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AN WOMEN PRISONERS ’ HANDBOOK END ON IDENTIFYING AND TO ADDRESSING SEXUAL MISCONDUCT SILENCE NATIONAL WOMEN’S LAW CENTER The National Women’s Law Center is a non-profit, tax-exempt organization under section 501(c)(3) of the Internal Revenue Service Code. Our tax I.D. number is 52-1213010. Contributions to the Center enabling it to continue its work on behalf of women and girls across the country are tax deductible. © Copyright 1998 by the National Women’s Law Center. All rights reserved including the right of reproduction in whole or in part in any form. AN WOMEN PRISONERS ’ HANDBOOK END ON IDENTIFYING AND TO ADDRESSING SEXUAL MISCONDUCT SILENCE by Brenda V. Smith, Senior Counsel and Director, Women in Prison Project April, 1998 NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, NW • Suite 800 Washington, DC 20036 (202) 588-5180 • FAX (202) 588-5185 www.nwlc.org Acknowledgments An End To Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct is the culmination of several years of work by staff at the National Women’s Law Center, the United States Department of Justice Federal Bureau of Prisons and National Institute of Corrections, many law students and most importantly, innumerable women prisoners who shared their experiences, gave feedback on drafts and asked and answered the important questions about why sexual misconduct exists in prison and offered strategies for preventing misconduct. The following individuals at the National Women’s Law Center provided invaluable support and assistance in the development and editing of this Handbook: Marcia Greenberger and Nancy Duff Campbell (Co-Presidents); Deborah Brake, Joanna Grossman and Kathie Donnelly (Center Attorneys); and Laura Cutiletta, Christina Davis, Marelisa Fabrega, Kristin Flynn, Kristin Holman, Jessica Jackson and Heather Lamberg (law clerks). Kimberly Harris, Shauna Helton and Alvin Stith (administrative assistants) all provided key technical support in typing and formatting the Handbook. In addition, the Handbook benefitted tremendously from the comments of our reviewers: Aurie Hall and Jonathan Smith of the D.C. Prisoners’ Legal Services Project; Andie Moss of the National Institute of Corrections; and Theresa Hunt Katsel of the Federal Bureau of Prisons. Drs. Elaine Carmen of the Brockton Multi-Service Center and Shelley Neiderbach of Crime Victims’ Counseling Services Inc. added important information on the effects of trauma. The National Women’s Law Center would also like to express its gratitude and appreciation to the foundations* which provided generous funding for this project: *The information and opinions contained in this Handbook do not necessarily represent the views or positions of the sponsoring organizations or foundations. 2 NATIONAL WOMEN ’S LAW CENTER The Morris and Gwendolyn Cafritz Foundation The Center on Communities, Crime and Culture of the Open Society The D.C. Bar Foundation The Educational Foundation of America The Ford Foundation Eugene and Agnes Meyer Foundation The Public Welfare Foundation Women’s Law and Public Policy Fellowship Program Finally, we would like to acknowledge the extraordinary and courageous assistance of incarcerated women, whose challenging questions and insight helped this publication address the real concerns of incarcerated women. In particular, women prisoners in the District of Columbia reviewed several versions of the Handbook and participated in numerous focus groups over the course of its development and production. Women prisoners at the Maryland Correctional Institution for Women in Jessup, Maryland raised important questions that strengthened the content of the Handbook. An End to Silence addresses rapidly developing areas of law and practice in the United States and its information is current as of April, 1998. Both law and policies may change. We will remain abreast of these changes and encourage you to contact us with new information as it becomes available. Brenda V. Smith, Senior Counsel National Women’s Law Center NATIONAL WOMEN ’S LAW CENTER 3 4 NATIONAL WOMEN ’S LAW CENTER Table of Contents Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Recognizing Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Physical and Emotional Effects of Sexual Misconduct . . . . . . . . . . . .11 Third Party Victims of Sexual Misconduct . . . . . . . . . . . . . . . . . . . . .14 What You Can Do If It Happens To You . . . . . . . . . . . . . . . . . . . . . . .15 Take Informal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Pursue Formal, Administrative Action . . . . . . . . . . . . . . . . . . . . . .16 Take Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Other Things To Consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Seeking Medical Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Questions and Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Appendix Attorneys General In Your State . . . . . . . . . . . . . . . . . . . . . . . . . . .34 50-State Survey of Criminal Laws . . . . . . . . . . . . . . . . . . . . . . . . . .46 Notes and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Order Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 NATIONAL WOMEN ’S LAW CENTER 5 6 NATIONAL WOMEN ’S LAW CENTER Overview The National Women’s Law Center is a non-profit organization that has been working since 1972 to advance and protect women’s legal rights. The Center focuses on major policy areas of importance to women and their families including education, employment, reproductive rights, health, family support and income security, with special attention given to the concerns of low-income women. As a legal arm of the women’s movement, the Center has litigated ground-breaking cases and filed briefs in landmark Supreme Court decisions; advocated before state and federal policymakers to shape legislation and policies affecting women’s lives; and educated the public about issues important to women. The Center’s legal expertise make it an important contributor to girls’ and women’s progress at school, at work and in almost every aspect of their lives. In 1990, the Center launched the Women in Prison Project to address the serious problems confronting women prisoners. The Project provides legal, counseling and advocacy services to over 1,500 women incarcerated by the District of Columbia Department of Corrections and the Federal Bureau of Prisons. In addition to its local direct services work, the Center works on the national level conducting public education and training, providing technical assistance to policymakers and advocates, developing resources and disseminating information on issues affecting women in conflict with the law. In 1993, the Center’s work with women prisoners prompted it to file class action litigation on behalf of all women incarcerated by the District of Columbia. In 1994, Judge June Green, of the U.S. District Court for the District of Columbia, found that women prisoners were subjected to sexual harassment and provided with programs and opportunities inferior to those provided to male prisoners. The Court found violations of the U.S. Constitution, federal statutory law and District of Columbia law and ordered broad remedial relief in the areas of sexual misconduct, obstetrical and gynecological care, education and voca- NATIONAL WOMEN ’S LAW CENTER 7 tional programs, and environmental safety. While portions of the Court’s order were overturned by an appellate court, the Court’s findings with regard to sexual misconduct remain. In light of the Court’s decision and the emergence of the issue of sexual misconduct nationally, the Center engaged in a three-pronged strategy which included enforcement of the Court’s order, technical assistance and training to women prisoners and corrections officials, and the development of materials for both prisoners and corrections workers. We believe that addressing sexual misconduct is at the core of assuring women’s safety in prison and that only a coordinated strategy that involves law and policy development, training of prisoners and corrections workers, and public education will reduce the occurrence of sexual misconduct. 8 NATIONAL WOMEN ’S LAW CENTER RECOGNIZING MISCONDUCT Which of the following do you think is sexual misconduct? ❖ A prison guard walks in on you while you are changing your clothes and tells you that you are “what he likes.” ❖ The food service worker tells you he can get you cigarettes if you “flash” him. ❖ You fall in love with a staff member and agree to get married as soon as you are released. You begin a sexual relationship with him while in prison. ❖ The chaplain comforts you when you receive bad news from home. She keeps asking you to come by and see her even when nothing is wrong. She begins to write you letters telling you how much she loves you. ❖ You were an exotic dancer before being incarcerated. Three officers on the midnight shift pay you to dance for them. ❖ A correctional officer locks you in a storage room and rapes you. All of the Above are Examples of Sexual Misconduct Sexual misconduct is: ❖ any sexual advance by staff members, agents or volunteers of the corrections department ❖ requests for sexual favors by staff members, agents or volunteers of the corrections department NATIONAL WOMEN ’S LAW CENTER 9 ❖ verbal or physical conduct of a sexual nature in prison toward a prisoner by staff members, agents or volunteers of a corrections department SEXUAL MISCONDUCT BY CORRECTIONS STAFF AGAINST A PRISONER IS PROHIBITED IN ALL STATES BY EITHER DEPARTMENTAL POLICY AND/OR LAW. Sexual harassment of prisoners is a form of sexual misconduct1 Sexual misconduct happens in prison any time a staff member, agent or volunteer of a corrections department makes a sexual advance or engages in sexual contact with a prisoner, even if the prisoner consents. Sexual misconduct does not have to be sex. It can include: ❖ touching ❖ kissing ❖ correctional staff walking in on you unannounced while you are dressing ❖ inappropriate body or cavity searches not justified by a legitimate institutional security need ❖ inappropriate comments about your personal appearance ❖ language of a sexual nature 1/In this pamphlet, we use the terms sexual misconduct, sexual harassment, and sexual abuse. All of these terms refer to improper conduct of a sexual nature directed at prisoners. This conduct can range from acts that violate departmental regulations to those that violate a particular state or federal law. Sexual harassment, as it relates to prisoners, is any sexual advance, welcome or not, by a staff member, agent or volunteer of a corrections agency that creates a hostile environment or is either tied to promises or special benefits (cigarettes, candy, better work assignments, etc.) or punishments (administrative segregation, poor job assignments, revoking telephone privileges, etc.). In this pamphlet, we only address staff-inmate sexual misconduct. 