sued several corrections officers and the CDC for alleged violations of their constitutional rights. Some of these officers remained at Avenal after the women left; others, including Officer G, were transferred to CCWF. Once at CCWF, Officer G was suspended after he was reportedly discovered bringing women's lingerie and other contraband into the facility. Shortly after this incident, CDC settled the Avenal suit. However, an attorney representing the women knew of no disciplinary action taken against any of the corrections officers named in the suit. He told us the CDC "took pains not to admit any liability as part of the settlement." (289) In addition, to our knowledge, the doctor at CCWF, who reportedly sexually assaulted several women prisoners, continues to practice there.

 

RECOMMENDATIONS

 

I. Prohibiting Sex in Custody

A. California should enforce its law criminalizing all instances of sexual intercourse between prison staff and prisoners by investigating all reports of such incidents and prosecuting responsible prison staff to the full extent of the law.

B. The California Legislature also should amend Title 15 of the Administrative Code to explicitly ban sexual intercourse, sexual touching or any other form of sexual contact between corrections employees and prisoners and to require that prisoners are free from torture or cruel, inhuman, or degrading treatment as a matter of compliance with U.S. obligations under international law. Such contact not only constitutes a violation of the corrections official's professional duty; it is also a criminal offense and should be prosecuted as a felony.

 

C. The CDC should remove all administrative provisions that allow for the punishment of prisoners who engage in sexual intercourse, sexual contact or any other form of sexual conduct with corrections staff, and cease punishing prisoners found to have engaged in such behavior. Punishment of prisoners has the effect of deterring their reporting of sexual abuse by corrections staff.

 

D. The CDC should cease using administrative segregation as de facto punishment when prisoners report sexual misconduct by guards.

 

II. Safeguarding Prisoners Impregnated by Guards

A. The CDC should stop punishing or harassing in any way prisoners who are impregnated by officers. The CDC should also refrain from administratively segregating pregnant prisoners, unless they expressly request it. Administrative segregation should provide for the provision of adequate medical and hygienic requirements necessary for a safe pregnancy.

 

B. The CDC should ensure that female prisoners impregnated by corrections staff are not pressured in any way to undergo an abortion. Prisoners also should receive neutral counseling on the options available to them.

 

C. The CDC should ensure that pregnant women receive timely and adequate medical care, and that medical treatment recommended by physicians is provided as prescribed.

 

D. Medical care should include psychiatric counseling for prisoners who are impregnated as a consequence of rape or sexual abuse.

 

III. Prohibiting Abusive and Degrading Language

The CDC should enforce provisions of Title 15 that mandate humane treatment and prohibit derogatory language. Corrections staff must be made aware, through enforcement, that they are obligated to comply with such provisions or be subjected to disciplinary sanctions.

 

IV. Protecting Privacy: The Need for a Policy

A. The CDC should institute a policy to protect the privacy of women prisoners consistent with several federal court decisions recognizing that prisoners have a constitutionally protected right to privacy. Corrections employees should be fully trained in this policy, and it should be enforced strictly. Such a policy should include, among other things:

1. a requirement that male officers announce their presence before entering a women's housing unit, toilet or shower area;

2. permission for prisoners to cover their cell windows for limited intervals while undressing or using the toilets in their cells; and

3. a rule that only female officers should be present during gynecological examinations.

 

B. Consistent with Title 15, Section 3287, the CDC should cease "unclothed body searches" of women prisoners either by or in the presence of male employees, or under circumstances where a male employee may be in a position to observe the prisoner while she is undressed. Strip searches should be administered in a location that limits access by other prisoners or employees.

 

C. The CDC should use female officers to pat-search female prisoners whenever possible. All officers should be trained in the appropriate conduct of pat frisks and in the disciplinary sanctions associated with improperly performed searches. Women prisoners who either pull away during offensive pat-searches or request that the search be conducted by a female officer should not be subjected automatically to disciplinary action.

 

V. Ensuring an Effective Remedy

Grievances

A. In cases of alleged sexual misconduct by corrections employees, prisoners should be authorized to bypass the informal level of review and file their complaints directly with the prison superintendent or investigator. The CDC should amend Title 15 to encourage the use of an informal stage rather than to require such a stage.

 

B. The CDC should also introduce into Title 15 protections that require prompt and impartial investigations into complaints of sexual misconduct by corrections employees. The grievance procedure should, among other things, protect the confidentiality of the complainant and witnesses during the time that the officer is potentially in contact with them, ensure that prisoner testimony is give due weight, and prohibit the implicated officer from conducting the investigation.

 

C. The CDC should make grievance forms readily available in the prison library or some other neutral place.

 

D. The CDC should enforce provisions of Title 15 that permit prisoners to assist each other in the preparation of grievances.

