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Deterring Staff Sexual Abuse of Federal Inmates, DOJ OIG, 2005

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U.S. Department of Justice
Office of the Inspector General

Deterring Staff Sexual Abuse
of Federal Inmates

Office of the Inspector General
April 2005

I. Introduction
The Department of Justice Office of the Inspector General (OIG) is
responsible for investigating allegations of staff sexual abuse of inmates
held in the custody of the Federal Bureau of Prisons (BOP). Federal law
criminalizes all sexual relations and sexual contact between prison staff
and inmates. See 18 U.S.C. §§ 2241, 2243, and 2244. In addition to the
harm it causes to inmates, staff sexual abuse of inmates can also
threaten the safety and security of the prison. For example, staff sexual
abuse can corrupt prison staff and lead to other dangers, such as staff
smuggling drugs or weapons into prison facilities for inmates.
The OIG believes that current federal laws criminalizing staff
sexual relations with federal prisoners are deficient in two critical ways.
First, the crime of sexual abuse of an inmate is only a misdemeanor
punishable by a maximum sentence of 1 year, unless the staff member
uses force or overt threats to sexually abuse the inmate. See 18 U.S.C.
§ 2243-44. Because prison employees control many aspects of inmates’
lives, in most cases prison employees obtain sex from inmates without
resorting to the use of force or overt threats. Yet, misdemeanor penalties
do not adequately punish those prison employees who commit this
crime. In addition, the OIG has found that many federal prosecutors are
less interested in prosecuting sexual abuse cases, regardless of the
strength of the evidence, because the crimes are not felonies. Moreover,
the lenient federal laws are out-of-step with states laws – 43 states make
unforced sexual relations with inmates a felony.
The second deficiency in current federal laws covering sexual
abuse of inmates is that they do not apply when federal inmates are held
in facilities under contract to the federal government rather than in BOP
facilities. Courts have found that such contract facilities are not covered
by the laws criminalizing sexual abuse of federal inmates because the
laws are limited to “federal correctional, detention or penal facilit[ies].”1
Similarly, this limitation has hampered the OIG’s ability to obtain
prosecutions for staff who sexually abuse federal inmates incarcerated by
the BOP at contract facilities. Moreover, the OIG has found that state
prosecutors inconsistently prosecute these cases because many states
focus their limited resources on sexual abuse against state, rather than
federal, inmates. As a result, abuse of federal inmates held at contractor
facilities may go unpunished because of limitations in the law’s coverage.

See, e.g., United States v. Gibson, 880 F.2d 795, 796 (4th Cir. 1989); United
States v. Jimenez, 454 F. Supp. 610, 611 (M.D. Tenn. 1978).
1

1

This report examines sexual abuse of federal inmates by
correctional staff and the current law’s impact on deterrence of staff
sexual abuse.2 To conduct this review, we collected and analyzed 5 years
of OIG statistical data on allegations we received regarding inmate sexual
abuse and the resulting OIG investigations. We also surveyed OIG
investigators who have substantial experience conducting investigations
of staff sexual abuse of federal prisoners. In addition, we reviewed state
laws on staff sexual abuse; court cases; and literature published by
organizations, academics, journalists, and government agencies,
including the BOP, the National Institute of Corrections (NIC), the
Government Accountability Office (GAO), and the United Nations (U.N.).
Further, we interviewed various BOP officials about this issue,
including former BOP Director Kathleen Hawk Sawyer; the former BOP
General Counsel; the former BOP Chief of Internal Affairs; BOP Office of
Internal Affairs investigators; and an official from the BOP’s Human
Resources Management Division. We also visited the Federal Prison
Camp in Bryan, Texas, one of the BOP’s facilities for housing female
inmates only, where we interviewed the Warden and several staff
members about staff sexual abuse of female inmates. Furthermore, we
attended a conference at the Federal Correctional Complex (FCC) in
Coleman, Florida, which addressed staff sexual abuse of inmates. At the
conference, we heard presentations from four Wardens of FCC facilities,
a sexual abuse case polygrapher, and a forensic scientist who works
sexual abuse cases. We also attended a second BOP conference in
Washington, D.C. where we discussed the problem of staff sexual abuse
with Wardens from six BOP institutions that housed women.
This report describes the results of the OIG’s review. It first
discusses the nature, extent, and consequences of staff sexual abuse. It
then examines current statutes that fail to adequately deter staff sexual
abuse in prisons, offers examples of OIG sexual abuse cases that were
not prosecuted because of the lenient penalties for sexual abuse, and
presents OIG statistics on sexual abuse cases. Next, it compares federal
laws to state and local laws regarding staff sexual abuse of inmates. It
then analyzes the gap in the federal law regarding federal prisoners held
in contract facilities. Finally, it sets forth our recommendations
regarding changes in federal criminal law that we believe are needed to
provide greater deterrence of staff sexual abuse of federal inmates.

2

This report does not examine inmate-on-inmate sexual abuse.

