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ALL TOO FAMILIAR
Sexual Abuse of Women in U.S. State Prisons

PREVIOUSLY PUBLISHED HUMAN RIGHTS WATCH REPORTS
ON WOMEN==S HUMAN RIGHTS, THE U.S., AND PRISONS
Selected Reports on Women==s Human Rights
Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath,
September 1996
No Guarantees: Sex Discrimination in Mexico=s Maquiladora Sector, August 1996
Violence Against Women in South Africa: State Response to Domestic Violence and Rape,
November 1995
The Human Rights Watch Global Report on Women=s Human Rights, August 1995
Rape for Profit: Trafficking of Nepali Girls and Women to India=s Brothels, June 1995
Neither Jobs Nor Justice: Discrimination Against Women, March 1995
Second Class Citizens: Discrimination Against Women Under Botswana=s Citizenship Act,
September 1994
Rape in Haiti: A Weapon of Terror, July 1994
A Matter of Power: State Control of Women=s Virginity in Turkey, June 1994
A Modern Form of Slavery: Trafficking of Burmese Women and Girls into Brothels in
Thailand, December 1993
Seeking Refuge, Finding Terror: The Widespread Rape of Somali Women Refugees in
North Eastern Kenya, October 1993
War Crimes in Bosnia-Hercegovina: Volume II, April 1993
Untold Terror: Violence Against Women in Peru=s Armed Conflict, December 1992
Punishing the Victim: Rape and Mistreatment of Asian Maids in Kuwait, July 1992
Double Jeopardy: Police Abuse of Women in Pakistan, May 1992
Criminal Injustice: Violence Against Women in Brazil, October 1991
Selected Reports on the United States
Modern Capital of Human Rights?: Abuses in the State of Georgia, June 1996
Children in Confinement in Louisiana, October 1995
Crossing the Line: Human Rights Abuses Along the U.S. Border with Mexico Persist Amid
Climate of Impunity, April 1995
United States: A World Leader in Executing Juveniles, March 1995
Breach of Trust: Physician Participation in Executions in the U.S., February 1994
Human Rights Violations in the United States, January 1994
Frontier Injustice: Human Rights Abuses Along the U.S. Border with Mexico Persist Amid
Climate of Impunity, May 1993
Brutality Unchecked: Human Rights Abuses Along the U.S. Border with Mexico, June 1992
Police Brutality in the United States, July 1991
Detained, Denied, Deported: Asylum Seekers in the U.S., June 1986
Mother of Exiles: Refugees Imprisoned in America, June 1986
Selected Reports on Prison Conditions
Our findings on many of the countries listed below can be found in The Human Rights
Watch Global Report on Prisons, June 1993. We have reported on conditions in Algeria,
Brazil, China, Cuba, Former Czechoslovakia, Egypt, India, Indonesia, Israel and IsraeliOccupied West Bank and Gaza Strip, Jamaica, Japan, Mexico, Poland, Puerto Rico,
Romania, South Africa, Former Soviet Union, Somalia, Spain, Sudan, Syria, Tibet, Turkey,
United Kingdom, United States, Venezuela, Vietnam, and Zaire.

ALL TOO FAMILIAR
Sexual Abuse of Women in U.S. State Prisons

Human Rights Watch Women==s Rights Project

Human Rights Watch
New York A Washington A London A Brussels

Copyright 8 December 1996 by Human Rights Watch.
All rights reserved.
Printed in the United States of America.
ISBN 1-56432-153-3
Library of Congress Catalogue Card Number: 96-79706
Human Rights Watch Women=s Rights Project
The Human Rights Watch Women=s Rights Project was established in 1990 to
monitor violence against women and gender discrimination throughout the world.
Dorothy Q. Thomas is the director; Regan E. Ralph is the Washington director;
Samya Burney and LaShawn R. Jefferson are research associates; Robin Levi is the
staff attorney; Sinsi Hernandez-Cancio is the Sophie Silberberg Fellow; Jane Kim is
the Women=s Law and Public Policy Fellow; and Evelyn Miah and Kerry McArthur
are the associates. Kathleen Peratis is chair of the advisory committee and Nahid
Toubia is the vice chair.

Addresses for Human Rights Watch
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HUMAN RIGHTS WATCH
Human Rights Watch conducts regular, systematic investigations of human rights
abuses in some seventy countries around the world. Our reputation for timely, reliable
disclosures has made us an essential source of information for those concerned with
human rights. We address the human rights practices of governments of all political
stripes, of all geopolitical alignments, and of all ethnic and religious persuasions.
Human Rights Watch defends freedom of thought and expression, due process and
equal protection of the law, and a vigorous civil society; we document and denounce
murders, disappearances, torture, arbitrary imprisonment, discrimination, and other
abuses of internationally recognized human rights. Our goal is to hold governments
accountable if they transgress the rights of their people.
Human Rights Watch began in 1978 with the founding of its Helsinki
division. Today, it includes five divisions covering Africa, the Americas, Asia, the
Middle East, as well as the signatories of the Helsinki accords. It also includes three
collaborative projects on arms transfers, children=s rights, and women=s rights. It
maintains offices in New York, Washington, Los Angeles, London, Brussels, Moscow,
Dushanbe, Rio de Janeiro, and Hong Kong. Human Rights Watch is an independent,
nongovernmental organization, supported by contributions from private individuals and
foundations worldwide. It accepts no government funds, directly or indirectly.
The staff includes Kenneth Roth, executive director; Michele Alexander,
development director; Cynthia Brown, program director; Holly J. Burkhalter, advocacy
director; Barbara Guglielmo, finance and administration director; Robert Kimzey,
publications director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director;
Susan Osnos, communications director; Dinah PoKempner, acting general counsel;
Jemera Rone, counsel; and Joanna Weschler, United Nations representative.
The regional directors of Human Rights Watch are Peter Takirambudde,
Africa; José Miguel Vivanco, Americas; Sidney Jones, Asia; Holly Cartner, Helsinki;
and Eric Goldstein, Middle East (acting). The project directors are Joost R. Hiltermann,
Arms Project; Lois Whitman, Children=s Rights Project; and Dorothy Q. Thomas,
Women=s Rights Project.
The members of the board of directors are Robert L. Bernstein, chair; Adrian
W. DeWind, vice chair; Roland Algrant, Lisa Anderson, William Carmichael, Dorothy
Cullman, Gina Despres, Irene Diamond, Edith Everett, Jonathan Fanton, James C.
Goodale, Jack Greenberg, Vartan Gregorian, Alice H. Henkin, Stephen L. Kass, Marina
Pinto Kaufman, Bruce Klatsky, Harold Hongju Koh, Alexander MacGregor, Josh
Mailman, Samuel K. Murumba, Andrew Nathan, Jane Olson, Peter Osnos, Kathleen
Peratis, Bruce Rabb, Sigrid Rausing, Anita Roddick, Orville Schell, Sid Sheinberg,
Gary G. Sick, Malcolm Smith, Domna Stanton, Nahid Toubia, Maureen White,
Rosalind C. Whitehead, and Maya Wiley.

CONTENTS

ABBREVIATIONS..........................................................................................xiii
ACKNOWLEDGMENTS................................................................................ xv
I. SUMMARY AND RECOMMENDATIONS...............................................1
RECOMMENDATIONS TO THE FEDERAL GOVERNMENT.........9
ISSUES FOR CONSIDERATION BY
ALL STATE GOVERNMENTS ...........................................13
II. HISTORICAL AND LEGAL BACKGROUND ......................................16
HISTORICAL BACKGROUND .........................................................16
The Characteristics of the Female Prison Population.............16
Male Guards in Women=s Prisons ..........................................20
Male vs. Female Prisoners: Disparate Treatment...................22
PERTINENT NATIONAL AND INTERNATIONAL LAW..............26
U.S. Law ................................................................................26
The U.S. Constitution ..............................................27
The Eighth Amendment.............................27
The Fourth Amendment.............................28
U.S. Department of Justice ......................................30
Criminal Enforcement: Title 18, U.S.
Code, Sections 241 and 242 ........31
Civil Enforcement: CRIPA........................32
Civil Enforcement: Title 42, U.S.
Code, Section 14141 ...................36
Prison Litigation Reform Act...................................37
Sexual Contact in Custody:
Federal and State Law ...............................38
Access to the Courts and Grievance Mechanisms....43
International Human Rights Law ...........................................45
The United States= Non-Compliance........................47
The Use of International Law
as an Interpretative Guide..........................52
Custodial Sexual Misconduct as
Torture and Cruel, Inhuman,
and Degrading Treatment............52
Custodial Sexual Misconduct:
A Violation of the
International Right to Privacy .....54

Custodial Sexual Misconduct
and International Rights
to an Effective Remedy ...............55
Training ...................................................................59
CONCLUSION ....................................................................................60
III. CALIFORNIA...........................................................................................62
CONTEXT ...........................................................................................63
Custodial Environment...........................................................63
State Legal and Regulatory Framework .................................67
National and International Law Protections...........................68
ABUSES ..............................................................................................70
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact .........................................................71
Mistreatment of Prisoners Impregnated by Guards ...............78
Abusive and Degrading Language .........................................79
Privacy Violations..................................................................82
Strip Searches ..........................................................84
Inappropriate Visual Surveillance............................85
Avenal ....................................................................................87
THE SYSTEM=S RESPONSE ............................................................88
Denial of an Effective Remedy ..............................................89
Grievance Procedure................................................89
Investigations...........................................................92
Lack of Confidentiality ............................................93
Retaliation................................................................95
Abuse of Administrative Segregation ......................97
Lack of Accountability to Prisoners
and External Monitors ...............................99
Impunity...............................................................................101
RECOMMENDATIONS ...................................................................102
IV. THE DISTRICT OF COLUMBIA ........................................................110
CONTEXT .........................................................................................111
State Legal and Regulatory Framework ...............................111
National and International Law Protections.........................112
Legal Action to Expose and Remedy Abuses ......................113
ABUSES ............................................................................................119
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact .......................................................119
Abusive and Degrading Language .......................................121

THE SYSTEM=S RESPONSE ...........................................................122
The Effect of Women Prisoners v. District of Columbia .....124
RECOMMENDATIONS ...................................................................125
V. GEORGIA..................................................................................................127
CONTEXT .........................................................................................129
Custodial Environment.........................................................129
State Legal and Regulatory Framework ...............................132
National and International Law Protections.........................134
Legal Action to Expose and Prevent Abuses .......................135
ABUSES ............................................................................................137
Before Cason .......................................................................137
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact.........................................138
Mistreatment of Prisoners
Impregnated by Guards ...........................144
Privacy Violations and Mentally Ill Prisoners .......145
After Cason..........................................................................146
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact.........................................146
Mistreatment of Prisoners
Impregnated by Guards ...........................149
Privacy Violations and Mentally Ill Prisoners .......149
THE SYSTEM'S RESPONSE ...........................................................151
Before Cason .......................................................................152
Grievance Procedure..............................................153
Internal Investigations............................................154
Intimidation ...........................................................155
Staff Reporting.......................................................155
Impunity.................................................................156
After Cason..........................................................................158
Investigations and Disciplinary Action ..................158
Criminal IndictmentsCFailed Prosecutions ...........159
Retaliation Against "Jane Does" ............................163
Changes in Leadership and Administration ...........164
Failure to Comply with the Court's Orders ............166
Failure to Train ......................................................167
Handling of Investigations.....................................167
Rehired Former Employees ...................................169
Improved Investigations Procedure ......................170
Persistent Bias Against Prisoner Testimony ..........172
Lack of Independent Oversight ............................................173

RECOMMENDATIONS ...................................................................174
VI. ILLINOIS ................................................................................................180
CONTEXT .........................................................................................181
Custodial Environment.........................................................181
State Legal and Regulatory Framework ...............................183
National and International Law Protections.........................184
ABUSES ............................................................................................186
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact .......................................................186
Mistreatment of Prisoners Impregnated by Guards..............192
Abusive and Degrading Language .......................................193
Privacy Violations................................................................195
THE SYSTEM=S RESPONSE ...........................................................197
Right to an Effective Remedy ..............................................199
Grievances .............................................................199
Internal Investigations............................................200
Bias Against Prisoner Testimony...........................201
Lack of Confidentiality ..........................................204
Use of Polygraph Tests
and Administrative Segregation...............205
Inappropriate Confiscation of Property .................209
Retaliation and Harassment by Officers.................210
Impunity...............................................................................211
Lack of Accountability to External Monitors.......................214
RECOMMENDATIONS ...................................................................217
VII. MICHIGAN ...........................................................................................224
CONTEXT .........................................................................................225
Custodial Environment.........................................................225
State Legal and Regulatory Framework ...............................227
National and International Law Protections.........................230
ABUSES ............................................................................................232
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact .......................................................232
Mistreatment of Prisoners Impregnated by Guards..............240
Privacy Violations................................................................242
Abusive Pat-Frisks.................................................244
Inappropriate Visual Surveillance..........................246
Housing Units..........................................246
Searches of the Showers and Toilets .......247
Medical Appointments...........................................248

THE SYSTEM=S RESPONSE ...........................................................249
The Right to an Effective Remedy .......................................250
Flawed Grievance and Investigatory
Procedures ...............................................250
Effective Denial of the Right
to Complain...............................251
Bias Against Prisoner Testimony ............252
Conflicts of Interest .................................256
The Role of the State Police ....................258
Retaliation and Punishment .....................259
Inadequate Documentation...................................................263
Impunity...............................................................................264
Lack of Independent Oversight ............................................266
Michigan Women=s Commission ...........................267
Legislative Ombudsman ........................................268
Department of Justice ............................................270
Lack Of Training..................................................................271
RECOMMENDATIONS ...................................................................272
VIII. NEW YORK .........................................................................................281
CONTEXT .........................................................................................282
Custodial Environment.........................................................282
State Legal and Regulatory Framework ...............................283
National and International Law Protections.........................286
ABUSES ............................................................................................288
Rape, Sexual Assault or Abuse, and Criminal
Sexual Contact .......................................................288
Mistreatment of Prisoners Impregnated by Guards..............296
Abusive and Degrading Language .......................................299
Privacy Violations................................................................301
Body Searches .......................................................302
THE SYSTEM=S RESPONSE ...........................................................306
Denial of an Effective Remedy ............................................307
Grievances .............................................................307
Investigations and the Failure to Report ................310
Bias Against Prisoner Testimony...........................311
Conflicts of Interest ...............................................312
Retaliation..............................................................313
Impunity...............................................................................315
RECOMMENDATIONS ...................................................................319
APPENDIX: Standard Minimum Rules For The Treatment of Prisoners .......327

ABBREVIATIONS
ACLU
BOFQ
BOJS
CCWF
CDC
CIW
CLAIM
CRC
CORC
CRIPA
CEDAW
CTF
DCDC
DOCS
DOJ
DR
GBI
GDC
GWCI
HVM
IAD
ICCPR
IDOC
IG
LSPC
MHU
MDOC
MPC
NCCD
NIC
NWLC
NCWF
PAC
PLRA
PLS
RUO
SHU
VSPW
YACA

American Civil Liberties Union
Bona Fide Occupational Qualification
Bureau of Justice Statistics
Central California Women=s Facility
California Department of Corrections
California Institution for Women
Chicago Legal Aid to Incarcerated Mothers
California Rehabilitation Center
Central Office Review Committee (New York)
Civil Rights of Institutionalized Persons Act
Convention on the Elimination of All Forms of Discrimination
Against Women
Correctional Treatment Facility (District of Columbia)
District of Columbia Department of Corrections
Department of Correctional Services (New York)
Department of Justice
Disciplinary Report
Georgia Bureau of Investigations
Georgia Department of Corrections
Georgia Women=s Correctional Institution
Huron Valley Men=s Prison (Michigan)
Internal Affairs Division
International Covenant on Civil and Political Rights
Illinois Department of Corrections
Inspector General
Legal Services for Prisoners with Children
Mental Health Unit
Michigan Department of Corrections
Model Penal Code
National Council on Crime and Delinquency
National Institute of Corrections
National Women=s Law Center
Northern California Women=s Facility
Prison Action Committee (Illinois)
Prison Litigation Reform Act
Prisoners Legal Services (New York)
Resident Unit Officer
Segregated Housing Unit
Valley State Prison for Women (California)
Youth and Adult Correctional Agency (California)

ACKNOWLEDGMENTS

This report was researched and written by Dorothy Q. Thomas, director of
the Women=s Rights Project; Deborah Blatt, former fellow of the Women=s Rights
Project; Robin S. Levi, staff attorney of the Women=s Rights Project; Sarah Lai,
former research associate of the Women=s Rights Project; Joanne Mariner, associate
counsel of Human Rights Watch; and Regan E. Ralph, Washington director of the
Women=s Rights Project. In addition, Joanna Weschler, United Nations
representative of Human Rights Watch, conducted interviews for this report, and
Allyson Collins, senior researcher with Human Rights Watch, helped to frame all its
recommendations. Research assistance was provided by Jane Kim, fellow of the
Women=s Rights Project, and Mona Papillon, former intern of the Women=s Rights
Project. The report was edited by Dorothy Q. Thomas, Sarah Lai, Joanna
Weschler, Joanne Mariner, and Regan E. Ralph, with invaluable editorial oversight
from Cynthia Brown, program director of Human Rights Watch. Juan Méndez,
former general counsel of Human Rights Watch, and Kenneth Roth, executive
director of Human Rights Watch, provided legal review. The report was formatted
and proofread by Robert Kimzey, publications director of Human Rights Watch.
Special thanks to Evelyn Miah and Kerry McArthur, associates of the Women=s
Rights Project, and Sonja Lichtenstein, former intern of the Women=s Rights
Project, for their assistance in the production of this report.
This report would not have been possible without the leadership, guidance,
assistance, and on-going work of the organizations and individuals endeavoring to
combat sexual misconduct in U.S. state prisons. In particular, we would like to
thank Leslie Acoca, Ellen Barry (Legal Services for Prisoners with Children),
Karen Bower (American Civil Liberties Union-National Prison Project), Lisa
Boardman Burnette, Margaret Byrne, Robert Cullen, Ruth Cassell (Prisoners Legal
Services), Barbara Echols (Prison Action Committee), Betsy Fuller (Prisoners=
Legal Services), Gail Grieger, Carrie Hempel (University of Southern California
Law Center), Christina Jose-Kampfner, Rebecca Jurado (Western State School of
Law), Deborah LaBelle, Rhea Mallett, Millard Murphy (University of
California/Davis Law School), Brenda Smith (National Women=s Law Center), and
Gail Smith (Chicago Legal Aid to Incarcerated Mothers). We also wish to thank the
Department of Justice staff and state departments of corrections officials and
employees who agreed to speak with us.
Most of all, we would like to acknowledge with gratitude and respect the
many women prisoners who agreed to speak with us, despite fear of retaliation, for
this report. It would not have been possible without them.

xx

The Human Rights Watch Women=s Rights Project would also like to
thank Herbert and Marion Sandler, the Ford Foundation, the MacArthur
Foundation, the Moriah Fund, the Shaler Adams Foundation, and the Sister Fund
for their support of its work. This report also was made possible in part by funds
granted to Robin S. Levi and Jane Kim through a fellowship program sponsored by
the Charles H. Revson Foundation and funds granted to Deborah Blatt through the
New York University Law School Public Service Fellowship Fund. The statements
and views expressed in the text of this report are solely the responsibility of Human
Rights Watch.

xxi

I. SUMMARY AND RECOMMENDATIONS

This report examines the sexual abuse of female prisoners largely at the
hands of male correctional employees at eleven state prisons located in the north,
south, east, and west of the United States. It reflects research conducted over a twoand-a-half-year period from March 1994 to November 1996 and is based on
interviews conducted by the Human Rights Watch Women=s Rights Project and
other Human Rights Watch staff with the U.S. federal government, state
departments of corrections and district attorneys, correctional officers, civil and
women=s rights lawyers, prisoner aid organizations, and over sixty prisoners
formerly or currently incarcerated in women=s prisons in California, Georgia,
Illinois, Michigan, New York, and the District of Columbia, which is the nation=s
capital.
Our findings indicate that being a woman prisoner in U.S. state prisons can
be a terrifying experience. If you are sexually abused, you cannot escape from your
abuser. Grievance or investigatory procedures, where they exist, are often
ineffectual, and correctional employees continue to engage in abuse because they
believe they will rarely be held accountable, administratively or criminally. Few
people outside the prison walls know what is going on or care if they do know.
Fewer still do anything to address the problem.
The United States has the dubious distinction of incarcerating the largest
known number of prisoners in the world, of which a steadily increasing number are
women. Since 1980, the number of women entering U.S. prisons has risen by
almost 400 percent, roughly double the incarceration rate increase of males. Fiftytwo percent of these prisoners are African-American women, who constitute 14
percent of the total U.S. population. According to current estimates, at least half of
all female prisoners have experienced some form of sexual abuse prior to
incarceration. Many women are incarcerated in the 170 state prison facilities for
women across the United States and, more often than not, they are guarded by men.
The custodial sexual misconduct documented in this report takes many
forms. We found that male correctional employees have vaginally, anally, and
orally raped female prisoners and sexually assaulted and abused them. We found
that in the course of committing such gross misconduct, male officers have not only
used actual or threatened physical force, but have also used their near total authority
to provide or deny goods and privileges to female prisoners to compel them to have
sex or, in other cases, to reward them for having done so. In other cases, male
officers have violated their most basic professional duty and engaged in sexual
contact with female prisoners absent the use or threat of force or any material
1

2

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

exchange. In addition to engaging in sexual relations with prisoners, male officers
have used mandatory pat-frisks or room searches to grope women=s breasts,
buttocks, and vaginal areas and to view them inappropriately while in a state of
undress in the housing or bathroom areas. Male correctional officers and staff have
also engaged in regular verbal degradation and harassment of female prisoners, thus
contributing to a custodial environment in the state prisons for women which is
often highly sexualized and excessively hostile.
No one group of prisoners appears to suffer sexual misconduct more than
any other, although those in prison for the first time and young or mentally ill
prisoners are particularly vulnerable to abuse. Lesbian and transgendered prisoners
have also been singled out for sexual misconduct by officers, as have prisoners who
have in some way challenged an officer, either by informing on him for
inappropriate conduct or for refusing to submit to demands for sexual relations. In
some instances, women have been impregnated as a result of sexual misconduct,
and some of these prisoners have faced additional abuse in the form of
inappropriate segregation, denial of adequate health care, and/or pressure to seek an
abortion.
One of the clear contributing factors to sexual misconduct in U.S. prisons
for women is that the United States, despite authoritative international rules to the
contrary, allows male correctional employees to hold contact positions over
prisoners, that is, positions in which they serve in constant physical proximity to the
prisoners of the opposite sex. Under the United Nations Standard Minimum Rules
for the Treatment of Prisoners (Standard Minimum Rules), which constitute an
authoritative guide to international law regarding the treatment of prisoners and are
appended to this report, male officers are precluded from holding such contact
posts. However, since the passage of the Civil Rights Act of 1964, U.S. employers
have been prohibited from denying a person a job solely on the basis of gender
unless the person=s gender was reasonably necessary to the performance of the
specific job. In the absence of unusual circumstances, U.S. federal courts have been
unwilling to recognize a person=s gender as meeting this standard with respect to
correctional employment. As a result, most restrictions on male officers working in
women=s prisons that predated the Civil Rights Act have been removed and, by
some estimates, male officers working in women=s prisons now outnumber their
female counterparts by two and in some facilities, three to one.
As a matter of policy, Human Rights Watch supports U.S. antidiscrimination laws and has no objection per se to male officers guarding female
prisoners. Nor do we believe that all male officers abuse female prisoners.
However, we are concerned that the states= adherence to U.S. anti-discrimination
2

Summary and Recommendations

3

laws, in the absence of strong safeguards against custodial sexual misconduct, has
often come at the expense of the fundamental rights of prisoners. Our investigation
revealed that where state departments of correction have employed male staff or
officers to guard female prisoners, they have often done so absent clear prohibitions
on all forms of custodial sexual misconduct and without either training officers or
educating prisoners about such prohibitions. Female officers have also sexually
abused female prisoners and should, without exception, receive such training.
However, in the state prisons for women that we investigated, instances of same-sex
sexual misconduct were relatively rare.
Under both international and national law, states are clearly required to
prevent and punish custodial sexual misconduct. The International Covenant on
Civil and Political Rights (ICCPR) and the International Convention Against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(Torture Convention), both of which the United States has ratified, require state
parties to prohibit torture and other cruel, inhuman, or degrading treatment or
punishment and to ensure that such abuse is investigated and punished. The ICCPR
further guarantees prisoners a basic right to privacy, which has been interpreted to
preclude strip searches by officers of the opposite sex. These rights are further
enumerated in the Standard Minimum Rules, which call on governments to prohibit
custodial sexual abuse, provide prisoners with an effective right to complain of such
misconduct, ensure appropriate punishment, and guarantee that these obligations are
met in part through the proper training of correctional officers. In addition, the
United States Constitution expressly protects prisoners from cruel and inhuman
punishments and has been interpreted to accord prisoners limited privacy rights as
well as to guarantee them access to the courts.
The United States is thus clearly bound under its own constitution to
prevent and punish custodial sexual misconduct. It is equally bound by
international human rights law to take these steps, although in ratifying the ICCPR
and the Torture Convention, the United States attempted to limit its treaty
obligations in ways that were particularly adverse to the elimination of custodial
sexual misconduct. In Human Rights Watch=s view, these efforts by the United
States to shirk its full international human rights obligations are both bad policy and
legally indefensible. Accordingly, we hold the United States to the full scope of the
relevant obligations in each treaty.
Neither the nation=s capital nor any of the five states investigated for this
report are adequately upholding these international and national obligations. All
five states and the District of Columbia do have prison rules concerning sexual
misconduct, but they are often so vague as to be of little effective use. Rape and
3

4

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

sexual assault or abuse, which should clearly be covered by these rules, often are
not explicitly mentioned and must usually be read into vague prohibitions on
Aoverfamiliarity@ or Afraternization.@ Few prisons have express policies protecting
the privacy rights of prisoners, and fewer still deal expressly with the impropriety of
verbal harassment and degradation. While state departments of corrections will
usually investigate employees suspected of the most egregious violations of prison
rules that govern sexual misconduct, the officers frequently are not punished in
accordance with the seriousness of these crimes, and lesser offenses may not be
investigated or punished at all.
The District of Columbia and all of the states investigated in this report,
with the exception of Illinois, do expressly criminalize sexual misconduct that takes
the form of actual sexual contact between officers and prisoners. In some states and
the District of Columbia, a first offense of this sort is classified as a felony. In
others, it is classified merely as a misdemeanor. But no matter how the offense is
classified, state laws are rarely enforced, and when they are, they often carry very
light penalties. States= failure to uphold their own laws regarding custodial sexual
misconduct reflects their reluctance to prosecute such crimes, largely because of an
ingrained belief, except in the most egregious cases, that the prisoner was complicit
in the sexual abuse committed against her. In this sense, state officials still widely
view criminal sexual misconduct as a victimless crime.
In Human Rights Watch=s view, any correctional employee who engages in
sexual intercourse or sexual touching with a prisoner is guilty of a crime and should
be prosecuted to the fullest extent of the law. As discussed in the legal section of
this report, the exact nature of the crime depends on the circumstances under which
it is committed and, in particular, on the type and level of pressure the correctional
employee exerts on the prisoner. Given the inherently unequal nature of the
custodial relationship, however, some type of pressure on the prisoner should be
presumed.
In many instances, the use of force by correctional employees to secure
sexual relations from a prisoner takes the form of an offer of privileges or goods.
Because prisoners are completely dependent on officers for the most basic
necessities, the offer or, by implication, threat to withhold privileges or goods is a
very powerful inducement. Even when the officer promises or supplies goods or
benefits to the prisoner without any implied or perceived threat to her, it is still a
more serious offense than if he bestows no goods or benefits at all. This stiffer
penalty reflects the fact that prisoners, by definition, have limited resources and
privileges, and thus the promise of such rewards always carries special weight.

4

Summary and Recommendations

5

Even in those cases where an officer engages in sexual relations with a
prisoner absent any form of pressure or exchange, he should still be liable for a
serious criminal offense. In prison, correctional employees have nearly absolute
power over the well-being of prisoners and a corresponding obligation to ensure
that this power is never abused. When an officer has sexual contact with a person in
his custody, even without any overt pressure or exchange, he commits a gross
violation of his professional duty. An inquiry into the victim=s alleged consent to
such conduct should be unnecessary to establish this professional breach or any
other crime of custodial sexual abuse. Rather, the focus should be on the degree of
pressure exerted by the guard or employee.
One of the biggest obstacles to the eradication of custodial sexual
misconduct is its invisibility at the state and national level. In the Georgia and
District of Columbia correctional systems, for example, it took class actions suits in
1992 and 1994, respectively, to make the problem of sexual misconduct visible
outside the confines of the correctional system itself. Only after being sued did the
departments of corrections admit that the problem of custodial sexual misconduct
existed in their facilities for women and that reforms were needed. Sexual
misconduct is often so entrenched that, in those correctional systems where class
action suits have not yet occurred or have only recently been initiated, such abuse is
still largely an invisible problem or one that the respective correctional systems
flatly deny.
The invisibility of custodial sexual misconduct, and hence its deniability,
are further fueled by the failure of the states we investigated and the District of
Columbia to establish credible internal grievance and investigatory procedures that
do not expose complainants to retaliation or punishment. In virtually every prison
that we investigated, we found grievance procedures that required the prisoner to
confront informally the implicated officer before filing a formal grievance or that
informed the officer of a complaint lodged against him while he was still in a
contact position with the complainant. Both of these procedures exposed prisoners
to retaliation by officers and routinely deterred them from filing sexual misconduct
complaints.
Even if a prisoner succeeded in pursuing a complaint of sexual
misconduct, we found that internal investigatory procedures, while they exist in all
five states and the District of Columbia, were often fraught with conflicts of interest
and a bias against prisoner testimony. At times, officers accused of sexual
misconduct were assigned to investigate themselves. We also found that in almost
every case of custodial sexual misconduct, correctional officials assumed that the
prisoner lied and thus refused, absent medical reports or witnesses who were not
5

6

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

prisoners, to credit prisoner testimony. Given the closed nature of the prison
environment, and the reluctance of officers to testify against their peers, such
evidence is often very hard to obtain. Thus, complaints of sexual misconduct can
be extremely difficult to substantiate. In Georgia, which took steps to credit
prisoner testimony more fairly, the investigation and punishment of sexual
misconduct markedly improved.
Virtually every prisoner we interviewed who had lodged a complaint of
sexual misconduct faced retaliation by the accused officer, his colleagues, or even
other prisoners. In some cases, they also faced punishment by correctional officials.
These punishments took the form of write-ups for sexual misconduct, the loss of
Agood time@ accrued toward an early parole, or prolonged periods of disciplinary
segregation. In other cases, officials did not overtly discipline prisoners but made
use of administrative segregation, ostensibly a protective mechanism, effectively to
punish them. Thus, prisoners who had committed no disciplinary infraction
whatsoever were subjected to the same treatment as prisoners serving disciplinary
sentences. In our view, no justification exists for punishing prisoners for sexual
misconduct by officers or staff. Whatever penological benefit that may flow from
such measures is far outweighed by their deterrent effect on prisoners who might
seek to report such abuse.
As noted above, unless outside organizations or individuals are made
aware of incidents of custodial sexual misconduct, complaints of such abuse are
likely to be handled almost entirely from within the departments of corrections or
even from within the given prison. While most correctional systems that we
investigated did sometimes refer suspected criminal sexual misconduct to the state
police, these referrals did not always occur, nor were they necessarily carried out
promptly, with the result that crucial medical evidence may have been
compromised. Moreover, once correctional officials referred such charges to the
state police, this often had the unconscionable side effect of ending the departments=
own internal investigations into the alleged misconduct. It is at this point in the
investigatory process that serious allegations of sexual misconduct can escape the
grasp of the prison administration. Often, prison administrators fail to deal
appropriately with cases that are returned to them because the allegations do not
meet prosecution standards. An employee who may not have been found to commit
a crime, but who may nonetheless have violated prison rules, can thus escape
punishment altogether.
Meanwhile, in cases of suspected sexual misconduct that authorities
consider less than criminal, it is likely that no investigation outside of the prison
facility will occur, whether by departmental investigators or the state police.
6

Summary and Recommendations

7

Moreover, any investigation into custodial sexual misconduct at whatever level that
does occur may not be recorded or monitored by any central authority. In fact, in
no correctional system that we investigated, with the exception of Georgia=s, did any
such reliable centralized database of sexual misconduct, whether criminal or
otherwise, exist. The absence of such a database makes it all the more difficult to
monitor the incidence of sexual misconduct, to record the steps taken to remedy it,
and to keep track of allegedly abusive employees or those who have been found to
have violated prison rules and/or criminal law.
One obvious way to address the clear conflict of interest that exists when a
department of corrections investigates itself is to establish independent monitors to
oversee correctional facilities. However, in the correctional systems that we
investigated, such independent oversight was virtually nonexistent. The District of
Columbia, for example, pursuant to a judicial order resulting from the 1994 class
action suit, was required to appoint a special monitor who would independently
investigate and make recommendations to remedy sexual misconduct within the
district=s correctional system. But under an August 1996 circuit court decision, the
special monitor=s position was eliminated pending appeal. The state of Michigan
does have a legislative corrections ombudsman who is mandated by the state
legislature to oversee conditions in the state=s correctional institutions. The
ombudsman=s investigatory and oversight powers are fairly limited, however, and
under 1995 legislation, have been even further curtailed. To our knowledge, none
of the other states that we investigated have any kind of effective mechanism for
securing the independent monitoring of conditions within their correctional
facilities.
Given the lack of independent mechanisms legally authorized to oversee
the departments of corrections, nongovernmental monitors and private attorneys
have become crucial players in the effort to expose and remedy custodial sexual
misconduct. Unfortunately, few national or local organizations or private attorneys
that focus on prisoners= rights consistently focus on the problem of sexual
misconduct in women=s prisons. Those that do face enormous obstacles. These
independent nongovernmental monitors, including attorneys, who investigate sexual
misconduct often have unduly limited access to prisoners, are shut out of complaint
or investigatory processes, are publicly attacked by correctional and even state
officials, and find that their work with respect to other custodial issues can be
compromised by their attempts to address this one. In addition, these groups and
individuals uniformly face severe resource constraints which limit their ability to
monitor departments of corrections and which have recently been exacerbated by
the passage of the Prison Litigation Reform Act (PLRA), discussed below.
7

8

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The PLRA, which was signed into law by President Bill Clinton in April
1996, has seriously compromised the ability of any entity, private or public, to
combat sexual misconduct in custody. Among other measures, the PLRA
dramatically limits the ability of individuals and nongovernmental organizations to
challenge abusive prison conditions through litigation. The PLRA invalidates any
settlement by parties to such a litigation that does not include a finding or statement
that the prison conditions being challenged violate a federal statute or the U.S.
Constitution. Because prison authorities never want to admit such violations in the
consent decrees that frequently settle prison litigation without trial, such findings
are extremely rare. The PLRA further arbitrarily terminates any court order
regarding unlawful conditions or practices in a given prison after two years,
regardless of the degree of compliance; this is often an unreasonably short time to
achieve any meaningful change in the way a prison is operated. Thus, a new trial
will usually have to be held in order to make a new finding that problems persist.
Finally, the PLRA also restricts court-awarded attorneys= fees, which are the main
income for prisoner rights attorneys, and severely limits the authority of federal
courts to assign judicial officers to oversee prison reform, a key tool for
implementing remedial court orders.
The passage of the PLRA removes the one effective external check on
serious abusesCsuch as those described in this reportCand increases the urgency of
the need for states themselves to ensure that female prisoners in their custody are
not being sexually abused or harassed by male staff in their employ. Where they
fail to do so, the United States Department of Justice has the power to prosecute
correctional officials who violate federal civil rights statues. These prosecutions are
difficult, in part due to stringent intent requirements, and are quite rare. In addition,
the DOJ has the statutory right to investigate and institute civil actions under the
Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state
facility engages in a pattern or practice of subjecting prisoners to Aegregious or
flagrant conditions@ in violation of the constitution. Unfortunately, the PLRA is
likely to have a chilling effect on the DOJ=s oversight efforts, as well as those of
private groups, and has already prompted the department to engage in an ill-advised
review of all outstanding consent decrees to establish whether they should be
terminated under the PLRA, regardless of whether a state department of corrections
has yet filed such a request.
Even prior to the passage of the PLRA, the DOJ fell far short of its
international and national obligations to protect against custodial sexual misconduct
and to ensure that such abuse was appropriately investigated and prosecuted.
Currently the DOJ has no guidelines that stipulate when and how to launch CRIPA
8

Summary and Recommendations

9

investigations into conditions at state prisons and has conducted few such inquiries.
The only state that we investigated for this report in which the DOJ has launched a
formal investigation under CRIPA is the state of Michigan. Unfortunately, the
Justice Department has yet to file suit against the stateCdespite its clear finding of
sexual abuse of women prisoners by guards in Michigan=s prisons and the fact that
the forty-nine day period that the DOJ must legally wait after issuing findings
before it can file such a suit lapsed well over a year ago.
Moreover, although the DOJ regularly receives complaints of custodial
sexual misconduct, the department maintains no system for recording such
complaints, nor does it systematically monitor the number of complaints concerning
any particular institution or type of abuse. Absent such information, it is virtually
impossible for the DOJ to ensure that it is fully aware of all the sexual misconduct
problems that fall within its jurisdiction. Unfortunately, even if the DOJ were to
take much-needed steps to monitor the problem of custodial sexual misconduct
more effectively, it would still have to contend with serious budgetary constraints.
The tendency of the U.S. government to neglect the problem of custodial
sexual misconduct in state prisons for women is perhaps best exemplified by its first
report to the U.N. Human Rights Committee, which monitors compliance with the
ICCPR. In the entire 213-page report, the problem of custodial sexual misconduct
in U.S. state prisons for women is mentioned only once and then only to state that it
is Aaddressed through staff training and through criminal statutes prohibiting such
activity.@ This statement is at best disingenuous. At worst, it makes clear to the
international community, to the people of the United States, to the state departments
of corrections and the women they incarcerate, and to us, that the United States has
almost completely abdicated its responsibility to guarantee in any meaningful way
that the women held in its state prisons are not being sexually abused by those in
authority over them.
Human Rights Watch calls on the United States to demonstrate its clear
commitment to its international and national obligations to prevent, investigate, and
punish custodial sexual abuse in U.S. state prisons for women and makes the
following recommendations to the federal government and its constituent states,
urging them to step up their efforts to acknowledge and eliminate this pressing
problem. Recommendations specific to the District of Columbia and the five states
investigated for this report appear at the close of each relevant chapter.

RECOMMENDATIONS TO THE FEDERAL GOVERNMENT

9

10

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

I.
1.

U.S. Congress
The U.S. Congress should pass legislation that requires states, as a
precondition to receiving federal funding for the construction and
maintenance of state prisons and holding cells, to criminalize all sexual
contact between correctional staff and prisoners and, as discussed below,
to report annually to the DOJ regarding conditions of incarceration in their
respective facilities.
The U.S. Congress should pass legislation that requires states to prohibit
departments of corrections from hiring staff who have been convicted on
criminal charges, or found liable in civil suits, for custodial sexual
misconduct. The names and identifying information of such individuals
should be maintained by each department of corrections, in a database that
must be checked prior to hiring any correctional staff. This information
should be collected by the DOJ data collection office, discussed below, for
use by all states.

2.

3.

The U.S. Congress should appropriate the funds necessary to enable the
DOJ to conduct increased and thorough investigations of custodial sexual
misconduct and to enjoin prohibited conduct pursuant to CRIPA. These
funds should also be used by the DOJ to create an office of data collection,
mandated to keep track of complaints of sexual abuse on a state-by-state
basis, to issue semi-annual reports regarding such complaints, to provide
complainants with information about the mechanisms available to remedy
such abuse, and to follow up with the relevant state departments of
corrections or federal prisons regarding any issues of concern. The DOJ
should be mandated to do outreach about this office to federal and state
correctional facilities, prisoners, and other relevant actors, including
through the publication of materials about the data collection office that
could be posted within correctional facilities. The state-level independent
review boards or other oversight mechanisms, discussed below, should
also supply information on a regular basis to this office.

4.

The U.S. Congress should revise certain provisions of the Prisoner
Litigation Reform Act that severely limit the ability of prisoners,
nongovernmental organizations, and the Department of Justice to
challenge unconstitutional conditions in state correctional facilities. Those
revisions, at a minimum, should include:

10

Summary and Recommendations
C
C
C

11

repealing 18 United States Code Section 3626(a)(1), which
requires that judicially enforceable consent decrees contain
findings of federal law violations;
repealing 18 United States Code Section 3626(b), which requires
all judicial orders to terminate two years after they are issued;
and
restoring funding for special masters= and attorneys= fees to the
levels that prevailed before the passage of the Prison Litigation
Reform Act.

5.

The U.S. Congress should engage in a review of the CRIPA procedures
for certifying the grievance procedures of U.S. correctional systems to
ensure that certified procedures will function effectively for complaints of
custodial abuse.

6.

The U.S. should withdraw the restrictive reservations, declarations, and
understandings that the it has attached to the ICCPR and the Torture
Convention.

7.

The U.S. Congress should introduce implementing legislation for the
ICCPR and the Torture Convention such that persons in the United States
could legally enforce the protections of these treaties in U.S. courts; or it
should formally declare that both treaties are self-executing and thus
capable of sustaining claims in U.S. courts without further legislation.

II.

U.S. Department of Justice

1.

Civil Rights Division
The U.S. Department of Justice, as a necessary step toward improving its
responsiveness to sexual misconduct and the quality of its information
about same, should establish a secure, toll-free telephone hotline to receive
complaints of sexual misconduct by correctional staff and should publicize
the existence of this service. The hotline should
C
provide prisoners information about their rights and about
nongovernmental organizations that they may contact for
assistance;

11

12

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
C
C
C
C
C

forward complaints to both the state officials and the Special
Litigation Section and Criminal Section of the DOJ=s Civil Rights
Division;
ensure confidentiality;
be accessible under all circumstances, including times when
prisoners are in segregation;
be viewed as exercising the constitutional right to legal
representation, and therefore be free from monitoring by prison
officials; and
extend its confidentiality to any written correspondence emerging
from a prisoner=s contact with the hotline.

2.

The information collected through the hotline should be used to help
compile the semi-annual reports of the office of data collection, suggested
above.

3.

The DOJ should formulate and issue specific, public procedures that detail
its investigative process under CRIPA.

4.

The DOJ should use the information contained in this report and
information from other reliable sources to consider initiating additional
criminal investigations under 18 U.S.C. Sections 241 and 242.

5.

The DOJ should exercise its full authority under CRIPA to initiate, with
the participation of its Office of Violence Against Women, investigations
in the states examined in this report.

6.

The DOJ should require states, as a condition of continued federal
assistance, to report annually to the Civil Rights Division regarding
conditions of incarceration in their respective correctional facilities. Such
reports should include, among other things, patterns of rape, sexual abuse,
and other forms of violence against women. The DOJ should publish an
annual report based upon this information.

7.

The DOJ should appoint an attorney within its Special Litigation section
responsible for overseeing all complaints of sexual misconduct lodged
with the section.

12

Summary and Recommendations

13

National Institute of Corrections
The National Institute of Corrections (NIC) should develop standards akin
to the U.N.=s Standard Minimum Rules, in order to provide national guidelines for
the treatment of prisoners to ensure that state corrections procedure and practice
comport with international and constitutional protections. One valuable
contribution from the NIC would be the development of model grievance,
investigatory, and training mechanisms to address in particular many of the
concerns raised in this report. These procedures should be developed in close
consultation with all relevant parties, including those nongovernmental
organizations familiar with prisoner work, including with work on sexual
misconduct in women=s facilities.
III.
1.

Executive Branch
The U.S. should reinvigorate its efforts to secure ratification of the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) to the U.S. Senate for ratification, and after
ratification, to include in its periodic compliance reports to the CEDAW
Committee information regarding federal measures to eradicate the
problem of custodial sexual misconduct in U.S. state, as well as federal,
prisons.

2.

The U.S. should include information on custodial sexual misconduct
against women prisoners in its next report to the United Nations Human
Rights Committee and in its first compliance report to the Committee
Against Torture.

ISSUES FOR CONSIDERATION BY ALL STATE GOVERNMENTS
Most of the recommendations in this report are tailored to address the
specific circumstances surrounding the problem of custodial sexual misconduct in
each state. Nonetheless, based on our observations in these five states and in the
District of Columbia, there are a number of critical cross-cutting concerns that merit
urgent consideration by all states. Moreover, based on information that we gathered
in the preparation of this report but did not investigate independently, Human
Rights Watch is concerned that the problem of custodial sexual misconduct in state
prisons, jails, and other custodial facilities for women exists in many states beyond
the scope of this report. Accordingly, we call on all U.S. states to consider:
13

14

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

C

the need to prohibit expressly sexual misconduct in custody in both the
administrative codes for departments of corrections and, where
appropriate, in criminal law, in fulfillment of international human rights
prohibitions on cruel, inhuman, or degrading treatment and punishment;

C

the need, in every state, to set forth and enforce policies that secure
privacy protections and protections against verbal degradation that are
consistent with U.S. obligations under international human rights law, such
as policies that limit strip searches, pat-frisks, and inappropriate visual
surveillance of prisoners by employees of the opposite sex;

C

the need for thorough training for all current and future correctional
employees regarding sexual misconduct and cross-gender guarding issues
and regarding the implications of international human rights treaties and
federal and state laws for the conduct of each prison system and its staff;

C

the need to reward correctional employees, and in particular deputy
wardens and wardens, for taking clear action to prevent and punish
custodial sexual misconduct and to sanction those who do not;

C

the need to ensure that prisoners who are impregnated by corrections staff
are not automatically subject to administrative segregation and that they
receive timely and adequate medical care, including psychiatric counseling
when requested;

C

the need to ensure that prisoners who become pregnant as a result of
custodial sexual abuse are not pressured in any way to undergo abortions;

C

the need to prevent the hiring or rehiring of employees who have
previously been fired or resigned from a job as a corrections employee
pursuant to allegations of sexual misconduct;

C

the need to establish accessible and effective grievance and investigatory
procedures consistent with the right under the ICCPR, the Torture
Convention, and the Standard Minimum Rules to file complaints of
official misconduct without fear of retribution or punishment;

14

Summary and Recommendations

15

C

the need to guarantee that such procedures would ensure, inter alia,
confidentiality of the complainant during the period of time in which the
officer is still potentially in contact with her, ensure that her name is not
made available to the general population, and impartial investigations are
conducted by persons other than the implicated officials, and include
meaningful appeal mechanisms;

C

the need to protect prisoners from retaliation by implicated officers;

C

the need to refrain from directly or indirectly punishing prisoners for
sexual misconduct and, in particular, to examine the inappropriate and de
facto punitive use of administrative segregation to punish and/or intimidate
prisoners involved in investigations of sexual misconduct;

C

the need, consistent with the U.S.=s international human rights obligations,
to ensure that those employees who engage in the sexual abuse of
prisoners under their protection are punished to fullest extent of the law;

C

the need to ensure that independent monitoring groups, like many of those
mentioned in this report, are able to investigate and evaluate the
compliance of the state governments and the U.S. federal government with
international human rights and domestic civil rights obligations; and

C

the need to establish independent review boards or the equivalent of a
legislative corrections ombudsman mandated to receive and investigate
complaints of sexual misconduct, including from prisoners, and to provide
information on the complaints by these independent entities received to the
DOJ office of data collection suggested above.

15

II. HISTORICAL AND LEGAL BACKGROUND

HISTORICAL BACKGROUND
Sexual misconduct by prison guards1 in U.S. women=s prisons is occurring
in the context of a steadily increasing population of female prisonersCmany of
whom are first offendersCin state (and federal) prisons. Female prisoners
historically have experienced disparate treatment compared to their male
counterparts. Many of these female prisoners have personal histories of sexual
abuse and are now being guarded more often than not by male officers. Moreover,
this misconduct is occurring in a context where prison rules and state law do not
adequately address the problem, federal law either does not apply or is sporadically
enforced, and international human rights law, which provides clear protections
against and remedies for such abuse, is largely ignored. This section describes this
historical and legal context.
The Characteristics of the Female Prison Population

1

Not all sexual misconduct is committed by prison guards. Non-security correctional
employees also have been found to engage in such abuse. Throughout this report, we use the
terms guard, officer, employee, and staff interchangeably, except in describing specific acts
of sexual misconduct. In this case, we give the exact professional status of the officer or
non-security employee involved.

16

Historical and Legal Background

17

Women constitute only a tiny minority of the prison population in the
United States,2 representing just over 6 percent of all prisoners at the end of 1995.3
However, their relatively small presence should not obscure a dramatic increase in
their numbers over the last fifteen years. According to the Department of Justice=s
Bureau of Justice Statistics (BOJS), the number of women entering U.S. state and
federal prisons between 1980 and 1994 has increased by 386 percent.4 This
increase is significantly higher than that of men, whose population rose 214 percent
in the same period.5 The growth in the number of female prisoners, according to
observers, results less from a shift in the nature of the crimes women commit than it
does from the so-called war on drugs and related changes in legislation, law
enforcement practices, and judicial decision-making.6 In fact, drug-related offenses
accounted for 55 percent of the increase in the female prison population between
1986 and 1991.7 African American women, who make up 14.5 percent of the
general U.S. population,8 constitute 52.2 percent of the prison population9 and have
2

The U.S. has the largest known prison population in the world at 1.6 million. China has
the next largest known figure at 1.2 million. However, estimates from the U.S. General
Accounting Office from July 1990 places the number of Chinese prisoners between one and
twenty million, with most believing that the actual population is much higher than official
estimates.
3

According to the Bureau of Justice Statistics, women represented 6.3 percent of all U.S.
prisoners in 1995. Leslie Acoca and James Austin, The Crisis: Women in Prison (San
Francisco: National Council on Crime and Delinquency, 1996), p. 1. The Women in Prison
study, while including an analysis of national data, concentrated primarily on three
statesCCalifornia, Connecticut and FloridaCduring an eighteen-month period between May
1994 and December 1995. The study included face-to-face interviews with 151 randomly
selected women in state prisons in these three states.
4

Ibid.

5

Ibid.

6

Russ Immarigeon and Meda Chesney-Lind, Women=s Prisons: Overcrowded and Overused
(San Francisco: National Council on Crime and Delinquency, 1992), p. 3.
7

Tracy L. Snell and Danielle C. Morton, Bureau of Justice Statistics Special Report,
AWomen in Prison: Survey of State Prison Inmates 1991,@ March 1994.
8

See http://www.census.gov/population/socdemo/race/black/tab1.dat.

18

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

been hardest hit by this increase.10 Moreover, BOJS figures indicate that almost 70
percent of women in U.S. prisons are incarcerated for drug, property, or public
order offenses. Just over 30 percent are incarcerated for violent crimes, such as
murder, robbery, or assault.11 Many are incarcerated in the 170 state confinement
facilities across the United States that house women.12

9

Telephone interview, Tracy Snell, statistician, Bureau of Justice Statistics, Nov. 6, 1996.

10

Between 1986 and 1991, the number of black non-Hispanic women in state prisons for
drug offenses nationwide increased more than eightfold, from 667 to 6,193. The increase
was almost double that for black non-Hispanic males and more than triple that for white nonHispanic females. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal
Justice System: Five Years Later (Washington, D.C.: The Sentencing Project, 1995).
11

12

Snell and Morton, AWomen in Prison: Survey.@
Telephone interview, Tracy Snell, statistician, Bureau of Justice Statistics, Nov. 6, 1996.

Historical and Legal Background

19

The increasing incarceration of women has had a tremendous impact on
their families and children. Eighty percent of incarcerated women have at least one
child, and the majority of these are single mothers.13 In New York, for example,
more than 75 percent of all women in prison have children, and two-thirds of the
women have children under the age of eighteen.14 While many women maintain
contact with their children during incarceration, 54 percent are never visited by their
children.15 Several factors contribute to this small percentage of visits, including
13

Acoca and Austin, The Crisis, p. 8.

14

The Correctional Association of New York, AWomen in Prison Fact Sheet@ (November
1994).
15

Barbara Bloom and David Steinhart, Why Punish the Children? A Reappraisal of the
Children of Incarcerated Mothers in America (San Francisco: National Council on Crime
and Delinquency (NCCD), 1993), Table 2-9. The NCCD=s figures are based on a survey of
mothers in jail and prisons in eight states and the District of Columbia.

20

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

the distance of the prison from the children=s home, the travel time, and the lack of
resources to finance such trips. Research indicates that the children of incarcerated
mothers suffer from immediate and enduring adverse effects on their relationships
with peers and irreparable harm to the mother-child relationship.16 More disturbing,
these children may be at a greater risk of future incarceration themselves.17

16
Barbara Bloom, AIncarcerated Mothers and Their Children: Maintaining Family Ties,@ in
American Correctional Association: Female Offenders: Meeting the Needs of a Neglected
Population (1993). According to Ellen Barry, Director, Legal Services for Prisoners with
Children in San Francisco, children who enter the foster care system when their mother is
incarcerated are at serious risk of never being reunified with her. Barry attributes this
problem to the lack of programs and services within the prisons to prepare the women for
reunification after release. Without such programs, Barry argues, it is Avirtually impossible
for her . . . to reunify with the child.@ Ellen Barry, AReunification Difficult for Incarcerated
Parents and Their Children,@ Youth Law News, July-August 1985, p. 16.
17

Bloom, AIncarcerated Mothers and Their Children...,@ citing an unpublished doctoral
study conducted at Brandeis University which estimated that the children of inmates were
five to six times more likely than their peers to be incarcerated.

Historical and Legal Background

21

Statistics indicate that anywhere from 40 to 88 percent of incarcerated
women have been victims of domestic violence and sexual or physical abuse prior
to incarceration, either as children or adults.18 According to Christine Kampfner, a
clinical psychologist who has worked with women who kill their batterers, Asexual
abuse is an important consideration when you look at incarcerated women.@19 She
studied seventy women around the country who had killed their batterers and found
that 85 percent had been sexually abused at some point prior to their incarceration.20
The abuse had an enormous impact on how the women responded to incarceration,
particularly their relationships with male guards. Kampfner asserted that the women
often relive the trauma and suffer flashbacks, particularly when the corrections
officers search them and conduct pat-frisks. Many women with a prior history of
sexual abuse are particularly vulnerable to sexual abuse in prison. According to
Kampfner, women prisoners respond to abusive authority figures in prison much as
they have prior to incarceration. She continued, AThe women are so needy and in
need of love, they are set up for oppression. The only way they know is to
exchange their bodies [to meet this need].@21
This history of sexual abuse among many women prisoners has prompted
two federal appellate courts to uphold or impose restrictions on the role of male
corrections officers within two particular women=s prisons. In one case, the U.S.
Court of Appeals for the Seventh Circuit held that, considering the women=s history
of sexual and physical abuse, sex could be used as a bona fide occupational
18

BOJS studies repeatedly find that four in ten women in prison were either physically or
sexually abused at some time prior to incarceration. Snell and Morton, AWomen in Prison:
Survey,@ p. 5; Lawrence A. Greenfield and Stephanie Minor-Harper, Special Report: Women
in Prison (Virginia: Bureau of Justice Statistics, 1991), p. 6. These figures, however, may be
conservative, as state-specific studies have generally yielded a higher percentage of women
reporting prior sexual or physical abuse. A 1988 study found that 88 percent of the
incarcerated women sampled had experienced at least one major form of prior abuse:
childhood physical abuse, childhood sexual abuse, adult rape or adult battering. Immarigeon
and Chesney-Lind, Women=s Prisons: Overcrowded and Overused, p. 6. The NCCD study
found that 67.5 percent of women reported physical or sexual abuse as children, and 71.5
percent reported such abuse as adults. Acoca and Austin, The Crisis, p. 58.
19

Interview, Christina Kampfner, psychologist, Ann Arbor, Michigan, May 17, 1994.

20

Ibid.

21

Ibid.

22

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

qualification (BFOQ) to restrict male officers from working on the housing units.22
In the second case, the female prisoners= histories of sexual and physical abuse led
the Ninth Circuit to rule that cross-gender pat-frisks constitute cruel and unusual
punishment under the Eighth Amendment of the U.S. Constitution.23
Male Guards in Women==s Prisons

22

Torres v. Wisconsin Department of Health and Human Services, 859 F.2d 1523 (7th Cir.
1988), cert. denied, 489 U.S. 1017 (1989).
23

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993).

Historical and Legal Background

23

Men have historically worked in U.S. women=s prisons as corrections
officers, although, in deference to the potential for sexual misconduct, their role has
at times been restricted to noncontact positions.24 However, with the passage of
Title VII of the Civil Rights Act of 1964 and the introduction of equal employment
rights for women, many of the restrictions on male corrections officers working in
women=s prisons were eliminated to make way for female corrections officers
working in men=s prisons.25 According to a 1992 survey in Corrections
Compendium, a monthly newsletter for corrections professionals, men now
constitute the majority of corrections officers working in women=s prisons,
outnumbering their female counterparts at times by two or three to one.26
The introduction into U.S. prisons of cross-gender guarding was met with a
flurry of lawsuits, filed primarily by male prisoners contesting the invasion of their
privacy by female officers. Female prisoners, traditionally less litigious and
outspoken, have contested the role of male officers to a lesser extent. Corrections
officers of both sexes also have sued in several cases with some success to contest
sexually discriminatory hiring practices and restrictions imposed by prison
administrators. In Torres v. Wisconsin Department of Health and Social Services,
the Seventh Circuit permitted the superintendent of a women=s prison in Wisconsin
to restrict male correctional officers from working in the housing units, because,
considering the women=s histories of physical and sexual abuse, rehabilitation could
not be achieved with male officers in the units. The Seventh Circuit found that,
Agiven the very special responsibilities of these [male correctional officers] and the
24

For example, in New York, prior to 1976, only women could serve as corrections officers
at the women=s prison at Bedford Hills, while men were allowed to work on the grounds and
in the schools and library. See also Clarice Feinman, Women in the Criminal Justice System
(Connecticut: Praeger Books, 1994), pp. 159-177.
25

Under Title VII, an employer may not discriminate on the basis of sex unless an
employee=s sex is a bona fide occupational qualification (BFOQ), i.e. a qualification that is
Areasonably necessary@ to perform the specific job. In the absence of unusual circumstances,
U.S. federal courts have been unwilling to characterize a person=s sex as a BFOQ. Dothard
v. Rawlinson, 433 U.S. 321 (1977); Forts v. Ward, 621 F.2d 1210 (2d Cir. 1980); Griffin v.
Michigan Department of Corrections, 654 F. Supp. 690 (E.D. Mich. 1982); Gunther v. Iowa
State Men=s Reformatory, 462 F. Supp. 952 (N.D. Iowa 1979), affirmed, 612 F.2d 1079 (6th
Cir. 1980), cert. denied, 446 U.S. 966 (1980).
26

In Illinois, for example, 29 percent of male corrections officers, or around 1,700, worked
in women=s facilities while the state employed only 793 women as corrections officers.

24

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

obvious lack of guideposts for them to follow,@ a certain measure of discretion in
restricting their employment was permissible.27
In addition, in a suit in Georgia alleging sexual misconduct in women=s
prisons, lawyers negotiated a consent decree that prohibited male officers from
working in the housing units. However, rather than adhering to this limited
restriction, in March 1996 the Georgia Department of Corrections commissioner,
Wayne Garner, began transferring male officers out of one women=s prison
altogether. He planned to continue transferring staffCand to implement similar
transfers at Georgia=s other two women=s prisonsCuntil no male staff was in a
contact position with women prisoners. The new policy was challenged
immediately by the Georgia State Employees Union on anti-discrimination grounds.
In late August 1996, after the Georgia Equal Employment Opportunity
Commission initiated an investigation into the transfers, the Georgia Department of
Corrections ended the policy and returned all the transferred guards back to their
original facilities.

27

Torres, 859 F.2d, p. 1523.

Historical and Legal Background

25

While, as noted below, Human Rights Watch does not as a matter of policy
oppose the presence of male officers in female prisons per se, we agree in principle
with the notion that some restrictions should be placed on the role of the male
officers within women=s prisons, particularly in light of evidence that incarcerated
women in the United States and elsewhere have been raped and sexually assaulted
by male employees.28 While we recognize that incarceration brings with it
necessary and legitimate limitations on certain rights of the prisoner, in no way does
it justify the complete abrogation of her rights to bodily integrity and to some
degree of privacy.
Male vs. Female Prisoners: Disparate Treatment

28

See Asia Watch (now Human Rights Watch/Asia) and Women=s Rights Project, A
Modern Form of Slavery: Trafficking of Burmese Women and Girls into Brothels in
Thailand, (New York: Human Rights Watch, 1993), pp. 89-94; Asia Watch (now Human
Rights Watch/Asia) and Women=s Rights Project, Double Jeopardy: Police Abuse of Women
in Pakistan, (New York: Human Rights Watch, 1992); Americas Watch (now Human Rights
Watch/Americas) and Women=s Rights Project, Untold Terror: Violence Against Women in
Peru=s Armed Conflict (New York: Human Rights Watch, 1992).

26

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Historically, incarcerated women have been treated less well than men
while their gender-specific needs have been ignored.29 Until recently, most states
maintained only one prison facility for women, often located a significant distance
from a major urban center. As a result, many female prisoners were, and remain,
geographically isolated from their children, as well as from legal and community
resources.30 Statistics reveal that more than 60 percent of all women are
incarcerated more than one hundred miles from their child=s place of residence,
while under 9 percent are incarcerated within twenty miles.31 As the female prison
population has grown, a number of states have opened additional facilities to hold
women prisoners, although these facilities have not necessarily eased their
geographic isolation.32 California, for example, opened three new prisons for
women in the last ten years, all located in rural communities. Similarly, Illinois
converted two of its men=s prisons to co-correctional facilities. Both facilities are
located even further from Cook County, which is home to almost 60 percent of the
female prison population in the state, than Dwight, the original women=s prison.
Because of their small numbers, women are more likely to be incarcerated
in a maximum security facility, where women of all security levels are either
commingled or separated by internal housing classifications. Men, in contrast,
generally are assigned to prisons based on a variety of factors, including their
criminal offense, prior criminal history, and psychological profile. Also, because of
the greater number of male institutions, men stand a much better chance of being

29

For a historical overview of incarcerated women since the nineteenth century, see Nicole
Hahn Rafter, Partial Justice: Women, Prisons and Social Control (London: Transaction
Publishers, 1990). According to Rafter, women historically have received inferior care,
including less attention and fewer resources. Their care has also been marked by gender
stereotyping, with vocational training and opportunities targeted at jobs traditionally viewed
as appropriate for women. These disparities, she found, remain entrenched in the treatment
of women in prison today. Ibid., p. xxx.
30
Rafter found that women=s reformatories were intentionally built in rural communities to
Ashield inmates from the corrupting influence of the city.@ Ibid., p. xxvii.
31

32

Bloom and Steinhart, Why Punish the Children, Table 2-10.

While this problem is not unique to women prisoners, it is more extreme because there are
relatively fewer women=s prisons.

Historical and Legal Background

27

housed near their place of residence, thus making it easier for family, friends, and
attorneys to visit.33

33

For example, in Connecticut all incarcerated women were designated as APlacement in
facility nearest to community of residence not necessary,@ while 58 percent of male inmates
received priority placement in the facility nearest their community of residence, significant
others/family members or community resources. Considering the large number of single
mothers who are incarcerated in Connecticut, this assessment was based upon the availability
of women=s facilities rather than on the women=s or their families= needs. Acoca and Austin,
The Crisis, p. 30.

28

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In comparison to prisons for men, rules within women=s prisons tend to be
greater in number and pettier in nature. Women prisoners are commonly cited for
disciplinary offenses that are typically ignored within male institutions, and, while
they are less violent than their male counterparts, they appear to receive a greater
number of disciplinary citations for less serious infractions.34 A study of Texas
prisons conducted by Dorothy McClellan, an associate professor of criminal justice
at Corpus Christi State University, found that female prisoners in the course of one
year received almost five times as many citations as male prisoners.35 McClellan
found that the women were cited most commonly for offenses such as disobeying a
direct order or violating a written or posted rule.36 In fact, more than one in three
citations for women over a one-year period were for violating written or posted
rules.37

34

Dorothy Spektorov McClellan, ADisparity in the Discipline of Male and Female Inmates
in Texas Prisons,@ Women & Criminal Justice, Volume 5, Number 2, 1994.
35

According to McClellan=s study, 245 incarcerated women received 3,698 citations in the
course of a year while 271 male prisoners received only 786. Ibid., p. 76.
36

37

Ibid.

Of the 3,698 citations received by women, 1,322 were for disobeying a written or posted
rule and 841 for refusing to obey orders. Ibid.

Historical and Legal Background

29

In addition, women in prison often do not receive comparable educational
and vocational programs to those made available to men, and they also have fewer
opportunities for job-training and work-release, less access to social services, fewer
visitors, and Athey are more likely to be treated like children.@38 Beginning in the
late 1970s, incarcerated women began to sue state departments of corrections all
over the United States to challenge such disparate treatment as a violation of the
equal protection clause of the U.S. Constitution.39 Over the years, incarcerated
women have successfully challenged certain conditions of incarcerationCin
particular, the denial of minimum security facilities and their related privileges,40
harsher parole standards,41 and the transfer of women to other states to serve their
sentences because their home state lacked a long-term prison facility for women.42
On these issues, courts generally have ruled in the women=s favor.
However, challenges to disparate educational and vocational programming
have met with more mixed success. In contrast to the above issues, which tend to
focus on a particular state, the absence of equal education and programming
opportunities in women=s prisons is an issue that cuts across state lines. When suits
have been settled out of court, states have generally agreed to augment and improve

38

Ibid., p. xxxi.

39

In 1983 twenty-seven states were involved in litigation involving the women=s prisons,
but only three of those faced discrimination suits. By 1988 one author found that at least
fifteen states were involved in equal protection suits. Rafter, Partial Justice, p. 198.
Relying on the Equal Protection Clause in the Fourteenth Amendment of the U.S.
Constitution, the U.S. Supreme Court has held that no state may discriminate on the basis of
sex unless such discrimination serves an important government objective and is substantially
related to the achievement of that objective. United States v. Virginia, 116 S.Ct. 2264
(1996). For further discussion of the application of the Equal Protection Clause to sex
discrimination, see Susan Deller Ross and Ann Barcher, The Rights of Women: Basic ACLU
Guide to a Woman=s Rights (New York: Bantam, 1983), pp. 1-15. The Fourteenth
Amendment provides in its relevant part ANo State shall make or enforce any law which shall
. . . deny to any person within its jurisdiction the equal protection of the law.@
40

Molar v. Gates, 98 Cal. App. 3d 1 (1979).

41

Cosgrove v. Smith, 697 F.2d 1125 (D.C. Cir. 1983).

42

Park v. Thompson, 356 F. Supp. 783 (D. Haw. 1973).

30

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

prison programming for women.43 But, when a department of corrections declines
to settle a suit and the case goes to trial, incarcerated women have fared less well.
Many courts reviewing such suits have permitted states a degree of discretion to
develop programming for women, limited by the requirement that states provide
women with Aparity of treatment@ rather than equal treatment to that of male
prisoners. This test requires prison officials Ato provide women inmates with
treatment facilities that are substantially equivalent to those provided for menCi.e.,
equivalent in substance, if not in formCunless their actions . . . nonetheless bear a
fair and substantial relationship to achievement of the State=s correctional
objectives.@44

43

Lawsuits filed in Illinois and California, for example, were settled out of court. In both
cases, the respective department of corrections introduced improvements in the programming
they provided for incarcerated women.
44

Glover v. Johnson, 478 F. Supp. 1075, p. 1079 (E.D. Mich. 1979). The reforms won by
incarcerated women in Michigan were ultimately undermined by departmental
noncompliance. See Rafter, Partial Justice, pp. 199-201.

Historical and Legal Background

31

In 1994, in Klinger v. Department of Corrections,45 the Eighth Circuit
Court of Appeals reversed a district court decision directing the state of Nebraska to
provide programs and services Asubstantially equivalent@ to those offered men. In
that case, the circuit court determined that inferior programming could be justified
because women prisoners in the state were not Asimilarly situated@ to incarcerated
men. Similarly, in 1996 the U.S. Court of Appeals for the District of Columbia
reversed a district court decision mandating additional programming for women
prisoners because the appellate court found that the lower number of female
prisoners made it reasonable that fewer programs were offered.46 The circuit court=s
decision in Klinger and its doctrine of Aparity of treatment@ leave women prisoners
with fewer resources and opportunities for personal improvement than male
prisoners.

PERTINENT NATIONAL AND INTERNATIONAL LAW
U.S. Law
U.S. law clearly obligates both the federal and state governments to
prohibit sexual misconduct. The U.S. Constitution prohibits cruel and unusual
punishmentCincluding official sexual misconductCand guarantees a right to
privacy. In addition, federal statutory law expressly criminalizes custodial sexual
contact between prisoners and corrections staff. Unfortunately, however, these
constitutional protections have rarely been applied for the benefit of women
prisoners, and the Department of Justice (DOJ), which is authorized to protect
prisoners= constitutional rights, has pursued cases of custodial sexual misconduct
only to a very limited extent.47 Moreover, federal statutory provisions barring
custodial sexual contact between prisoners and corrections staff apply only to
federal facilities, not state facilities, where the majority of prisoners in the United
45

31 F.3d 727 (8th Cir. 1994), certiorari denied, 115 S.Ct. 1177 (1995).

46

Women Prisoners of the District of Columbia Department of Corrections v. District of
Columbia, 93 F.3d 910 (D.C. Circuit, 1996). The appellate court compared the
programming difference between female and male prisoners to that between Smith College, a
small, private women=s college, and Harvard University, a large, co-educational university.
Ibid., pp. 26-27.
47

Telephone interview, Karen Bower, staff attorney, National Prison Project, American
Civil Liberties Union, November 1, 1996.

32

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

States are held.48 Finally, while just over half of the states have enacted criminal
provisions barring custodial sexual contact, these state laws have been, at best,
erratically enforced and in some twenty-three states, simply do not exist.
The result is that even though there are, in theory, a variety of laws
designed to protect female prisoners in the United States against custodial sexual
misconduct, relatively few instances exist in which these protections have
functioned successfully. This section describes such protections in detail and
illustrates how inadequacies in the laws and limits to their enforcement contribute to
the problem of sexual misconduct in U.S. women=s prisons. This section also
demonstrates that, although international human rights law offers additional
protection against criminal sexual misconduct, the U.S. government is bound by but
has not fully complied with these international norms as they relate to this abuse.
The U.S. Constitution
States are bound to uphold a prisoner=s rights under the U.S. Constitution.
If a state neglects that duty, the main method of enforcement is through litigation,
primarily through lawsuits filed by prisoners alleging personal harm. Such a lawsuit
may seek injunctive relief; that is, it may request the court to stop the state from
engaging in the unconstitutional conduct. In addition, prisoners may seek financial
compensation from government authorities for a violation of his or her
constitutional rights. The two constitutional amendments most relevant to custodial
sexual misconduct are the eighth, which bars cruel and unusual punishments, and
the fourth, which prohibits unreasonable searches and seizures.
The Eighth Amendment

48

Each of the fifty states operates and maintains its own prison system. These systems are
separate and distinct from the federal prison system, which is overseen by the Federal Bureau
of Prisons. Most crimes are prosecuted in state courts, under state criminal law, and
prisoners are sentenced to terms in state institutions.

Historical and Legal Background

33

The Eighth Amendment to the U.S. Constitution bars cruel and unusual
punishments. The Supreme Court has ruled that the provision prohibits Aonly the
unnecessary and wanton infliction of pain.@49 This prohibition has been given
content through judicial interpretation. To prove an Eighth Amendment violation,
plaintiffs must prove not only an objective injury, either physical or otherwise, but
also subjective intent on the part of authorities to cause that injury. In terms of
objective injury, the pain must be sufficiently serious such that it violates
contemporary standards of decency.50 In addition, the responsible prison official
must have had a Asufficiently culpable state of mind.@51 The standard for
Asufficiently culpable@ differs depending on whether the suit alleges excessive
physical force or abusive conditions of incarceration. To receive redress under the
Eighth Amendment for excessive physical force, a prisoner must prove that a prison
official or officials acted Amaliciously and sadistically.@52 To challenge abusive
conditions of incarceration, a prisoner must demonstrate that prison officials acted
with Adeliberate indifference@ in subjecting her to such conditions.53
A number of federal courts have examined the protections provided by the
Eighth Amendment in the context of sexual abuse. In Farmer v. Brennan, the
Supreme Court ruled that a prison official violates the Eighth Amendment if, acting
with deliberate indifference, he exposes a prisoner to substantial risk of sexual
assault.54 The court found in Farmer that sexual abuse Aserves no legitimate
penological objective.@ In 1993 in Jordan v. Gardner, the Ninth Circuit found that
in light of the fact that 85 percent of the women prisoners in the Washington
Corrections Center for Women had experienced sexual or physical abuse, pat
searches conducted by male officers violated the Eighth Amendment=s prohibition

49

Whitley v. Albers, 475 U.S. 312, p. 319 (1986).

50

Hudson v. McMillian, 503 U.S. 1, p. 14 (1992)

51

Wilson v. Seiter, 501 U.S. 294, p. 298 (1991)

52

Hudson, p. 10; and Whitley, pp. 320-321.

53

Wilson, p. 303. The Supreme Court did not define Adeliberate indifference@ in Wilson. In
a 1994 decision, however, it ruled that prison officials must know of the risk and fail to take
reasonable measures. Farmer v. Brennan, 114 S. Ct. 1970 (1994).
54

Farmer, pp. 1976-1984.

34

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

on cruel and unusual punishment.55 In addition, two recent cases in the District of
Columbia have ruled that sexual contact between prison officials and prisoners
violates the Eighth Amendment.56
The Fourth Amendment

55

56

Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993)

Women Prisoners of the District of Columbia Department of Corrections v. District of
Columbia, 877 F. Supp. 634 (D.D.C. 1994), reversed on other grounds, No. 95-7041 (D.C.
Cir. August 30, 1996); Thomas v. District of Columbia, 887 F. Supp. 1 (D.D.C. 1995).

Historical and Legal Background

35

In addition to providing protection against custodial sexual abuse, the U.S.
Constitution also provides a right to privacy through the Fourth Amendment. The
Fourth Amendment states in relevant part, Athe right of the people to be secure in
their persons . . . against unreasonable searches and seizures, shall not be
violated.@57 While the Supreme Court has stated that prisoners should be accorded
those rights that are not inconsistent with the legitimate objectives of incarceration,
the actual scope of prisoners= right to privacy has not yet been established by the
Supreme Court. Two Supreme Court cases have examined the right to privacy for
incarcerated persons. The first, Bell v. Wolfish,58 found that body cavity searches
after contact visits were reasonable because of security concerns but also stated that
convicted prisoners do not forfeit all constitutional protections by reason of
confinement.59 The second relevant case, Hudson v. Palmer,60 held that prisoners
do not have a reasonable expectation of privacy in their cells but did not address
whether prisoners retain a right to bodily privacy.

57

Fourth Amendment, U.S. Constitution.

58

441 U.S. 520 (1979).

59

The Supreme Court stated that Acourts must consider the scope of the particular intrusion,
the manner in which it is conducted, the justification for initiating it and the place in which it
is conducted.@ Bell, p. 559.
60

468 U.S. 517 (1983).

36

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In fact, many lower federal courts have recognized this limited right to
bodily privacy. Courts have upheld limitations on cross-gender frisks61 and almost
uniformly prohibited cross-gender strip searches.62 Several courts have held that
occasional or infrequent viewing of prisoners naked during showers or during body
searches is acceptable when it occurs respectfully and in the least intrusive manner
possible.63 But the regular viewing of prisoners of the opposite sex who are
engaged in personal activities, such as undressing, using the toilet facilities or
showering, when not reasonably necessary, has been found to constitute a violation
of the prisoners= right to bodily privacy.64 Only rarely have courts refused to
recognize a right to privacy at all.65
61
See, for example, Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993); Smith v. Fairman,
678 F.2d 52 (7th Cir. 1982). In addition, the Seventh Circuit in Madyun v. Franzen, 704
F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983), upheld an Illinois policy
prohibiting male guards from pat-frisking female prisoners while permitting female guards to
pat-frisk male prisoners. The Seventh Circuit examined the policy difference from the
perspective of employment rights rather than privacy. It found that a restriction on the role
of female guards in male prisons would negatively impact their equal employment
opportunities, while there was no indication that men suffered from a lack of opportunity
because they were precluded from pat-frisking female prisoners. Madyun, p. 962.
62

See, for example, Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982), rehearing
denied, 696 F.2d 1007 (11th Cir. 1983) and Canedy v. Boardman, 16 F.3d 183 (7th Cir.
1994).
63

See, for example, Cookish v. Powell, 945 F.2d 441, p. 447 (1st Cir. 1991); Grummett v.
Rushen, 779 F.2d 491, p. 495 (9th Cir. 1985); Miles v. Bell, 621 F. Supp. 51, p. 67 (D.
Conn. 1985)
64

See, for example, Fortner v. Thomas, 983 F. 2d 1024, p. 1030 (11th Cir. 1993); Cookish
v. Powell, 945 F.2d 441, p. 447 (1st Cir. 1991); Cumbey v. Meachum, 684 F.2d 712 (10th
Cir. 1982); Lee v. Downs, 641 F.2d 1117, p.1119 (4th Cir. 1981); Forts v. Ward, 471 F.
Supp. 1095, p. 1099 (S.D.N.Y. 1979).
65

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995), petition for certiorari filed 64 U.S.L.W.
3823, Civil Action No. 95-1951 (May 28, 1996); Griffin v. Michigan Department of
Corrections, 654 F. Supp. 690, p. 703 (E.D. Mich. 1982)(Ainmates do not possess any
protected right under the Constitution against being viewed while naked by corrections
officers of the opposite sex@) ; Bagley v. Watson, 579 F. Supp. 1099 (D. Or. 1983) (Amale
prisoners . . . have no federal constitutional rights to freedom from clothed >pat-down= frisk
searches and/or visual observations in states of undress performed by female correctional
officer guards@).

Historical and Legal Background

37

Despite court rulings upholding prisoners= limited right to bodily privacy,
prison authorities in the states we visited have largely neglected to establish clear
guidelines and procedures to protect this right. At the same time, male guards
constitute a significant percentage of the officers in the women=s prisons we
investigated, and their presence in women=s prisons without such guidelines often
has limited prisoners= ability to maintain their privacy rights. Moreover, even in
those states where policies upholding prisoners= right to bodily privacy do exist,
they are routinely violated. As a result, female prisoners also suffer inappropriate
searches and visual surveillance by guards, frequently accompanied by lewd
remarks and gestures.
U.S. Department of Justice
The U.S. Constitution may be enforced by the U.S. Department of Justice
(DOJ) acting under statutory authority. The DOJ may criminally prosecute a person
Aacting under the color of state law@66 for violating a prisoner=s constitutional rights,
under Title 18, United States Code, Sections 241 and 242.67 The DOJ also may
66

AUnder color of state law@ means that a state official must be using her authority as a state
official when the violation occurs. A state official may still be acting under color of law
even if her conduct violates state law. Screws v. United States, 325 U.S. 91, p. 109 (1945).
The Amisuse of power@ must be made possible by the actor=s authority under state law. Ibid.
67

Sections 241 and 242 are both general civil rights provisions, and their application is not
limited exclusively to abuses within prisons. Title 18, United States Code, Section 241
provides, in relevant part: A[i]f two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State . . . in the free exercise or enjoyment of any right or
privilege secured to him [or her] by the Constitution or laws of the United States, or because
of his [or her] having so exercise of the same . . . [t]hey shall be fined or imprisoned not
more than ten years, . . . or both.@
Section 242 provides, in relevant part: AWhoever, under color of law, statute,
ordinance, regulation, or custom, willfully subjects any person in any State . . . to the
deprivation of any rights, privileges, or immunities secured or protected by the Constitution
or laws of the United States . . . shall be fined under this title or imprisoned not more than
one year, or both; and if bodily injury results from the acts committed in violation of this
section or if such acts include the use, the attempted use, or threatened use of a dangerous
weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten
years, or both; and if death results from the acts committed in violation of this section or if
such acts include . . . aggravated sexual abuse, or an attempt to commit aggravated sexual
abuse, . . . shall be fined under this title, or imprisoned for any term of years or for life, or
both, or may be sentenced to death.@

38

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

investigate allegations of constitutional rights violations in a state=s prisons under
the Civil Rights of Institutionalized Persons Act (CRIPA) and sue a state civilly. In
addition, the Violent Crime Control and Law Enforcement Act of 1994 (1994
Crime Bill) added Title 42, United States Code, Section 14141, under which the
DOJ also may enforce the constitutional rights of prisoners through a civil suit.
These statutes, however, are subject to prosecutorial discretion, and the DOJ has no
affirmative obligation to act.
Criminal Enforcement: Title 18, U.S. Code, Sections 241 and 242
The evidentiary burden under Title 18, United States Code, Sections 241
and 242 makes it extremely difficult to convict someone under criminal law for
violating a prisoner=s constitutional rights. To convict a public official, the DOJ
must not only prove beyond a reasonable doubt that a constitutional right has been
violated, but also that the public official had the Aspecific intent@ to deprive a
prisoner of a constitutional right.68 The specific intent requirement creates a
substantial burden for the DOJ to meet because it must show that an official
knowingly and willfully participated in violating a prisoner=s constitutional right.69
One commentator has noted that the U.S. government has provided only
limited resources for the prosecution of such suits.70 During the Reagan and Bush
68

Screws, p. 103 (regarding 18 U.S.C. Section 242); United States v. Guest, 383 U.S. 745,
p. 760 (1966) (regarding 18 U.S.C. Section 241).
69

70

Screws, pp. 101-103.

Paul Hoffman, AThe Feds, Lies and Videotape: The Need for an Effective Federal Role in
Controlling Police Abuse in Urban America,@ Southern California Law Review, Volume 66,
p. 1522 (1993).

Historical and Legal Background

39

administrations, the number of personnel and amount of money dedicated to
investigating and prosecuting civil rights violations by law enforcement remained
constant, as did the number of investigations, indictments, and convictions. Yet, at
the same time, money allocated to law enforcement increased. According to Justice
Department data, of approximately 11,000 complaints reviewed under these
statutes, only sixty-five cases were filed for prosecution in 1994Chalf of 1
percent.71 To our knowledge, no corrections officials in the states that we
investigated are being criminally prosecuted for violating a woman prisoner=s civil
rights through sexual misconduct.
Civil Enforcement: CRIPA

71

1995 Department of Justice Congressional Authorization and Budget Submission,
Volume 1, Civil Rights Division.

40

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The DOJ may also institute civil suits for abuses in state and local prisons
which violate the civil rights of prisoners under the Civil Rights of Institutionalized
Persons Act (CRIPA).72 Congress passed CRIPA in 1980 to enable the federal
government to investigate and pursue civil suits against state institutions that the
U.S. attorney general suspects of violating constitutional rights. Prior to the
enactment of CRIPA, the U.S. government had only limited authority to intervene in
private lawsuits alleging a violation of constitutional rights inside state
institutions.73 Prior to suing a state under CRIPA, the DOJ must have Areasonable
cause to believe@ that a state institution engages in a pattern or practice of subjecting
prisoners to Aegregious or flagrant conditions@ that violate the U.S. Constitution.
Reasonable cause may be obtained through an investigation of a prison. According
to the DOJ, it decides to investigate when it acquires a Asufficient body of
information@ to indicate the existence of abuses that may rise to the level of a
constitutional violation.74 The DOJ receives information from a variety of sources,
including individual prisoners, public interest and defense attorneys, corrections

72

42 U.S.C. Section 1997 et seq.

73

See, for example, Canterino v. Wilson, 538 F. Supp. 62 (W.D. Ky. 1982); Senate Reports
Number 96-416, 96th Congress, Second Session (1980), reprinted in 1980 United States
Code Congressional and Administrative News, pp. 787, 797.
74

The investigation itself must be triggered by a published report or information from a
source with personal knowledge about allegations that constitutional rights are being
violated.