10 NATIONAL WOMEN ’S LAW CENTER PHYSICAL AND EMOTIONAL EFFECTS OF SEXUAL MISCONDUCT The physical and emotional effects of sexual misconduct can be devastating for a woman. ❖ She may contract the HIV virus or other sexually-transmitted diseases. ❖ She may become pregnant. ❖ She may feel trapped in her situation and powerless to change it. ❖ She may suffer emotional trauma. These are repercussions that will affect her long after she has left prison. Contracting HIV or Other Sexually-Transmitted Diseases In some prison systems, such as New York, New Jersey, Connecticut and the District of Columbia, nearly 1 out of 4 women prisoners is HIV-positive. You cannot assume correctional employees are practicing safer sex. Correctional employees who are having sex with prisoners may not use a condom and may have sex with several partners both inside and outside of the prison. This creates a fertile breeding ground for HIV and other sexually-transmitted diseases. SOME FACTS ABOUT HIV AND STDS ♦ Unlike in the general population, the rate of HIV infection among women in prison is higher than that of men. ♦ A 1994 study of prisons found that the overall rate of AIDS was 464 cases per 100,000 among men and 705 cases per 100,000 among women. The overall rate of AIDS among men in the United States is 95 cases per 100,000 and 40 cases per 100,000 among women. Women and people of color, however, are the fastest growing population of people living with HIV and AIDS. ♦ The incidence of HIV infection was even higher in city/county jail systems, where the rate of infection was 706 cases per 100,000 inmates overall. ♦ Among the inmates who are HIV positive, 43% are AfricanAmerican, 38% are White, and 13% are Hispanic. ♦ The incidence of other sexually-transmitted diseases (gonorrhea, syphilis, and chlamydia) is also higher among women in prison than men. NATIONAL WOMEN ’S LAW CENTER 11 Becoming Pregnant Having sex puts you at risk of becoming pregnant. Becoming pregnant while in prison is stressful for several reasons: ❖ You may be afraid to tell anyone about the pregnancy and afraid to seek medical attention. ❖ Prenatal care in many prisons is inadequate and it may be difficult to receive the medical care and nutrition necessary to have a healthy baby. ❖ There are few prisons that will allow you to keep your baby with you. More often, women prisoners must place their newborns for adoption, foster care or with family members soon after the child is born. ❖ If you decide to terminate the pregnancy it can be very difficult to obtain an abortion while in prison. Many states do not allow government funds to be used to pay for abortions except in the case of rape, incest or where the mother’s health is threatened. More often than not, women prisoners must arrange to terminate a pregnancy with a private agency and pay for the procedure with their own money. ❖ You may be punished for becoming pregnant, be denied parole, receive a disciplinary report, lose work or visiting privileges, or be charged with a separate criminal offense.2 Emotional Trauma A woman who is involved with a correctional staff person can experience a range of feelings about the relationship. If she believes the relationship meets her emotional or financial needs, she may feel a sense of power. For women who feel coerced and pressured by staff to have these relationships, they may feel they are helpless and have lost control of their lives. In both circumstances, women can feel fear about being caught and shame at being involved with a staff member. 2/In Arizona, Delaware and Nevada, prisoners who voluntarily engage in sexual contact with corrections employees can be charged with a separate criminal offense. 12 NATIONAL WOMEN ’S LAW CENTER Women may also: ❖ become depressed ❖ begin using alcohol and other drugs ❖ have suicidal and/or homicidal feelings ❖ have panic attacks ❖ be unable to sleep ❖ have fits of rage and anger WOMEN WHO EXPERIENCE THESE FEELINGS RELATED TO SEXUAL MISCONDUCT SHOULD GET COUNSELING WHETHER OR NOT THEY DECIDE TO REPORT THIS CONDUCT! NATIONAL WOMEN ’S LAW CENTER 13 THIRD PARTY VICTIMS OF SEXUAL MISCONDUCT WHAT WOMEN PRISONERS THINK Sexual misconduct hurts ALL women, both women prisoners and women correctional employees. Even women who are not being sexually mistreated directly are harmed by sexual misconduct. ♦ In focus groups women inmates were asked, “Why are women vulnerable to sexual abuse in prison?” They responded: HOW? ♦ “Sex, just like drugs is a part of being in prison. There has to be a certain amount of that going on. What’s important is what the prison does when they discover someone having sex.” ❖ Because some correctional employees believe that all women, both women prisoners and employees, are available for sex, and treat them as such. ♦ “If we had more jobs in here, ❖ we wouldn’t have to have sex just to get a candy bar, some street food, or a perm.” Because sexual misconduct erodes the boundaries that are necessary for prison security and other functions such as rehabilitation and program participation. ♦ “Cops should act like cops. They should stay in their place so that we can stay in ours.” ❖ Because women who do not participate in sexual talk or sexual relationships may be penalized by being denied the opportunities or privileges that women who participate in that conduct receive. ♦ “A lot of these women have low self-esteem. They don’t think a lot of themselves so they’ll settle for a soda, candy or some cigarettes.” ♦ “A lot of the girls that the officers bother are slow (have mental health problems). They can prey on these women because they don’t know any better.” 14 NATIONAL WOMEN ’S LAW IF YOU FEEL THAT YOU HAVE BEEN HARMED BY SEXUAL MISCONDUCT, EVEN IF YOU HAVE NOT EXPERIENCED IT DIRECTLY, YOU MAY BE A THIRD PARTY VICTIM. AS A THIRD PARTY VICTIM, YOU CAN ALSO REPORT THE MISCONDUCT AND EXPECT A REMEDY. CENTER WHAT YOU CAN DO IF IT HAPPENS TO YOU You Can Take Steps to Prevent or Stop Sexual Misconduct! Sexual misconduct by corrections staff against a prisoner is prohibited in all states by departmental policy and/or law. However, this type of behavior will continue unless YOU ACT. DEPARTMENT OF CORRECTIONS POLICIES ( DOC ) REGARDING SEXUAL MISCONDUCT ♦ All DOCS address sexual misconduct of correctional staff in their administrative policies. ♦ The DOCS of the District of There are several things you can do. Take Informal Action ❖ If you are comfortable doing it, tell the staff person that his/her advances are offensive and are not welcome. ❖ Try to separate yourself from the staff person. This can be difficult. You should first request that the staff person be moved or reassigned so that you do not have any contact with him or her. If your request is denied, you may want to consider being placed in protective custody. You may also have the option of requesting a move to another institution, but you must consider the risk of losing your programming placement, and the possibility of moving farther away from your family. ❖ Tell a corrections staff member you trust about the incident. In many states, Department of Corrections personnel are required to file written reports regarding any sexual misconduct that they witness or that is brought to their attention. These reports can lead to an investigation of the sexual misconduct and disciplinary proceedings against the perpetrator. In many states, Department of Corrections personnel who report the misconduct are required to keep it confidential. However, information about sexual misconduct is often leaked. Therefore, choose the staff member you confide in wisely. Columbia, Delaware, Georgia and Illinois have developed separate policies specifically addressing sexual misconduct between staff and inmates. ♦ Many agencies discipline inmates found to be voluntarily involved in sexual misconduct. ♦ Many agencies dismiss staff involved in serious, substantiated sexual misconduct incidents. Other actions include suspension, oral reprimands, staff transfer and staff resignation. ♦ Agencies generally take no action toward staff or inmates when allegations of misconduct are found to be unsubstantiated—the agency is unable to either prove or disprove misconduct occurred. However, most agencies will discipline staff and inmates who make false allegations of sexual misconduct. ♦ Agencies generally will protect inmates from retaliation by staff or others even if they do not find or cannot prove that sexual misconduct occurred. NATIONAL WOMEN ’S LAW CENTER 15 REMEMBER, TAKING INFORMAL ACTION IS OPTIONAL. IF YOU FEEL YOU ARE IN PHYSICAL DANGER OR IF THE STAFF PERSON HARASSING YOU WILL NOT STOP HIS/HER CONDUCT AFTER YOU HAVE ASKED HIM/HER TO STOP, YOU SHOULD TAKE A MORE FORMAL APPROACH. Pursue Formal Administrative Action ❖ File a formal complaint with the institution. Your institution should have an inmate grievance process which allows inmates to file a formal complaint about prison-related matters. Use this process to report the sexual misconduct. Try to keep copies of any forms that you send or receive in a safe place. Having detailed and accurate records of the conduct, and your attempts to stop it, will help during an investigation of the matter. Remember that there is little privacy in prison. Corrections staff or other inmates may have access to your belongings. Therefore, use your best judgment when deciding whether, where, and how to keep your records. If you feel that you will not be able to keep your records confidential in the prison, you may want to consider mailing copies of these records to a trusted friend or relative outside the prison for safe-keeping, or to an advocate or attorney whom you know and trust. ❖ Write directly to the warden of your institution or the Director of your Department of Corrections. You may report sexual misconduct by writing directly to the warden of your facility or the Director of your Department of Corrections. You can send your letter either through the institutional or regular mail. Be sure to write “Legal Mail” and “Emergency-Confidential” across the top of your letter and on the envelope to ensure its confidentiality. Once the misconduct is reported, the Department of Corrections should conduct an investigation. It should be confidential but this may not always be the case. The purpose of the investigation is to determine the nature and extent of the misconduct. You may be asked to testify at a hearing or give a statement. Ask whether you are allowed to have an attorney present. If you are allowed to have legal representation, make every effort to locate an attorney who will appear on your behalf. Once the investigation is completed, you should follow up to find out the result. If the investigation finds sexual misconduct occurred, the employee could face 16 NATIONAL WOMEN ’S LAW CENTER punishment including a reprimand, suspension or termination and in some states, criminal prosecution. Follow the procedures that the institution has set forth with regard to reporting and resolving misconduct. Not only is this the most effective way of dealing with the problem, but you may be prohibited from bringing an action in court later if you have not used these procedures to try and resolve the problem. Remember that sexual misconduct investigations are supposed to be confidential. But the reality is that many are not. Information may be leaked by both corrections staff and the inmate involved. Many corrections departments punish breaches of confidentiality as a separate violation of their sexual misconduct policy. Use your best judgment about how to report the misconduct. Use the method most likely to protect your privacy when informing the Department of Corrections of your complaint and YOU should remember to keep the information confidential, so that YOU are not responsible for breaches of confidentiality. Take Legal Action ❖ You can pursue a remedy under state or federal criminal laws. STATE LAWS PROHIBITING SEXUAL RELATIONS BETWEEN INMATES AND CORRECTIONS STAFF ♦ Thirty-five states, the District of Columbia, and the federal government have laws imposing criminal sanctions on corrections staff members who have sexual relations with inmates. Thirteen of these state statutes specifically provide that consent is not a defense to the conduct. ♦ Nine state statutes, the District of Columbia and the federal government specifically provide that marriage is a defense to a charge of sexual misconduct. ♦ Three state statutes—Arizona, Thirty-five states, the District of Columbia and the federal government have criminal laws prohibiting the sexual abuse of prisoners. These laws are specific to each state so both the definition of sexual misconduct and the penalty imposed for violation of the law will vary from state to state.3 In addition, if you decide to come forward with a complaint and there is no criminal law specifically prohibiting sexual misconduct between corrections staff and inmates, a prosecutor may apply the general rape laws of the state so that you may get relief. ❖ You can pursue a remedy under state civil laws. Delaware and Nevada— specifically provide that the prisoner, as well as the staff member, will be punished for having consensual sexual relations. ♦ Even if a state does not have a statute that specifically covers sexual activity in prisons, state rape laws apply to sexual assaults which occur in prison. So, a corrections staff person can be convicted of rape if he has sexual relations with an inmate against her will. You may have a cause of action under state civil laws for intentional infliction of emotional distress, assault and/or battery, or negligence. The claims will depend on the facts of your situation and state laws. Be aware also that state statutes of limitation require that you file claims within a certain period of time. The time period for filing claims depends on state law. 3/See Appendix for Fifty-State Survey of Criminal Laws Prohibiting Sexual Misconduct Against Prisoners. NATIONAL WOMEN ’S LAW CENTER 17 ❖ You can pursue a remedy under federal law. Sexual misconduct in prison is prohibited under federal law. A prisoner who has been subjected to sexual misconduct in prison may have a claim or cause of action pursuant to: (1) the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment; (2) the Fourteenth Amendment to the United States Constitution which mandates equal protection under the law; (3) the gender-motivated violence provision of the Violence Against Women Act of 1994; or (4) Title IX of the Education Amendments of 1972, which prohibits sexual harassment in educational programs or activities that receive federal funds. ❖ Seek legal advice. Whether you decide to take legal action in state or federal court, seek advice and legal assistance from organizations who might prosecute these cases or who assist prisoners in your area. If you decide to file a lawsuit, few large national organizations other than the NAACP or the ACLU provide legal assistance to women prisoners on this issue. However, most states have local organizations that can provide legal assistance to women who have been subjected to sexual abuse. Contact organizations such as your state’s bar association, local women’s advocacy groups or area law schools. (See also Resource Section on pg. 25). 