|
"Report of the mission to
the United States of America on the issue of violence against
women in state and federal prisons" (United Nations Commission
on Human Rights, January 4, 1999)
Report of the Special Rapporteur on violence against women, its
causes and consequences, Ms. Radhika Coomaraswamy, in accordance
with Commission on Human Rights resolution 1997/44
http://www.cfdp.ca/boje.htm
A. California
80. In California, the Special Rapporteur visited the California
Correctional Women's Facility (CCWF) and Valley State Prison for
Women (VSPW) in Chowchilla, California. The Special Rapporteur
strongly regretted that she was not able to interview the
specific women prisoners she had requested to meet and that she
was not allowed to visit the Security Housing Unit at VSPW
despite prior assurances that she would be able to visit the
prison grounds freely. The Special Rapporteur had clearly
indicated in her letter to the California Department of
Corrections in May 1998 that she would like to interview women
prisoners during her visit. In addition, the California prison
authorities refused to discuss openly with her the allegations
of mistreatment and abuse at CCWF and VSPW which are reflected
in this report.
81. The Special Rapporteur has learned that Mr. Kuykendall,
warden of VSPW, has, since her visit, been "walked off the
grounds" and suspended from his duties pending an investigation
into financial mismanagement. This incident underlines the
Special Rapporteur's strong belief that qualified personnel with
a sufficient degree of professionalism are required for any
effective correctional system.
82. At the Central California Women's Facility, CCWF, the
Special Rapporteur was informed upon arrival that not all prison
grounds would be available for inspection due to a bomb scare on
the premises the day before and that she would not be allowed to
speak to the women prisoners whose names she had provided to the
warden in advance. The Special Rapporteur is dismayed at this
lack of cooperation extended to her by the CCWF management which
prohibited her from gathering all necessary information to
evaluate the situation objectively.
83. The Special Rapporteur is concerned that the attitude of the
California correctional authorities seems largely to be that
reflected in the 1977 revision to section 3000 of the California
Penal Code which expressly changed the objective of prisons from
"rehabilitation and punishment" to "punishment" only. In
addition, the introduction of mandatory minimum sentences for
drug-related offences in California courts (as well as in
federal courts) is clearly the reason why 70 per cent of the
women in California prisons are incarcerated for non-violent
offences. Previously, women with children were granted extended
probationary sentences in order to avoid separation from their
families. At the same time, mandatory sentencing statutes like
the "Three Strikes" rule, which imposes a 25-year-to-life
sentence for people already convicted of three felonies, are
further increasing the number of women in prisons. The
increasing harshness of the political climate is further
reflected in the fact that, of the $21,000 per prisoner per year
spent in California, approximately $11,000 (or 52 per cent) is
for security measures, approximately $3,125 (or 14 per cent) for
health care and only some $900 (or 4.5 per cent) for education
and training. / "CDC Facts", publication of the California
Department of Corrections, Communications Office, 1 May 1998./
84. According to information received from NGOs, the guards' or
corrections officers union is one of the strongest political
forces in the State of California, while the California
Department of Corrections is the biggest government agency in
the State with increasing power to influence local elections and
state legislation. The Special Rapporteur is concerned at this
disproportionately influential role of those concerned with
prison management in California, especially where this is to the
detriment of prison conditions in the state.
85. California has the largest number of women incarcerated in
the United States. At VSPW, there were 3,350 women at the time
of the Special Rapporteur's visit, of whom approximately 30 per
cent were White, 30 per cent were African American, 30 per cent
were Hispanic and 10 per cent were women of other ethnic
origins. Their average age was between 30 and 33 years. The
average sentence of the women at VSPW was approximately three
years, mostly for drug-related and other non-violent crimes. Of
the 350 corrections officers at VSPW, only 30 per cent are
female. The majority of officers are White; only 18 per cent are
Hispanic and 12 per cent African American.