Historical and Legal Background

41

staff, and politicians. The DOJ receives very few complaints about sexual
misconduct directly from women prisoners; rather, private attorneys relay the
majority of such complaints.75 Although the DOJ regularly receives prisoner
complaints, it maintains no system for recording individual complaints, nor does it
monitor the number of complaints concerning any particular institution or type of
problem.

75

It is important to note that the special litigation section of the DOJ (which enforces
CRIPA) does not accept collect telephone callsCthe only means by which prisoners can
make long-distance telephone calls.

42

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Once the DOJ decides to investigate, it must first file a letter with the state
and the prison=s director stating its intention to investigate and giving state officials
seven days notice. In practice, we were told, the time between giving notice and
visiting a facility often exceeds seven days for logistical reasons.76 During an
investigation, DOJ investigatorsCattorneys with the DOJ and consultantsCconduct
personal interviews with prisoners, tour the facilities, and review documentation and
institutional records to determine whether unconstitutional conditions exist. The
DOJ takes the position that it has the authority under CRIPA to determine whether
unconstitutional conditions exist, including the right to enter state prisons to
examine such conditions.77 In 1994, one federal court in Michigan refused to issue
a court order giving the DOJ access to investigate.78 This decision, however,
appears to be the exception rather than the rule.79
Once the on-site investigation is complete, the DOJ must issue a letter to
the state which summarizes its findings and sets forth the minimum steps necessary
to rectify any unconstitutional conditions found. Under CRIPA, forty-nine days
76

Telephone interview, Department of Justice, Washington D.C., May 8, 1995.

77

Ibid.

78

United States v. Michigan, 868 F. Supp. 890 (W.D. Mich. 1994).

79

Courts prior to the Michigan decision repeatedly upheld DOJ requests to enter institutions
and conduct investigations. See U.S. v. County of Los Angeles, 635 F. Supp. 588 (C.D. Cal.
1986); U.S. v. County of Crittenden, Civil Action No. JC89-141, 1990 WESTLAW 257949
(E.D. Ark. December 26, 1990).

Historical and Legal Background

43

after this letter is received by the state, the DOJ may sue the state to remedy the
constitutional violations. The U.S. attorney general must personally sign the
complaint and, according to DOJ representatives, all possibility of a settlement must
be exhausted. As a result, suits are generally filed well after this forty-nine-day
period has passed. The DOJ told us that CRIPA contemplates that the state and the
DOJ will attempt an amicable resolution of the problem and that many cases are, in
fact, resolved through negotiated settlements and consent decrees.80

80

Telephone interview, Department of Justice, May 8, 1995.

44

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The DOJ is currently exercising its authority under CRIPA to examine
conditions in Michigan=s women prisons.81 In June 1994, the DOJ notified
Michigan Governor John Engler of its intent to investigate allegations of sexual
abuse and other constitutional violations in Michigan=s two women=s prisons, Scott
Correctional Facility and Florence Crane Correctional Facility. As stated above,
Michigan declined to give the DOJ investigators access to the prison. When the
DOJ filed suit to compel access, a district court judge refused to issue a temporary
restraining order requiring that access be granted.82 The state subsequently
permitted DOJ attorneys to interview prisoners during regular visiting hours and in
a nonconfidential setting, but denied the DOJ permission to tour the prisons.83
Following these interviews the assistant U.S. attorney general, Deval
Patrick, sent a letter to Governor Engler setting forth the DOJ=s findings.84 The
DOJ found:
[T]he sexual abuse of women inmates by guards, including rapes,
the lack of adequate medical care, including mental health
services, grossly deficient sanitation, crowding, and other threats

81

The DOJ also has investigated conditions in women=s prisons in Alabama and Arizona. It
issued findings letters regarding both states. In Alabama, the DOJ found violations
involving health care, discipline, and the physical plant. In addition, it found Acredible
reports@ of sexual contact between corrections staff and prisoners. The DOJ denounced such
contact as Areprehensible and intolerable@ and stated that, given the custodial environment,
Athe sexual relationships are not appropriate or truly >voluntary.=@ Letter from Deval Patrick,
assistant attorney general, Civil Rights Division, U.S. Department of Justice, to Fob James,
governor, Alabama, March 27, 1995. The DOJ=s investigation in Arizona identified Aan
unconstitutional pattern or practice of sexual misconduct and constitutionally unacceptable
invasions of privacy rights.@ Such misconduct included, but was not limited to, rape, sexual
touching, and degrading language. The privacy violations consisted of officers viewing
women prisoners while they used showers and toilets. Letter from Deval Patrick, assistant
attorney general, Civil Rights Division, U.S. Department of Justice, to J. Fife Symington,
governor, Arizona, August 8, 1996. Both investigations remain open.
82

United States v. Michigan, pp. 902-903.

83

Letter from Deval Patrick, assistant attorney general, Civil Rights Division, U.S.
Department of Justice, to John Engler, governor, Michigan, March 27, 1995.
84

Ibid. This letter is required under CRIPA prior to actually filing suit against the state.

Historical and Legal Background

45

to the physical safety and well-being of inmates violates their
constitutional rights.85
The letter recommended remedies to resolve these constitutional
violations.86 To our knowledge, the Michigan Department of Corrections has taken
no steps to adopt the recommended measures. Although the mandatory forty-nineday waiting period has long since elapsed, no suit has been filed, and the DOJ
maintains that Michigan is still Aunder investigation.@87
Civil Enforcement: Title 42, U.S. Code, Section 14141
The Violent Crime Control and Law Enforcement Act of 1994 (1994
Crime Bill) added another statute under which the DOJ may enforce the
constitutional rights of prisoners. This statute, codified as Title 42, United States
Code, Section 14141, states that it is unlawful for any governmental authority or
person acting on behalf of any governmental authority

85

Ibid.

86

Suggested remedies included developing policies and procedures requiring the reporting
of any suspected sexual abuse; not disciplining prisoners for reporting alleged sexual abuse;
requiring pat-down searches to be conducted in a professional manner and not to be more
intrusive than necessary; and mandating that guards, individual maintenance workers, and
other visitors not be permitted to observe prisoners while naked, showering, or using toilet
facilities. Ibid.
87

Interview, Department of Justice, October 1, 1996.

46

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
to engage in a pattern or practice of conduct by law enforcement
officers . . . that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of
the United States.88

The DOJ may sue for declaratory and equitable relief if there is reasonable
cause to believe that such a pattern or practice exists. Because the law was enacted
recently, its exact scope remains unclear. However, some indications as to its
potential application to custodial sexual misconduct are available. The DOJ cited
the statute in its findings letter to Michigan Gov. John Engler and stated that, in
addition to CRIPA, Athe pattern or practice of sexual abuse of women inmates by
guards violates [Section 14141].@89
The law appears to require a lower burden of proof to challenge abusive
treatment by law enforcement officials than CRIPA. CRIPA requires showing a
pattern or practice of Aegregious or flagrant conditions@ causing grievous harm
before the DOJ may file suit. By contrast, the new statute does not require that the
Apattern or practice of conduct@ be Aflagrant and egregious,@ only that it deprive a
person of her constitutional rights or rights secured under federal law. In addition,
the DOJ may sue under Section 14141 without extensive prior consultation with the
relevant department of corrections, as required under CRIPA.

Prison Litigation Reform Act
88

89

42 U.S.C. Section 14141(a).

Letter from Deval Patrick, assistant attorney general, Civil Rights Division, U.S.
Department of Justice, to John Engler, governor, Michigan, March 27, 1995.

Historical and Legal Background

47

In April 1996 President Clinton signed the Prison Litigation Reform Act
(PLRA) into law as part of the Balanced Budget Down Payment Act II of 1996.90
PLRA dramatically limits the ability of individuals, nongovernmental organizations,
and even the Department of Justice to challenge abusive prison conditions through
litigation. PLRA invalidates any settlement by the parties to such litigation that
does not include an explicit finding or statement that the conditions challenged in
the lawsuit violate a federal statute or the constitution. Because prison authorities
never want to admit such violations in the consent decrees which frequently settle
litigation without trial, such findings are extremely rare. Requiring such findings
will make it difficult for parties to reach a settlement in any future prison reform
suits, particularly because they would render correctional officials vulnerable to
private civil suits. Consequently, most cases are likely to be pursued through a
costly and time-consuming trial stage. Further, PLRA arbitrarily terminates any
court order against unlawful prison conditions or practices after two years,
regardless of the degree of compliance; this is often an unreasonably short time in
which to achieve any meaningful change in the way a prison is operated. Thus, a
new trial will usually have to be held in order to make a new finding that the old
problems persist. The PLRA also restricts court-granted attorneys= fees, the main
income for prisoners= rights attorneys. Such restrictions are clearly likely to curtail
prison reform litigation. Finally, PLRA severely limits the authority of federal
courts to assign judicial officers to oversee prison reform, a key tool for
implementing remedial court orders.

90

This discussion is drawn from a memorandum by Mark Kappelhoff, legislative counsel,
American Civil Liberties Union, on Prison Litigation Reform Act-Impact on Children and
Women, June 14, 1996.

48

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

PLRA has already begun to affect prison reform efforts. According to
Associate Attorney General John Schmidt, the DOJ is engaging in an ill-advised
review of all outstanding consent decrees to establish whether they should be
terminated under PLRA, regardless of whether the state department of corrections
has yet filed any such request.91 Several municipalities have filed to have their
consent decrees overturned,92 and consent decrees in New York City (governing
jails) and in South Carolina were terminated under PLRA,93 pending appeal. In
addition, in the District of Columbia the U.S. Court of Appeals recently remanded
the issue of general living conditions and fire safety for female prisoners to the
district court to be decided in light of PLRA.94
Sexual Contact in Custody: Federal and State Law

91

Written Testimony of John Schmidt, associate attorney general, U.S. Department of
Justice, before the Committee on the Judiciary U.S. Senate concerning Implementation of the
Prison Litigation Reform Act, September 25, 1996.
92

As of June 1996, those included New York City, California, Texas, Iowa, South Carolina
and the District of Columbia.
93

Summary of Prison Litigation Reform Act, National Prison Project, American Civil
Liberties Union, August 29, 1996.
94

Women Prisoners of the District of Columbia Department of Corrections v. District of
Columbia, 93 F.3d 910 (D.C. Cir. 1996).

Historical and Legal Background

49

The federal government and a fair number of states have criminalized
sexual intercourse or sexual contact with a prisoner by a prison employee. Under
Title 18, United States Code, Section 2241, it is a felony offense, classified as
aggravated sexual abuse, to knowingly cause a person in a federal prison to engage
in sexual intercourse by using or threatening the use of force. This offense carries a
sentence of imprisonment for any term of years or life. Under Title 18, United
States Code, Section 2243 it is also a criminal offense, classified as sexual abuse of
a minor or ward, for a person with Acustodial, supervisory, or disciplinary@ authority
to engage in sexual intercourse with or to touch sexually a prisoner in a federal
prison.95 The possible term of imprisonment for this offense is up to one year for
sexual intercourse and six months for sexual touching. The only defense specified
for this crime is for the defendant to prove that he is married to the victim. These
provisions apply only to federal prisons and cannot be applied against corrections
officers in state prisons.
The Model Penal Code (MPC),96 a suggested framework for state penal
laws, includes a provision criminalizing both sexual intercourse with and sexual
touching of a prisoner by prison staff. Although the MPC is in many respects
outdated and in need of amendment, it does classify sexual intercourse with a
prisoner as sexual abuse97 and classifies sexual contact98 as a form of sexual assault.
95

18 United States Code Section 2243 ASexual abuse of a minor or ward.@ In its relevant
part, Section 2243 (b) reads: AWhoever, . . . 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.@
A Asexual act@ is defined under 18 United States Code Section 2246(2) as: A(A)
contact between the penis and the vulva or the penis and the anus and . . . contact involving
the penis occurs upon penetration, however, slight; (B) contact between the mouth and penis,
the mouth and vulva, or the mouth and the anus; or (C)the penetration, however slight, of the
anal or genital opening of another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.@
Sexual contact is defined as Athe intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any
person.@ 18 United States Code Section 2246(3).
96

The Model Penal Code was drafted by the American Law Institute in 1962 as a model for
state and federal penal codes. To our knowledge, no state has adopted the Model Penal
Code in its entirety.
97

Model Penal Code Section 213.3(1)(c). Sexual intercourse with a prisoner falls under the

50

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

However, both constitute only misdemeanor offenses under the MPC. The
majority of states follow neither the federal law=s nor the MPC=s framework.

Section entitled ACorruption of Minors and Seduction,@ which addresses statutory rape and
abuse by those in a guardian or supervisory position. The provision reads in its relevant
part: AA male who has sexual intercourse with a female not his wife, or any person who
engages in deviate sexual intercourse or causes another to engage in deviate sexual
intercourse, is guilty of an offense if: . . . the other person is in custody of the law or detained
in a hospital or other institution and the actor has supervisory or disciplinary authority over
[her].@ Deviate sexual intercourse is defined in Model Penal Code Section 213.0 as Asexual
intercourse per os or per anum between human beings who are not husband and wife....@
98

Sexual contact is defined as Aany touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire.@ Ibid., Section 213.4(8).
Section 213.4 further provides: AA person who has sexual contact with another not his
spouse, or causes such other to have sexual conduct with him, is guilty of sexual assault, a
misdemeanor, if . . . the other person is in custody of law or detained in a hospital or other
institution and the actor has supervisory authority over [her].@

Historical and Legal Background

51

To our knowledge, twenty-seven states and the District of Columbia
expressly criminalize sexual intercourse with or sexual touching of a prisoner by
prison staff.99 Five other states have laws that could be read to prohibit sexual
contact with a prisoner but which do not refer specifically to incarceration or
prison.100 There are significant differences in the scope of these laws, the way they
are categorized, the defenses allowed under them, and their accompanying
penalties.101 In some states, the crime of custodial sexual abuse is limited to sexual
99

In analyzing state laws prohibiting sexual contact between women prisoners and
correctional staff we relied on extensive research done by the National Women=s Law Center.
For a full text of the report, see National Women=s Law Center, Fifty-State Survey on State
Criminal Laws Prohibiting the Sexual Abuse of Women Prisoners, November 1996. The
states that criminalize sex in custody are Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Louisiana,
Maine, Michigan, Missouri, Nevada, New Jersey, New Mexico, New York, North Dakota,
Rhode Island, Wisconsin, and South Dakota. See Ariz. Rev. Stat. Ann. '13-1419; Ark.
Code Ann. '5-14-109; Cal. Penal Code '289.6; Colo. Rev. Stat. Ann. '18-3-404; Conn.
Gen. Stat. ''53a-71 and 53a-73a; Del. Code Ann. title 11, '1259; Fla. Stat. Ann. '944.35;
Ga. Code Ann. '16-6-5.1; Haw. Rev. Stat. ''707-731 and 707-732; Idaho Code '18-6110;
Iowa Code '709.16; La. Rev. Stat. Ann. title 14, '134.1; Me. Rev. Stat. Ann. title 17-a,
'253; Mich. Comp. Laws Ann. '750-520e(d); Nev. Rev. Stat. Ann. '212.187; N.J. Stat.
Ann. title 2C, Chapter 14 '2; N.M. Stat. Ann. '30-9-11; N.Y. Penal '130.05(3)(e); N.D.
Cent. Code '12.1-20-06; R.I. Gen. Laws ' 11-25-24; S.D. Codified Laws Ann. '24-1-26.1.
There has been a fair amount of recent legislative action on this issue. A few of
the above statesCArizona, California, Delaware, Florida, New York, Rhode Island and the
District of ColumbiaCenacted their laws within the past two years.
100

North Carolina has a provision that bars someone with supervisory or disciplinary power
over someone or Ahaving custody over someone in an institution, whether such institution be
private, charitable or governmental,@ from having sexual intercourse or contact with that
person. N.C. Gen. Stat. '14-27.7. Ohio and Oklahoma have similar prohibitions. Ohio
Rev. Code Ann. '2907.03 and Okla. Stat. Ann. title 21, '114. Wyoming=s statute is the
broadest of this typeCit bars anyone in a Aposition of authority@ from using that authority to
Acause the victim to submit@ to sex. Wyo. Stat. '6-2-303. The Texas statute bars a public
servant from coercing another person Ato submit or participate@ in sexual conduct. Tex.
Code Ann. '22.011.
101

The criminal sanctions for engaging in custodial sexual contact vary from state to state.
In most states, the crime is classified as a felony, but a few states classify it as a
misdemeanor. There is a fair degree of variation in the possible prison sentences that may be
imposed, although most states= penalties stay within the one to five year range.

52

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

activity involving actual penetration; other states define it to include a broad range
of sexual acts. In addition, the classification of the offense of custodial sexual
contact varies greatly from state to state. Oklahoma, for example, classifies it as a
form of rape, while many other states describe it as a form of sexual assault or
sexual abuse. Significantly, some states, such as Georgia, Arkansas, and Florida,
explicitly provide in their criminal statutes that consent is not a defense. By
contrast, in a small number of other states, coercion is specifically required.
Further, in three statesCArizona, Nevada, and DelawareCthe prisoner is also guilty
of a crime if the two are found to have engaged in sexual activity.102 In the view of
Human Rights Watch, whatever penological interests may be served by laws that
penalize the prisoner for sexual contact with a corrections employee are outweighed
by the deterrent effect such punishments will have on the reporting of custodial
sexual abuse by prisoners. In addition, while Human Rights Watch does not oppose
punishment for prisoners who knowingly submit false allegations of sexual
misconduct, such punishment should be used sparingly and only in those instances
in which the false report was malicious or manifestly in bad faith.
102

Nevada law punishes prisoners for sexual conduct with prison staff only when the
conduct is voluntary. By contrast, the Arizona statute punishes prisoners who have sexual
contact with custodial staff without reference to whether such contact was voluntary; and the
Delaware statute specifies that prisoners are criminally responsible for sexual relations with
corrections employees and that consent is no defense to the crime. When a guard rapes a
prisoner, state statutes criminalizing rape can be used to prosecute the guard. In such
instances, prisoners clearly should not be prosecuted for sexual misconduct. However, given
the unwillingness of states to recognize the different forms of coercion used by guards to
secure sexual contact with prisoners, the real possibility exists under these statutes that a
victim of rape could have the crime against her go unrecognized and instead be prosecuted
for unlawful sexual relations.

Historical and Legal Background

53

When we began this investigation, only two of the states that we visited,
Michigan and Georgia, had provisions in their penal codes criminalizing sexual
contact with a prisoner, and those two states categorize the crime quite differently.
While Michigan classifies all sexual contact with a prisoner as a high misdemeanor
offense under its rape law, in Georgia the prohibition against sexual contact with
prisoners is not contained in the state=s rape law but is defined as the distinct felony
of sexual assault. Georgia=s law does not differentiate between touching and
intercourse. The District of Columbia enacted a provision in December 1994
making both sexual intercourse and sexual contact with a prisoner a form of Asexual
abuse.@ Both are felonies.103 In New York, a bill passed by the New York state
legislature and signed by Gov. George Pataki on July 2, 1996 criminalized all
sexual contact between a corrections employee and a prisoner.104 California passed
a bill in 1994 that prohibits all sexual intercourse in custody between corrections
staff and prisonersCthe first violation of this prohibition is a misdemeanor; any
subsequent violation is a felony. Illinois has no such law.
As the above summary suggests, existing federal and state laws regarding
sexual contact in custodyCboth intercourse and touchingCprovide a hodgepodge of
often inadequate and inconsistent protections against sexual intercourse or sexual
touching between an officer and a prisoner. The absence of appropriate, clear and
consistent federal and state legal prohibitions on sexual intercourse and other forms
of sexual contact only contributes to the prevalence of such abuse in women=s
prisons across the United States and the failure adequately to prosecute it. Legal
reform is therefore of utmost importance if custodial sexual abuse in U.S. prisons is
to be successfully eliminated.
Accordingly, Human Rights Watch supports legislative changes in state
rape and sexual assault laws to recognize that a correctional officer who engages in
sexual relations with a prisoner is committing a serious crime. Where sexual
intercourse or touching is accompanied by the overt use or threat of force,
retribution, or coercion, it constitutes rape or sexual assault and should be
considered a felony offense.

103

A person found guilty of sexual intercourse with a prisoner, or first degree sexual abuse
of a ward, may be imprisoned up to ten years and fined; and, a person found guilty of sexual
contact with a prisoner, second degree sexual abuse of a ward, may be imprisoned up to five
years and fined. It appears that the District of Columbia uses the term Asexual abuse@ for all
forms of sexual assault, including rape. D.C. Code 1981 Section 22-4100 et seq.
104

N.Y. Penal '130.05(3)(e).

54

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In many instances, the use of force by correctional staff to secure sexual
relations with prisoners can take the form of the promise or provision of goods or
other non-material benefits. Because of the restricted nature of the prison
environment, promises of privileges or goods which the corrections officers are
authorized to withhold or supply can carry with them actual or implied threats of
deprivation. When correctional employees abuse their authority in this way, it
should be understood as a form of pressuring the prisoner to engage in sexual
relations and should be prosecuted as rape or sexual assault.
In other cases, correctional officers may offer goods or privileges but
without any actual or perceived threat to the prisoner. This conduct should still be
punished more severely than in those cases in which no rewards are offered or
bestowed at all. This stiffer penalty reflects a recognition that prisoners have
limited resources and privileges, and thus the promise of benefits always carries
special weight. These cases, in which the provision or promise of benefits or goods
in exchange for sexual relations was not overtly or, by implication, coercive, nor
was it understood by the prisoner as such, should be prosecuted as felonious sexual
abuse.
In still other cases, guards engage in sexual intercourse or touching with
prisoners absent force, coercion or the exchange of material goods or privileges.
Despite the lack of overt or implied force or coercion or of any type of exchange,
this conduct should still be considered a criminal sexual act. Any person with
custodial power over another has enormous authority; within the confines of a
prison, that authority is nearly absolute. Officers have the power to influence
everything from a prisoner=s parole date, to her work assignment, to her access to
essential goods and amenities, and they have a corresponding obligation to ensure
that this power is never abused. Thus even in the absence of the implied or actual
use of force or any exchange of privileges or goods, for an officer to step across the
line and have sexual relations with a person in his custody is a gross violation of
professional duty. This act may not constitute rape, sexual assault, or sexual abuse
but should, at a minimum, be recognized as criminal sexual contact and be
punishable as a felony. An inquiry into the victim=s alleged consent to such conduct
should be unnecessary to establish this breach of professional duty or any other
crime of custodial sexual abuse. Rather, the focus should be on the degree of
pressure exerted by the officer or other correctional employee to determine the
seriousness of the offense.
Access to the Courts and Grievance Mechanisms
Under the U.S. Constitution, prisoners are guaranteed access to the courts
to challenge their incarceration, prison conditions, or other abuses. The U.S.

Historical and Legal Background

55

Supreme Court has held that the constitution requires that prisoners have access to
either adequate law libraries or legal services to exercise their right of access to the
courts.105 However, the Supreme Court recently limited the right to legal assistance.
The court held in Lewis v. Casey that a prisoner must prove that shortcomings in
the law library or legal assistance program actually hindered her efforts to pursue a
Anonfrivolous@ legal claim.106 The court also stated that delays of up to sixteen days
in providing legal assistance or materials to prisoners segregated from the general
population for disciplinary or security reasons, which were the product of
regulations reasonably related to legitimate penological interests, were
constitutional, even if such delays caused the prisoner actual injury.107 Although
Casey stated that such prisoners are usually the most dangerous and violent
prisoners,108 we found that women prisoners were often placed in administrative
segregation for reporting custodial sexual misconduct. Thus, the holding in Casey
could allow prison officials to prevent these women from pursuing legitimate legal
claims based on this misconduct.
Lower federal courts, interpreting the constitutional right of access to the
courts, have rejected as unconstitutional practices or procedures instituted by prison
administrators that hinder or restrict open access.109 Nor may prisoners be punished
for allegations made in their court papers.110 In addition, legal correspondence and
legal papers are protected from censorship by prison administrators. While the
Supreme Court has upheld rules that allow prison administrators to open and inspect
correspondence to or from attorneys, such inspection must occur in the prisoner=s
presence.111 Lower federal courts have interpreted the Supreme Court=s ruling to
mean that prison administrators should not read a prisoner=s legal mail and that legal
105

Bounds v. Smith, 430 U.S. 817 (1977).

106

Lewis v. Casey, 116 S.Ct. 2174 (1996).

107

Ibid., p. 2185.

108

Ibid.

109

Sheldon Krantz, Corrections & Prisoners Rights (Minnesota: West Publishing, 1988), p.
252.
110

Hilliard v. Scully, 537 F. Supp. 1084 (S.D.N.Y. 1982).

111

Wolff v. McDonnell, 418 U.S. 539 (1974).

56

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

mail may not be withheld from a prisoner on the basis of its content.112 The states
we visited have incorporated such provisions into their administrative codes,
policies, or directives governing legal correspondence but do not always respect
such protections in practice.113

112

Krantz, Corrections & Prisoners Rights, p. 252, citing Thornley v. Edwards, 671 F.
Supp. 339 (M.D. Pa. 1987) and Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1972.)

113

See Illinois chapter.

Historical and Legal Background

57

While access to the courts is a constitutionally guaranteed right, federal
law permits and encourages state departments of corrections to enact grievance
mechanisms to handle prisoner complaints outside the context of a lawsuit. These
mechanisms are intended to respond to a broad array of complaints within the
prison, ranging from problems receiving mail, to inaccuracies in a prisoner=s
account of a particular incident, to staff misconduct and abuse. States may, at their
option, request to have their grievance procedure certified under CRIPA.114
Notwithstanding women prisoners= formally recognized right to complain
of abuses, in every women=s prison discussed in this report, we found routine
violations of these basic due process protections with respect to complaints of
sexual misconduct. No state we visited adequately ensures that female prisoners
114

CRIPA sets forth a limited number of conditions for certification of a grievance
procedure. Under the statute, prisoners must have an opportunity to participate in the
Aformulation, implementation and operation of the system.@ 42 U.S.C. Section
1997e(b)(2)(A)-(E). In addition, there must be maximum time limits for each level of
review, within which each state must provide a written disposition of the complaint and the
reasons for the disposition. Third, the plan must include a mechanism for rapid processing
of emergency grievances. Next, there must be safeguards in place to protect prisoners
against reprisals. Finally, the plan must provide a mechanism for independent review by a
person or entity not under the direct supervision or control of the institution. Guidelines
promulgated by the U.S. Attorney General pursuant to CRIPA also mandate that the
grievance system apply to a broad range of complaints, including Aactions by employees and
[prisoners], and incidents occurring within the institution that affect them personally,@ and
that it provide meaningful remedies to prisoners using the system. 28 C.F.R. Section 40
(1984).

58

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

can speedily and effectively complain of such abuse with confidence that it will be
impartially investigated and remedied and without fear that they will face retaliation
or even punishment. International human rights law sets forth additional protections
against and potential remedies for such problems, but unfortunately, as the next
section details, U.S. noncompliance with these norms effectively denies women
prisoners their full array of rights.
International Human Rights Law
As the above section suggests, U.S. state and federal laws do provide some
important protection from custodial sexual misconduct. However, international
human rights laws, by which the U.S. is also bound, provide some protections
currently denied to prisoners under U.S. law. Unfortunately, in both law and
practice, the U.S. often falls short of meeting its obligations to ensure that these
protections are available to those who suffer such abuse. The United States has
ratified the two principal international treaties that protect the human rights of
prisoners: the International Covenant on Civil and Political Rights (ICCPR) in 1993
and the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment and Punishment (Torture Convention) in 1994. The U.S. is also bound
by the principles set forth in the Universal Declaration of Human Rights on torture
and cruel, inhuman or degrading treatment or punishment, which have the weight of
customary law.115 In addition, the United Nations Standard Minimum Rules for the
Treatment of Prisoners,116 the Basic Principles for the Treatment of Prisoners,117
and the Body of Principles for the Protection of All Persons under Any Form of

115

Montreal Statement of the Assembly for Human Rights, Journal of the International
Commission of Jurists, volume 9, p. 94 (1968).
116

Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, reprinted in
United Nations, A Compilation of International Instruments: Volume 1 (first part) Universal
Instruments (New York: United Nations, 1993), E.93.XIV.I, pp. 243-62.
117

Adopted and proclaimed by General Assembly resolution 45/111 of December 14, 1990,
reprinted in A Compilation of International Instruments, pp. 263-264.

Historical and Legal Background

59

Detention or Imprisonment118 provide authoritative guidance under international
law for interpreting the more general rules of the ICCPR and Torture Convention.119

118

Adopted by General Assembly resolution 43/173 of December 9, 1988, reprinted in A
Compilation of International Instruments, pp. 265-274.

119
Nigel Rodley, The Treatment of Prisoners Under International Law (New York: Oxford
University Press, 1987), p. 222. In Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980),
affirmed in part, remanded in part on other grounds, 651 F.2d 96 (2d Cir. 1981), the court
described the Standard Minimum Rules for the Treatment of Prisoners as A. . . establishing
standards for decent and humane conduct by all nations@ or as A[c]onstituting an authoritative
international statement of basic norms of human dignity and of certain practices that are
repugnant to the conscience of mankind.@ Lareau, pp. 1192-93, 1188.

60

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

These international laws contain protections that clearly apply to custodial
sexual abuse. Under the ICCPR and the Torture Convention, for example, state
parties are obligated to ensure that no one is subjected to torture or to cruel,
inhuman or degrading punishment and treatment.120 These treaties and the Standard
Minimum Rules for the Treatment of Prisoners further require states to ensure that
those who engage in such abuse are appropriately punished and that individuals
seeking to complain about such ill-treatment are provided with an effective remedy.
Finally, Article 17 of the ICCPR protects all individuals against arbitrary
interference with their privacy, and the Standard Minimum Rules specify that the
privacy of female prisoners should be respected by male corrections staff.
The remainder of this section details the full scope of the U.S. obligations
under international human rights law, the manner in which the U.S. is wrongfully
attempting to limit these obligations or is failing to apply them, and the specific acts
of custodial sexual misconduct to which the U.S. should ensure that the full scope of
its international obligations are applied.
The United States== Non-Compliance
The U.S. government has ratified the ICCPR and the Torture Convention
and thus is bound by the instruments. At the same ti me, however, the U.S.
attempted to limits obligations under these treaties by attaching reservations,
declarations, and understandings to both.121 Several of these reservations,
120

International Covenant on Civil and Political Rights, adopted and opened for signature,
ratification and accession by General Assembly resolution 2200 A (XXI) of 16 December
1966, reprinted in United Nations, A Compilation of International Instruments: Volume 1
(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, art. 7, p.
23; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature, ratification and accession by General
Assembly resolution 39/46 of 10 December 1984, reprinted in United Nations, A
Compilation of International Instruments: Volume 1 (first part) Universal Instruments (New
York: United Nations, 1993), E.93.XIV.I, pp. 293-307.
121

The United States government attached three reservations, five understandings, and two
declarations to its ratification of the Torture Convention. Five reservations, five
understandings, and four declarations accompanied the ICCPR.
In addition, the United States has not ratified the First Optional Protocol to the
ICCPR and did not declare itself bound by Article 22 of the Torture Convention. The
protocol and Article 22 allow the committees responsible for monitoring compliance with
the treaties to receive complaints from individuals and organizations, in addition to
complaints from other governments. The effect of these positions, combined with the lack of
adequate enforcement at the state level of prohibitions on torture and cruel, inhuman, and

Historical and Legal Background

61

declarations, and understandings were designed to limit U.S. accountability under
the treaties in ways that are extremely adverse, among other things, to the
elimination of custodial sexual misconduct. In Human Rights Watch=s view, as
discussed below, the U.S. reservations and declarations in this regard are both
politically ill-conceived and legally indefensible. Accordingly, we hold the U.S. to
the full scope of the relevant international obligations.

degrading treatment, is to deny U.S. citizens and others who allege that rights contained in
those treaties have been violated any means of having their grievances heard or resolved.

62

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Human Rights Watch takes particular issue with the fact that in ratifying
the ICCPR and Torture Convention, the United States declared the provisions of
both treaties to be Anon-self-executing;@ that is, without enabling legislation, they
could not be relied upon to bring suit in U.S. courts. The United States then failed
to adopt any enabling legislation to remedy this shortcoming. If the U.S. retains the
non-self-executing declarations and fails to adopt legislation, it effectively denies
individuals the right to sue the government for noncompliance with these treaties.122
The U.S. government justifies the lack of such legislation by asserting that
existing state and federal law adequately protect against violations of the treaty.
Thus far, the U.S. has not enacted legislation to implement the provisions of the
ICCPR, and the only legislation enacted to implement the Torture Convention
allows individuals who claim that they were tortured outside the United States to
file suit in U.S. courts.123 According to an internal State Department memorandum,
the U.S. government believes that no further implementing legislation is necessary
to allow individuals tortured within the U.S. to file suit under the Torture
Convention because all fifty U.S. states already prohibit torture under their criminal
statutes. But this rationale is inadequate to meet U.S. obligations under
international human rights law. The State Department view presupposes that state
legal systems are enforcing prohibitions on torture and other cruel, inhuman, or
degrading treatment or punishment, when, as this report demonstrates, some states
are not. In such circumstances, the federal government has a duty to enforce the
prohibition against these acts both by pressuring state prosecutorial authorities to
122

Restatement of the Law Third: The Foreign Relations Law of the United States, volume 1
(Minnesota: American Law Institute, 1987), Section 111(3).

123
The U.S. government did enact limited provisions under the Torture Convention to
broaden its jurisdiction over acts that were committed outside its territory but where the
alleged abuser was located in the United States. 18 U.S.C. Section 2340 et. seq., Chapter
113B, ATorture.@

Historical and Legal Background

63

pursue such cases and by creating a separate federal crime to ensure that the failure
of states to enforce these protections does not leave victims of such abuse without
any federal recourse.
Moreover, to the extent that state or federal law defines torture, for
example, more narrowly than does international law, individuals should be able to
invoke the broader definition of torture available under international law to attack
actions not prohibited by the narrower definition of torture under the state or federal
law. For example, the existing U.S. implementing legislation regarding the Torture
Convention defines torture much more restrictively than does international law.
The Torture Convention defines one element of torture as causing Asevere mental
pain or suffering.@ The U.S. legislation, however, recognizes only mental suffering
that is prolonged and that results from one of four thingsCintentional or threatened
harm, administration of Amind-altering substances,@ threat of imminent death, or
threat that another person will be killed or physically harmed.124 The U.S.
legislation thus recognizes as torture only those acts that meet additional
requirements not found in the international standard. This definition of torture
limits the applicability of the Torture Convention and denies the treaty=s broader
protections to individuals who have suffered acts that, under the internationally
recognized definition, would constitute torture.
Human Rights Watch is equally concerned that in ratifying the ICCPR, the
U.S. government attempted, through its reservation to Article 7 prohibiting torture
or cruel, inhuman, or degrading treatment, to limit the treaty=s applicability to only
the eight amendment, which addresses exclusively cruel and unusual punishments.
As a consequence, individuals that suffer acts that Article 7 of the ICCPR prohibits
but that have not been recognized as violations of the U.S. Constitution, cannot
claim the broader protection of the treaty and may thus be left with no recourse
whatsoever. Although much of the sexual misconduct discussed in this report is
arguably prohibited by the U.S. Constitution as cruel and unusual punishments, not
all of it is encompassed by this protection. Thus, acts of torture or cruel and
inhuman punishment that do not meet the eighth amendment=s stringent intent
124

Ibid.

64

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

requirementsCwhereby, as discussed above in greater detail, prison officials are
culpable only if they acted maliciously and sadisticallyCmay not be covered.
Moreover, the U.S. government itself has stated that degrading treatmentCclearly
prohibited by the ICCPR and the Torture ConventionCis Aprobably not . . .
prohibited by the U.S. Constitution.@125

125

Message from the President of the United States Transmitting the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, May 23, 1988, p.
15.

Historical and Legal Background

65

While international law does permit governments to make reservations to
international treaties, such reservations cannot be incompatible with the object and
purpose of the treaty.126 The view of Human Rights Watch that the U.S.
reservations and declarations discussed above are in fact incompatible, is supported
by comments of the U.N. Human Rights Committee, which has responsibility for
interpreting and monitoring compliance with the ICCPR. In a General Comment,
the committee stated that countries must not ratify a treaty with exceptions
Adesigned to remove [guarantees to provide the necessary framework for securing
the rights in the ICCPR].@127 The U.S. reservations have also been challenged by
several other states parties to the treaties.
The U.S. reservation to Article 7Climiting its scope to acts already
prohibited by U.S. lawChas been cited as incompatible with the object and purpose
of the ICCPR by several governments, including Denmark, Finland, France,
Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden.128 Since
126

Article 19(3) of the Vienna Convention on the Law of Treaties stipulates that a State may
make a reservation provided it is not incompatible with the object and purpose of the treaty.
127
Human Rights Committee, General Comment 24, Adopted by Human Rights Committee
Under Article 40, Paragraph 4 of the International Covenant of Civil and Political Rights,
CCPR/C/21/ Rev.1/Add.6, November 2, 1994, p. 4. Consistent with the Vienna Convention,
the Human Rights Committee, the U.N. body of experts created to interpret the provisions of
the ICCPR, stated Areservations that offend preemptory norms would not be compatible with
the object and purpose of the Covenant.@ Ibid., p. 3.
128

Multilateral Treaties Deposited with the Secretary General, ST/LEG/Ser.E/13., December
31, 1994, pp. 127-130.

66

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

treaties have to be interpreted in good faith and in accordance with their plain
meaning, the effect is not that the ratification of the treaty is invalid, but that the
reservation is invalid. Therefore, Human Rights Watch holds the U.S. to be bound
by the full scope of the right.
The Human Rights Committee has further asserted that reservations that
effectively deprive individuals of the means to secure their rights are not
acceptable.129 The fact that the United States has declared the ICCPR and the
Torture Convention to be non-self-executing and thus has denied individuals federal
recourse to remedy human rights violations prohibited by these treaties that are not
being remedied in state courts, effectively denies individuals the ability to challenge
these violations in any court. Arguably then, the U.S. declaration effectively denies
individuals access to the means by which they might secure the rights protected by
the ICCPR.130 As such, the declaration that the treaty is non-self-executing is
incompatible with the object and purpose of the treaty.131
However, regardless of whether a treaty is self-executing, the president or
executive branch is obligated to ensure that it is executed faithfully, because under
the constitution international treaties are part of the supreme law of the land.
Therefore, at a minimum, if the U.S. government is to live up to its international
obligation to prevent and remedy custodial sexual misconduct, it should revise
existing federal laws to comply with its international obligations under both the
ICCPR and the Torture Convention, instruct law enforcement and other government
129

Human Rights Committee, General Comment 24, para.11.

130

Although the U.S. position on the self-executing nature of the ICCPR is laid out in a
declaration and not in a reservation, the standard of compatibility with the object and
purpose of the treaty still applies. According to the committee, ARegard will be had to the
intention of the State, rather than the form of the instrument. If a statement, irrespective of
its name or title, purports to exclude or modify the legal effect of a treaty in its application to
the State, it constitutes a reservation.@ Human Rights Committee, General Comment 24,
para. 3.
131
In regard to the Convention on the Elimination of Racial Discrimination recently ratified
by the U.S. government, Human Rights Watch also believes the U.S. has an obligation to
Aensure that the guarantees of the treaty are available to all persons within the U.S., whether
through provision of independent federal remedies or through appropriate action to ensure
that state and local laws are in compliance with the obligations of the treaty.@ Letter from
Human Rights Watch, International Human Rights Law Group, and NAACP Legal Defense
and Education Fund to Warren Christopher, U.S. Secretary of State, October 27, 1995.

Historical and Legal Background

67

bodies to act in conformity with the ratified treaties, monitor federal and state
bodies for compliance with the treaty obligations, and sue state authorities for
noncompliance. The U.S. Supreme Court has stated that U.S. domestic law should
be construed by courts to avoid violations of the U.S. government=s obligations
under international law, including customary law.132

132

Murray v. The Schooner Charming Betsy, 6 U.S. 64, p. 118 (1804).

68

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Moreover, the fifty states, although not themselves parties to international
treaties, are obliged to obey federal law, which includes customary international law
and all international treaties ratified by the U.S. Senate.133 Where state practices or
laws are inconsistent with international treaties acceded to by the U.S., the state
must change such practices or laws, or the federal government must compel the
state to comply with the international treaties.134 The U.S. government itself
acknowledged in an understanding to the ICCPR that the federal government would
implement the ICCPR to Athe extent that it exercises legislative and judicial
jurisdiction over the matters,@ and that it would ensure that state and local
authorities fulfill their obligations under the ICCPR in the areas over which they
have jurisdiction.135
The Use of International Law as an Interpretative Guide
Custodial Sexual Misconduct as Torture and Cruel, Inhuman, and
Degrading Treatment
Most of the custodial sexual misconduct in this report constitutes either
torture or cruel, inhuman, or degrading treatment as defined by international law. A
number of instances of sexual intercourse between officers and prisoners in custody
documented in this report involve prison staff members who use force, the threat of
force, or other means of coercion to compel a prisoner to engage in sexual
133

Restatement of the Law Third, Section 111(1).

134

Ibid., Section 111, comment d.

135

Understanding 5, U.S. Reservations, Understandings, and Declarations to the ICCPR,
October 5, 1992.

Historical and Legal Background

69

intercourse. These cases constitute rape and therefore, torture.136 Prison staff have
also used force or coercion to engage in sexual touching of prisoners, including
aggressively squeezing, groping, or prodding women=s genitals or breasts. As the
testimonies in this report demonstrate, these acts often involve a violent assault that
causes severe physical and mental suffering. As such, they, too, amount to torture.

136

Rape has been recognized as a form of torture. The U.N. Special Rapporteur on Torture,
for example, has documented the use of rape in custody as a method of torture. Report by
the Special Rapporteur, P. Koojimans, appointed pursuant to Commission on Human Rights
resolution 1985/33, U.N. Doc. E/CN.4/1986/15 (February 19, 1986), p. 29.

70

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Other instances of sexual intercourse that we documented which do not
amount to rape but constitute sexual abuse as defined above, may also constitute
torture or cruel or inhuman treatment, depending on the level of physical or mental
suffering involved. This is also true of sexual touching that amounts to sexual
assault. Other forms of sexual misconduct that do not constitute rape or sexual
assault or abuse, rise to neither the level of torture nor of cruel or inhuman
treatment, but may be condemned as degrading treatment, that is, treatment that
causes or is intended to cause gross humiliation or an insult to a person=s dignity.137
This includes inappropriate pat or strip searches and verbal harassment.
The manner in which strip searches and pat searches are conducted, while
clearly infringing upon the privacy rights of prisoners, can also constitute a form of
degrading treatment. The mere performance of a strip search or a pat search by a
correctional officer for the purpose of controlling contraband is not, in and of itself,
degrading treatment. For example, the use of close body searches for a valid
purpose has been upheld under international law.138 However, the fondling and
137

The European Commission on Human Rights has done the most to clarify a definition of
degrading treatment. In the Greek Case, the commission defined degrading treatment as that
which Agrossly humiliates one before others or drives him to act against his will or
conscience.@ Greek Case, 1969 Y.B. Eur. Conv. on H.R. (Eur. Comm=n on H.R.) 186. The
Commission elaborated in the East Asian Africans Case: degrading treatment must Alower
the victim in rank, position, reputation or character whether in his own eyes or in the eyes of
other people,@ as well as cause serious humiliation. East Asian Africans v. United Kingdom,
App. No. 4403/70, 3 Eur. H.R. Rep. 76, 80 (1981) (Commission report).
138

The European Commission upheld the use of close body searches where there was a
history of concealed objects. McFeeley v. United Kingdom, App. No. 8317/78, 3 European
Human Rights Reporter, p. 201 (1980) (Commission Report).

Historical and Legal Background

71

groping of women in the course of a strip search or a pat search serves no
penological purpose; it is extraneous to the search for contraband and unnecessarily
invades a prisoner=s physical integrity and humiliates her. Furthermore, the use of
pat searches as a means of retaliation, and the targeting of specific women for such
searches without due cause, also violates these principles and constitutes degrading
treatment.
The prohibition on degrading treatment also extends to the use of
demeaning language, where the employment of such language is intended to
dehumanize and weaken an incarcerated person.139 In the Greek case, the European
Commission found that Apsychological pressure designed to break the will@ of
prisoners, including verbal harassment and humiliation, was prohibited under
Article 3 of the European Convention on Human Rights. It specifically relied on
examples in which officials told prisoners, Ayou have excrement in your soul. . . .
Your daughters are prostitutes.@140 While isolated name calling may not rise to the
level of degrading treatment, a pattern of such language or the use of such language
in combination with obscene gestures and physical advances may create an
environment of pressure or harassment that leads to humiliation sufficient to
constitute degrading treatment.
Custodial Sexual Misconduct: A Violation of the International Right to
Privacy
In the same way that the U.S. government is accountable under
international law for preventing torture and ill-treatment, it is also required to
uphold prisoners= privacy rights as codified in the ICCPR and the Standard
Minimum Rules. In fact, unlike the articles governing torture and ill-treatment, the
U.S. government did not enter a reservation to Article 17 of the ICCPR with respect
to the right to privacy other than the non-self-executing declaration that applied to
all the substantive articles of the treaty. The U.S. government=s decision not to
enter any reservations with respect to this right in particular, suggests that the U.S.
intends to comply fully with the ICCPR standard or, at least, that such standard is
not understood to impose any obligation greater than that under current U.S. law.

139

The Greek Case, 1969 Yearbook of European Convention on Human Rights, pp. 462-3
(1969).
140

Ibid., p. 463.

72

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The Human Rights Committee, which interprets the ICCPR, has spoken
directly to the use of personal and body searches. In its General Comment 16 to
Article 17, the committee stated:
So far as personal and body searches are concerned, effective
measures should ensure that such searches are carried out in a
manner consistent with the dignity of the person who is being
searched. Persons being subjected to body searches by State
officials, or medical personnel acting at the request of the State,
should only be examined by persons of the same sex.141
In hearings before the U.N. Human Rights Committee, the U.S.
government has taken the position that it is substantially in compliance with the
right to privacy as established by the ICCPR. The U.S. government told the Human
Rights Committee that:

141

General Comment 16 to Article 17, ACompilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies,@ U.N. Document
HRI/GEN/Rev.1, July 29, 1994.

Historical and Legal Background

73

In order to protect the privacy of female inmates, only female
officers are permitted to conduct strip searches or body cavity
searches, except in cases of emergency situation. Male officers
work in the women=s housing units, but they are admonished to
respect the inmates= privacy by not intentionally observing them
in a state of undress.142
However, our investigation revealed that such protections quite often are
not in place in the state prisons, and that in practice, norms regulating the role of
male officers are not followed for both body searches and housing areas. With
respect to the use of male guards to conduct strip searches, in particular, we find
that the U.S. falls far short of ensuring the protections provided under international
law. We found that strip searches often occur in the presence of male officers and
that pat-frisks are conducted in an abusive manner by male guards. Moreover,
Michigan and California explicitly permit all corrections officers to make random
and unannounced searches of housing areas.
We affirm the Human Rights Committee=s general comment opposing
cross-gender strip searches as a necessary measure to protect the privacy of
incarcerated women as well as their individual dignity and bodily integrity. Strip
searches, except in extreme and limited cases of emergency, should only be
conducted by corrections officers of the same sex as the prisoner and in a location
where individuals of the opposite sex are not in a position to observe the search. To
the extent possible, we also believe that pat searches should be carried out by
corrections officers of the same sex. We recognize that pat searches are less
invasive than strip searches, but evidence indicates that corrections officers have
used such searches to grope women and violate their personal dignity and bodily
integrity. Corrections officers of both sexes must be fully trained to conduct pat
searches in a respectful and professional manner.
Custodial Sexual Misconduct and International Rights to an Effective
Remedy

142

Press Release, General Assembly, AHuman Rights Committee Concludes Consideration
of Initial Report of the United States,@ HR/CT/405, March 31, 1995, p. 4.

74

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

International law also obliges the United States to ensure that prisoners
may raise complaints of ill-treatment, that such complaints are investigated
promptly and impartially that abusers are punished, and that complainants are
protected from retaliation or punishment. As with respect to the right of privacy,
the U.S. did not reserve on any of these articles under either the ICCPR or the
Torture Convention. Thus, the U.S. has indicated its willingness to comply fully
with these protections. Unfortunately, U.S. practice with respect to guaranteeing an
effective remedy in cases of custodial misconduct again falls far short of the
international standards set forth in detail below.
Article 13 of the Torture Convention requires the United States to ensure
that a person alleging she was tortured or ill-treated has the right to complain,143 as
does Article 3 of the ICCPR, which requires an effective remedy for all rights
contained in the convention. As noted above, the authoritative Standard Minimum
Rules provide a more detailed structure to protect this right and to ensure that
prisoners are able to gain access to a complaint mechanism. Rule 35 mandates that
prisoners receive written information about the Aauthorized methods of seeking
information and making complaints, and all such other matters as are necessary to
enable [her] to understand [her] rights and [her] obligations.@ Rule 36 stresses the
right of prisoners to raise a complaint to one of several individuals, including the
director of a prison, a prison inspector or the central administration.144 The Rule
also provides that unless these complaints are Aevidently frivolous or groundless,@
143

Article 13 of the Torture Convention must be read together with Article 16 regarding
allegations of cruel, inhuman or degrading treatment or punishment.
144

Rule 36 provides:
(1) Every prisoner shall have the opportunity . . . of making requests or
complaints to the director of the institution or the officer authorized to
represent [her].
(2) It shall be possible to make requests or complaints to the inspector
of prisons during his [or her] inspection. The prisoner shall have the
opportunity to talk to the inspector or to any other inspecting officer
without the director or other members of the staff being present.
(3) Every prisoner shall be allowed to make a request or complaint,
without censorship as to substance but in proper form, to the central
prison administration, the judicial authority or other proper authorities
through approved channels. . . .

Historical and Legal Background

75

prison administrators must respond promptly and Awithout undue delay.@ The
authoritative Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment provides that prisoners Ahave the right to make a
request or complaint regarding [their] treatment . . . to the authorities responsible
for the administration of the place of detention and to higher authorities, and, when
necessary, to appropriate authorities vested with reviewing or remedial powers.@145
The ICCPR and Torture Convention, furthermore, obligate the U.S. to
provide and ensure that certain remedies are available to those prisoners alleging
acts of torture or cruel, inhuman or degrading treatment or punishment. The Human
Rights Committee, the body officially charged with interpreting the ICCPR, has
ruled that the prohibition on torture and cruel, inhuman, or degrading treatment or
punishment in Article 7 carries with it a positive obligation for state parties to
investigate complaints of ill-treatment effectively, punish those found guilty, and
provide remedies to the victim, including compensation.146 The Torture Convention
explicitly sets forth these requirements in Article 12.147 The Body of Principles also
underscores the importance of these protections by imposing in Principle 7 an
obligation on government agents to report allegations of misconduct and by

145

Body of Principles, Principle 33 (1).

146

General Comment 7 to Article 7, ACompilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies,@ U.N. Document
HRI/GEN/Rev.1, July 29, 1994.
147

Article 16 of the Torture Convention provides that the obligations under Articles 10, 11,
12, and 13 apply to acts of cruel, inhuman or degrading treatment or punishment.

76

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

directing governments to conduct impartial investigations when they receive such
complaints.148
Each of the states we visited provides a grievance mechanism to prisoners.
However, we found that obstacles often hinder the ability of prisoners to file
complaints or to see them fully pursued. Prisoners do not always receive
information about the grievance mechanism, and some women we interviewed were
entirely unfamiliar with the grievance process. In addition, an informal stage
included in the grievance process in several states we visited often discourages
women from filing complaints and prevents their complaints from reaching
appropriate higher authorities. The informal level is particularly problematic in
cases of sexual misconduct because it requires the woman to confront her abuser,
and in essence, request him to acknowledge that he has abused her and violated her
rights before she can file a formal complaint. Women prisoners who
understandably fear taking this step are thus effectively shut out of the grievance
system and denied the right to raise their charge through the complaints procedure.
We also found that official investigations of staff misconduct often were fraught
with many of the same irregularities as the grievance process.
Provisions governing the right of prisoners to complain of misconduct and
the duty of state officials to investigate such allegations frequently are accompanied
by an obligation to protect complainants from retaliation and mistreatment. Article
13 of the Torture Convention provides that steps must be taken to protect the
complainant and her witnesses from all ill-treatment or intimidation in retaliation for
filing a complaint or providing information. Such protections are reiterated in the
Body of Principles; Principle 33 emphasizes a prisoner=s right to complain of
mistreatment and explicitly requires that a complainant not Asuffer prejudice@ for
making a complaint. Yet, in the U.S. women=s prisons that we investigated, such
retaliationCand in some cases, official punishmentCwas commonplace.

148

Body of Principles, Principle 7.

Historical and Legal Background

77

We found that many prisoners who raised allegations of staff sexual
misconduct were placed in administrative segregation or protective custody. There
is nothing in either U.N. resolutions or any international human rights convention
providing for the physical separation of either the prisoner who raises a complaint
of staff misconduct or her witnesses. Rather, international law recognizes that such
segregation is often punitive.149 Within the Standard Minimum Rules, segregation
is addressed solely in terms of the punishment of prisoners and is viewed as a
punitive measure.150 International law also mandates that efforts be made to limit
the application of solitary confinement, for whatever purpose.151
This does not mean, however, that segregation or solitary confinement per
se, constitutes a violation of a prisoner=s rights, in particular, since a state has a
positive obligation to protect the bodily integrity of the prisoner. In the U.S. this
149

Human Rights Watch does not oppose the use of disciplinary punishment as a valid
measure to discipline prisoners who violate prison rules. Both the Standard Minimum Rules
and Body of Principles recognize its use and set forth rules governing its exercise. Standard
Minimum Rules, Rule 29, and Body of Principles, Principle 30.
150

151

The Standard Minimum Rules refer to segregation as Aclose confinement.@

Principle 7 of the 1990 Basic Principles states, AEfforts addressed to the abolition of
solitary confinement as a punishment, or to the restriction on its use, should be undertaken
and encouraged.@ Moreover, in its General Comment 20, the U.N. Human Rights Committee
noted that Aprolonged solitary confinement of the detained or imprisoned person may amount
to acts prohibited by Article 7 [of the ICCPR].@ U.N. Human Rights Committee General
Comment 20 (Forty-fourth session, 1992).

78

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

protective, rather than punitive, practice is often termed Aadministrative segregation@
or Aprotective custody.@ Unfortunately, in the women=s prisons that we visited, we
found that administrative segregation or protective custody is not only viewed as
punitive by many prisoners, but, in fact, often is punitive. Such protective custody
has in some cases amounted to solitary confinement. (Prisoners placed in
administrative segregation or protective custody, who have committed no
disciplinary offense, are subjected to the same treatment as prisoners serving
disciplinary sentences.) To make matters worse, they are denied the basic
protections that are available to those prisoners placed in segregation on
disciplinary grounds.
Therefore, in our view, administrative segregation or protective custody is
inherently punitive for prisoners who have filed a complaint of staff misconduct
because it results in the physical separation of the prisoner from the general
population and correspondingly results in a certain loss of freedom within the
confines of the prison when the prisoner herself has done nothing wrong. Its use,
therefore, should be restricted to circumstances when the prison administration has
reasonable cause to believe that the prisoner=s safety is in jeopardy, consistent with
the international legal obligation to protect a prisoner=s bodily integrity, or when a
prisoner explicitly requests protective custody within prison, particularly since
segregated custody on nondisciplinary grounds may be perceived as a repercussion
for raising a complaint of staff mistreatment. The use of such segregated custody
must be accompanied by procedural regulations that are at least as protective as
those required for prisoners sentenced to segregation for disciplinary offenses since
the prisoner has committed no offense. And, as much as possible, ordinary
treatment and privileges should be maintained for prisoners in segregation for nonpunitive purposes.
Training
One important method for preventing sexual misconduct is to provide
appropriate training for guards. The Standard Minimum Rules mandate training for
officers on how to carry out their professional duties. Rule 47(2) requires that all
corrections personnel Abe given training in their general and specific duties and be
required to pass theoretical and practical tests.@ Rule 47(3) further specifies that
prison staff maintain and improve their knowledge and professional capacity by
attending training during their employment in prisons. Standard Minimum Rule
35(1) also calls for prisoners to be provided with written information about the
regulations governing the treatment of prisoners, authorized methods of seeking
such information and making complaints, and whatever else is necessary to enable

Historical and Legal Background

79

her to understand her rights and obligations. If the prisoner is illiterate, such
information must be provided orally.
Yet, in the prisons we investigated we found little voluntary effort by the
departments of corrections to train corrections officials charged with guarding
women in custody. For example, little, if any, information was provided concerning
the impact of previous sexual abuse on incarcerated women. Security techniques,
prisoner profiles, and other training materials are often based upon the model of a
male prisoner. States inadequately train corrections officers working in women=s
prisons on the obligation to refrain from sexual contact, verbal degradation or
privacy violations. The departments of corrections that did conduct training for
guards with which we are familiar, Georgia and the District of Columbia, were both
compelled to do so pursuant to court orders. The state of Michigan did initiate a
training program that would include cross-gender guarding situations, but to our
knowledge, it has yet to address the specific issue of custodial sexual contact.
In addition, according to our interviews, most women in prison were not
informed of what constituted proper conduct by guards or staff and were unaware of
the procedures for filing grievances and complaints. In our investigation, we found
that the only women well-informed about these standards and procedures were those
who had been in prison for a long time or who had received instruction from outside
nongovernmental organizationsCinstruction provided when departments of
corrections took the positive step of facilitating training for prisoners. Most
notably, Brenda Smith of the National Women=s Law Center conducts a voluntary
training for women incarcerated in the District of Columbia. This four-month class
occurs three times a year and provides information on issues from child custody,
medical care, and reproductive health to sexual misconduct, dispute resolution, and
plans for post-incarceration life. This series, according to Smith, has made the
women more sophisticated about these issues and better able to resolve problems
without external intervention. Nongovernmental organizations in the other states
we visited also conducted training, but most were unable to get the access necessary
for such a complete program.

CONCLUSION
Given the grave nature of custodial sexual misconduct described in this
report, there is simply no excuse for the U.S. government to deny women in prison
the full scope of protections against this abuse available to them under international
law. Nor is it defensible in any way for the United States to argue, as it did in its
first report to the U.N. committee responsible for overseeing compliance with the

80

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

ICCPR that the problem of custodial sexual misconduct is addressed under U.S.
law, Athrough staff training and through criminal statutes prohibiting such
activity.@152
Nothing could be further from the truth. In fact, the problem of sexual
misconduct is not being adequately addressed under state administrative or criminal
laws, and protections available at the federal level, while they cover much of the
abuse discussed in this report, do not protect against it all. Human Rights Watch
calls on the federal government, as a matter of some urgency, to recognize this fact
and to take immediate steps to guarantee to women and all other persons
incarcerated in the U.S. the full scope of rights available to them under international
law.
Most U.S. department of corrections= regulations do not
incorporate the United Nations standard that no male staff shall
enter a women=s institution unless accompanied by a woman.
Nonetheless, the important underlying issue of sexual abuse is
addressed

152

Consideration of Reports Submitted by State Parties Under Article 40 of the Covenant,
United States of America, CCPR/C/81/Add.4, August 24, 1994, para. 260. Emphasis added.

III. CALIFORNIA

California has the largest number of incarcerated women in the United
States and the world=s two largest women=s prisons, the Central California Women=s
Facility and the recently opened Valley State Prison for Women, both in
Chowchilla. Two lawsuits filed in 1995 alleging constitutional violations in
California=s prisons for women, one of which concerned sexual assault1 and the
other alleging inadequate medical care,2 have led the California Department of
Corrections (CDC) to take some action against individual employees when directly
confronted with evidence of their misconduct. Overall, however, the CDC has
failed to prevent sexual misconduct in its women=s facilities, and such abuse is
commonplace, in some instances amounting to sexual abuse, assault, or rape.
Our investigation, based on interviews with female prisoners, their
attorneys, attorneys active on two civil suits, and sociologists familiar with the
California prison system and the CDC, revealed serious flaws in the system=s
current pattern of response to sexual misconduct in its facilities. California has few
administrative or, where appropriate, criminal protections against custodial sexual
misconduct and fails to train male officers adequately concerning appropriate
conduct or to counsel female prisoners about this issue. Moreover, the CDC
procedures for reporting and investigating complaints of such abuse are inadequate,
biased in favor of officers and often expose female prisoners to retaliation. Not
until 1994 did California take the welcome step of criminalizing all sexual contact
in custody.
Given California=s steadily growing female prison population, it behooves
the state to engage in substantial prison reform before the problem of sexual
misconduct escalates. We strongly urge California to adopt substantive reforms in
1

Patterson v. Deshores, Civil Action File No. ECDV-95-397, filed October 31, 1995, in
United States District Court for the Central District of California.
2

Shumate v. Wilson, filed April 4, 1995, in the District Court for the Eastern District of
California. Shumate is significant because it gives attorneys increased access to prisoners
whereby they have begun to hear additional allegations of sexual misconduct.

81

its prison rules and general practice relating to sexual misconduct that will ensure
the reporting, effective investigation and, ultimately, punishment of custodial sexual
misconduct. We also call on the CDC to make significant improvements in officer
training and prisoner counseling with respect to this problem.

CONTEXT
Custodial Environment
At present, slightly over 50 percent of corrections officers within
California=s women=s prisons are men.3 This means that, day to day, female
prisoners in California are supervised by male officers more often than by female
officers. Yet, California has few effective guidelines for male guards working with
female prisoners in women=s prisons.
As noted above in the legal background section, Human Rights Watch
does not oppose the presence of male guards in contact and supervisory positions in
women=s prisons per se. However, we are concerned that California has taken few
steps to protect against the potential for sexual misconduct that arises out of this
cross-gender guarding situation. In fact, we found that training for California
corrections officers regarding security and contact with prisoners concentrates
primarily on male prisoners. According to a 1995 report described in greater detail
below, the only training provided for corrections officers of either sex assigned to
work with women addresses the proper procedure for pat-searching women.4
3

Corrections Compendium (Nebraska), October 1992. According to information we
received from the CDC, the overwhelming majority of corrections officers in three of its
women=s prisons are men. As of June 5, 1996, men constituted nearly 74 percent of all
officers at Central California Women=s Facility, 73 percent at Valley State Prison for
Women, 60 percent at Northern California Women=s Facility, and 51 percent at California
Institute of Women. Women we interviewed at Central California Women=s Facility
reported that the overwhelming majority of officers on the housing units are men. Letter
from William B. Anderson, Chief, Institutions Services Unit, California Department of
Corrections, to Human Rights Watch, June 5, 1996.
4

In some facilities, such as at Avenal, which no longer houses women, prison administrators
have concocted their own Atraining@ for corrections officers. A review of staff depositions
related to Avenal litigation revealed that one program administrator held an oral briefing for
her officers wherein she relayed her personal views about female prisoners. Deposition of
Steven Garcia, June 10, 1993. Until December 1988, when female prisoners began to be
housed in Avenal, the majority of these officers had worked exclusively with male prisoners.
No written materials were provided to train for guarding the new female prisoners. The

82

California

83

program administrator told her officers that incarcerated women were Amanipulative@ and
should be treated no differently from male prisoners. She encouraged, rather than directed,
them to use the back of the hand when conducting pat-frisks. Incarcerated women were
required to submit to pat-frisks, and officers were instructed to assume a woman was
carrying contraband if she refused a search or pulled away. In such circumstances, a strip
search was deemed justified.

84

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Correctional authorities also fail to inform female prisoners about the risk
of custodial sexual misconduct or the availability of mechanisms to report such
misconduct should it occur. Yet most women enter prison ill-equipped to deal with
the potential problem. A 1995 study found that an overwhelming percentage of
women incarcerated in California experienced physical, sexual and emotional abuse
prior to incarceration.5 According to the study, 71 percent experienced physical
abuse on an ongoing basis before the age of eighteen, while 62 percent reported
ongoing physical abuse after the age of eighteen. Forty-one percent of incarcerated
women reported being sexually abused before they turned eighteen, while 41
percent reported such abuse after the age of eighteen. This is a population largely
unaccustomed to having recourse against abuse; all the more necessary, then, for the
state to present the available means of recourse clearly and in an accessible fashion.

5

Barbara Owen & Barbara Bloom, AProfiling the Needs of California=s Female Prisoners,@
February 1995 (this report was prepared with a grant from the National Institute of
Corrections, a division of the U.S. Department of Justice), p. 30.

California

85

The potential for custodial sexual abuse in California is exacerbated by the
rising female prison population and resultant overcrowding. California=s female
prison population increased by 450 percent between 1980 and 1993, a rate that
significantly outpaced that of men.6 By 1995, the women=s population in California
had risen to over 9,000 prisoners, compared to 1,316 in 1980,7 and women now
account for nearly 6.5 percent of the total California prison population. As of
November 30, 1995, approximately 40 percent of women incarcerated in California
state facilities were African American, and approximately 30 percent were Latina.8
Nearly 55 percent were serving their first prison sentence. The majority of women
within the California prison system are committed for nonviolent offenses; in fact,
6

In roughly the same time period, the overall prison population in California, including men
and women, grew at 346 percent. Senate Concurrent Resolution 33, Commission Report on
Female Inmates and Parolee Issues, June 1994, p. A-1 [hereinafter Commission Report].
The Commission Report, while dated June 1994, was withheld for seven months and not
released until March 1995.
7

By June 5, 1996, there were 9,239 women incarcerated in the California system. Letter
from William B. Anderson to Human Rights Watch, June 5, 1996.
8

California Department of Corrections, AInstitution: Ethnic Group by Population,@
December 1995.

86

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

since 1982, the proportion of women imprisoned for violent offenses has
decreased.9 The war on drugs, in particular, has contributed to the rapid growth of
the female prison population: one-third of all women in the California prisons are
serving sentences for nonviolent drug offenses. Of these, most were convicted for
offenses such as Apossession@ or Apossession for sale.@10

9

Barbara Bloom, Meda Chesney Lind and Barbara Owen, AWomen in California Prisons:
Hidden Victims of the War on Drugs,@ (Center for Juvenile and Criminal Justice (CJCJ):
California, 1994).
10

Ibid.

California

87

This burgeoning female prison population has led to serious overcrowding
in the California Institution for Women (CIW), Central California Women=s Facility
(CCWF), and Northern California Women=s Facility (NCWF), all three of which, as
well as the California Rehabilitation Center (CRC), a drug treatment and
rehabilitation facility, were operating at between 60 to almost 100 percent over
capacity as of April 9, 1995.11 The recently opened Valley State Prison for Women
(VSPW) has reduced the pressure on the other prisons somewhat, but they continue
to operate over capacity. Attorneys and volunteers told us that this overcrowding
places a severe strain on prison resources and has reduced the correctional system=s
capacity to supervise the conduct of male officers with respect to female prisoners.12
Close to 80 percent of all women incarcerated in California are mothers
who have at least two dependent children.13 Nonetheless, most California women=s
prisons are located far from the major urban areas where most of the prisoners=
children and families live. For instance, CIW is approximately five hours by bus
11

Commission Report, p. A-5. As of June 5, 1996, CCWF=s population exceeded 3,000 (a
decrease from over 4,000 as of April 1995) prisoners while NCWF housed 2,174
incarcerated women. CDC Analysis Unit, Estimates and Statistical Analysis Section,
AWeekly Report of Population,@ April 9, 1995. Before California built NCWF and CCWF,
women housed at CIW were double- then triple-bunked. All available spaces, including icerooms, classrooms and the auditorium were converted to dormitories and cells. Some of
these spaces continue to be used for housing prisoners. The overcrowded conditions, which
limit women=s access to health care, education and vocational training and basic necessities
such as showers and toilets, have led to a number of lawsuits. In 1986 the American Civil
Liberties Union of Southern California sued the state=s department of corrections in an
unsuccessful effort to stop the conversion of the prison=s auditorium and other indoor
recreation facilities into dormitories. Jenny v. Alexander, San Bernadino Superior Court
(1986). Then in 1988, according to reports in the Orange County Register, women at CIW
sued the CDC alleging that there was a shortage of toilets and showers; prisoners, as a result,
were often forced to urinate in stairwells and shower in stalls overflowing with Aankle-deep
slimy water.@ APrison: Drugs, Sex, Overcrowding and Violence makes Frontera a >horrible
environment for guards and prisoners alike,=@ Orange County Register, July 29, 1990.
12

When VSPW opened in May 1995, women prisoners who were transferred there were
subjected to extremely chaotic conditions, because adequate custodial and medical staff were
not in place, construction had not been completed and records were not transferred to the
new facility in a timely fashion.
13

Commission Report.

88

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

from Los Angeles, the nearest city, and Chowchilla is similarly inaccessible.
Further, the CDC has taken action specifically to limit visitation; it is considering
requiring children to visit their incarcerated parents unsupervised. The
accompanying adult already is refused admittance to a state prison in many cases,
requiring the child to undergo a body search alone.14 Moreover, California has
recently decided to reduce attorneys= and volunteers= access to women prisoners for
interviews and telephone contact.15 We ourselves received cooperation from the
CDC only after repeated requests for information.16
14

Telephone interview, Rebecca Jurado, professor of law, Western State University, March
4, 1996.
15

The CDC has reduced visiting hours, reduced access to the telephone, and in the case of
the California Institution for Women, did not inform the prisoners about scheduled trips by
the National Association of Social Workers. Ibid.
16

We contacted Gregory W. Harding, CDC deputy director for evaluation and compliance,

California

89

on March 14, 1995 to request an interview. Harding was one of two representatives from the
CDC who served on a Commission on Female Inmates and Parolee Issues that examined
various issues affecting incarcerated women in California. Harding referred us to Teena
Farmon, warden at CCWF. Farmon also served on the commission. After we wrote to
Farmon, as she requested, setting forth the purpose of our interview, her staff notified us that
we should again contact Harding. After repeated calls to Harding=s office, he informed us,
on April 24, 1995, that Farmon declined to be interviewed and he would try to locate another
person within the CDC whom we could interview. On April 25, 1995, we were contacted by
a representative of the CDC=s communications department and told that we needed to put our
request in writing and submit it to David Tristan, deputy director of the Institution Services
Unit. We wrote to Mr. Tristan on May 3, 1995, but received no response. We also
requested and received some documentation from the CDC. We then wrote to William
Anderson, chief of the CDC Institution Services Unit, on May 20, 1996. Anderson
contacted us by telephone and requested that we contact either Harding, Tristan or Eddie
Meyers. After we sent a letter to Meyers, Anderson telephoned us on May 31, 1996, and
agreed to respond to our requests for information.

90

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

State Legal and Regulatory Framework
The state of California prohibits all sexual intercourse between corrections
staff and prisoners. The first violation of this prohibition is a misdemeanor; any
subsequent violation is a felony. Beyond this criminal prohibition, Title 15 of
California=s administrative code (also known as the Director=s Rules), which
governs the CDC and the treatment of prisoners, contains only a general and vague
provision prohibiting corrections staff from engaging in Apersonal transactions@ with
prisoners, parolees or their relatives.17 The administrative code does prohibit
prisoners from engaging in sex,18 but we were unable to learn from the CDC
whether prisoners sexually involved with corrections staff, rather than with other
prisoners, may be punished under this provision.
17
15 California Administrative Code, Section 3399, titled ATransactions,@ merely states:
AEmployees shall not directly or indirectly trade, barter, lend or otherwise engage in any
other personal transactions with any inmate, parolee or person known by the employee to be
a relative of an inmate or parolee. Employees shall not, directly or indirectly, give to or
receive from any inmate, parolee or person known by the employee to be a relative of an
inmate or parolee, anything in the nature of a tip, gift or promise of a gift.@
18

A[I]nmates may not participate in illegal sex acts. Inmates are specifically excluded in
laws which remove legal restraints from acts between consenting adults,@ 15 California
Administrative Code, Section 3007. According to the CDC, certain sexual acts, such as
sodomy, have been decriminalized in California over the last twenty years. Section 3007
was included in Title 15 to make clear that while these acts are not criminal outside prisons,
they remain criminal offenses within prisons. Telephone interview, John Winn, staff
counsel, Legal Affairs Division, California Department of Corrections, May 3, 1995.

California

91

The CDC=s operations manual, which reflects the Director=s Rules for the
CDC, states that employees should be suspended, or placed on administrative leave,
Ain most cases [where they are] subject to dismissal because they . . . have shown
unacceptable familiarity with inmates.@19 But, exactly what constitutes
Aunacceptable familiarity@ is nowhere explained. Thus, California=s prison rules
contain no clear definition of nor prohibitions on sexual misconduct, nor do they set
forth the appropriate disciplinary sanctions for such conduct should it occur.
Despite the vagueness of the operations manual, at least one warden of a
California women=s prison has interpreted Title 15 clearly to prohibit any personal
involvement by guards with prisoners. Teena Farmon, warden of CCWF, wrote in a
memorandum to staff dated July 24, 1995, that the Director=s Rules Aare clear
regarding expectations of staff. . .Anything other than authorized physical contact,
authorized verbal or written communications, or involvement with any
inmate/parolee or their family, is a violation of policies and procedures and in some
cases can be a violation of the law.@20 In her memorandum, Farmon explicitly
asserted that officers must not establish a personal relationship with a prisoner or
provide personal favors or preferential treatment to any prisoner. In addition,
Farmon required guards to inform supervisors if any of their colleagues were
violating the rules. Farmon also stated that since CCWF opened in October 1990,
eighteen employees have been fired because of Aoverfamiliarity@ with prisoners and
parolees. However, no independent prisoner advocates were able to confirm this
figure.
California does expressly mandate that prisoners be treated humanely by
prison staff. Title 15, Section 3004, of the state=s administrative code establishes
that Ainmates have the right to be treated respectfully, impartially and fairly by all
employees.@ With respect to verbal abuse in particular, the code goes on to provide,
in Section 3391, that:
Employees shall be alert, courteous, and professional in their
dealings with inmates . . . Inmates shall be addressed by their
proper names and never by derogatory or slang reference . . .
Employees shall not use indecent, abusive, profane, or otherwise
improper language while on duty.
19

California Department of Corrections, Operations Manual, February 16, 1990, p. 3303021.
20

Teena Farmon, Memorandum on Staff/Inmate Over-Familiarity, July 24, 1995.

92

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

This express protection of prisoners= right not to be subjected to verbal degradation
by officers is welcome and might serve as a model for other states that we visited,
most of which do not possess such prohibitions. Unfortunately, it is rarely honored
in practice within the California correctional system.
National and International Law Protections
As discussed in the legal background chapter of this report, sexual
misconduct is clearly prohibited under both U.S. constitutional law and
international treaty and customary law that is binding on the U.S. federal
government as well as its constituent states.21 The eighth amendment to the
constitution, which bars cruel and unusual punishments, has been interpreted by
U.S. courts to protect prisoners against rape and sexual assault. This constitutional
shield is augmented by the Fourth Amendment=s guarantee of the right to privacy
and personal integrity, which, in a series of lower court cases, has been interpreted
to prohibit male guards from inappropriately viewing or strip searching female
prisoners or conducting intrusive pat-frisks on female prisoners.
Constitutional protections for prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark victories through
private litigation, particularly suits litigated by prisoners= rights such as the National
Prison Project of the American Civil Liberties Union (ACLU). However, if certain
stringent requirements are met, the DOJ may criminally prosecute abusive prison
officials under federal civil rights provisions. In addition, the DOJ has the statutory
right to investigate and institute civil actions under the Civil Rights of
Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages
in a pattern or practice of subjecting prisoners to Aegregious or flagrant conditions@
in violation of the Constitution.
In addition to constitutional protections, prisoners= rights are protected
under international human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant on Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The
21

For a detailed discussion of United States obligations under U.S. constitutional law and
international law pertaining to the treatment of prisoners, see the legal background chapter of
this report.

California

93

ICCPR guarantees prisoners= right to privacy, except when limitations on this right
are demonstrably necessary to maintain prison security. Both treaties bar torture
and cruel, inhuman or degrading treatment or punishment, which authoritative
international bodies have interpreted as including sexual abuse. To constitute
torture, an act must cause severe physical or mental suffering and must be
committed for a particular purpose, such as obtaining information from a victim,
punishing her, intimidating or coercing her, or for any reason based on
discrimination of any kind. Cruel, inhuman or degrading treatment or punishment
includes acts causing a lesser degree of suffering that need not be committed for any
particular purpose.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,
that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment.22
ABUSES23

22

For a detailed discussion of the prohibition against torture, and other cruel, inhuman or
degrading treatment or punishment under international law and its applicability to custodial
sexual misconduct, see the legal background chapter of this report.
23

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.

94

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The abuses discussed in this section occurred from 1990 through 1996.
Our own investigation took place between July 1994 and November 1996. We
found that custodial sexual misconduct in California includes rape, sexual assault,
and criminal sexual contact. In addition, we found pervasive and constant
violations of women=s privacy and degrading language and treatment.
Unless indicated by the use of a full name, the names of the prisoners have
been changed to protect their anonymity. In some cases, the location and exact date
of prisoner interviews have also been withheld.

Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
Prisoners in California are subjected to sexual misconduct in many
different forms. It can involve sexual intercourse or inappropriate sexual touching
between corrections staff24 and prisoners, constant and highly sexualized verbal
degradation of the prisoners, and unwarranted invasions of their privacy.
California has a history of inappropriate sexual contact between male
officers and female prisoners in its women=s prisons. In July 1990 the Orange
County Register ran a series of investigative articles on CIW alleging rape,
corruption, and negligent medical care and documenting retaliation against women
and correctional employees who spoke out about such practices. According to the
Register, Harold Delon Anderson, the son of the former CIW warden, Kathleen
Anderson, was dismissed in October 1987 amid allegations that he had forced ten
incarcerated women to submit to sexual relations with him.25 Internal investigations
24
By use of the term Acorrections staff@ or Aprison employees@ we mean to include not only
corrections officers but all levels of security personnel and nonsecurity personnel. We
attempted to use a particular staff person=s title where available.
25

AAbuse: guard not prosecuted for sexual attacks,@ Orange County Register, July 29, 1990.

California

95

and other documentation obtained by the Register indicated that Anderson forced
some of the women into sexual relations repeatedly, over a period of months or
years. Corrections staff reportedly discovered him on three separate instances in
Acompromising positions@ with prisoners before any disciplinary action was taken.
One female corrections officer who exposed Anderson=s actions was allegedly
threatened and harassed by coworkers.26 At the time the article ran in the Register,
the CDC had treated Anderson=s behavior as a personnel matter and had not referred
the case to the county prosecutor for a criminal investigation.27

26

ASpeaking out: guard says she was terrorized,@ Orange County Register, July 29, 1990.

27

Ibid.

96

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Three years after the Register story, the state Commission on Female
Inmate and Parolee Issues also raised concerns relevant to sexual misconduct in
custody.28 A report issued by the commission in 1995 found that the CDC had no
policy for respecting the privacy rights of incarcerated women and that the only
training the CDC provided for male correctional staff working with incarcerated
women was procedural training on how to conduct appropriate body searches.29
The commission recommended that several changes be instituted, among other
things to protect prisoner privacy rights and train correctional staff about
characteristics specific to incarcerated women. With respect to sexual misconduct
in particular, the commission recommended:
The CDC should continue to aggressively conduct training
regarding inappropriate sexual conduct toward female inmates.
The CDC should maintain its policy of treating as a matter of
utmost seriousness, any inmate grievance alleging a breach of
these rules by its employees, and should respond through
disciplinary channels and, where appropriate, through criminal
sanctions.30
Our own investigation, conducted from April 1994 to November 1996,
indicates that rape, sexual assault and abuse, and criminal sexual contact persist in
California=s women=s prisons. Two women we interviewed alleged that male
corrections officers raped or attempted to rape them. Uma M. told us that she first
experienced a long period of harassment in late 1993 by a male corrections officer,
including being observed by him while in the shower, being Acornered@ by him in
the prison laundry room, and having him hit her on her buttocks or grab her breasts
28

The commission was formed to examine and identify situations in which gender
differences influence a need for different treatment, care and services for male and female
prisoners. Members of the commission were appointed by California state senators and
Assembly members, the governor and the chief justice of the California Supreme Court. The
commission included judges, academics, leaders of organizations working with prisons, the
warden from CCWF and a member of the CDC administrative staff. Commission members
examined family-related issues, substance abuse, sentencing, classification, programming,
community sentencing and management policies.
29

Commission Report, p. 37.

30

Ibid., p. 39.

California

97

as she walked by. On one occasion the guard, Officer G, left her a note under her
pillow with his phone number and address on it. He also once went to her family=s
home and started asking questions about her personal life.
The situation with Officer G escalated until one day he entered Uma M.=s
cell while her cellmates were at breakfast and raped her. She told us:
I felt fear real quick. I knew something was wrong and I didn=t
want to look. [Officer G] pulled the blanket. I sat up and tugged
at the blanket. The other guard had the garbage can in the door
and then the whole blanket came off. . . . He just tore my whole
shirt. That=s when he assaulted me sexually. [Officer H] yelled
at [Officer G] to calm down and left. I was screaming, yelling
and crying. Martha across the hall was banging on her window.
While he was still in the room, I went into the shower. I felt
dirty.31
According to Quintin N., another prisoner we interviewed, a young
Hispanic woman approached her in the fall of 1994 to complain about Officer G.32
Officer G allegedly told the young woman that he would Atake care of her@ and
asked her whether Ashe likes a big chorizo [sausage].@
Rose S. told us that she was sexually assaulted by a corrections officer on
her work assignment.33 According to Rose S., Officer R began pressuring her for
sex and making sexually explicit comments in early 1994 shortly after she arrived at
the prison. Officer R would approach her on Athe yard@ [prison grounds] and ask
her when she was going to lay out because Ahe wanted me to show him some skin.@
Then, when she was on the yard, she said, AHe and two other officers would say
31

Interview, California, July 1994.

32

Interview, California, July 1994.

33

Interview, California, July 1994.

98

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

things like, >Let=s go in and have a threesome.=@ One day Rose S. arrived at her
work assignment early and discovered Officer R alone. When she noticed that the
supervising officer was not there, Officer R replied that he had arranged time for
them to be alone. Rose S. wrote in a statement that Officer R:
got up off [the] couch. [He] went to the front door and locked it.
Came back, turned the lights out and walked up to me, put his
hand on my shoulders, and said, AAre you going to break me off
some of that?@ I told him, ANo, I have only eleven [months] left,
and I don=t need any trouble.@ Then he unzipped his pants pulled
out his penis, started playing with it, then he started [fondling]
my breast. Then he said, AYou are at least going to give me some
head.@ I shoved him and told him no, got up off the desk and
turned the lights on. By this time, there were other workers
outside the door. One of the workers had seen me locked inside.
[Officer R] told me, ASit down in the chair and don=t say
anything,@ because he was not going to let any of them in, so I
did as I was ordered but one of the workers, pushed her way in
and . . . came straight back and saw me sitting in the chair.34
Rose S. told us that she later learned that another woman allegedly was
raped by Officer R a year earlier. Officer R reportedly picked the other woman up
in a prison vehicle and took her to a supply area where he forced her to perform oral
sex on him.
In addition to the cases of rape and attempted rape, we also learned of
cases involving sexual assault of prisoners by corrections staff. Staff of Legal
Services for Prisoners with Children (LSPC), a San Francisco-based organization,
told us that several women at CCWF have been sexually assaulted by a prison
doctor.35 This attorney told us that one prisoner had described being assaulted
34

Statement prepared by Rose S. for a prisoner who assists other prisoners in filing
complaints about officer misconduct.
35

Telephone interview, Ellen Barry, attorney, Legal Services for Prisoners with Children,

California

99

during a medical visit regarding a lump on her neck in August 1994. The doctor
conducted a vaginal examination and, according to the prisoner, made remarks
about how tight she was and how long it had been since she had sexual intercourse.
A medical assistant was present during the exam, but she reportedly moved behind a
screen and did nothing to stop the doctor. The prisoner stated that the doctor then
Aplayed with her@ and touched her in a sexual way. He never examined the lump on
her neck.