18 NATIONAL WOMEN ’S LAW CENTER OTHER THINGS TO CONSIDER Retaliation By Prison Staff Corrections staff may try to intimidate you to prevent you from filing a complaint or from participating in an investigation of sexual misconduct. Most corrections departments prohibit any individual from interfering with an investigation, including intimidation or retaliation against witnesses. If you believe that you are being denied privileges, or are being unfairly transferred or punished in some way because you filed a complaint or assisted in the investigation of a complaint, you should report this to the warden or to an investigative agency. Gathering A Support System The process of dealing with sexual misconduct, whether or not you decide to formally report it, is difficult at best. It is important that you get support during this time. Here are some suggestions: ❖ Tell a trusted friend inside the prison community. Find other prisoners whom you trust and with whom you can talk about your experiences. Share stories and ideas on how to deal with the misconduct. This support will help you and other prisoners in similar situations. Keep in mind that other prisoners could use this information to better their own situation. Therefore, it is extremely important that you only confide in those people you know you can trust. NATIONAL WOMEN ’S LAW CENTER 19 ❖ Tell a trusted friend outside the prison community. A friend or family member outside the prison community can help you decide what to do, including notifying the prison about the misconduct and requesting that the prison respond appropriately. The individual can also be used to corroborate your account of the misconduct should the claim be investigated. ❖ Go to your community or other agencies for help or have your family and friends go on your behalf. For example, both C.U.R.E. (Citizens United for the Rehabilitation of Errants) and F.A.M.M. (Families Against Mandatory Minimums) are national groups with local chapters. Both assist the families of prisoners to address problems their incarcerated family member may be facing. You can also obtain a copy of the ACLU (American Civil Liberties Union) National Prison Project Resource Guide which may provide some valuable help. You may call or write these organizations as follows: 20 NATIONAL WOMEN ’S LAW CENTER ACLU National Prison Project 1875 Connecticut Avenue, NW, Suite 410 Washington, DC 20009 202/234-4830 C.U.R.E. P.O. Box 3210 National Capital Station Washington, DC 20001 202/789-2126 F.A.M.M. 1612 K Street, NW, Suite 1400 Washington, DC 20006 202/822-6700 National Center for Women in Prison c/o D.C. Prisoners’ Legal Services Project 1400 20th Street, NW, Suite 117 Washington, DC 20036 202/775-0323 SEEKING MEDICAL HELP You must seek medical help if: ❖ you may be pregnant ❖ you have been raped or sexually assaulted ❖ you may have been exposed to HIV or other sexually-transmitted diseases Pregnancy If you become pregnant while in prison, whether or not it is the result of sexual assault, it is very important that you receive medical care. Remember, only you can decide what is in your best interest—carrying the pregnancy to term, adoption, foster care or termination. Do not be pressured by anyone—family members, friends, other prisoners, the biological father or prison officials—to do what is not in your best interest. First, if you decide to continue the pregnancy, proper prenatal care is essential for your health and that of the fetus. This is especially true for women who are in high risk groups, such as those who have a history of drug or alcohol abuse, have HIV or other sexually-transmitted diseases, or suffer from poor nutrition. Second, if you do not wish to carry the fetus to term you can receive counseling on other options such as adoption, foster care placement or terminating your pregnancy. In most communities, organizations exist to provide you with information about your options. You can contact these organizations directly or through the case manger or medical staff NATIONAL WOMEN ’S LAW CENTER 21 at your institution. For example, you can contact your local Planned Parenthood or the National Abortion Federation about terminating an unwanted pregnancy. For information about adoption or foster care placement you can contact your local department of human services or local private social service agencies, such as Family and Child Services, Catholic Charities or Jewish Social Services. Rape and Sexual Assault If you have been raped or sexually assaulted, you must get medical attention immediately. You should request to be taken to a hospital where a “rape kit” can be performed. During a rape kit examination, a doctor performs a pelvic examination and takes samples of hair and semen which the perpetrator may have left during the assault. These samples often provide crucial evidence in proving that a sexual assault occurred and in identifying the assailant. That is why it is especially important that you have a rape kit in a hospital, where the medical staff is accustomed to performing it. Although it may be difficult, it is important that you do not shower after the assault. Showering may wash off the hair and semen evidence. Also, bring the clothes and underwear that you had on at the time of the assault to the hospital with you along with any other items that may have come into contact with the perpetrator’s bodily fluids— blood, semen, or saliva. This includes any towels the perpetrator may have used to wipe himself, or you, and condoms if they were worn during the assault. The doctors may be able to take hair and semen samples from all of these items. Technology is such that even small traces of blood, semen, vaginal fluids or saliva can yield information that can identify the source of these fluids. 22 NATIONAL WOMEN ’S LAW CENTER If you have been raped or sexually assaulted, you should always be tested for pregnancy, HIV, and other sexually-transmitted diseases. Even if you test negative for HIV, you should request that you be re-tested six months later, since it may take that long for a test to detect the HIV antibodies in your blood. Sexually-Transmitted Diseases A sexually-transmitted disease, if left untreated, can have very serious consequences. It can cause sterility or otherwise negatively affect your health. HIV infection, for which there is no cure, decreases the body’s ability to fight infection and makes a person susceptible to a large number of illnesses. While there is no cure for HIV there are new medical treatments that can greatly increase both the quality and length of the lives of those infected with the virus. Proper medical care can, in some cases, cure a sexually-transmitted disease. If no cure is available, it can often reduce the effects of the disease. Therefore, it is very important to get medical care as soon as possible. Counseling If you have been subject to sexual misconduct, you may want to seek professional counseling or mental health advice. Many prisons offer mental health services for victims of sexual abuse, and some offer counseling sessions. There are also community-based counseling services such as local rape crisis centers. If you cannot obtain mental health services, talk about your experiences with a trusted friend, relative, or spiritual advisor. Talking with someone helps you explore your feelings about the harassment and is an important step in gaining control over your life. NATIONAL WOMEN ’S LAW CENTER 23 QUESTIONS AND ANSWERS Q. Why is all sexual conduct between correctional staff and inmates considered misconduct? A. Because sexual contact between staff and inmates is an abuse of power. Correctional staff have ultimate power in corrections settings, and they often control the way a prisoner serves her time. One way in which correctional staff may abuse their power is to coerce, threaten or seduce women into giving them sexual favors. Women may feel they have to comply with these demands in order to survive in prison or protect their safety. Q. Are some women in prison more vulnerable to sexual misconduct than others? A. Yes. Women who are especially vulnerable to sexual misconduct are likely to fall into one or more of the following categories: ❖ Women with Addictions More than 80% of women prisoners suffer from an addiction to alcohol, drugs or nicotine and sometimes all three. Because these items are difficult to get in prison, they become highly-valued. Correctional employees can use women’s addiction to their advantage by offering to exchange alcohol, tobacco or other drugs for sex or sexual favors. ❖ Survivors of Sexual Abuse It is estimated that 80% of women in prison and jails have been victims of sexual and physical abuse. If a woman has been sexually abused in the past, she is far more likely to be abused while in 24 NATIONAL WOMEN ’S LAW CENTER prison. A woman who has been abused before may feel powerless to stop abuse in prison. She may accept the sexual abuse as an unwelcome, but normal, part of life. She may believe that she either deserves the abuse or that the harasser will grow to care for her if she allows it to continue. ❖ Women With Mental Health Issues Often, a woman who suffers from a mental illness does not fully realize what is happening to her when she is being sexually abused. When she does realize it, she may also have a more difficult time reporting the abuse or being believed by staff. ❖ Women with Little Experience in the Criminal Justice System A woman entering the prison system for the first time may feel intimidated by other prisoners and the corrections staff. She may feel isolated, and when subjected to sexual harassment, may not know where to turn. She may not understand how to report incidents of sexual misconduct. Q. What if I am in control of the relationship or am receiving some benefit from it? Does that make it OK? A. No. Remember, even if you feel you can control the relationship and end it when you want to, it is the correctional employee, not you, who is in charge. Often, a woman finds that once a sexual relationship starts, she can’t end it even if she wants to. The authority that correctional employees have in prison carries over into the sexual relationship. So if a prisoner tries to end the relationship or threatens to report a correctional employee, the correctional employee can make things particularly difficult for her. The employee can: ❖ change her work assignments ❖ threaten her with a transfer or disciplinary action ❖ give her a negative parole recommendation NATIONAL WOMEN ’S LAW CENTER 25 ❖ interfere with her visits ❖ threaten or commit physical violence against her ❖ harass and intimidate her Q. What if I want to have sex with a correctional employee? Is this sexual misconduct? A. Yes. Not only is consensual sex with a correctional employee sexual misconduct, but it is also against most departmental policies and state and federal law. If prison officials discover that you are having sex with a correctional employee, you could face disciplinary charges and in Arizona, Delaware and Nevada could also be charged with a separate criminal offense. Q. Do some women invite sexual abuse? A. No. Sometimes people blame women for sexual misconduct because they behave or dress in what others believe is a seductive or inviting way. It is wrong for a corrections staff member to sexually harass a prisoner regardless of how an inmate acts or dresses. Correctional staff are responsible for their own actions and for setting and enforcing appropriate boundaries between staff and inmates. Q. What if a female staff member is making sexual advances? Is that also sexual misconduct? A. Yes. Sexual misconduct is about power and a female staff member can abuse that power in the same way as her male counterparts. A female staff member who coerces or forces you into granting sexual favors, touches you inappropriately, or makes inappropriate comments is also committing sexual misconduct. You should use the same procedure to report sexual misconduct by a female staff member as you would that of a male staff member. 