2

II. Sexual Abuse of Inmates by Federal Prison Staff
A. Prevalence of Staff Sexual Abuse
The OIG has investigated hundreds of allegations of sexual abuse
of inmates by BOP staff. Cases involving staff sexual abuse of BOP
inmates annually comprise approximately 12 percent of the OIG’s total
number of investigations. From fiscal years (FY) 2000 to 2004, the OIG
opened sexual abuse investigations of 351 subjects who allegedly
sexually abused inmates. In the same time period, approximately 185
OIG investigations of staff sexual abuse had criminal or administrative
outcomes.3
The BOP also has recognized that staff sexual abuse is a
significant problem within its institutions. For example, Kathleen Hawk
Sawyer, the former Director of the BOP, stated that even though she
believed a very small percentage of BOP staff members committed sexual
abuse, sexual abuse of inmates was the biggest problem she faced as
Director. She also stated that she believed sexual abuse of inmates was
one of the most serious forms of misconduct by staff in the BOP.4
In 1999, the GAO issued a report that examined female correction
facilities in four jurisdictions: (1) the Texas Department of Criminal
Justice, (2) the California Department of Corrections, (3) the District of
Columbia, and (4) the BOP.5 The report noted that the BOP received 236
allegations of staff sexual abuse of female inmates in calendar years
1995 to 1998. In the same time period, 22 allegations of staff sexual
abuse of female inmates were sustained and 14 resulted in criminal
convictions. The report noted that the full extent of staff sexual abuse of
female inmates in federal prisons was unknown because it was
underreported.6

The 185 cases with criminal or administrative outcomes represent those that
were closed or presented for prosecution during FYs 2000 through 2004 and are not a
subset of the 332 investigations opened during the same time period.
3

4 Addressing Staff Sexual Misconduct With Offenders, Remote Conference for
Investigating and Preventing Staff Sexual Misconduct in a Corrections Setting (U.S.
Department of Justice National Institute of Corrections 2001).
5 Government Accountability Office, Women in Prison: Sexual Misconduct by
Correctional Staff, GAO/GGD-99-104 (1999).

Another report, issued in 1999 by the U.N. Commission on Human Rights,
summarized the U.N. Commission’s review of staff sexual abuse in U.S. state and
federal prisons. The U.N. Commission’s report concluded that staff sexual misconduct
(cont.)
6

3

According to OIG investigators, one of the reasons for the
underreporting of staff sexual abuse is that inmates fear that staff will
retaliate against them if they bring forward allegations of sexual abuse.
Inmates also believe that investigators will not find their allegations
credible. Moreover, it is often difficult to obtain physical evidence to
corroborate allegations of staff sexual abuse. In addition, as noted
below, some inmates may not report sexual abuse because they receive
unauthorized privileges or contraband in exchange for the sexual acts.
In September 2003, Congress passed The Prisoner Rape
Elimination Act, a law that addresses various issues related to the sexual
abuse of inmates in prison. Among other things, this law requires the
BOP’s NIC to provide education, training, and information to corrections
agencies on staff sexual misconduct. See Pub. L. No. 108-79 (2003). In
response, the NIC has conducted workshops and training programs for
officials from various prisons and community corrections agencies
regarding investigating allegations of staff sexual misconduct and
addressing staff sexual abuse. The NIC also has provided law
enforcement agencies on-site technical assistance with operations,
policies, training, and techniques for addressing staff sexual misconduct
with inmates.
B. Consent is Not a Defense
It is important to note that consent is never a legal defense for
corrections staff who engage in sexual acts with inmates. According to
federal law, all sexual relations between staff and inmates are considered
abuse. Even if a sexual act would have been considered consensual if it
occurred outside of a prison, by statute it is criminal sexual abuse when
it occurs inside a prison. See 18 U.S.C. § 2243 (c).
This legal doctrine is based on several factors. First, staff
members and inmates are in inherently unequal positions, and inmates
do not have the same ability as staff members to consent to a sexual
relationship. Second, inmates may try to use sex to compromise staff
and obtain contraband or unauthorized privileges, which can
compromise the safety and security of a prison. Third, either knowingly
or unknowingly, staff members who engage in sex with inmates may be
exploiting inmates’ vulnerabilities or past sexual abuse. As a result, staff
sexual relations with inmates is always illegal.
was “widespread” in U.S. prisons, especially when compared to systems in other
industrialized countries. See United Nations Commission on Human Rights, Report of
the Mission to the United States of America on the Issue of Violence Against Women in
State and Federal Prisons 66 (1999).

4

We found these factors present in many OIG cases. For example,
OIG agents who investigate sexual abuse cases stated they often found
that guards took advantage of vulnerable or psychologically weak
inmates to have sex with them. Such inmates included those who had
drug addictions, who previously were physically or sexually abused, who
had mental health issues, who had little experience in the criminal
justice system, who were awaiting deportation, or who had previously
engaged in prostitution.7 According to the Warden of the BOP’s Federal
Prison Camp in Bryan, Texas, vulnerable inmates often expect someone
will take advantage of them because they are used to being exploited.
The Warden stated that by sexually abusing inmates, staff members
become the very predators that inmates expect them to be.
Various OIG cases illustrate this point. For example, the OIG
recently investigated the case of a BOP psychiatrist at a Metropolitan
Detention Center who engaged in sexual relationships with some of his
female mental health patients. The OIG’s investigation resulted in the
psychiatrist being convicted on 7 counts of sexual abuse of a ward and
sentenced to 1 year incarceration for the abuse.8
The OIG also investigated allegations that a correctional officer
engaged in sex with female inmates detained at a Federal Transfer
Center. The investigation developed evidence that the officer targeted
inmates who previously engaged in prostitution or who were about to be
deported. The officer was convicted of 11 counts of sexual abuse and
sexual contact with inmates, and he was sentenced to 12 years’
incarceration and 3 years’ supervised release.
In other instances, inmates have targeted staff for sexual relations
to obtain control over the staff, to obtain contraband or unauthorized
privileges, or to leverage the sexual relationship for a lighter sentence.
For example, in one OIG case a male inmate used sex to attempt to
compromise a male BOP staff member assigned to a Metropolitan
Correctional Center. The OIG investigation developed evidence that the
officer engaged in sexual activities with the inmate several times over a
3-month period. The evidence indicated that the inmate intended to
7 For a discussion of vulnerable inmates, see Brenda Smith, An End to Silence:
Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct (2002). See also
Elizabeth P. Layman, Susan W. McCampbell, and Andie Moss, Sexual Misconduct in
Corrections, American Jails 10 (November-December 2000).

