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Spr Call for Change Protecting Glbt Detainees 2007

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Stop Prisoner
Rape (SPR) is a
national nonprofit
human rights
organization that
works to end sexual
violence against
men, women, and
youth in all forms
of detention.

“Because I was
raped, I got
labeled as a faggot,
and everywhere I
walked everyone
looked at me like
I was a target. It
opened the doors
for a lot of other
predators. Even
the administrators
thought it was
okay for a faggot
to be raped. They
said, ‘Oh, you
must like it.’”
Bryson Martel,
prisoner rape
survivor

STOP PRISONER RAPE
3325 Wilshire Blvd.,
Suite 340
Los Angeles, CA 90010
Tel: (213) 384-1400
Fax: (213) 384-1411
info@spr.org

Call for Change

May 2007

Protecting the Rights of
LGBTQ Detainees
Introduction

A

n astonishing 2.3 million people
are incarcerated in the U.S. at any
given time, with some 12 million
passing through our prisons and jails each
year. Of these detainees, an alarming number experience sexual violence. Recent studies show that as many as one in four female1 and one in five male2 prisoners are
subjected to sexual abuse. LGBTQ detainees are hardest hit by this violence; one survey concludes that more than four out of
ten gay or transgender prisoners have been
sexually assaulted.3
LGBTQ detainees have little access to
protection from these crimes and generally endure them in silence. Several factors
contribute to their suffering, including
pervasive homophobia among corrections
officials that creates an environment in
which abuse is allowed to flourish. Many
LGBTQ survivors do not report sexual
abuse because they fear retaliation and
breaches of confidentiality. They also tend
to believe—often based on how facility staff
have reacted to the complaints of others—
that reports will be met with indifference
or hostility and that no action will be taken.

Following any incident of rape, victims suffer severe psychological, and often physical,
pain. In the case of prisoner rape, the initial
assault is usually just the beginning of the
victim’s ordeal. Perpetrators often abuse prisoner rape survivors relentlessly, sometimes
for long periods of time. In addition, survivors are frequently marked as fair game for
attacks by others. In the worst cases, they
are treated like the assailants’ property and
“sold” to others within the facility.
Prisoner rape victims demonstrate a significantly higher incidence of mental health
problems than non-victims, including depression, post-traumatic stress disorder
(PTSD), and substance abuse. With the rate
of confirmed AIDS cases in U.S. prisons
more than three times higher than in society overall,4 rape behind bars can amount
to an un-adjudicated death sentence. Upon
release, survivors often return to their communities with emotional scars, deadly diseases, and learned violent behavior.
The alarming rate of sexual violence against
LGBTQ detainees requires urgent attention.
Whether perpetrated by officials or by

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detainees with the acquiescence of corrections staff, the sexual assault of LGBTQ
detainees is a form of torture that violates
international human rights law, the U.S.
Constitution, and state criminal law. The
U.S. has ratified two international treaties—the International Covenant on Civil
and Political Rights (ICCPR) and the
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment (CAT)—which prohibit
torture and require the U.S. to protect
prisoners from sexual violence. In both
Farmer v. Brennan, 511 U.S. 825 (1994),
and the Prison Rape Elimination Act of
2003, the U.S. government has recognized

that prisoner rape can amount to cruel and
unusual punishment, in violation of the
Eighth Amendment of the U.S. Constitution. Moreover, every state has rape and
sexual custodial misconduct laws that
criminalize this form of abuse, regardless
of the victim’s custody status, sexual orientation or gender identity.
This Call for Change presents recommendations that complement and build on
these legal standards as well as those at the
local level. If implemented, the policies
included here will significantly decrease
sexual violence against LGBTQ detainees.

Recommendations
1. Prisoner Awareness
All detainees need to know that sexual
abuse is unacceptable in all circumstances,
whether perpetrated by corrections officials or other detainees. They must be
given a handbook detailing information
about the policies related to sexual conduct at the facility where they are housed.
The Call for Change Coalition calls on
all detention facilities to:
• Confirm that the inmate handbook
states every person’s right to be free
from sexual abuse and the institution’s
explicit prohibition of such acts. A definition of abuse—using clear, frank language—including the indicators of
inappropriate staff-detainee relationships, must be included.
• Ensure that the inmate handbook
provides information about the
availability of mental health counseling following sexual abuse.

• Make certain that the handbook provides a clear explanation of the steps a
detainee must take to file a grievance.
• Verify that the handbook is translated
into the commonly-used languages of
the locale. Low-literacy detainees must
receive the handbook information
verbally.