26 NATIONAL WOMEN ’S LAW CENTER RESOURCES The next section provides additional resources that may be helpful in obtaining more information about state laws or in reporting sexual misconduct in prison. The Criminal Laws In Your State In addition to the civil remedies discussed earlier, you may also decide that you want to pursue criminal prosecution of the corrections staff person. In the Appendix section of this guide is a Fifty-State Survey of criminal laws which prohibit sexual contact between prisoners and corrections staff. Even if your state does not have a law which specifically covers sexual misconduct in prison, you can still use your state’s general sexual assault laws. In many states, even if you do not want to pursue the action, the institution can independently decide to seek criminal prosecution of a staff member. The following is some basic information about state criminal laws prohibiting the sexual abuse of prisoners: ❖ 35 states, the District of Columbia, and the federal government have laws specifically criminalizing sexual abuse in prisons.4 ❖ 28 states and the District of Columbia define sexual misconduct in prisons as a felony.5 ❖ 4 states define sexual misconduct in prisons as a misdemeanor.6 ❖ 3 states and the federal government define sexual misconduct in prisons as either a felony or a misdemeanor depending on the nature and severity of the assault.7 4/Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Wisconsin, and Wyoming. 5/Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Wisconsin, and Wyoming. 6/Arkansas, Iowa, Michigan, and North Dakota. 7/California, Connecticut, and New York. NATIONAL WOMEN ’S LAW CENTER 27 ❖ 3 states criminalize the conduct of both the prisoner and the corrections employee8 in “consensual” cases of sexual misconduct. ❖ 13 states and the District of Columbia specifically provide that even if a prisoner “consents” to or voluntarily engages in sex with a corrections staff person, the staff member is criminally liable.9 ❖ 9 states, the District of Columbia and federal government provide that marriage is a defense to a charge of sexual misconduct.10 ❖ 15 states have no laws criminalizing sexual misconduct in prisons.11 States that have enacted laws criminalizing the sexual abuse of prisoners have done so for several reasons. First, these states view prisoners as a vulnerable population—similar to the elderly, mentally ill or mentally retarded—and view prison staff as owing them a particular duty of care. Second, because prisoners often trade sex for food, drugs or money, it could appear to be consensual and therefore outside the scope of traditional sexual abuse statutes. The Attorney General In Your State If you have been subjected to sexual misconduct in a state that has a specific statute prohibiting sexual misconduct in prison and are having difficulty pursuing your claim or obtaining information about the law, you should write to the Attorney General of your state. If you are in a federal correctional facility you should contact the Office of Inspector General, which has oversight of the Federal Bureau of Prisons. Included in the Appendix section of this guide are the addresses for the Attorneys General in each state. Because Attorneys General are elected officials, you should contact their office and ask them for the name of the current Attorney General. A letter to the Attorney General in your state or the Office of Inspector General will be most effective if it includes a detailed account of the misconduct, as well as the steps you have taken to pursue your claim. Remember to keep a copy of the letter for your records. 8/Arizona, Delaware, and Nevada. 9/Arkansas, California, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Mississippi, Nevada, New Hampshire, New York, and North Carolina. 10/Alaska, Arizona, Florida, Georgia, Illinois, Kansas, Maine, Ohio and Oklahoma. 11/Alabama, Kentucky, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Virginia, Washington, and West Virginia. 28 NATIONAL WOMEN ’S LAW CENTER Notes NATIONAL WOMEN ’S LAW CENTER 29 30 NATIONAL WOMEN ’S LAW CENTER NATIONAL WOMEN ’S LAW CENTER 31 32 NATIONAL WOMEN ’S LAW CENTER Appendix NATIONAL WOMEN ’S LAW CENTER 33 34 NATIONAL WOMEN ’S LAW CENTER Attorney General of Alabama Office of the Attorney General State House 11 South Union Street Montgomery, AL 36130 Attorney General of Alaska Office of the Attorney General Post Office Box 110300 Diamond Courthouse Juneau, AK 99811-0300 Attorney General of American Samoa Office of the Attorney General Post Office Box 7 Pago Pago, AS 96799 Attorney General of Arizona Office of the Attorney General 1275 West Washington Street Phoenix, AZ 85007 Attorney General of Arkansas Office of the Attorney General 200 Tower Building, 323 Center Street Little Rock, AR 72201-2610 ALASKA AMERICAN SAMOA ARIZONA ARKANSAS ADDRESS ALABAMA STATE (501) 682-2007 (602) 542-4266 (684) 633-4163 (907) 465-3600 (334) 242-7300 PHONE NO. Attorneys General in Your State NATIONAL WOMEN ’S LAW CENTER 35 ADDRESS Attorney General of California Office of the Attorney General 1300 I Street, Suite 1740 Sacramento, CA 95814 Attorney General of Colorado Office of the Attorney General Department of Law 1525 Sherman Street Denver, CO 80203 Attorney General of Connecticut Office of the Attorney General 55 Elm Street Hartford, CT 06141-0120 Attorney General of Delaware Office of the Attorney General Carvel State Office Building 820 North French Street Wilmington, DE 19801 District of Columbia Corporation Counsel Office of the Corporation Counsel 441 4th Street, NW Washington, DC 20001 Attorney General of Florida Office of the Attorney General The Capitol PL 01 Tallahassee, FL 32399-1050 STATE CALIFORNIA COLORADO CONNECTICUT DELAWARE DISTRICT OF COLUMBIA FLORIDA (904) 487-1963 (202) 727-6248 (302) 577-3838 (860) 566-2026 (303) 866-3052 (916) 324-5437 PHONE NO. 36 NATIONAL WOMEN ’S LAW CENTER Attorney General of Guam Office of the Attorney General Judicial Center Building 120 West O’Brien Drive Agana, GU 96910 Attorney General of Hawaii Office of the Attorney General 425 Queen Street Honolulu, HI 96813 Attorney General of Idaho Office of the Attorney General Statehouse Boise, ID 83720-1000 Attorney General of Illinois Office of the Attorney General James R. Thompson Center 100 West Randolph Street Chicago, IL 60601 HAWAII IDAHO ILLINOIS Attorney General of Georgia Office of the Attorney General 40 Capitol Square, SW Atlanta, GA 30334-1300 GEORGIA GUAM ADDRESS STATE (312) 814-2503 (208) 334-2400 (808) 586-1282 (671) 475-3324 (404) 656-4585 PHONE NO. NATIONAL WOMEN ’S LAW CENTER 37 Attorney General of Iowa Office of the Attorney General Hoover State Office Building Des Moines, IA 50319 Attorney General of Kansas Office of the Attorney General Judicial Building 301 West Tenth Street Topeka, KS 66612-1597 Attorney General of Kentucky Office of the Attorney General State Capitol, Room 116 Frankfort, KY 40601 IOWA KANSAS KENTUCKY MAINE Attorney General of Maine Office of the Attorney General State House Station Six Augusta, ME 04333 Attorney General of Louisiana Office of the Attorney General Department of Justice Post Office Box 94095 Baton Rouge, LA 70804-4095 Attorney General of Indiana Office of the Attorney General Indiana Government Center South Fifth Floor 402 West Washington Street Indianapolis, IN 46204 INDIANA LOUISIANA ADDRESS STATE (207) 626-8800 (504) 342-7013 (504) 696-5300 (913) 296-2215 (515) 281-5164 (317) 233-4386 PHONE NO. 38 NATIONAL WOMEN ’S LAW CENTER Attorney General of Massachusetts Office of the Attorney General One Ashburton Place Boston, MA 02108-1698 Attorney General of Michigan Office of the Attorney General Post Office Box 30212 525 West Ottawa Street Lansing, MI 48909-0212 Attorney General of Minnesota Office of the Attorney General State Capitol Suite 102 St. Paul, MN 55155 Attorney General of Mississippi Office of the Attorney General Department of Justice Post Office Box 220 Jackson, MS 39205-0220 MICHIGAN MINNESOTA MISSISSIPPI Attorney General of Maryland Office of the Attorney General 200 Saint Paul Place Baltimore, MD 21202-2202 MARYLAND MASSACHUSETTS ADDRESS STATE (601) 359-3692 (612) 296-6196 (517) 373-1110 (617) 727-2200 (410) 576-6300 PHONE NO. NATIONAL WOMEN ’S LAW CENTER 39 Attorney General of Montana Office of the Attorney General Justice Building, 215 North Sanders Helena, MT 59620-1401 Attorney General of Nebraska Office of the Attorney General State Capitol Post Office Box 98920 Lincoln, NE 68509-8920 Attorney General of Nevada Office of the Attorney General Old Supreme Court Building 100 North Carson Street Carson City, NV 89701 MONTANA NEBRASKA NEVADA NEW JERSEY Attorney General of New Jersey Office of the Attorney General Richard J. Hughes Justice Complex 25 Market Street, CN 080 Trenton, NJ 08625 Attorney General of New Hampshire Office of the Attorney General State House Annex, 25 Capitol Street Concord, NH 03301-6397 Attorney General of Missouri Office of the Attorney General Supreme Court Building 207 West High Street Jefferson City, MO 65101 MISSOURI NEW HAMPSHIRE ADDRESS STATE (609) 292-4925 (603) 271-3658 (702) 687-4170 (402) 471-2682 (406) 444-2026 (573) 751-3321 PHONE NO. 40 NATIONAL WOMEN ’S LAW CENTER Attorney General of New York Office of the Attorney General Department of Law-The Capitol 2nd Floor Albany, NY 12224 Attorney General of North Carolina Office of the Attorney General Department of Justice Post Office Box 629 Raleigh, NC 27602-0629 Attorney General of North Dakota Office of the Attorney General State Capitol 600 East Boulevard Avenue Bismarck, ND 58505-0040 Attorney General of N. Mariana Islands Office of the Attorney General Administration Building Saipan, MP 96950 NORTH CAROLINA NORTH DAKOTA N. MARIANA ISLANDS Attorney General of New Mexico Office of the Attorney General Post Office Drawer 1508 Santa Fe, NM 87504-1508 NEW MEXICO NEW YORK ADDRESS STATE (670) 664-2341 (701) 328-2210 (919) 716-6400 (518) 474-7330 (505) 827-6000 PHONE NO. NATIONAL WOMEN ’S LAW CENTER 41 Attorney General of Oklahoma Office of the Attorney General State Capitol, Room 112 2300 North Lincoln Boulevard Oklahoma City, OK 73105 Attorney General of Oregon Office of the Attorney General Justice Building 1162 Court Street, NE Salem, OR 97310 Attorney General of Pennsylvania Office of the Attorney General Strawberry Square Harrisburg, PA 17120 OKLAHOMA OREGON PENNSYLVANIA RHODE ISLAND Attorney General of Rhode Island Office of the Attorney General 150 South Main Street Providence, RI 02903 Attorney General of Puerto Rico Office of the Attorney General Post Office Box 192 San Juan, PR 00902-0192 Attorney