The psychiatrist received an additional 1 year incarceration for absconding to
Mexico to avoid trial. He was captured by the Border Patrol while trying to re-enter the
United States.
8

5

extort the officer by threatening to report the officer’s sexual misconduct
to the BOP if the officer did not comply with the inmate’s demands.
In another case, the OIG found that a United States Penitentiary
inmate engaged in sex with the Executive Assistant to the Warden. The
inmate admitted that he seduced the female Executive Assistant because
the inmate was the leader of a gang and was looking for an edge in the
power struggle with other inmate gangs.9 The inmate had reported the
relationship to authorities in hopes of having his sentence reduced.
Following the OIG’s investigation, the Executive Assistant was convicted
on 2 counts of sexually abusing inmates and sentenced to 5 years’
probation and 4 months’ home confinement.
In other investigations, the OIG has found that inmates used sex
to compromise staff members. For example, inmates have engaged in
sexual relations with staff to obtain from the staff drugs or access to
unmonitored phones, to communicate with other inmates while in
isolation, to gain access to sensitive information (such as which inmates
are informants), or to acquire information that could assist them in an
escape.10
C. Sexual Abuse Is Not Limited by Gender
One misconception about staff sexual abuse of inmates is that it
only involves male staff engaging in sexual relations with female inmates.
As the statistics below indicate, the scope of the problem also includes
female staff with male inmates, male staff with male inmates, and female
staff with female inmates.
According to OIG case data, between FYs 2000 and 2004, the OIG
opened sexual abuse investigations of 351 subjects. The following chart
describes the gender breakdown of allegations investigated by the OIG
during this period.

9

See Jim Hughes, Inmate Tells of Affair With Official, Denver Post, Dec. 04,

2002.
10 One BOP psychologist we interviewed stated that many inmates seduce staff
not to intentionally manipulate them, but because they learned seduction as a survival
skill before they were incarcerated.

6

OIG Sexual Abuse Investigations by Gender
FYs 2000-2004

8%

Female Staff with Male
Inmates

2%
47%

Male Staff with Female
Inmates
Male Staff with Male
Inmates

43%

Female Staff with
Female Inmates

D. Staff Sexual Abuse of Inmates Causes Serious Harm
Staff sexual abuse of inmates is not a harmless or victimless crime,
and it can present serious dangers to staff, correctional facilities,
inmates, and society. Staff sexual abuse can undermine the security of
institutions by corrupting staff members and increasing rivalry among
inmates. Moreover, as found in many of the OIG’s sexual abuse cases,
the subject’s crime often is not limited to sexual abuse. Nearly half of
the subjects in OIG sexual abuse cases also smuggled contraband into
prisons for the inmates with whom they had sexual relationships. The
contraband ranged from “soft contraband” such as food, toiletries,
cigarettes, and jewelry to “hard contraband” such as drugs and weapons.
Many of these staff members helped inmates conceal contraband by
alerting the inmates to unannounced searches or by storing the
contraband with the staff’s own possessions.
Moreover, as former BOP Director Hawk Sawyer explained, staff
sexual abuse of inmates can significantly harm inmates – the very people
the federal government charges the BOP with protecting.11 For example,
according to one BOP psychologist, inmates may experience deep
psychological and emotional trauma by being sexually abused in prison.
Inmates also may suffer disciplinary actions for engaging in sexual
11 See Addressing Staff Sexual Misconduct With Offenders, Remote Conference for
Investigating and Preventing Staff Sexual Misconduct in a Corrections Setting (U.S.
Department of Justice National Institute of Corrections 2001).

7

relations with staff such as solitary confinement or undesirable transfers
to another institution far from their families.
Staff sexual abuse also can expose the BOP and its staff to both
civil and criminal liability. For example, the BOP paid $600,000 to settle
two separate lawsuits filed by inmates against the BOP because they had
been sexually abused by BOP staff. In both cases, the BOP received
allegations that a staff member was sexually abusing an inmate, but in
order to investigate the allegations the BOP did not immediately remove
the staff member from his post. As a result, the staff member abused the
inmate again.
III. Penalties for Sexual Abuse of Inmates
A critical deterrent to staff sexual abuse of federal inmates is
effective prosecution and punishment for such actions. In our view, the
federal penalties for staff sexual abuse need to be strengthened.
A. Federal Law
The federal penalties for staff members engaging in sex with
inmates are contained in Title 18 of the United States Code (U.S.C.). A
maximum penalty of life imprisonment can be imposed on staff members
who cause an inmate to engage in a sexual act by using force; by
threatening death, serious bodily injury, or kidnapping; or by
administering intoxicants to the inmate. See 18 U.S.C. § 2241. The
maximum penalty for causing an inmate to engage in a sexual act by
using other kinds of threats, or for engaging in a sexual act with an
inmate who is mentally or physically incapable of appraising the nature
of the conduct, or declining participation in it, is imprisonment for 20
years. See 18 U.S.C. § 2242.
However, in cases that do not involve the use of force or threat of
force, the maximum penalty for knowingly engaging in a sexual act with
an inmate is the misdemeanor penalty of a maximum imprisonment for
1 year. See 18 U.S.C. § 2243.
The penalties for abusive sexual contact – as opposed to sexual
abuse – follow a similar structure.12 The maximum penalty for sexual
contact by force, threat of force, or administering intoxicants to the
12 In essence, “sexual contact” is touching an inmate in sexual areas for a
licentious purpose. “Sexual abuse” is engaging in a sexual act with any inmate,
including sexual intercourse and oral sex. It includes sexual acts that are forced and
unforced. See 18 U.S.C. § 2246.