California, March 9, 1996.

100

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The same doctor reportedly forced another female prisoner, who had
complained of stomach cramps, to get on all fours on the examining table and then
gave her a prolonged and painful rectal examination.36 In addition, LSPC also has
received complaints about a male nurse on the CCWF prison medical staff. One
woman, who has a disabling medical condition that leaves her physically unable to
resist sexual assault, reported that the male nurse repeatedly entered her cell and at
times, groped and fondled her.37 Other times, he would make sexual and degrading
comments. Such actions made the prisoner vividly recall her experiences of
childhood sexual abuse. In 1996 another prisoner also complained to the prison
officials that this same nurse was sexually assaulting her. She wore a hidden
microphone that led to prison officials catching the nurse attempting to assault her.
The nurse was reportedly removed from the premises immediately and is reportedly
on administrative leave without pay while CDC investigates the situation.38
In 1995 the Post-Conviction Justice Project at the University of Southern
California filed a lawsuit against the Protestant chaplain and his supervisors at the
California Institute for Women.39 The suit alleges that the chaplain sexually
36

Memorandum from Ellen Barry and Cassandra Shaylor, Legal Services for Prisoners with
Children, to Human Rights Watch, March 15, 1996.
37

Ibid.

38

Letter from Cassandra Shaylor, Legal Services for Prisoners with Children, to Human
Rights Watch, June 3, 1996.
39

Patterson v. Deshores, Civil Action File No. EDCV-95-397, First Amended Complaint,,

California

101

assaulted female prisoners, thus violating the eighth amendment=s prohibition
against cruel and unusual punishment. In addition, the suit asserts that women
prisoners were afraid to worship with the chaplain and thus, their freedom of
religion was infringed. Although some prisoners reported the sexual assaults to
prison staff in October 1994, no action was taken against the chaplain until
February 1996. At that time, subsequent to the filing of the lawsuit in October
1995, the chaplain was barred from the prison, but only after he reportedly
assaulted another women.40

October 31, 1995.
40

Telephone interview, Carrie Hempel, professor of law, University of Southern California
Law School, March 6, 1996.

102

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

We found that, at times, sexual relations between officers and prisoners do
not involve the officers= overt use or threat of force, punishment or retaliation.
Instead, officers abuse their authority by offering prisoners otherwise unavailable
goods and services if they submit to sexual demands. Women we interviewed told
us that male corrections officers often use the promise of such favorable treatment
to draw female prisoners into sexual relations. According to Rebecca Jurado, a law
professor and attorney who has worked for many years with female prisoners in
California, the women may see nothing out of the ordinary or abusive about this
exchange. Given that a number of women prisoners= personal histories include
sexual abuse, she told us many women often simply accept such practices as a
condition or element of incarceration.41
Uma M. told us of a pattern on her hall, where one officer would Apop@
[release] certain prisoners= doors while other prisoners were at breakfast. The
prisoners would then meet the officer at his station or another location. She told us:
He would shut the lights down low and pop certain women=s
doors. One girl Jeanne F. used to go to the officer=s room and get
stuff. Or, she would go to the laundry room. Other days, he
would pop another girl.42
Uma M.=s observations were supported by Ximena L., another prisoner, who
reported similar conduct by other officers. She told us that the relationships often
start in a familiar pattern: AThey start calling them into the office or come on very
nice. They give you ice [cubes], pop you out after hours. They give you an extra
phone call.@43 In exchange for such favorable treatment, the prisoners provide sex.
41

Telephone interview, Rebecca Jurado, Western State University, March 21, 1995.

42

Interview, California, July 1994.

43

Interview, California, July 1994.

California

103

According to women whom we interviewed, male officers in California
target Alike radar@ younger female prisoners who are new to the prison system or
unfamiliar with the prison environment. Nancy C. told us that the male officers
often Apick on the first timers, it seems. They mess with newcomers.@ While in the
receiving area44 at CCWF, Nancy C. said she observed one male officer who Awent
through@ three women on her unit over a period of approximately six months.
According to Nancy C., who worked with one of these women, the officer:

44

The receiving area is a separate place in the prison where prisoners are held for a period of
time when they first arrive and before they are transferred to the general population or to
other facilities.

104

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
would have things for her [the other prisoner] to do where she
would have to go to a vacant room or the supply closet. It
happened several times . . . The one girl was a little disoriented.
The police was just being an opportunist and taking advantage of
it.45

She believes the officer was subsequently transferred to a men=s facility.
In some instances, prisoners engage in sexual contact with officers absent
any overt coercion or exchange. Ximena L., who has been serving a long prison
term, told us, AThere are relationships going on. Some are consensual and some
not. There have always been sexual relationships. The majority are not consensual.
They are doing it for drugs and can=t say no. Some are initiated by the girls.@46
Susan R. has been incarcerated for several years. She told us that
beginning in 1990, she became sexually involved with a corrections officer,
primarily out of loneliness. She said:
I have no visits. No outside contacts whatsoever. So when a
male figure shows you a little attention it made me feel special,
worthy of something, someone . . . When he showed me
attention, I jumped at it. I built this up in my mind. When I first
saw him, I was attracted to him. He=s no prize but for some
reason I was attracted. He started joking, making catty remarks .
. . I jumped at it. I wanted the attention.47

45

Telephone interview, California, July 1994.

46

Interview, California, August 1994.

47

Interview, California, July 1994.

California

105

Susan R. said that she often stayed at her work assignment during dinner to be with
him. Later, she said, when he was assigned to her housing unit, she had sexual
relations with him in the laundry room, ice room, storage closet or the showers.
Patty T. told us that she became involved with an officer for many of the
same reasons that motivated Susan R.Cshe was alone, separated from her family,
and seeking care and attention. Patty T. described her situation. AI wasn=t really
close with others in prison. I worked and went to school and kept myself busy. I
was just interested in getting out of prison.@48 She was drawn to an officer who
supervised her work assignment and had a relationship with him that lasted over a
year and a half. According to Patty T., AI totally initiated it. I went after him for a
while. I worked the guard and finally he decided he would deal with me.@ The
relationship ended when she became pregnant by the officer and he received a
transfer to another facility.49
Unfortunately, prisoners who considered themselves to be equal partners in
sexual relations with officers often later found that it was difficult to extricate
themselves from the officers= control. Nancy C., a former prisoner who has served
in both CIW and CCWF, told us that she was sexually involved with a corrections
officer at CIW in the mid-1980s. She said the officer Awas always bringing me
stuff, cologne, money.@ She told us she had sexual intercourse with the corrections
officer on two occasions, but met him several times, in her words, Ato mess around.@
Ultimately, Nancy C. had difficulty getting away from the officer. After she
refused to continue sexual relations, he persisted in his pattern of appearing outside
her door. He reportedly wanted to meet her at the airport upon her release from
prison.
Mistreatment of Prisoners Impregnated by Guards
Over the years, incarcerated women have become pregnant by California=s
corrections employees. These women, or those with knowledge about the
pregnancy or about efforts to terminate the pregnancy, often are harassed and
punished by prison officials. In early 1994 we learned that a prisoner at CIW was
impregnated by a civilian employee and tried to terminate the pregnancy herself.
The prisoner=s attempt to abort came to the attention of prison officials and, in
March 1994, three other women who reportedly had knowledge about the

48

Telephone interview, July 1994.

49

Patty T.=s pregnancy is discussed more fully below.

106

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

pregnancy and abortion attempt were sent to administrative segregation for
extended periods. They were eventually released without charges.
Patty T., mentioned above, became pregnant as a result of a sexual
relationship with a corrections officer in the mid-1980s. After learning she was
pregnant, she indicated to the prison doctor that she wanted an abortion. Prison
officials reportedly used Patty T.=s desire to have an abortion as a tool in their
investigation to press her to reveal the identity of the man who impregnated her.
The authorities waited approximately two months after she came forward before
sending her out for the abortion. During the investigation, Patty T. was repeatedly
questioned by high-ranking officers at the prison. She told us, describing their
questioning:
They=d bring me into the office and ask how, when and
whoCeven to the point of saying things about my son who was
eleven or twelve years old. I had family visits and he could stay
over. They were insinuating this was the only male I had come
into contact with.50
She, however, was not willing to provide the officer=s name to prison officials. She
was placed in administrative segregation for two weeks after the abortion. After a
hearing was held, she was released, and no charges were filed against her.
The following year, prison officials reportedly attempted to use Patty T.=s
hopes of entering the Community Prisoner Mother Infant Care program again to
pressure her to reveal the identity of the officer who had impregnated her. The
Mother Infant Care program is an alternative sentencing program that allows a
limited number of women who are mothers to serve their sentence in a residential
community setting with their children.51 A few days before a court hearing
regarding the program, Patty T. was called into the administration offices and, she
told us, AThey went through it all over again. They said they wouldn=t let me go . . .
until I told them who the father was.@52
Abusive and Degrading Language
50

Telephone interview, July 1994.

51

See 15 California Administrative Code, Section 3410 et seq.

52

Patty T. was eventually admitted to the Mother Infant Care Program.

California

107

We found that some male corrections officers disregard the California
Administrative Code=s provisions on humane treatment, described above, and
employ sexually abusive and obscene language when speaking with or referring to
prisoners. At times, such language is used as a prelude to groping and making
physical advances toward the prisoners. Such language and conduct pervade the
prison environment in California and reinforce among many women prisoners the
belief that there are no regulations on how the corrections staff behaves toward
them.
Patty T. told us that another officer who supervised her work assignment
harassed and badgered her and other prisoners.53 According to Patty T., AThe police
[corrections officer] who used to work there used to harass the women and say real
nasty things. Like if they were ugly, he would tell them.@ The officer was also
assigned to her housing unit for a time, during which he reportedly tried to watch
her undress and made Alittle remarks.@ According to Patty T., women were
permitted to hang towels over the windows in their cell doors when changing to
allow for a certain amount of privacy. One day, the officer repeatedly pulled the
towel down each time she hung it up. She told us, ABecause I would not give him
attention, he did things to upset me.@
Women we interviewed said that female prisoners are often referred to as,
and directly called, bitches, whores, sluts and prostitutes. Corrections officers at
CCWF have reportedly announced over the loudspeaker, AIf you want to get your
dinner, you better get your asses over here@ or, AAll you bitches and whores get into
your rooms.@54 Some male corrections officers perceive the women as prostitutes
and persistently label them as such. Vanessa B. told us that corrections officers said
things to her when she had family visits such as, AHave you visited your tricks?@ or
AOne of your johns?@55
At times, degrading language and sexual innuendo are accompanied by
offensive groping of women=s bodies. Tammy P., a former prisoner, told us she was
groped by an officer while incarcerated at Avenal State Prison (which no longer
holds women).56 Once, she was changing her tampon when she noticed that Officer
53

Telephone interview, California, July 21, 1994.

54

Interview, California, July 1994.

55

Interview, California, July 1994.

56

Interview, California, July 20, 1994. Avenal is a male correctional facility that housed
women on a temporary basis in the early 1990s, before CCWF opened.

108

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

A had followed her into the bathroom and was watching her. As Tammy P. turned
to leave, Officer A reportedly grabbed her vagina and asked, ADo you think I could
have a piece of that?@ Officer A was also the corrections officer assigned to her
work detail, where he propositioned women and commented on their bodies.
According to Tammy P., AHe=d come into the kitchen, at breakfast or lunch, and say
things like. >How big do you like >em?= or, >Is it big enough for you?= He did this all
the time.@ At other times, he would come into the kitchen and grab his genitals, or
tell the women, AYou shouldn=t bend over like that in front of me.@ As Tammy P.
told us, AIt was the way he looked at you, like he was undressing you.@ Other
women on her shift reportedly filed grievances regarding his conduct, but no action
apparently was taken to reprimand Officer A and his conduct continued unabated.
Degrading language is also prevalent at Valley State Prison for Women=s
(VSPW) Special Housing Unit.57 One woman housed at VSPW wrote, ABecause I
am twenty pounds overweight, I am constantly harassed by certain male guards and
called names. . . . I feel we should be treated with the same respect we must show
the guards. We definitely are not shown that.@58 Guards there also specifically
abuse those prisoners identified as lesbians.
Many of the prisoners are deeply disturbed by such degrading, sexual
language and behavior. According to Vanessa B., ANothing that you do that=s
positive and right is taken that way . . . If you look nice, they will try to humiliate
you and make you feel less than human.@ Vanessa B. considers herself a positive
role model for other prisoners and has served on the Warden=s Advisory
Committee59 but finds it difficult to endure the badgering from correctional staff.
57

ATorturas at Chowchilla: The Pelican Bay for Women,@ Pelican Bay Prison Express
(California) Chowchilla, November 1995, p. 3.
58

AWomen Prisoners Speak Out at >Pelican Bay for Women,= Chowchilla, CA,@ Pelican Bay
Prison Express, April 1996, p. 18.
59

The Warden=s Advisory Committee is a group of women prisoners who meets periodically

California

with the prison warden to raise concerns.

109

110

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

At CCWF, women=s sanitary supplies often are rationed or distributed in
ways that seem designed to humiliate women prisoners. Women in some units at
CCWF are provided a limited ration of sanitary napkins, tampons and toilet paper
bimonthly, regardless of need.60 Under the policy, prisoners told us, additional
supplies are not provided either when women run out or if they are locked out of
their cells when they begin menstruating. Some corrections officers use the requests
for sanitary supplies as an opportunity to denigrate women. According to Vanessa
B., AThey will throw it [the sanitary napkin] to you and say, >Here=s your surfboard,=
or they will say, >Use toilet paper.=@ Male corrections officers have also reportedly
told women who request additional supplies to Astuff toilet paper in your pants,@
Aturn it over,@ or Arecycle it.@ Women who requested toilet paper have been told to
Ause your muumuu@61 or Ause your shirt.@ Women in administrative segregation in
VSPW who need extra sanitary napkins must request them, one at a time, from the
mostly male guards. One woman reported that she had to wait until she had
menstrual blood running down her leg before she could get a sanitary napkin.62 In
another reported case, male guards threw a packet of sanitary napkins onto the
floor, in response to a request for sanitary napkins, and the prisoner had to Afish@ for
the packet by using a string, with which she was supposed to catch the packet and
drag it along the floor into her cell. While she tried to get the napkin, the guards
shouted encouragement and bet on whether she would be successful.63
Privacy Violations
As discussed in more detail in the legal background section of this report,
prisoners retain an internationally protected right to privacy except when limitations
on this right are demonstrably required by the nature of the prison environment. In
60

On July 6, 1994, officials issued a memorandum allocating prisoners in Facility AB@ only
seven sanitary napkins, three tampons and two rolls of toilet paper bimonthly. The
allocation is based on supplies provided to the unit and not according to the needs or
requirements of individual women.
61

A muumuu is a state-issued sack dress.

62

ATorturas at Chowchilla . . .@ Pelican Bay Prison Express.

63

Millard Murphy, AInhuman and Degrading Treatment and Punishment of Women
Segregated Prisoners in the California State Prisons at Chowchilla,@ October 23, 1995 (based
on research conducted by Pelican Bay Information Project, a prisoners= rights advocacy
group based in San Francisco, California).

California

111

addition, several U.S. courts, including the Ninth Circuit Court of Appeal, which
has jurisdiction over California, have concluded that prisoners retain some right to
bodily privacy. In particular courts in the Ninth Circuit have recognized that
prisoners have a right not to be strip searched by officers of the opposite sex, except
in cases of emergency, to be protected from routine inappropriate visual
surveillance by officers of the opposite sex and, in case of female prisoners, not to
be subjected to pat-frisks by male officers.
In 1981, in Bowling v. Enomoto, a male prisoner sued the CDC alleging
his right to privacy was violated by the presence of female officers who often saw
him undressing, showering, and using the toilet.64 The court in Bowling directed the
CDC to develop a procedure for protecting prisoner privacy similar to that
employed in New York=s women=s prisons pursuant to Forts v. Ward.65 In a suit
with similar allegations filed a few years later, Grummett v. Rushen,66 the Ninth
Circuit Court of Appeals, while recognizing that the prisoners had a constitutional
right to privacy, rejected the male prisoners= claims because the CDC already had in
place definitions of the duties of female corrections officers designed to minimize
viewing of male prisoners in a state of undress.67 The court also rejected the
prisoners= claim that pat-searches conducted by female officers violated their
constitutional right to privacy under the Fourth Amendment.
64

514 F. Supp. 201 (N.D. Calif. 1981)

65

Ibid., p. 204. Forts v. Ward, 621 F.2d. 1210 (2d Cir. 1980).

66

779 F.2d 491 (9th Cir. 1985)

67

Ibid., pp. 494-495.

112

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

However, the Ninth Circuit Court of Appeals later determined that the use
of male corrections officers to pat-search female prisoners violates the eighth
amendment to the U.S. Constitution. In Jordan v. Gardner,68 women incarcerated
in Washington State challenged the introduction of a policy that would have
permitted male corrections officers to conduct pat-searches on female prisoners.
The Ninth Circuit determined that in light of the women=s history of abuse, patsearches carried out by male officers violated the eighth amendment=s prohibition
on cruel and unusual punishment. Materials sent to us by the CDC indicate patsearches are still governed by a provision in the Operations Manual drafted in 1989,
which does not mandate same-sex pat-searches.69

68

69

986 F.2d 1521 (9th Cir. 1993).

California Department of Corrections, Operations Manual, December 28, 1989, p. 5205013.

California

113

Despite these rulings and clear international standards upholding prisoners=
privacy rights, the 1995 Report of the California Commission on Female Inmates
and Parolee Issues, mentioned at the start of this chapter, found that in California
Ain the case of issues such as female inmate privacy, the CDC has developed no
policy at all.@70 Under California=s administrative code, male corrections officers
may not perform strip searches but are otherwise granted broad authority to enter
prisoners= cells and living areas.71 Corrections officers, in general, may conduct
clothed searches of prisoners and perform unannounced, random inspections,
including of a prisoner=s cell and living area.72 While Aliving area@ is not defined,
our interviews indicate that it is understood to include shower and toilet facilities.
Title 15 also requires that strip searches should be conducted in a professional
manner that avoids embarrassment and indignity to prisoners and that such searches
should be conducted outside the view of others whenever possible.73 Nonetheless,
these rules leave too much to officer discretion with respect to the prisoner=s right to
privacy and create unnecessary opportunities for privacy-related sexual misconduct
to occur.
Strip Searches
As stated above, California law prohibits male officers from conducting
cross-gender strip searches. However, this protection is meaningless if strip
searches are carried out by female officers while in the presence of male colleagues.
Yet, we have received reports that women incarcerated at CCWF have been forced
to strip and be searched in the presence of male corrections employees. Ellen
Barry, of LSPC, told us that she received a letter from a prisoner in February 1995
alleging that women prisoners were required to submit to strip searches while in the
receiving area at CCWF in a location where male corrections officers were working
and while male transportation officers were passing through. The prisoner who
contacted the attorney included her name and identification number and those of
two other women prisoners who were stripped under the same conditions. She also
70

Commission Report, p. 37.

71

15 California Administrative Code, Section 3287(4)(b)(1), ACell, Property and Body
Inspections.@
72

Ibid., Section 3287(4)(c)

73

Ibid.

114

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

attached a petition signed by over fifty women prisoners alleging they were stripped
under similarly invasive conditions. One male guard, in particular, was mentioned
by several women in CCWF as being known for standing in the doorway and
leering during strip searches.74 The prisoner also filed a grievance about the
searches. In response, a sergeant at CCWF conceded that the searches occurred as
described, but stated that male officers and employees were not obligated to alter
their movements to avoid being present while the searches were conducted and,
thus, that no misconduct occurred.

74

Memorandum from Ellen Barry and Cassandra Shaylor, Legal Services for Prisoners with
Children, to Human Rights Watch, March 15, 1996.

California

115

A woman placed in administrative segregation in VSPW wrote a prisoner
advocacy organization that prior to taking a shower she had to strip naked, bend
over at the waist and spread her cheeks, in the full view of all staff, including men
and women.75 In addition, she wrote that guards would make rude comments about
prisoners= bodies during strip searches and at other times.
Inappropriate Visual Surveillance
A number of prisoners also told us they had been subjected to
inappropriate visual surveillance by male officers. At CIW, current and former
prisoners told us they are permitted to cover their cell windows when using the
toilet or changing.76 However, not all corrections officers respect this practice. Our
interviews indicate that some male corrections officers have instructed women to
leave their window clear while others have removed towels or other items used to
cover the window. When Nancy C. was at CIW, she told us, a male corrections
officer used to peek through her window to watch her or her cellmate change. In
other cases, according to Ximena L., male officers enter the women=s cells even
when the window is covered.

75

76

AWomen Prisoners Speak Out. . .,@ Pelican Bay Prison Express.

At CIW, each prisoner shares her cell with another woman. The cell has one toilet and a
wooden door with a narrow window, or wicket.

116

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

At CCWF, the structure of the living units reportedly contributes to
unnecessary viewing by male corrections officers. Prisoners told us that each living
unit, which houses up to eight women, has a wide window that opens to the
corridor.77 Unlike at CIW, prisoners at CCWF told us they may not cover this
window for short intervals while changing. Male officers, who are routinely
stationed on the housing units, wander the corridors at all hours and do not always
announce their presence. A large majority of officers in the CCWF housing units
are men, and female prisoners sometimes go twenty-four hours without seeing a
female officer. A number of women reported that male corrections officers enter
living units while women are dressing or showering, on the pretense of conducting a
search. At CCWF, male guards routinely watch women use the toilets and showers.
Afterwards the guards make degrading remarks about the prisoners= bodies.78
According to Olga G., AYou are never sure when you will get walked in on.@
Vanessa B. told us:
When you take a shower, they=ll come in and talk to you . . .
When they walk down the hall, they can see you depending on
your height through the window. They will stand outside your
window or flash their lights, or they will come in and search the
room while you are in the shower and tell you to come out.79
The shower doors are constructed to cover the body only partially, concealing the
women from her shoulders to knees.
Women in VSPW are accorded virtually no bodily privacy in
administrative segregation. If a female prisoner has to use the bathroom during her
three-hour exercise period, she must use a toilet that is directly below the guard
tower, which usually is staffed by a male guard.80 Often, the woman must request
77

When constructed, these cells were designed to house only four women. As the population
of incarcerated women rose, so has the number of women housed in each unit. At the time
of our visit, prisoners were double-bunked and there were eight women per cell, sharing one
toilet and one shower.
78

Janis Fonseca, AReport of Dec. 1995 Investigation of California Central Women=s Facility
(CCWF) Chowchilla,@ Pelican Bay Prison Express, April 1996, p. 21.
79

Interview, California, July 1994.

80

Murphy, AInhumane and Degrading Treatment . . ..@

California

117

toilet paper from this same guard. In addition, male guards regularly watch women
prisoners shower. The showers are positioned such that all male guards have an
unobstructed view of the women showering. The guards reportedly try to engage
the women in conversation while they are showering, and if they fail, the guards
often will make degrading comments about the women.81 We have also received
reports that female prisoners in VSPW often must receive their medical exams,
including gynecological exams, in the presence of male guards.82

Avenal

81

Ibid.

82

Ibid.

118

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Seven former prisoners sued the CDC for violations of privacy between
December 1988 and March 1991.83 The CDC opened two sections for women at
Avenal, then a men=s prison, on a temporary basis to alleviate overcrowding at
CIW. Avenal was structured as an open dormitory environment with few physical
or privacy barriers. Prior to their arrival, the only structural change was the
installation of opaque screens along the walkways. These screens provided only
limited protectionCthey were approximately three feet high, and were placed off the
ground allowing for visibility from underneath. From certain areas in the facility,
male corrections officers had an unobstructed view into the showers, enabling them
to observe a woman=s naked body from her neck to below her knee. Women=s
cubicles similarly offered limited protection from being viewed while nakedCdoors
were not installed in the housing units of one section, and many of the doors were
removed from housing units in the second section. Women could also be viewed
while using the toilet. One common toilet facility abutted the guards= office,
separated only by a large plate glass window. This gave the officers an
unobstructed view of the women using the facilities. Paper was only irregularly put
on the window to shield the toilets from viewing by the male officers. In another
area, the women=s toilets were visible from the officers= platform.
The overwhelming majority of officers at Avenal were menC
approximately 90 percent. These officers were directly counseled by the program
administrator, one of whom was assigned to each yard, to enter and patrol regularly
the showers, sleeping areas and toilets to check for any Amisconduct.@ The program
administrators rejected, Afor security reasons,@ proposals to have officers announce
their presence prior to entering an area. The women were not only subjected to
constant viewing by male officers, but were also viewed by nonsecurity personnel
and visitors to the prison on tours. On a number of occasions, such persons were
brought through the women=s yards even when the women were undressed or using
the toilets.
Within this environment, women were exposed to constant physical
observation and harassment by male staff. We interviewed two women formerly
83

Many of the descriptions of Avenal herein are based on their complaint, discovery
obtained during the suit, and our own interviews with two of the women.

California

119

held at Avenal. According to Quintin N., at times officers would walk into the
showers or Athey would watch you change your Kotex or go to the bathroom. At
times, they would come and talk to you when you were on the toilet.@84
The privacy panels did little to conceal the women from the male
correctional officers. According to Quintin N., the officers intentionally sat in
certain locations so they could watch the women showering and used to play a
gameCAname those buns@Ctrying to identify a particular woman by looking at her
naked buttocks. She also told us that when women tried to hang a towel to provide
some privacy while dressing, officers would pull it down, smile and remark, AYou
know you can=t do that.@

84

Interview, California, July 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Tammy P. supported Quintin N.=s observations. She told us, AI felt like I
had no privacy, nowhere to go. I felt exposed at all times . . . I almost lost my
mind.@85 The officers, she said, would walk through the sleeping areas at night and
in the morning when women were dressing and undressing.
Conditions at Avenal were further exacerbated by the fact that the CDC
issued extremely revealing nightgowns to the women imprisoned there. The gown,
which we saw, had a low scoop neck, was cut to fit tightly against the body, and was
virtually transparent. It did not reach the knees.
Both women we interviewed also experienced problems with abusive patfrisks by male officers. Tammy P. told us, AThey would use their palms. One guard
would get real close, lean against you when he did the search. They all used their
palms going over the breasts and through the crotch.@86 Quintin N., similarly, told
us she was groped by an officer during a frisk. As she described it, AOfficer E put
his hands on me . . . At first I didn=t believe it and just looked back at him. . . This
kind of stuff went on together with everything.@87

THE SYSTEM==S RESPONSE

85

Interview, California, July 1994.

86

Interview, California, July 1994.

87

Interview, California, July 1994.

California

121

The CDC told us that it investigates every allegation of sexual misconduct
and refers reports of alleged felonies to the local District Attorney=s Office.88
According to the CDC, in 1994-95 it received only ten reports of sexual misconduct
in its facilities, half of which were closed because of insufficient evidence. Of the
remaining five reports, three resulted in firing of the abusive employees. Despite
these welcome disciplinary actions, our investigation suggests that they address only
a fraction of the sexual misconduct occurring in California=s facilities. At present,
the mechanisms for reporting and investigating such abuse are seriously flawed. In
addition, potential complainants perceive that they could face retaliation and thus,
are reluctant to come forward. Until these problems are addressed, it will be
difficult fully to expose and eliminate sexual misconduct in California=s prisons.
Only one case was referred to the local District Attorney.89
Denial of an Effective Remedy
International human rights law obligates national governments to ensure
that when prison abuses occur they can be reported and investigated without the
complainant fearing undue punishment or retaliation. Moreover, in the United
States, prisoners are guaranteed access to the courts to challenge prison conditions
or other prison problems.90
Grievance Procedure
Under California=s administrative code, prisoners may complain about Aany
departmental decision, action, condition or policy perceived by [the prisoner] as
adversely affecting their welfare.@91 These complaints are known as 602s, the
number on the grievance form that a prisoner must file. Both prisoners and
attorneys observed, however, that in practice 602s are generally ineffective in
addressing complaints of sexual misconduct by corrections officers. According to
Professor Jurado, the grievance mechanism functions adequately for routine or

88

Letter from William B. Anderson, chief, Institution Services Unit, California Department
of Corrections, to Human Rights Watch, June 5, 1996.
89

Ibid.

90

For a more detailed discussion of the due process rights accorded prisoners under
international and U.S. law, see the legal background section.
91

15 California Administrative Code, Section 3084.

122

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

clear-cut complaints regarding property or problems with a prisoner=s account, but
not for what she characterized as Ainterpersonal@ issues.92 Ximena L. also told us
that the grievance procedure works well with technical things: AAt the first level,
you usually get some idiotic response. You usually need to get to [the second level]
to get it fixed.@ But, she told us, if the grievance raises a problem with an
institutional policy or sexual harassment, it generally will be denied.

92

Telephone interview, Rebecca Jurado, Western State University, March 21, 1995.

California

123

Our interviews indicate that the grievance procedure is difficult for women
to access. First, prisoners entering the system receive no training on how to use the
procedure and many women do not know how to file a grievance. Some California
prison administrators have inhibited or obstructed efforts by women prisoners to
provide training or instructions to other prisoners through prison law libraries. The
law librarian at one prison, for example, reportedly would not allow Quintin N. to
make copies of the 602 form or of an information sheet that she prepared for the
prisoners on how to file a grievance, despite a provision of Title 15 which states that
Aan inmate, parolee or other person may assist another inmate or parolee with
preparation of an appeal unless the act of providing such assistance would create an
unsafe or unmanageable situation.@93 Second, while Title 15 mandates that appeals
forms be Areadily available,@ this was not the case in at least one California prison
that we visited.
The grievance process further requires corrections officers to participate
willingly in the grievance process and to respond in a responsible and professional
manner to a prisoner=s complaint.94 Officers do not, however, always respect the
procedure. Prisoners we interviewed told us that some corrections officers, when
presented with a 602 form, have simply thrown the grievance out and/or mocked the
prisoner who filed it. According to Susan S.:
[Corrections officers] will tear it up and throw it in the garbage . .
. Or, [they] will say, AGo ahead and 602 me because I know it
won=t go nowhere.@ Most 602s will get thrown in the garbage
before you go away. It=s a joke to them.95

93

15 California Administrative Code, Section 3084.2(2)(d).

94

Ibid., Section 3084.3(c)(4).

95

Interview, California, July 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

California, like Michigan, requires the prisoner to speak with the offending
staff member prior to filing a formal appeal.96 This informal level is waived in
limited circumstances, such as actions that the appeals coordinator determines
cannot be resolved informally and alleged misconduct by a Adepartmental peace
officer.@97 Misconduct and Adepartmental peace officer@ are not defined. Even
though incarcerated women may bypass this informal level, in Professor Jurado=s
experience and in the experience of other attorney advisors, the grievance
eventually filters back to the officer. As a result, women feel threatened or afraid to
lodge grievances because corrections officers ultimately will know that they
complained.98 The U.S. Department of Justice, in reviewing a similar requirement
in the Michigan grievance procedure, stated that Athis requirement has the purpose,
intent or effect of intimidating the inmates and discouraging the filing of
grievances.@99
Even when women have filed grievances, they have often faced official
bias against prisoner testimony. After the assault on Uma M. detailed in the section
on rape and sexual assault above, she told us that she informed a prison investigator
about Officer G=s previous harassment, his visit to her family=s home and his offer to
bring her certain items. An investigation was subsequently initiated into Officer G=s
96

15 California Administrative Code, Section 3084.2(b). Title 15 requires prisoners to file
their grievances within fifteen working days after the alleged incident. Similarly, they have
fifteen working days to appeal an adverse decision on their grievance to a higher level of
review. There is a three-year time limit on appeals alleging staff misconduct. Ibid., Section
3084.6. Staff are required to respond within five days at the informal level, within fifteen
days at the first level of review, and within twenty days at the third level of review. This
informal step means that the prisoner must often physically present the grievance form to the
officer whom she is reporting, a procedure that can be extremely intimidating to women who
are submitting grievances about sexual misconduct. He then responds to her in writing and
returns the form to her. If a prisoner is dissatisfied with the response, she may appeal the
grievance to the Aformal level@ and submit the 602 form, with the officer=s response, to the
institution=s appeals coordinator. A prisoner may not appeal to this formal level unless she
demonstrates her attempt to resolve the grievance informally and provides the corrections
officer=s response to her informal grievance.
97

Ibid, Section 3084.5(a)(3).

98

Telephone interview, Rebecca Jurado, Western State University, March 21, 1995.

99

Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to John
Engler, governor, State of Michigan, March 27, 1995.

California

125

conduct. According to Uma M., the investigator opened her interview by asserting
that she would not believe any charges of sexual misconduct, stating, ADo you know
how many girls say they=ve been sexually harassed? What do you want, to go home
early?@
This bias against prisoners has also manifested itself in prison officials=
selective enforcement of grievance procedures. In one case we investigated, a
sergeant did not respond to a prisoner=s grievance concerning an inappropriate strip
search mentioned above for nearly four weeks, more than three weeks beyond the
statutorily mandated period for his response. The authorities nonetheless accepted
his response. However, when the prisoner subsequently appealed the sergeant=s
response to the first level of review, the CCWF=s appeals coordinator denied the
appeal solely because it was received after the fifteen-day period set forth in Title
15. He never reached the merits of her complaint.100 The appeals coordinator then
denied a second grievance filed by the prisoner regarding the sergeant=s initial delay
in responding to her grievance on the basis that it was Anot an appeal issue.@
Corrections officials, in reviewing prisoner grievances, often use a
prisoner=s prior receipt of disciplinary tickets to deny her grievance or to argue that
she is lying. This occurs even when the officer=s conduct and his issuing the
disciplinary ticket itself are at issue. In one grievance we reviewed, a prisoner
reported an officer who, she alleged, pulled her into the guards= office and
repeatedly called her a Abitch@ and a Afucking bitch.@ According to the prisoner, the
officer then handcuffed her and removed her from the unit. On appeal, CDC
officials determined there was no merit to the prisoner=s claim because the officer
had placed her in administrative segregation following the alleged incident and
because her Afile [was] replete with misconduct reports which depict a serious
pattern of misbehavior.@ In other words, because the officer disciplined the prisoner
at the time of the incident and because she had received disciplinary tickets in the
past, her allegation of wrongdoing was deemed meritless.
Investigations

100

The appeals coordinator=s position on the time limit issue appears to violate the provision,
set forth above, that states that there is a three-year window of time for prisoners to report
staff misconduct.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In general, we found that CDC=s investigative procedures are fairly ad hoc.
Moreover, they often are punitive against the complainant, lack any pretense of
confidentiality, are largely closed to outside monitors, including the complainants=
attorneys, and often expose the prisoners to retaliation and, in some cases,
punishment.
As mentioned in the background section above, international human rights
law obligates the United States to investigate complaints of ill-treatment effectively.
However, California=s Title 15 neither specifies a mechanism for investigating
allegations of staff misconduct nor indicates when an investigation is required.101
101

In September 1994, the California legislature created the position of Inspector General
(IG) at the Youth and Adult Correctional Agency (YACA), which is part of the department
of corrections. Ken O=Brien, a thirty-year veteran of the San Diego Police Department=s
Internal Affairs Division and a former investigator for the State Bar Association, was
appointed to the position by Governor Pete Wilson. The IG has authority to oversee and
monitor existing procedures for the investigation of prison staff misconduct. The IG is not
now empowered to investigate instances of staff misconduct and can do so only if directed
by legislation or by the Secretary of the YACA. In monitoring investigation procedures, the

California

127

Instead, the CDC=s operations manual, which consists of internal guidelines and not
law, governs investigations.102 The operations manual indicates that allegations of
employee misconduct should first be investigated by the Internal Affairs Division of
the CDC as a prerequisite to disciplinary action against an employee. However, the
manual does not identify what triggers an investigation into alleged staff misconduct
or any procedures or time frame for the conduct of such inquiries.103 We found that
investigations are usually conducted at the institutional level by an investigator
based at the prison in question.104
IG is able to interview staff and may receive confidential information from employees. His
findings will be reported to the Secretary but will not be released publicly. There is no
mechanism by which prisoners are able to report staff misconduct to the IG.
102

We requested from the CDC a copy of any policy, procedure or other information on how
investigations are conducted into alleged overfamiliarity or sexual misconduct between
corrections employees and prisoners, and similar information on how a prisoner or officer
should report such allegations. In response, we received several pages from the CDC=s
operations manual.
103

California Department of Corrections, Operations Manual, February 16, 1990, pp. 330301C33030-39.
104

In Georgia, New York and Illinois, investigators appear to be based centrally rather than
at the institution itself. In Michigan, some investigators are also based at the institution.

128

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Lack of Confidentiality
Effective protection of the confidentiality, and hence safety, of
complainants and witnesses is essential to the integrity of any grievance or
investigative process. Absent such a guarantee, the fear of retaliation against
complainants has a chilling effect on those who might report alleged sexual
misconduct. In California, a woman=s identity may initially be protected when
corrections officials question an implicated officer, but her identity is not always
concealed as the investigation progresses or once it concludes. From our
interviews, it appears that some corrections officers under investigation for alleged
sexual misconduct were provided with the name of the prisoner or prisoners during
the course of the investigation. Provisions of the CDC=s operations manual, which
governs employee discipline, in fact provide that employees be given a copy of the
investigation report, including a summary of the witnesses= statements and their full
names, before any disciplinary action may be taken. This procedure is not
problematic where an implicated officer has been suspended and is no longer in
direct contact with a prisoner, but such precaution is not always taken. Thus, the
revelation of the complainant=s identity can expose her to the possibility of
continued abuse.
Confidentiality is also jeopardized by a provision in Title 15 of the
administrative code that encourages corrections officers to review a prisoner=s
central file Afor assistance in better understanding the [prisoner].@105 A prisoner=s
central file contains personal information regarding the prisoner, including her
criminal and personal history, as well as copies of grievances and documents
relating to her role in an investigation. While Title 15 counsels officers that the
information is Aprivate and privileged,@ the access, in and of itself, abrogates any
privacy or privilege the prisoner may have with respect to this information. Title 15
also provides that the contents of a prisoner=s central file Awill not be the subject of
banter between employees or between employees and the [prisoner] to whom it
pertains or with other [prisoners].@106 Our interviews indicate, however, that
corrections officers have disregarded this provision and have exploited their
105

15 California Administrative Code, Section 3402(a).

106

Ibid.

California

129

knowledge of information contained in the central file to harass and badger
prisoners.
Two women we interviewed reported that corrections officers knew things
about previous investigations or grievances that could only be learned through their
central files. This information was then used by the officer to harass the prisoners.
According to Patty T., a correctional officer on her unit made a comment to her and
her roommate about her pregnancy and the abortion she had undergone.107 Quintin
N. told us that she grew suspicious that officers were looking into her files when
one or two began questioning her about her role in the Avenal litigation. She
subsequently requested permission to see her central file and told us that she
discovered that grievances and other information related to the Avenal lawsuit had
tabs placed on them indicating that someone had reviewed her files and particularly
her past complaints.108
In both Rose S.=s and Uma M.=s cases, other corrections officers also
obtained information about the investigation. Rose S. remained at the prison during
the investigation, and her participation became known because she was repeatedly
interviewed and called to meet the prison investigator.109 According to Uma M.,
officers at a second prison were aware of her role in the investigation into Officer G
and made specific reference to Officer G=s suspension.110 Ximena L. made similar
observations to us. She told us that it is Aa very dangerous thing to do@ to make a
report of sexual misconduct against a corrections officer. Prisoners, she said,
lacked someone to Arun to,@ they are Awithout credibility, [without] people who will
107

Interview, California, July 1994.

108

Interview, California, July 1994.

109

Interview, California, July 1994.

110

Interview, California, July 1994.

130

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

help [them] or believe in [them].@ In her experience, AAn awful lot of [women] just
silently endure it . . . [They] keep quiet and serve out their term.@111
Retaliation

111

Interview, California, August 1994.

California

131

The absence of confidentiality, both with respect to the employee when he
holds a contact position over the prisoner and with respect to the prison population
more generally, enhance the risk that complainants will face retaliatory actions
without redress, despite Title 15's clear statement that Ano reprisal shall be taken
against an inmate . . . for filing an appeal.@ Our interviews indicate that women who
have filed grievances and women who participate in investigations are harassed by
corrections staff. According to Quintin N., AMost of the women here are afraid to
file a 602 because they think they=ll get in trouble. Most women here do not know
the procedure and the cops [guards] will take reprisals.@112 Tammy M. resisted a
friend=s suggestion to come forward after Officer A groped her in the bathroom.
A[M]y friend tried to get me to go tell. I wouldn=t do it, out of fear. I envisioned
them putting me in the hole [segregation]. People were thrown in the hole there all
the time, for anything.@113 The officers fuel this fear. Ximena L. told us, AIt is easy
to intimidate those with no education or those with shorter sentences . . . People are
very leery about raising allegations.@114
Women who have assisted prison officials in investigating sexual
misconduct have faced harassment and retaliation. Uma M. told us that after she
alleged sexual misconduct, she was repeatedly harassed by staff as well as prisoners
sympathetic to the staff. Corrections officers, she reported, repeatedly questioned
her about her role in the investigation and called her out of her cell to tell her such
things as, AYou think that was bad, now you=re in my unit. Wait until you see what
we do with you here.@ Everyone, she said, knew she played a role in having Officer
G suspended. The harassment from corrections officers continued even after she
was transferred to a different facility. At the second prison two officers pulled her
from her room, handcuffed her and took her into their office, where they proceeded
to badger her. In an apparent reference to Officer G, they reportedly asked her
whether she was going to get one of their colleagues suspended.115
Rose S. experienced harassment from other officers that she believes
stemmed from the investigation into her allegation of attempted rape. Corrections
officers allegedly searched her cell repeatedly and made snide remarks such as,
112

Interview, California, July 1994.

113

Interview, California, July 1994.

114

Interview, California, August 1994.

115

Interview, California, July 1994.

132

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

AThe best thing is to squash this.@ She told us, AEvery day you hear itC>you rat,=
>you slut= . . . They are harassing me to the point where it=s getting ridiculous.@116
The female prisoner at CCWF, who was allegedly assaulted by a male nurse, has
also experienced harassment from other guards and her fellow prisoners. The
harassment reportedly stemmed from the fact that she reported the guard=s behavior
even though they were both African American.117

116

Interview, California, July 1994.

117
Telephone interview, Cassandra Shaylor, Legal Services for Prisoners with Children,
April 9, 1996.

California

133

Rebecca Jurado corroborated the prisoners= accounts of reprisal. She told
us that the environment within the women=s prisons serves as a strong deterrent to
raising complaints and filing grievances, particularly about issues such as sexual
misconduct. Since both corrections officers and prisoners appear to profit from the
most pervasive form of this abuseCthe exchange of sexual favors for preferential
treatment, money or goodsCthey oppose anyone who challenges the status quo.
This, Jurado told us, gives rise to a climate hostile to complaints of sexual
misconduct. Prisoners who tell get a Asnitch jacket@ from officers and other
prisonersCthey are labeled and thereby isolated from the prison community.118
Abuse of Administrative Segregation
Efforts by California to remedy the lack of appropriate confidentiality in its
grievance and investigatory procedures and to ensure that complainants will not be
retaliated against will be of little value unless they are accompanied by the
assurance that the state will not punish prisoners if they speak out. At present, no
such assurance exists and, in fact, women who complain of sexual misconduct are
often punished. Of particular concern to us is the placement of prisoners who report
sexual misconduct in administrative segregation while an investigation is pending.
In VSPW, according to Millard Murphy, a law professor at the University of
California, Davis, many of the women in administrative segregation are there
because they resisted pat searches that they perceived as sexually degrading.119

118

Telephone interview, Rebecca Jurado, Western State University, March 21, 1995.

119
Telephone interview, Millard Murphy, professor of law, University of California, Davis,
March 18, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

We also are concerned about reports of women who have complained
about the medical staff at CCWF and were then placed in administrative
segregation.120 Title 15 of California=s administrative code contains a vague
provision which corrections officials exploit to segregate prisoners even when they
have done no wrong. The provision states that a prisoner may be placed in
administrative segregation if her Apresence [in the general population] presents an
immediate threat to the safety of the inmate or others, endangers institution security
or jeopardizes the integrity of an investigation of an alleged serious misconduct or
criminal activity.@121 Title 15 also provides that the prisoner may be held in
administrative segregation for ten days without a hearing, and the prisoner receives
a review of the segregation order every thirty days thereafter. There is no outside
limit on the time spent in segregation.122
While administrative segregation is clearly intended as a legitimate means
to isolate prisoners who pose a risk to others or who have violated the rules, this
provision also has been used to isolate rule-abiding prisoners who have reported
abuse by corrections employees. Moreover, Title 15 requires that the conditions of
administrative segregation Aapproximate@ those of the general population.
However, we found that women housed in administrative segregation pending an
investigation have been kept there for extensive periods of time and denied access
to the telephone and visits with their attorneys. They were permitted to leave their
rooms for shorter periods than those in general population and reported receiving
inadequate and inedible food. Prisoners held in administrative segregation at CIW
reported that there were rats and bugs in the cells and that the food arrived cold,
with bird droppings in it.123
Carrie Hempel, an attorney and law professor, told us that one of her
clients was kept in administrative segregation for over three months.124 The

120
Memorandum from Ellen Barry and Cassandra Shaylor, Legal Services for Prisoners with
Children, to Human Rights Watch, March 15, 1996.
121

15 California Administrative Code, Section 3335(a).

122

Ibid., Section 3335 (c).

123

Interviews, California, July 1994.

124
Interview, Carrie Hempel, University of Southern California Law School, California, July
25, 1994.

California

135

prisoner was sent to administrative segregation after another prisoner, who was
impregnated by a staff member, attempted to self-administer an abortion. Hempel=s
client was one of three prisoners placed in administrative segregation at the prison
for allegedly having knowledge of the incident, while prison officials purportedly
investigated. While in administrative segregation, the prisoner was not permitted to
telephone an attorney. In addition, upon the prisoner=s placement in administrative
segregation, her personal property was confiscated and her space within the general
population reassigned. At the time we spoke with Hempel, prison officials had
returned only certain items to the prisoner and she was experiencing difficulties
obtaining the rest. No charges were ever filed against Hempel=s client, or the other
two women, who both spent more than thirty days in segregation. The male staff
member was reportedly suspended.
Uma M., who reported having been raped by an officer, was repeatedly
placed in administrative segregation for long periods of time throughout the first
half of 1994. According to Uma M., after she came forward, she was transferred to
a second prison while officials at the first prison conducted an investigation. At this
second prison, she was initially placed in the general population and then moved by
an assistant warden to administrative segregation, where she was housed for over a
month. She told us prison officials denied her privileges of the general population
even though she was sent to administrative segregation Afor the security of the
institution@ and not on a disciplinary offense. Uma M. was subsequently transferred
a second time and once again placed in administrative segregation for nearly six
weeks for the Asecurity of the institution,@ again due to her role in the investigation
at the first facility.125
This punitive use of administrative segregation during investigations
strongly deters prisoners from bringing allegations of misconduct by correctional
officers. Prisoners believe that if they come forward, they will be placed in
segregation while the institution decides how to respond to the complaint.
According to Ximena L., APeople can=t really come forward. If it=s an allegation of
substantial wrongdoing by an officer against a prisoner, you can count on going to
jail [administrative segregation].@
Lack of Accountability to Prisoners and External Monitors
Improvements in California=s response to prisoner complaints of sexual
misconduct would be that much more likely, and effective, if they were adopted in
cooperation with external, independent monitors, including prisoners= attorneys. At
125

Interview, California, July 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

present, however, such external advocates have inadequate access to prison
facilities and to prisoners, and are consulted infrequently, if at all, with respect to
these issues. Moreover, significant barriers exist to prisoners= communication with
those outside the system. Prisoners are permitted only one collect telephone call
every two weeks unless they obtain special privileges through their work details or
through the willingness of particular staff. Legal visits are also restricted to certain
days and times, and legal calls are difficult to arrange.126 When we contacted one
prison to obtain information about the procedure for arranging legal visits, we were
given the procedure but informed that we would have to give additional notice if we
were with the American Civil Liberties Union (ACLU) and looking into medical
care issues.

126

Fax from Ellen Barry, Legal Services for Prisoners with Children, to Human Rights
Watch, March 15, 1996.

California

137

California enacted legislation in August 1994 to restrict prisoners= rights
and their access to those outside the prisons even further. Under Title 15, a
prisoner=s visits may only be restricted Aas is necessary for the reasonable security of
the institution and safety of persons.@127 The legislation amended Section 2601 of
the California Penal Code to grant prison officials broader authority to limit visits,
allowing the denial of visitation if they determine that this would serve a Alegitimate
penological interest.@128 The provision appears to permit prison officials the same,
broad discretion in denying legal as well as family visits. Although the language
may be unconstitutional (plans to challenge it are underway), prior to a court ruling
it could lead to severe limitations on the rights of prisoners to access the court.
Prisoners housed in administrative segregation are further limited in their
ability to contact their attorneys. As mentioned above, according to Carrie Hempel,
one of her clients was denied telephone calls completely after she was sent to
administrative segregation and was forced to contact Hempel in writing. This
delayed Hempel=s efforts to pursue her client=s case with prison officials. Hempel
experienced even more difficulties when she attempted to visit her client. She told
us that, contrary to Title 15, prison officials initially would allow her to see the
prisoner only in a noncontact, nonconfidential setting.129 Prison officials eventually
granted the prisoner a confidential, noncontact visit only after she persisted and
waited approximately two and one-half hours.
According to Hempel, who directs a legal clinic at the University of
Southern California that provides legal representation to women at CIW, officials at
the prison have not been open to meeting with clinic representatives. In contrast,

127

15 California Administrative Code, Section 3107 (b).

128

Senate Bill 1260, Section 2601.

129

Senate Bill 1260, Section 2601.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

prison officials at the Terminal Island men=s prison had been receptive to the legal
clinic and they were able to establish a good working relationship.130

130

Telephone interview, Carrie Hempel, University of Southern California Law School,
March 6, 1996.

California

139

California also has taken steps to reduce journalists= access to prisoners by
prohibiting reporters from interviewing prisoners in the prison.131 According to J.P.
Tremblay, assistant secretary of the Youth and Adult Correctional Agency (an
executive body), as of December 1995 the ban was a temporary measure to
discourage the media glamorization of certain prisoners. The ban would be in force
until new guidelines could be drafted that distinguished between Alegitimate news
and entertainment news.@132 However, when justifying the prohibition on reporters,
Tremblay cited Vaughn Dortch, whose media exposure had been limited to
recounting his experience of being scalded during a forced bath while in prison.
This suggests that part of the ban=s rationale was to prevent prisoners from
publicizing certain prison conditions. On March 29, 1996, the CDC further
restricted prisoners= ability to correspond confidentially with reporters by filing
proposed revisions to prison regulations that would make the media ban permanent
and allow the CDC to read prisoners= letters to reporters.133 Tremblay stated the

131

Michael Taylor, AState Inmates Barred From Media Interviews,@ San Francisco
Chronicle, December 28, 1995.
132

133

Ibid.

A reporter may still interview a prisoner through getting on his official visiting list, which
could take weeks and restricts reporters to the same visiting hours and conditions as routine
visitors. Michael Taylor, APrisoners= Missives to Media Restricted,@ San Francisco
Chronicle, March 30, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

latter revision was designed to prevent prisoners from requesting help for
escapes.134 Prisoners may still call reporters on the phone, but such conversations
are monitored randomly.
Impunity
One of the most troubling aspects of the CDC=s failure to respond
adequately to sexual misconduct is its consistent unwillingness adequately to
discipline or punish correctional officers who engage in such abuse. As noted
above, California does have a law criminalizing actual sexual misconduct in
custody. However, according to the CDC=s own figures, this only rarely results in
referral for prosecution. Of the total of ten reported complaints of sexual
misconduct in 1994-95, only one case was referred to the district attorney.135

134

135

Ibid.

Letter from William B. Anderson, chief, Institutional Services Unit, California
Department of Corrections, to Human Rights Watch, June 5, 1996.

California

141

Testimony we received from prisoners indicates that, in some cases,
corrections officers and other employees allegedly involved in sexual relations with
prisoners are suspended or moved to noncontact positions pending investigation.136
Quintin N. provided us with the names of seven male officersCincluding Officers G
and RCwho were reportedly suspended from the prison where she was incarcerated
amid, she believed, allegations of sexual misconduct. However, according to the
testimony we received, although the officers are temporarily suspended, they often
return to the facility after an investigation ends, or are transferred to another prison.
Investigators reportedly told Rose S. that if she was transferred to another facility,
Officer R would return to the prison.
We learned, moreover, that the CDC does not always respond promptly
with disciplinary action. As mentioned above, in 1993 seven women formerly
incarcerated at Avenal sued several corrections officers and the CDC for alleged
violations of their constitutional rights. Some of these officers remained at Avenal
after the women left; others, including Officer G, were transferred to CCWF. Once
at CCWF, Officer G was suspended after he was reportedly discovered bringing
women=s lingerie and other contraband into the facility. Shortly after this incident,
CDC settled the Avenal suit. However, an attorney representing the women knew
of no disciplinary action taken against any of the corrections officers named in the
suit. He told us the CDC Atook pains not to admit any liability as part of the
settlement.@137 In addition, to our knowledge, the doctor at CCWF, who reportedly
sexually assaulted several women prisoners, continues to practice there.

RECOMMENDATIONS
I. Prohibiting Sex in Custody
136

Memorandum from Ellen Barry and Cassandra Shaylor, Legal Services for Prisoners with
Children, to Human Rights Watch, March 15, 1996.
137

Telephone interview, Rick Seltzer, attorney, Seltzer & Cody, Oakland, California,
September 15, 1994.

142
A.

B.

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
California should enforce its law criminalizing all instances of sexual
intercourse between prison staff and prisoners by investigating all reports
of such incidents and prosecuting responsible prison staff to the full extent
of the law.
The California Legislature also should amend Title 15 of the
Administrative Code to explicitly ban sexual intercourse, sexual touching
or any other form of sexual contact between corrections employees and
prisoners and to require that prisoners are free from torture or cruel,
inhuman, or degrading treatment as a matter of compliance with U.S.
obligations under international law. Such contact not only constitutes a
violation of the corrections official=s professional duty; it is also a criminal
offense and should be prosecuted as a felony.

C.

The CDC should remove all administrative provisions that allow for the
punishment of prisoners who engage in sexual intercourse, sexual contact
or any other form of sexual conduct with corrections staff, and cease
punishing prisoners found to have engaged in such behavior. Punishment
of prisoners has the effect of deterring their reporting of sexual abuse by
corrections staff.

D.

The CDC should cease using administrative segregation as de facto
punishment when prisoners report sexual misconduct by guards.

II.
A.

Safeguarding Prisoners Impregnated by Guards
The CDC should stop punishing or harassing in any way prisoners who are
impregnated by officers.
The CDC should also refrain from
administratively segregating pregnant prisoners, unless they expressly
request it. Administrative segregation should provide for the provision of
adequate medical and hygienic requirements necessary for a safe
pregnancy.

B.

The CDC should ensure that female prisoners impregnated by corrections
staff are not pressured in any way to undergo an abortion. Prisoners also
should receive neutral counseling on the options available to them.

C.

The CDC should ensure that pregnant women receive timely and adequate
medical care, and that medical treatment recommended by physicians is
provided as prescribed.

California
D.

143

Medical care should include psychiatric counseling for prisoners who are
impregnated as a consequence of rape or sexual abuse.

III.

Prohibiting Abusive and Degrading Language
The CDC should enforce provisions of Title 15 that mandate humane
treatment and prohibit derogatory language. Corrections staff must be made aware,
through enforcement, that they are obligated to comply with such provisions or be
subjected to disciplinary sanctions.
IV.
Protecting Privacy: The Need for a Policy
A.
The CDC should institute a policy to protect the privacy of women
prisoners consistent with several federal court decisions recognizing that
prisoners have a constitutionally protected right to privacy. Corrections
employees should be fully trained in this policy, and it should be enforced
strictly. Such a policy should include, among other things:
1.
a requirement that male officers announce their presence before
entering a women=s housing unit, toilet or shower area;
2.
permission for prisoners to cover their cell windows for limited
intervals while undressing or using the toilets in their cells; and
3.
a rule that only female officers should be present during
gynecological examinations.
B.

Consistent with Title 15, Section 3287, the CDC should cease Aunclothed
body searches@ of women prisoners either by or in the presence of male
employees, or under circumstances where a male employee may be in a
position to observe the prisoner while she is undressed. Strip searches
should be administered in a location that limits access by other prisoners
or employees.

C.

The CDC should use female officers to pat-search female prisoners
whenever possible. All officers should be trained in the appropriate
conduct of pat frisks and in the disciplinary sanctions associated with
improperly performed searches. Women prisoners who either pull away
during offensive pat-searches or request that the search be conducted by a
female officer should not be subjected automatically to disciplinary action.

V.

Ensuring an Effective Remedy
Grievances
In cases of alleged sexual misconduct by corrections employees, prisoners
should be authorized to bypass the informal level of review and file their

A.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
complaints directly with the prison superintendent or investigator. The
CDC should amend Title 15 to encourage the use of an informal stage
rather than to require such a stage.

B.

The CDC should also introduce into Title 15 protections that require
prompt and impartial investigations into complaints of sexual misconduct
by corrections employees. The grievance procedure should, among other
things, protect the confidentiality of the complainant and witnesses during
the time that the officer is potentially in contact with them, ensure that
prisoner testimony is give due weight, and prohibit the implicated officer
from conducting the investigation.

C.

The CDC should make grievance forms readily available in the prison
library or some other neutral place.

D.

The CDC should enforce provisions of Title 15 that permit prisoners to
assist each other in the preparation of grievances.

A.

B.

Investigations
The CDC should promulgate a written, public procedure for conducting
investigations into sexual misconduct. The investigative procedure
should, at a minimum:
1.
specify the circumstances necessary to initiate an investigation;
2.
provide for a special investigator trained to handle such issues,
with the necessary human and material resources to do so;
3.
set forth a clear structure and time frame for conducting
investigations;
4.
protect as much as possible the anonymity of the complainant;
5.
guard complainants and witnesses from retaliation and
harassment; and
6.
ensure accountability to outside monitors. The complainant=s
legal counsel, upon request, should be provided a written record
of the investigation, including all statements made by the
complainants and witnesses.
The CDC should integrate the investigative procedure into its operations
manual and make it available as a public document.

California

145

C.

The CDC should require all corrections employees to report promptly any
allegations, including rumors, of sexual misconduct or other overfamiliar
conduct to the prison warden. Failure to do so should be a punishable
offense.

D.

The CDC should not, under any circumstances, assign implicated officers
to investigate allegations of their own misconduct. Officers alleged to
have committed rape, sexual assault or criminal sexual contact should be
assigned to noncontact positions or suspended until the circumstances are
clarified and the investigation completed.

E.

The CDC should refer promptly all allegations of rape, sexual assault and
other alleged criminal conduct to the state police for criminal
investigation. When a referral is made to the state police, the CDC should
continue, not cease, its own internal investigation into possible employee
misconduct and proceed with disciplinary action when appropriate.

VI.
A.

Preventing Retaliation Against Complainants
Investigators should not recommend a disciplinary report, and wardens
should not impose one, as punishment for a complaint of sexual abuse
found to be unsubstantiated, unless the complaint is manifestly frivolous or
made in bad faith.

B.

The CDC should ensure, as much as possible, the confidentiality of
allegations of sexual misconduct by prison staff and the anonymity of both
complainant and witnesses; their names should not be given to the accused
officer while he or she remains in a contact position with the complainant
or is assigned to the facility where the complainant resides. The CDC
should also prevent the complainant=s name from being revealed generally
within the facility.

C.

The California Legislature should review Title 15, Section 3402, of the
administrative code and amend it further to restrict access to files not
already protected and to ensure that better protections for the
confidentiality of records are provided. We believe that in order to be
prepared to work with women prisoners, corrections investigators should
receive increased staff training and supervision, rather than unfettered
access to prisoner files.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

D.

In accordance with its operations manual, the CDC should suspend (place
on administrative leave) any employee accused of sexual misconduct,
including Aunacceptable familiarity,@ with a prisoner, if such misconduct
once proven would result in dismissal.

E.

The CDC should investigate reports of retribution promptly and
vigorously and should discipline transgressing employees appropriately.

VII.

Curtailing the Use of Administrative Segregation
The CDC should authorize the use of administrative segregation during an
investigation only at the prisoner=s explicit request. Since a prisoner placed in
administrative segregation for her own protection has not committed a disciplinary
offense, she should retain the rights of the general population (e.g., telephone calls,
visits, access to recreation, etc.). She should be returned to the general population
when she requests to be. The CDC should train employees assigned to segregated
housing units regarding such provisions.
VIII.
A.

Ensuring Discipline
The CDC should create a clear policy on disciplinary action against
abusive corrections employees. This policy should state explicitly that an
employee found to have engaged in sexual relations or sexual contact with
prisoners will be dismissed. Transfer of such employees to other positions
or facilities does not constitute appropriate punishment.

B.

The CDC should also discipline officers who have violated Title 15
provisions mandating the humane treatment of prisoners.

C.

The CDC should publish, at least quarterly, a report on disciplinary
actions taken against corrections employees responsible for misconduct or
abuse. The reports should omit the names of prisoners and, if necessary,
of employees. But they should include dates, locations, and other relevant
details about the reported incidents and the types of punishment applied.

IX.
A.

Hiring and Training Corrections Employees
The CDC should improve its screening procedures for applicants for
corrections positions. Background checks should be completed before
new employees are sent into correctional facilities. In no case should the
CDC rehire an employee who has been convicted of an offense related to

California

147

sexual misconduct in custody or who resigned in order to avoid such
investigation.
B.

The CDC should, as soon as possible, implement comprehensive and
mandatory training on issues specific to incarcerated women for all current
and future corrections employees assigned to women=s prisons. This
training should include, among other things:
1.
a general discussion or profile of female prisoners and their
potential vulnerability to sexual misconduct;
2.
CDC policies on privacy and the prohibition on sexual relations,
degrading language, and other sexually oriented or degrading
behavior toward incarcerated women and the disciplinary or
criminal sanctions associated with this behavior; and
3.
appropriate methods for conducting pat-searches, strip searches,
and searches of women=s cells. The CDC should collaborate with
local nongovernmental organizations experienced in working on
issues affecting incarcerated women, including rape and sexual
assault.

X.
A.

Educating Prisoners
The CDC should advise incarcerated women, as part of their orientation to
the corrections system, as well as prisoners already serving their sentences,
of the following:
1.
Corrections officers are strictly prohibited from having any form
of sexual contact with prisoners. The orientation should also
include a thorough review of departmental process regarding
privacy and humane treatment; the procedures for reporting and
investigating sexual misconduct; and the departmental or
criminal law sanctions associated with it.
2.
Grievances relating to sexual misconduct may be filed directly
and confidentially with the prison investigator. All grievances
should be acknowledged and resolved as soon as possible.
Prisoners should be informed about the issues that may be dealt
with through the grievance procedure, with a particular emphasis
on instances of sexual misconduct; the location of grievance
forms; any specific procedures for reporting sexual misconduct;
the recourse available when corrections officers fail to respond;
and the potential to resolve complaints through the internal

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

3.

B.

investigation procedure and the independent review board when
one is established.
The CDC should also acquaint prisoners with their rights under
international human rights treaties ratified by the U.S. as well as
under U.S. constitutional law.

The above information should be included in the prisoner handbook.

XI.

Allocating Supplies
The CDC should ensure that incarcerated women, including those in
administrative segregation, receive sufficient and appropriate supplies, especially
sanitary napkins and toilet paper. These items should be available in a neutral
location.
XII.
A.

Ensuring Accountability to Outside Monitors
The CDC should provide timely and written information about an
investigation to the complainant and the people she designates, such as her
attorney and her family, upon their request.

B.

The California Legislature should create a fully empowered and
independent review board to investigate, among other things, complaints
of sexual misconduct. The review board should have the authority to turn
over evidence of possible criminal wrongdoing to prosecutorial
authorities. The board should also be able to recommend remedial action
to stop abuses or other problems during an investigation. The review
board also should
1.
develop a system whereby the records of any corrections
employee who has been the subject of repeated sexual
misconduct complaints are reviewed by the appropriate
authorities; and
2.
further provide a toll-free telephone number that prisoners can
use to contact investigators or to file anonymous complaints of
misconduct, including retaliation against complainants.

IV. THE DISTRICT OF COLUMBIA

Sexual abuse and degrading treatment have been persistent problems for
women incarcerated in the District of Columbia. In October 1993 women in
Washington, D.C. prisons filed suit in district court against the District of Columbia
Department of Corrections (DCDC) alleging sexual misconduct by guards, along
with other violations of their constitutional rights. On December 14, 1994, the
district court found that the rape, sexual assault and degrading language in the
DCDC violated the eighth amendment=s prohibition against cruel and unusual
punishment.1 The district court also found that the DCDC had not made adequate
efforts to prevent and punish such sexual misconduct. The case was overturned by
D.C. Circuit Court in August 1996 on other issues.2
In light of the litigation, we were unable to conduct personal interviews
with women incarcerated in the District of Columbia.3 Our discussion of sexual
misconduct in Washington, D.C. is, therefore, based on our observations at trial,

1

Women Prisoners of the District of Columbia Department of Corrections v. District of
Columbia, 877 F. Supp. 634 (D.D.C. 1994). Hereafter Women Prisoners.
2

As of October 1996, attorneys for the women prisoners were petitioning the D.C. Circuit
Court for a rehearing by all judges on the circuit.
3

Under this litigation, the women plaintiffs are covered by a protective order that conceals
their identities and attorneys on both sides of the litigation are barred from revealing the
women=s names or using their testimony for purposes outside the scope of the litigation.
Interview, Brenda Smith, National Women=s Law Center, Washington, D.C., February 27,
1995.

149

press accounts, public documents relating to the litigation, the judge=s decision and
order in the case, and interviews with attorneys working with prisoners. Because
the decision and court order arising from this class action offer an important
example for providing redress for custodial sexual abuse, we include the case in this
report even though Human Rights Watch did not conduct firsthand interviews in the
D.C. prisons for women.

CONTEXT
The overwhelmingly African AmericanC96 percentCfemale prison
population in the District of Columbia is growing at an enormous rate. Most of the
growth is fueled by mandatory sentencing laws for drug-related crimes; over 78
percent of female prisoners in D.C. are incarcerated for nonviolent offenses, and
over 58 percent were sentenced for drug-related crimes.4 In addition, 80 percent of
women incarcerated in the district have children and two-thirds have legal custody.5
These women are primarily guarded by male officers. As of 1994, in each facility
that houses women, the majority of the prison staff was male.6 However, the DCDC
4

National Women=s Law Center, AWomen in Prison Project,@ March 1995.

5

Ibid.

6

DCDC, ACumulative Staff Demographic Breakdown (by Institution),@ March 24, 1994.

150

The District of Columbia

151

houses female prisoners in the same facilities as male prisoners, therefore it is
difficult to establish the gender breakdowns for the female housing areas.
State Legal and Regulatory Framework
When women prisoners in Washington, D.C. filed suit in 1993, sexual
intercourse and sexual contact with prisoners were not prohibited under Washington
D.C.=s criminal law beyond the general prohibition against rape and sexual assault.
In December 1994, subsequent to the suit, the D.C. City Council modified its rape
law (defined as Asexual abuse@ in D.C. law) to make both sexual intercourse and
sexual contact with a person in the custody of the District of Columbia explicitly
felony offenses. Under the amended statute, a person commits Afirst degree sexual
abuse of a ward@ if he or she Aengages in a sexual act with another person or causes
another person to engage in or submit to a sexual act when that other person . . . is
in official custody.@7 This felony is punishable by up to ten years in prison and a
fine not to exceed $100,000. A person commits Asecond degree sexual abuse of a
ward@ if he or she Aengages in sexual contact with another person or causes another
person to engage in or submit to a sexual contact when that other person . . . is in
official custody.@8 This charge carries a penalty of up to five years in prison and a
fine not to exceed $50,000. Consent of the prisoner is not a defense to either
provision. The law went into effect on May 23, 1995.
National and International Law Protections
As discussed in the legal background chapter of this report, sexual
misconduct is clearly prohibited under both U.S. constitutional law and
international and international treaty and customary law that is binding on the U.S.
federal government as well as its constituent states.9 The eighth amendment to the
Constitution, which bars cruel and unusual punishment, has been interpreted by U.S.
courts to protect prisoners against rape and sexual assault. This constitutional
shield is augmented by the Fourth Amendment=s guarantee of the right to privacy
and personal integrity, which, in a series of lower court cases, has been interpreted
7

D.C. Code, 22-4113(1). Emphasis added.

8

D.C. Code, 22-4114(1). Emphasis added.

9

For a detailed discussion of United States obligations under U.S. constitutional law and
international law pertaining to the treatment of prisoners, see the legal background chapter of
this report.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

to prohibit male guards from inappropriately viewing or strip searching female
prisoners or conducting intrusive pat-frisks on female prisoners.
Constitutional protections for prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark victories through
private litigation, particularly suits litigated by prisoners= rights groups such as the
National Prison Project of the American Civil Liberties Union. However, if
stringent intent requirements are met, the DOJ may criminally prosecute abusive
prison officials under federal civil rights provisions. In addition, the DOJ has the
statutory right to investigate and institute civil actions under the Civil Rights of
Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages
in a pattern or practice of subjecting prisoners to Aegregious or flagrant conditions@
in violation of the Constitution.
In addition to constitutional protections, prisoners= rights are protected
under international human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant on Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The
ICCPR guarantees prisoners= rights to privacy, except when limitations on this right
are demonstrably necessary to maintain prison security. Both treaties bar torture
and cruel, inhuman or degrading treatment or punishment, which authoritative
international bodies have interpreted as including sexual abuse. To constitute
torture, an act must cause severe physical or mental suffering and must be
committed for a purpose such as obtaining information from a victim, punishing her
or intimidating or coercing her or for any reason based on discrimination of any
kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a
lesser degree of suffering that need not be committed for a particular purpose.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,

The District of Columbia

153

that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment.10
Legal Action to Expose and Remedy Abuses

10

For a detailed discussion of the prohibition against torture and other cruel, inhuman or
degrading treatment or punishment under international law and its applicability to custodial
sexual misconduct, see the legal background chapter of this report.

154

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

As stated above, in 1993 women prisoners in the District of Columbia sued
the DCDC. Their complaint asserted that the DCDC failed to protect them from
rape, sexual assault and sexual harassment by corrections officers, provided them
with inadequate medical care, subjected them to poor conditions of confinement,
and offered them educational, work, religious and recreational programs inferior to
those provided to male prisoners. Brenda Smith of the National Women=s Law
Center (NWLC), an attorney on that lawsuit, told Human Rights Watch that through
her work providing legal services and programming to incarcerated women since
1990, she had received reports of sexual assaults and pregnancies within the prisons
and assisted several women on an individual basis. However, it was not until the
lawsuit was filed that the magnitude and pattern of the abuses were exposed. She
told us, AIt is really like this dirty little secret that everyone in corrections knows
about and doesn=t want to talk about. It is a huge problem.@11 According to Smith,
attorney on the lawsuit, over ninety women came forward and many, although not
all of them, complained of sexual misconduct by prison staff.12 All of these women
were incarcerated in one of three facilities operated by the DCDC: D.C. Central
Facility (Jail), the D.C. Correctional Treatment Facility (CTF), and the Lorton
Minimum Security Annex (Annex).
A three-week trial was held in June 1994, before June Green, a senior
district court judge for the District of Columbia. In her December 1994 ruling,
Judge Green found a general acceptance within the DCDC of sexual relationships
between staff and prisoners that gave rise to a Asexualized environment.@13 As to the
legal claim, she concluded that there was a pattern of sexual harassment of
incarcerated women by male corrections staff that violated the eighth amendment=s
prohibition against cruel and unusual punishments.14
Subsequent to her findings, Judge Green issued an extensive order
directing the DCDC to remedy constitutional violations within its corrections
11

Interview, Brenda Smith, senior counsel, National Women=s Law Center, Washington,
D.C., February 27, 1995.
12

To protect the women from retaliation or harassment, women who were deposed or who
testified in the class action as witnesses were identified as Jane Does. Smith said that the
Jane Does were first numbered 1 to 13, then with letters of the alphabet, then doubled and
tripled letters of the alphabet, such as Jane Doe AA and Jane Doe AAA.
13

Women Prisoners, p. 639.

14

Ibid., p. 667.

The District of Columbia

155

system. Her order addressed a range of problems that contributed to the sexual
abuse and degrading treatment of incarcerated women, including: the absence of a
clear prohibition on sexual activity and sexualized language, the failure to report
and investigate allegations of such misconduct, and the lack of training for
corrections staff and for female prisoners.15

15

Women Prisoners v. District of Columbia, Civil Action File No. 93-2052 (JLG), Order for
Declaratory and Declarative Relief, December 13, 1994.

156

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Within the order, the judge appointed an independent special monitor16 to
receive and investigate complaints of sexual misconduct at the three facilities
housing women and to report her findings to the warden at each institution. The
special monitor was also instructed to investigate any outstanding allegations of
sexual misconduct and to oversee the DCDC=s resolution of sexual misconduct
complaints. The special monitor, Grace Lopes, who has a three-person staff, began
her duties on December 1, 1995. While the special monitor has improved the
complaints process, she is responsible for monitoring several other court orders in
D.C. prisons and is extremely busy.17 In addition, Lopes has not taken many
affirmative steps to contact women prisoners. Smith of NWLC asked Lopes to
explain her job and responsibilities at a session of NWLC=s training for women
prisoners in D.C. She declined.18
The order also requires the DCDC to institute training for corrections
employees specifically addressing issues arising in a women=s institution as well as
training on sexual harassment for female prisoners. Corrections employees have
already begun to receive training provided by the DCDC, although without any
contributions from local nongovernmental organizations working on the issue.

16

The special monitor is a special officer, a federal court official with judicial powers.

17

Bruce D. Brown, AConfronting the Cruel and the Unusual,@ Legal Times (Washington,
D.C.), March 11, 1996.
18

Interview, Brenda Smith, National Women=s Law Center, Washington, D.C., February 5,
1996.

The District of Columbia

157

The judge further directed the DCDC to write and institute a policy
prohibiting sexual harassment of female prisoners by corrections employees. This
policy, which went into effect on May 15, 1995, prohibits sexual misconduct
against prisoners by any employee or agent of the DCDC.19 Sexual misconduct is
defined broadly in the policy to include: any act of sexual abuse, sexual assault,
physical contact of a sexual nature, sexual harassment,20 and invasion of privacy
(including observing prisoners= personal affairs without a sound penological
reason), and any Aconversations or correspondence which demonstrates or suggests
a romantic or intimate relationship between an inmate and employee.@21 Penalties
range from reprimands for some first offenses to termination for a first offense of
sexual assault or sexual abuse. But, even though the new D.C. sexual abuse law
criminalizes any sexual contact between prisoners and prison officials regardless of
evidence of coercion, the DCDC policy requires that only allegations of unwelcome
sexual intercourse or sexual touching be reported to the police.22
The policy also contains many additional safeguards for female prisoners.
The policy strictly prohibits overt or covert retaliation against prisoners, sets a time
frame for investigations23 and imposes a positive obligation on DCDC and its

19

District of Columbia Department of Corrections, ASexual Misconduct Against Inmates,@
Department Order 3350.2A, May 15, 1995.
20

Sexual harassment is defined to encompass degrading language and any threats or
promises used to influence prisoners= behavior and A[m]aking sexually offensive comments
or gestures, or engaging in physical contact of a sexual nature with an inmate.@ Ibid., Section
VI, E (1)(b).
21

Ibid.

22

The policy only requires the DCDC to forward allegations of sexual assault, as defined by
the policy to the relevant law enforcement agencies. Sexual assault is defined in the policy
as Aforced, nonconsensual or coerced sexual conduct.@ ASexual Misconduct Against
Inmates,@ Section VI, E(2).
23

Each complaint must be thoroughly investigated and a final written report must be
submitted within thirty days of department knowledge of the complaint. The prisoner
complainant must be informed of the findings and conclusion within forty-eight hours. She
then has five days to appeal the ruling to the director of the DCDC, and her appeal must be
responded to within ten days. The warden must take appropriate disciplinary action against
the official within fifteen days. Ibid., Section VII, B(7)-(8).

158

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

employees to report in writing sexual misconduct, either witnessed or suspected.
Failure to report shall subject the employee to disciplinary action, up to
termination.24 Another innovation is a confidential twenty-four-hour telephone
hotline for female prisoners to report sexual misconduct, which became operational
in 1996. Under the new policy, information and documentation of sexual
misconduct complaints must be kept confidential and only released to relevant
parties on a Aneed to know basis.@ Moreover, any prisoner who reports sexual
misconduct Amay request and be treated as a anonymous informant.@25

24

Ibid., Section VII, A(1)(b).

25

Ibid., Section VII, B(5)(b).

The District of Columbia

159

The DCDC appealed the court=s appointment of a special monitor to
investigate allegations of sexual misconduct, and certain programming
requirements,26 but not the court=s finding of an eighth amendment violation. The
DCDC=s appeal was argued in front of the D.C. Circuit Court of Appeals in
February 1995. However, after the April 1996 passage of Prison Litigation Reform
Act, federal legislation which limits the available remedies for custodial abuse,27 the
DCDC filed a brief requesting that certain provisions of the district court=s decision,
including the appointment of a special monitor to investigate sexual misconduct, be
removed.28 On August 30, 1996, a three-judge panel of the Circuit Court released
its decision overturning most provisions of the district court=s decision, including
the appointment of a special monitor to investigate sexual misconduct. The eighth
amendment finding, however, was not affected. The women prisoners have filed an
appeal to have the case heard by the entire D.C. Circuit.29

26
Women Prisoners v. District of Columbia, Civil Action File No. 93-2052 (JLG), Brief of
Appellants District of Columbia, December 11, 1995.
27

For a more detailed discussion of the Prison Litigation Reform Act and its implication for
sexual misconduct against women in prison, see the legal background chapter of this report.
28

Women Prisoners v. District of Columbia, Civil Action File Nos. 95-7041 and 95-7205,
Supplemental Brief of Appellants.
29

Women Prisoners v. District of Columbia , Civil Action File Nos. 95-7041 and 95-7205,
Concise Statement of Issue and its Importance, September 30, 1996.

160

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Female employees at DCDC also sued the department for sexually
degrading conduct by staff at all levels in women=s prisons, including high-ranking
officials.30 In January 1994 eight current and former female employees filed a
sexual harassment lawsuit against the DCDC alleging a pattern of sexual harassment
against female staff.31 The trial, which concluded August 9, 1995, was bifurcated
30

Neal et al v. Director, District of Columbia Department of Corrections, Civil Action File
No. 93-2420 (RCL). A DCDC task force created to study allegations of sexual harassment
against female staff found that DCDC employees were not trained about sexual harassment
and victims feared reprisals if they filed a sexual harassment complaint. Employees were
concerned that those found guilty of sexual harassment would not be punished while
supervisors were more concerned about disciplining employees for filing false reports. Keith
A. Harriston, AD.C. Corrections Gets Sex Harassment Report,@ Washington Post, March 24,
1994.
31

Keith A. Harriston, AD.C. Agency Accused of Harassment: Suit says sexual demands are
the rule in corrections,@ Washington Post, January 7, 1994.

The District of Columbia

161

into a liability phase and a separate damages phase. Under the liability phase, the
jury found that there was a pattern of sexual harassment of female corrections
officers and retaliation against those officers who tried to protect women from
sexual harassment.32 It also found that the DCDC constituted a hostile work
environment whereby supervisors and employees engaged in offensive conduct of a
sexual nature.33 The jury then awarded the original six plaintiffs more than $1.4
million in damages.34 The DCDC appealed the jury verdicts and court findings.
Oral arguments for the appeal were held on May 14, 1996. On May 20, 1996, the
circuit court remanded the case to the district court for additional findings of fact on
the district court=s finding that defendants had not complied with discovery rules
and court orders. The district court complied with this request on June 19, 1996,35
and on August 23, 1996, the Circuit Court overturned the District Court=s decision
to prohibit the DCDC=s witnesses from testifying.36 The case will be tried again
with the additional testimony from the defense.
32

Neal v. Director, District of Columbia Department of Corrections, Civil Action File No.
93-2420 (RCL), Memorandum Opinion I, August 9, 1995.
33

Ibid.

34

Neal v. Director, District of Columbia Department of Corrections, Civil Action File No.
93-2420 (RCL), Final Judgment and Order I, August 9, 1995.
35
Neal v. Director, District of Columbia Department of Corrections, Civil Action File No.
93-2420 (RCL), Statement of Reasons on Remand, June 19, 1996.
36

Toni Locy, AJudges Void Harassment Suit Verdict,@ Washington Post, August 24, 1996.

162

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In addition to the two class action suits, at least one civil suit has been
pursued in the District of Columbia by a female prisoner raped and impregnated by
a guard. The prisoner filed suit in 1993 against the DCDC and Lt. Joseph Willis
who worked at the Correctional Detention Facility.37 The plaintiff=s suit alleged that
the DCDC was liable for Willis=s actions because it had failed to take sufficient
action to discourage or prevent guards from having sex with prisoners. The DCDC
withdrew its legal support of Willis in July 1994 after firing him for reasons
unrelated to the suit. The DCDC then asserted that once Willis became involved
with the plaintiff he violated DCDC policy and therefore, the DCDC had no
responsibility for his actions. Willis, on the other hand, argued that he had a
consensual relationship with the plaintiff and as a result, she suffered no injury.
Willis submitted alleged love letters from the plaintiff to support that defense. In
response, the plaintiff alleged that there was no possibility of consent in prison. In
October 1995, the jury rejected the defenses of the DCDC and Willis and found the
DCDC liable for $5,000 in damages, which as of February 1996 they still had not
paid. The jury also found Willis liable for $25,000 in damages.
ABUSES38
Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
During the Women Prisoners case, the district court heard from many
women incarcerated in Washington, D.C. who were sexually assaulted and sexually
harassed by prison staff, including corrections officers as well as civilian staff.39
37

Telephone interview, Steven Kupferburg, attorney, February 26, 1996.

38

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.
39

Judge Green identified incidents of sexual assault as part of the overall sexual harassment
within the D.C. system.

The District of Columbia

163

The judge cited the testimony of Jane Doe RR, Jane Doe Q, and Jane Doe W, all of
whom were raped or sexually assaulted by male corrections staff. Jane Doe RR was
forced to perform oral sex on a corrections officer at CTF, Jane Doe Q was raped
by a corrections officer while housed in the prison infirmary at the Jail, and Jane
Doe W was sexually assaulted by a sergeant while incarcerated at CTF. In addition,
a CTF officer tried on several occasions to fondle Jane Doe K=s breasts, vagina, and
buttocks; male officers and employees fondled women=s breasts, legs, arms, and
buttocks; and a teacher at the print shop often tried to kiss Jane Doe OOO.40

40

Women Prisoners, p. 640.

164

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

More recently, complaints were filed against L.C. Jones, acting deputy
warden for operations at the CTF, alleging that he anally raped a female prisoner in
November 1995.41 Reportedly, the prisoner went to Jones=s office to get his
signature on an official order. Jones, according to the prisoner, refused to sign the
order until the woman had sex with him. The prisoner asserted that although she
agreed to have sex with Jones, he forced her to have anal sex. The authorities
became aware of the rape when the woman was treated at D.C. General Hospital for
a ruptured rectum.42 Jones, who was the first individual to be charged under D.C.=s
new Aanti-sexual abuse@ law, was placed on administrative leave with pay during the
criminal proceedings. The case was presented to a grand jury for an indictment, and
the grand jury declined to press charges.43 In addition, the special monitor, in a
41

Toni Locy, AInmate Accuses D.C. Corrections Official of Sexual Assault,@ Washington
Post, November 21, 1995.
42

43

Ibid.