2. Promoting Safety
One of the most important tools available to corrections officials to prevent prisoner rape is the appropriate classification
of detainees. While anyone can be a victim
of sexual violence behind bars, typical
victims are young, nonviolent, first-time
offenders who are feminine, physically
small, weak, and/or shy. LGBTQ detainees or those perceived as such are exceptionally vulnerable to rape. Corrections

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staff must therefore take special care in
determining the housing arrangements
for these detainees. The Call for Change
Coalition calls on all detention facilities to:

• Provide appropriate undergarments,
such as sports bras for transgender detainees, to reduce the likelihood of harassment and humiliation.

• In classification and housing assignments, take into account risk factors
that can lead to detainees becoming the
targets of sexual victimization. In particular, corrections officials must acknowledge the unique safety concerns
of LGBTQ individuals and avoid pairing inmates as cellmates if sexual assault is likely to be the result.

• Allow transgender detainees to use
shower facilities at a separate time
from others.

• Protect detainees at high risk for abuse
by discontinuing housing policies and
practices that place them in dangerous
situations or that are unnecessarily
punitive, including housing
transgender detainees in the general
population only according to genitalia
or automatically placing LGBTQ detainees in segregation or special housing units. Instead, facilities must offer
thoughtful housing options, including
single cells when available, separate
units for detainees at risk of being targeted for sexual assault, and voluntary,
non-punitive forms of segregation.

3. Staff Screening and Training
Proper staff screening is an essential safeguard against sexual violence. Regular,
mandatory staff training—including the
development of clear standards for on-thejob conduct and a zero-tolerance policy
with respect to sexual violence—sets a
tone of institutional seriousness and professionalism. The Call for Change Coalition calls on all detention facilities to:

• Take into account detainee objections
to being paired with a specific cellmate
due to fear of assault.

• Conduct extensive background checks
of all employees who will have direct
contact with detainees. No individual
convicted of rape, custodial sexual misconduct or any other crime involving
nonconsensual sexual contact, or any
individual who has been fired or has
resigned from a job as a corrections
employee pursuant to substantiated allegations of sexual abuse, shall be eligible for employment in a position that
involves direct contact with inmates.

• Require that strip searches of transgender inmates be authorized by the
supervisor on duty and that the reason
for the strip search always be documented. Strip searches of transgender
detainees must occur in a manner that
provides privacy from other inmates
and staff members. Transgender detainees must never be strip searched because staff are curious about what their
bodies look like or to humiliate them.

• Provide mandatory training for current
and future corrections staff members,
including all non-security personnel,
on a regular basis. Training must include: a clear statement that sexual
abuse of detainees is a crime; strategies
for identifying and protecting potential victims; information on how to
respond properly to a report of sexual
abuse, and information on reporting
and tracking sexual abuse.

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• Include detailed information in training programs about non-discrimination
against LGBTQ detainees and explicitly prohibit homophobic and derogatory comments directed against such
detainees. Acknowledge, as a matter of
written policy and daily practice, the
unique safety concerns of LGBTQ
detainees and emphasize that the prevention of sexual violence is a top institutional priority.

4 •

• Ensure that the above stipulations apply to all employees, including contractors, volunteers, health care professionals, and anyone else who has contact
with detainees, on or off the institution
grounds. For those categories of employees for whom it is not feasible to
attend regular trainings on sexual abuse,
a class in which pertinent information
about how to prevent and address
sexual violence is conveyed must be
mandatory before such employees are
allowed contact with inmates.

• Include the following as examples of
prohibited conduct in training materials for employees: responding to detainees’ concerns or complaints of
sexual abuse in a dismissive or skeptical manner; condoning, encouraging
or otherwise being complicit in sexual
abuse as a method of punishing detainees; and failing to prevent or stop sexual
abuse based on a belief that LGBTQ
detainees “want” sexual aggression.

4. Responding to Sexual Violence

• Require staff to report all observed incidents of custodial sexual misconduct
and all acts of indifference toward the
sexual abuse of detainees, and to take a
proactive role in monitoring the safety
of inmates who may be vulnerable to
sexual abuse.

Taking action in a timely and professional
manner to address allegations of sexual assault is an essential component in minimizing harmful consequences to survivors
and in breaking the cycle of sexual abuse
in detention. The Call for Change Coalition calls on all detention facilities to:

• Reward staff for treating detainees in a
respectful manner and for properly
handling reports of sexual assault.
When employment procedures allow,
tie merit salary increases and promotions to adherence to this principle.