8

inmate is imprisonment for 10 years. See 18 U.S.C. § 2244 (a)(1). The
maximum penalty for sexual contact by any other threat, or with an
inmate who has mental or physical disabilities, is imprisonment for 3
years. See 18 U.S.C. § 2244 (a)(2). But in all other instances when force
or threat of force is not used, the maximum penalty for sexual contact
with an inmate is imprisonment for 6 months. See 18 U.S.C. § 2244
(a)(4).
B. Outcomes of OIG Cases
According to OIG case statistics, the majority of sexual abuse cases
investigated by the OIG do not result in prosecution. Between FYs 2000
and 2004, the OIG presented 163 sexual abuse cases for prosecution. Of
these cases, 73, or 45 percent, were accepted for prosecution. Sixty-five
of these cases, or 40 percent, resulted in convictions, and 6 of these
cases, or 4 percent, are still pending prosecution.13 Two of them, or 1
percent, have been presented for prosecution, but have not yet been
accepted or declined. Eighty-eight cases, or 54 percent, were declined for
prosecution.
The following graph depicts the outcome of OIG sex abuse cases
presented for prosecution in FYs 2000-2004.
Outcome of OIG Cases Presented for
Prosecution in FYs 2000-2004

Cases Not Accepted for
Prosecution
1%

4% 1%

Cases Resulting in
Convictions
Cases Resulting in
Acquittals

40%

54%

Cases Pending Prosecution
Cases Not Yet Accepted or
Declined for Prosecution

“Convictions” includes convictions by juries, convictions by judges, plea
agreements, and pre-trial diversions.
13

9

Of the cases declined in FYs 2000-2004, the majority were declined
because of insufficient evidence. This often occurs because there is no
physical evidence to corroborate inmates’ allegations. The second most
common reason why these cases were declined is because the offenses
were only misdemeanors. In FY 2003, 65 percent of the cases presented
for prosecution were declined because of insufficient evidence; 15 percent
of the cases were declined because the offense was a misdemeanor. The
remaining cases were declined because they did not occur in a BOP
facility; the subjects resigned their employment; or the cases “lacked jury
appeal,” according to the prosecutors.
Even when prosecuted, the punishments for sexual abuse of
inmates are not significant. Of the 65 subjects who were convicted of
sexually abusing inmates, 48, or 73 percent, received a sentence of
probation. Ten of them, or 15 percent, were sentenced to less than 1
year incarceration. Only 5 of them, or 8 percent, were sentenced to more
than 1 year incarceration. One of them, or 2 percent, was required only
to pay a fine, and another one’s sentencing is pending.
The following graph depicts the sentences received by subjects who
were convicted of sexual abuse of inmates during FYs 2000-2004.
Sentences Received by OIG Subjects Convicted of
Sexual Abuse of Inmates During FYs 2000-2004

8% 2% 2%

P robation

15%

< 1 Year Incarceration
> 1 Year Incarceration
Fined

73%

10

Sentence P ending

More OIG sex abuse cases result in administrative outcomes rather
than criminal actions. During FYs 2000-2004, 120 OIG sexual abuse
cases had administrative outcomes. Twenty-eight of these subjects were
terminated or suspended, 91 resigned or retired during investigation,
and 1 was reprimanded.14 The following graph depicts the percentage of
subjects in OIG sexual abuse investigations during FYs 2000-2004 who
were convicted, who were terminated or suspended, who resigned or
retired during investigation, or who were reprimanded.
Convictions and Administrative Outcomes in OIG Sexual Abuse
Investigations during FYs 2000-2004

Convicted

1%
35%

Terminated or
Suspended
Resigned or Retired

49%
15%

Reprimanded

While administrative actions, including termination, may seem
substantial, these punishments often do not provide sufficient deterrence
to staff sexual abuse of inmates. Moreover, the OIG has investigated
staff sexual abuse cases in which prosecutors declined prosecution
because the subject has resigned, retired, or was terminated, but the
subject obtained a corrections job at a state or local facility and
continued to sexually abuse inmates there.
C. Examples of Sexual Abuse Cases Not Prosecuted
OIG agents reported that they found that prison staff who sexually
abuse inmates often do not believe they will be caught, and if they are
The subject who was reprimanded was not a BOP employee, but he
supervised a BOP inmate who was on a work detail outside the prison.
14

11

caught do not believe they will be punished. Moreover, staff can
generally conceal their sexual abuse because they are familiar with the
prison and its operations, they control the prison environment, and they
can arrange discreet encounters with inmates. In addition, OIG
investigators find that, in some cases, other prison staff cover for
correctional staff who commit sexual abuse by serving as alibis or
lookouts. Moreover, staff know that inmates are reluctant to report
sexual abuse, and that if inmates report sexual abuse they are unlikely
to be believed because they are convicted criminals.
Importantly, even in many cases where there is sufficient evidence
to prove that a staff member has sexually abused an inmate, the OIG has
found that some prosecutors are reluctant to prosecute prison staff who
do not use force or overt threats to obtain sex with inmates, often
because the penalty is only a misdemeanor.15
The following are examples of OIG investigations of staff sexual
abuse that were not prosecuted because the penalty was a misdemeanor:
•

Teacher Confesses to Sexually Abusing Inmate: An employee
of a Federal Correctional Institution intercepted a letter
indicating that a contract teacher in the facility was having a
sexual relationship with an inmate. The OIG substantiated the
allegations, and the subject confessed to sexually abusing an
inmate. However, the Assistant United States Attorney (AUSA)
assigned to the case declined prosecution because, according to
him, it was a “stupid sex case” that was only a misdemeanor
and therefore a “waste of time.” The prosecutor asked the OIG
agents, “Why do you people keep bothering us with these cases?
It’s only a misdemeanor!”