Toni Locy, AInquiry Clears Correction Official of Rape Allegation,@ Washington Post,
March 14, 1996.

The District of Columbia

165

separate, concurrent investigation, cleared Jones of all charges.44 To our
knowledge, no other cases have been pursued under the Aanti-sexual abuse@ statute
as of this writing.45
Attorneys in the Women Prisoners case also argued that women
incarcerated in D.C. prisons were coerced into sexual activity with prison staff
through the use of threats, including the use of disciplinary reports.46 According to
the court papers and testimony at trial, corrections employees also compelled
women into sexual relationships in exchange for favorable treatment and goods,
including cigarettes, candy, food, and money.47 In some cases, women became
pregnant as a result of these liaisons.48 The district court found that these
allegations were proved during the trial.
Abusive and Degrading Language

44

Ibid.

45

Telephone interview, Assistant U.S. Attorney for District Of Columbia, August 9, 1996.

46

Women Prisoners v. District of Columbia Department of Corrections, Civil Action File
No. 93-2052 (JLG), Plaintiffs= Proposed Findings of Fact, June 8, 1994.
47

48

AFemale Inmates Tell of Sex for Favors in Jail,@ Washington Post, June 17, 1994.

Toni Locy, AOfficer Describes >Auction= of Female Inmates at D.C. Jail,@ Washington Post,
March 9, 1995.

166

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Several plaintiffs testified that women prisoners in the District of Columbia
are constantly subjected to degrading, sexualized language. One Jane Doe testified
that when she informed an officer that she was going to take a shower, he
responded, AWell, you go ahead and do that, and I=ll be in there to stick my rod up
in you.@49 The court also found that male corrections staff and male prisoners
frequently made derogatory comments about the women=s breasts and buttocks.50
Testimony at trial revealed that some staff at the Annex were aware of and
witnessed the male prisoners= conduct but failed to take any disciplinary action.
Since the court decision, as discussed later in this chapter, the degrading treatment
continues at D.C. correctional facilities.
Further, one former employee testified at the corrections employees trial
that in the early 1980s female prisoners at the D.C. jail were lined up by several
high-ranking male officials who:
looked them over and picked the women they wanted to work in
their offices. Lower ranking officers picked from the inmates
who were left over . . . and those women were assigned to do
special duties for them.51
The former employee also testified that several of these prisoners told her that the
male employees used the work assignments as an opportunity to have sex with the
prisoners.52

49

Women Prisoners, p. 640.

50

Ibid.

51

Locy, AOfficer Describes >Auction=. . .@ Washington Post.

52

Ibid.

The District of Columbia

167

These abuses took place in a context that is largely devoid of privacy
protections for women from viewing by male guards and prisoners.53 According to
Judge Green=s opinion, male officers did not announce themselves in the housing
areas, and the structural design of CTF permitted male prisoners to view the
women=s cells from a number of locations inside the facility.54

THE SYSTEM==S RESPONSE
Prior to the filing of the class action suit in 1993, the DCDC had been very
slow to respond to allegations of sexual misconduct and degrading treatment within
its facilities. Judge Green found that while the DCDC had several policies
ostensibly intended to respond to allegations of sexual misconduct and criminal
behavior, including a grievance procedure, these were Aof little value since the
[DCDC] address[ed] the problem of sexual harassment of women prisoners with no
specific staff training, inconsistent reporting practices, cursory investigations and
timid sanctions.@55
The district court found that there was no clear procedure for reporting and
investigating complaints of sexual misconduct. Investigations were handled
53

All three facilities run by the DCDC that hold women are co-correctional, meaning they
house both female and male prisoners.
54

The district court did not address these abuses as violations of the prisoners= constitutional
right to privacy, because it found them prohibited under the eighth amendment. Women
Prisoners, p. 665.
55

Ibid., p. 640.

168

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

inconsistently among the three facilities, and staff did not routinely report abuses
that came to their attention. In some cases, the DCDC failed entirely to investigate,
while in other instances investigations lingered and remained unresolved. Judge
Green also found that the investigative process was biased in favor of corrections
staff; where an allegation amounted to the word of a prisoner against the word of an
employee, the DCDC sided with the employee and summarily dismissed the
prisoner=s claim.56

56

Ibid., p. 642.

The District of Columbia

169

The DCDC also generally failed to discipline employees for sexual
misconduct. Some officers were reassigned to other facilities while others remained
at the same institution and were even assigned to work in the unit where the
complainants were housed. In one case cited by the district court, several prisoners
complained to the prison administration about sexually explicit harassment from a
teacher, but Athere [was] no evidence that the administration took corrective
action.@57 In another instance, Deputy Warden L.C. Jones, discussed elsewhere in
this chapter, reportedly discouraged a prisoner from pressing a complaint or
discussing it with attorneys on the suit.58 In exchange, he promised to assist her in
getting released from prison. Jones himself was cited for sexual misconduct in both
the Women Prisoners litigation59 and the women corrections officers= suit, yet, to
our knowledge, he has never been disciplined by the DCDC. Attorney Brenda
Smith reiterated this point. She found very few instances of disciplinary action
against abusive officers, and even when such actions were taken, the penalties were
disproportionately mild, limited often to a brief suspension.60 The corrections
department seldom referred cases of sexual assault or rape to the D.C. police; when
the police did investigate, the DCDC automatically ceased its own internal inquiry.
There was no effective mechanism in the DCDC for protecting the
complainants= confidentiality. The judge found that reported incidents Aquickly
became a matter of public knowledge among prisoners and staff,@ who then
retaliated against and harassed the complainants.61 Judge Green concluded that
Athose who report the [sexual] harassment often experience increased stress and may
end up becoming isolated from other women in the institution.@62 She was
persuaded by testimony at the trial that the department=s failure to respond to
abuses, combined with the women=s history of sexual abuse, compounded the
women=s ordeal. Attorney Smith agreed with the judge=s conclusion. In
57

Ibid.

58

Ibid., p. 641.

59

Ibid.

60

Interview, Brenda Smith, National Women=s Law Center, Washington, D.C., February 27,
1995.
61

Women Prisoners, p. 641.

62

Ibid., p. 643.

170

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

investigating the abuses, she found a serious problem of underreporting of sexual
misconduct because many women had a well-founded fear of filing complaints.63

63

Interview, Brenda Smith, National Women=s Law Center, Washington, D.C., February 27,
1995.

The District of Columbia

171

Retaliation by staff within the DCDC assumed many forms: complainants
were placed in administrative segregation; targeted for disciplinary reports, which
affected their parole; removed from programs which they needed; and denied work
assignments.64 Women who spoke out also received a Asnitch jacket@ or reputation
within the prison community that they were untrustworthy. This label then exposed
them to abuse from other prisoners.
The Effect of Women Prisoners v. District of Columbia
In response to the order issued in the Women Prisoners suit and the
accompanying policy, the DCDC response to sexual misconduct has improved. For
example, in August 1995, the DCDC suspended seven corrections officers for
attending a party at the city jail where two female prisoners did a striptease.65 In
addition, Smith reports that since the new policy went into effect, more officers
have been reporting sexual misconduct by their fellow guards.66 She attributes this
improvement to the policy=s reporting requirement and to the increased awareness
of the problem of sexual misconduct raised by the suit. Nonetheless, according to
Smith, a Asignificant core@ of the corrections officers continues to not take sexual
misconduct seriously, and she continues to receive allegations of sexual misconduct
by DCDC staff.67
64

Women Prisoners, p. 666.

65

Toni Locy, A7 D.C. Jail Guards Suspended in Cellblock Striptease,@ Washington Post,
August 4, 1995.
66

Interview, Brenda Smith, National Women=s Law Center, Washington, D.C., February 5,
1996.
67

Ibid.

172

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Moreover, it is particularly problematic that, in regard to the anal rape
allegation against L.C. Jones that was rejected by the grand jury and special
monitor, the special monitor reportedly planned to explore the possibility of filing
perjury charges against the prisoner.68 Brenda Smith told us that she credits her
client=s testimony and is concerned more generally that prosecution for perjury in
this instance will discourage women prisoners from coming forward in the future.69
Human Rights Watch shares this concern. While we oppose false allegations, we
believe prosecution should be used only in extreme cases where such accusations
are manifestly malicious or in bad faith. This caution takes into account the chilling
effect such punishments have on prisoners reporting sexual misconduct.
In addition, neither Smith nor her client was officially informed of the
grand jury=s decision or the conclusions of the special monitor. Indeed, Smith
learned of the grand jury=s decision and the special monitor=s report from a
Washington Post reporter.70 She then notified her client. As of March 21, 1996,
neither Smith nor her client had received written notice of the special monitor=s
decision or a copy of the special monitor=s report. Smith later received a copy of
the decision after specifically requesting it. Without a copy of the report being
provided automatically, the right to appeal guaranteed by the new DCDC policy had
been rendered virtually meaningless because neither Smith nor her client were
aware of the rationale for the decision. The client has appealed the decisions.71

RECOMMENDATIONS
I.

The U.S. attorney should strictly enforce the anti-sexual abuse law of the
District of Columbia prohibiting sexual intercourse and contact with a
person in custody. The consent of the victim, which is not a legal defense
to a prosecution under this section, should not be a de facto bar to
prosecution.

68

Locy, AInquiry Clears Corrections Official . . .,@ Washington Post.

69

Telephone interview, Brenda Smith, National Women=s Law Center, March 21, 1996.

70

Ibid.

71

Telephone interview, Joanna Grossman, staff attorney, National Women=s Law Center,
August 7, 1996.

The District of Columbia

173

II.

The DCDC should revise its sexual misconduct policy to require that all
complaints of sexual contact between a prisoner and a corrections official
be forwarded to the police, pursuant to the D.C. anti-sexual abuse law,
rather than the current requirement of forwarding only allegations of
Aunwelcome@ sexual intercourse or touching.

III.

The DCDC should notify prisoners and their legal representatives of the
results of investigations into their complaints and forward their findings to
them promptly in order to permit prisoners to file well-grounded appeals
in accordance with the DCDC policy.
Prisoners who file sexual misconduct complaints that either the criminal
authorities or the DCDC decide not to pursue, should not automatically be
subject to a perjury investigation, without any additional evidence that the
prisoner filed a false statement maliciously or in bad faith.

IV.

V.

The D.C. City Council should create a fully empowered and independent
review board to investigate, among other things, complaints of sexual
misconduct that are not satisfactorily resolved by the grievance or
investigative mechanisms.

A.

The review board should have the authority to turn over evidence of
wrongdoing for criminal investigation and prosecution. The board should
also be able to recommend remedial actionCincluding temporary
reassignment or suspension of the accusedCto end abuses or other
problems uncovered during an investigation.

B.

The review board should develop a system whereby the records of
corrections employees who have been the subject of repeated complaints
are reviewed by the appropriate authorities.

C.

The review board should provide a toll-free telephone number that
prisoners can use to contact investigators or to file anonymous complaints
of employee misconduct, including retaliation against complainants.

V. GEORGIA

In Georgia prison officials entrusted with custodial power over the
women=s prison population have engaged in serious sexual misconduct. Indeed,
prior to 1992, officers raped, sexually assaulted and sexually harassed female
prisoners with little regard for legal or institutional constraints. Although Georgia
criminal law formally prohibited sexual contact between prison officials and
prisoners, the law was not enforced. Similarly, the departmental policies arguably
barring such abuses were belied by the impunity with which prison staff, including
supervisory staff, engaged in sexual relations with prisoners.
Unlike most other states, however, Georgia has been forced to take
meaningful steps to put a stop to these abuses. In 1992, because of an amended
class action lawsuit filed on behalf of Georgia women prisoners, the problem of
custodial sexual misconduct received significant public attention, spurring
departmental efforts toward reform. More concretely, the lawsuit resulted in a
number of federal court orders requiring the Georgia Department of Corrections
(GDC) to rectify many of its past practices. Although at times the GDC responded
less than enthusiastically to this persistent judicial prodding, the overall atmosphere
in its women=s prisons has greatly improved. Nonetheless, even now sexual contact
between officers and prisoners occurs and, in some instances, amounts to rape or
sexual assault.
Our investigation of custodial sexual misconduct in Georgia was
conducted during the pendency of the aforementioned lawsuit, Cason v. Seckinger.1
The case was originally filed in 1984 as a challenge to prison conditions in Georgia
and was amended in March 1992 to include allegations that women incarcerated at
the Georgia Women=s Correctional Institution (GWCI) were being subjected to
custodial sexual abuse. In conducting our investigation, we interviewed nine
current and former prisoners, all of whom served time at GWCI;2 attorneys and a
clinical social worker active on the suit and on the civil damages suits spawned by
the abuses at GWCI; the former Baldwin County prosecutor, responsible for trying
prison staff indicted for criminal sexual contact with prisoners; the former GDC
assistant deputy commissioner for women's services; and other individuals with
1

Cason v. Seckinger, Civil Action File No. 84-313-1-MAC.

2

In accordance with a protective court order in the class action suit, all of the women we
interviewed are identified in this chapter by pseudonyms or by their Jane Doe number.

174

Georgia

175

firsthand knowledge of the conditions at GWCI, including a former GDC
employee.3 We also reviewed the records of disciplinary hearings of correctional
3

Neither the Cason lawsuit nor our investigation systematically examined the problem of
custodial sexual abuse in Georgia jails. Unfortunately, jail abuses are much more difficult to
address than are prison abuses. To begin with, there are over 200 city and county jails in
Georgia, each with a separate set of responsible authorities (and thus, for purposes of
litigation, a separate set of potential defendants). In addition, jails hold a much more
transient population than do prisonsCdetainees may be held for very short periodsCso that,
in the absence of constant monitoring, abuses are likely to remain concealed. In short, it
would require a large and continuing investment of resources to investigate jail abuses and to
initiate legal action to remedy them. Given the absence of an adequate oversight mechanism
to monitor jail abuses, however, and given the generally bad state of Georgia jails, we are
greatly concerned about the possibility of custodial sexual abuse in the jail system. Indeed,
press reports and other sources suggest that such abuse is a recurring problem. See, for
example, David Corvette, AUpson County Jailer Charged with Sexual Assault on Inmate,@
Atlanta Journal-Constitution, July 7, 1992; Scott Marshall, ASome Deputies Rehired at
Gwinnett County Jail: All Accused of Sexual Improprieties,@ Atlanta Journal-Constitution,

176

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

officers that corroborate or augment the testimony of the prisoners we interviewed.
While we primarily investigated abuses that occurred prior to March 1992, our
investigation also examined incidents of sexual misconduct occurring since March
1992 and the GDC=s response to these abuses.
Human Rights Watch urges the Georgia authorities responsible for the
corrections and criminal justice systems to intensify their efforts toward preventing
and prosecuting custodial sexual misconduct. In particular, we believe that Georgia
prosecutors should strictly enforce the state=s criminal prohibition on sexual contact
with a person in custody and that the GDC, for its part, should refer to prosecution
all cases that fall within the statutory definition. The GDC should also use extreme
caution in assessing disciplinary reports against prisoners whose complaints of
sexual misconduct are found to be unsubstantiated; collaborate with lawyers
litigating Cason, and with organizations that assist victims of rape, to develop
further the training programs for staff and women prisoners regarding sexual
misconduct; and publish regular reports of the results of its sexual misconduct
investigations and of disciplinary actions taken as a result of such investigations.
Finally, we recommend that the Georgia Legislature create a fully empowered and
independent review board to monitor the GDC=s compliance with the requirements
of Cason and to ensure that complaints of sexual misconduct are adequately
investigated and remedied.
January 23, 1993; Doug Payne, AWoman Was Twice Victimized by Jailer, her Lawyer Says,@
Atlanta Journal-Constitution, February 11, 1993 (Marietta City Jail); ASwainsboro: Sheriff
Calls for Investigation of Jail-Sex Allegations,@ Atlanta Journal-Constitution, May 29, 1993
(Emanuel County Jail); Scott Marshall, AFormer Chief Jailer Indicted on Sex Assault
Charges,@ Atlanta Journal-Constitution, September 16, 1993 (Clayton County Jail); Cason v.
Seckinger, Affidavit, Jane Doe 187, November 4, 1993 (stating that she had sex with a
bailiff while held at the Chatham County Jail). In light of the reforms instituted in the
Georgia prison system, we urge Georgia officials to accord like attention to addressing the
problem of custodial sexual abuse in Georgia jails.

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177

CONTEXT
Custodial Environment
Mirroring a national pattern, Georgia=s female prison population has
increased dramatically over the last fifteen years.4 As of March 1996, women
constituted 6 percentCover 2,000 prisonersCof an overall prison population of
35,000.5 One-third of these women have been convicted of violent crimes, 22
percent of drug offenses. Their average age is thirty-three. Two-thirds of female
prisoners are non-white (Georgia=s prison statistics do not indicate the racial
makeup of the prison population beyond white and non-white). The vast majority
have at least one child.

4

The number of prison beds for incarcerated women has more than doubled since 1983. If
one includes community corrections facilities, the number of women in custody has nearly
tripled. Georgia Department of Corrections, "Ten-Year Trend Analysis: Georgia's Female
Offender Population Calendar 1983-1992," October 19, 1993.
5

Georgia Department of Corrections, AGDC Facts at a Glance,@ March 1996 Update.

178

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Until 1989 Georgia operated only one prison for womenCthe Georgia
Women's Correctional Institution (GWCI)Cin conjunction with a nearby camp
facility, Colony Farm. In 1989 the state opened a second women=s facility, the
Milan Correctional Institution, to ease overcrowding at GWCI (Milan CI has since
reverted back to being a male facility). Then, largely in response to the litigation
mentioned above, the GDC converted the Washington Correctional Institution
(Washington CI) to a women=s facility in 1992; also at plaintiffs= request, it began to
convert Metro Correctional Institution (Metro CI) to a women's facility in 1993;
then in 1994 it opened the Pulaski Correctional Institution as an additional women=s
facility, as was previously planned. The GWCI was converted to a men's facility in
1993 and renamed the Baldwin Correctional Institution. In mid-1996, as a symbolic
element in a Aget tough on prisoners@ campaign, Georgia changed the names of all
of its penal facilities, replacing the designation Acorrectional institution@ with Astate
prison,@ so that Pulaski Correctional Institution, for example, is now Pulaski State
Prison.6
Georgia, like other states, permits male officers to work in its women=s
prisons.7 At GWCI, the prison whose abuses were cited in the amended lawsuit,
male guards far outnumbered female guards at the time the suit was revised to cover
custodial sexual abuse. In April 1992, immediately after the amended complaint
was filed, the GDC promulgated a rule restricting certain staff positions to staff of
the same sex as the prisoners supervised. The positions for which cross-gender
guarding was deemed inappropriate were those Ainvolving frequent or prolonged
physical contact with, and/or visual observation of unclothed inmates, and/or where
potential invasion of the inmate=s privacy is unavoidable in the course of normal

6

For a discussion of other aspects of the renewed punitive emphasis of the Georgia
correctional system, see the chapter on the treatment of prisoners in Modern Capital of
Human Rights? Abuses in the State of Georgia (New York: Human Rights Watch, 1996).
7

Few other countries allow male guards to hold contact positions in women=s prisons.
Indeed, the U.N. Standard Minimum Rules for the Treatment of Prisoners, an authoritative
interpretation of international law norms mandating humane treatment and respect for the
human dignity of prisoners, specifically bars the practice. Article 53(3), Standard Minimum
Rules for the Treatment of Prisoners, approved by the Economic and Social Council by
resolutions 663 C, July 31, 1957 and 2076, May 13, 1977. Human Rights Watch,
nonetheless, is not per se opposed to the use of male staff in women=s prisons, as long as the
authorities take appropriate precautions to ensure that women prisoners= rights are not
compromised by their use.

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179

facility operations.@8 In March 1996, the GDC further narrowed the positions for
which cross-gender guarding is permissible: it agreed to a consent order in the
Cason suit by which only female staff will be assigned to women=s housing units.9

8

GDC Standard Operating Procedures, A>Same Sex Contact= Positions,@ Ref. No. IV002-005
(effective date April 1, 1992).
9

Cason v. Seckinger, Civil Action File No. 84-313-1-MAC, Consent Order, March 7, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Despite these restrictions on assignment, male guards still outnumber
female guards in two of three Georgia women=s facilities; only Pulaski has more
women than men officers. In March 1996, however, GDC Commissioner Wayne
Garner began transferring male guards out of Washington CI and replacing them
with female guards. He planned to continue transferring staffCand to effect similar
transfers at Georgia=s other two women=s prisonsCuntil there were no male staff in
contact positions with women inmates.10 The new policy was immediately
challenged by the Georgia State Employees Union on anti-discrimination grounds,
however.11 In late August 1996, after the Georgia Equal Employment Opportunity
10

Telephone interview, Mike Light, spokesman, Georgia Department of Corrections, April
17, 1996.
11

Because of the transfers, women correctional officers who had had less than a fifteen-mile
commute to work found themselves with a forty-five-mile commute. Represented by the
employees= union, a number of these women filed suit in Fulton County Superior Court to
block the transfers, claiming that gender-based transfers violate their right to equal
employment opportunity, protected by state and national anti-discrimination laws. On April
8, 1996, the court denied the women guards= motion for a temporary restraining order to
enjoin the transfers. Without reaching the women=s substantive claims, it found the transfers
would not cause irreparable injury to the women. Six women filed equal employment
opportunity claims seeking to have the policy reversed. Telephone interview, David Finz,
attorney, Georgia State Employees Union, April 18, 1996.

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181

Commission initiated an investigation of the transfers, the GDC reversed itself and
returned the transferred women guards back to work in their original facilities.12
The potential for abuse inherent in the custodial contextCheightened by
reliance on cross-gender guardingCis reinforced by the case histories of many
women prisoners. A high proportion of incarcerated womenCand, according to
Cason class counsel, an overwhelming proportion of the women singled out for
sexual abuseCenter the correctional system with a prior history of sexual
victimization. As Darien Bogenholm, a clinical social worker who worked on the
Cason litigation, described it: A[You] do not have to go far until you hear this train
wreck history of sexual abuse.@13

12

Telephone interview, David Finz, attorney, Georgia State Employees Union, September
11, 1996.
13

Interview, Darien Bogenholm, social worker, Atlanta, August 4, 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Accustomed to sexual exploitation, many women prisoners have little
awareness of their rights. Indeed, Lisa Burnette, an attorney with Zimring, Ellin &
Miller litigating the class action, explained: AThese women do not have a clear idea
what is rape . . . [They do not] realize what rape [is], let alone sexual harassment.@14
In her view, if abusive custodial relationships are to be stopped, the women must be
given education and counseling. Not only must they be told of their right to object
to sexual misconduct, many of them would benefit greatly from psychological care
regarding their prior sexual abuse.15
Corrections staff often targeted the most vulnerable women: those who
were younger, emotionally weaker or with lower self-esteem. Attorney Bob Cullen
told us that the initial psychological profile of a women will indicate whether she is
likely to be a victim or report abuse. This profile is contained in a woman=s file and
is accessible to prison staff. He found a high correlation between those women
who were victimized by corrections staff and those who had a victim profile. In
fact, he said, AI haven=t seen a file of a woman deemed unlikely to be victimized
who was.@16
Preying on women inmates= vulnerabilities, male officers enticed them into
sexual involvement by making them feel special. A number of incarcerated women
emphasized this point in their administrative hearing testimonies and in their
14

Telephone interview, Lisa Boardman Burnette, attorney, May 9, 1995.

15

Burnette was thus extremely disappointed when the GDC summarily rejected a recent offer
from an Emory University psychology professor to provide free counseling to women
inmates. The professor and several other researchers wanted to conduct a long-term study to
examine whether providing mental health services reduces the recidivism rate of incarcerated
women. Interview, Lisa Boardman Burnette, attorney, Atlanta, February 6, 1996.
16

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

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183

interviews with us. Jane Doe 85 told us that in order to persuade her into sexual
relations, Lt. James Philyaw made her feel like he cared: ASometimes he would call
me to his office to see how I was and he would tell me things, like how pretty I was
and that he was there for me.@ Other prisoners spoke of receiving cards and flowers
from staff, personal items, favorsCspecial attention that helped allay their fear of
being alone and unprotected in the correctional setting.
State Legal and Regulatory Framework
As a matter of state criminal law, sexual contact with a person in the
custody of the Georgia Department of Corrections has been punishable as a felony
since 1983. Under Section 16-6-5.1 of Georgia=s criminal code, which carries a
penalty of one to three years= imprisonment, a person commits sexual assault when:
he engages in sexual contact with another person who is in the
custody of the law . . . or who is detained in [an] institution and
such actor has supervisory or disciplinary authority over such
other person.17
Sexual contact is defined as Aany contact for the purpose of sexual gratification of
the actor with the intimate parts of a person not married to the actor.@18 The consent
of the incarcerated person is irrelevant.
Until January 1995, when new standard operating procedures went into
effect pursuant to a consent order in the Cason litigation, the statutory ban on sexual
contact with a prisoner was not incorporated explicitly into GDC departmental
policy. Rather, when seeking to discipline officers and employees for misconduct,
the GDC, like many other state correctional agencies, relied on broad provisions
regarding personal dealings. One such provision is a short, vague statement on the
back of signed employee identification cards which provides: AThere shall be no
personal or business dealings with prisoners, probationers or parolees.@19 Another
is included in the GDC standards of conduct, which states: AIt shall be prohibited for
17

G.C.A. Section 2020.1.

18

Ibid. Intimate parts are defined as the "genital area, groin, inner thigh, buttocks, or breasts
of a person."
19

Ray Griffin v. Department of Corrections, before the State Personnel Board for the State
of Georgia, No. 92-329, p. 5.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

any employee to knowingly have personal involvement with . . . known prisoners or
active probationers.@ A third provision, Administrative Regulation 125-2-1.07(d),
provides: AEmployees shall not . . . maintain personal associations with, engage in
personal business or trade with, or engage in non-job-related correspondence with,
or correspond in behalf of or for, known prisoners, active probationers, or
parolees.@20
At present, GDC standard operating procedures specifically distinguish
sexual misconduct from personal dealings, defining what actions constitute sexual
contact, sexual abuse and sexual harassment.21

National and International Law Protections

20

Ibid., p. 4.

21
For a detailed discussion of these procedures, see the section below titled AImproved
Investigations Procedure.@

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185

The eighth amendment to the Constitution, which bars cruel and unusual
punishment, has been interpreted by U.S. courts to protect prisoners against rape
and sexual assault. This constitutional shield is further augmented by the Fourth
Amendment=s guarantee of the right to privacy and personal integrity, which, in a
series of lower court cases, has been interpreted to prohibit male guards from stripsearching female prisoners or conducting intrusive pat-frisks. In one recent case,
the Eleventh Circuit Court of Appeals, which has jurisdiction over Georgia, ruled
that prisoners retain a constitutional right to bodily privacy protecting them from
being viewed while naked by corrections officers of the opposite sex.22 The case
was filed by men incarcerated at the Georgia State Prison to challenge the
assignment of female officers to their housing units, where the officers could view
the prisoners using the showers and toilets and while they were undressed. The
circuit court expressly referred to and followed an emerging trend in other circuits
recognizing that prisoners retain a constitutional right to privacy.23 The decision
did not, however, address what specific measures the GDC must implement to
protect this right.
Constitutional protections on prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark victories through
private litigation, particularly through suits litigated by prisoners= rights groups such
as the National Prison Project of the American Civil Liberties Union.
Yet if certain stringent intent requirements are met, the DOJ may
criminally prosecute abusive prison officials under general federal civil rights
provisions.24 In addition, the DOJ has the statutory right to investigate and institute

22

Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993).

23

Ibid., p. 1030.

24

See 18 U.S.C. '' 241 & 242.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

civil actions under the Civil Rights of Institutional Persons Act (CRIPA) whenever
it finds that a state facility engages in a pattern or practice of subjecting prisoners to
Aegregious or flagrant conditions@ in violation of the Constitution.25
In addition to constitutional protections, prisoners= rights are also protected
under international human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant on Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. Both
treaties bar torture and cruel, inhuman or degrading treatment or punishment, which
authoritative international fora have interpreted as including sexual abuse. To
constitute torture, an act must cause severe physical or mental suffering and must be
committed for a purpose such as obtaining information from the victim, punishing
her, or intimidating or coercing her. Cruel, inhuman or degrading treatment or
punishment includes acts causing a lesser degree of suffering that need not be
committed for a particular purpose.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,
that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment.
Legal Action to Expose and Prevent Abuses

25

See 42 U.S.C. ' 1997 et seq .

Georgia

187

The amended complaint filed in 1992 in Cason v. Seckinger, a federal
class action lawsuit against the GDC, marked a turning point in Georgia=s handling
of custodial sexual misconduct.26 The complaint alleged rape, sexual assault and
coerced sexual activity, involuntary abortions, and retaliation or threats of
retaliation against women who refused to participate in sexual activities within the
prison. Supporting the complaint were the affidavits of ten women, identified only
as Jane Does, who either were forced to engage in sexual relations with prison staff
or who had direct knowledge of ongoing sexual misconduct within the prison.27

26

The case was originally filed in 1984 by attorneys with Georgia Legal Services to
challenge the constitutionality of Georgia prison conditions. (Attorney Bob Cullen, the lead
lawyer on Cason, is now in private practice, as Georgia Legal Services no longer handles
prison litigation.)
27

Since the complaint was filed, the number of "Jane Does" has risen to over two hundred
and the pool of women has broadened to include prisoners incarcerated at other women's
prisons in the state. The number of Jane Does does not necessarily reflect the number of
women who have come forward with allegations of abuse or direct knowledge of such abuse,
however. Some women have been given more than one Jane Doe number to correspond to
separate incidents; other women chose not to go on the record as Jane Does, and not to file a
formal complaint. Also, some Jane Doe affidavits correspond to incidents of stripping and
restraining of mental health inmates.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The prisoners= allegations were reported almost immediately in the Atlanta
Journal-Constitution and other local press. Under intense public scrutiny, the
GDC, in negotiation with the plaintiffs= attorneys, launched an investigation of the
charges and entered a period of internal review. This internal review, discussed in
more detail below, included an investigation into past misconduct, disciplinary
action against certain staff, and a number of reforms. In March 1993 the story was
aired nationally by ADay One,@ an ABC television news show that had conducted its
own four-month investigation of the problem. Subsequently, the Department of
Corrections commissioner, Bobby Whitworth, stepped down and joined the Georgia
Parole Board. The deputy commissioner, Lanson Newsome, opted for early
retirement.28

28

In addition, a number of the Jane Does filed civil suits against the GDC for damages
stemming from the abuse incurred while at GWCI. These suits are still pending. Some
prisoners also received payments for the movie rights to their story.

Georgia

189

The lawsuit, which was still pending at the time this report went to print,
has never resulted in a full trial, although numerous hearings have been held. Under
the supervision of the magistrate judge hearing the case, attorneys representing the
women and those representing the GDC have attempted to work together to
investigate and address the concerns raised by the suit. The magistrate has also
issued a number of orders requiring the GDC to institute reforms. Most notably, in
March 1994, he issued an order permanently enjoining sexual contact, sexual abuse,
and sexual harassment of all women incarcerated, now and in the future, by any
staff, employee, agent or contractor of the GDC.29 He found that such an injunction
was necessary in light of the past and continuing problems with sexual abuse, and
despite efforts being made by the GDC to prevent future misconduct, to guarantee
the women=s constitutional rights under the eighth and fourteenth amendments of the
U.S. Constitution.
ABUSES30

29

The order defines sexual contact as any intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thighs, or buttocks, intended to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. Sexual
abuse, as defined in the order, includes subjecting any person to sexual contact when the
person is unable to consent as a result of her custodial status; through the use of coercion;
physical or mental incapacitation; or any forceful sexual contact. Sexual harassment is
broadly defined as Aunwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature.@ The order specifically permitted pat-downs, strip
searches, and other similar action as long as they were for legitimate correctional or security
needs. Cason v. Seckinger, Civil Action File No. 84-313-1-MAC, Permanent Injunction,
March 7, 1994.
30

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Custodial sexual misconduct in Georgia has involved a range of offenses.
Corrections officials have raped, sexually assaulted and engaged in criminal sexual
contact with prisoners. They have also degraded female prisoners verbally, using
highly sexualized language, and violated their right to privacy. While Georgia's
criminal law bans sexual contact in custody, prisoners and advocates for prisoners
rights have had to wage a long battle to ensure its enforcement. And, our
investigation found, past practices linger.
Before Cason
Abuses prior to March 1992 included forced sexual intercourse and other
misconduct likely to result in severe physical and psychological harm to the
prisoner. Moreover, the perpetrators engaged in such abuses with impunity.
Unless indicated by the use of a full name, the names of the prisoners have
been changed to protect their anonymity. In some cases, the location and exact date
of prisoner interviews have also been withheld.

Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
Until March 1992 an environment existed within Georgia women's prisons
such that sexual relations between staff and prisoners were an accepted occurrence.
Within GWCI and Colony Farm, members of the prison staff fondled and groped
female prisoners, sexually propositioned them, and coerced them into sexual
relationships either upon threat of retaliation or in exchange for contraband,
favorable treatment and attention. They manipulated women=s work schedules and
freely called women from their units or work details for sex. As Bob Cullen, Cason
class counsel, put it, AYou get the impression from the staff at GWCI that it was a
sexual smorgasbord and they could pick and choose whom they wanted.@31 Other
corrections employees at the prison turned a blind eye to the ongoing sexual
misconduct.
Disciplinary hearings conducted by the GDC reveal that it was often those
in supervisory positions at GWCI who exploited their positions to coerce prisoners
into sexual relations over a period of years. In particular, the hearings showed that
three menCLt. James Philyaw, Deputy Warden Cornelius Stanley, and Ray Griffin,
then senior ranking officer at Colony FarmCused their positions of authority to
abuse sexually a number of female prisoners under their supervision. Many of the
31

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

Georgia

191

descriptions of abuses below are based on the decisions of administrative law
judges in state disciplinary hearings and the testimony of incarcerated women at
those hearings. The Department of Corrections called the prisoners to testify as
witnesses against the employees to substantiate charges of sexual misconduct.
The most notable among those charged was Lt. James Philyaw, who
worked as the night shift supervisor for security at GWCI. According to testimonies
at his disciplinary hearing, Philyaw had sex with at least seven prisoners over a fiveyear period, from 1987 to 1991, while employed at GWCI and Colony Farm.
Philyaw appeared to follow a pattern. He would approach certain prisoners,
compliment them by telling them how pretty they were and offer them his
assistance. He would tell them to come to him if they needed anything, including
assistance with a disciplinary report, and he offered to bring them things such as
cigarettes and alcohol. He then pushed them into having sexual relations with him,
threatening them if they did not comply.
Philyaw directed women to meet him in various locations around the
prison, particularly offices in the administration building which were empty in the
evenings. Each time, he apparently assigned officers under his supervision to
locations where they would not discover his activities. The administrative law
judge in the hearing concluded that Philyaw had the power to call prisoners to
certain locations and Aknew precisely where all of his subordinates were at any
given time and had the power to position them where he wanted and at times as he
wished.@32
Jane Doe 14 was reassigned in the summer of 1990 by Philyaw to buff the
floors in the administration building (A-building) at night. This switch reportedly
occurred a few days after he called her into his office and complimented her on her
appearance. According to Jane Doe 14, on her first night on duty, Philyaw told her
to follow him into the bathroom, where he kissed her and told her he was attracted
to her and wanted to have sex. She told him she was menstruating and nothing else
occurred that evening. Philyaw continued to pressure Jane Doe 14 for sex on
subsequent evenings. A few evenings later, Philyaw called Jane Doe 14 into the
men's bathroom, where he had spread a sheet on the floor, and raped her. Over the
next three months, Jane Doe 14 had sexCanal, oral and vaginalCwith Philyaw on
repeated occasions. Jane Doe 14 stated at the disciplinary hearing that Philyaw=s
status within the institution not only prompted her to submit to his advances, it
prevented her from coming forward. When asked why she allowed Philyaw to have
32

Philyaw v. Department of Corrections, before the State Personnel Board for the State of
Georgia, p. 68.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

sex with her, she replied, Abecause he was a lieutenant and he was over that shift, he
was like the warden of that shift, and he could do anything he wanted to me, and no
one was going to believe me just like he said.@ The situation ended when
Lieutenant Philyaw was transferred to Colony Farm.33
Philyaw also manipulated at least one prisoner's dependency on alcohol to
entice her into sexual relations. Jane Doe 85 had a drinking problem prior to
incarceration; she submitted to sexual relations with Philyaw because, she said, he
gave her alcohol and made her believe he cared. He allegedly also suggested items
such as marijuana, alcohol and cigarettes. She testified:

33

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

Georgia

193
I drank, and I would smoke marijuana. . . . When I got locked up
I didn't know how to deal with my problems without getting high,
I was real vulnerable and depressed at that time. I had not been
locked up very long, and I didn=t go outside much, so when he
came along it was comforting to know that someone in blue
could help me, so I believed in him. I believed he could help me,
and he gave me alcohol.34

In exchange for having sexual relations with him, Philyaw provided
prisoners with certain items and granted them special privileges that often violated
prison policy. The first time Jane Doe 85 had sex with Philyaw, he called her into
the room, locked the door and gave her a bottle of Jack Daniels which they drank,
and she submitted to sexual intercourse. Jane Doe 85 told us that she and Philyaw
had sexual relations on four or five occasions over a two-month period, either in a
counselor's office at Colony Farm or at her work assignment. He would come to her
dorm and put cigarettes in her locker or under her mattress. Philyaw promised Jane
Doe 14 Athat if she received any DRs [disciplinary reports] to let him know so that
he could take care of them; and . . . he would write a letter in her behalf to the
parole board.@35 When a friend received a DR, Jane Doe 14 raised the issue with
Philyaw and performed oral sex on him; the friend was never called on the DR.
Jane Doe 15, according to the disciplinary hearing, had sexual intercourse with
Philyaw seven to eleven times over a three-month period. In return, he did favors
for her, such as moving prisoners at her request and permitting her to see her prison
file, contrary to prison policy.36
34

Philyaw v. Department of Corrections, p. 292 (testimony of Jane Doe 85).

35

Ibid., p. 14.

36

Ibid., p. 9 (testimony of Jane Doe 14).

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In another incident, Jane Doe 88 witnessed Philyaw having sexual
intercourse with Jane Doe 111 in a secretary's office; he later approached her and
"told [her] not to repeat what [she] had seen and he asked [her] was there anything
he could do for [her]."37 Philyaw subsequently put money in her prison account.
Jane Doe 88 testified that she wrote to Internal Affairs about the incident but
received no response.38

37

Ibid., p. 18.

38

Ibid.

Georgia

195

Philyaw often targeted prisoners who were loners or emotionally
vulnerable. According to testimony at his disciplinary hearing, Philyaw called Jane
Doe 13 from the prison yard to the control area and told her Ahe had noticed that she
did not hang around with a lot of other people and therefore felt he could trust her. .
. . He told her he was attracted to her and would like to have sex with her.@39
Philyaw proceeded to kiss and undress the prisoner, then to have sexual intercourse
with her. Following this, Philyaw gave Jane Doe 13 special privileges and
interceded on her behalf when she was disciplined by another officer.40
Philyaw pursued a similar pattern with Jane Doe 64. He counseled Jane
Doe 64 one evening when she was upset about a broken relationship with a male
prisoner, then continued to pay her special attention. According to Jane Doe 64=s
testimony at his disciplinary hearing:
I liked the feeling that I had of being special and important to
someone, and he made me believe that I was special. . . . He
made me feel like I was the only person that he was involved
with, by telling me so many things . . . that made me think it was
special.41
She testified that she started spending extended periods of time in the prison library
so she could see or talk to Philyaw. Then, on one occasion, Philyaw brought her to
the administrative offices to Ado some filing@ and, she testified:

39

Ibid., p. 13.

40

Ibid., p. 14.

41

Ibid., p. 335.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
[I] went back to the office where he was, and he shut the door
and we began to kiss and fondle, and at that time is the first time
that I performed oral sex on him, but we did not finish because
he told me to stop, and I suppose he told me to stop because he
hadn't made arrangements for that particular meeting, and
perhaps didn't know where all of his officers were, or if someone
was due to come back, and so he made me stop.42

42

Ibid., p. 334.

Georgia

197

He arranged for them to meet and have either oral or vaginal intercourse on two
additional occasions. The abuses ended when Philyaw canceled a prearranged
meeting, and Jane Doe 64 learned that he had sex with another prisoner earlier that
day.43
The disciplinary hearings we reviewed also showed that Deputy Warden
Cornelius Stanley raped at least one inmate, Jane Doe 39, and attempted to
intimidate another, Jane Doe 15, to prevent her from repeating her allegations of
sexual misconduct against Philyaw. According to his disciplinary hearing, Stanley
called Jane Doe 39 into his office to discuss problems she was having, then groped
her breasts and genitals, and told her, "I want to fuck you." He then pulled down
Jane Doe 39=s pants and forced her to have sexual intercourse with him. Stanley
reportedly told her Athere was nothing she could do and that she would not be
believed if she told any one about his actions.@44 On two other occasions, while
Jane Doe 39 was in lockdown in the Mental Health Unit (MHU) without clothing,
Stanley came into her cell and groped her. On one of these occasions, he also raped
her. According to Jane Doe 39, Stanley said, AYou should give up. You're going to
have sex with me whether you want it or not.@45
A third employee in a supervisory position, Baby Ray Griffin, maintained a
sexual relationship with Jane Doe 11 both while she was incarcerated and during
her parole. Griffin was a correctional institutional manager at GWCI, assigned to
43

Ibid., p. 26.

44

Stanley v. Department of Corrections, before the State Personnel Board for the State of
Georgia, p. 3.
45

Ibid.

198

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Colony Farm as its highest ranking officer.46 According to the disciplinary
decision, Griffin had sexual intercourse with Jane Doe 11 on a regular basis at
Colony Farm, in places such as the storage closet, the officer's restroom, or an
office. When Jane Doe 11 was transferred to the Macon Transitional Center,
Griffin would pick her up either on her weekend leaves and take her to a hotel, or
drive her to or from her work assignment, and they would engage in sexual
intercourse in his car. Upon her release, Jane Doe 11 moved into Griffin's home
near the prison until she was seen driving his car by another prison employee in
September 1990.47

46

Griffin v. Department of Corrections, before the State Personnel Board for the State of
Georgia, p. 5.
47

Ibid.

Georgia

199

In another case at GWCI, a first-time prisoner, Felicia J., was sexually
involved for several months with Officer A, the male supervisor on her work
assignment.48 According to Felicia J., Officer A would talk to her and, she said,
make her laugh and feel good. One day, she and Officer A had sexual intercourse.
They continued to meet for nearly a year at various locations he designatedCthe
dining hall, the gym, the warehouse, the clinicCknowing others would not be
present. She told us the relationship over time became increasingly intense and
Officer A began requesting her to perform Astrange sex acts,@ like putting on
handcuffs, biting her, and roughhousing. She reportedly tried to get out of the
relationship and began to stay close to officers whom she knew would not tolerate
Officer A's behavior. The relationship came to the attention of officials within the
prison, and an investigation was initiated. Felicia J. told us that she repeatedly
denied any sexual involvement with the officer because she feared that she would be
disciplined if she told the truth. According to Felicia J., then Warden Black
ultimately called her into his office and told her to avoid the officer.
Documentation we obtained indicates that Black similarly counseled the officer to
avoid Felicia J. Eventually, she and the officer were discovered by a nurse having
sex in a closet, and the officer was transferred to a men's prison.
After her relationship with Officer A ended, Felicia J. became involved
with Officer B who reportedly brought her certain things, such as gum and stamps,
which she either could not afford or could not obtain within the prison. She told us
that she has no family in Georgia and the relationship was Athe way to make my
life.@49

48

Interview, Georgia, March 1994.

49

Ibid.

200

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Philyaw, Stanley, Griffin, and Officer A were not the only employees at
GWCI sexually involved with female prisoners. A number of other employees were
later indicted for such misconduct under Georgia criminal statutes covering sexual
assault, sodomy and rape. Not all of the officers indicted were men. Four women,
Jackie Lee, Sandra Floyd, Rachel Durden, and Pam Saulsbury, were charged with
sexual contact against a person in custody for their alleged relationships with
different Jane Does between 1987 and 1990.50

50

Jackie Lee, a female officer at GWCI, was indicted for sexual involvement with Jane Doe
36 between January and December 1987. Sandra Floyd, another female officer, was
indicted for alleged sexual involvement with Jane Doe 18 at Colony Farm between May
1988 and March 1989. The sexual encounters reportedly occurred in various locations at the
prison, including in a bathroom and behind a screen in Floyd's office. Pam Saulsbury was
indicted for fondling Jane Doe 6 over several months in 1990.

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201

Allegations of sexual misconduct also arose at the Milan Correctional
Institution, which was opened in 1989. The record of one disciplinary hearing
reveals that the store manager at Milan, Samuel Evans, between 1990 and 1991,
offered prisoners store goods in exchange for fondling their breasts or asking them
to undress, while other prisoners served as lookouts.51 GDC documents also
indicate that in 1991 an athletics coach at Milan CI groped one prisoner's breasts
and pulled down her pants, while he cornered and Aengaged in a sex act in a
standing position@ with another prisoner. He repeatedly commented on a third
prisoner's breasts and asked her to do a Atable dance@ for him.
Mistreatment of Prisoners Impregnated by Guards
In at least one instance prior to March 1992, a prisoner at GWCI became
pregnant by a corrections officer.52 According to Jane Doe 1, the supervisor on her
work assignment had been repeatedly Acoming on@ to her. Then, one day, the
supervisor allegedly cornered and raped her. Both before and after this incident,
she reportedly spoke to her counselor on at least three occasions to request a change
of assignment, but her request was denied by the warden. At one time, she said, she
stopped reporting to work but returned after she was threatened by prison officials
with segregation. When she missed a menstrual period after her rape, Jane Doe 1
51

Evans v. Department of Corrections, before the State Personnel Board for the State of
Georgia.

52
The Atlanta Journal-Constitution found that the state paid for twenty-eight abortions
between 1989 and 1991, but could not obtain a breakdown between abortions for women
who came into the system pregnant and those impregnated by staff. Rhonda Cook,
APrisoners allege frequent sex with staff: Prisoners claims state paid for coerced abortion,@
Atlanta Journal-Constitution, March 11, 1992.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

told her supervisor she thought she was pregnant. She told us he responded, AI
could always beat it out of you.@53
Days later, in May 1989, approximately seven weeks after the rape, Jane
Doe 1 reportedly was called into the warden's office early in the morning. She
alleges that the warden at the time, Gary Black, Atold me if I did not get an abortion
then I would not get parole.@ Jane Doe 1 stated that she never consented to the
abortion but was forced to have one by then Warden Black. She told us, AI never
consented to Black. I never signed anything indicating consent.@ The conversation
was reportedly overheard by Black's secretary who, according to Jane Doe 1, came
forward as a witness in Jane Doe 1=s civil suit against the state.
Despite her unwillingness to undergo the abortion, she was taken out of the
prison at 4:00 a.m. and driven to an Atlanta clinic where the procedure was
performed. At the clinic, she was Adragged through a picketing group of antiabortion activists.@ She described the whole experience as emotionally wrenching.
She was very depressed following the abortion, but was not offered therapy for over
five years. Another former employee, who escorted Jane Doe 1 to the hospital for
the procedure, kept copies of the check written by the GDC and Jane Doe 1's
medical record to support Jane Doe 1's allegations.
Privacy Violations and Mentally Ill Prisoners

53

Interview, Georgia, March 1994.

Georgia

203

Women prisoners with mental illnesses have been particularly vulnerable
to privacy violations, in some instances so severe that they amounted to torture or
cruel, inhuman or degrading treatment. Women incarcerated in the Mental Health
Unit at GWCI, perceived to be suicide risks, were forcibly stripped by male and
female staff and placed in restraints, including straightjackets or four-point
restraints. In some cases, women were stripped and left hog-tied in their cells.54
The women were then left naked for up to three days where they could be viewed by
members of the opposite sex. Videotapes of women being stripped sometimes
revealed discrepancies between officers' reports of their treatment of prisoners and
the visual record. In one incident, the officer's report neglected to reveal that a
prisoner's hands and feet were shackled, a point made clear by the video.55

54

Rhonda Cook, "Official directive to stop hog-tying prisoners ignored," Atlanta JournalConstitution, September 16, 1992. According to Lisa Burnette, this method of restraining
prisoners is called hog-tying because the women were tied like cattle at a rodeo: their hands
are tied behind their backs at the wrists, their knees are bent and their legs are tied around the
ankles. Then, the ankles are tied to the wrists. Women restrained in this manner were left
straightjacketed on their stomachs, or, many times, completely nude. Telephone interview,
Lisa Boardman Burnette, attorney, June 6, 1995.
55

Cook, "Official directive to stop . . .." Atlanta Journal-Constitution.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The GDC policy in place required prison personnel to employ the least
restrictive means possible to restrain disruptive or mentally ill prisoners but was
silent on the stripping of prisoners, the use of videotapes, and the presence of
correctional officers of the opposite sex.56 According to press reports, the then
deputy commissioner of the GDC, Lanson Newsome, told wardens in November
1991 never to hog-tie psychiatric patients. The practice, however, continued at the
women's prison until April 1992, when a new warden and administration were
installed.57
Attorney Bob Cullen told us that it is virtually impossible to obtain an
accurate assessment of the number of women who were victimized in this way,
since many of the GDC=s logbooks vanished. Based upon the remaining logbooks,
Cullen found that at least sixty-four women incarcerated at GWCI were forcibly
stripped and restrained over an eight-month period from 1991-1992.

After Cason
Our inquiry focused not only on past abuses but also on more current
instances of sexual misconduct in Georgia women=s prisons. We recognize that
since the Cason lawsuit was amended in 1992, the GDC has taken important steps
to improve its investigation of and response to allegations of custodial sexual
misconduct. Nonetheless, on many issues, the necessary reforms were only
56

See Georgia Department of Corrections Standard Operating Procedures, "Mental Health
Services: Physical Restraints," Ref. No. VCO1-0014 (effective date May 1, 1988); Georgia
Department of Corrections Standard Operating Procedures, "Stripped Cells and Temporary
Confiscation of Personal Property," Ref. No. IIBO8-0005 (effective date October 1, 1989);
Georgia Department of Corrections Standard Operating Procedures, "Use of Force and
Restraint For Inmate Control," Ref. No. IIBO8-0001 (effective date October 1, 1991).
57

Cook, "Official Directive to stop . . .." Atlanta Journal-Constitution.

Georgia

205

instituted after persistent prodding from Cason class counsel, supported by the
court, raising concerns regarding whether such improvements will prove to be deeprooted and permanent.
Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
The initial publicity and subsequent court orders stemming from the Cason
lawsuit had a noticeable effect in reducing the level of abuse. Advocates
monitoring the women's prisons noted a decline in the frequency and severity of
sexual misconduct and what they describe as Aperverse sexual behavior.@58 Most
notably, incidents of forced sexual intercourse have declined precipitously.
Instances of rape, sexual assault or abuse, and sexual harassment by corrections
staff have nonetheless continued to occur, though the climate of impunity that
existed prior to the suit has dissipated. Bob Cullen told us that he has learned of
approximately 370 reported incidents of sexual misconduct since March 1992, a
number of which have been detailed in press reports.59
In one case a female prisoner, Dolores T., reported that she was sexually
involved with a religious leader employed by the GDC who provided her with
marriage counseling. After several prior counseling meetings, the religious leader
arrived at the prison one evening in August 1992 and called her to the chapel.
When she got ready to leave, he reportedly embraced her and made a move to kiss
her, but she pulled away. She told us, AIt was too long . . . I was uncomfortable and
felt threatened.@60
Approximately two weeks later, Dolores T. saw him again during a
scheduled service that, she said, only she attended. He had allegedly told the other
women that the service for the evening was canceled. That night, he reportedly
grabbed her ankle and wanted to know why she pulled away on the other occasion;
they kissed and he fondled her. She subsequently had three Asexual encounters@
with the religious leader over the next two months. The relationship ended when
she discovered he was involved with two other prisoners. Dolores T. told us that he
was fired after his wife discovered collect phone calls that Dolores T. and other
prisoners had made and letters they had written to him.

58

Interview, Lisa Boardman Burnette, attorney, Atlanta, August 4, 1994.

59

Interview, Bob Cullen, attorney, Atlanta, February 7, 1996.

60

Interview, Georgia, March 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In May 1993 two kitchen workers at Washington CI were suspended for
alleged sexual misconduct with incarcerated prisoners.61 Describing sexual
misconduct by staff there, social worker Darien Bogenholm said, "You go there to
meet a mate and have a baby," and "It's an atmosphere of a middle school bus in the
summer time."62 She told us:

61

Rhonda Cook, "2 employees suspended over new claims of inmate sex," Atlanta JournalConstitution, May 1, 1993.
62

Interview, Darien Bogenholm, social worker, Georgia, August 4, 1994.

Georgia

207
There is sex all overCthe kitchen, the utility roomCit seems.
The guards are known to be touchers and sexually inappropriate.
There is a lot of discussion of the women's sex lives in the free
world.63

Sexual misconduct persisted at other facilities as well. In June 1993 a
teacher at GWCI/Baldwin was suspended and ultimately fired after he raped a
prisoner.64 In September 1993 one corrections officer was fired from
GWCI/Baldwin, and another was transferred to a men=s facility for sexual
misconduct with prisoners. The first officer, according to press reports, allegedly
had "sexually explicit and suggestive" conversations with a prisoner, sent her cards
and flowers, and gave her his home phone number. The second officer, accused of
impregnating a prisoner at GWCI/Baldwin, was transferred pending DNA testing to
determine paternity, and later fired.65
At Metro CI, another prisoner told a number of corrections employees of
her sexual involvement with male staff but received no response for months.
According to her affidavit, she was approached by a male corrections officer and a
maintenance employee around Christmas 1993 and began to have sexual relations
with them in March and April 1994.66 During this time, the woman discussed her
63

Ibid.

64

Rhonda Cook, APrison guard acquitted on all counts: Prisoners who alleged abuse
>unbelievably upset,=@ Atlanta Journal-Constitution, June 24, 1993.
65

Rhonda Cook, "2 guards disciplined at prison for women: Charges involving sex lead to
firing, transfer," Atlanta Journal-Constitution, September 30, 1993.
66

Telephone interview, Robin Hutchinson, attorney, February 16, 1995.

208

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

sexual relations with an athletics coach at Metro CI and also told a number of
corrections officers. At one point, she reportedly informed an officer that she
believed she was pregnant, and he told her to Apray about it.@ She also allegedly
requested a pregnancy test from the medical clinic, but no test was given, nor did
anyone ask any questions. The situation was finally revealed in April 1994, when
the woman told the warden and her attorney, yet she reportedly had sexual
intercourse with one of the male staff days later.
Prisoners= difficulties in obtaining goods, even relatively minor items,
enhance their vulnerability to sexual misconduct. Unlike other states we visited,
Georgia does not provide prisoners with a stipend for their work. As a result,
prisoners are financially dependent: they must rely on state allocations to obtain
personal items, including clothing and personal hygiene supplies, or they must
depend on their families or friends to purchase them. Until the last couple of years,
the GDC provided a very limited supply of sanitary products, including toilet paper.
Cullen told us that when he began the case, he Acouldn=t go through a day of
interviewing without hearing complaints about this.@ These restrictions, said
Cullen, Aencouraged problems because the women will do whatever they have to, to
get what they need.@67 Similarly, a surprising proportion of the reported instances of
sexual misconduct during 1995 stemmed from a new state prison policy banning
cigarettes. Imposed in July 1995, it immediately created a tremendous black market
in cigarettes and a trade in sex for cigarettes. As of February 1, 1996, however, the
ban was lifted: all facilities now permit smoking in the outdoor areas.
Mistreatment of Prisoners Impregnated by Guards
There has been at least one case of a prison employee impregnating an
inmate at Washington CI since the Cason suit was filed. In 1994 a prisoner at
Washington CI was impregnated by a male teacher on staff.68 The teacher
reportedly asked the woman to remain after class, then took her into the bathroom.
She allegedly took off her pants, bent over and he entered her from behind. The
woman informed the teacher when she discovered she was pregnant. He reportedly
brought her, over a period of days, a substance thought to be quinine to induce a
miscarriage. Attorneys on Cason assert that the woman was given a pregnancy test
and a sonogram in mid-March 1994, after another prisoner reported the incident.
Bob Cullen told us this sonogram revealed that the fetus was dead, but no action
67

Telephone interview, Bob Cullen, attorney, February 16, 1995.

68

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

Georgia

209

was taken for approximately a month to give the woman an abortion.69 Medical
records we reviewed did not indicate when the woman was first given a pregnancy
test or a sonogram. The records did show that on the day the abortion was
conducted, nearly a month after Cullen states the incident came to the attention of
authorities, the woman received a sonogram.
Privacy Violations and Mentally Ill Prisoners

69

Ibid.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

GDC policy permits male correctional officers to conduct pat-searches,
although it stipulates that such searches Abe conducted, when possible, by an officer
of the same sex.@70 The policy also states that strip searches of female prisoners
should be conducted by female corrections officers, except in case of emergency
and Aonly if a correctional officer of the same sex is not available.@71 In practice, we
were told, in the last few years only women guards conduct pat- and strip searches
of women prisoners. Attorney Burnette on Cason believes that this de facto ban is
of critical importance in protecting female prisoners from abuse.72 She notes,
however, that over one-tenth of recent misconduct complaints involve women staff
and that a high proportion of such allegations involve abusive searches.

70

Georgia Department of Corrections, "Searches, Security Inspections and Use of Permanent
Logs," Reference No. IIB01-0013 effective date December 1, 1991.
71

Ibid.

72

Interview, Lisa Boardman Burnette, Atlanta, February 6, 1996.

Georgia

211

Until March 1996, there was no statewide policy restricting the use of male
officers in women=s housing units; different prisons had different rules on the
subject. At GWCI, only female corrections officers were assigned to work the
women=s housing units and dorms. In addition, GDC rules required that male
officers be escorted while in the dorms.73 However, according to testimony
presented at several disciplinary hearings, this policy was Anot consistently
enforced@ and was often ignored by high ranking male supervisors.74 At Pulaski,
which had the highest proportion of female officers of any Georgia women=s prison,
male officers were not assigned to housing units. But even there, we were told, men
would walk around the units and the day rooms without announcing their
presence.75 Women we interviewed at Metro reported that a large number of male
officers were assigned to their living units, including segregation units. While they
said some officers called out Aman on the hall@ before entering, others did not
announce their presence.76 Some women told us that male officers at Metro would
enter their cells, even when they placed paper over the window, and stand outside
the showers when they were naked. Since a consent order signed in March,
however, only female staff can be assigned to women=s housing units, reducing the
likelihood of privacy violations.77 In addition, pursuant to Cason, the GDC
promulgated a new policyCmade part of another consent order78Crequiring all male
staff members to announce themselves before entering any area where women
prisoners might be undressed, and to allow the prisoners an appropriate amount of
time to dress.79

73

Stanley v. Department of Corrections, before the State Personnel Board, Appeal No. 9353, p. 6.
74

Ibid., p. 13.

75

Telephone interview, Lisa Boardman Burnette, attorney, May 9, 1995.

76

Interviews, Atlanta, March 1994.

77

Cason v. Seckinger, Consent Order, March 8, 1996.

78

Cason v. Seckinger, Consent Order, December 12, 1995.

79
Georgia Department of Corrections Standard Operating Procedures, ABodily Privacy,@ Ref.
No. VG01-00-77 (effective date March 28, 1996).

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

As another consequence of the Cason suit, the GDC entered into a consent
decree on September 15, 1994 to change its policy on restraining and stripping
mentally ill prisoners. The new policy specifically prohibits the Atethering or
restraint in a hog-tied position,@80 as well as the stripping of mentally ill inmates,
unless the clothing could be used for self-injury or destruction of property. Even
then, stripping is only allowed upon a doctor=s order.81 Prisoners who are stripped
are to be offered a paper gown and panties. According to Bob Cullen, the GDC
appears to be adhering to this policy.

THE SYSTEM'S RESPONSE
International human rights law obligates national governments not only to
prohibit torture and cruel, inhuman or degrading treatment but also to ensure that
when such abuses occur they can be reported and fully and fairly investigated
without the complainant fearing punishment or retaliation from the authorities. U.S.
law, additionally, guarantees prisoners access to the courts to challenge abusive
prison conditions and other problems.
Without question, the prison context, in which officers are granted
significant power over the daily lives and welfare of their charges, carries with it an
inherent potential for custodial abuse. The state, having established a
fundamentally unequal relationship between prison staff and prisoners, is
responsible for ensuring that staff members do not wrongfully exploit this
inequality. Particularly given the reliance on cross-gender guarding, the authorities
must formulate policies and procedures to ensure against custodial sexual
misconduct and to facilitate the reporting and investigation of such abuse when it
occurs.
80

Georgia Department of Corrections Standard Operating Procedures, "Mental Health
Services: Physical Restraints," Ref. No. VH01-0014 (effective date May 1, 1994).
81

Ibid., "Mental Health Services: Seclusion Cell, Stripping of Inmates, and Temporary
Confiscation of Personal Property," Ref. No. VH01-0023 (effective date May 1, 1994).

Georgia

213

Prior to Cason, the mechanisms available for reporting and investigating
custodial sexual abuse in Georgia were so seriously flawed as to be almost useless.
At that time, in addition, the environment within the correctional system made it
difficult for women to come forward with such complaints without fear of
retribution. Even now, after procedures have been substantially reformed, obstacles
still exist that hinder women from fully enjoying their right to report abuses and to
see them remedied.
Before Cason
Failure of the complaint mechanisms within Georgia women's prisons and
routine blindness by the leadership at GWCI and within the GDC more generally to
allegations of rape and sexual assault or abuse contributed to the perpetuation of
sexual misconduct by prison staff. In the period preceding the Cason amended
complaint, that is, until March 1992, the environment within Georgia women's
prisons was hostile to women and staff coming forward with allegations of
misconduct.
Prison employees at GWCI freely engaged in sexual relations with
incarcerated women with the knowledge that the women had little, if any, ability to
report such behavior. Where women attempted to report abuse, they were targeted
for retaliation by prison staff and thwarted by a general GDC presumption that
prisoners lie and that, without staff corroboration, their assertions should
automatically be dismissed. Fellow officers, furthermore, turned a blind eye to
sexual relations as long as the staff member maintained a minimal level of
discretion. Those employees who attempted to report sexual misconduct by their
colleagues were often ignored and even harassed at the institutional level. Only in
cases where the abuse simply could not be ignored, as in cases of pregnancy or
where another member of the staff happened upon a colleague in the act, was any
action taken. However, even in these cases, the GDC either permitted the guilty
individual to resign or transferred him to another facility rather than take
appropriate disciplinary action, including dismissing the staff person in question and
referring the case to the district attorney for possible criminal prosecution.
Grievance Procedure
The GDC has a grievance procedure that in principle enables prisoners to
complain about Aany condition, policy, procedure or action over which the
department of corrections has control.@82 In practice, however, this mechanism was
82

Georgia Department of Corrections, Standard Operating Procedures, Reference No. IIB050001, November 1, 1990.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

largely unavailable to women prior to 1992. As a result of either their direct
personal experiences or their general impression that the procedure was ineffective,
incarcerated women seldom resorted to it.
The problems with the grievance mechanism stem from both its design and
its implementation. The procedure itself, which stipulates that Awhenever possible,
inmate complaints and grievances should be resolved on an informal basis without
the filing of a formal grievance,@83 discourages the actual filing of grievances.
Instead, priority is placed on conciliation and negotiated solutions. Whatever the
advantages of this approach with regard to ordinary complaints, it is utterly
inappropriate for complaints of custodial sexual misconduct. Women prisoners=
concern that offending staff members would learn of their grievances deterred them
from reporting abuses.
Moreover, the grievance mechanism=s bias against the formal institution of
complaints was greatly reinforced before 1992 in practice. According to one
institutional counselor:
The grievance procedure was a joke. My job was to convince the
inmate not to file the complaint. I would try to resolve the
situation without it. Really though, I was not to give the
prisoners grievances. If one was filed, I was responsible for
investigating it. The supervisors would not. Nothing happened
with the grievances and the women were often retaliated
against.84

83

Ibid.

84

Interview, Atlanta, March 1994.

Georgia

215

Bob Cullen echoed these comments. He told us, AThe grievance procedure
is irrelevant to the women reporting [sexual misconduct]. The women must get
permission from their counselors to grieve.@85 Cullen reviewed the records of many
of the women involved in the Cason suit and was active in bringing their allegations
to light. By reviewing these records, he learned that counselors at the prison often
talked women out of filing grievances.
One of the few occasions in which the counselor cited above allowed a
prisoner to file a grievance was when the prisoner reported that a staff member in
the dental lab had propositioned her. When the counselor consulted a supervisor to
inquire how to proceed, the supervisor told the counselor to Ainvestigate@ the
grievance and to state that it was unfounded. According to the counselor, the
supervisor said, ADid anyone see [the incident]? Since he denied it, without a
witness, there=s your answer.@
Internal Investigations
Prior to March 1992, in a limited number of cases, the GDC conducted
internal investigations into allegations of sexual misconduct by prison staff at the
women's prisons. There was no written policy or procedure for conducting these
investigations. Allegations were generally raised at the institutional level, through
letters or complaints to staff, or by staff observations and reports. The warden often
conducted the investigation himself by interviewing the prisoner raising the
allegation or the implicated officers.86 In some cases, it was then turned over to the
GDC Internal Affairs division (IAD), which is located in Atlanta.87 Investigations
85

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

86

Deposition of Gary Black, former warden, Georgia Women=s Correctional Institution,
February 21, 1994.
87

Interview, Lisa Boardman Burnette, attorney, Atlanta, August 5, 1994.

216

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

appeared to be conducted promptly by the IAD, but charges against officers were
rarely substantiated because the testimonies of incarcerated women were rarely
deemed credible. Where an allegation involved the prisoner=s word against the
employee=s, the GDC seldom took disciplinary action.88

88

Ibid.

Georgia

217

Many allegations of sexual misconduct were simply never investigated. A
GDC senior investigator and the current and former directors of Internal Affairs
testified in February 1994, in a disciplinary hearing, that prior to March 1992 it was
the policy or practice of the GDC to cease an investigation if an employee resigned
voluntarily.89 According to attorney Lisa Burnette, this approach did not
necessarily prevent the GDC from rehiring the employee at a future date. She
explained that a code is placed in an employee's personnel file to indicate whether
the GDC could rehire him. If a person resigns, a Ano rehire@ code was not
necessarily entered into the file.90
Intimidation
Prisoners who reported sexual misconduct risked not only disbelief by the
prison administration but also intimidation by the employees they implicated.
According to the testimony at Philyaw=s disciplinary hearing of Anne Collins, a
counselor at GWCI/Baldwin, Philyaw attempted to intimidate both Collins and a
Jane Doe she was assisting. Collins testified that Jane Doe 15 approached her one
afternoon to discuss a disciplinary report she received for contraband. She told
Collins that she had received the contraband from Philyaw. She also informed
Collins that she was afraid that Philyaw and other prisoners might retaliate against
her for speaking out because Philyaw Adid them favors.@91 After this conversation,
Jane Doe 15 prepared a written statement implicating Philyaw.
The harassment allegedly occurred the evening after Jane Doe 15 prepared
the report. Collins testified that Jane Doe 15 returned to her office in an agitated
state, disheveled and crying because she feared Philyaw would learn about her
report. Collins was working a late night shift and was the only counselor on staff at
89

Testimony of Richard Richards, Edward Walker and Thomas Walton, in the disciplinary
hearing of Thomas Walton, February 9, 1994.
90

Interview, Lisa Boardman Burnette, attorney, Atlanta, August 5, 1994.

91

Philyaw v. Department of Corrections, p. 161.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

the time. During this meeting, Philyaw appeared and began walking through the
office and loitering outside the doorway. After Philyaw passed through the office
several times, Collins became extremely concerned, both regarding her own safety
and that of Jane Doe 15. Indeed, she tried to try to place Jane Doe 15 in protective
custody but was unable to reach the security supervisor.
Staff Reporting
In addition to obstacles in their own reporting of sexual misconduct,
incarcerated women could not rely on prison staff either to report sexual misconduct
or to protect prisoners from retaliation if the latter raised complaints. As one former
employee told us, AThat's the way the system wasCyou keep your mouth shut about
the rumors and allegations.@ This person knew one colleague who avoided the
administration building when she worked late at night for fear of seeing a staff
person engaging in sex with a prisoner.92
According to the disciplinary decision against Deputy Warden Cornelius
Stanley, even where staff reported misconduct, their allegations often were not
treated any more seriously than those of prisoners, and an investigation was not
necessarily launched. Stanley's disciplinary record reveals that in September 1991,
Collins informed her superiors about Philyaw's involvement with Jane Doe 15.
Both Collins and Jane Doe 15 submitted written statements that were then given to
Stanley.93 Collins testified that Stanley approached her a week later and told her
that he was handling the investigation and that she need not concern herself with the
matter any further. No investigation, however, was initiated until three months
later, in January 1992, when the warden directed someone to look into the
allegations.94

92

Interview, former Georgia prison employee, Atlanta, March 1994.

93

Stanley v. Department of Corrections, p. 6.

94

Ibid., pp. 7-8.

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219

Impunity
The failure to discipline officers for sexual misconduct and, where
appropriate, pursue criminal charges against them, was intimately connected to the
GDC's faulty policy and procedure for conducting investigations. Prior to March
1992, in those instances where employees agreed to resign, the GDC ceased
investigating the allegations and made no referral to the district attorney, even
where the employee admitted to sexual contact with an inmate in violation of the
state=s felony provision. The law=s disuse was apparently not a matter of oversight
but of design. Indeed, Bobby Whitworth, then commissioner of corrections, stated
that it was departmental policy not to enforce the felony provision.95 Whitworth
told ABC's ADay One@ that it was Athe policy of this agency prior to 1990 really not
to press for prosecution. It was a policy that if we had an officer or a staff member
who engaged in sexual relations with a prisoner [they] were either terminated or
fired.@
In other words, the GDC actively and knowingly failed to protect women
in its custody from the criminal acts of its employees. Department employees, as a
result, were able to sexually assault prisoners at the risk only of losing their jobs.
Even then, it appears they may have risked only a temporary loss of employment.
During the period preceding Cason, corrections staff caught engaging in sexual
misconduct were generally let off with minor chastisement, transferred to other
facilities, or permitted to resign rather than face investigation or be demoted. The
employee who impregnated Jane Doe 1, one of the Jane Does, was permitted to
resign with no admission of guilt, rather than face a departmental investigation.
Warden Black told GDC leadership that he hoped the employee could find a new
position in another Georgia corrections facility.
The decision to retain staff and close investigations, even in the presence
of substantiating evidence, was upheld at the highest levels of the GDC. In
95

A senior investigator and former director of Internal Investigations similarly testified in
February 1994 that it was the policy or practice of the department to cease investigations
when an employee resigned.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

numerous incidents, the deputy commissioner closed investigations where charges
of misconduct were substantiated, upheld minor disciplinary sanctions and failed to
refer credible allegations to the district attorney for prosecution.96 Throughout his
tenure, the former commissioner of the GDC was regularly kept appraised of the
findings and disposition of such investigations.

96

Until March 1992 sexual misconduct was investigated and referred to under the catchall
term Amisconduct.@ Following the amended complaint filed in Cason, the terminology for
such investigations changed.

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221

The GDC's failure to sanction employees appropriately, by dismissing
them and referring their cases as appropriate to the district attorney, amounted to
complicity in the staff's misconduct and abuse. In at least two circumstances,
employees who received only minor reprimands persisted in their misconduct. As
noted earlier, a 1990 investigation found that Baby Ray Griffin was found
cohabitating with Jane Doe 11, a recent parolee. Griffin was not punished. Rather,
the deputy commissioner closed the investigation and retained Griffin in his
position following Aextensive counseling@ for his Aquestionable judgment and
conduct.@97 According to Griffin's disciplinary hearing, the reprimand had no
impact on Griffin's behavior. He continued his relationship with Jane Doe 11 and,
she testified, he became verbally and physically abusive, threatening to have her
parole revoked if she left him.98
In 1990 an investigation substantiated charges that the store manager at
Milan, Samuel Evans, was trading store goods for sexual favors. The employee
initially received only a salary reduction and verbal instructions on how to conduct
his job.99 He was only dismissed two years later, after Cason was filed, when he
was found to be engaging in the same conduct with additional prisoners.
After Cason
When the Cason suit was amended in 1992, the GDC entered a period of
internal review of the past allegations of sexual misconduct raised by the amended
complaint. Old investigations were reopened and reexamined, and a number of
corrections officers and other prison staff were disciplined. Changes were also
made regarding the supervision of incarcerated women.
Investigations and Disciplinary Action
97

Griffin v. Department of Correction, p. 8.

98

The investigation was reopened the following year, after the lawsuit was filed. The
department charged that the employee, Baby Ray Griffin, Awould physically and verbally
abuse and intimidate [the woman] and would threaten to have her parole status revoked if
she revealed to other parties . . . the nature of [his] relationship with her.@ Griffin was
dismissed in March 1992 and indicted in November 1992 for violating the Georgia felony
provision outlawing sexual contact with a prisoner or parolee. Griffin was never tried; the
district attorney, as in other cases from GWCI, eventually dropped the charges against him.
99

Evans v. Department of Corrections, before the State Personnel Board for the State of
Georgia, Appeal No. 93-29, p. 5.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In March 1992, the GDC deployed an investigator, Andie Moss, to GWCI
to examine the allegations raised by the Cason suit and to give her assessment to the
deputy commissioner and commissioner.100 While the prisoners' names were
otherwise protected by court order, according to which they were identified only as
Jane Does, both Moss and the GDC leadership knew who each woman was. The
Georgia Bureau of Investigations (GBI) was also called in to interview those
prisoners who had filed affidavits.

100

Interview, Andie Moss, then assistant deputy commissioner for women's services,
Georgia Department of Corrections, Atlanta, March 22, 1994.

Georgia

223

Moss=s investigation focused on allegations raised by and predating the
Cason suit. Many of these allegations, found unsubstantiated prior to March 1992,
were, upon reinvestigation, substantiated and found sufficient for disciplinary
action. According to Bob Cullen, the differing results in response to the same
allegations were due in large part to the GDC=s new willingness to give weight to
prisoner testimony.101
Fifteen employees, including Philyaw, Griffin and Stanley, were suspended
and eventually fired, or otherwise disciplined for sexual misconduct or misconduct
associated with the Cason litigation. Pursuant to civil service regulations governing
the terms of their employment, Philyaw, Stanley, Griffin, and several others
appealed their dismissals, which were upheld by the reviewing administrative judge.
Not all dismissals sought by the GDC were granted, however. Art Gavin,
the warden who succeeded Gary Black, was disciplined but not fired. Gavin was
discovered copying and providing confidential information about certain Jane Does
to Jackie Lee, a female correctional officer at GWCI who was, at the time,
suspended amidst allegations of sexual misconduct. The GDC also did not seek to
terminate Gary Black. Rather, in January 1993, Black was demoted and reassigned
as a program coordinator to the northeastern regional office.102 He later filed suit in
federal court seeking his job back, as well as $500,000 in pain and suffering and $1
million in punitive damages.103 The case has not yet gone to trial.104
101

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

102

Deposition of Gary Black, former warden, Georgia Women=s Correctional Institution,
February 24, 1994.
103

104

APrison System Sued,@ Atlanta Journal-Constitution, December 30, 1994.

Telephone interview, Joseph Ferraro, attorney, Georgia Department of Corrections,
February 29, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Criminal IndictmentsC
CFailed Prosecutions
For the first time, the GDC also referred many cases of sexual misconduct
to local prosecutors for criminal action.105 In October and November 1992,
indictments were handed down against fourteen former GWCI or Colony Farm
employees on state criminal law charges ranging from sodomy and sexual assault
against a person in custody to rape.106 A fifteenth defendant was later indicted after
DNA testing showed him to be the father of a prisoner=s baby. The sexual acts
alleged in the indictments took place between 1983 and 1992 and involved more
than twenty-five prisoners.
105

According to Joe Briley, then Baldwin County prosecutor, the law had been invoked only
twice before and both times for incidents in county jails, not state prisons. Interview, Joe
Briley, former district attorney, Gray, Georgia, March 24, 1994.
106

Under Georgia=s penal code, rape, sexual assault against a person in custody, and sodomy
are three distinct criminal offenses. Oral and anal intercourse are criminalized as sodomy.
Where an employee allegedly engages in oral or anal intercourse with a prisoner, the
employee is charged with sodomy as well as sexual assault against a person in custody.
Although Human Rights Watch supports the criminal prosecution of prison staff
guilty of sexual contact with prisoners, we believe that the crime is predicated on the abuse
of custodial authority, not on the irrelevant distinctions between oral, anal and vaginal sex.
We are also sensitive to the abuse of sodomy laws against sexual minorities. For that reason,
we believe that instances of custodial sexual abuse should be prosecuted under Georgia=s
sexual assault lawCor, where applicable, its rape lawCbut not under its sodomy law.

Georgia

225

Only two defendants were actually brought to trial on these charges,
although two others pled guilty and were sentenced to terms of probation. The first
to be tried, Lt. James Philyaw, was charged with twenty-one counts of sexual assault
and sodomy involving eight women, for incidents which occurred over a period of
five years. He was acquitted in June 1993, despite extensive testimony against
him.107 The jury deliberated only twenty minutes.

107

Cook, "Prison guard acquitted . . . ." Atlanta Journal-Constitution.

226

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Philyaw's trial was marred by a number of irregularities that contributed to
his acquittal. First, there were difficulties seating an impartial jury. The criminal
trial was held, pursuant to Georgia law, in the same county where GWCI was
located. The county is heavily dependent on the state correctional system for
employmentCit is home to four other state institutions, including three prisons. Of
the fifty-six people from whom the jury was selected, twenty-eight either had a
friend or relative working for the GDC.108 At least another ten members of the jury
pool were then presently or formerly employed at a correctional institution. The
jury itself included a man whose son worked at a correctional institution, another
whose uncle worked in one and a woman, who served as the jury foreman, whose
cousin was one of those indicted.109 One of the alternates was a former GDC
employee who knew three of the indicted defendants.
Secondly, then District Attorney Joseph Briley, who oversaw GWCIrelated prosecutions, did not engage in a vigorous prosecution of the defendant.
Briley believed that the felony of sexual contact with a prisoner was a crime without
a victim. He viewed the women prisoners as accomplices and contemplated trying
for sodomy those prisoners who engaged in oral sex with corrections officers; in
fact, he told us, Athe women themselves could have been charged as aiding and
abetting the commission of a crime.@110 In his opinion, sexual relations between
prisoners and prison staff are inevitable when Apretty young things@ are locked up
and deprived of sex; the officers, he said, were merely guilty of giving in to
temptation.111
Witnesses called to testify by the prosecution report that Briley did not
prepare them for trial and did not present relevant testimony. One witness told us
108

Interview, Robin Hutchinson, attorney, Bondurant Mixson & Elmore, Atlanta, August 5,
1994. See also Rhonda Cook, AFirst trial underway in prison sex scandal: Finding jurors
with no connection to corrections system was difficult,@ Atlanta Journal-Constitution, June
15, 1993.
109

Ibid.

110

Interview, former district attorney, Joe Briley, Gray, Georgia, March 24, 1994. A similar
willingness to punish women prisoners who had sexual contact with guards had previously
been voiced by Georgia State Representative Terry Coleman (Democrat-Eastman), whose
legislative district included a women=s facility. Rhonda Cook, ALegislator: Guards not sole
culprits in sex case,@ Atlanta Journal-Constitution, October 28, 1992.
111

Ibid.

Georgia

227

that, when she was on the witness stand, Briley never questioned her about sexual
abuse of which she had firsthand knowledge. He reportedly cut her off when she
tried to highlight such information in her testimony.112

112

Interview, Georgia, March 1994.

228

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

After Philyaw=s acquittal, indictments in other cases languished: some were
expressly dismissed, others expired. At the time of our interview in March 1994,
Briley had no timetable to proceed with prosecution, blaming the slow pace on an
absence of available judges. In June 1994, Briley dropped charges of rape and
sodomy against former Deputy Warden Cornelius Stanley.113 Briley himself was
forced to resign in August 1994 after he was caught on tape making sexual advances
to a female staff member.114 Press reports indicate that a second woman also came
forward with similar charges.115
The original indictments resulted in only two convictions: both were based
on guilty pleas, and both men were sentenced to probation in 1994. Indeed, to our
knowledge, no custodial sexual misconduct prosecution to date has resulted in
prison time for the guilty party. The only other case that went to trial, that of Julien
Edwards, ended in acquittal in April 1996 despite the fact that DNA evidence,
indicating a match of one in 57,000, showed that he was the father of a prisoner=s
baby.
With later indictments, prosecutors have only obtained convictions via plea
bargaining and have always settled for imposing terms of probation. A typical case
is that of two maintenance workers at GWCI. Convicted in 1994 of three counts of
sodomy, one count of sexual assault on a person in custody, and one count of
aggravated sodomy, the first defendant was sentenced to five years= probation and a
$1,000 fine. The other defendant, who was convicted of one count of sodomy and
one count of sexual assault against a person in custody, received twenty months=
probation and a $1,000 fine.116
Not all GDC employees implicated in pre-1992 incidents of sexual
misconduct were even indicted. The district attorney in Telfair County, home to
Milan CI, was unable to secure indictments and prosecute GDC employees for
allegations arising there. According to press reports, shortly after Philyaw was
acquitted in June 1993, a Telfair County grand jury declined to indict eight GDC
113

"Guard in sex case gets job back," Atlanta Journal-Constitution, December 9, 1994.

114
"Ocmulgee DA was told to quit, GBI report says," Atlanta Journal-Constitution, October
11, 1994.
115

Ibid.

116
AMilledgeville: Ex-prison workers are sentenced,@ Atlanta Journal-Constitution,
September 21, 1994.

Georgia

229

employees accused of sexually abusing women incarcerated at Milan.117 Briley
ascribed these unsuccessful prosecutions to jurors= extreme reluctance to prosecute
or punish corrections employees for acts against convicted criminals.118

117

Rhonda Cook, "Federal civil rights probe targets ex-prison worker," Atlanta JournalConstitution, August 10, 1993.
118

Interview, Joe Briley, former district attorney, Gray, Georgia, March 24, 1994.

230

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The GDC=s practice of not referring allegations of sexual misconduct
promptly to local prosecutors resulted in impunity for many abuses that occurred at
GWCI prior to March 1992 because the charges were filed after the statute of
limitations had expired. For this reason, in November 1994 the state dropped
nineteen counts of sodomy and sexual assault against a person in custody against
Jackie Lee, a female officer at GWCI. The indictment had stemmed from incidents
at GWCI in 1987.119
Retaliation Against "Jane Does"
Our interviews reveal that corrections officers and prisoners have retaliated
against women involved in the Cason lawsuit as Jane Does. According to Cullen,
this harassment fuels the women's insecurities and has discouraged them from
speaking out about subsequent incidents. The AJane Does@ represented a threat to
many incarcerated women who had come to accept and even benefit from the
exchange of sex for things such as alcohol, cigarettes, gum and stamps in the
prisons. Even though their identities were ostensibly concealed by a protective
order, the Jane Does were easily identified by prison staff and other prisoners.120
After the suit was filed, the women were called "Jane Doe hos" and "Jane Doe
sluts." According to inmate Carrie Johnson:
It was hard to deal with the other prisoners who weren't Jane
Does. They are hateful and mean and give the Jane Does a hard
time. Everywhere you went, they would call you AJane Doe ho.@ .
119

120

Cook, "Prison guard accused . . .." Atlanta Journal-Constitution.

One former warden at GWCI, Art Gavin, provided confidential information about the
various Jane Does to Jackie Lee, a GWCI employee who was suspended amid charges of
sexual misconduct with prisoners. Memorandum from Commissioner=s Designee for
Adverse Action to Arthur B. Gavin, December 22, 1992.