86. CCWF has a prison population of 3,597, of whom 40 per cent
are African American, 30 per cent are Hispanic, 20 per cent are
White and the rest are of other ethnic origins; 60 per cent of
the general population are detained under minimum security and
have been committed for mainly drug-related, non-violent crimes
for an average duration of 3˝ to 4 years. There are 360
correctional officers, of whom some 30 per cent are female; 20
per cent are African American and 20 per cent are Hispanic.
87. California appears to have inadequate administrative or
penal protection against sexual misconduct in custody. This is
compounded by the fact that the California Department of
Corrections has no comprehensive procedures for reporting or
investigating allegations of sexual abuse in its facilities.
Sexual misconduct in custody was criminalized only in 1994. The
Special Rapporteur observed that prison management at CCWF and
VSPW still used the term "overfamiliarity" to refer to acts of
sexual abuse, harassment and assault. The Special Rapporteur
feels the use of this euphemism obscures the serious nature of
the acts concerned.
88. The State of California prohibits sexual intercourse between
prison staff and prisoners, the first violation constituting a
misdemeanour and the second, a felony. Title 15 of the
California Director's Rules Governing the Department of
Corrections and the Treatment of Prisoners vaguely refers to the
prohibition of "personal transactions with prisoners, parolees
and their relatives" / Human Rights Watch, op. cit., p. 21./ In
this connection, the Special Rapporteur's attention was drawn to
an initiative taken by the warden of CCWF in a memo to all
prison staff dated 24 July 1995, which attempted to clarify
these legal caveats by spelling out her expectations concerning
relations between staff and prisoners, in particular relating to
unauthorized physical contact, verbal or written communications
or involvement with inmates or parolees.
89. With regard to grievance procedures for sexual misconduct,
the Special Rapporteur was informed that under section 3084 of
the California Administrative Code, prisoners may complain about
"any departmental decision, action, condition or policy
perceived by the prisoner as adversely affecting their welfare".
To report a grievance, inmates may fill out a special form,
report in writing directly to the Investigative Officer, or
notify any staff member at the facility of their concern. Staff
members are required to report any grievances brought to their
attention to the Investigative Officer, who informs the warden
or deputy warden. The allegations are subsequently investigated,
confidentially and internally. The Office of Internal Affairs of
the California Department of Corrections also may decide that a
given investigation should be carried out by an independent
investigator. The warden stated that allegations relating to
sexual misconduct that are proven conclusively have led to a
significant number of terminations of service of prison staff.
He was also of the opinion that the grievance procedure was not
normally used by prisoners for false purposes or "to get back at
someone". The failure by staff to inform prison management of
any allegations was punished accordingly.
90. Corrections officers receive eight weeks of basic training,
which includes a component on sexual misconduct procedures, as
well as on "overfamiliarity" issues. In addition, the California
Department of Corrections provides for annual refresher training
which includes two hours of training on "overfamiliarity". The
Special Rapporteur considers this training to be inadequate for
the purposes of sexual misconduct, including sexual harassment,
abuse and rape; the two-hour refresher training on "overfamiliarity"
does not seem to nearly suffice to cover these concerns in
detail.
91. The Special Rapporteur was informed that at VSPW pat-frisks
are carried out by male and female corrections officers, whilst
strip-searches are only carried out by same-sex officers. In
view of the large number of women at VSPW, female officers
should be actively recruited in order to ensure that both strip-
and pat-searches are carried out solely by females. The Special
Rapporteur was able to confirm allegations that in the receiving
area at VSPW, strip-searches are carried out in a big room with
large windows, enabling male corrections officers to watch. It
was also alleged that cross-gender teams are used for
strip-searching, the male corrections officers restraining the
woman prisoners whilst the search is carried out by a female
officer.
92. At CCWF, the Special Rapporteur was also informed that
pat-searches were carried out by both male and female officers
and that strip-searches were mostly carried out by same-sex
officers "except in emergencies". The Special Rapporteur
considers that this exception is open to abuse and that stricter
criteria for same-sex searches should be established in order to
minimize the potential for abuse. CCWF prison management
acknowledged that cross-gender guarding certainly created
problems and that there were too few female corrections
officers. He referred to a case that had occurred in 1996 when a
female inmate assigned to porter duty was repeatedly taken into
a closet by a male corrections officer who exposed himself to
her. He was subsequently dismissed.