• Establish multiple avenues for filing a
complaint about sexual abuse, so that
detainees are not required to report
grievances to an abusive staff member
or one who they believe will not take
action. It is especially important to
ensure that detainees are aware of
their right to breach the normal chainof-command when reporting sexual
abuse.

• Terminate and prosecute an employee
if an internal or external investigation confirms that s/he has engaged in
sexual misconduct against a detainee.
While under investigation, such an
employee shall have no direct contact
with detainees. If this is not possible,
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then the survivor must be given the
option of being housed where s/he will
have no contact with the employee. If
an employee exhibits indifference to
the sexual abuse of a detainee, appropriate disciplinary action must be taken.

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• Ensure that detainees who file complaints of sexual abuse are not punished, either directly or indirectly. Also
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ensure that all complaints and reports
of sexual violence remain confidential
to the extent possible, meaning that they
are divulged only to those staff members
who need to know in order to carry out
an investigation and to maintain the
health and safety of the detainee.
• Make certain that administrative segregation of those who report abuse is
not automatic. If a person is segregated
for his or her own protection, such segregation must be non-disciplinary, and
must not result in any unnecessary loss
of privileges or access to physical or
mental health care.
• Ascertain that evidence is collected as
promptly as possible in the aftermath
of a sexual assault; instruct the victim
not to shower, remove clothing, wash,
drink, eat or defecate until examined.
Staff implicated in the assault must
never be involved in the collection of
evidence.
• Provide appropriate acute-trauma care
for rape victims, including treatment
of injuries, medical examination, STD
testing and prophylaxis, and emergency mental health counseling.
• Facilitate the ability of hospital staff
and independent rape crisis counselors
to counsel survivors in private.
• Make certain that detainees who have
been victimized receive appropriate
physical and mental health care followup and confidential counseling for
post-traumatic stress disorder and
other mental health problems. This
follow-up must also include access to
confidential, voluntary testing, treatment, and counseling for HIV/AIDS
and other STDs.

• Ensure that proper standards of redress
and aftercare are never dependent upon
the victim’s willingness to press charges
against an alleged assailant.

5. External Monitoring, Reporting, and Services
In order to prevent sexual violence, detention facilities must operate with transparency by fully documenting abuse, by
facilitating external monitoring by independent organizations, and by providing
unfettered access to entities that provide
services to survivors. The Call for Change
Coalition calls on all detention facilities to:
• Allow relevant, independent monitoring and regulatory organizations to
enter the institution and have broad
access to detainees.
• Collaborate with community rape crisis centers to provide confidential rape
crisis services to survivors.
• Document all complaints of sexual
abuse of detainees, including: whether
the abuse was perpetrated by a staff
member or another detainee; the result
of the investigation; the circumstances
of the assault; whether the victim chose
to press charges; and any resolution of
the complaint. This information
should be made public (except in the
case of complaints shown to be unfounded), with identifying information redacted.
• Provide copies of Stop Prisoner Rape’s
Resource Guide for Survivors of Rape Behind Bars to detainees and ensure that
any effort to reach out to the organizations included therein remains free
and confidential.

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Conclusion

T

he Call for Change was initiated
in November 2004, when Stop
Prisoner Rape hosted a Community Dialogue in Los Angeles that brought
together more than 40 human rights advocates, rape crisis counselors, LGBTQ
rights advocates, corrections officials, and
politicians to address the problem of
sexual violence against LGBTQ detainees.
Many other organizations (both within
the U.S. and abroad) have since joined
the coalition.

Due in part to the Prison Rape Elimination Act (PREA), corrections officials are
gradually acknowledging their responsibility to prevent sexual abuse against everyone in their custody. However, LGBTQ detainees continue to be dramatically overrepresented among the victims of sexual assault behind bars. By implementing the
above policy recommendations, detention
facilities can put an end to this dehumanizing violence and protect one of the nation’s
most vulnerable incarcerated populations.