Georgia

231
. . The officers would be with the prisoners and join them in the
teasing.121

121

Interview, Georgia, March 1994.

232

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Some of the women we interviewed indicated that, at one point or another,
they could no longer bear the pressure related to their Jane Doe status and tried to
end their participation in Cason. Corrections officers have on occasion been hostile
towards other prisoners, besides the Jane Does, whom they think may report
instances of abuse or threaten the status quo, and they have pressured prisoners not
to speak to the administration and especially to class counsel. In the words of one
Jane Doe, AOnce, here at Metro, an officer told me I had been up here snitching
after I talked to the warden.@122 Jackson similarly told us that she gets Astrange
looks@ whenever she meets with her attorney.
Changes in Leadership and Administration
The GDC has undergone various changes in leadership since March 1992.
In April of that year, a female warden, Mary Esposito, was installed at GWCICthe
first female warden of a women's prison in Georgia.123 After GWCI was converted
122

123

Ibid.

A memorandum that Warden Esposito circulated to the prisoner population at GWCI in
January 1993 suggests that she blamed prisoners, rather than staff, for the problem of
custodial sexual abuse. The memorandum notes, in an evident allusion to the abuse
allegations then receiving widespread publicity, that Ain the past we had several serious
incidents which involved not only the prisoner population, but staff as well.@ After warning
prisoners that Aserious incidents@Cincluding Asexual activity@Cwould result in criminal

Georgia

233

into a men's facility, she was reassigned to serve as warden at Metro CI.124 The
GDC also created a new supervisory post, an assistant deputy commissioner for
women's services, to oversee female prisoners under the department's jurisdiction.
Andie Moss was installed in that position, but her jurisdiction over the female
prisons was only temporary. In 1994 the GDC removed oversight of the women=s
prisons from Moss=s direct administration and returned it to the regional offices of
the GDC. In late 1995, Andie Moss left the GDC, and her remaining
responsibilities with regard to the female correctional population shifted to someone
lower in the GDC hierarchy.

prosecution, her memorandum emphasizes in closing that the facility Acannot tolerate
inmates who abuse staff, or who cause serious incidents.@ Memorandum to inmate
population, Georgia Women=s Correctional Institution, January 8, 1993 (emphasis added).
124

Esposito has since left Metro and a new female warden named Wendy Thompson was
installed. Thompson formerly served as a warden at a men's prison in the state, and at GWCI
as deputy for security. Certain women prisoners are wary of her background at GWCI and
feel she has a Avengeful@ attitude. Interview, Lisa Boardman Burnette, attorney, Atlanta,
February 6, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In July 1993, following the airing of the ADay One@ segment on sexual
abuse at GWCI, Deputy Commissioner Lanson Newsome resigned and
Commissioner Bobby Whitworth was reassigned to the parole board by the
governor.125 Dr. Allen Ault, who had served as commissioner of the GDC years
earlier, became the new commissioner.
Whitworth's position on the parole board raises concern. A number of
prominent Jane Does, including Jane Doe 1, who have come before the parole board
since 1993 have had their parole denied while other less prominent Jane Does have
received parole. According to Cullen, it is impossible to attribute the parole denials
directly to Whitworth's new position. The denial of parole to Jane Doe 1 and
another Jane Doe followed a change in parole board policy regarding the granting
of parole more generally.126 Cullen added, however, that a general perception exists
within the women's prisons that because of Whitworth's position, women are or will
be denied parole because of their involvement in the lawsuit.127 Jane Doe 1 told us
she believed her parole was denied because of her involvement as a Jane Doe and a
pending civil suit in which Whitworth is a defendant.128 Such a perception is likely
to have a chilling effect on prisoners who may wish to file complaints.
In December 1995 a new commissioner, Wayne Garner, was appointed
after Ault resigned. Judging from his early policies and public statements, his
125

Interview, Andie Moss, then assistant deputy commissioner for women=s services,
Atlanta, March 22, 1994.
126

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

127

Ibid.

128

Interview, Georgia, March 1994.

Georgia

235

primary goals in running the Georgia correctional system are to cut costs and
toughen punishments. Prisoners have raised concerns that the new punitive
atmosphere prevailing at the prisons only encourages sexual misconduct, as women
prisoners feel further intimidated by the prison environment and, faced with losing
basic privileges, have more incentive to seek Aspecial treatment@ from prison
staff.129
Since Commissioner Garner=s arrival, Bernadette Hernandez, the GDC=s
lead sexual misconduct investigator, has left the department. Her replacement is
Jane Roulain, a former investigator with the GDC Internal Affairs division.

Failure to Comply with the Court's Orders

129

Telephone interview, Lisa Boardman Burnette, attorney, August 12, 1996.

236

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Until mid-1995, the GDC failed fully to comply with the March 1994 court
order that permanently enjoined sexual misconduct, discussed at the beginning of
this chapter. To ensure enforcement of the ban, the court required the GDC to
notify its staff about the order and obtain a statement from them acknowledging that
they had read and understood the order.130 In April 1995, attorneys on the Cason
litigation filed a contempt motion that the GDC had not obtained the requisite
acknowledgments from many of the employees working in the women's prisons and
was seeking unilaterally to limit the scope of the court order. They cited an April 6,
1995 letter from the GDC's counsel to an institutional administrator informing the
administrator that the GDC's attorneys would Adecide on a case-by-case basis
whether someone should be exempted from the judge's requirement.@131 Similarly,
on April 7, 1995, the GDC informed all wardens and superintendents that it would
be seeking an exemption from the order for hospital personnel. The GDC's actions
led the attorneys to conclude in their motion that the GDC had Ano intention of fully
complying with the court's order in the future.@132
The genesis of the April contempt motion suggests the importance of
notification. Cason class counsel learned of the department=s low level of
compliance upon investigating a case of custodial sexual assault that occurred at
Metro CI. The prison employee, a member of the print shop staff, admitted having
sex with an inmate but claimed that he had never received notice of the March 1994
130

Ibid.

131

Cason v. Seckinger, Civil Action File No. 84-313-1-MAC, Plaintiff's Motion for
Contempt and Further Relief, April 26, 1995.
132

Ibid.

Georgia

237

court order. Because he had no notice of the order, he could not be held in
contempt of court for violating it.133
Plaintiffs= pressure led the GDC to greatly improve its notification
procedures. At present, no one can enter a women=s facility without signing a form
acknowledging awareness of the rules and of the Cason suit. In addition, notices
informing visitors of the case are now posted on the outer gates of the facilities.
Failure to Train

133

He did, however, plead guilty to sexual assault under Section 16-6-5.1 and was sentenced
to first offender probation. He was also fired from his employment with the GDC, receiving
a hiring code that bars him from ever again being employed by the GDC or any other state
agency. Interview, Lisa Boardman Burnette, attorney, Atlanta, February 6, 1996.

238

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The contempt motion cited above also argued that the GDC had largely
failed to implement mandatory and effective training for its employees assigned to
work in the women's prisons on sexual harassment and sexual abuse of prisoners.
Class counsel asserted that Aupon information and belief, some supervisors may be
discouraging their subordinates from attending [the sexual misconduct] portion of
the training.@134
Even where the training was provided, it did not appear directly to address
and confront the problem of sexual misconduct and inappropriate relationships.
Our review of a training session conducted by the GDC in February 1993 on staffprisoner relationships found that it focused heavily on homosexuality between
prisoners and on prisoners= adaptation to incarceration, but said little about sexual
relations between corrections employees and prisoners.
As a result of a stipulation resolving the contempt motion, however, the
training has since been improved, at least with regard to the requirements ordered
under Cason. We were told that it now lasts about a half-day and at the end of the
session the employee must take a test on the material. Employees who pass the test
receive a sticker for their I.D. cards; without such a sticker, they are barred from
entering the women=s prisons.135
An additional element of the stipulation was that the GDC agreed to
develop training for women prisoners to educate them about their right not be
sexually abused and to teach them how to report instances of misconduct. Women
who enter the prison system, while they are in the Adiagnostics@ or entry stage, now
watch a video on the subject. Though attorney Lisa Burnette thinks that the video
itself is Anot the best,@ she believes that efforts to educate women inmates regarding
their rights are of critical importance.136
134

Cason v. Seckinger, Civil Action File No. 84-313-1-MAC, Plaintiff's Motion for
Contempt and Further Relief, April 26, 1995.
135

Interview, Lisa Boardman Burnette, attorney, Atlanta, February 6, 1996.

136

Ibid.

Georgia

239

Handling of Investigations
As stated above, the review conducted by the GDC in 1992 focused solely
on actions predating the Cason suit, resulting in the reopening of old investigations.
Allegations which arose afterwards were addressed separately.
For over two years after the allegations in Cason surfaced, the GDC failed
to develop an adequate policy or mechanism for investigating sexual misconduct
and revealed a continued lack of interest and commitment to addressing allegations
of sexual abuse by prison staff. In mid-1993 the GDC assigned to the Internal
Affairs division a special investigator solely responsible for examining allegations
of sexual assault, personal dealings, and sexual misconduct in the prisons.
However, the person hired, Bernadette Hernandez, had no experience or specialized
training in investigating sexual assault or rape.137 Although she was the only
investigator, she received no training from the GDC in this area before starting her
job,138 no written guidelines for conducting her work,139 and no car to get around to
the four GDC women=s facilities for which she was responsible.
137

Hernandez formerly worked with the Atlanta Police Department, with their narcotics
investigation unit and as patrol officer. Deposition of Bernadette Hernandez, May 20, 1994.
138

According to a July 20, 1994 deposition, Hernandez received three hours of training in
sex crimes investigations in June 1994, or almost a year after she started her position as an
investigator with the GDC. She received this training after she was questioned during a May
20, 1994 deposition by Cason attorneys about her experience and training working on sexual
assault or rape cases.
139

Telephone interview, Bob Cullen, attorney, February 16, 1995.

240

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The absence of a written and clear GDC procedure for conducting
investigations contributed to irregularities and delays in the reporting and
investigation of sexual misconduct allegations. According to Cullen, who deposed
Hernandez on two occasions as part of Cason, Hernandez was left to cobble
together her own method for conducting investigations on a case-by-case basis. The
GDC failed to provide timetables and predetermined procedures for interviewing
prisoners and investigating allegations.140 As a result, Cullen told us, investigations
under Hernandez initially languished unresolved for extended periods of time. Her
deposition revealed that of the fifty-two investigations initiated since she started in
mid-1993, over twenty were still unresolved in July 1994.
The absence of a clear investigations policy, furthermore, contributed to ad
hoc decisions regarding the use of administrative segregation for several months in
1994. In early 1994 some prisoners who alleged sexual misconduct or sexual
assault were involuntarily Aseparated administratively@ or placed in segregation
pending an investigation into their charges. At the same time, the implicated staff
member remained at the institution. Hernandez seemed unaware of how the use of
administrative segregation would negatively impact the investigative process,
particularly the willingness of incarcerated women to report abuse. While
Hernandez acknowledged that being placed in segregation was Aautomatically
punitive,@ she did not think it would inhibit women from reporting abuse. Rather,
Hernandez asserted that the prisoners Awho are telling the truth don't worry about
that [being placed in segregation]@ and would simply know they were not being
punished for coming forward since she told them they would not get in trouble for
talking to her.
Rehired Former Employees

140

Ibid.

Georgia

241

In July 1994 the GDC rehired Cornelius Stanley, the former deputy warden
for security at GWCI who was fired in July 1992 on the grounds of rape and
intimidation of prisoners.141 The GDC had successfully justified his dismissal on
appeal before an administrative law judge. The judge found, by a preponderance of
the evidence, that Stanley was guilty of misconduct and had Ademonstrated . . .
unfitness to perform duties in a Correctional Institution.@142 In fact, this was not the
first occasion Stanley had been reprimanded for inappropriate conduct as a
correctional employee. In January 1990, two years before his dismissal, Stanley
was demoted from correctional manager to captain after an incident at a men's
facility where a prisoner was beaten by officers under Stanley=s supervision.143

141

Rhonda Cook, APrison guard accused of abusing female prisoners is rehired,@ Atlanta
Journal-Constitution, July 12, 1994.
142

143

Stanley v. Department of Corrections, p. 27.

According to Stanley's disciplinary hearing for events at GWCI, he was given a written
reprimand following the earlier incident "for failure to properly supervise subordinates
during an incident in which abuse of a prisoner did occur." Stanley was also suspended
without pay for seven days in 1979 for sleeping while on duty. Ibid., p. 15.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Despite his record of abusive behavior, Stanley was rehired in July 1994 as
a lieutenant at the Hancock Correctional Institution, a prison for men, at the pay of a
captain, which was the rank he held when he was fired.144 His dismissal for sexual
misconduct against female prisoners, therefore, had no impact on his employment or
his pay scale. In fact, he received over $58,000 in back pay, plus damages, when he
was rehired. The criminal charges against him were dropped.
Rehiring Stanley, according to Bob Cullen, sent a message that the GDC
does not take the issue of sexual misconduct in its facilities seriously. He told us,
A[It] hurts big time. It lowers the faith of the women in the new system for reporting
these kind of cases. If Stanley is fit to come back, then why not the others?@145 In
fact, in December 1994, the GDC reinstated Jackie Lee, who had been suspended
for nearly two years on charges of sodomy and sexual assault against a person in
custody; she too claimed the right to back pay and damages (in a negotiated
settlement, she received just over $10,000 in back pay, along with leave and
retirement benefits).146
Improved Investigations Procedure
In November 1994, more than a year after plaintiffs drafted and submitted
a policy to the GDC, the department finally agreed to adopt new standard operating
144

Cook, "Prison guard accused . . .," Atlanta Journal-Constitution.

145

Interview, Bob Cullen, attorney, Atlanta, August 4, 1994.

146

"Guard in sex case gets job back," Atlanta Journal-Constitution, December 9, 1994;
telephone interview, Karen Kirk, spokesperson, Georgia Department of Corrections, April
30, 1996.

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243

procedures for investigating allegations of sexual contact, sexual abuse, and sexual
harassment within the prisons, for handling suspected cases of sexual abuse by the
medical staff, and for providing counseling to victims of abuse.147 In addition, the
GDC employed three additional special investigators to implement the new policies
under the supervision of the lead investigator.

147

Cason v. Seckinger, Civil Action File No. 84-313-1-MAC, Consent Order, November 23,
1994. The GDC agreed to do so after one week before a trial on the issue, and after a pretrial order was filed.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The investigative procedure that went into effect in January 1995
distinguishes, for the first time, between personal dealings and sexual misconduct,
specifically defining what constitutes sexual contact, sexual abuse, sexual
harassment, and personal dealings.148 It imposes a strict obligation on staff
148
The policy provides that sexual contact includes, but is not limited to: Athe intentional
touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner
thighs, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.@ Sexual abuse includes, but is not limited
to: Asubjecting another person to sexual contact by persuasion, inducement, enticement, or
forcible compulsion; subjecting to sexual contact another person who is incapable of giving
consent by reason of her custodial status; subjecting another person to sexual contact who is
incapable of consenting by reason of being physically helpless, physically restrained, or
mentally incapacitated; and raping, molesting, prostituting, or otherwise sexually exploiting
another person.@ The policy provides that sexual harassment includes, but is not limited to,

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245

immediately to report incidents of sexual misconduct, including rumors, to the
warden or other designated persons and provides for disciplinary action, up to and
including dismissal, for failing to do so. Confidentiality is provided for the
complainant as well as the alleged victim. The procedure, furthermore, specifically
bans any retaliation against the victim or complainant, limits the use of
administrative segregation to Anecessary@ circumstances and only allows its use for
up to seven days. It allows specially trained counselors to meet with the prisoner
before she is interviewed and, in certain circumstances, to attend interviews between
the prisoner and special investigator. It also introduces a time frame for
investigations, review by the GDC commissioner, and notification to concerned
attorneys.149 A prisoner may be disciplined as a result of filing a report of abuse
Aunwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct
of a sexual nature.@ Personal dealings are defined as Acontact or business dealings with
sentenced females in violation of GDC [policy]. This includes, but is not limited to, giving,
receiving, selling, buying, trading, bartering or exchanging anything of value with any
sentenced female.@ Georgia Department of Corrections Standard Operating Procedures,
AInvestigations of Allegations of Sexual Contact, Sexual Abuse and Sexual Harassment,@
November 23, 1994.
149

Under the policy, investigators are required to prepare a preliminary investigative report
within fourteen calendar days of receiving a complaint, with a recommendation for
additional action. Attorneys working on Cason, the district attorney and other interested
attorneys must be notified of the GDC's decision on the preliminary investigation within
twenty-one days. The GDC commissioner or his designee, furthermore, must review the

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

only if it is determined that she Amade a false allegation or made a material
statement which she, in good faith, could not have believed to be true.@

investigator's recommendation and decide how to proceed. If he or she decides to continue
the investigation, the final investigation must be completed within twenty-eight days of the
allegation.

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247

Attorney Bob Cullen told us that the investigators have been Aroughly
abiding by the guidelines@ and that they are doing a decent job in evaluating
complaints, despite a marked bias against prisoner testimony described in more
detail below.150 During 1995 (from January 23 to December 31), 156 complaints of
sexual misconduct were filed under the new investigative procedure. The resulting
investigations had the following outcomes: three cases were referred to the district
attorney for prosecution, nine staff were terminated, thirteen staff resigned, five
were transferred to a male institution, one received a written reprimand, and three
were subject to other disciplinary action.151 Counsel on Cason have the sense that
investigators= recommendations for these cases have generally been followed.
Persistent Bias Against Prisoner Testimony
Unfortunately, the improved investigatory procedure has to some extent
been compromised by a renewed bias against prisoner testimony within the GDC.
According to Cullen, the GDC has moved away from viewing prisoner allegations
and testimony as credible. Immediately following Cason, the GDC relied on
prisoner testimony to support charges of misconduct against staff and called
prisoners as witnesses in disciplinary hearings. The administrative law judges, in
upholding the dismissals, noted that merely because one violated the law in the past
did not mean that person was not credible in the present. In more current
investigations, however, the GDC has reverted to its previous practice of
discounting prisoner testimony, even in instances where the prisoner passes a
polygraph test and the employee fails. Cullen told us that in his estimation
investigators presently assess prisoners= reports of abuse using an extremely
exacting standard: prisoners must prove their allegations Abeyond a reasonable
doubt,@ and prisoner testimony alone is almost never sufficient.152
150

Interview, Bob Cullen, attorney, Atlanta, February 7, 1996.

151

Interview, Lisa Boardman Burnette, attorney, Atlanta, February 6, 1996.

152

Interview, Bob Cullen, attorney, Atlanta, February 7, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

One serious problem related to the reluctance to credit prisoner testimony,
which began to crop up in late 1995, is a trend toward assessing disciplinary reports
(DRs) when prisoners= reports of sexual misconduct are found to be unsubstantiated.
Obviously the possibility of receiving a DRCwhich can result in a week or more of
disciplinary segregationCworks to discourage women inmates from filing
complaints.
Given the high standards used in evaluating prisoners= complaints, it is
clear that not only frivolous complaints result in DRs. Indeed, class counsel in
Cason have already had DRs expunged that involved reasonable complaints. In one
instance, for example, the warden imposed a DR even though the investigator
recommended against it. In another, in which an inmate reported sexual activity
that she had witnessed, there was corroborating evidence of such activityCand both
the named prisoner victim and the accused staff member failed polygraph
examinations regarding the incidentCbut the investigator found the complaint to be
unsubstantiated, and a DR was imposed. Class counsel are carefully monitoring the
use of DRs against complainants and will consider filing a contempt motion with
the court if they conclude that DRs are being used abusively.153
Lack of Independent Oversight
The federal government has not invoked its authority under the Civil
Rights of Institutionalized Persons Act (CRIPA) to investigate Georgia women's
prisons for violations of federal civil rights. It also has not filed any criminal
indictments against any corrections officers or other GDC employees for federal
civil rights violations. GDC Commissioner Allen Ault reportedly asked the
Department of Justice to conduct a federal inquiry into the situation in Georgia=s
women's prisons in July 1993, a month after Philyaw's acquittal.154 Local attorneys
informed us that while the DOJ apparently made some preliminary inquiries and
requests for information, no indictments were ever handed down.155
153

Interview, Lisa Boardman Burnette, attorney, Atlanta, February 6, 1996.

154

Interview, Andie Moss, then assistant deputy commissioner for women=s services,
Atlanta, March 22, 1994. Press reports indicate that Dr. Ault requested the DOJ to
investigate allegations that Philyaw sexually abused women incarcerated at GWCI, as well as
other allegations emanating from Washington CI and Milan CI. The broadened request
followed the failure of a grand jury in Telfair County, Georgia to indict eight people accused
of abusing incarcerated women at Milan CI. Rhonda Cook, "Federal civil rights probe
targets ex-prison worker," Atlanta Journal-Constitution, August 10, 1993.
155

Interview, Atlanta, March 1994.

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249

Even were the will to investigate ever mustered, the DOJ=s slow response
has already effectively foreclosed possible federal criminal action on many
allegations in Georgia predating Cason, as there is a five-year statute of limitations
on bringing criminal charges. It has already been four years since Cason was
amended to include allegations of sexual misconduct and three years since the
Philyaw trial, and most of the incidents alleged in both instances occurred before
1992.

RECOMMENDATIONS
I.
A.

Ensuring Compliance with Judicial Order
The Georgia Department of Corrections should take all action necessary to
comply with the March 1994 judicial order issued in Cason v. Seckinger
that requires the GDC to prohibit all sexual abuse, sexual contact and
sexual harassment of female prisoners. The GDC should also ensure that
its employees desist from other forms of degrading treatment of
incarcerated women.

B.

The Georgia Legislature should create a fully empowered and independent
review board to monitor the GDC=s compliance with Cason=s mandates
and to ensure that complaints of sexual misconduct are adequately
investigated and remedied. The review board should be guaranteed full
and unhindered access to GDC facilities and records, including all records
collected under the new investigative procedure, and should have the
authority to turn over evidence of possible criminal wrongdoing for police
investigation. The board should also be able to recommend remedial
actionCincluding temporary reassignment or suspension of accused
officersCto stop abuse or other problems.
1.
The review board should develop a system whereby the records
of corrections employees who have been the subject of repeated
complaints are reviewed by the appropriate authorities.
2.
The review board should provide a toll-free telephone number
that prisoners can use to provide information or to file complaints
of employee misconduct, including retaliation against
complainants.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

C.

As a means of additional oversight, the GDC should facilitate the access of
outside monitors, such as lawyers and prisoners rights advocates, to its
women=s correctional facilities.

II.
A.

Prohibiting Sex in Custody
Georgia prosecutors should strictly enforce Section 16-5-5.1 of the
Georgia Penal Code prohibiting sexual assault, defined as engaging in
sexual contact with a person in custody. The consent of the victim, which
is not a legal defense to a prosecution under this section, should not be a
de facto bar to prosecution. Of course, cases which fall within the
statutory definition of rape should be prosecuted as such. Yet, since the
offense of prison sexual abuse is predicated on the abuse of custodial
authority, not on distinctions between oral, anal and vaginal sex that are
entirely irrelevant to this key issue, we recommend against prosecution
under the Georgia sodomy law.

B.

For its part, the GDC should refer all cases of sexual misconduct that fall
within the statutory definition to the local authorities for prosecution.

C.

The GDC should include in its standard operating procedures a
requirement that prisoners be treated humanely and be free from torture
and cruel, inhuman or degrading treatment as a matter of compliance with
U.S. obligations under international law, in particular the International
Covenant on Civil and Political Rights and the Torture Convention.

III.
A.

Safeguarding Prisoners Impregnated by Guards
The GDC should make every effort to protect women who are
impregnated by corrections employees from being accosted further by
those employees.

B.

The GDC should not punish prisoners, either as a matter of informal
practice or of official policy, who are impregnated by officers. The GDC
should also refrain from administratively segregating pregnant prisoners,
unless they expressly request it.

C.

The GDC should ensure that corrections staff do not employ coercion to
persuade pregnant prisoners to have abortions.

Georgia

251

D.

The GDC should ensure that pregnant prisoners receive timely and
adequate medical care, and that medical treatment recommended by
physicians is provided as prescribed. Medical care should include
professional psychiatric counseling for prisoners who are impregnated as a
consequence of rape or sexual abuse. Prisoners also should receive neutral
counseling on the options available to them. Administrative segregation
should not preclude the provision of adequate medical and hygienic
requirements for a safe pregnancy.

IV.

Ensuring an Effective Remedy
Grievances
The GDC should make grievance forms readily available to prisoners at a
neutral location, such as a prison library or other similar place. It should
also enable prisoners to file complaints without seeking the permission of
any GDC employee.

A.

B.

A.

The GDC should ensure that institutional counselors do not, under any
circumstances, attempt to talk prisoners out of filing their grievances.
Investigations
The GDC should take all action necessary to comply with the November
23, 1994 court order that resulted in new standard operating procedure,
adopted in January 1995, for investigating allegations of sexual
misconduct. Additionally, it should ensure that investigators have
adequate human and material resources to investigate fully and
expeditiously all complaints of sexual misconduct.

B.

In addition to training all persons hired to investigate allegations of sexual
misconduct on the requirements of the investigative procedure, the GDC
also should ensure that they fully understand the coercive dynamics of the
prison environment and the inherently punitive nature of administrative
segregation.

V.
A.

Preventing Retaliation Against Complainants
Investigators should not recommend disciplinary reports, and wardens
should not impose them, as punishment for a complaint of sexual abuse

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
found to be unsubstantiated, unless the complaint is manifestly frivolous or
made in bad faith.

B.

The GDC should investigate promptly and vigorously all charges of
harassment and retaliation against prisoners who report wrongdoing. The
GDC must effectively inform corrections employees that reprisal against
prisoners will not be tolerated, that complaints of such conduct will be
treated seriously and expeditiously, and that staff found guilty of
retaliation will be sanctioned.

VI.
A.

Ensuring Discipline
Human Rights Watch is extremely troubled that the governor of Georgia
appointed Bobby Whitworth, former commissioner of corrections, to the
state parole board, after he stated on national television that it was his
agency=s general policy not to enforce the law against custodial sexual
assault. We call on the governor of Georgia to remove Bobby Whitworth
from the parole board and not to appoint him to any position of authority
over prisoners in Georgia.

B.

Human Rights Watch is also extremely concerned by the GDC=s decision
to rehire Cornelius Stanley and to return Jackie Lee to her post. The GDC
should proceed with investigations into employee misconduct while
allegations are pending before the appropriate police or prosecutorial
authorities, and take appropriate disciplinary action. Investigations should
examine possible criminal law violations as well as administrative
infractions of GDC's employee code of conduct. Even if a person is
acquitted of a criminal offense, the GDC should still pursue disciplinary
action if evidence indicates that the employee violated the rules governing
his or her employment.

C.

The GDC should dismiss employees found to have engaged in rape, sexual
assault or sexual abuse of prisoners. There should be no tolerance for
rehiring employees who have been disciplined and terminated. Transfer of
such employees to other positions or facilities does not constitute
appropriate punishment.

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253

D.

The GDC should publish, at least quarterly, a report on disciplinary
actions taken against corrections employees responsible for misconduct or
abuse. If necessary, the reports should omit the names of prisoners and, if
necessary, of employees. But they should include dates, locations, and
other relevant details about the reported incidents, and the types of
disciplinary sanctions applied, including referrals to the local prosecutor.

VII.
A.

Hiring and Training Corrections Employees
The GDC should improve its screening procedures for applicants for
corrections positions. Background checks should be completed before
new employees are sent into correctional facilities. In no case should an
employee who has been convicted of an offense related to sexual
misconduct in custody be rehired.
The GDC should ensure that the training of all corrections employees
assigned to work in the women=s prisons includes, among other things:
1.
A general discussion of the profile of female prisoners and their
potential vulnerability to sexual misconduct;
2.
A review of all relevant GDC policies regarding sexual
misconduct and their associated disciplinary sanctions, as well as
the criminal law prohibition on sexual contact with a person in
custody;
3.
A demonstration of appropriate methods for conducting patsearches, strip searches and searches of women=s cells. In
developing this training, the GDC should collaborate with local
nongovernmental organizations experienced in working on issues
such as rape and sexual assault.

B.

VIII.
A.

Educating Prisoners
The GDC should advise incarcerated women, as part of their orientation to
the corrections system, as well as prisoners already serving their sentences,
of the following:
1.
They have the right to be free from all forms of custodial sexual
abuse, including all sexual contact or harassment. The
orientation should describe in detail what actions may constitute
sexual misconduct, and should also include a thorough review of
departmental policies regarding privacy and humane treatment;
the procedures for reporting and investigating sexual misconduct;
and the administrative and criminal sanctions associated with it.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
2.

B.
IX.

Grievances related to sexual misconduct may be filed directly
and confidentially with the prison superintendent or investigator.
Prisoners should be informed about: the issues that may be dealt
with through the grievance procedure, with particular emphasis
on instances of sexual misconduct; the location of grievance
forms; bypass mechanisms available for reporting sexual
misconduct; and the recourse available when corrections officers
fail to respond.
3.
Complaints may also be resolved through the investigation
procedure and/or the independent review board.
4.
Prisoners enjoy a range of rights under international human rights
treaties ratified by the United States and under U.S.
constitutional law.
The above information should be included in the prisoner handbook.

Allocating Supplies
The GDC should ensure that it always allocates basic sanitary items
sufficient to meet female prisoners= needs, to avoid situations where prisoners
exchange sexual favors with officers for goods. Adequate supplies should be
accessible to prisoners at the prison commissary or other similarly neutral place.

VI. ILLINOIS
Our investigation1 revealed a serious problem with sexual misconduct in
the Illinois correctional facilities for women, including frequent privacy violations
and sexually explicit verbal degradation of female prisoners, inappropriate sexual
contact and, at times, rape and sexual assault and abuse. Neither Illinois prison
rules nor criminal law expressly prohibits such abuse. When female prisoners have
attempted to report sexual misconduct, they have faced a biased grievance and
investigatory procedure and often have suffered retaliation or even punishment by
prison staff. This system for addressing sexual misconduct significantly deters
women from lodging complaints of such abuse. Given that the Illinois Department
1

Our conclusions in this chapter are based on interviews conducted in 1994, 1995 and 1996
with thirteen current and former female prisoners each of whom had been incarcerated in at
least one of the three Illinois maximum-security prisons for women: Dixon Correctional
Center, Dwight Correctional Center and Logan Correctional Center. In addition, we spoke
to attorneys and prisoner rights advocates in Illinois who monitor prison conditions generally
and who, in some cases, follow particular complaints of sexual misconduct with the Illinois
Department of Corrections.
Most of the women we interviewed had previously complained of sexual
misconduct by correctional staff. In several cases, their allegations had already been
investigated and the complaints monitored by attorneys or advocates working on their behalf.
In each instance, we attempted to corroborate prisoner statements with written
documentation, such as grievances or prior written statements, and with the testimony of a
second person, including other prisoners. None of the women with whom we spoke had
been incarcerated at Kankakee, Illinois=s only minimum security prison for women.

255

of Corrections is the only governmental body that may initiate investigations into
such complaints, incidents of sexual misconduct may be significantly underreported.
The Illinois Department of Corrections (IDOC) acknowledges that sexual
misconduct has occurred in its facilities but strongly takes issue with any
implication that the agency tolerates or condones sexual misconduct between
prisoners and correctional staff. In an unpublished July 1996 letter to the Chicago
Sun-Times, IDOC Director Odie Washington,2 stated that the department Ahas a
strict policy of zero tolerance regarding both consensual sex and nonconsensual sex
between inmates and staff.@3 However, our investigation reveals a gap between the
department=s stated policy and actual practice. One attorney who represents women
prisoners told us, AIf [IDOC] really wanted to stop this behavior, they would go
about it in a different way.@ We strongly urge Illinois to reform its prison rules and
criminal laws expressly to ban sexual misconduct in prisons, to enforce better those
disciplinary measures that already exist to protect prisoners against sexual
misconduct, and to uphold the right to an effective remedy of women who file
complaints of custodial sexual misconduct.

CONTEXT
Custodial Environment
The number of incarcerated women in Illinois has risen dramatically in the
last ten years. As of February 1996, there were over 2,200 women in prison, a
number over four times greater than that in 1986.4 Approximately 60 percent of
these women are incarcerated for nonviolent offenses.5 The majority of
incarcerated women are of color, with African American women comprising 68

2

Since our original investigation, the director of the Illinois Department of Corrections,
Howard Peters, became a deputy to the governor of Illinois and was replaced by Odie
Washington, who was formerly the warden at Dixon Correctional Center, a women=s prison.
3

Unpublished letter from Odie Washington, director, Illinois Department of Corrections, to
Chicago Sun-Times, July 22, 1996 (on file with Human Rights Watch).
4

Chicago Legal Aid to Incarcerated Mothers, AWomen in Prison: Fact Sheet,@ 1996. In
1983 there were only 486 women in prison in the state.
5

Ibid.

256

Illinois

257

percent of the female prison population.6 Male correctional officers outnumber
female officers by over two to one,7 and few written restrictions delineate male
officers= responsibilities in overseeing female prisoners.

6

7

Ibid.

Corrections Compendium (Nebraska), October 1992. There were approximately 1,688
male corrections officers working in the women=s prisons but less than 700 women officers.

258

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Although nearly 60 percent of women incarcerated in Illinois are from
Cook County, the area around and including Chicago, Illinois women=s prisons are
all located at a considerable distance from the metropolitan area.8 The only prison
for women until the 1980s was Dwight Correctional Center, located approximately
two hours southwest of Chicago.9 In response to overcrowding and the expansion
of its female prison population, IDOC eventually converted two of its all-male
facilitiesCLogan Correctional Center and Dixon Correctional CenterCinto prisons
for both sexes. Like Dwight, Dixon is located in rural Illinois, almost three hours
west of Chicago. In 1995 IDOC began to increase the number of women prisoners
at Logan, which, at a distance of nearly four hours from Chicago, is the furthest
away of the three prisons. At present, IDOC is planning to make a minimum
security prison for 300 women out of a mental health center in Decatur.10 Decatur
is even more isolated than Logan; trips from Chicago to Decatur typically would
8

This information is based on materials provided to Mary Flowers, Illinois state
representative, by Howard A. Peters, then the director of the Illinois Department of
Corrections [hereinafter AIDOC Statistical Information@]. We contacted Flowers=s office for
information regarding proposed sentencing reform for incarcerated mothers. The statistical
information was included in the packet of information we received.
9

For several years, as the number of women rose and Dwight became unable to house them,
women were held in county jails.
10
Anthony Man, AReport: Women=s Prison Would Replace Meyer,@ Decatur Herald &
Review, April 22, 1995.

Illinois

259

require an overnight stay.11 The time and expense of travel to and from the
women=s prisons make it difficult for advocates and prisoners= families to visit and
monitor the treatment of the prisoners.

11

Telephone interview, Gail Smith, executive director, Chicago Legal Aid to Incarcerated
Mothers, February 29, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Another concern is availability of basic services. The female prison
population is growing at an accelerating pace, which has led to corresponding
decreases in female prisoners= access to educational and other rehabilitative
programs and medical care.12 Such access is provided for in the U.N. Standard
12

According to the Prison Action Committee (PAC), an Illinois prison monitoring
organization staffed by former prisoners, gynecological services are available only three to
four hours a week at Dwight for a population of nearly 800 women. (Interview, Barbara
Echols, executive director, Prison Action Committee, Chicago, May 9, 1994.) Women
housed at Logan do not have access to an infirmary and must be transferred to Dwight for
major medical treatment. (AIDOC Statistical Information.@) Female prisoners sued the
department alleging they were provided substantially inferior educational and vocational
programming, compared with those provided to male prisoners, and were being paid lower
wages for similar work. ( Moorehead v. McGinnis, Civil Action No. 86-2020, Complaint,

Illinois

261

Minimum Rules.13 Nonetheless, each of the women=s facilities, with the exception
of Kankakee, the state=s only minimum security prison for women, is operating from
20 to 40 percent over its rated capacity.14
January 21, 1986 (Central District of Illinois).) In addition, the women alleged they were
disparately impacted by the absence of a minimum security facility. Women incarcerated in
Illinois have historically been allocated fewer resources, educational services and been
provided with vocational training for the low-paying jobs traditionally held by women. For
example, college courses for women leading to a bachelor=s degree were not offered until
1985, more than a decade after similar programs were instituted for men. (Jean Davidson,
ASeeking Rights in Prison: Women Inmate=s Suit Charges Sexual Bias,@ Chicago Tribune,
April 3, 1988.) In 1991 IDOC entered into a consent decree with the attorneys representing
the incarcerated women. (Moorehead v. McGinnis, Civil Action No. 86-2020, Consent
Decree, May 1, 1991.) Pursuant to the 1991 consent decree, the IDOC conducted a survey
of educational and vocational needs of incarcerated women, which resulted in the creation of
prison programs for women in business occupations and computer operations. (AIDOC
Statistical Information.@)
13

Standard Minimum Rules for the Treatment of Prisoners, Rules 22-26 (medical care) and
Rules 65 and 77-78 (education and recreation).
14

AIDOC Statistical Information.@

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

State Legal and Regulatory Framework
Neither sexual relations nor sexual contact with prisoners by corrections
staff are expressly prohibited under Illinois=s rape and sexual assault laws. With
respect to prison rules, the prohibition on sexual contact must be read into a broad
provision of the Illinois Administrative Code that prohibits employees from
Asocializing with committed persons.@15 The administrative code also provides that
prisoners may be punished with one year in segregation for sexual misconduct,
which could cover sexual behavior between prisoners as well as sexual behavior
between a corrections employee and a prisoner.16 IDOC has used this policy to
punish female prisoners who reported sexual misconduct, a practice that Human
Rights Watch opposes on the grounds that the deterrent effect on the reporting of
sexual misconduct is more damaging than can be justified by any penological
purpose served by such punishments.
National and International Law Protections
As discussed in the legal background section of this report, sexual
misconduct is clearly prohibited under both U.S. constitutional law and
international treaty and customary law that is binding on the U.S. federal
government as well as its constituent states.17 The eighth amendment to the
Constitution, which bars cruel and unusual punishment, has been interpreted by U.S.
courts to protect prisoners against rape and sexual assault. This constitutional
shield is augmented by the Fourth Amendment=s guarantee of the right to privacy
and personal integrity, which, in a series of lower court cases, has been interpreted
to prohibit male guards from inappropriately viewing or strip searching female
prisoners or conducting intrusive pat-frisks on female prisoners.

15

Under the Illinois Administrative Code, AIndividuals shall not knowingly socialize with or
engage in business transactions with any committed person.@ 20 Illinois Administrative
Code, Section 120.50, ASocializing with Committed Persons.@

16

The Illinois Administrative Code defines sexual misconduct as Aengaging in sexual
intercourse, deviate sexual conduct or fondling or touching done to sexually arouse either or
both persons.@ Ibid., Section 504, Table A.
17

For a detailed discussion of United States obligations under U.S. constitutional law and
international law pertaining to the treatment of prisoners, see the legal background chapter of
this report.

Illinois

263

Constitutional protections for prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark victories through
private litigation, particularly suits litigated by prisoners= rights groups such as the
National Prison Project of the American Civil Liberties Union. However, if certain
stringent intent requirements are met, the DOJ may criminally prosecute abusive
prison officials under federal civil rights provisions. In addition, the DOJ has the
statutory right to investigate and institute civil actions under the Civil Rights of
Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages
in a pattern or practice of subjecting prisoners to Aegregious or flagrant conditions@
in violation of the constitution.
In addition to constitutional protections, prisoners= rights are protected
under international human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant on Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The
ICCPR guarantees prisoners= right to privacy, except when limitations on this right
are demonstrably necessary to maintain prison security. Both treaties bar torture
and cruel, inhuman or degrading treatment or punishment, which authoritative
international bodies have interpreted as including sexual abuse. To constitute
torture, an act must cause severe physical or mental suffering and must be
committed for a purpose such as obtaining information from a victim, punishing her
or intimidating or coercing her or for any reason based on discrimination of any
kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a
lesser degree of suffering that need not be committed for a particular purpose.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,
that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment.18
18

For a detailed discussion of the prohibition against torture, and other cruel, inhuman or
degrading treatment or punishment under international law and its applicability to custodial

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

sexual misconduct, see the legal background chapter of this report.

Illinois

265
ABUSES19

Custodial sexual misconduct in Illinois=s women=s prisons includes sexual
intercourse, sexual assault and inappropriate sexual contact. It also includes
constant and highly sexualized verbal degradation of prisoners and unwarranted
visual surveillance. Unless indicated by the use of a full name, the names of the
prisoners have been changed to protect their anonymity. In some cases, the location
and exact date of prisoner interviews have also been withheld.
Rape, Sexual Assault or Abuse, and Criminal Sexual Contact

19

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Our investigation found that sexual misconduct is not a new problem in the
women=s prisons in Illinois. In the early 1980s, it came to light that certain
corrections employees were involved in the sexual abuse of women incarcerated at
Dwight. Press reports revealed that the chief internal affairs officer of IDOC forced
at least one prisoner to Acommit deviate sexual acts@ on him and Ato commit lesbian
acts upon other female prisoners.@20 Upon learning of this misconduct, the acting
warden placed the prisoner in administrative segregation involuntarily for eleven
months, ostensibly for her own protection.21 According to Charles Fasano, who
works with the John Howard Association, an Illinois prison monitoring
organization, the revelation of these abuses led directly to the resignation of the then
warden and the installation of a new warden, Jane Higgins.22 According to prison
advocates, Warden Higgins brought strong leadership skills and implemented
programs designed to eliminate sexual misconduct. However, in 1989 Warden
Higgins resigned and Gwendolyn Thornton was installed as warden.
Advocates we interviewed noted that following this change in wardens, the
efforts of Warden Higgins to reduce sexual misconduct have ceased and allegations
of sexual misconduct at Dwight have increased. The John Howard Association has
received letters from prisoners raising complaints of sexual misconduct within the
women=s prisons. According to Fasano:
20

APrison chief Lane testifies about sex scandal probe,@ United Press International, May 25,
1983, AM cycle.
21

ATestimony wrapped up in prison sex lawsuit,@ United Press International, May 26, 1983,
AM cycle.
22

Interview, Charles Fasano, John Howard Association, Chicago, May 13, 1994. This
branch of the John Howard Association monitors prison and jail conditions in Illinois.

Illinois

267

I wasn=t hearing these things. Jane would never put up with that.
If she heard about it, she would be on the case. She wouldn=t put
up with it. . . . I=ve seen a big change and sadly, not for the better
[in recent years].23
Private attorneys and the Prison Action Committee (PAC) similarly reported
receiving an increased number of letters alleging such misconduct after Thornton
took over.

23

Ibid.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Another attorney who has worked with female prisoners in Illinois,
Ruthanne DeWolfe, noted a steady deterioration in the conditions at Dwight since
Warden Higgins=s departure. She told us, AThere [is] a lack of leadership.@24
According to DeWolfe, Warden Higgins brought to the position strong management
skills and a sensitivity to the many gender-related needs of women prisoners. Since
her departure, many of the model programs she initiated have been stopped.
DeWolfe asserted that at an institution like Dwight, one needs to take a firm line
with officers in order to combat problems like sexual misconduct. This, she said, is
now missing under Thornton. According to Gail Smith, an attorney who heads
Chicago Legal Aid to Incarcerated Mothers (CLAIM), AYou were not hearing
complaints until just a few years ago, since the switch in wardens.@25
Allegations of sexual misconduct have continued in the 1990s. Our
interviews, conducted in 1994, 1995, and 1996 revealed that corrections officers at
Dwight have used physical force or compulsion to have sexual
intercourseCvaginally, orally, and anallyCor assault sexually incarcerated women.
These acts have been used to retaliate against women who have spoken out about
conditions in the prison; have self-identified or are viewed as gay; or have resisted
engaging in sexual relationships with officers on other occasions. We also found
that officers provided goods to women prisoners either to compel them to have anal,
oral, and vaginal intercourse and other forms of sexual contact or to reward them
for having done so.
Florence R. told Human Rights Watch that in 1992 she was forced to
perform oral sex on an officer who targeted her, in her view, because she identified
herself as gay.26 She told us that a number of officers appeared to take her
homosexuality as a challenge; they bombarded her with sexual innuendo and
advances. One officer who worked nights on her unit, Officer Z, gave her particular
problems. He once told her, ADamn, you need a good man. I wish it was me.@ One
night, Florence R. woke up to find Officer Z in her cell. She told us, AHe was in
there feeling on me. I jumped up and he said, >I=m going have you!=@ Officer Z left
when another officer paged him. Several nights later, as Florence R. walked from
her work assignment to the medical clinic, Officer Z pulled up in a car and ordered
24

Interview, Ruthanne DeWolfe, attorney, Chicago, May 9, 1994.

25

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, Chicago, May 10,
1994.
26

Interview, Illinois, May 1994.

Illinois

269

her to get in. He told her he would report her for trying to escape if she refused.
Once she was in the car, he drove past the clinic and parked behind another
building. He then unzipped his pants, grabbed her by the back of her neck and
forced her to perform oral sex on him. According to Florence R., Officer Z was
interrupted when others happened upon the car, and he ordered her to move to the
backseat. The clinic apparently had contacted Florence R.=s unit when she failed to
appear, and a search had been initiated.
Approximately nine months after the assault on Florence R. in early 1993,
the same officer reportedly entered Holly L.=s cell one night and raped her.27
Officer Z worked the overnight shift in Holly L.=s unit and, according to Holly L.,
had been making sexually aggressive comments to her for weeks. When he was on
her unit, he would come to her cell and tell her, AYou pretty,@ or AI wanna make love
to you,@ or AI wanna get up with you when you out.@ Then, when she was
transferred to another unit, the officer was reportedly assigned there. Officer Z
continued to harass her and according to Holly L., Astarted to get more forward
every time.@ Holly L. told us that one evening he entered her cell around 4:00 a.m.,
ordered her to get off her bed and directed her to open her robe. Then, in her
words, he started to Aget rough@ and told her ADo it . . . you know nobody=s gonna
believe you.@ Holly L. submitted to sexual relations with the officer on the floor of
her cell.
Florence R. was prescribed sedatives or psychotropic medication by
prison doctors after they came forward with their allegations of sexual misconduct.
She was reportedly placed on psychotropic medications by prison doctors after she
reported being raped.28 According to Holly L.=s mother, Holly L. was extremely
upset after the alleged rapeCcrying and unable to sleep. The institution, she told us,
Asuggested@ that Holly L. take psychotropic medication.29
27

Interview, Illinois, May 1994.

28

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, May 10, 1994.

29

Interview, Elizabeth Carter (not her real name), June 22, 1994. Carter did not request

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

anonymity in this report. However, since we would necessarily reveal her daughter=s identity
by referring to her by name, we chose to use a pseudonym.

Illinois

271

In addition to these violent attacks, some members of the male corrections
staff made physically aggressive sexual advances toward women prisoners. In some
instances, these initial advances were accompanied by threats of retaliation against
the woman, her family and children if she rejected the sexual advances or informed
others about them. In 1993, for example, Brenda N. was ordered by an officer to
follow him to the receiving area outside the dining room. AHe pushed me against
the wall and tried to kiss me.@30 As she turned to leave, the officer grew angry with
her, ordered her to Acome back here,@ and said, ADon=t you ever pull away from me
again.@ According to Brenda N., AHe said he would harm my son if I tell. He
named the town where [my son] lives and who he is living with.@ Over the next few
months, the officer repeatedly entered her cell. On her birthday, he reportedly came
in, sat on her bed and demanded a kiss. He was interrupted when another prisoner
came in. Six weeks later, he reportedly came into an area where Brenda N. was
working, pushed her against a wall, grabbed her around her neck and told her, AYou
have been running your mouth. I will make good on my threat.@ As Brenda N. told
us, AIt scares me when he can give me the name of the town. . . . It scares me
because I don=t know what he can do. It=s hard to avoid [an officer] around here.@
On the day of our interview, she said that this officer called her to the visiting area
over an hour before our scheduled meeting time, and while she was waiting,
repeatedly approached her and said, AYou=re looking nice today.@
Other women we interviewed reported they too had been propositioned or
sexually assaulted by male officers. Yolanda M. told us that she was accosted by an
officer on her work detail in July 1993.31 As she described it, the officer called her
into the central dining room, pinned her against the wall and tried to kiss her.
Yolanda M. pulled away and threatened to tell his wife, who was also a corrections
officer. He reportedly replied, AGo ahead, no one is going to believe you.@ In the
ensuing weeks, the officer not only continued to make sexual advances to Yolanda
M., but also threatened her, telling her, AIf you ever tell anyone, it=ll get worse. See
how quick you=re in seg[regation].@ The harassment, according to Yolanda M.,
continued through the winter of that year.
Yolanda M. told us that another prisoner had warned her about problems
with this same officer before she left prison, but Yolanda M. had not believed her.
Yolanda M. told us, APeople are always saying they were felt on, groped on or

30

Interview, Illinois, May 1994.

31

Interview, Illinois, May 1994.

272

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

thrown in a corner. I=ve heard zillions of stories, but I don=t always believe it.@32
Now, she said, she understands that such assaults do occur. In May 1994 the officer
renewed his sexual advances and reportedly told Yolanda M., AI will get you alone
this summer.@
Cindy K. also told us that she had two Arun-ins sexually@ with male
officers. On the first occasion, an officer asked her to clean the women=s restroom
in the visiting area. She told us, AHe came in and told me all what he could do to
me. He pushed me into a corner. Wherever I was at, he would always come.@33
After she reported the harassment, the officer left her alone.

32

Ibid.

33

Interview, Illinois, May 1994.

Illinois

273

Gigi H. was reportedly accosted in May 1992 by a roving officer who
came onto her unit.34 According to Gigi H., she was relaxing one night in the
common area when an officer called her outside; she followed him downstairs to the
basement. The officer then pushed her pants down from behind. Gigi H. said she
broke away and ran back upstairs. The officer returned to the unit and confronted
Gigi H. In her words, he Astarted going through that dehumanizing thing@ and told
her, ADon=t nobody care about you being here. Don=t nobody care.@
Sexual misconduct in Illinois prisons, as elsewhere, often becomes
entangled with and is perceived as part of an underground prison economy, where
officers provide goods to women in exchange for sexual intercourse or other
inappropriate contact. Several female prisoners told us of this exchange. Yolanda
M. and Cindy K., for example, reportedly witnessed other prisoners submitting to
sexual relations with male officers. According to Yolanda M.:
I know it went on, I saw it. [Officers] with prisoners in the
laundry room and women talk . . . At Logan, I literally saw
[officers] getting sex in the laundry room or sex in the hallway.35
She said it was also obvious that other prisoners were involved with staff because
the officers brought them things such as gum and shampoo. Cindy K. agreed,
stating:
I have seen white shirts [lieutenants] down there go into the girls=
rooms. I seen the girls giving them head. . . I guess some of
these girls were willing to do it. I was not.36

34

Interview, Illinois, May 1994.

35

Interview, Illinois, May 1994.

36

Interview, Illinois, May 1994.

274

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Alice C. told us that in 1993 she used to leave her cell so that a lieutenant
could be alone with her cellmate.37 According to Alice C., the lieutenant would
come to her cell at night and Alice C. would leave. While she never actually saw
her cellmate have sex with the officer, he was alone with her cellmate for
approximately forty-five minutes on each occasion. Another woman at the prison,
Alice C. told us, used to undress for the same lieutenant while he stood outside her
window. This lieutenant also reportedly made sexual advances to Alice C.
According to Alice C., she approached him about a disciplinary ticket because she
was worried that it would result in her transfer to another facility. The lieutenant
told her that he would take care of it. She told us that the following week the
lieutenant came into her cell, Aput his hands around my waist and moved his hands
up near my bust.@ He said Anow that he did me a favor it was time I did him one.@
In mid-1996 we received information about ongoing sexual misconduct at
the Dwight Correctional Facility. Reportedly, Anna P., a prisoner at Dwight, was
approached by another prisoner in 1995 and told that a guard was interested in
having an intimate relationship with her.38 This prisoner reportedly told Anna P.
that Aif she was nice to [the guard], he would be nice to her.@ In exchange for the
sexual relationship, the guard provided Anna P. with extra food, candy bars and
perfume. The same prisoner facilitated several other similar exchanges. At first
Anna P. believed that the guard was in love with her, but when Anna P. later
learned that the guard was involved in a sexual relationship with another prisoner,
she reportedly decided to end the relationship. However, Anna P. was afraid that if
she attempted to do so she would lose her prison job and privileges. In addition,
other guards had begun to approach her, saying Ayou did it with him, why don=t you
do me too.@
In March 1996 Anna P. told Internal Affairs at IDOC about her sexual
relationship with the guard and other intimate relations between officers and
prisoners that were occurring at Dwight.39 Two other prisoners, who were not
involved with officers, came forward to confirm her story. The prisoners named at
least six corrections officers who had engaged in sexual misconduct. As a result of
these allegations, three officers resigned and three are on administrative leave with
pay pending investigation. One of the later group of officers resigned shortly after
37

Interview, Illinois, May 1994.

38

Telephone interview, Barbara Echols, Prison Action Committee, April 12, 1996.

39

Telephone interview, Barbara Echols, Prison Action Committee, June 27, 1996.

Illinois

275

being placed on administrative leave. In addition, another employee resigned after
an individual sent officials letters the employee had received from a prisoner.40
Mistreatment of Prisoners Impregnated by Guards

40

Tony Parker, APrison Officer Put on Leave,@ The Pantagraph (Illinois), June 1, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

We have also received reports that some women have become pregnant by
corrections staff. Three womenCall of whom were interviewed separatelyCtold us
about a fourth prisoner, Lucinda F., who was reportedly impregnated by an officer
on her unit.41 According to the prisoners= reports, Lucinda F. was impregnated by
an officer working in the Mental Health Unit (MHU). Evelyn V., who lives on the
unit, told us that Officer S was Aconstantly@ going into women=s rooms and that she
had seen him having sex with prisoners.42 Officer S=s name was repeatedly
mentioned by other women as one of the officers who regularly made sexual
advances. When the institution discovered Lucinda F. was pregnant, she reportedly
was sent to segregation, ostensibly for her own protection. We were told that
Lucinda F. received an abortion prior to her transfer to another facility on or around
May 10, 1994. According to Brenda N., who spoke with Lucinda F. before the
transfer:
They took her from MHU and locked her in segregation until she
left. They said it was for her own protection. When she got back
from the hospital, she spent two weeks in segregation.43

41

We were unable, however, directly to confirm their account. In an unpublished letter to
Chicago Sun Times, IDOC Director Odie Washington said that IDOC Ahas no documentation
to support a claim that a single inmate was impregnated by a correctional officer in over five
years.@ Unpublished letter from Odie Washington, director, Illinois Department of
Corrections, to Chicago Sun Times, July 22, 1996.
42

43

Interview, Illinois, May 1994.
Interview, Illinois, May 1994.

Illinois

277

We confirmed that Lucinda F. was transferred from Dwight to another facility the
week of May 10, 1994. When her pregnancy came to light, the implicated officer
reportedly was either suspended or placed in a noncontact position. We have no
information that the prison administration has taken any further steps in his case.
Abusive and Degrading Language
To our knowledge, there is no provision within the Illinois Administrative
Code that specifically requires the humane treatment of incarcerated persons or
restricts the use of vulgar, demeaning or sexualized language by prison staff.44 The
only arguably applicable provision is Section 120.30 of the administrative code
which provides: AIndividuals shall conduct themselves in a manner which will not
reflect unfavorably on the department and shall not engage in conduct which is
unbecoming or impairs the operations of the department.@45
Degrading language and treatment appear to pervade the environment at
Dwight, although that is less true for Dixon and Logan. Male officers at Dwight
reportedly freely make comments about the women=s bodies and demand sexual
favors. In the officers= station on one maximum security unit at Dwight, male
corrections officers reportedly hung a pair of women=s underpants on the window
and posted on the fan the words Aho [whore] patrol.@46
Denise S. told us in 1994 of being verbally harassed during class by her
high school equivalency diploma instructor.47 According to Denise S., the
instructor asked her sexually graphic and degrading questions, such as AHow wide is
your anus?@ and AHow deep is your vagina?@ He then followed these questions with
comments like ANo dick be able to get down in there.@ When she complained about
44

Provisions of the Illinois Administrative Code cited in this chapter were located with the
assistance of the Citizens Assembly, which serves the Illinois General Assembly. We
requested provisions within the code that address humane treatment or the use of degrading
language.
45

We requested a copy of the IDOC policy on sexual harassment from Susan O=Leary,
deputy legal counsel for IDOC, but never received it. O=Leary informed us that it was her
belief that this policy governed conduct and relations among employees and did not cover
the behavior of correctional officers vis-à-vis prisoners. Telephone interview, Susan O=Leary,
deputy chief legal counsel, Illinois Department of Corrections, September 27, 1994.
46

Interview, Illinois, May 1994.

47

Interview, Illinois, May 1994.

278

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

his conduct in January 1994, the warden responded that the staff person in question
was a good teacher and that she should just continue her classes. Denise S. also
reported the comments to a lieutenant at the prison who conducts investigations; she
believes the investigator then spoke with the instructor. After this, according to
Denise S., the instructor Acame into the class and said there was a stool pigeon, and
you know what happens to stool pigeons.@
Other women also reported problems with prison staff engaging in
degrading and sexual banter. According to Yolanda M., some officers have made
comments to her, such as AOh, I know you need it,@ or AYou look good today.@48
She told us, AThe [officers] are always saying, >Ah, you=re too pretty to be locked
up,= or . . . >I can bring you this or I can bring you that.=@ In the summer, she said,
officers have told her AThat tan looks so good@ and AWear your shorts shorter.@

48

Interview, Illinois, May 1994.

Illinois

279

The women felt that the degrading treatment and language was something
they could not escape and that they were powerless to confront. They also believed
that if they did come forward, they, rather than the officer, would be punished. In
Cindy K.=s words, AThere=s not much I can do about it. . . If I write it up, first thing
they are going to do is not believe me, then it=s PCU [Protective Custody Unit] and
then a transfer. That=s how it goes with sexual misconduct.@49 Women we
interviewed were even hesitant to discuss the abuse with each other. According to
Cindy K., AThere are so many females back there that this happens to and they don=t
tell. They do not want to speak. . .It=s the fear. . . they=re scared. . . I=m tired of
being scared. I=m tired of things not being done.@
Privacy Violations
As discussed in more detail in the legal background chapter of this report,
prisoners retain an internationally protected right to privacy except when limitations
on this right are demonstrably required to maintain prison security. In addition,
several U.S. courts have recognized that prisoners have a limited right to bodily
privacy. In particular, they have a right to be protected from routine inappropriate
visual surveillance and not to be strip searched by officers of the opposite sex,
except in cases of emergency.

49

Interview, Illinois, May 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Illinois only partially complies with these constitutional and international
standards protecting privacy. Under the Illinois Administrative Code, male
corrections officers may conduct pat-searches on female prisoners and routine
searches of the prisoner=s housing areas, including the bathrooms and showers. The
code provides that Aall committed persons and their clothing, property, housing and
work assignments are subject to search at any time.@50 While the Illinois
Administrative Code does not restrict the scope of pat searches conducted by male
officers on female prisoners, it does place some restrictions on the cross-gender
strip searches and on cross-gender guarding of prisoners outside the correctional
facilities. Under Illinois law, strip searches may be conducted only by employees of
the same sex as the prisoner and in a place where the search cannot be observed by
others, except in cases of emergency.51 In addition, Ato the extent possible,@
prisoners moved outside of a facility must be accompanied by a corrections
employee of the same sex.52

50

20 Illinois Administrative Code, Section 501.220 (b)(1). According to a 1983 Seventh
Circuit decision, at that time Illinois did not permit male guards to frisk female prisoners
while allowing female guards to frisk male prisoners. Madyun v. Franzen, 704 F.2d 954 (7th
Cir. 1983).
51

Ibid., Section 501.220 (b)(2).

52

Ibid., Section 501.110(c), AMovement of Committed Persons.@

Illinois

281

Male officers in the Illinois prison system work in the women=s housing
units, patrol the women=s facilities and supervise women on their work assignments.
The Seventh Circuit, which includes Illinois, has ruled on cross-gender guarding in
both men=s and women=s prisons. In 1994 the Seventh Circuit Court of Appeals
concluded that prisons must adopt measures to protect prisoners= privacy from
viewing by officers of the opposite sex.53 The circuit court held that prisoners retain
a constitutional right to bodily privacy and as a result are entitled to reasonable
accommodations to prevent unnecessary observation of their naked bodies by
officers of the opposite sex during strip searches or in the housing units.54 At the
same time, the court ruled that occasional or inadvertent sightings of unclothed
prisoners, or pat searches limited in nature and scope, were permissible.55
However, in a 1995 case, the Seventh Circuit held that while cross-gender body
searches were impermissible, the regular monitoring of housing units by guards of
the opposite sex was allowed.56

53

Canedy v. Boardman, 16 F.3d 183, p. 185 (7th Cir. 1994). The Seventh Circuit stated:
A[T]hose who are convicted of criminal offenses do not surrender all of their constitutional
rights . . . [T]hough his rights may be diminished by the needs and exigencies of the
institutional environment, a prisoner is not wholly stripped of constitutional protection when
he is imprisoned for a crime. There is no iron curtain between the Constitution and the
prisons of this country. Ibid., p. 186.@
54

Ibid., p. 187.

55

Ibid. The Seventh Circuit had previously ruled that a prisoner=s right to privacy was
sufficiently protected by a policy that permitted female guards to conduct pat frisks but
limited their scopeCfemale guards were instructed to exclude the genital area. Smith v.
Fairman, 678 F.2d 52 (7th Cir. 1982). In another decision, Torres v. Wisconsin
Department of Health and Social Services, the Seventh Circuit permitted the prison
administration of a women=s prison in Wisconsin to restrict the role of male guards in certain
respects. 859 F.2d 1523 (7th Cir. 1988). The administration of Wisconsin=s only maximum
security prison for women employed only women in supervisory positions on certain housing
units. This policy was enacted, according to the prison administrator, for Arehabilitation
purposes.@ The prison already had in place measures to protect the privacy of female
prisonersCmale guards did not conduct pat-frisks; prisoners were permitted to hang privacy
curtains while changing or using the toilet; and corrections officers did not observe prisoners
while showering. 639 F. Supp. 271, p. 275 (E.D. Wisc. 1986) (lower court decision).
56

Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995).

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

We are not aware of any limitations on male officers= duties at the Logan
Correctional Center, and women who have been incarcerated there reported having
had, on occasion, only male officers working on the night shifts. Women who have
been incarcerated at Logan also report that male guards do not announce themselves
when coming on the units and that they occasionally enter shower areas when
women are undressed.57 They told us that the majority of officers at Logan, even on
the night shifts, are men. At the Dwight facility, there appear to be fewer violations
of privacy than in the other two Illinois women=s prisons we investigated, although
male officers do work most housing units at Dwight. According to some prisoners,
male officers are not assigned to the overnight shift on the lower security units, but
they may substitute for the regular female officer on these shifts.58

THE SYSTEM==S RESPONSE

57

Interviews, Illinois, May 1994.

58

Ibid.

Illinois

283

IDOC has acknowledged that sexual misconduct between staff and
prisoners has occurred,59 but strongly denies that it tolerates or condones such
abuse.60 In materials provided to Human Rights Watch, IDOC noted that Aall cases
[of employee misconduct] are investigated. Where substantiated, the employee is
referred for discipline, including discharge, pursuant to applicable prison rules and
terms of the union contract.@61 IDOC went on to state that incidents are referred for
prosecution, as provided by department rules, Awhere reasonable grounds exist to
suspect that an individual has committed a violation of criminal law.@62
Our own investigation reveals a gap between IDOC=s stated policy and its
actual practice. While IDOC acknowledges that sexual misconduct occurs, it has at
times blamed prisoners for such abuse. In response to the 1996 reports of sexual
misconduct at Dwight, for example, IDOC director Odie Washington told a
reporter, Athis was a typical case of guards being manipulated and, for whatever
reason, developing a personal relationship with inmates.@63 In addition, while
internal complaints and investigatory procedures exist, they are often biased against
the prisoners, exhibit conflicts of interest, and have exposed complainants to
retaliation and even punishment. The combined effect of these problems is to
render criminal sexual misconduct not only hard to monitor accurately, but difficult
to substantiate. Thus for example, of the twenty-nine report complaints of sexual
misconduct that IDOC received in 1994-95 in all three facilities for women, only
eight were substantiated.64 Finally, referrals for prosecution do occur, but they are
at IDOC=s discretion and may come significantly later than the department=s own
internal investigations. The multiple problems with these procedures have led us to
59

Unpublished letter from Odie Washington, director, Illinois Department of Corrections, to
Chicago Sun Times, July 22, 1996.
60

Letter from Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, to Human Rights Watch, August 13, 1996.
61

Ibid.

62

Ibid.

63

Christi Parsons, AInterview with Odie Washington, Director of the Illinois Department of
Corrections,@ Chicago Tribune, May 19, 1996.
64

Letter from Susan O=Leary, deputy chief legal counsel, Illinois Department of Corrections,
to Human Rights Watch, August 13, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

the conclusion that while women complain of sexual misconduct,65 such abuse may
be significantly underreported and underaddressed.

Right to an Effective Remedy

65

According to IDOC, in 1994-95 they received fourteen complaints of sexual misconduct
at Dwight, fourteen complaints at Logan and one complaint at Dixon. Out of these
complaints, three officers were discharged, two resigned, and three were suspended for
periods from two to ten days. The other twenty-one complaints were found to be
unsubstantiated. Letter from Susan O=Leary, deputy chief legal counsel, Illinois Department
of Corrections, to Human Rights Watch, August 13, 1996.

Illinois

285

International human rights law requires national governments not only to
prohibit torture, cruel, inhuman or degrading treatment or punishment and
unwarranted privacy invasions, but also to ensure that when such abuses occur they
can be reported and fully and fairly investigated without the complainant fearing
undue punishment or retaliation from the authorities. Similarly, under the U.S.
Constitution, prisoners are guaranteed access to the courts to challenge abusive
prison conditions or other prison problems.66 Our investigation revealed that
Illinois falls far short of compliance with these standards.
Grievances
Illinois provides a grievance mechanism for prisoners to report abusive
incidents to prison officials.67 Illinois stipulates that, before filing a formal
grievance, prisoners must attempt informally to resolve the grievance through an

66

For a more detailed discussion of the due process rights accorded prisoners under
international and U.S. law, see the legal background chapter.
67

In an unpublished letter to the Chicago Sun Times, IDOC director, Odie Washington,
stated that AIn a three year period, Dwight inmates filed over 1,500 grievances at the
institutional level and 270 at the departmental level.@ Unpublished letter from Odie
Washington, director, Illinois Department of Corrections, to Chicago Sun Times, July 22,
1996. IDOC did not indicate how many grievances were lodged at the informal level, nor
did they classify the grievances by type.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

institutional counselor.68 If not resolved at this informal stage, the grievance may
subsequently be filed with and reviewed by a grievance officer. A Acommitted
person@ may bypass the first stage of the procedure and file her grievance directly
with the warden if there is a Asubstantial risk of imminent personal injury or other
serious or irreparable harm to the committed person.@69 The provision does not
make clear whether sexual assaults, sexual advances, or degrading language from
prison staff fall under this exception. The administrative code prohibits disciplinary
action or reprisal against prisoners for using the grievance mechanism.70
Our interviews indicate that the counselor may actually deter the filing of
legitimate grievances. According to Barbara Echols, a former prisoner at Dwight
and member of the prison watchdog group PAC, grievances rarely proceed beyond
the counselor=s initial, informal review. Even if a grievance goes to a grievance
officer, the second stage of the process, Echols told us:

68

20 Illinois Administrative Code, Section 504.810 (a).

69

Ibid., Section 504.840 (a), AEmergency Procedures.@

70

Ibid., Section 504.810(e).

Illinois

287
Sometimes the [grievance officer] comments on the grievance
but usually [he or she] upholds what the counselor recommends. .
. . Many times they will just ignore the grievances. . .You usually
hear at a whim, when they want to respond. There are a lot of
irregularities in the process. There is a lack of concern in the
institution. . . about the nature of the grievance submitted.71

We reviewed several grievances filed by the women whom we interviewed that
were denied or found meritless by the counselor. None had ever been reviewed
formally by a grievance officer. Although it is the prisoner=s responsibility to
pursue a complaint, the institution bears responsibility for ensuring that the process
is open and responsive to prisoners= complaints and concerns. Without such
assurance, the prisoners= right to complain is effectively denied.
Internal Investigations

71

Interview, Barbara Echols, Prison Action Committee, Chicago, May 13, 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Although the Illinois Administrative Code provides regulations for internal
investigations that require employees to document any unusual incidents, including
sexual assault, they do not contain specifics on how investigations should be
handled.72 Guidelines for conducting internal investigations into claims of rape,
sexual assault or abuse, or other sexual misconduct by correctional employees are
not publicly available. We were informed that a directive governing investigations
into sexual misconduct does exist, but it is internal and could not be released.73
Given this restriction, we were unable to determine exactly what procedure the
IDOC follows.
Based on our interviews, however, it appears that after a woman comes
forward with a complaint of sexual misconduct, she is interviewed by a senior
individual within the institution, such as a deputy warden or shift commander, and
asked to prepare a written statement. The complaint may then be referred to the
Internal Affairs Department of IDOC and/or to an investigator based outside the
prison. We were unable to ascertain exactly what proportion of complaints of
sexual misconduct are so referred.
During the course of an investigation into sexual misconduct, implicated
officers may or may not be reassigned. In one case we reviewed, in the case of
Florence R., who was forced to perform oral sex on an officer, the officer was
reassigned within the same prison. But the officer continued to have access to
Florence R. and made repeated threats against her during the investigation.74 Other
prisoners told us that certain officers had been suspended or assigned to noncontact
positions while an investigation was pending.75 IDOC confirmed that it may place
an officer in a noncontact position during an investigation but only in rare cases will
authorities temporarily suspend an employee.76
72

20 Illinois Administrative Code, Section 112. This provision was sent to Human Rights
Watch in response to our request for IDOC=s administrative rules and regulations for
investigating cases of alleged sexual misconduct.
73

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994.
74

Telephone interview, Gail Smith, Chicago Legal Aid to Incarcerated Women, February
29, 1996.
75

76

Interviews, Illinois, May 1994.

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994.

Illinois

289

Investigations are also flawed by conflicts of interest. In one case we
reviewed, for example, a prisoner at Dwight received a disciplinary citation for
having sexual contact with guards. According to two corrections employees, the
panel created to review the prisoner=s citation and determine her punishment
included the wife of a guard whom the prisoner had accused of having sexual
contact with prisoners.77
Bias Against Prisoner Testimony

77

Tony Parker, AInmate has Expected Sex Charges,@ The Pantagraph (Illinois), May 1,
1996.

290

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Our interviews suggest that IDOC does not take allegations of sexual
misconduct as seriously as officials contend, and that the department may dismiss
claims of such abuse as unsubstantiated even where some credible evidence of
sexual misconduct exists. An example of this is Zelda D., who alleged that she was
raped three times by a guard between November 1993 and January 1994. Zelda D.
was taken to an outside hospital the evening after the first incident. The examining
doctor completed a rape kit78 and wrote Asexual assault@ on her medical record in
the box marked ADiagnosis.@79 Despite this finding, prison officials sent another
female prisoner to segregation for possible sexual misconduct with Zelda D.80
78

Rape kits are designed to collect evidence of rape and sexual assault from the victim=s
body and contain items such as separate evidence bags for vaginal swabs, rectal swabs,
pulled head hairs, pulled pubic hairs, saliva samples, pubic hair combings, outer clothing,
foreign materials, and underwear.
79

Emergency and Outpatient Record, November 1993 (on file with Human Rights Watch).
IDOC maintains that Ano physical signs of sexual assault were identified by health care
staff.@ Unpublished letter from Odie Washington, director, Illinois Department of
Corrections, to Chicago Sun Times, July 22, 1996.
80

Interview, Margaret Byrne, attorney, Chicago, May 12, 1994.

Illinois

291

Prison officials also placed Zelda D. in temporary custody status in a segregation
cell for possible sexual misconduct. Zelda D. was cleared of the sexual misconduct
charges days later. After the second incident and despite repeated requests for
medical evidence from Zelda D.=s attorney, prison staff denied her medical attention
until eight days later. When medical care providers finally examined Zelda D., they
noted bruising on her body. 81

81

Byrne visited Zelda D. four days after the second alleged incident and described her
injuries as follows: AShe had bruises up her arms, inside her thighs, on her shins, her ribs, the
side of her face; one of her eyes was purple.@ Ibid. Zelda D. did receive medical care for her
physical injuries after the third incident. At that time, nursing staff noted in Zelda D.=s
medical records bruises along Zelda D.=s right side. In addition, they found scratches and
bruises below both of her breasts, bruises down her left arm and her outer left thigh

292

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In addition, IDOC=s investigation into Zelda D.=s allegations did not
provide allowances for the potential retaliation a prisoner may face in identifying
correctional staff. Zelda D. recanted her first identification of her rapist within two
weeks of the first incident. Her attorney, Margaret Byrne, informed the warden that
Zelda D. did not correctly identify the assaulting officer because he had threatened
to kill her. By the time Byrne learned of and gave the warden what she believed to
be the alleged rapist=s last name, however, IDOC informed her that it already had
closed their investigation into Zelda D.=s allegations.82 Susan O=Leary, IDOC=s
deputy counsel, confirmed in September 1994 that the investigation was closed and
gave no indication that IDOC intended to reopen it.83
82

In contrast to Byrne=s version, IDOC asserts that Zelda D. gave them the names of two
additional officers prior to naming the officer whom Zelda D. now asserts raped her.
Unpublished letter from Odie Washington, director, Illinois Department of Corrections, to
Chicago Sun Times, July 22, 1996. At a deposition in September 4, 1996 for her civil trial,
Zelda D. was unable to identify a photograph of her alleged assailant. Subsequent to the
deposition, the attorney agreed to drop the case.
83

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994. IDOC also asserts that Zelda D. was provided a photo
lineup of all white male corrections officers employed at Dwight, but was unable to identify

Illinois

293

her alleged attacker from among them. The man who allegedly raped Zelda D. was bearded
and attorney Byrne questions whether the institution either showed Zelda D. a picture of him
bearded or informed her that he might appear clean shaven. She has asked the institution to
provide Zelda D. with a second photo lineup so that Zelda D. could review the pictures with
this possibility in mind; IDOC declined to do so. Zelda D. subsequently drew a picture of
her alleged attacker. IDOC dismissed it as a Acrude drawing@ that Awill do nothing to assist
in the identification of the alleged assailant.@ Interview, Margaret Byrne, attorney, Chicago,
May 9, 1994. According to IDOC, Zelda D. was permitted to view a second photo lineup.
Letter from Susan O=Leary, deputy chief legal counsel, Illinois Department of Corrections, to
Human Rights Watch, August 13, 1996.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In describing IDOC=s approach to investigating sexual misconduct,
O=Leary told Human Rights Watch that in incidents where the evidence consisted
only of the prisoner=s word against the officer=s, the officer would not be discharged.
Where more than one prisoner comes forward, she told us, AThat makes a more
compelling case.@84 But, she still noted that without additional evidence, AThere=s
not much to be done. The warden would just monitor that person closely.@ O=Leary
said corroborating evidence was needed and that hearing officers, who review
disciplinary sanctions pursuant to civil service contracts, are sympathetic to prison
guards and will Anot take a job away without evidence.@ Prisoner testimony alone
will not serve as evidence. O=Leary=s told us that prisoners make Aspurious
complaints of sexual misconduct . . . for a variety of reasons, including for personal
gain or attention, to manipulate a transfer to a more preferred housing unit or prison,
or because they are upset with an employee for doing his or her job.@85
Lack of Confidentiality
Several additional factors also undermine IDOC=s grievance and
investigative procedures and significantly deter prisoners from reporting such
abuse. The first of these is a lack of confidentiality in the grievance and
investigatory procedures. Despite rules requiring that prison officials take steps to
84

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994.
85

Letter from Susan O=Leary, deputy chief legal counsel, Illinois Department of Corrections,
to Human Rights Watch, August 13, 1996.

Illinois

295

protect prisoners= identities during the grievance process,86 there appears to be little
confidentiality for prisoners who raise allegations of sexual misconduct by
correctional staff through either the grievance or the investigation procedure.
According to Barbara Echols, while she was incarcerated at Dwight, Ait was a
known fact that if you [filed a grievance] about sexual harassment or sexual assault
by an officer, the whole institution [would] know about it.@87 Similarly, the first
statement Florence R. wrote was reportedly provided to the implicated officer.
Subsequently, according to Florence R., the officer and his colleagues harassed her
for submitting the statement.88

86

20 Illinois Administrative Code, Section 504.860(b) provides that Arecords regarding the
participation of a committed person during the grievance process shall be handled in a
manner designed to protect confidentiality as determined by the Chief Administrative
Officer.@
87

Interview, Barbara Echols, Prison Action Committee, Chicago, May 13, 1994.

88

Interview, Illinois, May 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

By contrast, the IDOC appears quite protective of employee confidentiality
during investigations. As noted above, our interviews revealed that incarcerated
women are not necessarily kept apprised of the progress of an investigation. They
submit statements and undergo polygraph exams, but, despite clear prison rules to
the contrary, are provided with little additional information afterwards. Corrections
employees, meanwhile, are apparently kept fully informed. O=Leary, IDOC=s
deputy legal counsel, told us that the women are not kept informed for reasons of
Aconfidentiality@ for the staff member.89 This creates a situation in which prisoners
may be further harassed or mistreated by officers who have information about an
investigation that is not known to the prisoner.
The confidentiality of legal materials also appears to be violated for
women who have experienced abuse. Women we interviewed who had their legal
materials confiscated subsequent to raising a complaint of sexual misconduct, found
that when the legal materials were returned, copies of certain documents, such as
their grievances alleging abuse or retaliation against them, had disappeared.90 In
Florence R.=s case, all of her correspondence from CLAIM, as well as her written
records concerning the rape, vanished.91
According to some of the prisoners we interviewed, the confidentiality of
legal mail is similarly not respected. Under procedures governing such
correspondence, it should be opened only in the presence of the prisoner and the
contents checked for contraband. However, according to some women, the letters
we sent, which were clearly marked as AAttorney Mail,@ were opened before being
given to them.92
Use of Polygraph Tests and Administrative Segregation
In addition to the lack of confidentiality of investigative procedures,
prisoners also are deterred from reporting sexual misconduct by the likelihood that

89

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994.
90

Interviews, Illinois, May 1994.

91

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Women, Chicago, May 10,
1994.
92

Interviews, Illinois, May 1994. These letters were sent by attorneys employed at Human
Rights Watch and involved confidential information pursuant to researching this report.

Illinois

297

the authorities will subject them to polygraph exams and administrative segregation.
While Human Rights Watch takes no position on the use of polygraph
examinations per se and acknowledges the legitimate penological uses for
administrative segregation, we are concerned about the selective use of such
procedures to intimidate or, at times, punish female prisoners who come forward
with allegations of sexual abuse.
Under the Illinois Administrative Code, both employees and prisoners may
be asked to take polygraph exams.93 According to IDOC, polygraphs are employed
as an investigative tool to question prisoners.94 The facility is obligated under the
administrative code to inform the employee and the prisoner of their own
examinations= results, a copy of which they may request in writing.95 However, one
attorney who represents women prisoners told us that women rarely receive the
results of their lie detector tests.96 O=Leary asserted that prisoners were not
required to take such exams. In addition, the administrative code states that
prisoners may not be required to take polygraph exams.97 Some of the women we
interviewed, however, said they were consistently pressed to take a polygraph exam,
whether or not they so chose. If they refused, their allegation of misconduct by staff
93

20 Illinois Administrative Code, Section 112.40, APolygraph Examinations.@

94

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, September 27, 1994.
95

96

97

20 Illinois Administrative Code, Section 112.40.
Telephone interview, Margaret Byrne, attorney, October 16, 1996.
Ibid.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

was not likely to be pursued. It also appears that exam results have been used to
punish prisoners without independent evidence that their allegation is false.
Consequently, women often are reluctant to take polygraph exams because they fear
they will be used as a tool for punishment and not to further an investigation.
In one example, Florence R. was sentenced to ninety days in segregation
after she reportedly failed her polygraph.98 Further, because Florence R.=s
allegations were not substantiated by the institution she received a number of
disciplinary tickets for providing what the institution determined to be Afalse
information.@ According to Florence R., she was ticketed for lying in her initial
report, for lying to the investigator, and for reportedly failing her polygraph.99 In
another case, Zelda D. was punished for her initial false identification in what
attorney Margaret Byrne described as an unduly harsh manner, relative to other
prisoners she has represented.100 Zelda D. was issued a disciplinary ticket and
sentenced to one year in segregationCthe maximum punishmentCfor falsely
accusing Officer B.
Human Rights Watch does not oppose punishing prisoners for making
false accusations where the prison authorities have evidence beyond the allegations
of the implicated guard or staff member to support the conclusion that the prisoner
is lying and acted maliciously or in manifestly bad faith. However, such
punishment should be used infrequently, because it could discourage prisoners from
coming forward with allegations of sexual misconduct. Polygraphs examinations
are notoriously unreliable for verifying the veracity of a person=s statements. We
encourage IDOC to review the use of these exams to ensure their impartiality. In
instances where prisoner allegations of sexual misconduct are contradicted only by
the testimony of the accused officer or only by a failed polygraph examination, the
prisoner should not be punished for false accusation. In addition to being asked to
take polygraph exams, women have been sent to segregation on disciplinary
grounds as a result of raising allegations of sexual misconduct. Women we
interviewed uniformly feared coming forward to report abuse because of a real or
98

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, Chicago, May 10,
1994. Florence R. reported that just before her test, the test administrator told her a story
about two male prisoners who were having sexCone later lied about it because he did not
want others to know he was gay, so he said he had been raped. He then reportedly asked
Florence R. if this is what happened to her.
99

100

Interview, Illinois, May 1994.
Interview, Margaret Byrne, attorney, Chicago, May 9, 1994.

Illinois

299

perceived threat that, in the course of the investigation, they would end up in
segregation. According to Gigi H., AYou are going to do seg time for sexual
misconduct, but the officer will be protected through transfers.@101 Brenda N.
resisted informing a lieutenant at Dwight about her sexual assault because she knew
he would report it and she feared she would then experience problems. The
lieutenant, whom she described as friendly and supportive, noticed the bruises on
Brenda=s neck and pressed her for an explanation. She said, AI told him not to take
it on a professional basis because I=d be the one getting into trouble if he handled it
on a professional basis. . . .They would have put me in seg.@102

101

102

Interview, Illinois, May 1994.
Interview, Illinois, May 1994.