 

Investigations

A. The CDC should promulgate a written, public procedure for conducting investigations into sexual misconduct. The investigative procedure should, at a minimum:

1. specify the circumstances necessary to initiate an investigation;

2. provide for a special investigator trained to handle such issues, with the necessary human and material resources to do so;

3. set forth a clear structure and time frame for conducting investigations;

4. protect as much as possible the anonymity of the complainant;

5. guard complainants and witnesses from retaliation and harassment; and

6. ensure accountability to outside monitors. The complainant's legal counsel, upon request, should be provided a written record of the investigation, including all statements made by the complainants and witnesses.

 

B. The CDC should integrate the investigative procedure into its operations manual and make it available as a public document.

 

C. The CDC should require all corrections employees to report promptly any allegations, including rumors, of sexual misconduct or other overfamiliar conduct to the prison warden. Failure to do so should be a punishable offense.

 

D. The CDC should not, under any circumstances, assign implicated officers to investigate allegations of their own misconduct. Officers alleged to have committed rape, sexual assault or criminal sexual contact should be assigned to noncontact positions or suspended until the circumstances are clarified and the investigation completed.

 

E. The CDC should refer promptly all allegations of rape, sexual assault and other alleged criminal conduct to the state police for criminal investigation. When a referral is made to the state police, the CDC should continue, not cease, its own internal investigation into possible employee misconduct and proceed with disciplinary action when appropriate.

 

VI. Preventing Retaliation Against Complainants

A. Investigators should not recommend a disciplinary report, and wardens should not impose one, as punishment for a complaint of sexual abuse found to be unsubstantiated, unless the complaint is manifestly frivolous or made in bad faith.

 

B. The CDC should ensure, as much as possible, the confidentiality of allegations of sexual misconduct by prison staff and the anonymity of both complainant and witnesses; their names should not be given to the accused officer while he or she remains in a contact position with the complainant or is assigned to the facility where the complainant resides. The CDC should also prevent the complainant's name from being revealed generally within the facility.

 

C. The California Legislature should review Title 15, Section 3402, of the administrative code and amend it further to restrict access to files not already protected and to ensure that better protections for the confidentiality of records are provided. We believe that in order to be prepared to work with women prisoners, corrections investigators should receive increased staff training and supervision, rather than unfettered access to prisoner files.

 

D. In accordance with its operations manual, the CDC should suspend (place on administrative leave) any employee accused of sexual misconduct, including "unacceptable familiarity," with a prisoner, if such misconduct once proven would result in dismissal.

 

E. The CDC should investigate reports of retribution promptly and vigorously and should discipline transgressing employees appropriately.

 

VII. Curtailing the Use of Administrative Segregation

The CDC should authorize the use of administrative segregation during an investigation only at the prisoner's explicit request. Since a prisoner placed in administrative segregation for her own protection has not committed a disciplinary offense, she should retain the rights of the general population (e.g., telephone calls, visits, access to recreation, etc.). She should be returned to the general population when she requests to be. The CDC should train employees assigned to segregated housing units regarding such provisions.

 

VIII. Ensuring Discipline

A. The CDC should create a clear policy on disciplinary action against abusive corrections employees. This policy should state explicitly that an employee found to have engaged in sexual relations or sexual contact with prisoners will be dismissed. Transfer of such employees to other positions or facilities does not constitute appropriate punishment.

 

B. The CDC should also discipline officers who have violated Title 15 provisions mandating the humane treatment of prisoners.

 

C. The CDC should publish, at least quarterly, a report on disciplinary actions taken against corrections employees responsible for misconduct or abuse. The reports should omit the names of prisoners and, if necessary, of employees. But they should include dates, locations, and other relevant details about the reported incidents and the types of punishment applied.

 

IX. Hiring and Training Corrections Employees

A. The CDC should improve its screening procedures for applicants for corrections positions. Background checks should be completed before new employees are sent into correctional facilities. In no case should the CDC rehire an employee who has been convicted of an offense related to sexual misconduct in custody or who resigned in order to avoid such investigation.

 

B. The CDC should, as soon as possible, implement comprehensive and mandatory training on issues specific to incarcerated women for all current and future corrections employees assigned to women's prisons. This training should include, among other things:

1. a general discussion or profile of female prisoners and their potential vulnerability to sexual misconduct;

2. CDC policies on privacy and the prohibition on sexual relations, degrading language, and other sexually oriented or degrading behavior toward incarcerated women and the disciplinary or criminal sanctions associated with this behavior; and

3. appropriate methods for conducting pat-searches, strip searches, and searches of women's cells. The CDC should collaborate with local nongovernmental organizations experienced in working on issues affecting incarcerated women, including rape and sexual assault.

 

X. Educating Prisoners

A. The CDC should advise incarcerated women, as part of their orientation to the corrections system, as well as prisoners already serving their sentences, of the following:

1. Corrections officers are strictly prohibited from having any form of sexual contact with prisoners. The orientation should also include a thorough review of departmental process regarding privacy and humane treatment; the procedures for reporting and investigating sexual misconduct; and the departmental or criminal law sanctions associated with it.