93. With regard to privacy issues at CCWF, the Special
Rapporteur, during her visit of the housing units, was concerned
that there were no shower curtains, but only so-called "modesty
doors" or panels in the showers, which were located in the
middle of the housing unit, immediately in front of the desk of
corrections officers, most of whom were male. The structure of
the housing units at CCWF also lends itself to invasion of
privacy by officers on duty.
94. With regard to sexual misconduct at CCWF, the deputy warden
informed the Special Rapporteur that prison management
vigorously pursued all allegations of sexual misconduct and that
there had been 10 major cases, only one of which had resulted in
a conviction. Most cases resulted in termination of the staff
involved. The grievance procedures consist of a formal appeals
system at four levels, namely, informally to the staff, to the
appeals' coordinator, to the warden or directly to the Director
of the California Department of Corrections. An in-house
investigative unit had been established to look into allegations
of misconduct.
95. With regard to allegations of inhuman conditions in the
Special Housing Units at VSPW, the Special Rapporteur received
information from California Prison Focus, a non-governmental
organization which started to investigate complaints of women in
the units in 1995 that they were continuously exposed to light
for days; that the noise level, caused by the screaming of the
mentally ill inmates held in the same cellblock, was unbearable;
that fights occurring in the courtyard were stopped by the
guards by shooting rubber or wooden bullets. In one incident, a
prisoner's ear was shot off and her neck injured. Bean-bag
bullets were tested, but a woman was severely injured and left
to bleed for five days, as a result of which she is permanently
disfigured. Bean-bag bullets have not been used since.
96. The Special Rapporteur is seriously disturbed by allegations
concerning the lack of privacy in the Units. Women prisoners
interviewed by representatives of California Prison Focus in the
week prior to the Special Rapporteur's visit alleged continuing
sexual abuse and harassment, in particular by male corrections
officers in the "shower bubble". A group of women prisoners had
previously filed a group grievance about the fact that they were
not allowed to take towels into the showers, which are only
covered by modesty panels. The grievance also alleged that
officers on duty were able to observe the women in the showers
from the control booth in the Units, which is 10 feet off the
ground. The Special Rapporteur was informed that in reply to the
grievance the prison management simply stated that, based on an
evaluation of the shower situation, the modesty panels were
considered to respect privacy and that the request for female
guards in the control booth was denied.
97. In addition to the shower area, the pervasive invasion of
privacy in the bathrooms was brought to the Special Rapporteur's
attention. Officers sitting on the wall of the bathroom have an
unobstructed view of women sitting on the toilets, which the
Special Rapporteur considers intolerable, unacceptable and
unnecessarily intimidating and humiliating.
98. All the women prisoners from the Units who were interviewed
mentioned in particular one corrections officer called Pierre.
It was alleged that Pierre, with the acquiescence or sometimes
active participation of other officers, made sexually explicit
comments to the women, rubbed his genitals against women when
they were handcuffed and pressed his genitals against the
windows or food holes of the cell doors, saying "this is what
bitches like and I am going to stick it up your ass". One woman
alleged that she had filed a grievance against one of Pierre's
colleagues, a female officer, and that she had subsequently
retracted her claim because Pierre had retaliated by breaking
all her personal belongings, tearing her photographs and
destroying her earphones. The Special Rapporteur also received
information that Pierre is allegedly a member of the Black
Gorilla Family, and sometimes threatens and targets women
prisoners who are known to be members of rival gangs.
99. It was also alleged that women in the Units live in constant
fear of rape and that although strip-searches are carried out by
female officers, male guards are often present and subsequently
discuss the women's bodies in public in the cells and the
housing units. Some women reported having sexual relations with
corrections officers assigned to the Units who were suspended
from duty but later returned on posts amongst the general prison
population.