300

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The Illinois Administrative Code provides that prisoners may be placed in
Atemporary confinement@ or segregation pending an investigation if it is determined
that a need exists Ato restrict the committed person=s access to the general
population to protect him from injury or to conduct the investigation.@103 The
employment of such a provision in cases where women are involved in
investigations is not only perceived as punitive, but often functions as punishment.
Women placed in segregated status are removed from the general population and
treated as though they had committed a disciplinary offense.104
Illinois further provides that prisoners may be punished with one year in
segregation for sexual misconduct.105 The Illinois regulation does not distinguish
sexual contact between prisoners from sexual contact between a corrections
employee and a prisoner. According to Odie Washington, director of IDOC,
women prisoners involved with guards are also potentially subject to administrative
and criminal penalties. Washington stated, AWe will take whatever means
appropriate to discipline staff and inmates who engage in [sexual] activities.@106
103

20 Illinois Administrative Code, Section 504.40(3).

104

Ibid., Section 504.630 provides that committed persons in temporary confinement
pursuant to an investigation be treated the same as those segregated for disciplinary offenses.
105
The Illinois Administrative Code defines sexual misconduct as Aengaging in sexual
intercourse, deviate sexual conduct or fondling or touching done to sexually arouse either or
both persons.@ Ibid., Section 504, Table A.
106

Emily Wilkerson, AThree Dwight guards suspended in sex probe,@ State Journal-Register

Illinois

301

When prison officials at Dwight learned in March 1996 that guards were having
sexual relations with prisoners, three prisoners who were involved were placed in
segregation and lost a year of good-time credit.107 Although of the six implicated
guards three are on administrative leave with pay pending investigation (the other
three resigned), that does not justify additionally punishing the prisoners.
As discussed in the legal background section of this report, Human Rights
Watch opposes any punishment of a prisoner who was forced to engage in sexual
contact with an officer or who was rewarded for sex with some material or nonmaterial benefit. As a matter of policy, we also oppose the punishment of prisoners
whose participation in sexual contact does not appear to result from force or any
form of exchange by the officer and thus whose own conduct might constitute a
violation of prison rules. In these cases, we strongly believe that any state interests
served by such punishment are vastly outweighed by their deterrent effect on the
reporting of sexual abuse.
Inappropriate Confiscation of Property

(Illinois), May 1, 1996.
107

Ibid.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

A number of women we interviewed reported that the institution
confiscated their property after they reported an allegation of sexual misconduct.
The women=s property often either was not given back or was returned with items
missing. The day after Anna P. spoke to Internal Affairs, one of the prisoners, who
confirmed Anna P.=s story but who had not been involved with an officer, had her
room searched and several items of her legal and personal materials were taken.108
When Zelda D. returned from the hospital after the first alleged rape, all of her
clothing and personal items were confiscated, reportedly as part of the IDOC=s
investigation.109 They were not returned for over two months. As noted above,
Florence R.=s property, including her legal correspondence, was taken after she was
hospitalized. Some of her legal papers were never returned.
Attorneys working with prisoners had to write repeatedly to the warden at
Dwight to demand the return of the confiscated property. In each case, the warden
replied that all of the property had been given back. Byrne noted:
That always happens. Whenever someone goes into segregation,
they take their property away and hold it for an unspecified
period of time. Then they get only some of it back. I see no
reason why it happens. They get it back without things in it. I
understand when they go into segregation there is some property
they take for punishment purposes, like audiovisual. [Zelda D.]
had nothing for two to three months. There was no explanation.
It took forever for them to get it back to her.110

108

Telephone interview, Barbara Echols, Prison Action Committee, April 12, 1996.

109

Interview, Margaret Byrne, attorney, Chicago, May 9, 1994.

110

Ibid.

Illinois

303

One year after Zelda D. was first sent to segregation, prison officials had still had
not returned all of her property.111
Retaliation and Harassment by Officers
Women who have come forward with allegations of sexual misconduct
against corrections officers report that harassment and retaliation by corrections
officers often occur during the course of the investigation. The women are harassed
and repeatedly degraded by officers who exploit the women=s perceived lack of
credibility. Corrections officers may be reassigned during investigations, but this
has not stopped them from moving freely within the prison and intimidating
complainants. This harassment not only further abuses the women, it works to
discourage other prisoners from coming forward either as witnesses or victims.
According to Florence R.:

111

Telephone interview, Margaret Byrne, attorney, January 9, 1995.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
The corrections officers were saying, AYou=re fucked. You ain=t
got a GED [high school diploma], you flunked your lie detector
test.@ Everyone on the shift swings together. If you get it from
one, you get it from all. You feel powerless. They provoke
youCsay things like >you=re dumb=.@112

One officer, in particular, used to tell her, AWho=s going to believe you? You a fruit
loop.@ Florence R. told us, AThey made me feel so small that I was beneath them.
They=d say, >Who you think gonna= stand behind you?=@

112

Interview, Illinois, May 1994.

Illinois

305

According to CLAIM director Gail Smith, Florence R. suffered repeated
incidents of harassment and retaliation.113 The night Florence R. was discovered
with the officer, she was asked to prepare a written statement by the shift
supervisor. She was then visited by a representative of Internal Affairs and asked to
prepare a second statement in front of investigators. She was also required to take a
polygraph exam. Over the ensuing months, she repeatedly was harassed by the
officer and his colleagues, which led her to become increasingly despondent and
suicidal.114 In Florence R.=s case, the officer was reassigned but continued to
reappear on her unit to harass her. According to Smith, the officer showed up
outside Florence=s door in the middle of the night. On one occasion, shortly after
Florence R. attempted to commit suicide, this officer=s colleague called him into the
unit where Florence R. was living, and the two stood over her and made harassing
comments about the bandages on her wrists.
Alice C. also reportedly was harassed after she agreed to assist in a
departmental investigation of a lieutenant charged with sexual misconduct. The
lieutenant apparently learned that Alice C. had spoken with an investigator.
According to Alice C., he came into her cell and told her Aif I knew what was good
for me, I=d better keep my mouth shut.@115 Alice C., nonetheless, agreed to
participate in the investigation and, on one occasion, an excuse was created for her
to leave the institution to take a polygraph test. On the day before the appointment,
the lieutenant reportedly returned to Alice C.=s room and told her he knew that the
excuse was a ruse and that she should fail her polygraph.
Based on our interviews, harassment comes not only from officers but also
from higher levels, at least at Dwight. A number of women we interviewed reported
incidents of harassment from a male assistant warden regarding their investigation.
According to Florence R., the assistant warden reportedly called her into his office
and asked, AWhy don=t you stop this investigation? I get more paper from your
people than from Legal Affairs.@116 In addition, female prisoners who reported
113

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, Chicago, May 10,
1994.
114

Within three weeks of being assaulted, Florence R. cut her wrists. She told us that
guards and other prisoners were harassing her for pursuing charges against the guard and that
she became upset and depressed.
115

Interview, Illinois, May 1994.

116

Interview, Illinois, May 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

sexual misconduct by guards and cooperated fully with the investigation reportedly
have been transferred to different prisons.117 This practice, allegedly done to
protect prisoners from guards they have implicated, can function as punishment for
prisoners who often develop supportive relationships in prison. The transfer also
can take prisoners away from classes they are attending. Such classes provide
prisoners with additional good time that will be lost if they do not complete the
course. Consequently, the possibility of being transferred operates as a strong
disincentive to reporting sexual misconduct. While it is critical to protect the
prisoner from retaliation, other methods, including transferring the guard could
achieve the same end.
Impunity

117

Telephone interview, Margaret Byrne, attorney, October 16, 1996.

Illinois

307

According to IDOC, as noted above, prisoners filed twenty-nine
complaints of sexual misconduct in 1994-95 at Dwight, Dixon, and Logan of which
only eight complaints were substantiated. Those eight complaints resulted in three
discharges, two resignations and three brief, temporary suspensions.118 Only one
was referred for prosecution.
Our interviews indicate that officers may be temporarily reassigned, and
may even be temporarily suspended, but few officers are ever actually dismissed for
their actions. Consequently, women we interviewed consistently raised the same
names of officers who were known to be physically aggressive and abusive. For
example, the officer who allegedly assaulted Florence R. also later reportedly raped
Holly L. It appears that IDOC and employees at Dwight knew this officer had a
history of sexually abusing prisoners. The day Elizabeth Carter visited her daughter
at Dwight, she told us that a female corrections officer approached her and, while
pretending to play with Carter=s granddaughter, stated that the officer in question
was Anuts@ and that he had a reputation for sexually assaulting prisoners. The
female officer=s comments were supported, according to Carter, by comments made
to her by IDOC=s investigator, whom she contacted regarding Holly L.=s situation.
The investigator told Carter that he believed Holly because Athis guard had a
history.@ He reportedly stated that Ahe would do what he could@ but that there were
labor issues involved.119 Barbara Echols of PAC stated that while she was
incarcerated at Dwight, this same officer was notorious for sexual misconduct
among both prisoners and officers.120
118

Letter from Susan O= Leary, deputy chief legal counsel, Illinois Department of
Corrections, to Human Rights Watch, August 13, 1996.
119

Telephone interview, Elizabeth Carter, June 22, 1994.

120

Interview, Barbara Echols, Prison Action Committee, Chicago, May 13, 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The system=s inadequate response feeds into a continued cycle of sexual
misconduct, further entrenching the problem. When women see that officers are
allowed to remain in or return to the same or another prison, they are less inclined
to report abuse. As Gigi H. stated, ASeeing him here everyday showed me what they
thought about it.@121 Attorney Byrne said, AThe atmosphere is that it won=t do any
good to report these acts. Women are terrified, they are afraid to come forward.@122

121

122

Interview, Illinois, May 1994.
Telephone interview, Margaret Byrne, attorney, October 16, 1996.

Illinois

309

Our interviews further indicate that IDOC rarely refers women prisoners=
complaints of sexual misconduct to law enforcement authorities for investigation.
The initial investigation of complaints and the decision to refer them to local law
enforcement appear to rest entirely with IDOC. In a conversation with Human
Rights Watch, O=Leary did state that if the department receives an allegation of
criminal conduct it would involve the state police. However, according to O=Leary,
the department would not Atypically [involve the police] in sex cases because the
evidence is medical.@123 She told us, AIn a rape case, there=s probably nothing the
state police can do that we wouldn=t be doing.@ Where a prisoner alleged rape,
O=Leary stated that a rape kit would be performed at the institution and this would
be analyzed by the prison doctor. The results would be given to the warden and the
investigator, but there are Ano hard and fast rules.@124

123
Telephone interview, Susan O=Leary, chief deputy legal counsel, Illinois Department of
Corrections, September 27, 1994. It demonstrates an exceedingly narrow view of rape to
assert that evidence of the attack can be limited to medical evidence obtained through a rape
kit.
124

Ibid.

310

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

O=Leary did assert that prisoners were still free to call or write to the
police.125 But, our interviews indicate that, despite O=Leary=s assertion, actual
procedures do not permit incarcerated women to bypass the institution to seek
police investigations into alleged rapes. When Byrne contacted the state=s attorney,
Thomas Brown, to inquire how to file a criminal complaint, she was informed that
his office did not have jurisdictionCit had to be referred from IDOC.126 Byrne=s
experience was confirmed by two other prison monitors, Ruthanne DeWolfe and
Gail Smith. DeWolfe stated that the Will County district attorney took the position
that any referrals for criminal prosecution of corrections officers must come from
IDOC itself.127 According to Smith, a former CLAIM employee was similarly
informed by the Livingston County state attorney=s office that a criminal referral to
either the police or prosecutor must come directly from the Dwight administration
after an internal investigation.128
In the case of Anna P.=s allegations that guards at Dwight were giving
prisoners goods in exchange for sex, three officers reportedly resigned and the
others were suspended with pay pending the completion of the internal
investigation.129 Susan O=Leary, IDOC deputy chief legal counsel, told Human
Rights Watch that when IDOC forwarded their information on the Dwight
allegations to the Livingston County state attorney=s office no one at IDOC
contemplated the possibility that the female prisoners might be criminally
charged.130 Nonetheless, according to press reports, IDOC spokesperson Nic
125

This assertion was repeated in O=Leary=s letter to Human Rights Watch. Letter from
Susan O=Leary, deputy chief legal counsel, Illinois Department of Corrections, to Human
Rights Watch, August 13, 1996.
126

Interview, Margaret Byrne, attorney, Chicago, May 9, 1994. Attorney Byrne wrote to
State Attorney Brown in February, after the third rape. At this time, the IDOC had all but
informed her that they had ceased the investigation into Zelda D.=s allegations.
127

Interview, Ruthanne DeWolfe, attorney, Chicago, May 9, 1994.

128

Telephone interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, March 29,
1995.
129

130

Wilkerson, AThree Dwight guards suspended . . .@ State Journal-Register.

Telephone interview, Susan O=Leary, deputy chief legal counsel, Illinois Department of
Corrections, July 1, 1996.

Illinois

311

Howell indicated that charges would be considered against the prisoners, as well as
the guards.131
IDOC=s seeming assumption of jurisdiction over criminal acts occurring in
prison is inherently problematic. To be fully transparent and neutral, two
simultaneous investigations need to be conductedCa departmental investigation for
possible employee misconduct, and a separate, independent investigation into the
allegation of criminal conduct. By initially assuming exclusive jurisdiction over
criminal acts, such as rape, the department, in effect, is permitted to investigate
itself.
Lack of Accountability to External Monitors

131

Wilkerson, AThree Dwight guards suspended . . .@ State Journal-Register ; Tony Parker,
ADwight Prison Investigation Ends,@ The Pantagraph (Illinois), May 1, 1996.

312

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Based on our interviews and experience trying to interview women in
Illinois, there appears to be an overall lack of accountability in IDOC to outside
persons assisting women prisoners, particularly during an investigation of sexual
misconduct by prison staff.132 Family members, attorneys and even a member of
Congress who have attempted to monitor investigations into such conduct have
either not been fully apprised of the investigation=s progress or have been flatly
denied access to information. Attorneys report the destruction of documents by
IDOC staff, slow response to queries, and daunting procedural irregularities.
Gail Smith, who has worked with women at Dwight since the mid-1980s as
the director of CLAIM, told us that she has heard of only one successful
investigation into an allegation of sexual misconduct.133 She monitored Florence
132

We are only able to comment on Dwight=s accountability to outside monitors for abuses.
The monitors we interviewed were not following allegations at any other facilities.

133

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, Chicago, May 10,
1994. According to Smith, the institution failed to prevent the officer and his friends from
continuing to harass Florence R. This ongoing harassment combined with the isolation and
increased vulnerability to attack that Florence R. experienced while in segregation for
making a supposedly false report, caused a deterioration in Florence R.=s mental state such

Illinois

313

R.=s complaint and remains convinced not only that Florence R. was forced to
perform oral sex, but also that the institution did nothing to address her complaint or
to protect Florence R. from her alleged attacker. During this time, Smith told us,
Awe were not getting attention or cooperation from the institution.@134 According to
Smith, the investigation languished for over five months, and CLAIM was not kept
informed of its progress. Legal documents taken from Florence R.=s cell by prison
staff disappeared.135 Moreover, Smith told us, little was done to protect Florence R.
from harassment by the implicated officer.

that her credibility as a witness became substantially reduced.
134

135

Ibid.

CLAIM contacted Warden Thornton on September 2, 1992, and explicitly informed her
that documents they knew to exist were not among the items returned to Florence R.
Warden Thornton ignored this correspondence for over two months. When she did respond,
she merely reiterated to CLAIM that Florence R. received all of her personal property in
August 1992. It was precisely this return of property in August 1992 that CLAIM was
challenging as incomplete. In other words, the warden completely disregarded the entire
purpose of CLAIM=s complaintCthat while some possessions were returned to Florence R. in
August, her legal materials were not.

314

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

CLAIM=s involvement in Florence R.=s case apparently damaged its
previously productive relationship with Dwight, where they had worked to provide
family law services for incarcerated mothers. According to Smith, AOnce we got
involved . . . this affected the relationship with [the institution]. . . . If they get an
inkling you are looking into something, then they put the brakes on and it becomes a
little harder.@136
Others who have attempted to press for information or to monitor cases
have been stonewalled or mistreated by the IDOC. Holly L.=s mother, Elizabeth
Carter, tried to pursue Holly L.=s allegation of rape with both the warden and an
IDOC investigator. Despite her efforts, the implicated officer remained on Holly
L.=s unit for several weeks after the attack. According to Carter, when she visited
her daughter after the alleged rape, Holly L. was Abeside herself.@137 She requested
to speak with the warden that day and called her again several days later.
According to Carter, the warden did not return her phone calls until she contacted
an attorney and called other people at IDOC. When the warden finally returned
Carter=s call, she reportedly told Carter that she would Ado what she could to
facilitate@ and said whoever was guilty, Aon either side,@ would be punished. Carter
was never notified about the outcome of the investigation.
It appears that corrections officials have even misled a representative in the
U.S. Congress who sought information about an investigation. Soon after Alice C.
took a polygraph to assist in an investigation of sexual misconduct by a corrections
employee, she says IDOC officials transferred her involuntarily to another facility,
further away from her family and children. AI returned to [the prison] that afternoon
and the next thing I knew they said I had thirty minutes. They were transferring
me.@138
136

Interview, Gail Smith, Chicago Legal Aid to Incarcerated Mothers, Chicago, May 10,
1994.
137

Telephone interview, Elizabeth Carter, June 22, 1994.

138

Interview, Illinois, May 1994.

Illinois

315

After her transfer, Alice C.=s family contacted their U.S. congressman,
Representative Bob Michels. Rep. Michels then communicated his concerns about
Alice C.=s transfer to IDOC, and in September 1993 Howard Peters, then director of
IDOC, wrote to him saying he would look into the situation.139 In November 1993,
two months after Alice C. was transferred, Director Peters informed Representative
Michels that the investigation had just concluded. He wrote that once the
appropriate paperwork was processed Awe will have no objections in reconsidering
[Alice C.=s request] to return to
.@140 In fact, the IDOC Administrative Review
Board had decided in November to deny Alice C.=s request to return to the other
prison.

RECOMMENDATIONS
I.
A.

Prohibiting Sex in Custody
The Illinois Legislature should amend the Illinois Penal Code to recognize
that all instances of sexual intercourse or sexual touching between prison
staff and prisoners constitute felonious criminal conduct on the part of the
prison staff member. Where such intercourse or touching is accompanied
by the overt use or threat of force, including through the provision or
denial of privileges, money, or goods, it should be prohibited as felony
rape and sexual assault. Given the fact that prisoners have limited
resources and privileges and the promise of rewards always carries special
weight, cases where correctional officers offer goods or privileges without
any actual or perceived threat to the prisoner should be prosecuted as
felonious sexual abuse. In instances where it can be shown that no
coercion occurred, sexual intercourse and sexual contact between
corrections employees and prisoners is, at a minimum, an infraction of
staff professional duty and should be punished as criminal sexual contact,
also a felony. Such a provision should be integrated into already existing
laws that criminalize rape and sexual assault. Prisoners should not be
criminally sanctioned for misconduct.

139

During our interview with Alice C., we reviewed a series of correspondence between her
family and Representative Michels as well as his correspondence with her, which included
copies of letters received from the IDOC.
140

Ibid.

316

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

B.

IDOC should amend the Illinois Administrative Code to explicitly prohibit
corrections employees from engaging in sexual intercourse or any other
form of sexual contact with prisoners.

C.

IDOC should cease punishing women prisoners and/or pursuing criminal
charges against women prisoners for sexual relations with corrections
employees under any circumstances. The Illinois Administrative Code,
Section 504 should be revised to prohibit the punishment of prisoners for
sexual contact with corrections staff. Even in those instances where
evidence overcomes the presumption of some coercive influence on the
prisoner and no goods or privileges were exchanged, prison authorities
should refrain from punishing her. Whatever penological interest might be
served by such sanctions is outweighed by the deterrent effect that such
punishments would have on prisoners= willingness to report custodial
sexual abuse.

II.
A.

Safeguarding Prisoners Impregnated by Guards
IDOC should refrain from administratively segregating prisoners
impregnated by corrections staff unless the prisoner expressly requests it.

B.

IDOC should ensure that pregnant women receive timely and adequate
medical care, and that medical treatment recommended by physicians is
provided as prescribed. Medical care should include professional
psychiatric counseling for prisoners who are impregnated as a
consequence of rape or sexual abuse. Administrative segregation should
not preclude the provision of adequate medical and hygienic requirements
for a safe pregnancy.141 Prisoners also should receive neutral counseling
on the options available to them.

III.

Prohibiting Abusive and Degrading Language
IDOC should revise the administrative code to prohibit the use of abusive
and degrading language toward prisoners. Corrections staff must be made aware,

141

Although we did not document allegations of coerced abortions or inadequate medical
and hygienic requirements, we found sufficient evidence in other states to be concerned that
it needs to be addressed.

Illinois

317

through enforcement, that they are obligated to comply with such provision or be
subjected to disciplinary sanctions.
IV.
A.

Protecting Privacy: The Need for a Policy
IDOC should institute a policy to protect the privacy of women prisoners
consistent with international human rights law and with several federal
court decisions holding that prisoners have a constitutionally protected
right to privacy. Corrections employees should be fully trained in this
policy and it should be strictly enforced. Such a policy should include,
among other things:
1.
a requirement that male officers announce their presence before
entering a women=s housing unit;
2.
permission for prisoners to cover windows in their cells for
limited intervals while changing or using the toilet;
3.
a restriction that showers and toilets be searched by female
officers only and should not be excessively intrusive.

B.

IDOC should enforce the administrative code provision requiring strip
searches to be conducted by corrections officers of the same sex as the
prisoner, and in a place where the search cannot be observed by others.
Even in emergencies, IDOC should strive to follow this provision.

C.

IDOC should amend its policy on pat searches to stipulate that female
officers should conduct such searches whenever possible. Prisoners who
either pull away during offensive pat searches or request that the search be
conducted by a female officer should not be subjected automatically to
disciplinary action.

V.

Ensuring an Effective Remedy
Grievances
IDOC should require counselors to report all incidents of sexual
misconduct raised through prisoners= grievances or through their
conversations with prisoners to the prison superintendent or another
designated supervisor within the facility. Such allegations, including
rumors, should be promptly and impartially investigated.

A.

B.

IDOC should make grievance forms readily available in the prison library
or other neutral place, and prisoners should be able to seek the assistance
of other prisoners to prepare and file grievances.

318

A.

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Investigative Procedures
IDOC should promulgate a written, public procedure for conducting
investigations into sexual misconduct between corrections staff and
prisoners. The investigative procedure should, at a minimum:
1.
specify the circumstances necessary to initiate an investigation,
either by the Internal Affairs Department or by an investigator at
the prison;
2.
establish a clear structure and time frame for conducting
investigations;
3.
protect as much as possible the confidentiality of the
complainant, in particular during any period that the employee
retains a contact position over her;
4.
guard complainants from retaliation and harassment; and
5.
guarantee accountability to outside monitors.

B.

IDOC should enforce provisions in the Illinois Administrative Code that
require corrections employees promptly to report unusual incidents, which
should include allegations as well as rumors of sexual or other
overfamiliar conduct to the prison warden or investigator. Failure to do
so should constitute a disciplinary offense.

C.

IDOC should refer promptly all allegations of rape, sexual assault, and
criminal sexual contact to the state police for criminal investigation. Apart
from possible criminal wrongdoing, IDOC should also look into such
allegations for possible violations of prison rules.

A.

Eliminating Bias Against Prisoners
IDOC should cease its practice of discounting, as a matter of course, the
testimony of prisoners who alleged ill-treatment, particularly sexual
misconduct, by corrections staff without a thorough and impartial
investigation.

B.

IDOC should reexamine its policy on the use of polygraph examinations
during investigations into employee misconduct. Results of a polygraph
examination should not, without other credible evidence, be sufficient to
establish that a prisoner has made a false accusation.

VI.

Preventing Retaliation Against Complainants

Illinois

319

A.

Officers alleged to have committed rape and sexual abuse should be
assigned to a noncontact position or suspended until the circumstances are
clarified and the investigation is complete. Any violation of such
restrictions should constitute grounds for disciplinary action and/or for
immediate suspension.

B.

IDOC should ensure, as much as possible, the confidentiality of prisoners
alleging sexual misconduct by prison staff and their witnesses. Their
names should not be given to the accused officers while the officers
remain in contact positions with the complainants or are assigned to the
facility where a complainant resides. IDOC also should prevent the
prisoner=s name from being revealed generally within the facility.

C.

IDOC should investigate promptly and vigorously all reports of
harassment or retaliation against complainants. Employees who are found
guilty should be disciplined appropriately.

D.

IDOC should reexamine and monitor the policy of impounding prisoners=
property to ensure that prison administrators and other corrections officials
do not abuse this power as a way to punish or harass prisoners, or deprive
prisoners of materials that are crucial to their allegations.

VII.

Curtailing the Use of Administrative Segregation
IDOC should strictly prohibit the use of administrative segregation to
punish complainants. IDOC should authorize the use of administrative segregation
during an investigation only at the complainant=s explicit request. Since a prisoner
placed in administrative segregation for her own protection has not committed a
disciplinary offense, she should retain the rights of the general population (e.g.,
telephone calls, visits, access to recreation, etc.). She should be returned to the
general population when she wishes. IDOC should train employees assigned to
segregated housing units regarding these provisions.
VIII.
A.

Ensuring Discipline
IDOC should promulgate and enforce clear, public guidelines governing
disciplinary action against abusive corrections employees. These
guidelines should expressly state that employees found to have engaged in
sexual intercourse, sexual contact, or any other sexual misconduct will be
punished, including by dismissal. Transfer of employees found to have

320

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
engaged in sexual contact with prisoners to other positions or facilities
does not constitute appropriate punishment.

B.

IDOC should publish, at least quarterly, a summary of reports of and
disciplinary actions taken against corrections employees responsible for
sexual misconduct or abuse to allow the federal government and
nongovernmental organizations to monitor IDOC=s efforts to prevent
sexual misconduct. The reports should omit the names of prisoners and, if
necessary, of employees. But they should include dates, locations, and
other relevant details about the reported incidents, and the types of
punishment applied.

IX.
A.

Hiring and Training Corrections Employees
IDOC should improve its screening procedures for applicants for
corrections positions. Background checks should be completed before
new employees are sent into women=s correctional facilities. In no case
should an employee who has been convicted of an offense related to
sexual misconduct in custody be rehired.

B.

IDOC should ensure that comprehensive and mandatory training is
provided to current and future corrections employees on particular aspects
of working with incarcerated women, prior to their assignments in
women=s prisons. The training should include, among other things:
1.
a general discussion of profile of female prisoners and their
potential vulnerability to sexual misconduct;
2.
IDOC policies on privacy and the prohibition on sexual relations,
degrading language, and other sexually oriented or degrading
behavior toward incarcerated women and the disciplinary
sanctions associated with this behavior; and
3.
appropriate methods for conducting pat searches, strip searches
and searches of women=s cells, toilets, and showers. The IDOC
should collaborate with local nongovernmental organizations
experienced in working on issues such as rape and sexual assault.

X.

Educating Prisoners

Illinois

321

A.

IDOC should advise incarcerated women, as part of their orientation to the
corrections system, as well as prisoners already serving their sentences, of
the following:
1.
Corrections officers are strictly prohibited from engaging in
sexual contact with prisoners under any circumstances.
2.
Grievances may be filed directly and confidentially with the
prison superintendent or prison investigator. Prisoners should be
informed about: the issues that may be dealt with through the
grievance procedure, with particular emphasis on instances of
sexual misconduct; the location of grievance forms in the prison
library or other neutral place; bypass mechanisms available for
reporting sexual misconduct; the recourse available when
corrections officers fail to respond; and the potential to resolve
complaints through the investigation procedure and/or the
independent review board.
3.
IDOC should also acquaint prisoners with their rights under
international human rights treaties ratified by the United States as
well as under U.S. constitutional law.

B.

The above information should be included in the prisoner handbook.

XI.
A.

Ensuring Accountability to Outside Monitors
IDOC should provide timely and full written information about a
grievance or investigation to the prisoner and the people she designates,
such as her attorney and her family, upon their request.

B.

The Illinois Legislature should create a fully empowered and independent
review board to investigate, among other things, complaints of sexual
misconduct that are not satisfactorily resolved by the grievance or
investigative mechanisms. The review board should have the authority to
turn over evidence of possible criminal wrongdoing to prosecutorial
authorities. The board should also be able to recommend remedial action
to stop abuses or other problems uncovered during an investigation.

C.

The review board should develop a system whereby the records of
corrections employees who have been the subject of repeated complaints
are reviewed by the appropriate authorities.

322
D.

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
The review board should provide a toll-free telephone number that
prisoners can use to contact investigators or to file anonymous complaints
of employee misconduct, including retaliation against complainants.

VII. MICHIGAN

The Michigan Department of Corrections (MDOC) is currently being sued
by seven female prisoners on behalf of all others similarly situated for sexual
assault, sexual abuse, sexual harassment, and inappropriate visual surveillance
within its correctional facilities for women. The suit comes on the heels of a U.S.
Department of Justice (DOJ) finding in 1995 that sexual misconduct pervades
Michigan=s women=s prisons, including rape, sexual abuse, sexually aggressive acts
by guards, and violations of the female prisoners= legitimate privacy interests. Our
own investigation, conducted from 1994 through 1996, and based on interviews
with current and former female prisoners as well as attorneys, prisoner rights
advocates, and MDOC, revealed that rape, sexual assault or abuse, criminal sexual
contact, and other misconduct by corrections staff are continuing and serious
problems within the women=s prisons in Michigan have been tolerated over the
years at both the institutional and departmental levels.
Rather than seeking to end such abuse, the Michigan Department of
Corrections has consistently refused to acknowledge that there is a problem of
sexual misconduct in its women=s prisons. As noted below, MDOC dismissed the
female prisoners= class action suit as Aerroneous@ and issued a written statement
characterizing the DOJ=s findings as Avindictive and distorted@ and Afull of half
truths, innuendo, distortion and lies.@1 The state has taken the positive steps of
establishing minimal grievance and investigatory procedures as well as disciplinary
and criminal sanctions for custodial sexual contact; however, its stated policy of
Azero tolerance@ for such abuse is belied by a pervasive bias against prisoner
testimony, a high incidence of retaliation against complainants, and a consistent
problem with the enforcement of appropriate penalties.
MDOC cooperated with Human Rights Watch=s on-site investigations at its
women=s facilities and was prompt in its reply to our requests for additional
information. Moreover, we commend the state for expressly criminalizing custodial
sexual touching and for establishing clear disciplinary penalties for this crime.
However, a significant gap exists between MDOC policy and its practice with
1

Valerie Basheda, AU.S.: Women=s Prisons a Disaster,@ Detroit News, March 30, 1995.

323

324

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

respect to sexual misconduct. We strongly urge MDOC to enforce its criminal and
administrative prohibitions against sexual misconduct, including rape, sexual abuse,
and assault, criminal sexual contact, verbal degradation, and privacy violations; to
protect prisoners= right to an effective remedy in cases of sexual misconduct by
prison staff; and to end impunity for abusive employees. Moreover, we urge the
department to publish regular reports of the nature and results of its sexual
misconduct investigations to cooperate fully with the Department of Justice and
other independent monitors in their efforts to uncover and remedy on-going
custodial sexual misconduct in Michigan=s prisons for women.

CONTEXT
Custodial Environment
Female prisoners in Michigan, held in increasingly overcrowded facilities,
are guarded by a largely male staff. According to recent figures, men constituted
from nearly one-half to over two-thirds of the corrections staff in the state=s two
largest prisons for women, the Florence Crane Women=s Facility (Crane) and the
Scott Correctional Facility (Scott).2
As noted in the legal background chapter of this report, Human Rights
Watch does not oppose the presence of male officers in contact positions in female
prisons per se. Nor do we believe that all male staff abuse prisoners or that
custodial abuse is carried out only by males. However, we are concerned that
Michigan has not taken adequate steps to protect against the potential for custodial
sexual misconduct that arises out of this cross-gender guarding situation. Although
Michigan does expressly prohibit sexual misconduct in both prison rules and
criminal law, it fails to train male staff adequately to uphold these prohibitions and
does not consistently investigate and discipline those employees found to violate
them.

2

According to MDOC=s 1995 Information Kit, out of 222 corrections officers at Scott, 118
were women. Of 125 corrections officers at Crane, thirty-nine were women. These figures
include corrections medical aides, resident unit officers, and work camp supervisors.

Michigan

325

Corrections officials have also failed to inform female prisoners
adequately regarding the nature of custodial sexual misconduct and the mechanisms
available to seek redress. Christina Kampfner, a clinical psychologist who had
worked extensively with women in Michigan=s prisons, told us that in these
relationships, officers often target Alike a radar@ women with histories of sexual or
physical abuse or prisoners in emotionally vulnerable positions, such as those who
lack support from family or friends, who are alienated or isolated by other prisoners
or staff, and younger women who are incarcerated for the first time.3 According to
Kampfner, many of these prisoners are so in need of attention that they are easily
exploited by the officers.
The gap between policy and practice in Michigan with respect to sexual
misconduct is occurring at a time when the women=s prisons are increasingly
crowded. According to the most recent figures available from MDOC, there are a
total of 1,616 prisoners in its women=s facilities.4 The majority of women are held
in the Scott Correctional Facility, located in Plymouth, and the Florence Crane
Women=s Facility,5 located in Coldwater, which house 771 and 447 women
respectively.6 MDOC also operates Camp Branch, a female camp in Coldwater that
holds approximately 400 women. MDOC currently operates both women=s prisons
in overcrowded conditionsCprisoners are double- and triple-bunkedCand areas
once used for recreational space are being used to house prisoners.7
3

Interview, Christina Kampfner, clinical psychologist, Ann Arbor, Michigan, May 17,
1994.
4

Letter from Nancy Zang, special administrator, Female Offenders Program Michigan
Department of Corrections, to Human Rights Watch, October 8, 1996 (on file with Human
Rights Watch).
5

Since we conducted our interviews in 1994, there has been a change of wardens at the
Florence Crane Women=s Facility. Warden Carol Howes was replaced by Warden Sally
Langley.
6

7

MDOC Information Kit, 1995.

According to the most recent figures from MDOC, neither Scott nor Crane are technically
exceeding their operating capacity, which, according to 1995 figures, is 860 and 460
respectively (MDOC Information Kit, 1995). However, based on a review of the prisons=
capacity figures from previous years, it appears that these numbers are fairly malleable. For
example, according to April 1994 figures for the Scott Correctional Facility, the prison=s
operating capacity is 638 (MDOC Client Census Summary, April 1, 1994), 222 prisoners

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

less that it is now estimated to be. To our knowledge, no construction has occurred to
account for this increased capacity. One explanation may be that via double- or triplebunking, more prisoners can be accommodated in the same space, and a prison=s capacity can
thereby increase.
At the Florence Crane Women=s Facility, the crowded conditions are exacerbated
by the dilapidated condition of the prison itself. The American Correctional Association
audit at the Crane facility in November 1992 found that: AThere was a considerable need for
improvement. . . . The bathrooms, showers and toilets were in need of replacement and
repair. Peeling paint, broken window panes and problems associated with heating and
plumbing definitely indicated a need for an improved, ongoing maintenance.@ (American
Correctional Association, Commission for Accreditation for Corrections Standard
Compliance Audit, Florence Crane Women=s Facility, November 1992, p. 4.)

Michigan

327

State Legal and Regulatory Framework
Under Michigan=s criminal code, any sexual touching with a prisoner by an
employee of or a volunteer with MDOC constitutes fourth-degree Acriminal sexual
conduct,@ a misdemeanor.8 The provision was added in 1988 to a pre-existing
section of the criminal code that outlawed sexual touching with someone between
the ages of thirteen and sixteen who is physically or mentally incapacitated or that is
accompanied by force or coercion. The law applies to sexual contact irrespective of
a prisoner=s alleged consent.9 Given the position of authority held by a corrections
employee over a prisoner, the Michigan legislature found Athe usual notions of
consent do not apply.@10 The MDOC employee manual reiterates the prohibition on
sexual contact with a prisoner and informs employees that such conduct constitutes
a crime under Michigan law.11 Under certain circumstances, corrections officers
8

Michigan Comparative Law Annotated '750-520(e)(d). Fourth degree criminal sexual
conduct is a two-year offense.
9

According to Deborah LaBelle, an attorney who represents women prisoners in Michigan,
the law criminalizing sexual contact in prison was introduced in the state legislature
following an alleged rape at Huron Valley Women=s Prison, in which an issue was made of
the woman=s consent. The corrections officer, Alfred Beaster, whose case is discussed in
more detail below, admitted to sexual intercourse with the woman but alleged the liaison was
consensual. The woman asserted that she was raped. The officer=s claims so outraged two
female legislators that the legislation was proposed. Telephone interview, Deborah LaBelle,
attorney, February 27, 1995.
10

Michigan House Legislative Analysis Section, ACriminal Sexual Conduct with Prisoner,@
House Bill 4386 as enrolled Second Analysis (6-29-88). The analysis compared the
situation of a prisoner to that of a patient or resident in a mental health facility.
11

MDOC also has a policy on humane treatment of prisoners that appears to prohibit both
degrading treatment of prisoners, although provisions we reviewed seem to apply only to the
conduct of other prisoners rather than that of employees. The policy provides that Astaff
shall discourage, with all appropriate means, any person=s use of derogatory, demeaning,
humiliating, or degrading actions or language toward others.@ "Right of Clients to Humane
Treatment and Living Conditions," MDOC Policy Directive, No. 03.03.130, June 7, 1982
(supersedes No. PD-DWA-64.02). The provision falls under a section addressing abuse by
"a minority of other prisoners." A later clause stipulates that "corrections clients shall not be
subjected to personal abuse from corrections staff," but it does not define personal abuse.
The same language is also included, without clarification, in a 1991 prisoner guidebook with
regard to sexual harassment. "Sexual Harassment Reporting and Prevention," MDOC Policy
Directive, No. 02.02.108, August 24, 1992 (supersedes No. PD-DWA-05.02).

328

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

who engage in sexual intercourse with prisoners may be charged with third or first
degree criminal sexual conduct. Third degree criminal sexual conduct occurs when
an individual uses force or coercion to have sex. First degree sexual conduct
applies to intercourse that occurs under specified aggravating circumstances.12
At present, MDOC operates both of its women=s prisons and Camp Branch
under a court order issued in 1981, in Glover v. Johnson.13 While the issues raised
12

There are nine sets of circumstances under which sexual penetration (vaginal, anal, or
oral) constitutes a first degree offense, including (a) where a complainant suffers personal
injury and the defendant used force or coercion; (b) where the defendant is aided by another
in using force or coercion to secure sex; and (c) where the defendant is armed at the time of
the offense.
13

Glover v. Johnson, 478 F. Supp. 1075 (1979); Glover v. Johnson, 510 F. Supp. 1019
(C.D. Mich. 1981). The 1981 court order, issued after a 1979 opinion finding that Michigan
had violated the women=s equal protection rights, required MDOC to: provide educational,
vocational, apprenticeship and work opportunities, comparable to those available to male
prisoners; establish a prison industry at the women=s prison; rectify the inferiority of
rehabilitation opportunities available to women; update and maintain the law library and
provide paralegal training to incarcerated women; and reassess the departmental wage policy
to ensure it is fairly applied to female prisoners. The court also ordered the department to
pay back wages to a trust fund that was established for the benefit of the women prisoners.
The trust was later named the Judith Magid Trust in memory of one of the original attorneys
who filed Glover.

Michigan

329

in Glover are outside the scope of this report, the authorities= persistent defiance of
both the judicial authorities and the other external monitors involved in Glover are
indicative of similar problems in MDOC=s approach to addressing sexual
misconduct in its women=s prisons.
At the time Glover was decided, it was a landmark decision for
incarcerated women regarding their rights and an influential precedent for female
prisoners in other states to seek more equal programming. Despite its precedential
value, however, women incarcerated in Michigan continue to be denied the full
implementation of the judge=s order.14 Attorneys representing female prisoners
have been forced to file repeated contempt motions seeking compliance with Glover
orders. The district court has found that the state disobeyed the 1981 order in two
major contempt rulings.15
MDOC=s continued noncompliance led the Sixth Circuit Court of Appeals,
in 1991, to issue a stern rebuke to the department and to uphold the appointment of
a special administrator, a remedy the Circuit Court once found overly intrusive.
The Sixth Circuit concluded:
[The] history of this case shows a consistent and persistent
pattern of obfuscation, hyper-technical objections, delay, and
litigation by exhaustion on the part of the defendants to avoid
14

In the mid-1980s, when the Florence Crane Women=s Facility was opened for women,
MDOC refused to extend Glover=s order to the facility despite the judge=s ruling that all
women present and future were covered by the case. While the circuit court reaffirmed that
indeed all women incarcerated by MDOC were covered by the order, MDOC one year later
again contended before the district court that the Florence Crane Women=s Facility was not
covered.
15

Specifically, the court found that Michigan failed to comply with the order concerning:
access to the courts; educational programming; vocational programming; apprenticeship
opportunities; prison industry, trust fund payments and prisoner wages; and off-ground
privileges and work pass programs. Glover v. Johnson, 721 F. Supp. 808 (E. D. Mich. 1979)
affirmed in part, reversed in part, 934 F. 2d, pp. 706-707 (6th Cir. 1991); Glover v. Johnson,
850 F. Supp. 592 (E. D. Mich. 1994).
According to Deborah LaBelle, the lead attorney on Glover, between 1979 and
1989, no female prisoner could get an associate=s degree through the courses provided at the
women=s prisons despite the 1979 order requiring that a coherent program with courses
leading to such a degree be provided. Meanwhile, male prisoners were obtaining between
thirty and fifty such degrees per semester at one male facility. Telephone interview,
Michigan, Deborah LaBelle, attorney, February 27, 1995.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
compliance with the letter and spirit of the district court=s
orders. The plaintiff class has struggled for eleven years to
achieve the simple objectives of equal protection under the law
generally, and equality of opportunity specifically.16

While the court upheld the creation of a special administrator, MDOC was
permitted to designate who would serve in that position. The director of MDOC,
Kenneth McGinnis, appointed Nancy Zang, a former parole officer in Illinois as
special administrator of the Female Offenders Program. Zang is based in the
director=s office and reports directly to him.

16

Glover, 934 F.2d, p. 716. Emphasis added.

Michigan

331

The Sixth Circuit=s rebuke did not appreciably affect MDOC=s
recalcitrance, and women have continued to face difficulties gaining the remedies
ordered by the court. Deborah LaBelle told us there have been more than eight
contempt motions filed against MDOC since 1991.17 The court has issued nine
orders to force compliance since 1991, and in March 1995 issued an opinion finding
that MDOC had still not obtained compliance, despite MDOC=s insistence that they
were fully compliant in all areas.18 On July 19, 1996, the court again issued an
opinion and orders to compel compliance. United States District Judge John Feiken
concluded: A. . . Defendants [MDOC et al.] have clearly, positively, and repeatedly
violated orders of this court. . . .In fact, in the nineteen years of this case,
Defendants have demonstrated a galling pattern of disrespect for the inmates they
hold, the taxpayers of the State of Michigan, and the dignity of this court.@19
National and International Law Protections
As discussed in the legal background chapter of this report, sexual
misconduct is clearly prohibited under both U.S. constitutional law and
international treaty law that is binding on the the U.S. federal government and its
constituent states.20 The eighth amendment to the U.S. Constitution, which bars
cruel and unusual punishment, has been interpreted by U.S. courts to protect
prisoners against rape and sexual assault. This constitutional shield is further
17

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

18

Ibid.

19

20

Glover v. Johnson, 931 F. Supp. 1360, p. 1383 (E.D. Mich. 1996).

For a detailed discussion of United States obligations under U.S. constitutional law and
international law pertaining to the treatment of prisoners, see the legal background chapter of
this report.

332

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

augmented by the Fourth Amendment=s guarantee of the rights to privacy and
personal integrity, which, in a series of lower court cases, has been interpreted to
prohibit male guards from strip searching female prisoners, conducting intrusive
pat-frisks, or engaging in inappropriate visual surveillance.
Constitutional protections on prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark prison victories
through private litigation, particularly by suits litigated by prisoners= rights groups
such as the National Prison Project of the American Civil Liberties Union or the
National Prison Project of the National Women=s Law Center. However, if certain
stringent intent requirements are met, the DOJ may criminally prosecute abusive
prison officials under federal civil rights provisions. In addition, the DOJ has the
statutory right to investigate and institute civil actions under the Civil Rights of
Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages
in a pattern or practice of subjecting prisoners to Aegregious or flagrant conditions@
in violation of the constitution.
In addition to constitutional protections, prisoners= rights are also protected
under international and human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant on Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment of Punishment, ratified in 1994. Both
treaties bar torture and cruel, inhuman or degrading treatment or punishment, which
authoritative institutional fora have interpreted as including sexual abuse. To
constitute torture, an act must cause severe physical or mental suffering and must be
committed for a purpose such as obtaining information from the victim, punishing
her, intimidating her, coercing her, or for any reason based on discrimination of any
kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a
lesser degree of suffering that need not be committed for a particular purpose. The
ICCPR guarantees the prisoners= right to privacy, except when limitations on this
right are demonstrably necessary to maintain prison security.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,

Michigan

333

that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment. 21
ABUSES22
The abuses discussed in this section occurred over a ten-year period from
1986 to 1996. Our own investigation took place from March 1994 through
November 1996. We found a serious problem of sexual misconduct in Michigan
women=s prisons, including rape, sexual assault and abuse, criminal sexual contact,

21

For a detailed discussion of the prohibition against torture, and other cruel, inhuman or
degrading treatment or punishment under international law and its applicability to custodial
sexual misconduct, see the legal background chapter of this report.
22

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.

334

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

inappropriate visual surveillance, and verbal degradation. Unless indicated by the
use of a full name, the names of the prisoners have been changed to protect their
anonymity. In some cases, the location and exact date of prisoner interviews have
also been withheld.
Rape, Sexual Assault or Abuse, and Criminal Sexual Contact
On March 27, 1996, prisoners= rights attorney Deborah Labelle filed a
class action suit, Neal/Nunn, on behalf of seven female prisoners and all other
females incarcerated in Michigan charging MDOC and several other named
defendants with various degrees of sexual assault, sexual harassment, violations of
privacy, and physical threats and assaults.23 Two of the plaintiffs, Tracy Neal and
Ikemia Russell, allege sexual assault by male officers at the Scott Correctional
Facility in 1994. A third, Helen Gibbs, alleges that she was sexually assaulted by a
male officer at the Florence Crane Women=s Facility in 1994. Bertha Clark alleges
that a male officer at Scott squeezed her breasts and grabbed her crotch during patfrisks, and Linda Nunn alleges sex-based, derogatory and abusive name calling and
sexually threatening comments by a male officer at Scott. Stacy Barker, whose case
is described in more detail below, alleges constant harassment and retaliation at
Scott for reporting sexual misconduct by staff members, and AJane Doe@ alleges that
male officers at Crane subjected her to constant viewing while dressing and
undressing, showering, and using the toilet facilities. All seven women report
experiencing sex-based insults, sexual harassment, excessively intrusive crossgender body searches, constant viewing by male staff and threats of retaliation for
reporting staff misconduct.
Such allegations of sexual misconduct are not new to Michigan=s women=s
prisons. Documentation we obtained indicates that these charges are consistent with
a pattern and practice of conduct in the women=s prisons since, at least, the mid1980s. In 1984 a prisoner accused a resident unit officer, Alfred Beaster, at Huron
Valley Women=s Facility,24 of rape. He ultimately confessed to having sexual
relations with a prisoner, but asserted the prisoner was the aggressor. He told the
prison investigator that:

23

Neal v. Michigan Department of Corrections, Civil Action File No. 96-6986, Circuit
Court for the County of Washtenaw, March 27, 1996.
24

This facility has since been closed.

Michigan

335

The prisoner dropped her pants, he took his penis out, but she did
all of the manipulation. That is, she backed onto his erection.
Officer Beaster maintained he didn=t lay a hand on her. Beaster
told the officers that he wasn=t sure if he was inside of her or not
as she was backing up on him. He did tell the officers that he
ejaculated and that she asked him if he squirted inside of her.25

25

Memorandum from Rider, assistant deputy, Michigan Department of Corrections, to D.
Quarles, Michigan Department of Corrections, November 28, 1984.

336

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Then, in 1986, a corrections officer at Crane, Raymond Raby, was
dismissed after admitting during a police interview that he had sexual relations on a
nightly basis with different women incarcerated at Crane. Raby=s exploits came to
light after a prisoner, Jackie K., reported that Raby molested her. According to
Jackie K.=s statement, Raby entered her cell at night and woke her up. He took her
into a visiting room where he grabbed her and kissed her, then fondled her breasts
and put his finger in her vagina.26 Shortly after Jackie K. complained about him,
another prisoner reported seeing an officer fitting Raby=s description having oral
intercourse with a third prisoner.27
In 1988 another woman incarcerated at Crane, Kim J., alleged that she was
raped by an officer during the night shift. Kim J. reported the incident to the prison
psychologist, who then informed other officials in the prison.28 According to a
statement Kim J. made, the officer raped her in the laundry room after she submitted
to a Ashakedown@ (pat-frisk). The next morning, she awakened to find the officer in
her cubicle with his hand between her legs. The authorities took no action against
the officer because the only evidence was her accusation.
In another incident, Officer Bernard Rivers in 1990 admitted entering a
prisoner=s segregation cell and sexually assaulting her. According to the prisoner,
Lisa G., Rivers entered her cell in April 1988 and told her he could positively or
26

Report from Charles Allen, sergeant, Michigan State Police, October 1985.

27

Letter from Richardson, Michigan Department of Corrections, from a prisoner, October
1985.
28

Memorandum from R. Joseph, psychologist, Michigan Department of Corrections, to C.
Paradine, hearing officer, Michigan Department of Corrections, September 20, 1988.

Michigan

337

negatively affect her parole, depending on how she responded to his sexual
advances.29 She involuntarily submitted to sexual relations with him. Lisa G. came
forward eighteen months later, after Rivers was again assigned to her housing unit,
out of fear that he would force her to have sexual relations with him again. MDOC
largely ignored Lisa G.=s allegations for four months until she, with the help of her
attorney Deborah LaBelle, obtained a court order and wore a wire inside the
prison.30 She successfully taped a conversation with Rivers. His statements
acknowledged the sexual assault and resulted in the sheriff=s office recommending
prosecution. He committed suicide before trial.

29

Written statement by Lisa G. (on file with Human Rights Watch).

30

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

338

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In 1992 the Michigan Women=s Commission, a governor-appointed body,
launched an investigation into the problems facing incarcerated women, focusing in
particular on women incarcerated in county jails.31 The commission interviewed
fifty-nine women who were formerly held in jail and were either released or
transferred to Michigan=s prisons or community-based programs.32 In each
interview, a pre-established series of questions was asked regarding jail conditions

31

Michigan Women=s Commission, AUnheard Voices: A Report on Women in Michigan
County Jails,@ July 1993, p. 7. The report was commissioned under the previous governor=s
administration and carried out by members of the Women=s Commission who were
appointed by the new governor.
32

Ibid. Of the fifty-nine women, thirty-three were incarcerated in prison at the time of the
interview. Prison personnel selected the women who were interviewed. Letter from the
Michigan Women=s Commission to Kenneth McGinnis, director, Michigan Department of
Corrections, May 13, 1993. Interviews conducted with women who had been transferred to
prison were done with the knowledge and permission of MDOC. The prison interviews took
place in the open visiting rooms of the Crane and Scott women=s facilities, where corrections
officers could monitor the conversations, if they chose to do so. Interview, Jenny Elder,
former intern, Michigan Women=s Commission, Detroit, March 28, 1994. As an intern for
the Michigan Women=s Commission, Elder conducted a large majority of the interviews.

Michigan

339

including a final, open question, AAre there any concerns you would like to share
about conditions here at the prison?@33

33

ASpecial Report: Women in Prison,@ deleted from the Michigan Women=s Commission=s
final report AUnheard Voices . . .@

340

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The prisoners raised a number of concerns in response to the final
question, including incidences of rape, sexual assault, and sexual harassment
committed by corrections officers. A majority of the women reported sexual
harassment and sexual abuse by the guards, ranging from corrections staff
demanding sex or sexual favors, often in exchange for certain items, to intrusive
pat-downs, to male guards walking through the showers and rooms while the
women were undressed.34 The women=s responses to the last question were used to
create a final chapter, ASpecial Report: Women in Prison,@ of the Women=s
Commission=s Report. At MDOC Director McGinnis=s insistence, the section was
ultimately deleted from the published report, released in July 1993; the chapter has
never been made public in any form.35
In February 1993 the Office of the Legislative Corrections Ombudsman, a
post attached to the state legislature, conducted a second investigation of sexual
misconduct at both Scott and Crane.36 McGinnis asserts that the ombudsman=s
findings refuted the information compiled by the Women=s Commission, even
though a significant percentage of the women surveyed reported that sexual
harassment and sexual misconduct were problems in the prison.37
34

Letter from Marjie Gaynor, Michigan Women=s Commission, to Kenneth McGinnis,
director, Michigan Department of Corrections, February 3, 1993.
35

Interview, Jenny Elder, former intern, Michigan=s Women=s Commission, Detroit, March
28, 1994.
36

The Office of the Legislative Corrections Ombudsman was created by the Michigan state
legislature to provide an independent and outside means to investigate allegations of
wrongdoing within the MDOC. Its role and performance are discussed more fully below
under the section on investigations. The ombudsman=s survey was prompted by a request
from State Representative Jan Dolan.
37

Letter from Charlene Lowrie, chief investigator, Office of the Legislative Corrections
Ombudsman, to Carol Howes, warden, Florence Crane Women=s Facility, April 26, 1993.
Twenty-four prisoners were reportedly selected at random from the general population at
Scott; of these, six, or 25 percent, refused to participate. Nineteen women, of whom one
refused to participate, were chosen at Crane. The participating prisoners were asked sixteen
questions that required a simple Ayes or no@ answer. At Scott, three women reported a
problem with officers watching prisoners shower. Three witnessed staff sexually harass
other prisoners and personally experienced unwanted sexually suggestive remarks or
gestures from staff. A substantial majority of those interviewed, 67 percent, reported feeling
uncomfortable during shakedowns. Of these, one-third reported being groped, fondled or
inappropriately touched at one time or another during a shakedown by staff. At Crane, the

Michigan

341

ombudsman=s investigation revealed the following: 35 percent of the women felt there was a
problem with staff watching prisoners shower; 18 percent had experienced some degree of
unwanted sexually suggestive remarks; 18 percent had, at one time or another, seen staff
engage in a sexual encounter with a prisoner; 29 percent reported seeing staff sexually harass
other prisoners; 65 percent felt uncomfortable during shakedowns; and 35 percent were
aware of situations involving the exchange of sex for favorable treatment.

342

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In June 1994 the U.S. Department of Justice launched an investigation into
prison conditions for women incarcerated at the Scott and Crane facilities pursuant
to the Civil Rights of Institutionalized Persons Act (CRIPA). The purpose of the
investigation was to determine whether there were any violations of the prisoners=
constitutional rights. On March 27, 1995, U.S. Assistant Attorney General Deval
Patrick wrote a twelve-page letter to Michigan Governor John Engler that detailed
the DOJ=s findings. The DOJ concluded:
[T]he sexual abuse of women prisoners by guards, including
rapes, the lack of adequate medical care, including mental health
services, grossly deficient sanitation, crowding and other threats
to the physical safety and well-being of prisoners, violates their
constitutional rights.38
According to the DOJ letter, Anearly every woman . . . interviewed reported
various sexually aggressive acts of guards.@39 The DOJ found that prisoners at Scott
and Crane had been raped, sexually assaulted, and subjected to groping and
fondling during pat-frisks. Additionally, they were subjected to Aimproper visual
surveillance by guards@ who:
routinely stand outside the cells of individual prisoners and watch
them dress or undress, stand in the shower areas and observe
showers and use of toilet facilities. Male maintenance workers
stand and watch women inmates who are naked or in various
states of undress as wellCall on a regular basis without legitimate

38

Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to John
Engler, governor, Michigan, March 27, 1995.
39

Ibid.

Michigan
need. . . . We are unaware of any effort to accommodate the
legitimate privacy interests of prisoners.40
The status of the DOJ=s investigation is discussed in more detail below.

40

Ibid., p. 4.

343

344

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In 1994 we interviewed two womenCStacy Barker and Charlene BillupsHeinCwho both sued MDOC for repeated sexual abuse by male corrections officers
that they endured at the Huron Valley Women=s Prison, now closed, and Scott.
Barker was raped and sexually assaulted by the same officer, Craig Keahy, over a
period of nearly a year and a half, beginning in October 1989.41 She told us, AHe
would come to my room or detail [once or twice a week] and force me to perform
different sexual acts on him. He would threaten or harass me, like >I=ll make your
time hard for you . . . I have the keys.=@42 He was discovered by other officers on
various occasions leaving Barker=s room off-duty but was always allowed to return
to her unit and never reprimanded for violation of rules. After a while, his attacks
became more violent. She told us, AHe=d say things like, >Come on and suck my
dick=. . . . He=d pull my hair, unzip his pants and force himself in my mouth.@ Keahy
was subsequently discovered by other prison officers, in August 1991, leaving the
room of a second woman prisoner. They looked into the prisoner=s room and saw
that she was naked. While the prisoner initially denied anything had occurred, she
was taken to the hospital and an examination was performed which detected the
presence of semen. Keahy was convicted in December 1991 on two counts of
fourth-degree sexual conduct with a prisoner, a misdemeanor.43 He was sentenced
to community service.
Charlene Billups-Hein was housed in segregation when a male corrections
officer, David Rose, started coming to her cell in the early mornings in June and
July 1992.44 According to Billups-Hein, Rose came and spoke with her one night
when she was crying and upset. Rose told her he had been having sexual relations
with other prisoners and asked her to have sexual intercourse with him. He listed
the names and identification numbers of the women with whom he was having sex,
many of whom were housed in the segregation unit. According to Billups-Hein, he
stated that he had been watching her for a long time and that she would be his
fourteenth resident. He had not approached her earlier, Rose said, because she was
41

Interview, Stacy Barker, Michigan, March 1994.

42

Ibid.

43

Keahy was convicted on December 18, 1991, for sexual contact with the second prisoner
and pled no contest to charges of sexual contact with Barker on December 21, 1991. He was
sentenced on February 11, 1992.
44

Interview, Charlene Billups-Hein, Michigan, March 1994.

Michigan

345

Awith women,@ implying that she was a lesbian. She told us that she submitted to
sexual relations with the officer because she felt that she did not have any choice.
When he approached her on subsequent occasions, the officer allegedly brought her
various things, such as cigarettes, makeup, perfume, candy, and cookies. She said
they had sexual intercourse and that she performed oral sex on him a number of
times. Officer Rose was charged with criminal sexual conduct third degree and
acquitted. He was returned to Scott where he is currently employed and is
reportedly under investigation for renewed charges of sexual misconduct with a
different prisoner.
Other women we interviewed in 1994 reported similar assaults by male
officers and staff. In late 1993, Anne B. was taking a break from her work
assignment in a back room when her supervisor came in.45 He approached her from
behind and started kissing her. He then pulled her to the ground and had sexual
relations with her. She told us, AI felt uncomfortable. It wasn=t something I wanted.
. . . After that, he acted as if nothing happened. He did his job, I did mine.@ Anne
B. discussed the rape with other women on her work assignment, who described
similar encounters with the same employee, although none of them admitted
actually submitting to sexual intercourse.
Another incarcerated woman we interviewed, Gloria P., told us that Officer
A was assigned to guard her room when she was admitted to a hospital outside the
prison for medical treatment.46 During her stay in the hospital, he became
increasingly assertive, touching her, making comments like, AYou need a man like
me,@ or suggesting she take a shower and helping her undress. He once turned on a
nude dance show on the television in the hospital room and made comments such
as, AI like women with a lot of butt@ or made reference to their breasts. One day, he
sat on the edge of her bed and kissed her. On another occasion, she told us, he
kissed her breasts and she performed oral sex on him.
According to Gloria P., AIt went on from there, and we had a relationship
in the sexual sense@ in the hospital and once she returned to the prison. Everyone,
including staff, she said, knew about the relationship. She explained, AThat person
never gets tickets [disciplinary write-up], never needs a pass, could go wherever
they wanted and, if anybody ever had a problem with her, he=d [take care of it].@47
45

Interview, Michigan, March 1994.

46

Interview, Michigan, May 1994.

47

Interview, Michigan, May 1994.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

During this time, he brought her various things, such as nail polish, money, a ring,
and candy. One night, she stated, the relationship Agot really intense@Che started
rubbing her hair while other prisoners were watching, and they went into a nearby
closet to kiss. Within days, Gloria P. was moved to another unit but continued to
see Officer A in the yard, or he would switch shifts with officers on either her unit
or a neighboring unit in order to see her.
On February 22, 1996, we interviewed an attorney representing a female
prisoner who was charging a male officer at Scott with sexual assault.48 The assault
occurred during the midnight shift on July 31, 1995. The prisoner was asleep in her
cell when the officer entered, tied her down to her bunk, sexually abused her, and
hit her repeatedly. The officer eventually left and during the early hours of the
morning, another officer found the prisoner tied to her bed and badly beaten. The
prisoner was taken to the hospital and then returned to Scott. The officer was
placed on leave immediately and eventually charged with first-degree criminal
sexual conduct. He pled guilty to assault with intent to commit criminal sexual
contact and received four years probation, one of which he must serve in jail.49
In mid-1996, we obtained information about a December 26, 1995, sexual
assault by a male officer on a female prisoner at Scott. The assault allegedly
occurred during the midnight shift when the officer on duty came into the prisoner=s
cell, unzipped his pants, and raped her. After hearing a noise outside her cell, he
told her to meet him in the bathroom area, where he raped her again. After coming
into her cell later in the night and raping her another time, he told her the rapes
would be Aour little secret.@ The prisoner reported the rapes on January 9, 1996.
She was visited by an inspector at the facility that same day and by a state police
officer the following day. At this writing, the prisoner is still incarcerated at Scott
and has no knowledge about the progress of the investigation. The officer has not
been assigned to her unit but is still working at the facility.
On November 4, 1996, we received reports of an alleged sexual assault at
the Camp Branch facility. The assault occurred on October 29, 1996 and was
allegedly committed by a civilian food service employee. State troopers were
contacted and are investigating the case. To date, no warrant has been issued.
Prisoners who are not involved with officers often witness their sexual
activities with other prisoners. According to Frances U., when she worked nights in
the school building, she often saw officers in the library with their pants down with
48

Interview, Ada Montgomery, attorney, Michigan, February 22, 1996.

49

Interview, Ada Montgomery, attorney, Michigan, November 4, 1996.

Michigan

347

a prisoner. She told us, AWe would watch officers taking women to the basement.
If you couldn=t find an officer, you would wait to see which room he came out of. It
runs rampant.@50
Mistreatment of Prisoners Impregnated by Guards
As a result of custodial sexual misconduct, some prisoners have been
impregnated by corrections staff. These women are particularly vulnerable to
harassment by staff and to the punitive investigatory measures at times employed by
MDOC. The experience of one woman, Anne B., whom we interviewed in 1994, is
particularly telling. In 1993 Anne B. reported that she had been sexually assaulted
by a corrections employee and requested a pregnancy test. Almost immediately
after the test results returned positive, the authorities removed her from the prison
where the assault occurred and placed her in a segregated cell at Huron Valley
Men=s Prison (HVM) infirmary.

50

Telephone interview, Michigan, May 1994.

348

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

While at HVM, Anne B. was locked in for nearly twenty-four hours a day
and denied access to a phone. Attorney Deborah LaBelle told us that she learned of
Anne B.=s predicament only through another prisoner at HVM who contacted
LaBelle.51 Anne B. was removed from her cell only for meetings with MDOC staff
investigating her pregnancy. According to Anne B., these investigators repeatedly
interrogated her about the circumstances of her pregnancy. One investigator
threatened to keep her in segregation throughout her pregnancy, take away her
accrued good time, and return her to the facility where she was assaulted unless she
assisted with the investigation. Anne B. also told us that this investigator pressed
her to have an abortion, repeatedly asking her, ADon=t you think it=d just be better
for you and the child to just have an abortion?@52 She resisted this pressure and
carried her pregnancy to term.
Anne B. was released from segregation after nearly three months and
placed in the general population at another women=s prison in the state. She told us
that in this new facility she had been continuously harassed by prison staff about
what she had told investigators and whether she reported who impregnated her. The
doctor at this prison reportedly refused to treat Anne B. during her pregnancy, and
she had to receive prenatal care from a doctor in a nearby town.

51

Telephone interview, Deborah LaBelle, February 27, 1995. LaBelle had another
experience of being unable to locate a client within the correctional system in December
1994. The prisoner was transferred to HVM from another facility, but no one had been
notified.
52

Interview, Michigan, March 1994.

Michigan

349

In February, 1996, we learned of another female prisoner who had been
sexually assaulted by a male officer during an August 1995 stay in a hospital at the
Huron Valley Men=s Prison, where she had been sent for treatment for an ongoing
medical problem. The prisoner had taken a shower and was toweling off in the
bathroom when the officer, an employee of the HVM who had been guarding her,
entered the room and had sexual relations with her. Subsequent to the incident, she
requested a pregnancy test and was found to be pregnant. The baby was determined
by a paternity test to be his, and he was charged with fourth degree criminal sexual
misconduct, to which he pled no contest.53 A person familiar with the case told us
that after the prisoner decided to report the officer, she was harassed by other
officers at Scott. One officer reportedly told her that it might make her time easier
if she did not pursue the case.
Privacy Violations
Despite clear decisions in U.S. courts and relevant international law,
Michigan has no policy in place to ensure the privacy of incarcerated women.
MDOC makes no distinction between male and female corrections officers in
conducting pat-frisks or searches of a prisoner=s cell or the shower and toilet areas.54
In practice, male corrections officers patrol these areas and are in a position to view
incarcerated women in a state of undress or while using the shower or toilet
facilities.
MDOC=s use of male corrections staff in the housing units of the women=s
prisons and the dearth of restrictions on their job assignments appear to be rooted in
a 1982 federal court decision, Griffin v. Michigan Dept. of Corrections.55 Griffin
was a class action lawsuit filed by female corrections officers who alleged that they
were unfairly discriminated against, in violation of Title VII of the Civil Rights Act
banning sex discrimination, because MDOC limited their job assignments to female
facilities and they were denied positions in the over twenty men=s prisons. These
assignments, in turn, adversely affected their professional advancement. At the
time, the MDOC restricted female corrections officers from working on the housing
53

Interview, Bob Greenstein, attorney who assisted in the representation of the prisoner,
November 5, 1996.
54

ASearch and Arrest of Prisoners, Employees and Visitors,@ MDOC Policy Directive, No.
PD-DWA-30.05, April 27, 1989.
55

Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690 (E. D. Mich. 1982).

350

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

units in the men=s prisons for the security and safety of the female officers and for
reasons of prisoner privacy and rehabilitation.56
The judge in Griffin flatly dismissed the contention that prisoners had a
constitutionally protected right to privacy. He found that:

56

Ibid., pp. 698-699.

Michigan

351

Any contention by [MDOC] that they are entitled to the Title VII
[bona fide occupational qualification] exception on the basis of
the prisoner=s right to privacy . . . is without merit. Prisoners do
not possess any protected right under the Constitution against
being viewed while naked by corrections officers of the opposite
sex.57
The judge=s blunt denial to prisoners of a constitutionally protected right to privacy
was made without reference to or consideration of any legal precedent and was
strikingly inconsistent with similar decisions from other jurisdictions that predated
Griffin. Prior to 1982, other courts repeatedly recognized that prisoners had a
constitutionally protected right of privacy, including the right to be protected from
being unduly observed while naked or while using the toilet.58 Where the
employment rights of corrections officers were at issue, the courts directed the state
to balance the equal employment opportunities of the corrections officers with the
need to protect the prisoners= right to privacy. Griffin, however, decided otherwise.

57

58

Ibid., p. 703.

See, for example, Lee v. Downs, 641 F. 2d 1117 (4th Cir. 1981); Harden v. Dayton
Human Rehabilitation, 520 F. Supp. 769 (S.D. Ohio 1981); Bowling v. Enomoto, 514 F.
Supp. 201 (N.D. Cal. 1981); Forts v. Ward, 621 F. 2d 1210 (2d Cir. 1980).

352

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

MDOC has chosen to rely on Griffin rather than on other federal court
decisions since Griffin that ordered or allowed prison officials to protect prisoners
from unwanted and unwarranted intrusions on their privacy by guards of the
opposite sex.59 The court did not address the privacy rights of female prisoners
which subsequent courts have acknowledged are entitled to a different analysis. A
number of decisions have specifically dealt with the role of male corrections
officers, upholding or directing limitations on cross-gender pat-downs or frisks by
corrections officers of the opposite sex,60 and permitting the removal of male
officers from the housing units.61 In some of these decisions, the court has
explicitly stated that Griffin is the exception rather than the rule.62 Strikingly, in
contrast MDOC=s combative approach to Glover and its tendency to appeal virtually
every adverse district court ruling, it did not appeal Griffin.
Abusive Pat-Frisks
MDOC does train corrections officers in the proper procedure for
conducting pat-frisks: they should use the back of their hand, rather than the palm,
when searching the chest and genital areas.63 MDOC policy requires each
nonhousing corrections officer to search at least five Arandomly selected@ prisoners
per shift. These searches are intended to prevent prisoners from possessing
contraband; under departmental policy Ano search shall be conducted for the
purpose of harassing or humiliating a prisoner.@64
59

See Canedy v. Boardman, 16 F. 3d 183 (7th Cir. 1994); Jordan v. Gardner, 986 F. 2d
1521 (9th Cir. 1993); Grummet v. Rushen, 779 F. 2d. 491 (9th Cir. 1985); Hardin v.
Stynchcomb, 691 F. 2d 1364 (11th Cir. 1982), rehearing denied, 696 F. 2d 1007 (11th Cir.
1983).
60

Jordan, p.1521; Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982). See also Madyun v.
Franzen, 704 F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983).
61

Torres v. Wisconsin Department of Health and Social Services, 859 F. 2d 1523 (7th Cir.
1988), cert. denied, 489 U.S. 1017 (1989), and cert. denied, 489 U.S. 1092 (1989).
62

See, for example, Canedy, p. 183.

63

Human Rights Watch researchers who visited Scott and Crane were pat-searched by
female corrections officers who used the back of their hand when searching the chest and
groin.
64

ASearch and Arrest of Prisoners, Employees and Visitors,@ MDOC Policy Directive, PD-

Michigan

353

Nonetheless, male corrections officers frequently abuse their power to
conduct random pat-frisks in a degrading and sexually hostile manner. During patfrisks and pat-searches, male officers often use their open hands and fingers to
grope or grip a women=s breasts and nipples, vagina, buttocks, anus, and thighs.
They reportedly target certain women, usually the younger ones, while older, longterm prisoners are rarely frisked. Joann F. told us:
The male officers sit by the door to the kitchen and shake the
women down as they leave. We watch the way they do it and
who they pick. I watched one who felt a woman down in front of
everyone else as she left. It=s always male officers at the door in
the kitchen who do the shakedowns.65

DWA-30.05, April 27, 1989, p. 4.
65

Interview, Michigan, March 1994.

354

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Carol H. noted, AThe [women] look ashamed because they have the officer pawing
at their body. It depends on what you look like, what you have on. You can guess
who and when they are going to shake a [woman] down.@66
Corrections officers have used the frisks and pat-searches to exercise
undue power and control over incarcerated women. When ordered to submit to a
frisk or pat-search, a woman must comply or risk disciplinary action. In some
instances, women who have requested that a female corrections officer conduct the
frisk or who have pulled away during an offensive frisk have received major
misconduct tickets for disobeying a direct order. Such tickets have resulted in
administrative segregation and loss of good time and disciplinary credits.
According to one grievance we reviewed, prisoner Maxine Q. was being pat-frisked
by Officer W when, she alleged, he cupped her breasts and then groped her vagina
as he ran his hands between her legs. Maxine Q. pulled away and requested the
presence of a female officer. A second prisoner who witnessed the frisk contacted a
female officer. Maxine Q. then agreed to continue the frisk. The male officer wrote
two misconduct tickets against her for disobeying a direct order to submit to a frisk
and for creating a disturbance, both of which constitute a serious disciplinary
offense. In another incident, a prisoner was found guilty of assaulting a resident
unit officer (RUO) and placed in segregation after she pushed the male officer=s
hands off her breasts during a pat-frisk. Another prisoner had previously filed a
grievance against the same RUO for fondling her breasts and groping her during a
pat-frisk.
On June 15, 1995, MDOC introduced a housing unit policy requiring
female prisoners to wear bras.67 In some instances, officers have required female
prisoners to lift their shirts in order to ascertain whether or not they are complying
with that policy.
While the policy stipulates that a strip search should be performed by
employees of the same sex as the prisoner, it creates several broad exceptions. A
66

Interview, Michigan, March 1994.

67

Housing Unit Rules, Crane Correctional Facility, effective June 6, 1995.

Michigan

355

male staff member may strip search a female prisoner he is assigned to transport
outside the facility or in case of emergency. A male supervisor may be present
during a strip search if his presence is Arequired by policy.@68

Inappropriate Visual Surveillance
Housing Units

68

Ibid.

356

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Crane currently houses 447 women in an open dormitory setting.69
Initially, there were four units per building, with each unit separated into a cubicle
with two or four women per cubicle. The cubicles were placed against the walls
with six- to eight-foot partitions on the sides and front providing privacy. MDOC
has now begun to eliminate the partitions in front of and between the cubicles,
thereby eliminating all privacy. A woman prisoner reported being called on by
MDOC to assist in the removal of the partitions. Moreover, as of early 1996, the
majority of the housing units at Crane have all male officers. All the assistant unit
managers are male. Female prisoners report being forced to dress and undress
under the direct supervision of officers and staff of the opposite gender.
On January 8, 1996 Michigan prisoners= rights attorney Deborah LaBelle
filed a motion in federal district court, as part of the ongoing Glover litigation,
protesting the removal of privacy partitions in the women=s housing units at Crane.70
To date, attorneys pursuing the motion have received over 200 letters from women
incarcerated at Crane noting that the loss of privacy has caused Athe loss of their last
vestiges of dignity.@ Prisoners report in these letters that:
C

officers come and go without announcing themselves;

C

it is extremely hard to dress without being in full view of the other
inmates, along with many male officers;

69

The housing of prisoners in an open dormitory setting is a direct result of overcrowding in
the Crane facility. This overcrowding began in early 1994, after MDOC closed the Annex at
Crane and moved all the prisoners into the prison=s main building. In order to accommodate
the new prisoners, MDOC housed them in what was formerly an open recreation area.
MDOC argued in court that this was a temporary measure. However, it has continued the
practice to date.
70

Glover v. Johnson, Civil Action File No. 77-71229, January 8, 1996.

Michigan

357

C

it is not right that they have to be subjected to this open dorm atmosphere
with the majority of officers being male;

C

they live in an open dorm and are subject to constant viewing from any
individual passing their unit. They do not even have space to get dressed
in the living area, and if they reach out their hands while dressing and so
does their neighbor, they can touch one another; and

C

the officers walk in at every opportunity without prior notice, sometimes
catching them nude or in various other stages of undress.

In mid-1996, the court ruled that the January 8 motion was within its
jurisdiction pursuant to Glover, and the judge stated his intent to visit the facility.
The visit has not yet occurred. However, during a recent visit to Crane pursuant to
the Neal/Nunn class action suit, a visit which was discontinued in the middle
because of a temporary stay of the suit granted to MDOC by the district court of
appeals, attorneys acting for the women prisoners reported that in one of the units,
partitions have been reinstalled. This is a positive step. However, the new
partitions are only four feet in height, and as the cubicle areas are double-bunked,
the women on the top bunk in particular will still be vulnerable to constant viewing
by male officers.
Searches of the Showers and Toilets
Prisoners we interviewed stated that some male corrections officers
routinely patrol the showers and toilet areas while the women are using these
facilities. Such checks, ostensibly a means to insure that no sexual misconduct is
occurring between prisoners, are entirely unwarranted, since the facilities are
designed particularly to allow for proper monitoring.71 In practice, however, male
71

The shower curtains do not extend to the floor but expose part of the prisoner=s legs to
enable corrections staff to determine how many people are in the shower and whether there
is any misconduct. Similarly, toilet doors do not fully cover a woman when standing up, and
conceal only her shoulders and below when sitting down.

358

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

corrections officers appear to abuse their authority freely to conduct Asearches@;
they fail to announce their presence in the area and pull back shower curtains on
prisoners to comment or stare. At times, this occurs even after a prisoner has been
asked to identify herself and show her face. Carol H. told us that officers come into
the bathrooms while they are in use to Achitchat@ or get water. As she put it:
The women can complain and bitch, but it doesn=t do any good.
The [officers] pull the curtains back and look. There is an
agreement that male [officers] could look under the curtain, and
as long as the feet were in the right position, they would not pull
back the curtain. But, they do it anyway. . . . If we complain, the
male guards respond, AI can do what I damn well please@ or,
AWell, we=ve got to have shower checks.@72
When Carol H. objected to the officer=s conduct, he responded, AYou don=t have
anything I haven=t seen before.@ She filed a grievance that was denied, she was told,
because officers are permitted to conduct shower checks.
Medical Appointments
Male corrections officers have also accompanied women on gynecological
visits and while female prisoners are giving birth, and remained in the examination
or delivery room. One prisoner, Nina L., filed a grievance over the lack of privacy
during gynecological exams, stating that she felt uncomfortable discussing her
medical condition or undressing in front of the male officer. She asked the officer if
he would step outside while she was examined, but he refused. Nina L. pursued the
grievance until it was reviewed by the warden, who told her that it was prison policy
for the officer to keep the prisoner in his sight, and that the prisoner could have
refused the outside medical visit.73 In other words, the prisoner was expected to
72

73

Interview, Michigan, March 1994.

A privacy screen is reportedly provided during gynecological exams to shield parts of the
prisoner=s body, but the officer may still hear her conversation with the doctor. Nina L.

Michigan

359

choose between foregoing medical treatment or undressing in front of a male
officer.

asserted that she would have to undress in front of the male officer. The investigation into
her complaint never established that a privacy screen was indeed provided.

360

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Male officers have also reportedly watched prisoners giving birth.
Michelle T., a former prisoner, told us that she was accompanied by two male
officers in the delivery room while she was giving birth. According to Michelle T.,
the officers handcuffed her to the bed while she was in labor and positioned
themselves where they could view her genital area while giving birth.74 She told us
they made derogatory comments about her throughout the delivery.75
74

In Britain, revelations about the similar treatment of pregnant inmates recently erupted
into a public scandal, which led the British prison authorities to modify their policies. In
January 1996, a British television news show aired the story of a pregnant prisoner who was
chained and handcuffed at times during her twelve-hour labor. The public outcry over the
practice caused the British Prison Service not only to bar the chaining and handcuffing of
pregnant prisoners once they have entered the maternity unit, but also to require officers to
keep guard outside of the ward instead of within the room behind a screen. APrisons modify
maternity rule,@ The Guardian, January 16, 1996; George Jones, Minister defends
handcuffing,@ The Telegraph, January 10, 1996. As one commentator noted with regard to
the practice, ATo most people, the chaining of women prisoners up to the point of giving
birth will seem a monstrosity. It has occurred because the interests of women have been
ignored in an orgy of security resulting from the misdeeds of men.@ Stephen Shaw, letter to
the editor, The Independent, December 12, 1996.
75

Interview, Ann Arbor, March 28, 1994. Michelle T. also reported that when she went
into labor, she was placed in leg irons and belly chains to go to the hospital. Once at the

Michigan

361

THE SYSTEM==S RESPONSE

hospital, the doctor told her to walk to assist her labor. She was required to do so by the
guards while still in leg irons.

362

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

MDOC Director Kenneth L. McGinnis has acknowledged that sexual
misconduct does occur within Michigan=s prisons.76 However, he has repeatedly
contended that the department has Azero tolerance for such behavior,@77 despite the
contrary findings of the Women=s Commission, the Legislative Correction=s
Ombudsman, and the U.S. Department of Justice. Unsurprisingly, in light of its
failure to recognize the problem of sexual misconduct, MDOC has also failed to
take adequate steps to respond to this abuse. In particular, the department=s
grievance, investigatory, and disciplinary procedures and practices and its manner
of treating prisoners who have complained of sexual misconduct are in urgent need
of reform. Moreover, the role of the state criminal justice system in investigating
and prosecuting criminal sexual misconduct needs to be enhanced and its record
improved.
The Right to an Effective Remedy
As discussed in the legal background chapter of this report, international
human rights law obligates national governments not only to prohibit torture and
cruel, inhuman, or degrading treatment, but also to ensure that when such abuses
occur, they can be reported and fully and fairly investigated without the complainant
fearing punishment or retaliation from the authorities.78 In addition, under U.S. law,
prisoners are also guaranteed access to the courts to challenge prison conditions or
other prison problems.
Flawed Grievance and Investigatory Procedures
Michigan has both general grievance and investigatory procedures that can
be applied to sexual misconduct. The state=s grievance procedure, in principle,
allows prisoners to challenge Aalleged violations of policy and procedure,
unsatisfactory conditions of confinement, official acts, or denial of rights which
directly affect them.@ It is a three-stage process which allows for a first-stage
internal complaint to a grievance coordinator, a second stage appeal to the warden,
and a third stage appeal to the director of MDOC itself. At each stage, both
76

Deposition of Kenneth McGinnis, Circuit Court for the County of Wayne, May 1, 1995,
p. 83 [hereinafter McGinnis Deposition].
77

78

Press Release, Michigan Department of Corrections, January 7, 1993.

For a detailed discussion of international law and due process standards, see the legal
background chapter of this report.

Michigan

363

prisoners and staff are required to respond to and/or appeal grievances within
proscribed time periods. As with grievance procedures in other states, Michigan
requires the prisoner to consult informally with the staff person involved before
filing a formal grievance. The only exceptions to this process are grievances
regarding racial discrimination or staff corruption, which may be submitted directly
to the director. Whether sexual misconduct is considered a form of staff corruption
is not expressly indicated.
According to MDOC, three potential mechanisms may be employed to
investigate charges of sexual misconduct raised by prisoners: institutional
investigations, internal affairs investigations, and referrals to the state police.
Which mechanism is used depends on the nature and seriousness of the allegation
and the individual involved.79

79

Written response from Michigan Department of Corrections to written questions posed by
Human Rights Watch, June 1994 (on file with Human Rights Watch).

364

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Inspectors operating within the prisons commonly endeavor to substantiate
the prisoner=s claim through conversations with the officer, the prisoner and any
witnesses or other relevant parties. The results of this investigation are then shared
with a supervisor who makes a recommendation to the warden, usually orally, about
what additional steps, if any, should occur. According to an April 1994 MDOC
policy directive, whenever investigations conducted at this level indicate that an
employee is Aalleged to have committed criminal activity of a major magnitude,@80
including sexual assault, prison officials must Aimmediately notify@ the department=s
internal affairs section.
While these procedures exist, there appears to be no clear guidelines to
determine when a particular mechanism, alone or in conjunction with another, will
be used, and prison officials retain a considerable amount of discretion in
determining whether or not an investigation of whatever sort should be initiated.81
Moreover, in practice they have often effectively denied women the right to
complain of such abuse and are fraught at all levels of the process with a bias
against prisoner testimony and conflicts of interest. Finally, the process of filing a
complaint of sexual misconduct or having it investigated routinely subjects
complainants to retaliation and punishment.
Effective Denial of the Right to Complain

80

81

MDOC policy directive, No. 01.01.140, section H(1), April 4, 1994.

In his May 1995 deposition, Director McGinnis stated that Ain all probability@ an
allegation of a prisoner having sexual relations with an officer would be reported to internal
affairs, but that it would depend Aon the circumstances and the level of information
available.@ He went on to note that an allegation of sexual harassment would Aprobably not@
be referred to internal affairs, but would Aprobably be done locally.@

Michigan

365

While Michigan=s grievance procedure may not be flawed on its face and
has been certified under the CRIPA process described in the legal background
chapter of this report, it is highly ineffective for reporting and addressing sexual
misconduct. Problems begin at the initial, informal step in the process requiring
prisoners to confront the officer against whom they are filing a grievance. Where
prisoners fail to take this step, their grievances have been rejected.82 Yet, the fact
that they will have to confront their abuser often deters women from reporting
sexual abuse for fear of the retribution discussed in more detail below. In reviewing
MDOC=s grievance procedure, the DOJ stated that this requirement has the purpose,
intent, or effect of intimidating the inmates and discouraging the filing of
grievances.83
Moreover, even if the prisoner were to succeed in lodging a complaint
without first confronting the officer, her complaint is likely to be made known to
him almost immediately. While Human Rights Watch believes that the officer
should have the right to confront the complainant, MDOC often allows this to
happen when he is still in a contact position over her. This further exposes
prisoners to retaliation and so deters them from filing grievances of sexual
misconduct that it effectively denies them their right to complain. Moreover, her
complaint is often made know to persons not directly related to the incident.
Bias Against Prisoner Testimony
Where women prisoners do decide to lodge a formal grievance of sexual
misconduct, they face a review and investigatory procedure that is tainted by a
pervasive bias against prisoner testimony. Corrections officers responding to
grievances of sexual misconduct generally deny that the incidents ever occurred. In
one grievance we reviewed, an officer responded to a prisoner=s complaint of an
offensive pat-frisk in the following manner, AI shake down [frisk] everybody the
same way, no exceptions. . . . The balance of the allegations are untrue. At no time
82

In one case that we investigated, a prisoner complained against an officer in 1988 for
staring at her while she was partially undressed. According to her grievance, the prisoner
was dressing when she heard the officer=s radio and tried to conceal herself by turning her
back to the door. When she turned around, the officer was standing in the door and had
turned his radio off, apparently so that she would not hear him. The reviewing captain
rejected the grievance simply because the prisoner did not attempt to resolve it verbally with
the officer before filing a formal grievance. The warden upheld the captain=s decision.
83

Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to John
Engler, governor, state of Michigan, March 27, 1995.