•

Officer Confesses to Sexually Abusing Inmate: A male
correctional officer assigned to a U.S. Penitentiary was accused
of sexually abusing several male inmates multiple times. One
inmate alleged that the officer forcibly raped him three times.
The officer confessed to sexually abusing one inmate and
resigned his position with the BOP during the OIG’s
investigation. The AUSA assigned to the case declined
prosecution and stated it would not be an efficient use of
United States Attorneys’ Office resources to prosecute the officer

15 In many cases, the OIG is only able to obtain prosecution of a staff member
who sexually abused inmates if that staff member also committed a felony such as
making false statements to the OIG during the investigation, which is punishable by a
maximum sentence of 5 years’ imprisonment. See 18 U.S.C. § 1001.

12

for a misdemeanor offense since he resigned his position with
the BOP.
•

Psychologist Sexually Abuses Inmate: A female clinical staff
psychologist assigned to a U.S. Penitentiary was overheard on
the inmate telephone system discussing her sexual relationship
with an inmate. The OIG opened an investigation, but the
inmate and staff member refused to cooperate with the OIG.
The staff member subsequently resigned from the BOP. The
AUSA assigned to the case declined prosecution because the
offense was only a misdemeanor and because he believed that
the sexual relationship was not coerced and therefore was
consensual.

•

Officer Confesses to Sexually Abusing Inmate: An inmate
incarcerated at an FCI reported to the OIG that she was having
a sexual relationship with a BOP correctional officer. The
inmate said the sexual activities had occurred at least 12 times.
The officer initially denied the allegation. After a polygraph
examination, he confessed to sexually abusing the inmate. The
officer resigned his position with the BOP. The AUSA assigned
to the case declined prosecution because the inmate was not
coerced to have sex.

•

Maintenance Worker Confesses to Sexually Abusing Inmate:
The OIG received allegations that a BOP maintenance worker
was observed engaging in sexual contact, on several occasions,
with a female inmate at an FCI. Recorded telephone calls
between the staff member and the inmate confirmed the sexual
relationship. The inmate and staff member were both
interviewed and confessed to having a sexual relationship. The
staff member subsequently resigned his position with the BOP.
The AUSA assigned to the case asked the OIG agent “why the
OIG would arrest the maintenance worker if he had already
resigned and the charge was only a misdemeanor?” The AUSA
subsequently declined prosecution.

•

Education Technician Sexually Abuses Inmate: The OIG
investigated an allegation that an Education Technician
assigned to an FCI engaged in a sexual relationship with an
inmate. Both the employee and the inmate initially denied the
allegations. In a subsequent interview, the inmate admitted to
having a sexual relationship with the employee. When
confronted with the inmate’s statement, the employee resigned
her position with the BOP and refused to provide a statement.

13

The AUSA assigned to the case declined prosecution because it
was only a misdemeanor.
•

Case Manager Has Sexual Contact with Inmate: The OIG
investigated allegations that a BOP Case Manager assigned to
an FCI engaged in sexual contact with an inmate, introduced
contraband into the institution, and engaged in other
administrative misconduct, including unauthorized contact
with an inmate’s family members. The Case Manager denied
the allegations; however, the OIG investigation developed
evidence that substantiated all of the allegations. The Case
Manager resigned her position with the BOP. The AUSA
assigned to the case declined prosecution because it was a
misdemeanor offense and because the Case Manager resigned
her position.
D. State Laws
1. Sexual Abuse

During our review, we examined state laws on sexual abuse of
inmates. We found that federal penalties for sexual abuse of inmates
without force are relatively lenient compared to state laws. Unlike federal
law, which imposes only a misdemeanor penalty for abuse without force
or threat of force, 43 states impose penalties of greater than 1 year
imprisonment for staff members who engage in unforced sexual acts with
inmates.
For unforced sexual abuse of an inmate, 12 jurisdictions set the
maximum sentence length at 5 years’ imprisonment.16 Eleven
jurisdictions set the maximum sentence length at somewhere between 6
and 10 years’ imprisonment, 17 and 8 jurisdictions set the maximum
sentence length at more than 10 years’ imprisonment, with Idaho setting
the maximum sentence at life.18 Twelve jurisdictions set the maximum

16 Alaska, Florida, Illinois, Massachusetts, Mississippi, North Dakota, Ohio,
Rhode Island, Utah, Virginia, Washington, and West Virginia.
17 Alabama, Arkansas, Connecticut, Hawaii, Louisiana, Maine, Missouri,
New Jersey, New Mexico, Pennsylvania, and South Carolina.