General of Ohio Office of the Attorney General State Office Tower 30 East Broad Street Columbus, OH 43266-0410 OHIO PUERTO RICO ADDRESS STATE (401) 274-4400 (787) 721-7700 (717) 787-3391 (503) 378-6002 (405) 521-3921 (614) 466-3376 PHONE NO. 42 NATIONAL WOMEN ’S LAW CENTER ADDRESS Attorney General of South Carolina Office of the Attorney General Rembert C. Dennis Office Building Post Office Box 11549 Columbia, SC 29211-1549 Attorney General of South Dakota Office of the Attorney General 500 East Capitol Pierre, SD 57501-5070 Attorney General of Tennessee Office of the Attorney General 500 Charlotte Avenue Nashville, TN 37243 Attorney General of Texas Office of the Attorney General Capitol Station Post Office Box 12548 Austin, TX 78711-2548 Attorney General of Utah Office of the Attorney General State Capitol, Room 236 Salt Lake City, UT 84114-0810 Attorney General of Vermont Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 STATE SOUTH CAROLINA SOUTH DAKOTA TENNESSEE TEXAS UTAH VERMONT (802) 828-3171 (801) 538-1326 (512) 463-2191 (615) 741-6474 (605) 773-3215 (803) 734-3970 PHONE NO. NATIONAL WOMEN ’S LAW CENTER 43 Attorney General of the Virgin Islands Office of the Attorney General Department of Justice G.E.R.S. Complex 48B-50C Kronprinsdens Gade St. Thomas, VI 00802 Attorney General of Washington Office of the Attorney General Post Office Box 40100 1125 Washington Street, SE Olympia, WA 98504-0100 Attorney General of West Virginia Office of the Attorney General State Capitol Charleston, WV 25305 VIRGIN ISLANDS WASHINGTON WEST VIRGINIA Attorney General of Wisconsin Office of the Attorney General State Capitol Post Office Box 7857 Suite 114 East Madison, WI 53707-7857 Attorney General of Virginia Office of the Attorney General 900 East Main Street Richmond, VA 23219 VIRGINIA WISCONSIN ADDRESS STATE (608) 266-1221 (304) 558-2021 (360) 753-6200 (809) 774-5666 (804) 786-2071 PHONE NO. 44 NATIONAL WOMEN ’S LAW CENTER United States Department of Justice Office of the Inspector General 1425 New York Ave., NW Washington, DC 20005 Attorney General of Wyoming Office of the Attorney General State Capitol Building Cheyenne, WY 82002 WYOMING UNITED STATES ADDRESS STATE (800) 869-4499 (307) 777-7841 PHONE NO. 46 NATIONAL WOMEN ’S LAW CENTER Alaska Stat. § 11.41.410 (1989 & Supp. 1996) Alaska Alaska Stat. § 11.41.420 (1989 & Supp. 1996) No Legislation1 Statute Alabama State § 11.41.420. Sexual assault in the second degree § 11.41.410. Sexual assault in the first degree Title § 11.41.420(a): An offender commits the crime of sexual assault in the second degree if (2) the offender engages in sexual conduct with a person (B) who is entrusted to the offender’s care (i) by authority of law; or (ii) in a facility or program that is required by law to be licensed by the Department of Administration under AS 47.33 or by the Department of Health and Social Services. § 11.41.410(a): A person commits the crime of sexual assault in the first degree if, (3) the defendant engages in sexual penetration with another person (B) who is entrusted to the defendant’s care (i) by authority of law; or (ii) in a facility or program that is required by law to be licensed by the Department of Administration under AS 47.33 or by the Department of Health and Social Services. Coverage Definitions/Notes § 12.55.125(d): The penalty for a class B felony shall be imprisonment for a term not to exceed 10 years. § 11.41.420(b): Sexual assault in the second degree is a class B felony. § 12.55.125(i): The penalty for an unclassified felony shall be (1): imprisonment for a term of 8 years for first time, unarmed offense. § 11.41.410(b): Sexual assault in the first degree is an unclassified felony. Penalties § 11.41.432. Defenses: (a) It is a defense to a crime charged under AS 11.41.410(a)(3) or AS 11.41.420 (a)(2) that the offender is: (1) mentally incapable; or (2) married to the person and neither party has filed with the court for a separation, divorce, or dissolution of the marriage. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 47 Arkansas Arizona State Ark. Code Ann. § 5-14-109 (Michie 1987 & Supp. 1995) [Enacted 7/20/96] Ariz. Rev. Stat. Ann. §13-1419 (1997) Statute § 5-14-109. Sexual abuse in the second degree §13-1419. Unlawful sexual conduct; correctional employees; prisoners; classification; definition Title § 5-14-109: Sexual abuse in the second degree: (a) A person commits sexual contract with the Department of abuse in the second degree if: (3) He or she, being employed directly or through Corrections or the Department of Community Punishment, engages in sexual contact for the purpose of sexual gratification with any person in the custody of the Department of Correction or the Department of Community Punishment, the consent of the person in custody notwithstanding. B: A prisoner who is in the custody of the state Department of Corrections or an offender who is on release status and who is under the supervision of the state department of corrections commits unlawful sexual contact by engaging in oral sexual contact, sexual contact, or sexual intercourse with a person who has custodial responsibility for the prisoner or offender. §13-1419.A: A person who has custodial responsibility for a prisoner or an offender who is on release status and who is under the supervision of the Department of Corrections commits unlawful sexual conduct by engaging in oral sexual contact, sexual contact or sexual intercourse with a prisoner who is in the custody of the department or an offender who is under the supervision of the department. Coverage NOTE: The statute makes it illegal for the prisoner to engage in any sexual contact with a custodian. §13-1419.E: For the purposes of this section “custodial responsibility” means having responsibility for the care, management or control of a prisoner who is committed to the state Department of Corrections or an offender who is under the supervision of the state department of corrections. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners 5-4-201(b)(1): a fine not to exceed $1,000. 5-4-401(b)(1): The penalty for a Class A misdemeanor shall be imprisonment for a term not to exceed 1 year; and/or 5-14-109(b): Sexual abuse in the second degree is a Class A misdemeanor. § 5-14-109: Consent is not a defense. §13-1419.C.2: Marriage is a defense for an offender who is on release status if the marriage occurred before the prisoner was incarcerated by the Department of Corrections. § 13-802(A): a fine not to exceed $150,000. § 13-701(C)(4): The penalty for a class 5 felony shall be imprisonment for two years and/or §13-1419.C.1: Marriage is a defense for custodian if the the marriage occurred before the prisoner was incarcerated by the Department of Corrections. Defenses § 13-1419.D: Unlawful sexual conduct is a class 5 felony. Penalties 48 NATIONAL WOMEN ’S LAW CENTER California State Title Cal. Penal Code § 289.6. Public § 289.6 (West 1996 entity employees, Supplement) officers, or agents; sexual activity with confined consenting adult; defense; application; violation; penalty Statute § 289.6(a): An employee or officer of a public entity, or an employee, officer, or agent of a private person or entity that provides a detention facility or staff for a detention facility under contract with a public entity, who engages in sexual activity with a consenting adult who is confined in a detention facility is guilty of a public offense. Coverage Definitions/Notes § 18: The penalty for a felony where not otherwise prescribed shall be imprisonment for a term of 16 months, 2 years, or 3 years. § 289.6(h): Any person previously convicted of a violation of this section shall, upon a subsequent violation be guilty of a felony. § 19: The penalty for a misdemeanor where not otherwise prescribed shall be imprisonment in the county jail for a term not to exceed 6 months, and/or a fine not to exceed $1,000. § 289.6 (g): Any violation of this section shall constitute a misdemeanor. Penalties § 289.6(f): This section does not apply to sexual activity between consenting adults that occurs during an overnight conjugal visit that takes places pursuant to a court order or with the written approval of an authorized representative of the public entity that operates or contracts for the operation of the detention facility where the conjugal visit takes place. § 289.6 (e) Consent by a confined person to sexual activity proscribed by this section is not a defense to a criminal prosecution for violation of this section. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 49 Conn. Gen. Stat. Ann. § 53a-71 (West 1958 & Supp. 1994) Connecticut Conn. Gen. Stat. Ann. § 53a-73a (West 1958 & Supp. 1994) Colo. Rev. Stat. § 18-3-403 (1986 & Supp. 1995) Statute Colorado State Coverage § 53a-73a. Sexual assault in the fourth degree: Class A misdemeanor § 53a-71. Sexual assault in the second degree: Class C felony: Nine months not suspendable § 53a-73a: Sexual assault in the fourth degree: (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person. § 53a-71: Sexual assault in the second degree: (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (5) such other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person. § 18-3-403. Sexual § 18-3-403: Sexual assault in the second assault in the degree. (1) Any actor who knowingly second degree inflicts sexual penetration or sexual intrusion on a victim commits sexual assault in the second degree if: (g) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority, unless the sexual intrusion is incident to a lawful search, to coerce the victim to submit. Title Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners § 53a-36: The penalty for a class A misdemeanor shall be imprisonment for a term not to exceed 1 year. § 53a-73a(b): Sexual assault in the fourth degree is a class A misdemeanor. § 53a-35a(6): The penalty for a class C felony shall be imprisonment for a term not less than 1 year nor more than 10 years. § 53a-71(b): Sexual assault in the second degree is a class C felony for which 9 months of the sentence imposed may not be suspended or reduced by the court. § 18-1-105(III)(A): a fine ranging from $2,000 to $500,000. § 18-1-105(V)(A): The penalty for a class 4 felony shall be imprisonment for a term ranging from 2-6 years with a 3 year mandatory probation and/or § 18-3-403(2): Sexual assault in the second degree is a class 4 felony. Penalties Defenses 50 NATIONAL WOMEN ’S LAW CENTER District of Columbia Delaware State Title D.C. Code Ann. § 22-4101. § 22-4101 (1981 & Definitions Supp. 1996) § 22-4113. First D.C. Code Ann. degree sexual § 22-4113 (1981 abuse of a ward & Supp. 1996) § 22-4114. Second D.C. Code Ann. degree sexual § 22-4114 (1981 & abuse of a ward 1996) § 22-4117. D.C. Code Ann. Defenses to sexual § 22-4117 (1981 abuse of a ward, & 1996) patient, or client De. Code Ann. tit. § 1259. Sexual 11, § 1259 (1974 & relations in detenSupp. 1995) tion facility; Class G felony Statute NOTE: The statute also makes it illegal for a prisoner to engage in sexual relations with an employee at the detention facility. Definitions/Notes § 22-4101: Definitions: For the purposes of this chapter: (6) “Official custody” means: (A) Detention following arrest for an offense; following a charge or conviction of an offense, or an allegation or finding of juvenile delinquency; following commitment as a material witness; § 22-4114: Second degree sexual abuse of a following or pending ward: Whoever engages in sexual contact civil commitment with another person or causes another person proceedings, or pending to engage in or submit to sexual contact extradition, deportation, when that other person: (1) Is in official or exclusion. custody, or is a ward or resident, on a permanent or temporary basis, of a hospital, treatment facility, or other institution; and (2) Is under the supervisory or disciplinary authority of the actor shall be imprisoned for not more than 5 years and, in addition, may be fined in an amount not to exceed $50,000. § 22-4113: First degree sexual abuse of a ward: Whoever engages in a sexual act with another person or causes another person to engage in or submit to a sexual act when that other person: (1) Is in official custody, or is a ward or resident, on a permanent or temporary basis, of a hospital, treatment facility, or other institution; and (2) Is under the supervisory or disciplinary authority of the actor shall be imprisoned for not more than 10 years and, in addition, may be fined in an amount not to exceed $100,000. § 1259: Sexual Relations in detention facility; Class G felony: A person is guilty of sexual relations in a detention facility when, being a person in custody at a detention facility or being an employee working at a detention facility, the person engages in sexual intercourse or deviate sexual intercourse on the premises of a detention facility. Coverage Defenses § 22-4114: The penalty for second degree sexual abuse of a ward (2): shall be imprisonment for a term not to exceed 5 years and may include a fine not to exceed $50,000. § 22-4113: The penalty for first degree sexual abuse of a ward (2): shall be imprisonment for a term not to exceed 10 years, and may include a fine not to exceed $100,000. 