"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
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.
"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
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