Idaho, Michigan, Minnesota, Nebraska, North Carolina, Oklahoma, Wisconsin,
and Wyoming.
18

14

sentence between 1 to 4 years’ imprisonment.19 The average maximum
sentence length of these 43 jurisdictions is approximately 10 years’
imprisonment.20
Only three states penalize unforced sexual abuse of inmates at the
same level as the federal government (up to 1 year imprisonment).21 Two
states have a lighter sentence than the federal government, and two
states do not have laws specifically criminalizing staff sexual abuse of
inmates.22
Below is a graph comparing maximum sentences in all 50 states,
as of 2004, for sexual abuse of inmates without force.
Comparison of Maximum Sentence Ranges for
Sexual Abuse of Inmates without Use of Force

10%

4%

16%

10+ years
6-10 years
5 years

24%

22%
24%

1-4 years
< 1 year
No laws

Arizona, Colorado, Delaware, Georgia, Iowa, Indiana, Kansas, Maryland,
Nevada, New York, South Dakota, and Texas.
19

This average was calculated using 40 years as the numerical value for Idaho’s
maximum sentence of life imprisonment.
20

21

Kentucky, New Hampshire, and Tennessee.

22 Montana and California provide a maximum sentence of 6 months’
imprisonment; Oregon and Vermont do not have laws addressing staff sexual abuse of
inmates. However, the Vermont legislature is considering legislation that would make
engaging in a sexual act with an inmate without force punishable by imprisonment for
up to 5 years. See An Act Relating to Sexual Exploitation, H.0008, 2005-2006
Legislative Session (Vt. 2005).

15

2. Sexual Contact
As noted above, the maximum federal penalty for unforced sexual
contact with an inmate is imprisonment for 6 months.23 See 18 U.S.C.
§ 2244 (a)(4). Like unforced sexual abuse of inmates, this penalty is
more lenient than most state penalties for the same offense. For
unforced sexual contact with an inmate, 10 jurisdictions set the
maximum sentence length at 1 year imprisonment,24 and 8 jurisdictions
set the maximum sentence length at somewhere between 1 to 4 years’
imprisonment.25 Seven jurisdictions set the maximum sentence length
at 5 years’ imprisonment,26 5 set the maximum sentence length at
between 5 to 10 years’ imprisonment,27 and 3 set the maximum sentence
length at more than 10 years’ imprisonment.28 Two states penalize
unforced sexual contact with inmates at the same level as the federal
government (up to 6 months’ imprisonment),29 and 15 jurisdictions do
not have legislation specifically criminalizing unforced sexual contact
with inmates.30 Of the jurisdictions that criminalize unforced sexual
contact with inmates, the average maximum sentence length is
approximately 5 years’ imprisonment.
Below is a graph comparing maximum sentences for unforced
sexual contact with inmates in all 50 states as of 2004:

23 This does not include sexual contact by force, threat of force, or administering
intoxicants to the inmate, or sexual contact by any other threat or with an inmate who
has mental or physical disabilities.

Alaska, Connecticut, Kentucky, Maine, New Hampshire, New York, Tennessee,
Utah, Virginia, and Washington.
24

25

Arizona, Colorado, Kansas, New Jersey, South Dakota, Texas, Georgia, and

Nevada.
Hawaii, Illinois, Massachusetts, Nebraska, North Dakota, Oklahoma, and
South Carolina.
26

27

Alabama, Louisiana, Minnesota, Missouri, and Pennsylvania.

28

Michigan, Wisconsin, and Wyoming.

29

California and Montana.

Arkansas, Delaware, Florida, Idaho, Indiana, Iowa, Maryland, Mississippi,
New Mexico, North Carolina, Ohio, Oregon, Rhode Island, Vermont, and West Virginia.
30

16

Comparison of Maximum Sentence Ranges for
Sexual Contact with Inmates without Use of Force

6%

30%

10+ years

10%
14%

6-10 years
5 years
1-4 years

16%

24%

< 1 year
No laws

IV. Sexual Abuse in Contract Facilities
In addition to lenient federal penalties for sexual abuse of inmates,
federal law does not cover sexual abuse of federal inmates held in
contract facilities.
A. Federal Law
Over the past 25 years, the BOP has experienced significant
increases in the number of federal inmates. Legislative enactments such
as The Sentencing Reform Act of 1984 and subsequent sentencing
guidelines caused the federal inmate population to more than double
during the 1980s, from just over 24,000 in 1980 to almost 58,000 in
1989. As the federal government obtained increasing convictions in
illegal drug and illegal immigration cases, the federal inmate population
more than doubled again during the 1990s, reaching approximately
136,000 at the end of 1999. From 1999 to 2004, the federal inmate
population increased 33 percent, reaching approximately 181,000 at the
end of 2004. According to BOP Director Harley Lappin, the BOP
estimates that the federal inmate population will increase to
approximately 225,000 inmates by the year 2010.
To accommodate this rapid growth, the Department has entered
into contracts with state and local governments and private commercial
entities to house thousands of BOP inmates. At the end of 2004, more
than 27,000 (15 percent) of all BOP inmates were confined in contract
facilities.
17

However, the federal laws relating to sexual abuse and sexual
contact with inmates, 18 U.S.C. §§ 2241-2244, do not apply to federal
inmates in facilities under contract to the Department of Justice because
these statutes apply only in the “special maritime and territorial
jurisdiction of the United States or in a Federal prison.”31 Courts have
found that private facilities and halfway houses under contract with the
Department to house inmates are not covered by these statutes because
they are not encompassed in the language of the statute, which is limited
to “federal correctional, detention or penal facilit[ies].”32 Consequently,
staff at contractor-owned and operated detention facilities who sexually
abuse federal inmates cannot be prosecuted under federal law.
B. Examples of Sexual Abuse Cases Involving Federal
Inmates That Were Not Prosecuted Because of Lack of
Legal Jurisdiction
Between FYs 2000 and 2004, 58 (or 17 percent) of the subjects
investigated by the OIG for sexually abusing federal inmates were
employees of contract facilities. However, the OIG has had difficulty
obtaining prosecutions for contract employees who sexually abuse
federal inmates incarcerated at contract facilities. The OIG has to rely on
state prosecutors to prosecute these cases, but many state prosecutors
focus their limited resources on prosecuting sexual abuse involving state,
rather than federal, inmates. As a result, the OIG has identified
instances of sexual abuse of federal inmates held at contractor facilities
that go unpunished because of limitations in the current law’s coverage.
The following are a few examples of OIG investigations of staff
sexual abuse that were not prosecuted because the abuse occurred at a
contract facility:
•