4205(k): may include fines and penalties as the court deems appropriate. § 22-4117(a): Consent is not a defense, to either first or second degree sexual abuse of a ward; (b) Marriage between the defendant and the victim at the time of the offense is a defense to both first and second degree sexual abuse of a ward, which the defendant must prove by a preponderance of the evidence. § 1259: Violation of this § 1259: It shall be section is a class G no defense that felony. such conduct was consensual. 4205(b)(7): The penalty for a class G felony shall be imprisonment at Level V for a term not to exceed 2 years, and Penalties Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 51 Florida State (Approved 5/30/96) Fla. Stat. Ann. § 944-35 Statute Authorized use of Force; Malicious battery & Sexual misconduct prohibited; reporting required Title Covers offense of sexual misconduct by Department of Corrections employees with inmates or offenders being supervised by the Department of Corrections. Also covers the offense of failure to make reports of such activity or preventing another from doing so. Coverage Sexual Misconduct: oral, anal, vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object. Does not include internal search or bona fide medical exam. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners Inaccurate or false reports is a misdemeanor of the first degree. Preventing others from reporting is a felony in the third degree. Failure to report is a misdemeanor of the first degree. The penalty for a misdemeanor of the first degree shall be imprisonment for a term not to exceed 1 year. Sexual misconduct is a felony in the third degree. The penalty for a felony in the third degree shall be: imprisonment for a term not to exceed 5 years; dismissal from employment; and prohibition from employment in any capacity in connection with the correctional system. Penalties Marriage is a defense. Ignorance that inmate is an inmate or under the supervision by the Department of Corrections is a defense. Consent is not a defense. Defenses 52 NATIONAL WOMEN ’S LAW CENTER Hawaii Georgia State § 707-731. Sexual assault in the second degree § 707-732. Sexual assault in the third degree Haw. Rev. Stat. Ann. § 707-732 (Michie 1994) § 16-6-5.1. Sexual assault against persons in custody; sexual assault against person detained or patient in hospital or other institution; sexual assault by practitioner of psychotherapy against patient Title Haw. Rev. Stat. Ann. § 707-731 (Michie 1994) Ga. Code Ann. § 16-6-5.1 (1996) Statute § 707-732: Sexual assault in the third degree: (1) A person commits the offense of sexual assault in the third degree if: (d) the person, while employed in a state correctional facility, knowingly subjects to sexual contact with an imprisoned person or causes such person to have sexual contact with the actor. § 707-731: Sexual assault in the second degree: (1) A person commits the offense of sexual assault in the second degree if: (c) the person, while employed in a state correctional facility, knowingly subjects to sexual penetration by an imprisoned person. § 16-6-5.1(b): A probation or parole officer or other custodian or supervisor of another person referred to in this Code section commits sexual assault when he engages in sexual contact with another person who is a probationer or parolee under the supervision of said probation or parole officer or who is in the custody of law or who is enrolled in a school or who is detained in or is a patient in a hospital or other institution and such actor has supervisory or disciplinary authority over such other person.(c)(1): A person commits sexual assault when such person has supervisory or disciplinary authority over another person and such person engages in sexual contact with that other person who is: (A) In the custody of law; or (B) Detained in or is a patient in a hospital or other institution. Coverage § 16-6-5.1(a): As used in this Code section, the term: (2) “Intimate parts” means the genital area, groin, inner thighs, buttocks, or breasts of a person; (4) “Sexual Contact” means any contact for the purpose of sexual gratification of the actor with the intimate parts of a person not married to the actor. Definitions/Notes § 706-660: The penalty for a class B felony shall be imprisonment for a term of 10 years. The penalty for a class C felony shall be imprisonment for a term of 5 years. § 707-732(2): Sexual assault in the third degree is a class C felony. § 707-731(2): Sexual assault in the second degree is a class B felony. § 16-6-5.1(b): The penalty for sexual assault shall be imprisonment for a term not less than 1 nor more than 3 years. Penalties The definition of “sexual contact” in § 16-6-5.1(a)(4) excludes contact between married persons. § 16-6-5.1(c)(3): Consent of the victim is not a defense. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 53 Ill. Criminal Code §11-9.2. §11-9.2 Custodial Sexual Misconduct Illinois § 18-6110. Sexual contact with an inmate Title Idaho Code § 186110 (1987 & Supp.1996) Statute Idaho State §11-9.2 (a) A person commits the offense of custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system. § 18-6110: Sexual contact with an inmate. It is a felony for any officer, employee or agent of a jail or correctional facility to have sexual contact with an inmate of such facility. Coverage §11-9.2(g). 1. “Custody” means: (I) pretrial incarceration or detention; (ii) incarceration or detention under a sentence or commitment to a state or local penal institution; 3. “Employee” means: (I) an employee of any governmental agency of this State or any county or municipal corporation that has by statute, ordinance, or court order the responsibility for the care, control, or supervision of pretrial or sentenced persons in a penal system; (4) “Sexual conduct” or “sexual penetration” means any act of sexual conduct of sexual penetration as defined in Section 12-12 of this code. § 18-6110: For the purposes of this section sexual contact means sexual intercourse, genital-genital, oralgenital, anal-genital or oral-anal, between persons of the same or opposite sex. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners A Class 3 felony carries a penalty of 2-5 years. §11-9.2 Custodial sexual misconduct is a Class 3 felony. § 18-6110: The penalty for sexual contact with an inmate shall be imprisonment in the state prison for a term not to exceed life. Penalties §11-9.2.(f)(2) Lack of knowledge that the individual with whom the employee was engaged in custodial sexual misconduct of a prisoner is a defense. §11-9.2.(f)(1) Marriage is a defense if the marriage occurred prior to the date of custody. §11-9.2.(e) Consent is not a defense to a criminal charge under this section. Defenses 54 NATIONAL WOMEN ’S LAW CENTER Iowa Code Ann. § 709.16 (West 1993) Kan. Stat. Ann. § 21-3520 (1995) Kansas Ind. Code Ann. § 35-44-1-5 (West 1986 & Supp. 1996) Statute Iowa Indiana State § 21-3520. Unlawful sexual relations § 709.16. Sexual misconduct with offenders § 35-44-1-5. Sexual misconduct by service provider with detainee Title § 21-3520: Unlawful sexual relations: (a) Unlawful sexual relations is engaging in consensual sexual intercourse or sodomy with a person who is not married to the offender if: (1) The offender is an employee of the department of corrections or the employee of a contractor who is under contract to provide services in a correctional institution and the person with whom the offender is engaging in consensual sexual intercourse or sodomy is an inmate; or (2) the offender is a parole officer and the person with whom the offender is engaging in consensual sexual intercourse or sodomy is an inmate who has been released on parole or conditional release or postrelease supervision under the direct supervision and control of the offender. § 709.16: Sexual misconduct with offenders: An officer, employee, contractor, vendor, volunteer or agent of a judicial district department of correctional services, who engages in a sex act with an individual committed to the custody of the Department of Corrections or a judicial district department of correctional services commits an aggravated misdemeanor. § 35-44-1-5: Sec. 5(b) A service provider who knowingly or intentionally engages in sexual intercourse or deviate sexual conduct with a person who is subject to lawful detention commits sexual misconduct. Coverage § 35-44-1-5: Sec. 5(a) As used in this section, “service provider” means a public servant or other person employed by a governmental entity or another person who provides goods or services to a person who is subject to lawful detention. Definitions/Notes § 21-4704(a): The penalty for a severity 10 person felony shall be imprisonment for a term between 6 and 12 months depending on offender’s criminal history. § 21-3520(c): Unlawful sexual relations is a severity 10 person felony. § 903.1(2): The penalty for an aggravated misdemeanor shall be imprisonment for a term not to exceed 2 years and a fine ranging between $500 and $5,000. § 709.16: Sexual misconduct with offenders is an aggravated misdemeanor. § 35-50-2-7(a): The penalty for a Class D felony is imprisonment for 11/2 years and may also include a fine not to exceed $10,000. § 35-44-1-5(b): Sexual misconduct is a class D felony. Penalties Consent is not a defense. Marriage is a defense. § 35-44-1-5(c): It is not a defense that an act described in subsection (b) was consensual. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 55 Massachusetts Maryland No Legislation1 Last Action: 2/24/98 before Committee on Judiciary: Reported favorably. 1998 Maryland Senate Bill 156 BILL INTRODUCED § 253 (West 1983 & Supp. 1995) Me. Rev. Stat. Ann. tit. 17-A, Maine § 253. Gross sexual assault La. Rev. Stat. Ann. § 134.1. § 134.1 (West Malfeasance in 1986) office; sexual conduct prohibited with persons confined in correctional institutions Title Louisiana 1 No Legislation Statute Kentucky State Provides that a fourth degree sexual offense includes sexual activity between an individual who works in a correctional facility or supervises offenders in the community and someone incarcerated or supervised in the community; relates to custodial employees and individuals in custody. § 253(2): A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: (E) The other person, not the actor’s spouse, is in official custody as a probationer or a parolee, or is detained in a hospital, prison or other institution, and the actor has supervisory or disciplinary authority over the other person. § 134.1: Malfeasance in office; sexual conduct prohibited with persons confined in correctional institutions. A. It shall be unlawful and constitute malfeasance in office for any person who is a law enforcement officer, officer of the Department of Corrections, or employee of a prison, jail, or correctional institution, to engage in sexual intercourse or any other sexual conduct with a person confined in a prison, jail or correctional institution. Coverage Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners Defenses § 1252(2)(B): The penalty for a Class B crime shall be imprisonment for a term not to exceed 10 years. § 253(5): Violation of Marriage is a subsection 2, paragraph E defense. is a Class B crime. § 134.1.B: Penalty for a violation of a provision of this section shall be imprisonment for a term not to exceed 10 years and/or a fine not to exceed $10,000. Penalties 56 NATIONAL WOMEN ’S LAW CENTER Title 1998 Miss. H.B. 59 (Miss. 1998) Mississippi H.B. 59 An Act to Prohibit Jailers and Approved by Gov. Other Officials March 26, 1998 From Engaging in Sexual Conduct with Prisoners; To Prescribe Penalties for Violations; and for Related Purposes No Legislation1 Mich. Comp. Laws § 750.520e. Fourth Ann. § 750.520e degree criminal (West 1991 & sexual conduct Supp. 1996) Statute Minnesota Michigan State Section 2. This act shall take effect and be in force from and after its passage. Section 1. It shall be unlawful for any jailer, guard, employee of the Department of Corrections, sheriff, constable, marshal or other officer to engage in any sexual penetration as defined in Section 97-3-97, Mississippi code of 1972, with any offender, with or without the offender’s consent, who is incarcerated at any jail or any state, county or private correctional facility. § 750.520e.