Call for Change Signatories
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
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S t o p

AFL-CIO, Pride at Work, Washington, District of Columbia
AIDS Project Los Angeles, Los Angeles, California
Afrihealth Information Projects, Lagos, Nigeria
Albuquerque Rape Crisis Center, Albuquerque, New Mexico
American Civil Liberties Union of Southern California, Los Angeles,
California
Amnesty International USA, New York, New York
Archdiocese of Los Angeles, Office of Restorative Justice, Los Angeles,
California
Association HIV.LV, Riga, Latvia
Bavarian Network on HIV/AIDS in Prison, Bonn, Germany
Bienestar Human Services, Los Angeles, California
Birth Attendants: The Prison Doula Project, Olympia, Washington
Books Not Bars, Oakland, California
California Coalition Against Sexual Assault, Sacramento, California
California Coalition for Women Prisoners, San Francisco, California
California Prison Focus, San Francisco, California
California Women’s Law Center, Los Angeles, California
Center for Human Rights and Constitutional Law, Los Angeles, California
Center for the Study of Violence and Reconciliation, Johannesburg,
South Africa
The City of Los Angeles-AIDS Coordinator’s Office, Los Angeles, California
Coalition to Abolish Slavery and Trafficking, Los Angeles, California
Community HIV/AIDS Mobilization Project, New York, New York
The Correctional Association of New York, New York, New York
East L.A. Women’s Center, Los Angeles, California
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24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.

Equality California, Sacramento, California
Families to Amend California’s Three Strikes, Los Angeles, California
FIERCE!, New York, New York
Friends Outside, Los Angeles, California
FTM Alliance of Los Angeles, Los Angeles, California
Gay and Lesbian Adolescent Social Services, Los Angeles, California
Gay, Lesbian, and Straight Education Network, Los Angeles, California
Gay Men’s Health Crisis, New York, New York
Hemophilia Historical Archives, Woodland, California
Human Rights Watch, New York, New York
In The Life, Atlanta, Georgia
International Gay and Lesbian Human Rights Commission,
Asylum Documentation Program, New York, New York
L.A. Gay and Lesbian Center, Los Angeles, California
Men Can Stop Rape, Washington, District of Columbia
Münchner Aids-Hilfe, Munich, Germany
National Association of Social Workers, Women’s Council, Los Angeles,
California
National Center for Lesbian Rights, San Francisco, California
National Center for Youth Law, Oakland, California
National Gay and Lesbian Taskforce, Washington, District of Columbia
National Lawyer’s Guild, New York, New York
November Coalition Foundation, Colville, Washington
Peace Over Violence, Los Angeles, California
Program for Torture Victims, Los Angeles, California
Progressive Jewish Alliance, Los Angeles, California
Project SISTER, Claremont, California
The River Fund, Sebastian, Florida
SafeSpace for LGBTQQ Survivors of Violence, Burlington, Vermont
San Francisco Women Against Rape, San Francisco, California
Seattle LGBT Community Center, Seattle, Washington
Sexual Assault Crisis Agency, Long Beach, California
South Asian Network, Artesia, California
Stop Prisoner Rape, Los Angeles, California
The Sylvia Rivera Law Project, New York, New York
TGI Justice Project, Oakland, California
The Transgender Law Center, San Francisco, California
The Triangle Foundation, Detroit, Michigan
UCLA LGBT Center, Los Angeles, California
Unitarian Universalist Service Committee, Boston, Massachusetts
Valley Trauma Center, Van Nuys, California
A Window Between Worlds, Venice, California
Women’s Institute for Leadership Development for Human Rights,
San Francisco, California
Women Lawyers Jail Project, Los Angeles, California
The Women’s Council of the California Chapter of the National Association of
Social Workers, Los Angeles, California

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Endnotes

1. Rates for women vary greatly. In one institution, 27 percent of females reported a pressured or
forced sex incident, while in another institution the rate was seven percent. See Cindy StruckmanJohnson and David Struckman-Johnson, Sexual Coercion Reported by Women in Three Midwestern
Prisons, 39 JOURNAL OF SEX RESEARCH 3 (2002).
2. Cindy Struckman-Johnson and David Struckman-Johnson, Sexual Coercion Rates in Seven Midwestern Prison Facilities for Men, 80 THE PRISON JOURNAL 379 (2000).
3. At Risk: Sexual Abuse and Vulnerable Groups Behind Bars, Hearing Before the National Prison
Rape Elimination Commission (August 13, 2005) (testimony of Jody Marksamer, Esq. of the National Center for Lesbian Rights).
4. LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, HIV IN PRISONS, 2003 (2005) (available
on-line at http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp03.pdf).

STOP PRISONER RAPE
3325 Wilshire Blvd.,
Suite 340
Los Angeles, CA 90010
Tel: (213) 384-1400
Fax: (213) 384-1411
info@spr.org
www.spr.org

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