31

Contract Officer Confesses to Sexually Abusing Inmate: An
OIG investigation developed evidence that a female correctional
officer who worked at a facility under contract with the
Department was engaged in a sexual relationship with a federal
inmate housed at the facility. Both the officer and the inmate
provided signed affidavits confessing they had a sexual
relationship. An AUSA initially accepted the case for
See 18 U.S.C. §§ 2241-2244.

See United States v. Gibson, 880 F.2d 795, 796 (4th Cir. 1989); United States
v. Jimenez, 454 F. Supp. 610, 611 (M.D. Tenn. 1978).
32

18

prosecution, but later dropped the charges because courts have
held that contract facilities are not considered federal prisons
under federal law. The officer resigned her position at the
facility, but never was prosecuted for her conduct.
•

Contract Employee Confesses to Sexually Abusing Inmate:
The OIG received allegations that a contract employee at a
halfway house had a sexual relationship with an inmate
resident. The OIG’s investigation developed evidence that
substantiated the allegations. The employee subsequently
confessed to engaging in sexual acts with the inmate resident
on two occasions. The AUSA declined prosecution because,
while the case “deserve[d] prosecution,” a halfway house did not
meet the definition of a “prison.”
C. State Laws

In contrast to federal law, sexual abuse laws in many states
protect inmates under their supervision who are housed in facilities
under contract with the states. A sample of these states’ laws is provided
below:
•

California – California’s law prohibits sexual abuse of inmates
by employees, officers, agents, and volunteers of “a private
person or entity that provides a detention facility or staff for a
detention facility, or . . . a public or private entity under
contract with a detention facility.”33

•

Georgia – Georgia’s staff sexual abuse law covers all staff who
supervise individuals who are in legal custody, regardless of
whether the individuals are confined in a state institution or are
on probation or parole.34

•

Massachusetts – Massachusetts’ staff sexual abuse law
explicitly covers staff members who are contractors. It also
protects all inmates, regardless of whether they are confined in
a state prison.35

33

Cal. Penal Code § 289.6.

34

O.C.G.A. § 16-6-5.1.

35

ALM GL ch. 268, § 21A.

19

•

Ohio – Ohio proscribes sexual abuse of a prisoner confined in a
detention facility by an employee of that detention facility.36
According to Ohio law, “detention facility” includes “any public
or private place used for the confinement of a person charged
with or convicted of any crime in this state or another state or
under the laws of the United States” (emphasis added).

•

Texas – Texas law penalizes officials, employees, contractors,
and volunteers at any correctional facility who sexually abuse
inmates: “An official of a correctional facility, an employee of a
correctional facility, a person other than an employee who
works for compensation at a correctional facility, a volunteer at
a correctional facility, or a peace officer commits an offense if
the person intentionally [sexually abuses] an individual in
custody.”37 Under Texas Penal Code § 1.07, “correctional
facility” includes “a confinement facility operated under contract
with any division of the Texas Department of Criminal Justice;
and a community corrections facility operated by a community
supervision and corrections department.”

•

Virginia – Virginia’s staff sexual abuse law encompasses all
persons who are in a position of authority over persons in legal
custody, including contract employees and volunteers.38

V. Conclusions and Recommendations
Even when staff sexual abuse of inmates occurs without force or
threat of force, it is a serious offense that harms inmates and can have a
destructive effect on the safety and security of institutions. Sexual abuse
of inmates can corrupt staff members, lead to the introduction of
contraband, and expose the BOP and staff to civil and criminal liability.
Staff sexual abuse of inmates also undermines rehabilitation efforts and
increases the difficulty of inmates successfully re-entering society.
Despite the serious harm caused by staff sexual abuse of inmates,
lenient penalties under current federal statutes hinder the deterrent
effect of these laws. Most states impose significantly harsher penalties
than the federal government for staff sexual abuse of inmates.
36

ORC Ann. § 2907.03.

37

Tex. Penal Code § 39.04.

38

Va. Code Ann. § 18.2-64.2.

20

Further, the law applies only to staff who sexually abuse federal
inmates incarcerated in federal prisons and does not cover employees
who sexually abuse federal inmates incarcerated in contract facilities.
Many other jurisdictions’ sexual abuse laws extend to contract facilities
and protect inmates who are under the supervision of the state, even if
they are not confined in a state facility. These states’ laws provide far
greater protection for inmates confined in contract facilities than federal
law, which provides no protection at all for these inmates.
The OIG believes that the federal laws criminalizing staff sexual
abuse of inmates should be strengthened to provide greater deterrence of
staff sexual abuse of inmates and to cover employees and contractors
who sexually abuse federal inmates. Accordingly, the OIG makes the
following recommendations:
1.

The Department should seek passage of legislation to increase
the statutory maximum penalty for Sexual Abuse of a Ward to
5 years’ imprisonment.

Currently, the maximum penalty for sexual abuse of a ward
(18 U.S.C. § 2243(b)) is 1 year imprisonment, a misdemeanor. We
believe that the penalty for this crime should be increased to 5 years’
imprisonment. Making this crime a felony would bring the punishment
in line with most state statutes, would provide greater deterrence to staff,
and would increase the likelihood that sexual abuse offenders will be
prosecuted. Sample language to amend the statute is attached to this
report as Appendix A.
2.