(1): A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist: (e) That other person is a prisoner or probationer under the jurisdiction of a county for purposes of imprisonment or a work program or other probationary program and the actor is an employee or a contractual employee of or a volunteer with the county who knows that the other person is under the county’s jurisdiction. Coverage Definitions/Notes Section 1. Any person who violates this section shall be guilty of a felony and upon conviction shall be fined not more than $5,000 or imprisoned for a term not to exceed 5 years, or both. § 750.520e(2): Criminal sexual conduct in the fourth degree is a misdemeanor the penalty for which shall be imprisonment for a term not to exceed 2 years and/or a fine not to exceed $500. Penalties Consent is not a defense. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 57 No Legislation1 No Legislation1 Montana Nebraska §217.405. Offender abuse, penalty — employees not to use physical force, exceptions Title Coverage § 217.410.1: When any employee of the department has reasonable cause to believe that an offender in a correctional center operated or funded by the department has been abused, he shall immediately report it in writing to the director. § 217.405: Offender abuse, penalty employees not to use physical force, exceptions: (1) Except as provided in subsection 3 of this section, a person commits the crime of “offender abuse” if he Mo. Ann. Stat. knowingly injures the physical well-being of § 217.410 (Vernon § 217.410. Abuse any offender under the jurisdiction of the 1983 & Supp. of offender, duty to department by beating, striking, wounding 1996) report, penalty— or by sexual contact with such person. confidentiality of (3) No employee of the department shall use report, immunity physical force on an offender except the from liability— employee shall have the right to use such harassment physical force as is necessary to defend prohibited himself, suppress an individual or group revolt or insurrection, enforce discipline or to secure the offender. Mo. Ann. Stat. § 217.405 (Vernon 1983 & Supp. 1996) Statute Missouri State NOTE: There is a requirement to report reasonable belief of abuse. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners § 558.011.1(5): The penalty for a class A misdemeanor shall be imprisonment for a term not to exceed 1 year. § 558.011.1(3): The penalty for a class C felony shall be imprisonment for a term not to exceed 7 years. § 217.410.3: Any person required by subsection 1 of this section to report or cause a report to be made, but who fails to do so within a reasonable time after the act of abuse or neglect is guilty of a class A misdemeanor. § 217.405.2: Offender abuse is a class C felony. Penalties Defenses 58 NATIONAL WOMEN ’S LAW CENTER Title Effective January 1, 1998 Ann. §§ 632-A: (2), (3) §632-A:3. Felonious Sexual Assault § 632-A:2. Aggravated Felonious Sexual Assault; § 212.187. Voluntary sexual conduct between (amended 10/1/97) prisoner and another person is unlawful Nev. Rev. Stat. § 212.187 (1997) Statute New Hampshire N.H. Rev. Stat. Nevada State Consent of the victim under . . . (n) shall not be considered a defense. § 632-A:2. I. A person is guilty of the felony of aggravated felonious sexual assault if he engages in sexual penetration with another person under any of the following circumstances:(n) When the action is in a position of authority over the victim and use this authority to coerce the victim to submit under any of the following circumstances: (1) When the actor has supervisory authority over the victim by virtue of the victim being incarcerated in a correctional institution or juvenile detention facility; (2) When a probation or parole officer has supervisory authority over the victim while the victim is on parole or probation or under juvenile probation. (2) A person who voluntarily engages in sexual conduct with a prisoner who is in lawful custody or confinement, other than residential confinement, is guilty of a category D felony. § 212.187(1): A prisoner who is in lawful custody or confinement, other than residential confinement, and who voluntarily engages in sexual conduct with another person is guilty of a category D felony. Coverage § 212.187(2): As used in this section, sexual conduct means acts of masturbation, homosexuality, sexual intercourse or physical contact with another’s unclothed genitals or pubic area to arouse, appeal to or gratify the sexual desires of a person. Definitions/Notes Defenses §632-A:(3) Violation of § 632-A:2. Is a class B felony which carries a penalty of three and one-half to seven years in prison. § 193.130: (2) (d): A category D felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term not less than 1 year and a maximum term of not more than 4 years. In addition to any other penalty, the court may impose a fine of not more than $5,000 unless a greater fine is authorized or required by statute. Consent is not a defense. Violation of § 212.187 Consent is not a (2) is a category D felony. defense. Penalties Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 59 N.Y. Penal Law § 130.05 (McKinney 1996) New York § 130.05. Sex offenses N.M. Stat. Ann. § 30-9-11. § 30-9-11 (Michie Criminal sexual 1978 & Supp. penetration 1996) New Mexico § 2C: 14-2. Sexual assault Title N.J. Stat. Ann. § 2C: 14-2 (West 1995) Statute New Jersey State § 130.05: Whether or not specifically stated, it is an element of every offense defined in this article ... that the sexual act was committed without consent of the victim: (3) A person is deemed incapable of consent when he or she is: (e) committed to the care and custody of the state department of correctional services or a hospital; or (f) committed to the care and custody of a local correctional facility. § 30-9-11: Criminal sexual penetration. D. Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated:(2) on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate. § 2C:14-2.c: An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status. Coverage (1) Covers employees of the state department of correctional services who perform professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs or vocational training for inmates. (2) Also covers employees of the division of parole and office of mental health who perform professional duties and provide professional services in a state correctional facility. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners § 70.15(1): A sentence of imprisonment for a class A misdemeanor shall ... be fixed by the court, and shall not exceed one year. § 70.00(2)(e): For a class E felony, the term shall be fixed by the court, and shall not exceed four years. Violation of this section is either a class E felony or a class A misdemeanor, depending on the nature and severity of the assault. § 31-18-15.A.(3): The penalty for a second degree felony shall be imprisonment for a term of 9 years and E.(3): may include a fine of up to $10,000. § 30-9-11.D. Criminal sexual penetration in the second degree is a second degree felony. § 2C:43-6a(2): The penalty for a crime of the second degree shall be imprisonment for a term of between 5 and 10 years. § 2C:14-2: Sexual assault is a crime of the second degree. Penalties Marriage is a defense. Consent is not a defense. Defenses 60 NATIONAL WOMEN ’S LAW CENTER § 12.1-20-06. Sexual abuse of wards § 12.1-20-07. Sexual assault N.D. Cent. Code § 12.1-20-07 (1985) § 14-27.7. Intercourse and sexual offenses with certain victims; consent no defense Title N.D. Cent. Code § 12.1-20-06 (1985) N.C. Gen. Stat. § 14-27.7 (1993) North Carolina North Dakota Statute State § 12.1-20-07.1: A person who knowingly has sexual contact with another, or who causes such other person to have sexual contact with him, is guilty of an offense if: (d) The other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over him or her. § 12.1-20-06: A person who engages in a sexual act with another person or any person who causes another to engage in a sexual act is guilty of a class A misdemeanor if the other person is in official custody or detained in a hospital, prison, or other institution and the actor has supervisory or disciplinary authority over the other person. § 14-27.7: Intercourse and sexual offenses with certain victims; consent no defense: . . . if a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class E felony. Coverage CASE NOTE: Custodial sexual offense does not require act by force against the will of another person. It requires that the perpetrator or the perpetrator’s principal or employer, have custody of the victim. State v. Raines, 319 N.C. 358, 354 S.E. 2d 486 (1987). Definitions/Notes § 12.1-32-01.6: The penalty for a class B misdemeanor shall be imprisonment for a term not to exceed 30 days and/or a fine not to exceed $500. § 12.1-32-01.5.: The penalty for a class A misdemeanor shall be imprisonment for a term not to exceed 1 year and/or a fine of $1,000. § 12.1-20-07(2): Sexual assault is a class B misdemeanor. § 12.1-20-06: Sexual abuse of wards is a class A misdemeanor. § 15A-1340.17: The penalty for a class E felony shall be a fine at the discretion of the court and imprisonment for a term between 20 and 59 years depending on the amount and kind of prior offenses. § 14-27.7 A violation of this section is a class E felony. Penalties § 14.27.7: Consent is not a defense to a charge under this section. Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 61 Okla. Stat. Ann. tit. 21, § 1111 (West 1983 & Supp. 1996) Oklahoma Pa. Stat. Ann. tit. 18, § 3126 (1983 Supp. 1996) Pennsylvania By 1995 amendment, the legislature amended the statute and deleted “in custody of law” language. Legislation has been introduced to add that language back to the statute. No Legislation1 Oregon Okla. Stat. Ann. tit. 21, § 1116 (West 1983 & Supp. 1996) Okla. Stat. Ann. tit. 21, § 1114 (West 1983 & Supp. 1996) Ohio Rev. Code Ann. § 2907.03 (1993) Statute Ohio State § 1114. Rape in the first degreesecond degree § 1111. Rape Defined § 2907.03. Sexual battery Title § 3126 [before the 1995 amendment]: (a) Offense defined.