. . .
115. During her visit to California, the Special Rapporteur
received invaluable information from a number of
non-governmental organizations working with women in prisons,
most of which she has incorporated in this report. The Special
Rapporteur is particularly grateful to these organizations for
providing her with information since she was not personally able
to gather data first-hand. Two of those organizations are Legal
Services for Prisoners with Children, mentioned above, which was
established in 1978 to assist imprisoned parents, explore
alternatives to prisons, and act on behalf of pregnant women in
connection with the provision of medical services. Families with
a Future is an organization created by Ida, a formerly
incarcerated woman who served 10 years at Dublin Federal
Correctional Institute, separated from her five children. The
organization tries to put children in touch with their mothers
serving long-term prison sentences. From her own experience, Ida
knows that the first year after release is the hardest: the
children have grown up and they are angry for having been
"abandoned" by their mother. Ida's children told her that they
hated going to visit her in prison when they found out that she
had to go through pat- and strip-searches before and after every
family visit. At a meeting with Families with a Future, the
Special Rapporteur had the opportunity to listen to children
with incarcerated parents and to try and understand the enormous
implications that the imprisonment of a mother or a father has
on the whole lifetime of a child.
**********
2. Amnesty International
UNITED STATES OF AMERICA: RIGHTS FOR ALL
"Not Part of My Sentence": Violations of the Human Rights of
Women in Custody
This is one of a series of reports being issued by Amnesty
International as part of a worldwide campaign against human
rights abuses in the USA. For an abridged version of this
report, please see: United States of America: "Not Part of My
Sentence" - Violations of the Human Rights of Women In Custody,
AI Index AMR 51/19/99. An overview of the human rights concerns
that are the focus of the campaign is provided in Amnesty
International's report United States of America: Rights for All,
AI Index: AMR 51/35/98.
I INTRODUCTION
"That was not part of my sentence, to ... perform oral sex with
the officers." New York prisoner Tanya Ross, November 1998.
This report describes violations of the human rights of women
incarcerated in prisons and jails in the United States of
America. The rights are set out in a number of agreements that
have been adopted by an overwhelming majority of countries.
Many of the violations described in this report, such as sexual
abuse committed by prison guards, are also prohibited by laws of
the USA. However, as the report shows, a female prisoner may
find it extraordinarily difficult to stop unlawful conduct or to
have a perpetrator brought to justice. She may have good reason
to fear that if she complains she will be victimised again or
that investigators will not believe her word in the face of
denial by a guard.
Other violations reflect a significant difference between the
rights of women set out in international standards and federal
and state laws in the USA. For example, international standards
provide that female prisoners should be supervised only by
female guards. In contrast, under laws of the USA, a male guard
may watch over a woman, even when she is dressing or showering
or using the toilet. He may touch every part of her body when he
searches for contraband.
International standards restrict the use of restraints to
situations where they are necessary to prevent escape or to
prevent prisoners from injuring themselves or others or from
damaging property. In the USA restraints are used as a matter of
course. A woman who is in labour or seriously ill, even dying,
may be taken to a hospital in handcuffs and chained by her leg
to the bed.
Under international standards, it is considered inhumane to
punish prisoners by placing them in isolation for a prolonged
period in conditions of reduced sensory stimulation. In the USA,
several states have prison units where women are held in such
conditions.
The laws of the United States proclaim the equality of men and
women. However the United States Senate has declined to ratify
the Convention on the Elimination of All Forms of Discrimination
Against Women, a treaty that has been ratified by most
governments.
Amnesty International calls on federal, state and local
governments and authorities to take urgent action to ensure that
the laws, regulations, policies and practices for which they are
responsible rigorously conform to international standards and
respect the human rights of women deprived of their liberty.
*********
3. HUMAN RIGHTS WATCH
ALL TOO FAMILIAR Sexual Abuse of Women in U.S. State Prisons
Copyright © December 1996 by Human Rights Watch. ISBN
1-56432-153-3
SUMMARY
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
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
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