366

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

did these allegations ever happen or occur [emphasis in the original].@ In another
grievance, the officer responded, AThe statement in this grievance is a flat out lie
and therefore there is not merit to it.@ In a third, the officer asserted that the
prisoner wrote the grievance as a means to avoid a disciplinary ticket, stating, AThis
grievance has been filed in an attempt to get out of one misconduct. . . . This
grievance has been falsified and is totally untrue.@ On this basis, the grievance is
then denied.
The officers= denials do not, in and of themselves, constitute a violation of
the procedure; some grievances may result from misunderstandings or prisoners=
mischaracterization of a situation. And prisoners are granted the right, at their own
initiative, to lodge an appeal. However, the problem is that reviewing
officersCwarden, captains, or sergeantsChave often accepted without further
inquiry the accused=s blunt assertions that the prisoner lied. In one case, a prisoner
filed grievances against two officers, one of whom was in training, for standing in
the showers and watching the prisoners. The responding officer denied any
unprofessional conduct. When the prisoner appealed her grievance to Warden
Carol Howes at Crane, Howes responded that action would be taken where there
were instances of abuse or where the prisoner=s claim could be verified. She
deemed the prisoner=s own complaint insufficient to support the allegation of abuse
and dismissed it.
As with the grievance procedure, the integrity of the investigative process
is often compromised by a bias against prisoner testimony. MDOC proceeds on the
assumption that any statement made by a prisoner is per se not credible and
insufficient in and of itself to support a charge against a corrections employee.
Documentation we obtained reveals that MDOC has repeatedly stated that it will not
uphold an employee=s dismissal where the only evidence of inappropriate or illegal
conduct is the prisoner=s testimony. While prisoners must prove the veracity of
their allegations of sexual misconduct by prison staff, their words and the words of
other prisoners around them who may have witnessed the incident are deemed
insufficient. Meanwhile, a corrections employee=s statement is presumed, prima
facie, to be a true and accurate portrayal of what transpired.84
84

In a June 6, 1995 deposition, Warden Joan Yukins of Scott Correctional Facility stated,
AIf that was the only information we had, a prisoner=s word against a staff member=s word, no

Michigan

367

other substantiating evidence, no other documents, no other witnesses, the staff member=s
word would take precedence.@ Deposition of Warden Joan Yukins, in the circuit court for
the County of Wayne, June 6, 1995 [hereinafter Yukins Deposition].

368

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

From our interviews and the documentation we obtained, it seems that after
a prisoner comes forward to allege sexual misconduct, she is repeatedly interviewed
and required to prepare a written statement. The accused employee is also
questioned informally or receives a short set of questions designed by the
investigator. These questions often require no more than a yes or no response from
the officer and can be fairly leading, such as: AHave you today or previously had
any contact with
that is sexual in nature or that could be considered to be sexual
by her?@ AHave you ever been alone with
for any reason, either today or
previously?@ AHave you had any contact of any kind with
either today or
previously?@85 Their responses in the negative to the questions posed have
sometimes proven sufficient to close any further inquiry into a prisoner=s charges.
85

In another case, a captain accused of overfamiliarity received the following:
1. You are sometimes in a hurry to end roll call because you want to visit a
prisoner early in the morning by the name of
.
2. You are seen many days spending a lot of time with
on the back yard.
.
3. You have a relationship going on with
4. You have sent clothing items to
by direct mail, or you had a third part mail
the items in.

Michigan

369

Bias against prisoner testimony exists even in cases where prisoners pass
polygraph examinations. Kim J., a prisoner discussed above, passed a polygraph
examination regarding her charges that an officer raped her. The accused officer
refused to submit to a polygraph exam. MDOC declined to proceed with any
disciplinary action because, according to documents we obtained, it A[does ] not
recognize prisoner testimony, nor [does it] recognize results of polygraph
examinations.@86

Please submit to me in writing as to where and when these overfamiliar actions
took place. Please explain fully...@
The captain=s Afull@ responses were a simple Ano@ to questions two and four, and a sentence
statement in one and three that he always conducted himself professionally and according to
rules.
86

Memorandum from Patrick Foltz, acting deputy warden, Florence Crane Women=s
Facility, to Carol Howes, warden, Florence Crane Women=s Facility, October 24, 1988. The
warden of Crane wrote to attorney LaBelle and told her Athey will not uphold an employee=s
dismissal where the only evidence is the prisoner=s word against staff that an inappropriate or
illegal action took place@ (emphasis in the original). Letter from Carol R. Howes, warden,
Florence Crane Women=s Facility, to Deborah LaBelle, attorney, October 26, 1988.

370

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

This tendency to reject prisoner testimony out of hand has had a chilling
effect on the reporting of sexual misconduct and has allowed abusive staff to
continue working unchecked, free to abuse other prisoners. In 1986 a prisoner at
Crane asserted that she had sexual relations with a corrections officer, Don
Davenport, in exchange for favorable treatment. When she stopped meeting him,
she allegedly began to receive misconduct tickets from this officer and others on his
shift.87 Three additional prisoners were interviewed who substantiated various
elements of the prisoner=s account.88 Davenport and a second officer, who was
partially implicated, denied the allegations. The institution discontinued its
investigation for undisclosed reasons within two weeks, three days after receiving
notice from the county prosecutor that he would take no further action.89 No
separate disciplinary inquiry was instituted, and Davenport remained employed at
Crane. He was subsequently convicted in 1989 for arranging an attack on a female
prisoner after she reported that he was bringing drugs into the facility and sexually
harassing prisoners.
Even a series of complaints from prisoners indicating a pattern of abuse by
a particular officer sometimes proved inadequate to substantiate charges of sexual
abuse where the only victims and witnesses were prisoners. In March 1993 four
prisoners at Scott alleged a pattern of sexual harassment by the resident unit officer
(RUO) on their unit, ranging from abusive pat-frisks to inappropriate shower
checks. One prisoner asserted that the RUO fondled and groped her during a frisk
while another complained that he tried to pull the shower curtain back while she
was showering. A third prisoner was found guilty of assaulting the officer and put
in segregation after she pulled away during a frisk when the RUO fondled her
breasts. The women=s allegations of mistreatment were supported by letters and
statements from other prisoners on the unit.90 The investigator dismissed the
87

Memorandum from Patrick Foltz, acting deputy warden, Florence Crane Women=s
facility, to investigative file, Michigan Department of Corrections, July 29, 1986.
88

Michigan State Police, Standard Crime Report, No. 43-1352-86, July 1986.

89

Memorandum from Patrick Foltz, acting deputy warden, Florence Crane Women=s
Facility, to Carol Howes, warden, Florence Crane Women=s Facility, August 11, 1986.
90

It was also not the first time that a prisoner had alleged that this officer had engaged in
sexual misconduct. During our investigation, we reviewed a grievance filed by another
prisoner in 1991 alleging similar abuse by the same officer. That prisoner=s grievance was
also denied and she received a ticket for a major misconduct for Ainterference with the
administration of rules.@

Michigan

371

prisoners= allegations as a conspiracy to remove the officer from the unit. In so
doing, the investigator cited interviews he had with prisoners who had not raised
complaints, but gave no reason why those prisoners were deemed more credible
than the ones who reported the abuse and the ones who prepared statements.
In addition to frequently dismissing prisoners= allegations out of hand,
MDOC has sometimes also failed to respond to corrections staff=s reports of a
pattern of sexual misconduct by particular officers. Between January and October
1992, staff and prisoners reported that a food service supervisor at Scott was
overfamiliar or sexually involved with various prisoners. In the first incident, in
January 1992, an officer reported finding a prisoner in this employee=s car while the
prisoner worked a maintenance detail.91 The food service director dismissed the
officer=s report because another employee witnessed the prisoner standing a few
cars away, despite the latter having arrived on the scene later.92 Although the food
service supervisor received a written reprimand following the car incident and an
oral reprimand subsequent to a separate incident, the prison administrators made no
apparent effort to investigate a possible pattern of ongoing misconduct with a series
of prisoners.
In Stacy Barker=s case, prisoners and staff repeatedly alleged seeing
Officer Keahy leaving her cell when he was working the night shift. The institution
initiated an investigation but took no action against the officer for over a year and a
half, until he was discovered engaging in sex with another prisoner. As noted
above, he was later tried and convicted in December 1991. Similarly, no action was
taken against Raymond Raby for over a year, despite several reports by sergeants
and his supervisor that he was engaged in inappropriate sexual conduct: in one
report, his supervisor stated he saw Raby leaving a prisoner=s cell with his shirt
91

Memorandum from Emmett R. Baylor, Jr., deputy warden, Scott Correctional Facility, to
S. Rizzo, food service director, Scott Correctional Facility, January 6, 1992.
92

Memorandum from S. Rizzo, food service director, Scott Correctional Facility, to Joan
Yukins, warden, Scott Correctional facility, January 16, 1992.

372

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

untucked; in another, Raby was allegedly seen running away from the women=s
housing area. While Raby was suspended temporarily, he was later reinstated for a
year despite these reports. He was finally dismissed after he confessed to the state
police that he was having sex with prisoners on a nightly basis.93 He was never
prosecuted.
Conflicts of Interest

93

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

Michigan

373

The legitimacy of the grievance and investigatory procedures is
undermined completely in cases where officers are assigned to investigate
themselves. According to Joan Yukins, the warden of Scott Correctional Facility,
as late as 1995 it was departmental policy to allow an employee to participate in
investigating a grievance against him or her.94
While the creation of institutional inspectors and an internal affairs section
are important steps toward guaranteeing the impartiality of the grievance and
investigatory procedures, we found that the credibility of such investigations is still
undermined by many of the same procedural irregularities that we discovered with
respect to the grievance procedure, including bias against prisoner testimony,
conflicts of interest, and fear of retaliation or punishment.
In one 1988 case that we reviewed, a male captain accused of
inappropriately strip searching a prisoner was placed in charge of the investigation
into his own misconduct. After interviewing the prisoner himself and obtaining
exculpatory statements from officers under his supervision, the captain concluded
that the prisoner=s allegation had no merit. The warden upheld the captain=s finding
and did not question the inherent conflict of interest in an officer investigating
himself.
The prisoner involved subsequently received a ticket for major misconduct
for interference with the administration of rulesCa ticket that can result in
segregation and loss of good time creditCfor having made a Afalse accusation.@ The
hearing officer on the ticket determined that the captain would have to have
intentionally engaged in conduct that could affect his rank and continued
employment in order for the prisoner=s allegation to be true. In other words, in the
prison administration=s eyes, no corrections staff person would knowingly engage in
misconduct that could affect his employment; therefore, the prisoner must have lied.

94

In a June 6, 1995 deposition, Joan Yukins, the warden at Scott facility, testified that until
June 5, 1995, when a new policy was put into effect, it was usual that the officer cited in the
grievance would make the response to the grievance. Under the new policy, another person
would be called upon to investigate the grievance. Yukins Deposition.

374

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In August 1992 a deputy warden at Scott headed an investigation in which
he and eleven other staff members were implicated in various acts of overfamiliarity
with prisoners. The investigation was triggered by an anonymous letter sent to the
legislative ombudsman. The deputy warden was put in charge of questioning the
staff and reporting back to the warden. Not surprisingly, the deputy warden cleared
himself of the allegations, stating in his memorandum to the warden, AThis is the
most ludicrous, ridiculous, trumped up lie I have ever been accused of. I
unequivocally deny these charges . . .@95 To our knowledge, no further review was
conducted.
In one case that we investigated, Phyllis W. reported a corrections officer
for continuously harassing her and making comments about her buttocks, charges
that the officer flatly rejected. Although he was the accused, the officer went on to
participate in the Ainvestigation@ into Phyllis W.=s grievance, which entailed an
interview with her by the officer and his superior. During the interview, Phyllis W.
refused to answer several questions and appealed her grievance to the second level
of review, wherein she restated her allegations. The appeals officer apparently
considered the previous interview to be adequate and rejected her grievance. He
wrote:
Your grievance has been thoroughly investigated. The
investigation failed to find conclusive evidence to support your
claim. Because your claim has not been substantiated, no further
action is recommended.
The Role of the State Police

95

Memorandum from Emmett R. Baylor, deputy warden, Scott Correctional Facility, to
Joan Yukins, warden, Scott Correctional Facility, August 18, 1992.

Michigan

375

Not all investigations into alleged sexual misconduct are handled
exclusively by the given prison or MDOC. Cases of suspected criminal conduct are
at times referred to the state police. MDOC=s internal affairs section coordinates
these referrals in conjunction with other departmental investigators.96 According to
a summary of sexual misconduct complaints provided to Human Rights Watch by
MDOC, of thirty-nine complaints it recorded at the Crane and Scott facilities in
1994 and 1995, twenty-seven were referred to the state police.97 However, these
referrals did not necessarily result in disciplinary action. Only five of the twentyseven referrals appear to have been sustained.98 Of particular concern to Human
Rights Watch is that in some instances, referrals to the state police have had the
effect of discontinuing the departments own investigation. Thus, as in the
Davenport case mentioned above, an employee that the state decides not to
prosecute may, as a result of the department of correction=s failure to pursue its own
investigation, also escape sanction for a violation of prison rules.
Retaliation and Punishment
Although MDOC clearly prohibits reprisal for the filing of a grievance,99
the threat of retaliation pervades the prison environment in Michigan. Such
retaliation can function as punishment for having reported misconduct100 or as a
96

MDOC Policy Directive, No. 01.01.140, Section IV.A., April 4, 1994.

97

Written response from Michigan Department of Corrections to written questions posed by
Human Rights Watch, June 1994 (on file with Human Rights Watch).
98

Ibid.

99

The grievance policy provides that prisoners will not be penalized in any way for
exercising the right to grieve and staff are to Aavoid any action that gives the appearance of
reprisal for using the grievance procedure or for assisting other prisoners . . . in its use.@
MDOC, AGrievance PolicyCPrisoner/Parolee,@ MDOC Policy Directive No. 03.02.130
March 21, 1988.
100

Such retaliation is not limited to women who come forward to report allegations of
sexual abuse; it extends to any prisoner who challenges her treatment by corrections
authorities. Women active in the Glover lawsuit, both named plaintiffs and those who have
attempted to exercise their constitutional right to equal education and vocational
opportunities pursuant to Glover, have experienced retaliation not only from corrections
officers but also from those at higher levels in MDOC.

376

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

means of coercing prisoners to acquiesce to unwanted sexual relations with
corrections employees, and acts as a powerful deterrent to the reporting of sexual
misconduct by corrections staff.
From the outset, the accused employee is informed of the name and prison
identification number of the complainant, even though it is often unnecessary to
reveal the identity of the prisoner. While, as noted earlier, Human Rights Watch
supports the right of the accused to confront his accuser, we believe that MDOC
does not take adequate steps to ensure that this does not result in retaliation against
the prisoner. For example, in one April 1992 investigation, the deputy warden for
custody requested an employee=s phone bills to document allegations that the officer
had permitted prisoners to call his home. The request was accompanied by the
heading Astaff investigation for over familiarization with . . .@ and listed the names
of several prisoners. The officer was still in a contact position over the prisoners
when the request was made, thus unduly exposing them to the possibility of
retaliation.
Prisoners who have themselves reported sexual misconduct through the
grievance or investigatory process, or those whose abuse was revealed by others,
have been subjected repeatedly to room searches, pat-frisks and disciplinary tickets.
According to attorney Deborah LaBelle, Aharassment is constant and insidious@ for
those who challenge sexual abuse: AThey receive misconducts for the most minute
infractions of rules that are not generally enforced against anyone else.@101 Barker
described her experience after allegations came to light:
It=s normal to do it [frisk] a certain amount of times. But at times
I can be shaken down before I leave the unit, when I come in,
while I=m in the unit. And when I=m the only one that this is
happening to, I feel that=s harassment. Certain officers just say
certain things. And it=s just really hard being in a situation like
this and speaking up about something.102
Charlene Billups-Hein, for example, was repeatedly ticketed for minor
infractions. After she came forward, officers and prisoners treated her, in her
101

102

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

Deposition of Stacy Barker, January 13, 1994. Barker currently has a suit pending
against MDOC for the sexual abuse she has endured while incarcerated. The deposition was
taken by MDOC pursuant to this litigation.

Michigan

377

words, Alike the bubonic plague,@ making derisive comments and encouraging
others to avoid or ignore her.103 She told us that whenever she walked by one
particular officer, he told those around him to shut up, and they stared at her as she
walked by.
Gloria P., who was also involved in a different investigation of an officer,
has had similar experiences. She told us:
Officer C would follow me everywhere I went. He was the yard
officer. Or, he would stand by another officer and talk about me
in a loud voice, but not talking to me. To this day, he says, AI
hate you@ whenever he sees me.104
When her father or brother visit, according to Gloria P., AHe would tell other
prisoners, >She don=t like p-u-s-s-y-s [sic].=@

103

Interview, Michigan, March 1994.

104

Interview, Michigan, May 1994.

378

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In Carol H.=s experience, ATo complain, you can file a grievance, but that
will bring instant retaliation to you.@105 She observed that when women approach
the officer to discuss the grievance informally, as required by departmental policy,
the officer will often respond, AWell, if you file that grievance, I will write you up
for a misconduct.@ Carol H. continued, AHe=s not supposed to do that, it=s against
policy. The ticket sticks because it=s his word against hers.@ In her experience,
prisoners who Awant to go home,@ such as those with short sentences or approaching
parole, are less inclined to complain.
People outside the prison who are related to or working with a prisoner
have also been forced to endure forms of retaliation ultimately targeted at the
prisoners. Christina Kampfner, a clinical psychologist who was permitted under
court order to counsel one prisoner who was raped by a corrections officer, reported
that she was routinely forced to wait up to two hours before being cleared to enter
the prison and repeatedly had to present the court order to gain access.106 This
occurred even though she visited the prison on a regular basis. As a result, she had
to leave extended periods of time free and was forced to reduce the number of times
she visited the prison. Stacy Barker=s family reportedly experienced similar
problems. According to Barker, her parents contacted the prison several days prior
to a visit to ensure that she had visits available. But when they arrived at the prison
they were informed, erroneously, that no visits remained for the month. The
visitation date in question happened to be the birthday of Barker=s daughter, who
had joined her grandparents for the denied visit.

105

Interview, Michigan, March 1994.

106

Interview, Christina Kampfner, clinical psychologist, Ann Arbor, May 17, 1994.

Michigan

379

Even if MDOC were to take the welcome step of removing the accused
officer from any contact with the complainant, this is no guarantee that the prisoner
will escape retaliation. Because complaints are often made known to persons not
directly related to the incident, other officers may retaliate against the prisoner on
behalf of their colleague. In Joann F.=s experience, a woman can report the
misconduct of a corrections officer who consequently may be reprimanded, but the
abuses do not necessarily cease because the guilty officer=s friends on the force may
write misconduct tickets against the complainant.107 Carol H. has observed a
similar pattern of retaliation. As she described it, AIf one officer is writing up a
prisoner, then it=s more apparent what=s going on. So they use the good ole boy
network where others will write her up.@108 Similarly, if an officer said a prisoner
did something, other officers would usually vouch for that officer.
Retaliation or the threat or fear of reprisal from corrections staff serves as a
very effective way to keep women in sexual relationships with the officers. Within
the prisons, some women may enter into seemingly uncoerced sexual relationships
with corrections staff. However, women who seek to end these relationships often
experience retaliation, hostility and increasingly violent sexual demands. Gloria P.
was repeatedly harassed by Officer A. When she learned she was granted parole,
she told him she was going home. He reportedly responded, ANo you aren=t. You
are staying with me.@109 She told us she sought to end the relationship with him
because he had become ever more hostile and verbally abusive. He began to write
her disciplinary tickets and to accost her verbally, often in front of other prisoners
and/or officers. The situation worsened until one evening she reportedly cursed at
him in front of other officers and received a major misconduct ticket that resulted in
the revocation of her parole.
In some cases, prisoners who have accused corrections staff of sexual
misconduct have been effectively punished by the institution for coming forward.
Often, after alleging sexual misconduct, female prisoners are involuntarily placed in
segregation, ostensibly for their own protection, without any charge being filed
against them, pending the institution=s investigation of their cases. While the
prisoner suffers what amounts to punishment for coming forward, often no action is
taken against the implicated officer. He generally remains on duty and continues to
107

Interview, Michigan, March 1994.

108

Interview, Michigan, March 1994.

109

Interview, Michigan, May 1994.

380

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

have responsibilities over and contact with other prisoners. In one case we
reviewed from 1990, the institution determined that sufficient evidence existed,
including corroborating statements by other staff and prisoners, to refer the case to
the Michigan state police. The officer had allegedly cornered and groped a
prisoner. While the warden determined that a suspension of the officer was not
necessary, she still sent the prisoner to segregation without her consent, supposedly
for her own protection. Kim J., mentioned above, was also sent involuntarily to
segregation while her charges that an officer raped her were investigated. She was
subsequently transferred to a higher-security facility. The officer, to our
knowledge, was never disciplined in any way.
The combination of bias against prisoner testimony, conflicts of interest,
and fear of retaliation that pervades the MDOC grievance and investigatory
procedure makes complaints of sexual misconduct extremely difficult to
substantiate. Even if prisoners do decide to complain, their testimony often will not
be credited, absent medical evidence or witnesses who are not prisoners. Given the
closed nature of the prison environment, such evidence is often very difficult to
obtain. Thus, for example, of the thirty-nine reported complaints of sexual
misconduct MDOC recorded in 1994 and 1995, only five were sustained.110
Inadequate Documentation
One of the biggest obstacles to eradicating sexual misconduct is its
invisibility both within and beyond the correctional system. The hidden nature of
the problem reflects not only the obstacles to substantiating such complaints, but
also MDOC=s failure fully to record such complaints and any investigation of them
in a consistent and centralized fashion. When allegations of sexual misconduct are
not substantiated, no formal record of the complaint is kept with respect to the
implicated officer.111 Thus, an officer may have had several allegations of sexual
misconduct lodged against him, but because no complaint was ever substantiated

110

Written response from Michigan Department of Corrections to written questions posed
by Human Rights Watch, June 1994.
111

Yukins Deposition.

Michigan

381

and no disciplinary action was ever taken, the allegations are unlikely to appear in
his or her personnel file. Clearly, no officer should be held to account for abuses he
or she was not proven to commit. However, the state=s failure to keep a formal
record of sexual misconduct allegations by the officer named not only renders it
unlikely that the future conduct of the officer will be adequately monitored, but also
makes it virtually impossible to collect information about a past pattern or practice
of alleged sexual misconduct which might prove relevant to substantiating
subsequent allegations of abuse.
MDOC officials have noted that any complaints of sexual misconduct, at
whatever level, whether substantiated or not, should be referred to a supervisor.
However, it is clear that there is no written policy in this regard and no clear
department-wide system of keeping track of complaints of or investigations into
sexual misconduct. A given correctional facility may or may not be able to report at
any specific moment exactly how many complaints of sexual misconduct have been
lodged at the facility or in what manner they have been or are being addressed. In
addition, no guarantee exists that reports of investigations from within the facility
are necessarily contained in monthly reports by the wardens to the director of
MDOC. According to Joan Yukins, the warden at Scott, no format exists to report
to the central office on a monthly basis regarding investigations of overfamiliarity
or disciplinary actions, including dismissals taken with respect to them.112 As a
result, legitimate cases of sexual misconduct, valuable evidence in support of
complaints of such abuse, the records of known abusers, and the proper oversight of
supervisors are falling through the cracks. This not only puts the prisoners at
greater risk of sexual misconduct but also makes it more difficult to monitor such
abuse effectively. As such, it raises the question of whether MDOC=s own figures
regarding sexual misconduct, cited above, are reflective of the full scope of the
problem.
Impunity
According to MDOC policy, the disciplinary sanction for maintaining an
improper relationship with a prisoner, including romantic, sexual or overly familiar
relationship, is discharge.113 While MDOC has actually dismissed staff over the
years, we reviewed a significant number of past investigations that reveal that
112

Ibid.

113
Director=s Office Memorandum 1996, Disciplinary Guide and Progressive Penalty Grid,
Department of Corrections, State of Michigan (effective September 5, 1996).

382

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

MDOC, instead of dismissing corrections employees found guilty of sexual
misconduct, often allowed them to resign or to voluntarily transfer to men=s
facilities. Director McGinnis has acknowledged that resignation or transfer in lieu
of discipline Aoccurs periodically@ in Michigan=s facilities,114 but that such actions
usually function as a form of settlement when a dismissal appears unlikely to be
upheld during the civil service proceeding or labor relations arbitration that
accompanies such sanctions.

114

McGinnis Deposition.

Michigan

383

Aside from being an inappropriate penalty, the option of resignation in a
number of cases has resulted in the rehiring of implicated staff who had never been
exonerated of sexual involvement with prisoners. Resignation does not prevent
such employees from seeking future employment as corrections officers either with
MDOC or elsewhere. Beaster, the residential unit officer who admitted having
sexual relations with a prisoner but claimed that she had backed into his erect penis,
was permitted to resign. He subsequently worked for the department of corrections
in a neighboring state.115 A second corrections officer was rehired, with back pay,
six months after he voluntarily resigned rather than face an investigation into
allegations of sexual misconduct. The institution had collected letters and pictures
he sent to the prisoner while she was incarcerated. The officer was suspended three
months later for overfamiliarity with another prisoner. A third corrections officer,
who resigned from Crane for Aromantic involvement@ with a prisoner, contacted the
institution about future employment. He was informed that he could be
reconsidered for employment once the prisoner was no longer at the facility.
While an offer to resign or transfer may occur after an official finding that
sexual misconduct took place, it can also be used to sidestep the disciplinary
process altogether. In these cases, a employee may resign once faced with the
likelihood of a disciplinary hearing before any formal finding of sexual misconduct
is made. For example, in one 1992 case we investigated involving a resident unit
officer at Scott, the officer denied having sexual relations with the prisoner but then
failed a polygraph exam. He was allowed to resign voluntarily in lieu of discipline.
Because no disciplinary hearing ever occurred, no record of the employee=s
suspected activity will be retained by MDOC. The employee may thus seek work
elsewhere in the correctional system, and no guarantee exists that his past record of
alleged sexual misconduct will be known to his new employers.

115

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

384

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Where officers are not offered the option to resign or transfer, they may
still be able to escape disciplinary sanction altogether and remain at the facility.
Kim J.=s alleged attacker was never investigated thoroughly because the only
evidence was her testimony.116 Another officer who fondled a prisoner=s breast
while she was asleep was promoted to a RUO position after the investigation closed.
He asserted he was merely looking for her identification card. Although she passed
a polygraph exam, MDOC decided Afrom an administrative standpoint there was no
evidence of wrongdoing,@117 while the local prosecutor dropped the case reportedly
because the prisoner was the sole witness. In a third case, the department
suspended David Rose during his criminal trial for allegedly raping Charlene
Billups-Hein, but did not investigate his actions for possible violations of prison
rules. In 1993, after his acquittal, MDOC allowed Rose to return to his former
position at Scott, and even assigned him on occasion to work on the unit where
Billups-Hein is incarcerated.118 According to a recent deposition of Inspector
Howard, at Scott, Rose is once again under Ainvestigation@ for sexual misconduct
with a prisoner with whom he had been previously reported to be involved, but
remains on staff at Scott.119
In other cases, where MDOC did take action to dismiss an employee, the
dismissal only followed an employee=s explicit admission of wrongdoing, even
though extensive evidence already existed. Raymond Raby, for example, was
repeatedly reprimanded, then suspended, only to return to the institution for a full
year before he was finally fired in 1986. He was dismissed only after he admitted to
state police that he was sexually involved with prisoners on a nightly basis. In
Officer Keahy=s case, the institution received numerous reports that he was seen
116

Memorandum from Patrick Foltz, acting deputy warden, Florence Crane Women=s
Facility, to Carol Howes, warden, Florence Crane Women=s Facility, October 24, 1988.
Documentation on the case indicates that Kim J. initially refused to talk to male investigators
who questioned her about the allegations and even denied anything occurred. She eventually
gave a written statement detailing the incident and submitted to a polygraph exam. It
appears the local prosecutor declined to proceed because of Kim J.=s initial denial.
117

Memorandum from Patrick Foltz, acting deputy warden, Florence Crane Women=s
Facility, to File, September 21, 1990.
118

Telephone interview, Deborah LaBelle, attorney, February 27, 1995.

119
Deposition of Inspector Howard, Michigan Department of Corrections, April 5, 1995
[hereinafter Howard Deposition].

Michigan

385

leaving Stacy Barker=s room, but failed to take any disciplinary action until he was
caught raping another prisoner.120 As stated earlier, he was subsequently convicted
in December 1991 and received two six-month sentences for fourth-degree sexual
conduct that he was permitted to serve concurrently.
As noted above, only complaints that exhibit Aa reasonable suspicion@ of a
criminal act will be referred to the Michigan state police.121 To our knowledge,
very few such referrals actually result in prosection. According to MDOC=s own
figures, of twenty-seven complaints of sexual misconduct referred to the state police
in 1994 and 1995, only two were referred for prosecution.122
Lack of Independent Oversight

120

MDOC did remove the officer from Barker=s unit, but put him in a contact position with
prisoners in another unit, which simply put those prisoners at risk.
121

Letter from Nancy Zang, special administrator, Female Offenders Program, Michigan
Department of Correction, to Human Rights Watch, October 8, 1996, section 6.
122

Ibid, section 2.

386

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

One of the key ways to combat impunity with respect to sexual misconduct
in any prison facility is to open the system up to investigation and oversight by
outside, independent monitors. Given MDOC=s refusal to recognize that it has a
problem with such misconduct, it is perhaps not surprising that the Michigan
government has been extremely hostile to any sort of independent review of its
correctional system. The Michigan Women=s Commission, which was appointed by
the governor, has its findings of possible sexual misconduct suppressed. The office
of the Legislative Corrections Ombudsman, which was established by the state
legislature in 1988 to oversee conditions in Michigan=s prisons, had its investigatory
powers restricted in 1995 and its staff reduced. Moreover, when the Department of
Justice, which has the legal authority to investigate constitutional rights violations
within state prisons, tried to enter women=s prisons in Michigan, the state refused to
cooperate with the DOJ=s investigation and blocked the DOJ from entering the
prisons to conduct interviews.123 A district court judge rejected the DOJ=s effort to
obtain a temporary restraining order to enter the prisons. MDOC eventually
permitted DOJ attorneys to interview prisoners during regular visiting hours, in the
nonconfidential setting of the prison visiting rooms, but denied the DOJ access to
the prison more generally.
Michigan Women==s Commission
In the months preceding the formal publication of the report of the
Women=s Commission, both the director and governor went on record to refute
allegations of sexual misconduct in the women=s prisons. On January 6, 1993,
Governor John Engler released a statement asserting that sexual abuse is not a
problem in the prison system. He maintained:
The vast majority of our 14,000 corrections employees perform
their duties in a manner which is beyond reproach. The few
which don=t are dealt with swiftly and severely. The state of

123

In order to gain access to the institution to investigate, the DOJ must file a letter with the
state and the institution=s directors noting its intention to investigate.

Michigan
Michigan does not tolerate sexual harassment, abuse or
assaults.124

124

Michigan Department of Corrections, Press Release, January 7, 1993.

387

388

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

On January 7, 1993, MDOC Director McGinnis released a statement contending
that the MDOC has Azero tolerance@ for sexual abuse, harassment, or sexual contact
between employees and prisoners. He stated further, AOur record of disciplinary
actions and dismissals verify this fact.@125
Responding to McGinnis=s statements,
the Michigan Women=s Commission, its staff, and a former intern, Jenny Elder, met
with Director McGinnis in May 1993. Elder had conducted the majority of
interviews for the report and had drafted the controversial chapter on women in
prison. According to Elder:
I told him [the director] about the sexual harassment and health
care concerns raised in the interviews, such as TB, hepatitis. He
was very defensive. McGinnis was not prepared to make any
promises to look into these issues. He referred to the grievance
procedure as available to the women and that [the MDOC] had
not gotten more than one or two letters alleging sexual
harassment. He tried to imply the women were lying.126
MDOC has since dismissed the information gathered by the Women=s Commission
about sexual misconduct in the prisons as Aunsubstantiated anecdotal information@127
that was Aextremely misleading and written to incite sensationalism rather than
125

Interview, Jenny Elder, former intern, Michigan=s Women=s Commission, March 28,
1994.
126

127

Ibid.

Letter from Kenneth McGinnis, director, Michigan Department of Corrections, to Marjie
Gaynor, Michigan=s Women=s Commission, June 22, 1993.

Michigan

389

fact.@128 On the other hand, to our knowledge, MDOC has not challenged the
commission=s findings, based on the same interviews, that sexual harassment was a
serious problem in Michigan jails.
Legislative Ombudsman
The Michigan State Legislature created the office of the Legislative
Corrections Ombudsman in 1988 to provide an independent and external means to
investigate allegations of wrongdoing by MDOC. This was a commendable step,
designed to ensure that prisoners alleging abuse by MDOC employees had recourse
beyond the department itself. Unfortunately, in late 1995, the Michigan state
legislature voted to amend the ombudsman=s position and moved to restrict its
independence.

128

Letter from Nancy Zang, special administrator, Female Offenders Program, Michigan
Department of Corrections, June 18, 1993.

390

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Under the original legislation, the ombudsman, according to MDOC
policy, was authorized by law to investigate Aany administrative act by [MDOC] or
its employees, which is alleged to be contrary to law or department policy,@ even if
the allegation is Aunaccompanied by adequate justification or based upon irrelevant,
immaterial or erroneous information.@129 Prisoners were authorized to write to the
ombudsman directly, and their letters could not be opened or screened by prison
officials.130 While the amended law retains the confidentiality of communications
between the ombudsman and prisoners, it now restricts the ombudsman=s authority
to initiate investigations. Rather than relying on prisoner communications or other
sources to prompt an investigation, the ombudsman may now start an investigation
only upon receipt of a complaint from a legislator. The only investigations he can
undertake on his own initiative relate to significant health and safety issues of
prisoners or parolees.131
In our view, the Michigan state legislature should act to strengthen rather
than reduce the ombudsman=s independent investigative authority. Given the
myriad problems with the manner in which MDOC monitors, investigates and
punishes sexual misconduct within its women=s facilities and the real risk of
129

ALegislative Corrections Ombudsman,@ MDOC Policy Directive No.03.02.135 June 27,
1988.
130

131

Ibid., section D.

Enrolled Senate Bill 501, 88th legislature, regular session, 1995, section 4 (1)(a). The
amendment also provides in section 4 (1)(b) that the ombudsman may commence an
investigation on his own initiative Afor significant prisoner health and safety issues and other
matters for which there is no effective administrative remedy, all as determined by the
council.@

Michigan

391

retaliation or punishment faced by women who report such abuse, a strong,
independent and confidential investigative authority is crucial to any meaningful
effort to eradicate sexual abuse in custody. The new restrictions on the
ombudsman=s power and resources suggest that neither the state legislature nor
MDOC are fully committed to this end.

Department of Justice
On March 27, 1995, U.S. Assistant Attorney General Deval Patrick wrote
a twelve-page letter to Michigan Governor John Engler that detailed the DOJ=s
findings regarding conditions at Crane and Scott. Specifically, the DOJ concluded:
that sexual abuse of women prisoners by guards, including rapes,
the lack of adequate medical care, including mental health
services, grossly deficient sanitation, crowding and other threats
to the physical safety and well-being of prisoners violates their
constitutional rights.132
According to the letter, Anearly every women . . . interviewed reported various
sexually aggressive acts of guards.@133 The DOJ found that prisoners at Scott and
Crane had been raped, sexually assaulted, and subjected to groping and fondling
during pat-frisks. Additionally, they were subjected to Aimproper visual
surveillance by guards.@134
The MDOC has responded to the DOJ=s findings in much the same way it
responded to the Michigan Women=s Commission report. A MDOC spokesman
dismissed the findings as Aanecdotal and half-truths.@135 MDOC Director McGinnis

132

Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to John
Engler, governor, Michigan, March 27, 1995.
133

Ibid.

134

Ibid.

135

Lori Montgomery and Dawson Bell, ARapes by guards reported: U.S. finds abuse at 2
state women=s facilities.@ Detroit Free Press, March 30, 1995.

392

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

characterized the DOJ=s findings as Aoutrageous, unverified claims@136 and issued a
written statement calling the DOJ=s letter A>vindictive and distorted= and full of >halftruths, innuendo, distortion and lies.=@137

136

Jack Kresnak and Dawson Bell, APrison report hailed, jeered,@ Detroit Free Press, March
31, 1995.
137

Basheda, AU.S.: Women=s prisons a disaster,@ Detroit News.

Michigan

393

The DOJ issued the letter as a prerequisite to possibly filing suit against
Michigan under CRIPA. The suit could not be filed sooner than forty-nine days
after the letter was sent to Governor Engler, which would have been mid-May 1995.
Today, eighteen months after the requisite forty-nine days expired, the DOJ has yet
to file suit. On October 1, 1996, the DOJ described to us its inquiry into prison
conditions in Michigan as an Aopen investigation,@ but declined to say if or when it
may sue MDOC for CRIPA violations.138
Lack Of Training
MDOC requires new corrections officers to successfully complete 320
hours of classroom training, which consists of academic, practical, and physical
training. Two months of on-the-job training at the officer=s assigned facility must
also be completed.139 According to Director McGinnis, no training in cross-gender
guarding was provided to MDOC staff prior to 1994.140 Our interviews indicate
that, while MDOC materials describing training now include a reference to Asexual
harassment,@ this training has not been fully carried out and has yet to address in any
detail the question of sexual misconduct.

138

Interview, Department of Justice, October 1, 1996.

139

Michigan Department of Corrections Information Kit, 1995.

140

McGinnis Deposition.

394

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In addition to failing to train officers adequately to refrain from custodial
sexual misconduct, MDOC has not yet educated prisoners about the prohibitions on
and remedies for such abuse. A 1991 prisoner guidebook, which is provided to all
prisoners, does stipulate that A[p]risoners shall not be subjected to personal abuse
from Corrections staff,@ and A[s]taff will discourage, with all appropriate means, any
person=s use of derogatory, demeaning, humiliating or degrading actions or
language toward others.@141 Whether the latter admonition extends to corrections
staff is unclear. A revised guidebook142 issued in 1993 and provided to prisoners at
Scott Correctional Facility, fails to mention that sexual abuse by corrections staff is
prohibited and, in some cases, criminalized; nor does it indicate how prisoners
should proceed in reporting such behavior.143

RECOMMENDATIONS
I.
A.

Prohibiting Sex in Custody
The Michigan state district attorney should strictly enforce Michigan=s
prohibition against criminal sexual conduct and ensure that those
correctional employees who violate this law are held fully to account.

B.

MDOC should strengthen its policy directive to explicitly ban sexual
intercourse, sexual touching or any other form of sexual contact between
corrections employees and prisoners and to require that prisoners are free
from torture or cruel, inhuman, or degrading treatment as a matter of
compliance with U.S. obligations under international law.

141

Michigan Department of Corrections, Prisoner Guidebook, July 1991, p. 16.

142

Scott Correctional Facility, Prisoner Guidebook, 1993.

143

The guidebook was provided to us in response to a number of questions we put to
MDOC in writing, in particular: AWhat is the procedure for female prisoners to raise an
allegation of sexual harassment, overfamiliarity or sexual abuse?@ and AWhat is the procedure
for investigating allegations of sexual harassment, overfamiliarity or sexual abuse?@ We are
limited to commenting on the content of the guidebook for Scott since no similar guidebook
for Crane was provided. We are unaware whether the guidebook provided to prisoners at
Crane informs prisoners how to report sexual misconduct and how such allegations would be
investigated.

Michigan

395

C.

MDOC should remove all administrative provisions that allow for the
punishment of prisoners who engage in sexual intercourse, sexual contact
or any other form of sexual conduct with corrections staff, and cease
punishing prisoners found to have engaged in such behavior. Punishment
of prisoners for sexual misconduct has the effect of deterring their
reporting of such abuse by corrections staff.

D.

MDOC should cease using administrative segregation as de facto
punishment when prisoners report sexual misconduct by guards.

II.
A.

Safeguarding Prisoners Impregnated by Guards
MDOC should stop punishing or harassing in any way prisoners who are
impregnated by officers. MDOC should also refrain from administratively
segregating pregnant prisoners, unless they expressly request it. Such
segregation should provide for the provision of adequate medical and
hygienic requirements necessary for a safe pregnancy.

B.

MDOC should ensure that women who are impregnated by corrections
staff are not pressured in any way to undergo abortions. Prisoners should
receive neutral counseling on all options available to them.

C.

MDOC should ensure that pregnant women receive timely and adequate
medical care, and that medical treatment recommended by physicians is
provided as prescribed. Such medical care should include professional
psychiatric counseling for prisoners impregnated as a result of rape or
sexual assault or abuse and others victims of sexual misconduct who
request it.

III.

Prohibiting Abusive and Degrading Language
MDOC should strengthen its policy directive to mandate humane treatment
of prisoners and prohibit derogatory language. Corrections staff must be made
aware, through enforcement, that they are obligated to comply with such provisions
or be subjected to disciplinary sanctions.
IV.
A.

Protecting Privacy: The Need for a Policy
MDOC should institute a policy to protect the privacy of women prisoners
consistent with several federal court decisions recognizing that prisoners
have a constitutionally protected right to privacy. Corrections employees

396

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
should be fully trained in this policy, and it should be enforced strictly.
Such a policy should include, among other things:
1.
a requirement that male officers announce their presence before
entering a women=s housing unit, toilet, or shower area;
2.
permission for prisoners to cover their cell windows for limited
intervals while undressing or using the toilets in their cells; and
3.
a rule that only female officers should be present during
gynecological examinations.

B.

C.

MDOC should cease Aunclothed body searches@ of women prisoners either
by or in the presence of male employees, or under circumstances where a
male employee may be in a position to observe the prisoner while she is
undressed. Strip searches should be administered in a location that limits
access by other prisoners or employees.
MDOC should use female officers to pat-search female prisoners
whenever possible. All officers should be trained in the appropriate
conduct of pat-frisks and in the disciplinary sanctions associated with
improperly performed searches. Women prisoners who either pull away
during offensive pat-searches or request that the search be conducted by a
female officer should not be subjected automatically to disciplinary action.

D.

MDOC should rescind immediately the requirement that officers meet
quotas for pat-searches per shift. This practice may encourage officers to
conduct searches without reasonable cause to believe that a prisoner
possesses contraband.

E.

MDOC should rescind the policy requiring female prisoners to wear bras.

V.

Ensuring the Right to an Effective Remedy
Grievances
MDOC should amend its grievance procedure in cases of alleged sexual
misconduct by corrections employees, expressly authorizing prisoners to
bypass the informal level of review and file their complaints directly with
the prison superintendent or investigator.

A.

B.

MDOC should take steps to insure that its grievance procedure includes
provisions that inter alia protect the confidentiality of the complainant and
witnesses during the time in which the officer is still potentially in contact
with them; withholds information about complaints from those not directly

Michigan

397

or by authority involved in the alleged incident; ensures that prisoner
testimony is give due weight; and prevents the implicated officer from
conducting the investigation.
C.

MDOC should make grievance forms readily available in the prison
library or other neutral place.

D.

MDOC should, under all circumstances, refrain from assigning implicated
officers to investigate allegations of their own misconduct. Officers
alleged to have committed rape, sexual assault or abuse, or criminal sexual
contact should be assigned to noncontact positions or suspended until the
circumstances are clarified and the investigation completed.

A.

B.

Investigations
MDOC should promulgate a written procedure for conducting
investigations into custodial misconduct, with specific reference to sexual
misconduct, both at the level of the facility itself or at the level of the
internal affairs section or other departmental divisions. The investigative
procedure should, at a minimum:
1.
clarify which investigations should be conducted from within the
facility, which by internal affairs, and the relationship between
the two entities with respect to any such investigation;
2.
specify the circumstances necessary to initiate an investigation at
either end;
3.
describe exactly the steps investigators within prison facilities
should follow in conducting an investigation;
4.
set forth the same criteria for investigations by the internal affairs
section;
5.
set forth a clear structure and time frame for conducting
investigations; and
6.
provide for a special investigator in the office of internal affairs
section trained to handle sexual misconduct complaints, in
particular, with the necessary human and material resources to do
so.
In establishing these clear and exhaustive investigatory policies, the
MDOC should endeavor to:
1.
protect as much as possible the anonymity of the complainant;

398

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
2.
3.

guard complainants and witnesses from retaliation and
harassment; and
ensure accountability to outside monitors. For example, the
complainant=s legal counsel, upon request, should be provided a
written record of the investigation, including all statements made
by the complainants and witnesses.

C.

MDOC should integrate this expanded investigative procedure into its
operations manual and make it available as a public document.

D.

MDOC should require all corrections employees to report promptly any
allegations, including rumors, of sexual misconduct or other overfamiliar
conduct to the prison warden and should reward those that do while
sanctioning those who do not.
MDOC should refer all allegations of rape, sexual assault, and other
alleged criminal conduct promptly to the state police for criminal
investigation. When a referral is made to the state police, MDOC should
continue, not cease, its own internal investigation into possible employee
misconduct and proceed with disciplinary action when appropriate.

E.

VI.
A.

Preventing Retaliation Against Complainants
MDOC should ensure, as much as possible, the confidentiality of
allegations of sexual misconduct by prison staff and the anonymity of both
complainant and witnesses during the period that the accused remains in a
contact position with the complainant or is assigned to the facility where
the complainant resides. MDOC should also seek to prevent the
complainant=s name from being revealed generally within the facility.

B.

MDOC should restrict access to prisoner files not already protected and
ensure that better protections for the confidentiality of records are
provided.

C.

MDOC should suspend any employee accused of sexual misconduct,
including overfamiliarity with a prisoner, if such misconduct once proven
would result in dismissal.

D.

MDOC should investigate reports of retribution promptly and vigorously
and should discipline transgressing employees appropriately.

Michigan

399

E.

MDOC should ensure prisoners the right to counsel in cases of sexual
assault.

VII.

Curtailing the Use of Administrative Segregation and Other
Punishment
MDOC should authorize the use of administrative segregation during an
investigation only at the prisoner=s explicit request. Since a prisoner placed
in administrative segregation for her own protection has not committed a
disciplinary offense, she should retain the rights of the general population
(e.g., telephone calls, visits, access to recreation, etc.). She should be
returned to the general population when she requests to be. MDOC should
train employees assigned to segregated housing units regarding such
provisions.
MDOC should ensure that prisoners who complain of sexual misconduct
are not directly or indirectly punished for such complaints through the loss
of good time toward early parole or any form of disciplinary segregation.

A.

B.

C.

MDOC should ensure that prisoners who file grievances are not
wrongfully charged with Ainterference with the administration of rules@ or
other disciplinary offenses, such as Afalse accusation,@ solely because the
accused officer denies any misconduct or because the alleged incident is
Aunsubstantiated.@

VIII.
A.

Ensuring Discipline
MDOC should create a clear policy on disciplinary action against abusive
corrections employees for all forms of sexual misconduct.

B.

MDOC should ensure that an employee found to have engaged in sexual
relations or sexual contact with prisoners will be dismissed. Transfer of
such employees to other positions or facilities does not constitute
appropriate punishment.

IX.

Ensuring Accountability to Outside Monitors
Michigan Women==s Commission
MDOC should publish the full report of the Michigan Women=s
Commission.
Office of the Legislative Corrections Ombudsman

400

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

A.

The Michigan Legislature should strengthen the office of the Legislative
Corrections Ombudsman to function as a fully empowered and
independent review board to investigate, among other things, complaints
of sexual misconduct. The review board should have the authority to turn
over evidence of possible criminal wrongdoing to prosecutorial
authorities. The board should also be able to recommend remedial action
to stop abuses or other problems during an investigation.

B.

The review board should develop a system whereby the records of any
corrections employee who has been the subject of repeated sexual
misconduct complaints are reviewed by the appropriate authorities.

C.

The review board should further provide a toll-free telephone number that
prisoners can use to contact investigators or to file anonymous complaints
of misconduct, including retaliation against complainants.

Department of Justice
As a matter of urgency, the Michigan governor and the MDOC director
should cooperate fully with the Department of Justice in its ongoing investigation
into abuses in Michigan=s women prisons.
Nongovernmental Actors
MDOC should provide timely and written information about an
investigation to the complainant and the people she designates, such as her attorney
and her family, upon their request.
X.
A.

B.

Hiring, Training, Education, and Information
Correctional Employees
MDOC should improve its screening procedures for applicants for
corrections positions. Background checks should be completed before
new employees are sent into correctional facilities. In no case should
MDOC rehire an employee who has been convicted of an offense related
to sexual misconduct in custody or who resigned in order to avoid such
investigation.
MDOC should, as soon as possible, implement comprehensive and
mandatory training on issues specific to incarcerated women for all current
and future corrections employees assigned to women=s prisons. This
training should include, among other things:

Michigan
1.
2.

3.

4.

A.

401
a general discussion or profile of female prisoners and their
potential vulnerability to sexual misconduct;
MDOC policies prohibiting all sexual contact, degrading
language, inappropriate visual surveillance, and other sexually
oriented or degrading behavior toward incarcerated women and
the disciplinary or criminal sanctions associated with this
behavior;
appropriate methods for conducting pat-searches, strip searches,
and searches of women=s cells, housing units, and bathroom
areas; and
MDOC should, in developing and implementing this training,
collaborate with local nongovernmental organizations
experienced in working on issues affecting incarcerated women,
including rape and sexual assault.

Prisoners
MDOC should advise incarcerated women, as part of their orientation to
the corrections system, as well as prisoners already serving their sentences,
of the following:
1.
Corrections officers are strictly prohibited from having any form
of sexual contact with prisoners. The orientation should also
include a thorough review of departmental process regarding
privacy and humane treatment; the procedures for reporting and
investigating sexual misconduct; and the departmental or
criminal law sanctions associated with it.
2.
Grievances relating to sexual misconduct may be filed directly
and confidentially with the prison investigator. All grievances
should be acknowledged and resolved as soon as possible.
Prisoners should be informed about the issues that may be dealt
with through the grievance procedure, with a particular emphasis
on instances of sexual misconduct; the location of grievance
forms; any specific procedures for reporting sexual misconduct;
the recourse available when corrections officers fail to respond;
and the potential to resolve complaints through the internal
investigation procedure and the independent review board when
one is established.
3.
MDOC should also acquaint prisoners with their rights under
international human rights treaties ratified by the U.S., as well as
under U.S. constitutional law.

402

B.

A.

B.

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The above information should be included in the prisoner handbook.
Improving Documentation
MDOC should take immediate steps to improve its system for the
documentation of custodial misconduct, including sexual misconduct, and
make available on a semi-annual basis reliable and accurate public reports
of such misconduct arranged by date, location, and type of allegation; rank
and function of employee; and specific actions taken by the facility,
internal affairs or other departmental division, or state criminal justice
authorities.
As a necessary step toward improving its capacity to provide such
thorough and timely information, MDOC should:
1.
keep files by name of officer of all allegations of custodial
misconduct, including those that were not substantiated;
2.
ensure that each warden or supervisor reports monthly to the
director regarding all allegations or findings of misconduct,
including sexual misconduct, and the actions taken or
recommended with respect to each; and
3.
create a position within MDOC charged primarily with data
collection regarding administrative or criminal misconduct by
correctional employees, who will review monthly the reports of
each facility and provide semi-annual reports to the director.

VIII. NEW YORK

In 1996 the New York state legislature passed legislation criminalizing all
sex between prisoners and guards. This step is welcome. However, for the
criminalization of custodial sexual misconduct to be effective, it must be
accompanied by additional steps to reform the prison environment that has allowed
such misconduct to thrive. At present, New York State allows men to work in
contact positions in women=s prisons but has made little effort to regulate male
guards= access to women=s housing areas. Moreover, neither the Department of
Correctional Services= (DOCS) internal grievance procedure nor its investigatory
procedure functions effectively for complaints of sexual misconduct, and both often
expose complainants to retaliation.
Women incarcerated in New York have been raped, sexually assaulted or
abused, and verbally degraded by male correctional employees and suffer frequent
privacy violations, particularly with respect to abusive strip searches. These
findings reflect an investigation that took place from 1994 through 1996 and are
based on interviews with eleven current and former prisoners who have served time
in one or more of New York=s four prisons for women:1 Albion Correctional
Facility, Bayview Correctional Facility, Bedford Hills Correctional Facility, and
Taconic Correctional Facility.2 We also interviewed the superintendent of Bedford
Hills Correctional, Facility Elaine Lord; a former DOCS employee; and a number of
attorneys working with incarcerated women in the state.
We urge Gov. George Pataki and the New York Department of
Correctional Services to enforce the new law criminalizing sexual contact between
prisoners and correctional employees and to enact legislation prohibiting cross1

These women were identified with the assistance of attorneys who had received allegations
from prisoners of sexual misconduct or other abuse by corrections staff.
2

Some of the women we interviewed also served time in Groveland Correctional Facility,
which formerly held both men and women. Bayview also serves as a transitional facility and
some prisoners incarcerated there are on work release status.

403

gender pat-frisks except in emergency situations. We also call on New York State
to undertake substantial prison reform to guarantee prisoners= right to privacy and to
ensure that abusive employees are disciplined. In addition, guards should be trained
and prisoners educated as to the prohibitions against custodial sexual misconduct.
CONTEXT
Custodial Environment
The population of incarcerated women in New York has increased
dramatically in the last ten years. According to statistical information obtained
from the New York DOCS, the female prison population increased 230 percent
between 1985 and 1992, from 1,061 to 3,500 women.3 In comparison, the male
population in the same time period grew by 74 percent.4 According to the
Correctional Association of New York, a nongovernmental organization, over 90
percent of prisoners in New York prisons are incarcerated pursuant to the
ARockefeller Drug Laws@and the ASecond Felony Law,@ which mandate severe

3

As of September 19, 1996, 3,710 women were incarcerated in New York State prisons.
Correctional Association of New York, AWomen in Prison Fact Sheet,@ New York City, New
York, September 1995.
4

New York Department of Correctional Services, ACharacteristics of Inmates under Custody:
1985-1992,@Albany, New York.

404

New York

405

prison terms for possessing relatively small amounts of drugs.5 While fewer than 25
percent of women are incarcerated in New York State for violent felonies, two out
of three women have been committed for a drug-related felony.6 Over 50 percent of
incarcerated women are African American, and approximately 35 percent are
Latina. In addition, the majority of incarcerated women are mothers, and many are
single caretakers.7

5

For example, a person must receive a term of fifteen years to life if convicted of selling two
ounces of a narcotic or possessing four ounces. Correctional Association of New York,
AMandatory Sentencing Laws and Drug Offenders in New York State,@ New York City, New
York, February 1995.
6

Correctional Association of New York, AWomen in Prison Fact Sheet,@ November 1994.

7

Correctional Association of New York, Women in Prison Fact Sheet,@ September 1995.

406

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

This growing population of female prisoners in New York is being guarded
largely by male officers, although this was not always the case. Until 1976 only
women were permitted to work as corrections officers in the housing units of New
York State prisons for women. Male corrections officers were limited to
assignments such as the grounds, the school, and the library.8 In February 1977
DOCS eliminated the assignment of jobs by sex in an effort to comply with Title
VII of the Civil Rights Act on sex discrimination. DOCS began allowing, with
limited restrictions, cross-gender guarding in the housing units.9 Currently, men
represent the vast majority of corrections officers in the women=s prisons, including
the evening and night shifts in the housing units.10
As noted in the legal background chapter of this report, Human Rights
Watch does not oppose per se the presence of male guards in supervisory and/or
contact positions in women=s prisons. However, we are concerned that in New
York, as in other states, DOCS is not taking adequate steps to protect women
against custodial sexual misconduct. Corrections authorities do not inform female
prisoners about the risk of sexual misconduct or the existence of mechanisms to
report and seek remedy for such abuse should it occur. Female prisoners not only
lack such guidance but also often enter the correctional system particularly
vulnerable to the risks of sexual misconduct they may encounter. Many of them
tolerate sexual solicitation and sexual relations because they are, as one former
DOCS employee put it, Aused to being used.@11 He stated it was common
knowledge among the staff that a large number of the women had personal histories
of sexual abuse and spoke openly about being molested or raped prior to
incarceration. In fact, as he explained, officers often exploit the women=s
vulnerabilities.
State Legal and Regulatory Framework
8

Forts v. Ward, 471 F. Supp. 1095, p. 1096 (S.D.N.Y. 1978).

9

Ibid., pp. 1096-97.

10

According to a 1992 survey, male corrections officers working in women=s prisons in New
York outnumbered female corrections officers three to one. Corrections Compendium
(Nebraska), October 1992. Then Acting Commissioner of the Department of Corrections
Philip Coombe, Jr. stated at a Coalition for Women Prisoners meeting in December 1995
that women constituted 24 percent of the guards at Albion and 48 percent at Bedford Hills.
11

Interview, New York, January 17, 1994.

New York

407

Neither prison rules nor the state criminal law in New York adequately
defines and prohibits sexual misconduct involving prison employees. The only
written prohibition on sexual misconduct in the employee manual is a vague, overly
broad provision regarding staff association with prisoners that fails to set forth
penalties for violations. The provision, Rule 2.15, states that no employee:
shall knowingly . . . associate or have any dealings with criminals
. . . [or] engage in any conversation, communication, dealing,
transaction, association or relationship with any inmate.12
Currently, as demonstrated below, incarcerated women have been viewed
by DOCS as consensual partners in sexual relationships with corrections officers
and have been punished for such misconduct.13 The prisoner handbook, AStandards
of Inmate Behavior: All Institutions,@ prohibits sexual relations or even soliciting or
encouraging another to have sexual relations. Rule 101 states: Ainmates shall not
engage in, encourage, solicit or attempt to force others to engage in sexual acts.@
The provision does not define Aothers.@ In contrast to the employee manual, the
prisoner handbook specifies that violation of Rule 101 can result in confinement to
the Special Housing Unit (SHU or Athe box@), loss of privileges, and a mandatory
fine.

12

13

New York Department of Correctional Services (DOCS) employee manual, Rule 2.15.

Elaine Lord, superintendent, Bedford Hills Correctional Facility, firmly believes that
incarcerated women cannot meaningfully consent to sexual relations with staff. She told us:
AWhere you have power over a person, it cannot be consensual . . . You cannot be in the
position of an inmate and make that kind of decision. A staff person is a staff person and
that=s not what he=s being paid to do. Eventually, it makes other people feel unsafe.@

408

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

A new initiative amending the penal code to criminalize sex in custody was
passed by the New York State legislature and signed by Gov. George Pataki on July
2, 1996, going into force thirty days later.14 Such contact was, at one time, a crime
under New York=s penal code, which treated sexual encounters with an incarcerated
person on the same level as rape.15 That law was repealed. In the late 1980s,
DOCS attempted to change the state law to again criminalize sexual contact with a
prisoner if such contact occurred while performing one=s duties. However,
according to Superintendent Lord, the proposed legislation never made it past the
committee stage because there was no interest in adding a new felony to the
criminal code.16
The initiative amended New York Penal Law Section 130.05 to
criminalize all sexual contact between a corrections employee and a prisoner.
Employees who engage in sexual intercourse with a prisoner may be charged with
one of three offenses: third degree felony of rape, for sexual intercourse with a
prisoner; third degree felony of sodomy, for sodomy with a prisoner;17 and a
misdemeanor offense of sexual misconduct or sexual abuse, for sexual contact with
a prisoner.18 Similar initiatives had been proposed by prisoners= rights advocates in
the past.19
14

The bill passed the Assembly on May 6, 1996 and the Senate on June 14, 1996.
Telephone interviews, Michael Avitzur, legislative aide to Sen. Catherine M. Abate, June 21,
1996; August 12, 1996. State Sen. Michael Nozzolio, head of the Senate=s Crime and
Corrections Committee , and Assembly Member Keith Wright offered the amendment in the
Senate and Assembly, respectively. Gary Craig, ANozzolio bill would outlaw sex between
guards, cons,@ Rochester Democrat and Chronicle, February 10, 1996.
15

Memorandum from Anthony Annucci, counsel, New York Department of Correctional
Services, to Elizabeth Moore, counsel to the governor [no date].
16

Interview, Elaine Lord, Superintendent, Bedford Hills Correctional facility, June 22, 1994.
Anthony Annucci, DOCS counsel, echoed Lord=s observations when we spoke to him on
February 7, 1995.
17

Although Human Rights Watch supports the criminal prosecution of prison staff guilty of
sexual contact with prisoners, we believe that the crime is predicated on the abuse of
custodial authority, not on the irrelevant distinction between oral, anal, and vaginal sex. We
are also sensitive to the abuse of sodomy laws against sexual minorities. For that reason, we
believe instances of custodial sexual abuse should not be distinguished and prosecuted under
sodomy laws.
18

Memorandum from Anthony Annucci, counsel, New York Department of Correctional

New York

409

services [no date].
19

Ruth Cassell, an attorney with Prisoners Legal Services, submitted draft legislation to the
New York State Division of Women, an executive body, in 1993 . The proposed legislation,
she told us, was Arejected out of hand.@ Telephone interview, Ruth Cassell, Prisoners Legal
Services, November 17, 1994. In 1995 the Coalition for Women Prisoners in New York also
submitted a similar proposal. Craig, ANozzolio bill would outlaw . . .,@ Rochester Democrat
and Chronicle.

410

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

DOCS indicated its support for the amendment in a written memorandum,
and then Acting Commissioner Philip Coombe Jr. stated, A[T]here should never be a
sexual relationship between an officer and inmate. It is our position that this should
be first-degree rape.@20 DOCS views the provision as additional leverage in
disciplining disobedient staff.21 However, the guards= union, Council 82, expressed
strong opposition to the amendment, stating that criminalization, in addition to
internal discipline, of sex between guards and prisoners would be overkill.22
National and International Law Protections
As discussed in the legal background section of this report, sexual
misconduct is clearly prohibited under both U.S. constitutional law and
international treaty law that is binding on the U.S. federal government as well as its
constituent states.23 The Eighth Amendment to the Constitution, which bars cruel
and unusual punishment, has been interpreted by U.S. courts to protect prisoners
against rape and sexual assault. This constitutional shield is augmented by the
20
Linda Stasi, AHard Cell on Sex: female prisoners see widespread abuse,@ New York Daily
News, September 1995.
21

Telephone interview, Anthony Annucci, counsel, New York Department of Correctional
Services, February 7, 1995.
22

23

Craig, ANozzolio bill would outlaw . . .@ Rochester Democrat and Chronicle.

For a detailed discussion of United States obligations under U.S. constitutional law and
international law pertaining to the treatment of prisoners, see the legal background chapter of
this report.

New York

411

Fourth Amendment=s guarantee of the right to privacy and personal integrity, which,
in a series of lower court cases, has been interpreted to prohibit male guards from
inappropriately viewing or strip searching female prisoners or conducting intrusive
pat-frisks on female prisoners.
Constitutional protections for prisoners= rights are enforceable via lawsuits
filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ).
Historically, U.S. prisoners have achieved most of their landmark victories through
private litigation, particularly suits litigated by prisoners= rights groups such as the
National Prison Project of the American Civil Liberties Union. However, if certain
stringent intent requirements are met, the DOJ may criminally prosecute abusive
prison officials under federal civil rights provisions. In addition, the DOJ has the
statutory right to investigate and institute civil actions under the Civil Rights of
Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages
in a pattern or practice of subjecting prisoners to Aegregious or flagrant conditions@
in violation of the constitution.
In addition to constitutional protections, prisoners= rights are protected
under international human rights treaties that are legally binding on the United
States. The primary international legal instruments protecting the rights of U.S.
prisoners are the International Covenant of Civil and Political Rights (ICCPR),
ratified by the United States in 1993, and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The
ICCPR guarantees prisoners= right to privacy, except when limitations on this right
are demonstrably necessary to maintain prison security. Both treaties bar torture
and cruel, inhuman or degrading treatment or punishment, which authoritative
international bodies have interpreted as including sexual abuse. To constitute
torture, an act must cause severe physical or mental suffering and must be
committed for a purpose such as obtaining information from a victim, punishing her
or intimidating her or coercing her or for any reason based on discrimination of any
kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a
lesser degree of suffering that need not be committed for a particular purpose.
When prison staff members use force, the threat of force, or other means of
coercion to compel a prisoner to engage in sexual intercourse, their acts constitute
rape and, therefore, torture. Torture also occurs when prison staff use force or
coercion to engage in sexual touching of prisoners where such acts cause serious
physical or mental suffering. Instances of sexual touching or of sexual intercourse
that does not amount to rape may constitute torture or cruel or inhuman treatment,
depending on the level of physical or mental suffering involved. Other forms of
sexual misconduct, such as inappropriate pat or strip searches or verbal harassment,

412

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

that do not rise to the level of torture or of cruel or inhuman treatment, may be
condemned as degrading treatment. 24

24

For a detailed discussion of the prohibition against torture, and other cruel, inhuman or
degrading treatment or punishment under international law and its applicability to custodial
sexual misconduct, see the legal background chapter of this report.

New York

413
ABUSES25

Custodial sexual misconduct in New York includes sexual intercourse and
inappropriate sexual touching by prison staff, as well as constant and highly
sexualized and degrading language and unwarranted invasions of women prisoners=
privacy. Unless indicated by the use of a full name, the names of the prisoners
have been changed to protect their anonymity. In some cases, the location and
exact date of prisoner interviews have also been withheld.
Rape, Sexual Assault or Abuse, and Criminal Sexual Contact

25

By rape, we mean sexual intercourse between a prison employee and a prisoner that is
accompanied by the use or threat of force or coercion which, under certain circumstances,
can take the form of the provision or denial of privileges, money, or goods. Sexual assault is
sexual touching, short of intercourse, involving the same coercive influences. Sexual abuse
is sexual intercourse or touching involving the offer of goods or privileges absent any actual
or perceived threat to the prisoner. Criminal sexual contact refers to sexual intercourse or
sexual touching that cannot be shown to involve any of the above elements but which
nonetheless constitutes a gross breach of official duty. Rape, sexual assault or abuse, and
criminal sexual contact should all be prosecuted as felonies. For a more detailed discussion,
see the legal background chapter.

414

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Evidence of sexual misconduct in New York=s women=s prisons goes back
several years. In 1984, Prisoners Legal Services (PLS)26 filed a class action lawsuit
against DOCS on behalf of women incarcerated at Bayview alleging, among other
things, inadequate medical care, unsafe and decrepit conditions, a pattern of sexual
harassment of prisoners, and lack of privacy from male guards.27 Although the
central issue was inadequate medical care, PLS also produced evidence that male
corrections staff were engaging in sexual relations with, and sexually and verbally
assaulting incarcerated women. At the time, according to PLS attorney Bill Gibney,
PLS had received numerous complaints that male corrections officers were seeking
sexual favors from incarcerated women through threat or offer of goods, and
Atrading@ prisoners to other officers for sex.28 If the women did not comply with
requests for sexual favors, according to Gibney, the officers threatened to write
disciplinary tickets, take away their privileges, and have them transferred upstate.
Seven corrections officers allegedly involved in these incidents were removed, but
on grounds other than sexual misconduct. To our knowledge, four of these were
reassigned rather than terminated.29 PLS settled the suit with DOCS in 1993.
DOCS did not agree to a particular course of conduct to combat sexual misconduct
at Bayview but has met with PLS attorneys to shape a remedy.30

26

Prisoners Legal Services provides legal services, primarily in civil matters, to indigent
person incarcerated in New York. It is a statewide organization, with seven offices
throughout the state. Prisoners Legal Services was not included in the budget New York
Gov. George Pataki submitted in 1996; however, it expects that whatever bill is finally
passed will contain funding for PLS at the level provided in 1995. Telephone interview,
Ruth Cassell, Prisoners Legal Services, June 17, 1996.
27

Blackman v. Coughlin, Civil Action No. 84-5698, Complaint-Class Action, August 1984.

28

Telephone interview, Bill Gibney, Prisoners Legal Services, June 22, 1994.

29

Interview, Kathryn Schmidt, Prisoners Legal Services, New York, January 14, 1994.

30

Ibid. A stipulation and order was signed in September 1993. Blackman v. Coughlin, Civil
Action No. 84-5698 (RO), Stipulation and Order, September 1993. This order addressed
only reforms in medical treatment for prisoners. Regarding the charges of sexual harassment
and invasion of privacy, the order merely provides Athe parties agree that prisoner complaints
regarding sexual harassment and invasion of privacy have been reduced since the filing of
this complaint.@

New York

415

PLS, meanwhile, has continued to monitor sexual misconduct at Bayview
and to pursue allegations with DOCS and Bayview=s administration. In 1994 PLS
conducted a series of interviews with prisoners and heard continuing allegations of
sexual contact. According to PLS attorney Ruth Cassell, the women at Bayview
described sexual activity in the prison as pervasive; they told her that Aevery guard
had a girlfriend.@ PLS raised their concerns with the prison administration with
little success. According to Cassell:
We=re not getting very far at Bayview. When we talked to the
superintendent and the department, they said they are Adoing all
they can.@ It=s like hitting your head against a wall. The women
tell you sex is rampant, but they are afraid to talk because they
fear being sent upstate.31

31

Telephone interview, Ruth Cassell, Prisoners Legal Services, August 24, 1994.

416

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

She remains convinced, based on the interviews and her observation of the
interaction between guards and prisoners at the facility, that the prisoners are telling
the truth. According to another PLS attorney Bill Gibney, A[It=s] an issue you just
have to stay on top of all of the time. You don=t just solve it.@32
We found that rape, sexual assault, and criminal sexual contact have
occurred at other women=s prisons in New York, besides Bayview. Ruth Cassell
has observed a pattern of sexual abuse within the women=s prisons over a period of
years. She testified before a Governor=s Task Force on Sexual Harassment in
September 1992 that she had personally advised or represented twenty-five women
prisoners who claimed to have been sexually abused by male corrections officers
and prison staff.33 She found:
Women complain of male corrections officers refusing to leave
their cells so they can dress, caressing their breasts and other
parts of their bodies, pulling down their pants in front of them,
touching themselves, making lewd and offensive comments,
following them around the facility, assigning them to their offices
as clerks, watching them use the bathroom and shower, coming
on to the unit without warning of their presence, and frequently
promising them favors and presents for sexual activity.34

32

Telephone interview, Bill Gibney, Prisoners Legal Services, June 22, 1994.

33

Testimony of Ruth Cassell before the Governor=s Task Force on Sexual Harassment,
September 24, 1992, reprinted in Out of Silence, a newsletter of the Women in Jail and
Prison Project, Correctional Association of New York, May 1993.
34

Ibid.

New York

417

A client of Ruth Cassell=s incarcerated at Bedford Hills told Cassell in
1995 that she had been forced to have oral and anal sex with a guard, Shelbourne
Reid, over a period of approximately seven months.35 Reid reportedly threatened to
harm her daughter if she did not have sex with him. According to Cassell, in early
August 1995, Reid awakened the prisoner in the early morning hours
[approximately 2:00 a.m.] and forced her to perform oral sex on him. The woman
preserved the semen in a perfume bottle placed in a fridge. The next morning,
Cassell=s client gave the bottle to a female guard and told her Reid=s name. This
guard spoke with the superintendent who, reportedly, ordered Reid escorted off the
prison once the material in the bottle was proved to be semen.36 Reid admitted he
raped the female prisoner and was fired. On December 13, 1995, Reid entered a
plea of sex abuse in the first degree with a sentence of five years= probation.
Cassell told us of another client, a paraplegic prisoner, who was raped
every time she was driven to physical therapy. The driver, employed by the prison,
pulled over and forced the prisoner to perform oral sex. He would then provide her
with contraband. According to Cassell, the prisoner was later disciplined for the
possession of the contraband and sentenced to the Special Housing Unit (SHU) for
a period of time. The hearing officer on her disciplinary report did not act on her
explanation about the source of the contraband. Following the charges, the prison
reportedly stopped taking the woman out for therapy.37
Women also reported to PLS a pattern of sexual aggression and sexual
intimidation from male corrections officers over the years.38
Sandra F. was repeatedly harassed by Captain W in 1991. When
she went into his office, he would reach for her hands and ask for
a hug. On one occasion, he pulled down his pants in front of her
to reveal his erect penis. On a separate occasion, he tried to kiss
her while she was in his office.

35

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

36

Ibid.

37

Interview, Ruth Cassell, Prisoners Legal Services, New York, April 19, 1994.

38

The following are summaries of some of the affidavits Cassell has collected. The
women=s names have been altered to protect their identity.

418

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

According to an affidavit by Wanda A., the same captain repeatedly called Zoe L.,
Wanda A.=s friend, to his office a few times a week over a four- or five-month
period in 1991. Zoe L. told Wanda A. she had had oral sex with Captain W and
wanted to end the relationship but did not know how. Terry S. told PLS, in a third
affidavit, that Corrections Officer A came into her room and groped her breasts
after she asked him for a cigarette. When escorting her later that day to the hospital,
he kissed her and put his hands inside her dress.
Michelle C. told us that she was harassed and then sexually assaulted in her
cell in August 1993.39 According to Michelle C., Officer D started to harass her
about a week after she arrived, making what she described as Alittle comments,@
such as AI want you to suck my dick.@ He usually was on the 3:00 p.m. to 11:00
p.m. shift, but on the night of the assault, he worked a double shift and was on the
hall all night. She was awakened by Officer D, who had his hands in her
underpants.40 AI was scared. I didn=t say nothing.@ The officer left, she said, after he
heard another woman across the hall. Michelle C. stated that she reported the
incident to PLS and the DOCS inspector general after the officer started to harass
another woman as well.
Iris R. told us that the officer who supervised her work assignment grabbed
her and kissed her when she was working alone in a basement area. Iris R. stated
that she was Atotally surprised@ by the officer=s sexual advance and felt she had no
choice but to submit.41 He reportedly told her, AI could make this easy for you or I
could make this hard for you. It=s up to you.@ Iris R. told us:

39

Interview, New York, April 1994.

40

At the prison, women are housed in individual cells, to which they have their own keys.
The doors are unlocked at night.
41

Telephone interview, July 12, 1994.

New York

419

I was scared to death. I had just gotten into the prison system. I
spent a few weeks at Bedford and just arrived. I didn=t know
how to present myself or carry myself. Plus, I was having
problems with my daughter=s father. He knew about this.42
The officer was able to control Iris R.=s schedule and manipulate his work
assignments, reportedly with the assistance of another officer, in order to substitute
on her housing unit at night. On these occasions, he reportedly directed Iris R. to
take a shower or sleep without underwear. While on duty, according to Iris R., he
would then watch her shower or Aput his hand up my nightgown.@

42

Ibid.

420

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

According to Michelle C., women in Taconic Correctional Facility have
also been groped and fondled by a prison doctor during examination. The doctor
was nicknamed ADr. Feelgood@ because of how he touched the prisoners. A former
DOCS employee confirmed Michelle C.=s allegations. During the doctor=s
employment, two women under his supervision complained that he Awas fondling
their breasts and sticking his finger where he wasn=t supposed to.@43 The doctor was
removed from the facility in April 1994, reportedly by law enforcement officers, but
returned several days later.44
Women we interviewed often submitted to sexual relations with a
corrections officer or staff member out of fear of retaliation or as a means of
exchange, which at times was also accompanied by a sense of compulsion. Women
prisoners and a former staff member we interviewed described an environment in
the prisons in which prisoners engage in sexual relations with staff in exchange for
favorable treatment or for various items, including gum (a coveted item because it is
not otherwise available within prison),45 cigarettes, and drugs. Michelle C.
commented, AThe women here will suck an officer=s dick for gum.@ While many
women appear to engage willingly in such exchanges, others are drawn into the
prison=s underground economy by threats or coercion from prison staff, who retain
virtually complete authority over the prisoner=s access to the most basic privileges
and goods.
A former employee described the situation in the following way. In his
opinion, many female prisoners are drawn into trading sex for favorable treatment

43

Interview, New York, April 1994.

44

Ibid.

45

Gum is reportedly restricted within prison for security reasons because it may be used to
block locks.

New York

421

in order to get on the officers= good side and to Amake their time easier.@46 As he
described it, AGive >em two pieces of gum and a cigarette, and they=ll do anything
you tell them.@ According to the former employee, women who did not want to get
involved are coerced, upon threats of harassment or retaliation. Male staff,
particularly those working on the night shift, came into the women=s cells, watched
them while they were on the toilet or dressing, and told them to just ask if they
needed anything. He was aware of a number of sexual relationships between
corrections staff and prisoners. One prisoner, he said, came to him because an
officer repeatedly came to her cell at night to solicit sex from her. In another
situation, a prisoner told him that she had sex with an officer just to get food the
officer brought back from restaurants.

46

Interview, New York, January 17, 1994.

422

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In Iris R.=s experience, sexual relationships between corrections employees
and prisoners were common. She both witnessed and heard from other prisoners
who were sexually involved with officers. Iris R. was transferred to Bedford Hills
after she became pregnant; she told us that an officer used to come into her
hallmate=s cell at night and they would have oral sex or he would take the prisoner
into the storage closet. On other occasions, Athey=d be in the bubble [officers=
station] and she=d be rubbing him.@47 Iris R. assumed that the officer=s conduct was
discovered, because at some point he was moved to another unit.
Pam M. was reportedly involved with two different officers at one prison.
The relationship with Officer A began after he made sexual advances toward her.
While he was on duty, either he came into her cell or she went to where he worked,
and they went into the officers= bathroom. She told us, AThe officers swap shifts,
work overtime, to be with the women.@48 Pam M. became involved with Officer B
after he put money in her account and started writing her letters and sending her
packages. Pam M. said that Officer B told her, AI=m going to take you from him
[Officer A].@ He had her call his unit at night and, according to Pam M., bid to
work on her unit. She said, AWe were together. Everyone knew.@
Rachel H. told us that she felt obliged to allow a corrections officer to kiss
and grope her. She said:
He used to bring me stuff . . . I felt I owed him. He did
everything for me. I was away from my family and kid, upstate.
I really felt like I owed him. I felt like he deserved it but he did it
for a reason . . . He did it because he wanted to get the panties.49

47

Telephone interview, July 12, 1994.

48

Interview, New York, August 1994.

49

Interview, New York, April 1994.

New York

423

Rachel H. also witnessed a woman on her hall having sex with an officer. She said:
[The woman was] getting it in her room one day so she gets what
she needs . . . She was against the wall gettin= it from one of the
civilians in her room on the seventh floor.50
According to Rachel H., the woman was leaning against a wall while the officer
stood behind her, with his pants down, engaging in sexual intercourse.

50

Ibid.

424

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

The superintendent at Bedford Hills, Elaine Lord, acknowledged that
incarcerated women may be inclined to submit to sexual relations with prison staff.
She told us that she had been approached by women prisoners who viewed sexual
relations with male officers as a necessary means to obtain certain things. Lord
blamed this on the use of a male model for all prisoners. AThe system creates a need
to get . . . things. It=s part of the problem of using a male model as your basis.
There are too many things to be bargained for.@51 She cited the example of
shampoo. DOCS provides all prisoners soap, but not shampoo; while soap alone
may be sufficient for men, who have shorter hair, it is too dry for women and
inappropriate for washing women=s hair. In addition, Rhea Schaenman Mallet,
formerly of the Correctional Association, informed us that DOCS allocates a set
number of sanitary napkins to each prisoner for the year. This leads to a scarce
supply of sanitary napkins, and many women are reusing napkins and sharing
them.52
In some cases, prisoners told us that they engaged in sexual relations with
officers for companionship or attention, not because they felt pressured. Such
prisoners considered themselves willing participants in sexual relationships with
officers. Their descriptions of the experience, however, frequently revealed the
inappropriate, often abusive nature of such relationships. Once a sexual
relationship with a correction employee has begun, prisoners generally find it
difficult to end these sexual encounters. Iris R. told us, AI was really pressured,
really trapped. I thought, my God, this person is really in control of me.@53 After
she was transferred to a new work assignment, the officer used to corner her in the
51

Interview, Elaine Lord, Superintendent, Bedford Hills Corrections Center, June 22, 1994.

52

Interview, Rhea Schaenman Mallet, Correctional Association of New York, January 30,
1996. A bill was introduced in 1996 by Sen. Catherine Abate requiring that female prisoners
be able to receive sanitary napkins as needed.
53

Telephone interview, July 12, 1994.

New York

425

yard and set times and locations for her to meet him. One of the locations the
officer chose was the basement of her work assignment. Three or four times, Iris R.
told us, the officer locked her in the basement and left her there because he received
a call on his radio. Iris R. allowed herself to believe her relationship with her work
supervisor to be meaningful, even though she initially was, in her words, Ascared to
death.@ According to Iris R.:
After awhile, he kind of sucked me in. You do it to make yourself
feel okay. You have to feel an emotional [bond]. He told me lies
. . . how much he cared about me, how much he wanted to be
with me when I got out. It=s a hard situation, that=s what keeps
you [involved].54
In Pam M.=s case, Officer B became increasingly possessive and violent as
the relationship progressed:
Nobody could talk to me. He became violent with his hands. If I
was talking to another man, he would hit me. He had the
impression I was gay. He would ticket another [woman]
whenever I talked to her. . . . [At this prison,] there=s no leaving
an officer. You will have problems.55
Pam M. was subsequently transferred to another facility, where she became
involved with another officer. While she felt that her relationship was not forcible,
she stated that Abasically you=re using them, they=re using you.@56 She described the
prison as Alike a camp where each officer is fucking five to six [women].@ Pam M.
stated that her relationship with the officer was well known within the prison. Both
she and the officer were questioned, but both denied any involvement.
Mistreatment of Prisoners Impregnated by Guards
Over the years, a number of women have become pregnant by corrections
staff while in custody and have been punished under Rule 101 of the prisoner rule
54

Ibid.

55

Interview, New York, August 1994.

56

Ibid.

426

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

book, which forbids sexual relations as well as soliciting or encouraging another
person to engage in sexual relations. In the past, DOCS has penalized prisoners
even when they stated that they were coerced into sexual intercourse with the
guards, and the punishment has often been severe, including prolonged terms in
segregation. As noted in the legal background chapter of this report, Human Rights
Watch believes that under no circumstances should a prisoner who has had sexual
contact with corrections staff be punished. The chilling effect that such punishment
has on reports of sexual misconduct by guards far outweighs any benefit.
Ruth Cassell has represented seven prisoners impregnated by corrections
employees over the last ten years. Cassell told us of a prisoner impregnated by a
guard in Bayview in May 1995.57 According to Cassell, when the prisoner became
sick, blood tests determined that she was pregnant. Reportedly, the prison doctor
began pressuring the prisoner to have an abortion but stopped after her father called
the deputy superintendent. The prisoner was immediately transferred to Bedford
Hills, where she was placed in segregation and charged with false statements, sexual
offenses, and lewd behavior. The last two charges were eventually dropped, but
because the prisoner would not reveal the father=s name she was found guilty of
false statements. The prison authorities confronted a guard that several prisoners
previously had stated was having an intimate relationship with the now pregnant
prisoner. According to Cassell, the guard then resigned.
Ruth Cassell told us that another young prisoner at Bedford Hills became
pregnant in June 1994 after submitting on one occasion to sexual intercourse with
her work supervisor. According to Cassell, the work supervisor directed the
prisoner to meet him in a particular location, where he demanded sexual relations
with her. The prisoner complied. When she missed her period, the work supervisor
reportedly brought her pills he said would induce a miscarriage.58

57

58

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

Telephone interview, Ruth Cassell, Prisoners Legal Services, January 26, 1995. The pills
did not induce a miscarriage, however.