The Department should seek passage of legislation that would
increase the statutory maximum penalty for Abusive Sexual
Contact to 2 years’ imprisonment.

As with Sexual Abuse of a Ward, the current maximum penalty for
Abusive Sexual Contact (18 U.S.C. § 2244 (a)(4) and (b)) is a
misdemeanor – 6 months’ imprisonment. We recommend that the
maximum penalty for this crime be increased to 2 years’ imprisonment,
making it a felony conviction. Sample language to amend the statute is
attached to this report as Appendix A.
3.

The Department should seek passage of legislation that would
extend federal criminal jurisdiction to individuals who engage
in a sexual act with a federal prisoner housed in a detention
facility under contract to the Department.

Employees in contract detention facilities who sexually abuse
federal inmates should be covered by federal law. Extending the law to
21

employees who sexually abuse federal inmates in contract detention
facilities would reduce and deter such sexual abuse and would increase
substantially the likelihood that staff who commit such offenses will be
prosecuted. Sample language to amend the statute is attached to this
report as Appendix A.

22

APPENDIX A

OIG Proposed Amendments to Sexual Abuse Statutes
I.

Increasing the Penalties for Staff Sexual Abuse of Inmates

Sexual abuse of inmates without force or threat currently is a
misdemeanor with a maximum possible sentence of 1 year for sexual
intercourse and 6 months for sexual contact.
The OIG proposes that the statutory maximum sentence for Sexual
Abuse of a Ward (18 U.S.C. § 2243(b)) be increased from 1 year to 5
years. We also propose that the maximum sentence for Abusive Sexual
Contact (18 U.S.C. § 2244 (a)(4) and (b)) be increased from 6 months to
2 years. The following statutory revisions will accomplish those changes.
A. Sexual Abuse of an Inmate
Title 18 of the United States Code, Chapter 109A, § 2243(b), the
section regarding penalties for sexual abuse of a ward without the use of
force, threats, or intoxicants, should be amended by striking “one year”
and inserting “five years”:
§ 2243(b) Of a Ward.— 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 five years, or both.
B. Sexual Contact with an Inmate
Title 18 of the United States Code, Chapter 109A, § 2244(a)(4), the
section regarding penalties for sexual contact with a ward without the
use of force, should be amended by striking “six months” and inserting
“two years”:
§ 2244(a)(4) Sexual Conduct in Circumstances Where Sexual
Acts Are Punished by This Chapter.— Whoever, in the special
maritime and territorial jurisdiction of the United States or in a
Federal prison, knowingly engages in or causes sexual contact
with or by another person, if so to do would violate—

(1) section 2241 of this title had the sexual contact been a
sexual act, shall be fined under this title, imprisoned not
more than ten years, or both;
(2) section 2242 of this title had the sexual contact been a
sexual act, shall be fined under this title, imprisoned not
more than three years, or both;
(3) subsection (a) of section 2243 of this title had the sexual
contact been a sexual act, shall be fined under this title,
imprisoned not more than two years, or both; or
(4) subsection (b) of section 2243 of this title had the sexual
contact been a sexual act, shall be fined under this title,
imprisoned not more than two years, or both.
Title 18 of the United States Code, Chapter 109A, § 2244(b), the
section regarding penalties for sexual contact with a ward in all other
circumstances, should be amended by striking “six months” and
inserting “two years”:
§ 2244(b) In Other Circumstances.— Whoever, in the special
maritime and territorial jurisdiction of the United States or in a
Federal prison, knowingly engages in sexual contact with
another person without that other person’s permission shall be
fined under this title, imprisoned not more than two years, or
both.
II.

Extend federal criminal jurisdiction to detention facilities under
contract to the Department.

The Department of Justice has contracts with state and local
governments and private commercial entities to house many federal
inmates. However, the federal statutes involving sexual abuse of federal
inmates, 18 U.S.C. §§ 2241-2244, apply only in the special maritime and
territorial jurisdiction of the United States or in a federal prison. Federal
inmates held in contract facilities are not covered by these statutes.
Consequently, staff at contractor owned and operated detention facilities
who sexually abuse federal inmates cannot be prosecuted under 18
U.S.C. §§ 2241-2244.
The OIG proposes that Title 18 of the United States Code, Chapter
109A, be amended by inserting the language “or in any prison,
institution, or facility in which persons are held in custody by direction of
or pursuant to a contract or agreement with the Attorney General” after
the appropriate sections to ensure that federal inmates held in contract

facilities are covered by these statutes. For example, § 2241, Aggravated
Sexual Abuse, would be amended as follows:
§ 2241(a) By Force or Threat.— Whoever, in the special maritime
and territorial jurisdiction of the United States or in a Federal
prison or in any prison, institution, or facility in which
persons are held in custody by direction of or pursuant to a
contract or agreement with the Attorney General, knowingly
causes another person to engage in a sexual act—
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that
any person will be subjected to death, serious bodily injury,
or kidnapping;
or attempts to do so, shall be fined under this title, imprisoned
for any term of years or life, or both.
The same addition should be made after the phrase “in a Federal
prison” in the following sections:
§ 2241, Aggravated Sexual Abuse, subsection (b) and the first
sentence only of (c);
§ 2242, Sexual Abuse;
§ 2243, Sexual Abuse of a Minor or Ward, subsections (a) and
(b); and
§ 2244, Abusive Sexual Contact, subsections (a) and (b).

 

 

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