2. Grievances relating to sexual misconduct may be filed directly and confidentially with the prison investigator. All grievances should be acknowledged and resolved as soon as possible. Prisoners should be informed about the issues that may be dealt with through the grievance procedure, with a particular emphasis on instances of sexual misconduct; the location of grievance forms; any specific procedures for reporting sexual misconduct; the recourse available when corrections officers fail to respond; and the potential to resolve complaints through the internal investigation procedure and the independent review board when one is established.

3. The CDC should also acquaint prisoners with their rights under international human rights treaties ratified by the U.S. as well as under U.S. constitutional law.

 

B. The above information should be included in the prisoner handbook.

 

XI. Allocating Supplies

The CDC should ensure that incarcerated women, including those in administrative segregation, receive sufficient and appropriate supplies, especially sanitary napkins and toilet paper. These items should be available in a neutral location.

 

XII. Ensuring Accountability to Outside Monitors

A. The CDC should provide timely and written information about an investigation to the complainant and the people she designates, such as her attorney and her family, upon their request.

 

B. The California Legislature should create a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct. The review board should have the authority to turn over evidence of possible criminal wrongdoing to prosecutorial authorities. The board should also be able to recommend remedial action to stop abuses or other problems during an investigation. The review board also should

1. develop a system whereby the records of any corrections employee who has been the subject of repeated sexual misconduct complaints are reviewed by the appropriate authorities; and

2. further provide a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of misconduct, including retaliation against complainants.

 

IV. THE DISTRICT OF COLUMBIA

 

Sexual abuse and degrading treatment have been persistent problems for women incarcerated in the District of Columbia. In October 1993 women in Washington, D.C. prisons filed suit in district court against the District of Columbia Department of Corrections (DCDC) alleging sexual misconduct by guards, along with other violations of their constitutional rights. On December 14, 1994, the district court found that the rape, sexual assault and degrading language in the DCDC violated the eighth amendment's prohibition against cruel and unusual punishment. (290) The district court also found that the DCDC had not made adequate efforts to prevent and punish such sexual misconduct. The case was overturned by D.C. Circuit Court in August 1996 on other issues. (291)

In light of the litigation, we were unable to conduct personal interviews with women incarcerated in the District of Columbia. (292) Our discussion of sexual misconduct in Washington, D.C. is, therefore, based on our observations at trial, press accounts, public documents relating to the litigation, the judge's decision and order in the case, and interviews with attorneys working with prisoners. Because the decision and court order arising from this class action offer an important example for providing redress for custodial sexual abuse, we include the case in this report even though Human Rights Watch did not conduct firsthand interviews in the D.C. prisons for women.





 

CONTEXT

 

The overwhelmingly African American--96 percent--female prison population in the District of Columbia is growing at an enormous rate. Most of the growth is fueled by mandatory sentencing laws for drug-related crimes; over 78 percent of female prisoners in D.C. are incarcerated for nonviolent offenses, and over 58 percent were sentenced for drug-related crimes. (293) In addition, 80 percent of women incarcerated in the district have children and two-thirds have legal custody. (294) These women are primarily guarded by male officers. As of 1994, in each facility that houses women, the majority of the prison staff was male. (295) However, the DCDC houses female prisoners in the same facilities as male prisoners, therefore it is difficult to establish the gender breakdowns for the female housing areas.

 

State Legal and Regulatory Framework

When women prisoners in Washington, D.C. filed suit in 1993, sexual intercourse and sexual contact with prisoners were not prohibited under Washington D.C.'s criminal law beyond the general prohibition against rape and sexual assault. In December 1994, subsequent to the suit, the D.C. City Council modified its rape law (defined as "sexual abuse" in D.C. law) to make both sexual intercourse and sexual contact with a person in the custody of the District of Columbia explicitly felony offenses. Under the amended statute, a person commits "first degree sexual abuse of a ward" if he or she "engages in a sexual act with another person or causes another person to engage in or submit to a sexual act when that other person . . . is in official custody." (296) This felony is punishable by up to ten years in prison and a fine not to exceed $100,000. A person commits "second degree sexual abuse of a ward" if he or she "engages in sexual contact with another person or causes another person to engage in or submit to a sexual contact when that other person . . . is in official custody." (297) This charge carries a penalty of up to five years in prison and a fine not to exceed $50,000. Consent of the prisoner is not a defense to either provision. The law went into effect on May 23, 1995.

 

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 and international treaty and customary law that is binding on the U.S. federal government as well as its constituent states. (298) The eighth amendment to the 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 augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from inappropriately viewing or strip searching female prisoners or conducting intrusive pat-frisks on female prisoners.

Constitutional protections for 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 victories through private litigation, particularly suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union. However, if 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 protected under international 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 or Punishment, ratified in 1994. The ICCPR guarantees prisoners' rights to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international bodies 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 a victim, punishing her or intimidating or 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.

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. (299)