New York

427

According to Cassell, the Office of the Inspector General, which operates
out of DOCS and investigates violations of prison rules, brought charges against
this young woman for sexual misconduct after determining she was pregnant. At
the hearing, she was sentenced to 730 days, or two years, in segregation, with a
twenty-four-month loss of good time credit, because the investigators believed the
prisoner was lying about who impregnated her. After she had spent two and onehalf months in segregation, all charges against her were dismissed, except the Rule
101 violation of engaging in sexual relations, for which she was sentenced to time
served. Thus, she was punished under Rule 101 even though she testified that she
was coerced into having sex. She had an abortion in August 1994.59

59

Ibid.

428

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Iris R. was charged with sexual intercourse and sentenced to nine months
in segregation, after medical examinations showed her to be pregnant. When Iris R.
learned of the pregnancy she contacted a lieutenant at the prison and voluntarily
provided the details of her situation.60 The lieutenant assured her there would be no
negative repercussions for her and the authorities would discipline the officer. She
said he told her, AYou=ve got to work with us on this. We have to know who the
father is, what happened to you . . . We can make sure you don=t go to SHU
[segregation].@ Within a few hours after they confirmed her pregnancy, she was
transferred to Bedford Hills and then placed in segregation.
Iris R.=s punishment, however, was not limited to segregation, but extended
to her medical care and treatment by the medical staff at Bedford Hills. After she
was transferred to Bedford Hills, Iris R. told us that she was pressured repeatedly by
the medical staff to have an abortion. When she first came forward, Iris R. thought
that she might have an abortion but later changed her mind. According to Iris R.,
she was taken from SHU on five occasions to meet with a female doctor in the
medical building who reportedly pressured her to abort. The doctor, Iris R. said,
repeatedly harangued her by saying AYou said you were going to terminate this
pregnancy. Now why aren=t you going to do it?@ She also allegedly told Iris that
she was Aallowing men to influence her decision@ not to abort and that Anobody=s
going to adopt this babyCit=s going to end up in an institution.@ Iris R. believed that
Athese meetings were strictly to harass [her].@ No prenatal exam was conducted at
the time.
Over four months into her pregnancy, Iris R. began bleeding and stopped
feeling the fetus move, allegedly after her cell was sprayed with insecticide.
Despite her symptoms, Iris R. said the medical staff refused to see her immediately.
Once she was examined, they sent her back to her unit. The next day, she was
admitted briefly to an outside hospital and returned to Bedford the same day. Upon
her return, she was placed in the prison hospital, but subsequent treatment
reportedly scheduled by the outside hospitalCincluding a sonogramCwas never
performed. Iris R. continued to suffer cramping and bleeding over the next two
weeks, before she was finally taken a second time to the outside hospital. A
sonogram confirmed that the fetus was dead, and an abortion was performed.

60

Telephone interview, July 12, 1994.

New York

429

Women who are impregnated by prison staff, it appears, may also be
refused participation in Bedford=s nursery program because of the status of the
father. The nursery program allows incarcerated women to keep their babies at the
facility for up to one year to allow for mother-child bonding. Women impregnated
by corrections officers, however, are sometimes denied this opportunity. After her
transfer to Bedford Hills, Iris R. stated that she applied to the nursery program was
initially accepted, and received a letter of acceptance. She later received a second
letter withdrawing the offer when the institution realized that the father of her child
was a corrections officer.61 A second woman impregnated by a corrections officer,
who gave birth in 1993, was similarly denied entry into the nursery program.
According to Superintendent Lord, the decision was made to exclude the prisoner
because she has a long sentence and there was little chance of reunification. She
said:
Eighty percent of the women leave here with the baby, or they
get an extension for the baby, or leave close to the time the baby
leaves. It was decided in her circumstances that it was not
appropriateCfor bonding, [et. cetera]Cfor the baby to stay.62
The baby=s caretakers, she noted, had brought the baby to the facility for visitation.
In addition, the female prisoner impregnated in the spring of 1995 was also
excluded from the nursery program. In this case, the reported reason for denial was
that of her four children, two had been taken away by the state.63 The exclusion of
these women from the nursery program has the effect, intended or not, of penalizing
them for engaging in sexual relations with guards.
Abusive and Degrading Language
Sexual misconduct in New York=s women=s prisons takes place in an
environment where some male corrections officers and staff use sexually explicit
and derogatory language when communicating with or referring to female prisoners.
Such behavior directly breaches regulations set out in the DOCS employee manual,
61

Telephone interview, July 12, 1994.

62

Interview, Elaine Lord, superintendent, Bedford Hills Correctional Facility, June 22,
1994.
63

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

430

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

which provides that Aan employee shall refrain from the use of indecent, profane or
abusive language or gestures while on duty or on State property.@ DOCS also has a
policy on sexual harassment, but it is limited by definition to sexual harassment
among employees and does not cover sexual harassment of prisoners.64

64

State of New York Department of Correctional Services, Directive 2605, ASexual
Harassment in the Work Place,@ February 13, 1989. Under the directive, sexual harassment
constitutes a form of employee misconduct and anyone found guilty is subject to disciplinary
action.

New York

431

Women we interviewed testified to a range of degrading language and
treatment. Michelle C., whose rape is described above, told us that she was
repeatedly harassed by a sergeant.65 On one occasion, he reportedly asked her for a
pair of her underpants and asked, ACan I feel you?@ Then, on October 30, 1993, he
appeared outside her door while working the overnight shift. Michelle C.
recounted:
He worked a double [shift] that night. It was around 12:30 a.m.
on a weekend. He came up to the floor. . . .He stood there a
minute and felt himself. He left without doing anything else.66
At the same prison, Judith D. told us that her unit officer repeatedly used
degrading and sexualized language when speaking to prisoners. She stated:
Last night, a girl was cleaning the showers, and he likes to stand
there over top of you while you clean. [He=ll say] ALook at all of
these pubic hairs,@ and he=ll be pointing to the wall. This is
something we are subjected to down there.67

65

Interview, New York, April 1994.

66

Ibid.

67

Interview, New York, April 1994.

432

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

At another prison, Kathy T. told us that her problems with Officer T
started almost immediately after she moved onto the honor floor.68 AIt started with
little comments, like, >In that position, I could have a wonderful time with you.=@69
According to Kathy T., he would come into her cell and compliment her clothing or
appearance. Or, she said, he would ask her ACan you come and help me in the
closet?@ She stated that she tried to ignore him but tolerated his behavior while
living on the unitC AIf he makes a pass at you and you resist, you=re going to get
dogged [harassed]. Those who don=t resist, don=t get dogged. I=ve been getting
dogged by him for four years.@ Nadine P. reported similar problems with Officer T.
According to Nadine P., while she was housed on the unit, Officer T Awas telling
me how pretty I was, how big my butt was.@70
Privacy Violations
As discussed in more detail in the legal background chapter of this report,
prisoners retain an internationally protected right to privacy except when limitations
on this right are demonstrably required by the nature of the prison environment. In
addition, several U.S. courts have reached decisions that delineate prisoners= limited
right to bodily privacy in cross-gender guarding situations. In particular, U.S.
courts have recognized that prisoners have a right not to be strip searched by
officers of the opposite sex, except in cases of emergency; to be protected from
regular inappropriate visual surveillance by officers of the opposite sex; and in the
case of female prisoners, not to be routinely subjected to pat frisks by male
officers.71
One of these decisions was handed down in 1978 in the case of Forts v.
Ward, brought by female prisoners incarcerated at Bedford Hills.72 The women
68

The honor floor is reserved for prisoners with low security status and good behavior
records. It is a coveted unit, because prisoners living there are accorded more privileges than
the general population.
69

70

Interview, New York, April 1994.
Interview, New York, April 1994.

71

For a detailed discussion of prisoners= privacy rights under the U.S. Constitution, see the
legal background chapter of this report.
72

Forts v. Ward, 471 F. Supp. 1095, p. 1097 (S.D.N.Y. 1978) vacated in part by 621 F.2d
1210. The lawsuit was initiated following the 1977 DOCS policy change that allowed men
to hold contact positions in women=s facilities.

New York

433

prevailed at the district court level where the judge recognized their constitutional
right to privacy and issued a court order preventing male corrections officers from
working in the women=s housing units at night and in the prison infirmary when they
might observe women sleeping naked. Further, the judge directed the prison to
install translucent screens to shield the women while showering.73 At the time,
prison rules already permitted prisoners to cover their cell windows for fifteenminute intervals and prohibited the assignment of guards of the opposite sex to
areas where prisoners who were showering were Aopen to view.@74

73

Ibid., p. 1102.

74

Ibid.

434

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

While the lower court=s ruling was largely upheld on appeal, the circuit
court recognized a far narrower right to privacy for incarcerated women.75 The
appellate court determined that while incarcerated women have a constitutional
right to privacy, the employment rights of male officers take precedence.76 It
vacated the lower court ruling insofar as that ruling had prohibited the assignment
of male guards to the housing units at night. The appeals court stated, ASince
appropriate sleepwear can sufficiently protect [a prisoner=s privacy] interest, its use
should be preferred to any loss of employment opportunities.@77
Rather than implementing and enforcing policies to balance the
employment rights of male guards with female prisoners= right to privacy, it appears
that DOCS has failed to protect adequately the latter. For example, in late 1995,
one of Ruth Cassell=s clients, a pre-operative transsexual who was in the women=s
prison system, was transferred from Bedford Hills to Bayview.78 Although her
privacy had been protected adequately at Bedford Hills, in Bayview she was forced
to shower in an open shower area that only provided cover for three sides of her
body. When the prisoner protested that prisoners and guards gathered around her
when she showered and made degrading comments, the prison authorities told her
that no additional privacy would be provided.79 In addition, we documented the
75

621 F.2d 1210.

76

The district court, in fact, assumed that male officers viewing incarcerated women naked
was a violation of the women=s constitutional right to privacy. Ibid., p. 1214.
77

Ibid., p. 1217.

78

Although the prisoner looks like a woman and has breasts, she still has a penis.

79

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

New York

435

following cases where women=s right to privacy was violated by abusive body
searches.
Body Searches
Under DOCS procedures, corrections officers may pat-frisk prisoners of
the opposite sex.80 Pat-frisks may be conducted in a variety of circumstances: when
entering the visiting room; going or returning to housing areas or outside work
details; to and from program and recreation areas, where reasonable grounds exist
to believe a prisoner is carrying contraband; and as directed by supervisory staff.
A bill prohibiting male corrections officers from pat-frisking female
prisoners was submitted to the New York State Senate in the 1996. The bill would
allow cross-gender pat-frisks when the officer has probable cause to believe that a
pat-frisk is necessary to protect the immediate safety of other prisoners or prison
employees, or to prevent an escape. While then Acting Commissioner Coombe in
early 1996 suggested assigning only female guards to certain posts at Albion, the
prison with the most reports of abusive pat-frisks, and possibly using hand-held
metal detectors there, DOCS reacted to this bill as an unnecessary interference on
their duties.81

80

They make only one exceptionCfor Muslim malesCprohibiting female officers from
conducting a nonemergency pat-frisk of any Muslim male. New York Department of
Corrections Services, AControl and Search for Contraband,@ Directive No. 4910, February 1,
1994. A pat-frisk is defined as Aa search by hand of an inmate=s person and his or her clothes
while the inmate is clothed. . . The inmate will be required to run fingers through hair and
spread fingers for visual inspection. The search shall include searching into the inmate=s
clothing. Requiring an inmate to open his or her mouth is not part of a pat-frisk.@
81

Interview, Ruth Cassell, Prisoners Legal Services, New York, January 30, 1996.

436

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

DOCS procedure also provides for both strip searches and Astrip frisks@ of
prisoners, under limited circumstances, to search for and control the possession of
contraband.82 A strip search is a search of a prisoner=s clothes once they are
removed and a visual inspection of the prisoner=s body. A strip frisk involves a
visual inspection of body cavities, including the mouth. During a strip frisk, all
prisoners are required to bend over and spread their buttocks. In addition,
incarcerated women must squat and expose their vaginas. By policy, both strip
searches and strip frisks may only be conducted where a sergeant or higher ranking
official has probable cause that a prisoner has contraband. The procedure provides
a number of safeguards to ensure that the search is conducted as humanely as
possible: only the officer conducting the search may be present;83 searches must be
conducted by an employee of the same sex as the prisoner; officers are required to
Aconduct themselves professionally@ and Aconduct such searches in a manner least
degrading to all involved.@ Further, the search must be conducted in a location
82

Ibid. New York=s strip search and strip frisk policy has been shaped through litigation,
and DOCS currently operates under a consent order. In 1977 a male prisoner incarcerated
by DOCS, Michael Hurley, filed suit challenging the constitutionality of the strip frisk
procedure. Under the procedure, prisoners housed in the Special Housing Unit (SHU) were
routinely strip frisked whenever they entered or left the correctional facility. Hurley v.
Ward, 584 F. 2d. 609 (2d Cir., 1978). His suit was later certified as a class action on behalf
of all prisoners in DOCS custody. Hurley v. Coughlin, Civil Action File No. 77-3847
(RLC),Consent Decree in Full Resolution of Action, July 21, 1983. (Hurley v. Ward was
subsequently renamed Hurley v. Coughlin after DOCS Commissioner Coughlin replaced
Commissioner Ward.) In July 1983 both parties reached agreement on a consent decree that
altered DOCS strip frisk procedure. Specifically, DOCS agreed to conduct strip frisks only
upon a determination of probable cause, by a sergeant or higher ranking officer, and
conducted by staff of the same sex as the prisoner. Strip frisks without probable cause were
permitted in limited circumstances, such as where a prisoner was transferred, after a contact
visit, or upon entry to the Special Housing Unit. The court, in 1993, found DOCS in
massive noncompliance with the consent order, and a new order further regulating strip
frisks was entered in January 1994. The new order further detailed the conditions under
which a strip frisk could be conducted and the procedure to be followed by prison staff.
Hurley v. Ward, Civil Action File No. 77-3847 (RLC), Stipulation and Order, January 3,
1994.
83

An exception is made if the prisoner has a record of assaults or attempted assaults or there
is reason to believe he or she will resist the search. In such cases, a sergeant or higher
ranking officer, of the same sex as the prisoner, may be present. Policy Directive No. 4910,
Sub-section G.

New York

437

where privacy is safeguarded, the room is clean and sufficiently warm, and the
prisoner=s clothing is not on the floor. DOCS policy provides that during a strip
frisk a female prisoner need not remove her bra or panties until after a search of her
mouth is made.
We received reports that within Albion, prisoners have been forced to strip
in a room with an open door where male correctional staff were present, in violation
of DOCS policy, and that such searches were videotaped. Jane N. told us that she
was strip searched by two female officers in the presence of two male officers when
she entered segregation.84 The search took place in a small room that had a door
with an uncovered window. One of the female officers held the video camera while
the other conducted the search. Throughout the search, the door remained open and
two male officers stood in the doorwayCone leaning against the opposite wall and
facing into the room.
Following the search, Jane N. was given a robe and shoes and taken to her
cell. She described the robe as Aripped up and dingy,@ without a string to tie it shut,
and small, leaving her partially exposed. Once in the prison cell, she stated, officers
provided her with panties and a bra, but no other clothing for several hours. Jane N.
alleged that an officer later came to her cell and took photosCAtwo closeups and two
far-away shots@Cof her wearing only a bra and panties.

84

Interview, New York, March 1995.

438

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Pam M. told us of a similar experience. In June 1994, she was taken to
segregation prior to her transfer from Albion. In the presence of a male and a
female officer, she was directed to remove all of her clothing while being
videotaped. She said they followed the normal procedure for a strip search but that
A[I]t was the first time I was stripped in front of a man.@85
According to Betsy Fuller, an attorney with PLS, the practice of routinely
videotaping all strip searches on admission to segregation began in January or
February 1994 and continued until July 1994.86 Fuller estimates that with twenty to
twenty-five women entering SHU monthly, approximately one hundred to 120 were
searched and videotaped altogether. An unknown number of these tapes were then
reviewed by the male deputy of security pursuant to regulations governing the use
of videotapes. According to Fuller, the tapes were reviewed to determine if an
incident involving the use of force occurred. If not, the tape was recycled.
Fuller watched between six to eight of these tapes, which she described to
us as Aimages I will never forget.@ In one video that she reviewed, a woman within
a week of parole was sent to segregation because contraband was allegedly found in
her cell. When asked to strip, according to Fuller, the woman was Acompletely
freaked out@ by the camera and hysterical throughout the strip search. She
repeatedly asked to speak with a supervisor but was ignored. Her questions
regarding the reason for the search were also ignored. Fuller told us that the
prisoner=s mental pain was hard to watch.
The videos, furthermore, showed that the searches were conducted in a
manner that violated DOCS policy, with women being required to undress
completely before the examination of their mouth and ears, and to remain undressed
during the entire search. Fuller stated that she could hear men=s voices clearly
outside the door. The presence of men was apparently justified by DOCS
regulations requiring a sergeant=s presence if a prisoner is agitated or likely to resist.
Since male sergeants, under the regulations, are not allowed to be present during
the searches, they waited outside the door and the door remained open. This,

85

Interview, New York, August 1994.

86

Telephone interview, Betsy Fuller, Prisoners Legal Services, October 4, 1994.

New York

439

according to Fuller, violated DOCS policy. In other cases, up to four female
officers were present, as opposed to only one as provided under the policy.
The searches did not end there. As in Jane N.=s case, many women were
denied adequate clothing and were forced to wear bathrobes for hours. Fuller stated
that DOCS policy requires that prisoners entering segregation be given
clothingCpants, shoes, underwear, and a shirtCbut at this prison the women were
provided with only robes and, in some cases, with only transparent paper
bathrobes.87 The prisoners= humiliation, Fuller stated, was compounded by two
factors. Many of the women were aware that the videos would be reviewed by the
male deputy of security, and many had a history of sexual abuse.

THE SYSTEM==S RESPONSE

87

Fuller has been told by DOCS that the practice of videotaping the strip frisks started after
PLS wrote to prison administrators at Albion requesting the records and any videotapes for a
prisoner who alleged she was beaten up when she was escorted to SHU. This letter followed
a general format used by PLS sent to the men=s prisons because, Fuller stated, men admitted
to SHU are often videotaped because they are more likely to use force.

440

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

In response to intense pressure by nongovernmental organizations on
behalf of women incarcerated in New York, in late 1995 and 1996 the New York
department of corrections, under then Acting Commission Coombe and current
Acting Commissioner Glenn Goord, has begun to address the problem of sexual
misconduct within its women=s prisons through its support of legislative reform
efforts, public statements, and improved interaction with nongovernmental
organizations. Since September 1995, DOCS regularly has sent representatives to
meetings of the Coalition for Women Prisoners. In addition, DOCS has formed a
task force to examine issues facing incarcerated women. The task force is entirely
female and is composed of different DOCS officials, certain wardens, officials from
state agencies, superintendents, and others. But in contrast with these recent
positive steps, our investigation indicates that DOCS is not consistently responsive
to allegations of sexual misconduct, and that its reporting and investigative
procedures are seriously flawed. In particular, DOCS does not distinguish between
prisoner grievances of sexual misconduct and other allegations of staff
misconduct.88 This policy makes it difficult for DOCS officials to notice a problem
of pervasive sexual misconduct. In addition, prior to the passage of the 1996 bill
prohibiting all sexual contact between corrections officials and prisoners, no
allegations of sexual misconduct were forwarded to either the Inspector General=s
office or local law enforcement.89
Denial of an Effective Remedy
As discussed in the legal background chapter of this report, international
human rights law obligates governments not only to prohibit torture and cruel,
inhuman or degrading treatment and privacy violations, but also to ensure that when
such abuses occur they can be reported and fully and fairly investigated without the
complainant fearing punishment or retaliation from the authorities. In addition,
under U.S. law, prisoners are also guaranteed access to the courts to challenge

88

Letter from James B. Flateau, public information director, New York Department of
Correctional Services, to Human Rights Watch, September 25, 1996.
89

Ibid.

New York

441

prison conditions or other prison problems. Nonetheless, women prisoners in New
York prisons have frequently been denied an effective remedy because the
grievance and investigative procedures for complaints by prisoners function poorly.
Moreover, the lack of confidentiality of such procedures has on a number of
occasions exposed prisoners who report custodial sexual misconduct to retaliation
and punishment.
Grievances
New York provides a grievance mechanism for prisoners to raise
complaints about the content or application of departmental policies, regulations,
procedures or rules, or the absence of a policy, regulation or rule.90 The grievance
mechanism should provide redress for sexual misconduct complaints, but rarely
does. In fact, as stated above, DOCS makes no distinction between sexual
misconduct grievances and other complaints about staff misconduct. Under the
procedure, all grievances are reviewed by a five-person committee composed of two
voting prisoners, two voting staff members, and one non-voting chairperson.91
Prisoners may appeal the committee=s decision to the prison superintendent and, if
dissatisfied with that response, to the Central Office Review Committee (CORC).
One of the principle problems with the grievance procedure is that
prisoners are not informed of their right to report abuses, or they do not know with
whom to speak or whom they can trust. Months into her incarceration, Iris R. told

90

91

AInmate Grievance Program,@ Policy Directive No. 4040, November 27, 1991.

New York is the only state we visited where grievances are reviewed by a committee,
rather than an individual grievance officer or coordinator. It is also the only state we visited
where prisoners actually participate in the review of grievances.
Statistical information prepared by DOCS indicates that incarcerated women are
less likely to file grievances than male prisoners, but they file complaints of staff misconduct
significantly more often. According to reports prepared in 1993 and 1994 by DOCS on the
nature and type of grievances filed, incarcerated women filed only 4 percent of all grievances
in both years, while they accounted for 6 percent of the prison population. Meanwhile,
grievances about staff misconduct constituted nearly one-third of the women=s grievances.
Overall, only one-fifth of all grievances filed in 1993 and 1994 raised a complaint of staff
misconduct. It is impossible, however, to determine what contributes to this difference as
staff conduct is presented as a general category, with no distinction as to complaints of
sexual misconduct or sexually degrading language. DOCS, AA Compilation of Grievances
Filed by Nature and Type, by Facility: January 1 - June 15, 1993;@ DOCS, AA Compilation of
Grievances Filed by Nature and Type, by Facility: January 1 - June 15, 1994.@

442

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

us, a sergeant called her into his office to discuss comments he overheard officers
making about her breasts.92 He reportedly assured Iris R. that if she was
approached, she could seek his help. Her initial thought was that the officer was
also Acoming on to me.@ Iris R. also commented to us that by the time this
conversation took place:
It had already happened. I was already approached. They should
have said this at the beginningCif it happens, you should come
forward and you=ll be believed.

92

Telephone interview, July 12, 1994.

New York

443

Outside monitors consider the grievance mechanism to be ineffective and
biased. Based on their experiences, the grievance system proved unable to resolve
serious complaints about DOCS policies. When New York sought federal
certification of its grievance mechanism from the U.S. Department of Justice in
1992, attorneys with PLS prepared a lengthy packet to oppose certification that
highlighted the ineffectiveness of the grievance mechanism.93 PLS focused in
particular on DOCS strip frisk and strip search policies.94 According to PLS, prior
to the original Hurley v. Ward lawsuit filed in 1977, thirty-two prisoners had filed
grievances challenging the strip frisk and strip search policy. All the grievances
were denied. The procedure for strip frisks was subsequently modified once after
other prisoners joined Hurley in a class action lawsuit against DOCS, then again
after another court order was issued.95 Moreover, PLS pointed out that of seventeen
cases where a state-wide policy was directed to change in response to a grievance,
not once did the policy change. Despite this demonstrated inability to Aprovide a
meaningful remedy,@ as required for certification, the U.S. Department of Justice
certified the grievance system in late 1992.
Again, in another situation, the grievance mechanism failed to resolve an
abusive policy without litigation. It was not until July 1994 that DOCS stopped the
routine videotaping of strip searches as described above, after attorneys with PLS
repeatedly contacted the institution. As a result of PLS=s involvement, DOCS
introduced additional protections into the procedure by: requiring strip searches to
be approved by a higher ranking officer; agreeing to review the videotapes only if
an incident report was filed; and allowing only a female supervisor to review them.
According to Fuller, CORC has been investigating complaints of abusive strip frisks
93

As described in the legal background chapter of this report, states may seek certification
of their grievance procedure pursuant to the Civil Rights of Institutionalized Persons Act
(CRIPA). Once certified, the grievance mechanism may serve as an initial remedial process
which a prisoner must use prior to filing suit and a federal judge may delay a prisoner=s
lawsuit for a specified period until the prisoner has pursued her complaint through the
grievance procedure.
94

95

This is one of numerous problems with the procedure that Prisoners Legal Services raised.

The case is discussed more fully above in the section on body searches. The lawsuit
contended that New York=s strip search and strip frisk policy was unconstitutional. As a
result, New York DOCS in June 1995 entered into a consent decree pursuant to which it has
modified its method for conducting such searches.

444

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

and other improper searches more diligently.96 The lawsuit by the women subjected
to the videotaping was settled in January 1996, when DOCS agreed to pay each
woman $1,000 for each videotaped search that she had undergone.97

Investigations and the Failure to Report

96

97

Telephone interview, Betsy Fuller, Prisoners Legal Services, October 4, 1994.

Hurley v. Coughlin, Civil Action No. 77- 3847 (RLC), Stipulation and Order, January 3,
1996.

New York

445

Investigations are, generally, a necessary step to discipline corrections
officers, yet there appears to be no standard DOCS investigatory policy.98 At
Bedford Hills Correctional Facility, there appears to be no written or specific
procedure for reporting and investigating allegations of sexual misconduct.
Superintendent Lord told us that she turns over complaints Awhere it is not just an
issue of sexual harassment@ to the inspector general=s office, an investigative unit
within DOCS. The inspector general=s staff, she said, then takes over the
investigation and, upon its conclusion, reports its findings to her.
Our interviews indicated that generally once a complaint is turned over to
the inspector general=s office, an investigator from that office visits the prison and
interviews the complainant, other prisoners who witnessed the situation or have
knowledge about it and, presumably, the implicated officer. Many of these
investigators, according to Ruth Cassell, are former corrections officers, some of
whom have worked with the implicated officer or at the prison where they are
conducting the investigation.99 Once the investigator completes the interviews, he
or she prepares and submits a report with his or her findings. According to
Superintendent Lord, if the inspector general finds Ajustification@ or substantiates
the allegation, the information is then turned over to DOCS Department of Labor
Relations. However, Labor Relations is not bound by the inspector general=s
determination and makes an independent decision as to whether or not to proceed
with disciplinary action against the implicated officer.100 Moreover, DOCS

98

Interview, Kathryn Schmidt, Prisoners Legal Services, New York, January 14, 1994.

99

Telephone interview, Ruth Cassell, Prisoners Legal Services, January 26, 1995.

100

Interview, Elaine Lord, superintendent, Bedford Hills Correctional Facility, June 22,
1994.

446

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

informed Human Rights Watch that in 1994-1995 no allegations of sexual
misconduct were forwarded to the Inspector General=s office.101

101

Letter from James B. Flateau, public information director, New York Department of
Correctional Services, to Human Rights Watch, September 25, 1996.

New York

447

There appears to be very little accountability to outside monitors regarding
the investigative process; our interviews indicate that prisoners and their attorneys
are often frozen out of this process. Kathryn Schmidt, with PLS, commented,
A[DOCS] is not very informative about the outcome of investigations.@102 She was
monitoring the progress of two inquiries into sexual misconduct at the time of our
interview, and her knowledge about their progress was limited to what DOCS
officials told her during one meeting. At that meeting, DOCS permitted her to view
the papers pertaining to the two pending investigations but refused to provide her
with copies of those papers despite PLS=s role as class counsel.
Attorneys, too, have difficulty obtaining statements that their clients may
have given to prison officials or investigators. In late 1994 Ruth Cassell
represented a prisoner who had been impregnated by a corrections employee at
Bedford. The woman had been interviewed for several hours by the superintendent
and a lieutenant, and a statement had been written. When Cassell requested a copy
of this written statement, the DOCS counsel refused to turn it over while the
investigation was pending.103
Bias Against Prisoner Testimony
The lack of accountability to outside monitors is particularly troublesome
since the integrity of the investigative process is compromised by a number of
factors. First, a bias against prisoner testimony pervades the system, beginning with
the initial investigation and continuing through the disciplinary determination. One
investigator reportedly told Kathryn Schmidt that he did not believe the incarcerated
women he interviewed and that, in his view, their sole purpose in raising such
allegations was to get money.104

102

Interview, Kathryn Schmidt, Prisoners Legal Services, New York, April 19, 1994.

103

Telephone interview, Ruth Cassell, Prisoners Legal Services, January 26, 1995.

104

Interview, Kathryn Schmidt, Prisoners Legal Services, New York, January 14, 1994.

448

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Our interviews show that the only witness to sexual misconduct is often the
victim herself, or another prisoner who witnessed something unusual or who herself
experienced problems with the same officer. But, given DOCS=s bias against
prisoner testimony, the latter=s testimony is also deemed insufficient because of her
status as a prisoner. One attorney told us that, in his opinion, ANo number of inmates
stacked on top of each other is enough to sanction a guard. You need some tangible
proof.@105 Thus, the only evidence a prisoner may rely on is physical evidence or
the testimony of another corrections employee, both of which are difficult to obtain.
Given such bias, it is no surprise that prisoners= claims of sexual misconduct by
corrections staff are rarely substantiated pursuant to an investigation by prison
authorities. For example, when PLS was opposing certification of the New York
grievance system, it asked DOCS to provide examples of an instance when in a
dispute between a prisoner and a guard, the prisoner was believed over the guard.
DOCS was unable to find one.106
Conflicts of Interest
The fact that corrections officers, in practice, rarely assist with
investigations of their colleagues is a second obstacle to effective investigations.
DOCS=s policy requires corrections employees to file incident reports for anything
unusual or where force is employed. Many corrections employees, however, fail to
report unusual incidents because of an unwritten rule among corrections officers
that one does not report on a colleague. According to one former employee we
interviewed:
If one officer squeals on another [at one prison], it will be known
[at another prison] by the next day. You will be blackballed at
every other facility. It=s a brotherhood thing. All officers stick
together. . . . It=s an officer thingCyou don=t squeal. It=s in the
police department, it=s in corrections. There=s nothing to do
about it. [If you report], they will treat you like a criminal in the
street, [because] you broke the code. They watch out for each
other, and that goes with every officer job.107
105

Telephone interview, Bill Gibney, Prisoners Legal Services, June 20, 1994.

106

Telephone Interview, John Gresham, attorney, February 20, 1996.

107

Interview, New York, January 17, 1994.

New York

449

The Acode@ is reportedly enforced and practiced among higher ranking staff as well,
and officers know which supervisors will tolerate misconduct. The former DOCS
employee told us that some supervisors may report their subordinates. The
offending officers:
know when, how and with whom to do it. They know not during
the day or around civilian staff.108 Counselors will write them up
in a heartbeat. If a counselor eyewitnesses, then something will
be done. If the counselor just heard about it, then nothing gets
done because they do not believe the inmates.109
A third problem with the investigative procedure is that many prisoners are
unwilling to report sexual misconduct by prison employees for fear of being
punished themselves. As stated earlier, Rule 101 of the prisoner handbook
proscribes sexual relations, regardless of consent, and a violation of this provision
can result in disciplinary action against the prisoner. In Iris=s case, the officer told
her that if she did come forward, no one would believe her, and she would be Aput
in the box [SHU] and get in a whole lot of trouble.@110
Retaliation
Incarcerated women have been harassed by corrections officers to prevent
them from reporting sexual misconduct and to retaliate against them for filing
complaints or resisting sexual advances. According to Bill Gibney of PLS, women
report that corrections authorities threaten to transfer them if they speak out about
sexual misconduct.111 Women incarcerated at Bayview are particularly hesitant to
come forward because this facility, located in New York City, the area some 70
percent of the state=s female prisoners come from, is particularly desirable. Albion,
which houses approximately half of the state=s female prisoners, is located about ten
hours from New York City. Rachel H. spoke of this threat, saying, AThey will
108

109

Civilian or nonsecurity staff are employees other than correctional officers.
Interview, New York, January 17, 1994.

110

Telephone interview, July 12, 1994.

111

Telephone interview, Bill Gibney, Prisoners Legal Services, June 20, 1994.

450

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

threaten you with an administrative move in a minute, especially if you live in the
five boroughs.@112 A transfer to other prisons that are located further upstate means
that families often lack the resources to visit the prison.
Some prisoners do not report abuses because they fear that to do so would
worsen the conditions of their incarceration. Judith D. told us that Officer J, who
harasses women on her unit, Ahas let it be known that if we push it, he=ll get us out
of work release.@ She also said that her cellmate was harassed by this officer
because she declined his advances. According to Judith D., the officer:

112

Interview, New York, April 1994.

New York

451

started harassing her [the cellmate] >cause he liked her but she
didn=t like him. She would get stuff from her boyfriend. She got
packages all the time. He [the officer] would write her
disciplinary tickets. They think they=re gods or something. They
have so much power over us. Once they have a crush on a
women, they don=t want them to have another man.113
A former DOCS employee corroborated that women who reject an
officer=s sexual advances are often subjected to harassment and retaliation.
Officers, he said, Acan make their lives a living hellChold their packages, stop their
visits, or they can pull a surprise search and plant something in their cell.@114 When
asked how officers could stop visits, he said this was Athe easiest one@Can officer
might deny the visit Abecause the person is wearing green, [or] they=re not on the
visiting list. . . . They can just not find a person=s name.@ He recounted the story of
a nun who brought a prisoner=s daughter to visit the facility. The prisoner was, in
his words, Apretty@ and she had rejected an officer who had solicited her. The day
the nun visited, that officer was at the desk and denied the visit.
In one prison we visited, it appears that, over a period of years, a male
corrections officer, Officer T, has repeatedly retaliated against women who resisted
his sexual advances or attempted to report his sexual involvement to prison
officials. Officer T worked on the honor unit in the prison and holds substantial
power over incarcerated women living there.
Kathy T. told us that Officer T retaliated against her after she spoke to the
inspector general during an investigation into the officer=s alleged misconduct.115
The officer was removed from the unit for eight or nine months, Kathy T. believes
in 1992, while apparently under investigation. The findings were inconclusive, and
113

Interview, New York, April 1994.

114

Interview, New York, January 17, 1994.

115

Interview, New York, April 1994.

452

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

Officer T was reinstated to the unit. Kathy T. stated that she and a few other
women who had assisted the investigation subsequently received poor evaluations
from him and were taken off the honor unit. At the time of our interview, she was
appealing the transfer.
Nadine P. told us she lived on the honor unit until 1990 but was removed
after she filed a grievance for sexual harassment against Officer T and, as she put it,
AHe in turn wrote me a ticket.@116 Nadine P. stated that she spoke with the inspector
general=s investigator regarding her experience, after a friend came forward and
Adescribed his [Officer T=s] manhood [penis].@ In October 1994 another prisoner at
the same prison living on the honor unit contacted us regarding Officer T, who
allegedly began harassing her because she reported problems with Aone of his
playmates.@
Rhea Schaenman Mallet, formerly of the Correctional Association of New
York, who monitored the conditions of incarcerated women, told us about two
victims of reprisal. One was transferred and the other was threatened with transfer
from Bayview because they spoke about problems in the prison. Both also lost their
work release status.117 In Pam M.=s case, mentioned above, other officers retaliated
against her after she reported Officer B=s misconduct; she had to be placed in
protective custody and was later transferred to another facility.
116

117

Interview, New York, April 1994.

Interview, Rhea Schaenman Mallet, Correctional Association of New York, August 12,
1994. One woman spoke at a conference; the other worked for the Correctional
Association=s AIDS Project.

New York

453

Impunity
Impunity for sexually abusive staff in the DOCS system has been an
ongoing problem for at least a decade. While there have been a few dismissals over
the years, officers have rarely been terminated for sexual misconduct. In Ruth
Cassell=s experience, officers were generally transferred off the living units or
moved to other prison facilities. While, as noted above, several officers were
terminated and others transferred from Bayview in the early 1980s, they were
disciplined on grounds other than sexual misconduct.118

118

Interview, Ruth Cassell, Prisoners Legal Services, New York, April 19, 1994. According
to another attorney with whom we spoke, an officer at Taconic was fired in the late 1980s for
sexually assaulting a female prisoner. Her suit for damages was still pending. Although her
attorney had heard that the officer had assaulted other female prisoners, he was unable to see
the file because state law allows the presiding judge to decide if it contains any relevant
information, and in this case the judge determined that it did not. Telephone interviews,
Loren Glassman, attorney, June 16, 1994; February 12, 1996.

454

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

We were unable to locate any provision in DOCS policy indicating the
appropriate sanction for sexual contact with a prisoner,119 but our interviews with
DOCS indicate that the appropriate sanctions would be dismissal. Anthony
Annucci, DOCS counsel and deputy commissioner, told us that sexual relations with
prisoners will not be tolerated and that the department has terminated employees for
Amere letter writing.@120

119

The DOCS employee manual merely provides that employees shall not engage in
overfamiliar conduct with prisoners, but contains no table of disciplinary actions to
correspond to a violation of this provision. Article 8 of the collective bargaining agreement
between the corrections officers= union and the DOCS sets forth a range of disciplinary
remedies available, but likewise has no table. Article 8.2 lists the following disciplinary
sanctions Aloss of leave credits or other privilege, written reprimand, fine, suspension
without pay, reduction in grade, or dismissal from service.@
120

Telephone interview, Anthony Annucci, counsel, New York Department of Correctional
Services, February 9, 1995.

New York

455

Contrary to Annucci=s statement, it appears that even when reports are
filed, not enough is done to pursue the allegations and to punish the officer
responsible. According to a former DOCS employee,121 he and a colleague filed an
incident report on a corrections officer after they were approached by two female
prisoners who told them that the officer was making passes at them and that, during
count, while everyone else was locked in their rooms, he took two other prisoners
into the closet for sexual activity. The former employee pursued the allegation by
interviewing the two prisoners alleged to have been in the closet. Both, he said,
denied the incident because, he believed, they were getting favorable treatment.
Then he spoke to the corrections officer. In his words, AOnce I talked to him and
the women, I knew [it was true.]@ He reported the incident to a captain and filed an
incident report. But when he left the prison several months later, the officer was
still at his job and nothing had happened. According to the former employee, the
corrections officer had been investigated before for similar conduct and Ahad been
doing it for years.@ As a result, he told us, nonsecurity staff had grown disillusioned
with the procedure. They had ceased to file reports because of inaction on previous
reports. When he himself saw nothing was done, the former employee said he, too,
resisted pursuing other allegations. The prisoner impregnated by a guard at
Bayview in mid-1995 provides another example. Although fifteen prisoners filed
reports alleging that she was involved with a guard and that guard later admitted to
impregnating her, an earlier DOCS investigation found no evidence of
wrongdoing.122
According to DOCS, they sought dismissals for thirteen guards for sexual
misconduct in 1994 and 1995.123 Under the contract with the guards= union, all
dismissals must be approved by independent arbitrators. The arbitrators dismissed
four officers, suspended two, and placed one guard on six months probation.124 The
remaining five officers resigned in lieu of discipline. In the one case in which

121

Interview, New York, January 17, 1994.

122

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

123
Three officers at Albion, three at Bayview, five at Bedford Hills, and two officers at
Taconic. Letter from James B. Flateau, public information director, New York Department
of Correctional Services, to Human Rights Watch, September 25, 1996.
124

Ibid.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

DOCS requested a fine for a guard for sexual misconduct instead of dismissal, the
arbitrators issued a warning.125
As described above, in late 1995, DOCS referred an alleged rape of a
women prisoner by a guard, Shelbourne Reid, to the local district attorney, but in
that case there was physical evidence in addition to the prisoner=s testimony.126 The
prisoner had preserved Reid=s semen in a cooler and then presented it to a
lieutenant. The prison authorities did not contact the district attorney for
approximately three weeks, but once notified, the district attorney=s office spoke to
the woman several times and took pictures. Reid, who had just completed his posthire probation, admitted the sexual contact and was fired. According to Cassell,
Reid had allegedly raped another female prisoner, around the same time. However,
there was no physical evidence of this rape and the district attorney decided not to
prosecute. On December 13, 1995, Reid entered a plea for sex abuse of the first
degree with a sentence of five years= probation and designation as a sex offender. In
addition, he must participate in sex offender treatment. Both women received
protection orders from Reid.127

125

Ibid.

126

Interview, Ruth Cassell, Prisoners Legal Services, New York, February 16, 1996.

127

Telephone interview, Ruth Cassell, Prisoners Legal Services, April 9, 1996.

New York

457

Despite the Reid case, DOCS told Human Rights Watch, that they had not
referred any cases of sexual misconduct to local law enforcement for prosecution.
According to DOCS, it was determined by department staff that no criminal
wrongdoing had occurred in any of the cases, including the cases of the twelve
guards that DOCS sought to dismiss.128 Significantly, DOCS noted that as a result
of the 1996 law prohibiting all sexual contact between guards and prisoners, all
such Aincidents now will be referred to law enforcement authorities for criminal
prosecution.@129
Even officers accused of impregnating prisoners are seldom investigated
and punished, despite the possibility of using paternity tests to establish their guilt
or innocence. Cassell told us that in the cases of three pregnant women she has
represented, DOCS declined to take any disciplinary action against the officer.130 In
each case, she was told by the inspector general=s office that Athey could not fire the
guard unless they had proof@ that the officer fathered the child. According to
Cassell, the inspector general=s staff stated that a prisoner=s word was insufficient to
uphold disciplinary action against an officer; they need to conduct Atissue testing@
on the child. Yet, DOCS has repeatedly failed to conduct the necessary testing. In
two of the three cases, the women miscarried or did not carry to term and, according
to Cassell, AWhen the time came to do the test, they just didn=t do it.@131 Iris R. told
128

Ibid.

129

Ibid.

130
In two of the six cases, tissue testing was conducted and the correctional officers were
terminated. Disciplinary action is still pending in the latest case.
131

Interview, Ruth Cassell, Prisoners Legal Services, New York, April 19, 1994.

458

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

us that she sought an autopsy on the fetus but was told the fetus was lost. The
officer whom she alleged impregnated her was transferred to a men=s facility.
DOCS itself seems to be uncertain that it has the authority to obtain the
necessary physical evidence to conduct a paternity test. Superintendent Elaine Lord
told us that she did not believe she could require any employee to provide a blood
sample. She stated that only one of her officers had been dismissed based on a
paternity test and, in that case, he had voluntarily submitted a blood sample.132

132

Interview, Elaine Lord, superintendent, Bedford Hills Correctional Facility, June 22,
1994.

New York

459

The general failure to discipline officers is rooted, in large part, in the bias
against prisoner testimony. Our interviews with Lord and Annucci indicate that
another reason lies in a problem with the DOCS Department of Labor Relations,
which appears to favor heavily corrections officers in appeals and arbitrations.
Lord referred to a sexual assault that occurred at Bedford in the early 1980s, shortly
after she started at that facility. She told us that the officer was suspended from
DOCS and tried for allegedly raping a female prisoner. The officer asserted at his
trial that the liaison with the prisoner was consensual. He was convicted of a
misdemeanor offense. According to Lord, it then took two years of arbitration to
dismiss the officer from DOCS.133
She also referred to another officer who was seen by a sergeant and other
colleagues to be sexually harassing prisoners. The officer denied any misconduct,
and the case went to binding arbitration. He was suspended for approximately eight
months and found guilty of a minor offense. He lost one month=s salary but retained
his bid for the shift and unit he wanted. We believe, based on the time frame
provided, that this may be the same officer who harassed Nadine P. and Kathy T.
We received a letter in October 1994 from another prisoner on the unit indicating
that after the officer returned, his misconduct continued.
DOCS=s problems with removing abusive employees may be partially of its
own making. Union contracts with correctional officers do not proscribe sexual
harassment, a catchall term that would cover sexual contact with prisoners and the
use of degrading and sexualized language. A 1992 Governor=s Task Force on
Sexual Harassment recommended that all union contracts contain language
specifically prohibiting sexual harassment by employees, and make clear that acts of
sexual harassment constitute violations of the contract and grounds for discipline.134
DOCS has not acted on these recommendations.

133

134

Ibid.

Governor=s Task Force on Sexual Harassment, AInterim Progress Report: December
1992,@ Recommendation 31 (Albany: State of New York - Division for Women, 1992).

460

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
RECOMMENDATIONS

I.
A.

Prohibiting Sex in Custody
The New York State district attorney should strictly enforce Section
130.05(3)(e) of the New York Penal Code prohibiting sexual contact with
a person in custody. The consent of the victim, which is not a legal
defense to a prosecution under this section, should not be a de facto bar to
prosecution. Human Rights Watch would emphasize, however, that the
offense of prison sexual abuse is predicated on the abuse of custodial
authority, not on distinctions between oral, anal, and vaginal sex that are
entirely irrelevant to this key issue. For that reason, we recommend
against prosecution under the New York sodomy law.

B.

DOCS should develop a specific sexual misconduct policy for its guards,
along with specific disciplinary sanctions for violations of such a policy,
including immediate dismissal for sexual contact with a prisoner.

C.

DOCS should amend Rule 101 of the prisoner rulebook to ensure that it
does not punish women prisoners for sexual relations with corrections
employees under any circumstances. Even in those instances where the
evidence overcomes the presumption of some form of coercive influence
on the prisoner, prison authorities should refrain from punishing her.
Whatever penological interests might be served by such sanctions are
outweighed by the deterrent effect that such punishments would have on
prisoners= willingness to report custodial sexual abuse.

D.

DOCS should include in its employee manual a requirement that prisoners
be treated humanely and be free from torture and cruel, inhuman or
degrading treatment, to comply with U.S. obligations under international
law, particularly the International Covenant on Civil and Political Rights
and the Torture Convention.

E.

DOCS should integrate into the union contract a provision barring sexually
abusive, profane or degrading language, sexual harassment, or sexual
misconduct toward prisoners. Violations of this provision should
constitute grounds for discipline.

II.

Safeguarding Prisoners Impregnated by Guards

New York

461

A.

DOCS should refrain from administratively segregating pregnant
prisoners, unless they expressly request it.

B.

DOCS should ensure that no women prisoners impregnated as a result of
sexual misconduct are pressured in any way to undergo an abortion.

C.

DOCS should ensure that pregnant prisoners receive timely and adequate
medical care, and that medical treatment recommended by physicians is
provided as prescribed. Medical care should include professional
psychiatric counseling for prisoners who are impregnated as a
consequence of rape or sexual abuse or to others who request such
assistance. Prisoners also should receive neutral counseling on the options
available to them. Administrative segregation should not preclude the
provision of adequate medical and hygienic requirements for a safe
pregnancy.

D.

DOCS should reexamine its guidelines and practices for accepting women
into the nursery program to ensure that the identity of a child=s father is not
grounds for exclusion.

III.

Prohibiting Abusive and Degrading Language
DOCS should vigorously enforce the prohibition in the DOCS employee
manual against indecent, profane or abusive language or gestures. Any violation of
this provision by corrections employees should constitute a disciplinary offense.
IV.
A.

Protecting Privacy: The Need for a Policy
DOCS should establish a policy to protect the privacy of women prisoners
consistent with several federal court decisions recognizing that prisoners
have a constitutionally protected right to privacy. Such a policy should
include, among other things:
1.
a requirement that male officers announce their presence before
entering a women=s housing unit;
2.
permission for prisoners to cover their cell windows for limited
intervals while changing or using the toilet in their cells; and
3.
a restriction that showers and toilets be searched by female
officers only.

B.

DOCS should enforce its policy that strip searches and strip frisks must be
conducted by corrections employees of the same sex as the prisoner,

462

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
except in emergency conditions. Even in emergencies, DOCS should use
female officers as much as possible. For this policy to be meaningful,
DOCS should ensure that male corrections officials are not present during
strip searches or strip frisks, and also not in a position to witness or
observe the search. In the event that a strip search is videotaped, the tapes
should be reviewed solely by female officers.

C.

DOCS should stipulate in its policy and procedure for conducting patfrisks that they be conducted by female officers, whenever possible. All
officers should be trained in the appropriate conduct of such frisks and in
the disciplinary sanctions associated with noncompliance. Prisoners who
either pull away during offensive pat-searches, or who request that
searches be administered by female officers, should not automatically be
subject to disciplinary action.

V.

Ensuring an Effective Remedy
Grievances
DOCS should investigate fully all grievances that allege violations of
DOCS policies to ensure that these policies are properly implemented, and
that prisoners= rights secured by the policies are safeguarded.

A.

B.

DOCS should ensure that all prisoners are fully informed of their right to
file grievances and the method for doing so.

C.

DOCS should also introduce protections to ensure prompt and impartial
investigations into complaints of sexual misconduct by corrections
employees. The grievance procedure should, among other things, protect
the confidentiality of the complainant and witnesses while the implicated
officer is still in a contact position over them; ensure that prisoner
testimony is give due weight; and prohibit the implicated officer from
conducting the investigation.

A.

Investigative Procedures
DOCS should promulgate a written, public procedure for conducting
investigations into sexual misconduct. The investigative procedure
should, at a minimum:
1.
specify the circumstances necessary to initiate an investigation;
2.
provide a special investigator trained to handle complaints with
the necessary human and material resources to do so;

New York

463

3.

set forth a clear structure and time frame for conducting
investigations;
ensure to the fullest extent possible the confidentiality for the
complainant and witness;
protect complainants and witnesses from retaliation and
harassment; and
guarantee accountability to outside monitors. The complainant=s
legal counsel should be provided a written record, upon request,
of the investigation, including all statements made by the
complainant and witnesses.

4.
5.
6.

B.

DOCS should require all corrections employees to report allegations
promptly, including rumors, of sexual misconduct or other overfamiliar
conduct by corrections employees to the prison warden or investigator.
Failure to do so should be a punishable offense.

C.

DOCS should develop clear, published guidelines to govern the status of
accused corrections employees during an investigation. Officers alleged to
have committed rape, sexual assault or criminal sexual contact should be
assigned to a noncontact position or suspended until the circumstances are
clarified and the investigation is complete. Violations of restrictions on
their movements should be additional grounds for discipline.

D.

DOCS should not, under any circumstances, assign implicated officers to
investigate allegations of their own misconduct. While Human Rights
Watch does not oppose the use of former corrections officers as
investigators per se, the DOCS and the inspector general should ensure
that those hired are not assigned to investigate former colleagues or
prisoners formerly under their supervision.

VI.
A.

Preventing Retaliation Against Complainants
DOCS should authorize the use of administrative segregation during an
investigation only at the prisoner=s explicit request. Since a prisoner placed
in administrative segregation for her own protection has not committed a
disciplinary offense, she should retain the rights of the general population
(e.g., telephone calls, visits, access to recreation, etc.). She should be
returned to the general population when she wishes to do so. DOCS
should train employees assigned to segregated housing units regarding
such provisions.

464

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

B.

DOCS should investigate promptly and thoroughly all reports of
harassment or retaliation against complainants, and discipline guilty
corrections employees appropriately. DOCS should make every effort to
ensure the confidentiality of complainants and witnesses. Their names
should not be given to an accused officer while he or she remains in a
contact position with the prisoner or is assigned to a facility where the
complainant resides. DOCS should also prevent the prisoner=s name from
being revealed generally within the facility.

C.

DOCS should ensure that transfers to other facilities are not used
punitively to relocate prisoners who raise complaints about ill-treatment or
conditions of incarceration.

VII.
A.

Ensuring Discipline
DOCS should create clear guidelines on disciplinary action against
abusive corrections employees. These guidelines should state explicitly
that an employee found to be guilty of rape, sexual assault, or criminal
sexual contact will be dismissed. The findings of the inspector general
should be binding on Labor Relations and should obligate Labor Relations
to take the disciplinary action appropriate to the employee=s misconduct.

B.

DOCS should publish, at least quarterly, a report on disciplinary actions
taken against corrections employees responsible for misconduct or abuse.
If necessary, the reports can omit the names of employees, but should
include dates, locations, and other relevant details about the reported
incidents and the types of punishment applied.

C.

DOCS should refer any allegations of sexual contact between guards and
prisoners to the local police.

VIII.
A.

Hiring and Training Corrections Employees
DOCS should review its screening procedures for applicants for
corrections positions. Background checks should be completed before
new employees are sent into correctional facilities. In no case should
DOCS rehire an employee who has been convicted of an offense related to
sexual misconduct in custody or who resigned in order to avoid such a
charge.

New York

465

B.

DOCS should implement, as soon as possible, comprehensive and
mandatory training for all corrections employees on particular aspects of
working with incarcerated women before they start their assignments in
women=s prisons. Corrections employees currently working in the
women=s prisons should receive the same training. Such training should
include, among other things:
1.
a general profile of female prisoners and their potential
vulnerability to sexual misconduct.
2.
DOCS policies on privacy and the prohibition on sexual
relations, degrading language, and other sexualized or degrading
behavior toward incarcerated women and the disciplinary or
criminal sanctions associated with these policies.
3.
appropriate methods for conducting pat-searches, strip searches
and searches of women=s cells. DOCS should collaborate with
local nongovernmental organizations experienced in issues such
as rape and sexual assault.

IX.
A.

Educating Prisoners
DOCS should advise incarcerated women, as part of their orientation to
the corrections system, as well as prisoners already serving their sentences,
of protections regarding sexual misconduct, including a clear definition of
sexual misconduct, including that corrections officers are strictly
prohibited from having any sexual contact with prisoners. The orientation
should also include a thorough review of departmental policies regarding
privacy and humane treatment; the procedures for reporting and
investigating sexual misconduct and the departmental and criminal law
sanctions associated with it.

B.

DOCS should further clarify to prisoners that grievances regarding sexual
misconduct may be filed directly and confidentially with the prison
superintendent or prison investigator.
1.
Prisoners should be informed about the issues that may be dealt
with through the grievance procedure, with particular emphasis
on instances of sexual misconduct; the location of grievance
forms in the prison library or other neutral place; bypass
mechanisms available for reporting sexual misconduct; and the
recourse available when corrections officers fail to respond.

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons
2.

3.

Prisoners should be made aware that complaints may also be
resolved through the investigation procedure and/or the
independent review board.
DOCS should acquaint prisoners with their rights under
international human rights treaties ratified by the U.S. and under
U.S. law.

C.
X.
A.

The above information should be included in the prisoner handbook.
Allocating Supplies
DOCS should reexamine its allocation of basic personal hygiene items,
including sanitary napkins, to prisoners to ensure that incarcerated women
receive sufficient and appropriate supplies. These items should be
available at a neutral location.

B.

The New York legislature should enact the proposed bill permitting
incarcerated women to have access to sanitary napkins on an as needed
basis.

XI.

Ensuring Accountability to Outside Monitors
DOCS should provide timely and full written information about an
investigation to the prisoner and the people she designates, such as her attorney and
her family, upon their request.

A.

B.

Creating an Independent Review Board
The New York Legislature should create a fully empowered and
independent review board to investigate, among other things, complaints
of sexual misconduct that are not satisfactorily resolved by the grievance
or investigative mechanisms. The review board should have the authority
to turn over evidence of wrongdoing for criminal investigation and
prosecution. The board should also be able to recommend remedial
actionCincluding temporary reassignment or suspension of the accusedCto
end abuses or other problems uncovered during an investigation.
The review board should develop a system whereby the records of
corrections employees who have been the subject of repeated complaints
are reviewed by the appropriate authorities.

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C.

467

The review board should provide a toll-free telephone number that
prisoners can use to contact investigators or to file anonymous complaints
of employee misconduct, including retaliation against complainants.

APPENDIX
STANDARD MINIMUM RULES FOR THE
TREATMENT OF PRISONERS
Adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C.
res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957),
amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988
(1977).
1. The following rules are not intended to describe in detail a model system of penal
institutions. They seek only, on the basis of the general consensus of contemporary
thought and the essential elements of the most adequate systems of today, to set out
what is generally accepted as being good principle and practice in the treatment of
prisoners and the management of institutions.
2. In view of the great variety of legal, social, economic and geographical
conditions of the world, it is evident that not all of the rules are capable of
application in all places and at all times. They should, however, serve to stimulate a
constant endeavor to overcome practical difficulties in the way of their application,
in the knowledge that they represent, as a whole, the minimum conditions which are
accepted as suitable by the United Nations.
3. On the other hand, the rules cover a field in which thought is constantly
developing. They are not intended to preclude experiment and practices, provided
these are in harmony with the principles and seek to further the purposes which
derive from the text of the rules as a whole. It will always be justifiable for the
central prison administration to authorize departures from the rules in this spirit.
4. (1) Part I of the rules covers the general management of institutions, and is
applicable to all categories of prisoners, criminal or civil, untried or convicted,
including prisoners subject to "security measures" or corrective measures ordered
by the judge.
(2) Part II contains rules applicable only to the special categories dealt with in each
section. Nevertheless, the rules under section A, applicable to prisoners under
sentence, shall be equally applicable to categories of prisoners dealt with in sections

468

B, C and D, provided they do not conflict with the rules governing those categories
and are for their benefit.
5. (1) The rules do not seek to regulate the management of institutions set aside for
young persons such as Borstal institutions or correctional schools, but in general
part I would be equally applicable in such institutions.
(2) The category of young prisoners should include at least all young persons who
come within the jurisdiction of juvenile courts. As a rule, such young persons
should not be sentenced to imprisonment.

PART I: RULES OF GENERAL APPLICATION
Basic principle
6. (1) The following rules shall be applied impartially. There shall be no
discrimination on grounds of race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral
precepts of the group to which a prisoner belongs.
Register
7. (1) In every place where persons are imprisoned there shall be kept a bound
registration book with numbered pages in which shall be entered in respect of each
prisoner received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.
(2) No person shall be received in an institution without a valid commitment order
of which the details shall have been previously entered in the register. Separation of
categories
8. The different categories of prisoners shall be kept in separate institutions or parts
of institutions taking account of their sex, age, criminal record, the legal reason for
their detention and the necessities of their treatment. Thus,

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(a) Men and women shall so far as possible be detained in separate
institutions; in an institution which receives both men and women the
whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept
separate from persons imprisoned by reason of a criminal offense;
(d) Young prisoners shall be kept separate from adults.

Accommodation
9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner
shall occupy by night a cell or room by himself. If for special reasons, such as
temporary overcrowding, it becomes necessary for the central prison administration
to make an exception to this rule, it is not desirable to have two prisoners in a cell or
room.
(2) Where dormitories are used, they shall be occupied by prisoners carefully
selected as being suitable to associate with one another in those conditions. There
shall be regular supervision by night, in keeping with the nature of the institution.
10. All accommodation provided for the use of prisoners and in particular all
sleeping accommodation shall meet all requirements of health, due regard being
paid to climatic conditions and particularly to cubic content of air, minimum floor
space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or
work by natural light, and shall be so constructed that they can allow the
entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or
work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply
with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every
prisoner may be enabled and required to have a bath or shower, at a temperature
suitable to the climate, as frequently as necessary for general hygiene according to
season and geographical region, but at least once a week in a temperate climate.

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14. All pans of an institution regularly used by prisoners shall be properly
maintained and kept scrupulously clean at all times.

Personal hygiene
15. Prisoners shall be required to keep their persons clean, and to this end they shall
be provided with water and with such toilet articles as are necessary for health and
cleanliness.
16. In order that prisoners may maintain a good appearance compatible with their
self-respect, facilities shall be provided for the proper care of the hair and beard,
and men shall be enabled to shave regularly.
Clothing and bedding
17. (1) Every prisoner who is not allowed to wear his own clothing shall be
provided with an outfit of clothing suitable for the climate and adequate to keep him
in good health. Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in proper condition. Underclothing shall be
changed and washed as often as necessary for the maintenance of hygiene.
(3) In exceptional circumstances, whenever a prisoner is removed outside the
institution for an authorized purpose, he shall be allowed to wear his own clothing
or other inconspicuous clothing.
18. If prisoners are allowed to wear their own clothing, arrangements shall be made
on their admission to the institution to ensure that it shall be clean and fit for use.
19. Every prisoner shall, in accordance with local or national standards, be provided
with a separate bed, and with separate and sufficient bedding which shall be clean
when issued, kept in good order and changed often enough to ensure its cleanliness.
Food
20. (1) Every prisoner shall be provided by the administration at the usual hours
with food of nutritional value adequate for health and strength, of wholesome
quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.

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Exercise and sport
21. (1) Every prisoner who is not employed in outdoor work shall have at least one
hour of suitable exercise in the open air daily if the weather permits.
(2) Young prisoners, and others of suitable age and physique, shall receive physical
and recreational training during the period of exercise. To this end space,
installations and equipment should be provided.
Medical services
22. (1) At every institution there shall be available the services of at least one
qualified medical officer who should have some knowledge of psychiatry. The
medical services should be organized in close relationship to the general health
administration of the community or nation. They shall include a psychiatric service
for the diagnosis and, in proper cases, the treatment of states of mental abnormality.
(2) Sick prisoners who require specialist treatment shall be transferred to
specialized institutions or to civil hospitals. Where hospital facilities are provided in
an institution, their equipment, furnishings and pharmaceutical supplies shall be
proper for the medical care and treatment of sick prisoners, and there shall be a staff
of suitable trained officers.
(3) The services of a qualified dental officer shall be available to every prisoner.
23. (1) In women's institutions there shall be special accommodation for all
necessary pre-natal and post-natal care and treatment. Arrangements shall be made
wherever practicable for children to be torn in a hospital outside the institution. If a
child is born in prison, this fact shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain in the institution with their
mothers, provision shall be made for a nursery staffed by qualified persons, where
the infants shall be placed when they are not in the care of their mothers.
24. The medical officer shall see and examine every prisoner as soon as possible
after his admission and thereafter as necessary, with a view particularly to the
discovery of physical or mental illness and the taking of all necessary measures; the
segregation of prisoners suspected of infectious or contagious conditions; the noting
of physical or mental defects which might hamper rehabilitation, and the
determination of the physical capacity of every prisoner for work.

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25. (1) The medical officer shall have the care of the physical and mental health of
the prisoners and should daily see all sick prisoners, all who complain of illness,
and any prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a
prisoner's physical or mental health has been or will be injuriously affected by
continued imprisonment or by any condition of imprisonment.
26. ( I ) The medical officer shall regularly inspect and advise the director upon:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, heating, lighting and ventilation of the institution;
(d) The suitability and cleanliness of the prisoners' clothing and bedding;
(e) The observance of the rules concerning physical education and sports,
in cases where there is no technical personnel in charge of these activities.
(2) The director shall take into consideration the reports and advice that the medical
officer submits according to rules 25 (2) and 26 and, in case he concurs with the
recommendations made, shall take immediate steps to give effect to those
recommendations; if they are not within his competence or if he does not concur
with them, he shall immediately submit his own report and the advice of the medical
officer to higher authority.
Discipline and punishment
27. Discipline and order shall be maintained with firmness, but with no more
restriction than is necessary for safe custody and well-ordered community life.
28. (1) No prisoner shall be employed, in the service of the institution, in any
disciplinary capacity.
(2) This rule shall not, however, impede the proper functioning of systems based on
self-government, under which specified social, educational or sports activities or
responsibilities are entrusted, under supervision, to prisoners who are formed into
groups for the purposes of treatment.
29. The following shall always be determined by the law or by the regulation of the
competent administrative authority:
(a) Conduct constituting a disciplinary offense;
(b) The types and duration of punishment which may be inflicted;

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(c) The authority competent to impose such punishment.

30. (1) No prisoner shall be punished except in accordance with the terms of such
law or regulation, and never twice for the same offense.
(2) No prisoner shall be punished unless he has been informed of the offense
alleged against him and given a proper opportunity of presenting his defense. The
competent authority shall conduct a thorough examination of the case.
(3) Where necessary and practicable the prisoner shall be allowed to make his
defense through an interpreter.
31. Corporal punishment, punishment by placing in a dark cell, and all cruel,
inhuman or degrading punishments shall be completely prohibited as punishments
for disciplinary offenses.
32. (1) Punishment by close confinement or reduction of diet shall never be inflicted
unless the medical officer has examined the prisoner and certified in writing that he
is fit to sustain it.
(2) The same shall apply to any other punishment that may be prejudicial to the
physical or mental health of a prisoner. In no case may such punishment be contrary
to or depart from the principle stated in rule 31.
(3) The medical officer shall visit daily prisoners undergoing such punishments and
shall advise the director if he considers the termination or alteration of the
punishment necessary on grounds of physical or mental health.
Instruments of restraint
33. Instruments of restraint, such as handcuffs, chains, irons and strait-jacket, shall
never be applied as a punishment. Furthermore, chains or irons shall not be used as
restraints. Other instruments of restraint shall not be used except in the following
circumstances:
(a) As a precaution against escape during a transfer, provided that they
shall be removed when the prisoner appears before a judicial or
administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to
prevent a prisoner from injuring himself or others or from damaging

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475

property; in such instances the director shall at once consult the medical
officer and report to the higher administrative authority.
34. The patterns and manner of use of instruments of restraint shall be decided by
the central prison administration. Such instruments must not be applied for any
longer time than is strictly necessary.
Information to and complaints by prisoners
35. (1) Every prisoner on admission shall be provided with written information
about the regulations governing the treatment of prisoners of his category, the
disciplinary requirements of the institution, the authorized methods of seeking
information and making complaints, and all such other matters as are necessary to
enable him to understand both his rights and his obligations and to adapt himself to
the life of the institution.
(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him
orally.
36. (1) Every prisoner shall have the opportunity each week day of making requests
or complaints to the director of the institution or the officer authorized to represent
him.
(2) It shall be possible to make requests or complaints to the inspector of prisons
during his inspection. The prisoner shall have the opportunity to talk to the
inspector or to any other inspecting officer without the director or other members of
the staff being present.
(3) Every prisoner shall be allowed to make a request or complaint, without
censorship as to substance but in proper form, to the central prison administration,
the judicial authority or other proper authorities through approved channels.
(4) Unless it is evidently frivolous or groundless, every request or complaint shall
be promptly dealt with and replied to without undue delay.
Contact with the outside world
37. Prisoners shall be allowed under necessary supervision to communicate with
their family and reputable friends at regular intervals, both by correspondence and
by receiving visits.

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38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to
communicate with the diplomatic and consular representatives of the State to which
they belong. (2) Prisoners who are nationals of States without diplomatic or
consular representation in the country and refugees or stateless persons shall be
allowed similar facilities to communicate with the diplomatic representative of the
State which takes charge of their interests or any national or international authority
whose task it is to protect such persons.
39. Prisoners shall be kept informed regularly of the more important items of news
by the reading of newspapers, periodicals or special institutional publications, by
hearing wireless transmissions, by lectures or by any similar means as authorized or
controlled by the administration.
Books
40. Every institution shall have a library for the use of all categories of prisoners,
adequately stocked with both recreational and instructional books, and prisoners
shall be encouraged to make full use of it.
Religion
41. (1) If the institution contains a sufficient number of prisoners of the same
religion, a qualified representative of that religion shall be appointed or approved. If
the number of prisoners justifies it and conditions permit, the arrangement should be
on a full-time basis.
(2) A qualified representative appointed or approved under paragraph (1) shall be
allowed to hold regular services and to pay pastoral visits in private to prisoners of
his religion at proper times.
(3) Access to a qualified representative of any religion shall not be refused to any
prisoner. On the other hand, if any prisoner should object to a visit of any religious
representative, his attitude shall be fully respected.
42. So far as practicable, every prisoner shall be allowed to satisfy the needs of his
religious life by attending the services provided in the institution and having in his
possession the books of religious observance and instruction of his denomination.
Retention of prisoners' property
43. (1) All money, valuables, clothing and other effects belonging to a prisoner
which under the regulations of the institution he is not allowed to retain shall on his

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477

admission to the institution be placed in safe custody. An inventory thereof shall be
signed by the prisoner. Steps shall be taken to keep them in good condition.
(2) On the release of the prisoner all such articles and money shall be returned to
him except in so far as he has been authorized to spend money or send any such
property out of the institution, or it has been found necessary on hygienic grounds to
destroy any article of clothing. The prisoner shall sign a receipt for the articles and
money returned to him.
(3) Any money or effects received for a prisoner from outside shall be treated in the
same way.
(4) If a prisoner brings in any drugs or medicine, the medical officer shall decide
what use shall be made of them.
Notification of death, illness, transfer, etc.
44. (1) Upon the death or serious illness of, or serious injury to a prisoner, or his
removal to an institution for the treatment of mental affections, the director shall at
once inform the spouse, if the prisoner is married, or the nearest relative and shall in
any event inform any other person previously designated by the prisoner.
(2) A prisoner shall be informed at once of the death or serious illness of any near
relative. In case of the critical illness of a near relative, the prisoner should be
authorized, whenever circumstances allow, to go to his bedside either under escort
or alone.
(3) Every prisoner shall have the right to inform at once his family of his
imprisonment or his transfer to another institution.
Removal of prisoners
45. (1) When the prisoners are being removed to or from an institution, they shall be
exposed to public view as little as possible, and proper safeguards shall be adopted
to protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances with inadequate ventilation or light,
or in any way which would subject them to unnecessary physical hardship, shall be
prohibited.

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(3) The transport of prisoners shall be carried out at the expense of the
administration and equal conditions shall obtain for all of them.

Institutional personnel
46. (1) The prison administration, shall provide for the careful selection of every
grade of the personnel, since it is on their integrity, humanity, professional capacity
and personal suitability for the work that the proper administration of the
institutions depends.
(2) The prison administration shall constantly seek to awaken and maintain in the
minds both of the personnel and of the public the conviction that this work is a
social service of great importance, and to this end all appropriate means of
informing the public should be used.
(3) To secure the foregoing ends, personnel shall be appointed on a full-time basis
as professional prison officers and have civil service status with security of tenure
subject only to good conduct, efficiency and physical fitness. Salaries shall be
adequate to attract and retain suitable men and women; employment benefits and
conditions of service shall be favorable in view of the exacting nature of the work.
47. (1) The personnel shall possess an adequate standard of education and
intelligence.
(2) Before entering on duty, the personnel shall be given a course of training in their
general and specific duties and be required to pass theoretical and practical tests.
(3) After entering on duty and during their career, the personnel shall maintain and
improve their knowledge and professional capacity by attending courses of
in-service training to be organized at suitable intervals.
48. All members of the personnel shall at all times so conduct themselves and
perform their duties as to influence the prisoners for good by their example and to
command their respect.
49. (1) So far as possible, the personnel shall include a sufficient number of
specialists such as psychiatrists, psychologists, social workers, teachers and trade
instructors.

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479

(2) The services of social workers, teachers and trade instructors shall be secured on
a permanent basis, without thereby excluding part-time or voluntary workers.
50. (1) The director of an institution should be adequately qualified for his task by
character, administrative ability, suitable training and experience.
(2) He shall devote his entire time to his official duties and shall not be appointed
on a part-time basis.
(3) He shall reside on the premises of the institution or in its immediate vicinity. (4)
When two or more institutions are under the authority of one director, he shall visit
each of them at frequent intervals. A responsible resident official shall be in charge
of each of these institutions.
51. (1) The director, his deputy, and the majority of the other personnel of the
institution shall be able to speak the language of the greatest number of prisoners, or
a language understood by the greatest number of them.
(2) Whenever necessary, the services of an interpreter shall be used.
52. (1) In institutions which are large enough to require the services of one or more
full-time medical officers, at least one of them shall reside on the premises of the
institution or in its immediate vicinity.
(2) In other institutions the medical officer shall visit daily and shall reside near
enough to be able to attend without delay in cases of urgency.
53. (1) In an institution for both men and women, the part of the institution set aside
for women shall be under the authority of a responsible woman officer who shall
have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for
women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This
does not, however, preclude male members of the staff, particularly doctors and
teachers, from carrying out their professional duties in institutions or parts of
institutions set aside for women.

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54. (1) Officers of the institutions shall not, in their relations with the prisoners, use
force except in self-defense or in cases of attempted escape, or active or passive
physical resistance to an order based on law or regulations. Officers who have
recourse to force must use no more than is strictly necessary and must report the
incident immediately to the director of the institution.
(2) Prison officers shall be given special physical training to enable them to restrain
aggressive prisoners.
(3) Except in special circumstances, staff performing duties which bring them into
direct contact with prisoners should not be armed. Furthermore, staff should in no
circumstances be provided with arms unless they have been trained in their use.
Inspection
55. There shall be a regular inspection of penal institutions and services by qualified
and experienced inspectors appointed by a competent authority. Their task shall be
in particular to ensure that these institutions are administered in accordance with
existing laws and regulations and with a view to bringing about the objectives of
penal and correctional services.

PART II: RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners under Sentence
Guiding principles
56. The guiding principles hereafter are intended to show the spirit in which penal
institutions should be administered and the purposes at which they should aim, in
accordance with the declaration made under Preliminary Observation I of the
present text.
57. Imprisonment and other measures which result in cutting off an offender from
the outside world are afflictive by the very fact of taking from the person the right
of self-determination by depriving him of his liberty. Therefore the prison system
shall not, except as incidental to justifiable segregation or the maintenance of
discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar
measure deprivative of liberty is ultimately to protect society against crime. This
end can only be achieved if the period of imprisonment is used to ensure, so far as

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possible, that upon his return to society the offender is not only willing but able to
lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral,
spiritual and other forces and forms of assistance which are appropriate and
available, and should seek to apply them according to the individual treatment needs
of the prisoners.
60. (1) The regime of the institution should seek to minimize any differences
between prison life and life at liberty which tend to lessen the responsibility of the
prisoners or the respect due to their dignity as human beings.
(2) Before the completion of the sentence, it is desirable that the necessary steps be
taken to ensure for the prisoner a gradual return to life in society. This aim may be
achieved, depending on the case, by a pre-release regime organized in the same
institution or in another appropriate institution, or by release on trial under some
kind of supervision which must not be entrusted to the police but should be
combined with effective social aid. 61. The treatment of prisoners should emphasize
not their exclusion from the community, but their continuing part in it. Community
agencies should, therefore, be enlisted wherever possible to assist the staff of the
institution in the task of social rehabilitation of the prisoners. There should be in
connection with every institution social workers charged with the duty of
maintaining and improving all desirable relations of a prisoner with his family and
with valuable social agencies. Steps should be taken to safeguard, to the maximum
extent compatible with the law and the sentence, the rights relating to civil interests,
social security rights and other social benefits of prisoners.
62. The medical services of the institution shall seek to detect and shall treat any
physical or mental illnesses or defects which may hamper a prisoner's rehabilitation.
All necessary medical, surgical and psychiatric services shall be provided to that
end.
63. (1) The fulfilment of these principles requires individualization of treatment and
for this purpose a flexible system of classifying prisoners in groups; it is therefore
desirable that such groups should be distributed in separate institutions suitable for
the treatment of each group.
(2) These institutions need not provide the same degree of security for every group.
It is desirable to provide varying degrees of security according to the needs of

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different groups. Open institutions, by the very fact that they provide no physical
security against escape but rely on the self-discipline of the inmates, provide the
conditions most favorable to rehabilitation for carefully selected prisoners.
(3) It is desirable that the number of prisoners in closed institutions should not be so
large that the individualization of treatment is hindered. In some countries it is
considered that the population of such institutions should not exceed five hundred.
In open institutions the population should be as small as possible.
(4) On the other hand, it is undesirable to maintain prisons which are so small that
proper facilities cannot be provided.
64. The duty of society does not end with a prisoner's release. There should,
therefore, be governmental or private agencies capable of lending the released
prisoner efficient after-care directed towards the lessening of prejudice against him
and towards his social rehabilitation.
Treatment
65. The treatment of persons sentenced to imprisonment or a similar measure shall
have as its purpose, so far as the length of the sentence permits, to establish in them
the will to lead law-abiding and self-supporting lives after their release and to fit
them to do so. The treatment shall be such as will encourage their self-respect and
develop their sense of responsibility.
66. (1) To these ends, all appropriate means shall be used, including religious care
in the countries where this is possible, education, vocational guidance and training,
social casework, employment counseling, physical development and strengthening
of moral character, in accordance with the individual needs of each prisoner, taking
account of his social and criminal history, his physical and mental capacities and
aptitudes, his personal temperament, the length of his sentence and his prospects
after release.
(2) For every prisoner with a sentence of suitable length, the director shall receive,
as soon as possible after his admission, full reports on all the matters referred to in
the foregoing paragraph. Such reports shall always include a report by a medical
officer, wherever possible qualified in psychiatry, on the physical and mental
condition of the prisoner.

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(3) The reports and other relevant documents shall be placed in an individual file.
This file shall be kept up to date and classified in such a way that it can be consulted
by the responsible personnel whenever the need arises.

Classification and individualization
67. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their
criminal records or bad characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment
with a view to their social rehabilitation.
68. So far as possible separate institutions or separate sections of an institution shall
be used for the treatment of the different classes of prisoners.
69. As soon as possible after admission and after a study of the personality of each
prisoner with a sentence of suitable length, a programme of treatment shall be
prepared for him in the light of the knowledge obtained about his individual needs,
his capacities and dispositions.
Privileges
70. Systems of privileges appropriate for the different classes of prisoners and the
different methods of treatment shall be established at every institution, in order to
encourage good conduct, develop a sense of responsibility and secure the interest
and co-operation of the prisoners in their treatment.
Work
71. (1) Prison labor must not be of an afflictive nature.
(2) All prisoners under sentence shall be required to work, subject to their physical
and mental fitness as determined by the medical officer.
(3) Sufficient work of a useful nature shall be provided to keep prisoners actively
employed for a normal working day.
(4) So far as possible the work provided shall be such as will maintain or increase
the prisoners, ability to earn an honest living after release.

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(5) Vocational training in useful trades shall be provided for prisoners able to profit
thereby and especially for young prisoners.
(6) Within the limits compatible with proper vocational selection and with the
requirements of institutional administration and discipline, the prisoners shall be
able to choose the type of work they wish to perform.
72. (1) The organization and methods of work in the institutions shall resemble as
closely as possible those of similar work outside institutions, so as to prepare
prisoners for the conditions of normal occupational life.
(2) The interests of the prisoners and of their vocational training, however, must not
be subordinated to the purpose of making a financial profit from an industry in the
institution.
73. (1) Preferably institutional industries and farms should be operated directly by
the administration and not by private contractors.
(2) Where prisoners are employed in work not controlled by the administration, they
shall always be under the supervision of the institution's personnel. Unless the work
is for other departments of the government the full normal wages for such work
shall be paid to the administration by the persons to whom the labor is supplied,
account being taken of the output of the prisoners.
74. (1) The precautions laid down to protect the safety and health of free workmen
shall be equally observed in institutions.
(2) Provision shall be made to indemnify prisoners against industrial injury,
including occupational disease, on terms not less favorable than those extended by
law to free workmen.
75. (1) The maximum daily and weekly working hours of the prisoners shall be
fixed by law or by administrative regulation, taking into account local rules or
custom in regard to the employment of free workmen.
(2) The hours so fixed shall leave one rest day a week and sufficient time for
education and other activities required as part of the treatment and rehabilitation of
the prisoners.
76. (1) There shall be a system of equitable remuneration of the work of prisoners.

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(2) Under the system prisoners shall be allowed to spend at least a part of their
earnings on approved articles for their own use and to send a part of their earnings
to their family.
(3) The system should also provide that a part of the earnings should be set aside by
the administration so as to constitute a savings fund to be handed over to the
prisoner on his release.
Education and recreation
77. (1) Provision shall be made for the further education of all prisoners capable of
profiting thereby, including religious instruction in the countries where this is
possible. The education of illiterates and young prisoners shall be compulsory and
special attention shall be paid to it by the administration.
(2) So far as practicable, the education of prisoners shall be integrated with the
educational system of the country so that after their release they may continue their
education without difficulty.
78. Recreational and cultural activities shall be provided in all institutions for the
benefit of the mental and physical health of prisoners.
Social relations and after-care
79. Special attention shall be paid to the maintenance and improvement of such
relations between a prisoner and his family as are desirable in the best interests of
both.
80. From the beginning of a prisoner's sentence consideration shall be given to his
future after release and he shall be encouraged and assisted to maintain or establish
such relations with persons or agencies outside the institution as may promote the
best interests of his family and his own social rehabilitation.
81. (1) Services and agencies, governmental or otherwise, which assist released
prisoners to re-establish themselves in society shall ensure, so far as is possible and
necessary, that released prisoners be provided with appropriate documents and
identification papers, have suitable homes and work to go to, are suitably and
adequately clothed having regard to the climate and season, and have sufficient
means to reach their destination and maintain themselves in the period immediately
following their release.

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(2) The approved representatives of such agencies shall have all necessary access to
the institution and to prisoners and shall be taken into consultation as to the future
of a prisoner from the beginning of his sentence.
(3) It is desirable that the activities of such agencies shall be centralized or
coordinated as far as possible in order to secure the best use of their efforts.
B. Insane and Mentally Abnormal Prisoners
82. (1) Persons who are found to be insane shall not be detained in prisons and
arrangements shall be made to remove them to mental institutions as soon as
possible.
(2) Prisoners who suffer from other mental diseases or abnormalities shall be
observed and treated in specialized institutions under medical management.
(3) During their stay in a prison, such prisoners shall be placed under the special
supervision of a medical officer.
(4) The medical or psychiatric service of the penal institutions shall provide for the
psychiatric treatment of all other prisoners who are in need of such treatment.
83. It is desirable that steps should be taken, by arrangement with the appropriate
agencies, to ensure if necessary the continuation of psychiatric treatment after
release and the provision of social-psychiatric after-care.
C. Prisoners under Arrest or Awaiting Trial
84. (1) Persons arrested or imprisoned by reason of a criminal charge against them,
who are detained either in police custody or in prison custody (jail) but have not yet
been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in
these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or
prescribing the procedure to be observed in respect of untried prisoners, these
prisoners shall benefit by a special regime which is described in the following rules
in its essential requirements only.

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85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle
be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of
different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried
prisoners may, if they so desire, have their food procured at their own expense from
the outside, either through the administration or through their family or friends.
Otherwise, the administration shall provide their food.
88. ( I ) An untried prisoner shall be allowed to wear his own clothing if it is clean
and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted
prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be
required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the
expense of a third party such books, newspapers, writing materials and other means
of occupation as are compatible with the interests of the administration of justice
and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor
or dentist if there is reasonable ground for his application and he is able to pay any
expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his
detention and shall be given all reasonable facilities for communicating with his
family and friends, and for receiving visits from them, subject only to restrictions
and supervision as are necessary in the interests of the administration of justice and
of the security and good order of the institution.
93. For the purposes of his defense, an untried prisoner shall be allowed to apply for
free legal aid where such aid is available, and to receive visits from his legal adviser

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All Too Familiar: Sexual Abuse of Women in U.S. State Prisons

with a view to his defense and to prepare and hand to him confidential instructions.
For these purposes, he shall if he so desires be supplied with writing material.
Interviews between the prisoner and his legal adviser may be within sight but not
within the hearing of a police or institution official.
D. Civil Prisoners
94. In countries where the law perm its imprisonment for debt, or by order of a
court under any other non-criminal process, persons so imprisoned shall not be
subjected to any greater restriction or severity than is necessary to ensure safe
custody and good order. Their treatment shall be not less favorable than that of
untried prisoners, with the reservation, however, that they may possibly be required
to work.
E. Persons Arrested or Detained Without Charge
95 Without prejudice to the provisions of article 9 of the International Covenant on
Civil and Political Rights, persons arrested or imprisoned without charge shall be
accorded the same protection as that accorded under part I and part II, section C.
Relevant provisions of part II, section A, shall likewise be applicable where their
application may be conducive to the benefit of this special group of persons in
custody, provided that no measures shall be taken implying that re-education or
rehabilitation is in any way appropriate to persons not convicted of any criminal
offense.

 

 

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