—A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him, is guilty of indecent assault if: (5)the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him. HOW SECTION READ BEFORE THE AMENDMENT § 1111: Rape defined: A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances: 7. Where the victim is under the legal custody of a state agency and engages in sexual intercourse with a state employee or employee of a contractor of the state that exercises authority over the victim. § 2907.03: Sexual battery: (A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person. Coverage Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners § 1116: The penalty for rape in the second degree shall be imprisonment in the penitentiary for a term ranging between 1-15 years. § 1114.B: Violation of this section is rape in the second degree. § 2929.14(A)(3): The penalty for a felony of the third degree shall be imprisonment for a term of between 1 and 5 years. § 2907.03(B): Sexual battery is a felony of the third degree. Penalties Marriage is a defense. Marriage is a defense. Defenses 62 NATIONAL WOMEN ’S LAW CENTER No Legislation1 Tennessee Sexual intercourse with a patient, trainee; employee of a correctional facility engaging in sexual intercourse with an inmate. §44-23-1150. Illegal sexual intercourse: §11-25-24. Correctional employees — sexual relations with inmates — felony Title S.D. Codified § 24-1-26.1. Laws Ann. Sexual acts § 24-1-26.1 (1997) prohibited between prison employees and prisoners (amended 6/11/97) S.C. Code Ann. §44-23-1150 R.I. Gen. Laws § 11-25-24 (1994 & Supp. 1995) Statute South Dakota South Carolina Rhode Island State § 24-1-26.1: Sexual acts prohibited between prison employees and prisoners. Any person, employed by the state, or employed within any state prison or other detention facility, who knowingly engages in an act of sexual penetration with another person who is in detention and under the custodial, supervisory, or disciplinary authority of the person so engaging, is guilty of a Class 6 felony. § 44-23-1150. An employee of a state or local correctional facility having sexual intercourse with an inmate of that facility, is guilty of a felony. §11-25-24: Correctional employees — sexual relations with inmates — felony. Every employee of the Department of Corrections or the employee of a contractor who is under contract to provide services in a correctional institution who engages in sexual penetration as defined in § 11-37-1 in chapter 37 of this title entitled “Sexual Assault” with an inmate confined therein or who is otherwise under the direct custodial supervision and control of said employee shall be guilty of a felony. Coverage § 11-37-1.(8): “Sexual penetration” - sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person’s body or by any object into the genitalia or anal openings of another person’s body, but emission of semen is not required. Definitions/Notes § 22-6-1: The penalty for a Class 6 felony shall be imprisonment in the state penitentiary for a term of 2 years and/or a fine of $2,000. § 24-1-26.1: The violation of this section is a Class 6 felony. § 44-23-1150. An employee of a state or local correctional facility having sexual intercourse with an inmate of that facility, upon conviction, must be imprisoned not more than 10 years. § 11-25-24: Violation of this section is a felony the penalty for which shall be imprisonment for a term not to exceed 5 years and/or a fine not to exceed $10,000. Penalties Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 63 No Legislation1 No Legislation1 No Legislation1 No Legislation1 No Legislation1 Wis. Stat. Ann. § 940.29 (West 1996) Vermont Virginia Washington West Virginia Wisconsin Amended September 1, 1997. Tex. Penal Code Ann. Sec. 39.04 (Vernon 1994 and 1997 pocket part) Statute Utah Texas State § 940.29. Abuse of residents of penal facilities Sec.39.04 Violations of the Civil Rights of Person in Custody; Improper Sexual Activity Title § 940.29: Any person is charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class E felony. Sec.39.04 (a) An official or employee of a correctional facility or a peace officer commits an offense if he intentionally: (2) engages in sexual intercourse or deviate sexual intercourse with an individual in custody. Coverage Sec. 39.04(b) An offense under Sections (a)(2) is a state jail felony. Penalties § 939.50(3)(e): The penalty for a Class E felony shall be imprisonment for a term not to exceed 2 years and/or a fine not to exceed $10,000. § 940.29: The abuse of residents of penal facilities is a Class E felony. Sec. 12.35: The penalty for a state jail felony is 180 days to 2 years in the (2) “Sexual intercourse” state jail and/or a fine not and “deviate intercourse” to exceed $10,000. have the meaning assigned by Section 21.01. Sec. 39.04 9 (e) In this section: (1) “Custody” means the detention, arrest or confinement of a person. Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners Defenses 64 NATIONAL WOMEN ’S LAW CENTER Wyoming State Wyo. Stat. § 6-2-306 (1988) Wyo. Stat. § 6-2-303 (1988) Statute § 6-2-303. Sexual assault in the second degree Title § 6-2-303: Sexual Assault in the second degree. (a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting assault in the first degree: (vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit. Coverage § 6-2-301(a)(iv): “Position of authority means that position occupied by a parent, guardian, relative, household member, teacher, employers, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person. In Scudder v. Wyoming, 732 P.2d 136 (1987) the Wyoming Supreme Court stated that “a jailer .. [has] power over his prisoner, and therefore, the jailer is in a position of authority over the prisoner.” Id at 1042. Definitions/Notes §6-2-306(a)(ii): The penalty for sexual assault in the second degree shall be imprisonment for a term not to exceed 20 years. Penalties Defenses Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners NATIONAL WOMEN ’S LAW CENTER 65 United States State 2 18 U.S.C. § 2246 (1994) 18 U.S.C. § 2244 (1994) 18 U.S.C. § 2243 (1994) 18 U.S.C. § 2242 (1994) 18 U.S.C. § 2241 (1994) Statute § 2242 covers engaging in a sexual act in federal prison with someone who is incapable of appraising the nature of the conduct or is physically incapable of declining participation. Specifically covers conduct in federal prisons. § 2241: “Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison,” knowingly causes another person to engage in a sexual act by using force, threats, rendering the other unconscious, or administering drugs. Coverage § 2246. Definitions for chapter § 2243: Sexual abuse of a minor or ward. (b) Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who is-(1) In official detention; and (2) under the custodial, supervisory, or disciplinary authority of the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than one year, or both. § 2244. Abusive sexual contact § 2243. Sexual abuse of a minor or ward § 2242. Sexual abuse § 2241. Aggravated sexual abuse Title Definitions/Notes Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners U.S.S.G. § 2A3.4(a)(3): The base penalty for abusive sexual contact shall be imprisonment for a term of 6-12 months. U.S.S.G. § 2A3.3(a): The base penalty for sexual abuse of a ward shall be imprisonment for a term of 4-10 months. U.S.S.G. § 2A3.2(a): The base penalty for sexual abuse of a minor shall be imprisonment for a term of 18-24 months. U.S.S.G. § 2A3.1(a): The base penalty for sexual abuse shall be imprisonment for a term of 70-87 months. U.S.S.G. § 2A3.1(b)(1): The base penalty for aggravated sexual abuse shall be imprisonment for a term of 108-135 months. For offenders with 0 to 1 prior offenses: Penalties § 2243: Sexual abuse of a minor or ward. (c)(2): In a prosecution under this section, it is a defense, which the defendant must establish by a preponderance of the evidence, that the persons engaging in the sexual act were at that time married to each other. Defenses 66 NATIONAL WOMEN ’S LAW CENTER 2. The United States Code is included in this 50-state survey because of the increasing impact of federal criminal legislation on criminal defendants, particularly with regard to drug offenses. With the federalization of many drug offenses, criminal defendants are being sentenced to federal prisons in increasing numbers. Prisoners sentenced for drug offenses constitute the largest group of ferderal inmates (60%) in 1995, up from 34% in 1985. Between 1985 and 1995, the federal prison population increased approximately 283% (from 31,364 to 88, 801). The increase of 42,000 drug offenders counted for more than 80% of that growth. 1. In states that have no specific legislation criminalizing the sexual abuse of prisoners, correctional employees may be prosecuted under the state’s existing sexual assault and rape statutes. Under these laws, consent is a defense to criminal liability. However, many experts believe that the inherent disparity in power between prisoners and correctional employees renders valid consent impossible in the prison context. Also, from both a management and public policy perspective, sanctioning consensual sex between correctional employees and prisoners severely compromises legitimate correctional goals such as prison security, inmate management, and rehabilitation. Notes and Comments NATIONAL WOMEN ’S LAW CENTER 67 68 NATIONAL WOMEN ’S LAW CENTER ✃ An End to Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct National Women’s Law Center 11 Dupont Circle, NW, Suite 800 Washington, DC 20036 202/588-5180; fax: 202/588-5185 S exual harassment and sexual misconduct against incarcerated persons violates either the law or corrections policy in all 50 states. Incarcerated women who experience verbal or physical harassment, assault or misconduct have the right to remedy the abuse. Corrections institutions should also remedy this conduct because sexual misconduct threatens both personal and institutional security. To provide critical information and strategies to address this problem, the National Women’s Law Center has produced an educational manual designed for incarcerated women and others concerned about sexual misconduct in correctional institutions. An End to Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct is the latest in a series of publications developed as part of the National Women’s Law Center’s Women in Prison Project. The project employs a strategy of litigation, advocacy, training and support aimed at reducing and preventing the incarceration of women, and improving the conditions of confinement for women who are incarcerated. The project serves as a model for programs throughout the United States. ORDER FORM NAME (Orders must be pre-paid, we cannot bill.) ORGANIZATION YES ❏ NO ❏ Non-Profit ADDRESS *Please make check payable to the National Women’s Law Center and mail to: NATIONAL WOMEN’S LAW CENTER ATTENTION: An End to Silence 11 Dupont Circle, NW Suite 800 Washington, DC 20036 202/588-5180; fax: 202/588-5185 DAYTIME TELEPHONE:( ) CALL FOR INFORMATION ABOUT BULK ORDERS ITEM An End to Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct PRICE QUANTITY $25 $15 (Non-profit) (D.C. residents add 5.75% sales tax) AMOUNT ✃ An End to Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct Reader Survey The National Women’s Law Center invites your response to the following questions about the value of this publication. Your answers will help the Center continue to develop educational materials that meet your need for information. Did this handbook answer your basic questions about sexual harassment and sexual misconduct in prison? ❏ Yes ❏ No If no, what other questions did you have? ❏ Yes Do you think the handbook explained the issues clearly? ❏ No Based on the information you learned from this handbook, if you or someone you know became a victim of sexual misconduct or sexual assault, would you know what steps to take to address the situation? ❏ Yes ❏ No Would you feel comfortable in taking those steps? ❏ Yes ❏ No What did you like most about this handbook? What, if any, suggestions do you have for improving the handbook? How did you receive the handbook? ❏ distributed by corrections department ❏ from an attorney ❏ mailed from the National Women’s Law Center ❏ from a friend ❏ other How would you rate the overall effectiveness of this handbook? (5 = Very effective; 1 = not effective) 5 4 3 2 1 How will you use the information you obtained in the handbook? I am a(n): ❏ incarcerated woman; ❏ corrections staff person; ❏ corrections administrator; ❏ lawyer; ❏ advocate; ❏ appointed or elected official; ❏ other (please specify) Name (optional) Address Would you like additional information about this issue or other Center programs? Thank you. ❏ Yes ❏ No Date: Fold Here BUSINESS REPLY MAIL FIRST CLASS MAIL PERMIT NO. 13906 WASHINGTON, D.C. POSTAGE WILL BE PAID BY ADDRESSEE NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, N.W., Suite 800 Washington, DC 20036-1207 74 NATIONAL WOMEN ’S LAW CENTER 75 NATIONAL WOMEN ’S LAW CENTER 76 NATIONAL WOMEN ’S LAW CENTER NATIONAL WOMEN’S LAW CENTER 11 Dupont Circle, NW • Suite 800 Washington, DC 20036 (202) 588-5180 • FAX (202) 588-5185 www.nwlc.org
