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Wa College of Law Smith Research Paper Re Sexual Violence in Correctional Settings Examining Prosecutors Preceptions 2008

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American University Washington College of Law
Washington College of Law Research Paper No. 2008-50


Brenda V. Smith

This paper can be downloaded without charge from
The Social Science Research Network Electronic Paper Collection:



Brenda V. Smith* and Jaime M. Yarussi**
The Prison Rape Elimination Act of 20031 (PREA) is
the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody.
Notwithstanding passage of the Act, there is clear belief,
echoed by correctional leaders, that prosecutors are reluctant at
best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on
prosecutor interest in and capacity to prosecute these cases, the
National Institute of Corrections Project on Addressing Prison
Rape at the Washington College of Law the (the NIC/WCL
Project) collected data from state and federal prosecutors.
This article draws on that research and data to examine the perception that prosecutors are unwilling to prosecute
cases of sexual violence in custody, discusses barriers to prosecution identified by prosecutors regarding investigating and
prosecuting allegations of sexual abuse of persons under correctional supervision, and recommends tools to overcome those
Background and Methodology

In 2000, the NIC/WCL Project began training highlevel correctional administrators on identifying, addressing, and
investigating allegations of staff sexual misconduct with
offenders. Each year eight training teams from different states
fielded three-person teams composed of key correctional decision makers for the state or agency, e.g., sheriffs, wardens, commissioners, and heads of human resources, investigations and
training. Relatively quickly, correctional leaders acknowledged
that staff sexual misconduct was an important safety issue that
agencies needed to address. However, strengthening investigations and sanctions remained challenging. While investigators
and correctional administrators knew they had much work to do
to improve investigations, they complained that prosecutors
were unwilling to take cases to trial. As a result, often their only
tool was termination of the employee in strong cases and allowing the employee to resign in others.2
After hearing for some time that investigations were
fruitless because of a lack of prosecutorial interest in sexual
violence against persons under custodial supervision, the
NIC/WCL Project required each three-person team that attended its investigative training to include a state or local prosecutor. They believed this inclusion would create collaboration and


help each—corrections leaders and prosecutors—understand
the other’s challenges in addressing sexual violence in custody.
Segments of the training, Investigating Allegations of Staff
Sexual Misconduct with Offenders, were specifically designed
to identify the barriers to prosecuting cases of sexual abuse of
individuals under correctional supervision and strategies for
overcoming those barriers.3
While training eight prosecutors a year for each of the
state teams was helpful to the states, the NIC/WCL Project
sought to have a larger impact. Seeking to address the lack of
information on prosecuting sexual violence in custody, the
NIC/WCL Project sought, and was granted, funding from the
National Institute of Corrections (NIC) to work with prosecutors to develop a report addressing the existing relationships
between law enforcement, correctional professionals, and prosecutors in addressing and prosecuting cases of prison rape.
The NIC/WCL Project used three methods to compile
information for the report. First, it conducted a literature
review in order to identify previously identified barriers to prosecuting cases of sexual abuse of individuals in custody. Second,
a NIC/WCL Project consultant conducted telephone and in-person, one-on-one interviews of prosecutors from February to
May of 2006. Finally, the Project conducted a series of focus
groups with federal and state/local prosecutors.
Literature Review
The NIC/WCL Project reviewed five kinds of
resources: (1) case law; (2) statutes; (3) government reports; (4)
reports by advocacy groups; and (5) news stories. The literature
review provided background on sexual abuse of individuals in
custody and validated barriers that prosecutors later identified
in interviews and focus groups. The literature review also
assisted in drafting questions to be asked during interviews of
individual prosecutors and during focus groups of federal and
state/local prosecutors.
An NIC/WCL Project consultant conducted both telephone and face-to-face interviews with state/local and federal
prosecutors from around the country. Eight formal interviews
and twelve informal interviews were conducted. The interviewees were selected based on the following criteria: (1) jurisdiction; (2) experience prosecuting sex cases; (3) experience prosecuting prison cases; and (4) referrals by other legal and correc-

Criminal Law Brief

tional professionals in the field.
Interview participants were asked the following questions:

What is your experience in the area of prisons
(prosecutions, sexual abuse, contract facilities)?
Why are allegations of sexual abuse of prisoners
rarely prosecuted?
What barriers exist to prosecuting these cases?
What can be done to lift the barriers and improve
the likelihood of prosecuting these cases?
What is the response of judges and juries regarding the sexual abuse of prisoners?
What about cases involving inmate-on-inmate sexual violence - are these cases successfully prosecuted?

graphic location and prosecutorial success. While all of the
prosecutors who received invitations were interested in the
Project, many could not attend the focus group because of
scheduling conflicts. Issues addressed during the state prosecutors’ focus group mirrored those from the federal prosecutors’
meeting. Findings from the study are detailed below.
The Perception that Prosecutors Are Unwilling to
Prosecute Cases of Sexual Violence in Custody

The perception that prosecutors are either reluctant or
unwilling to prosecute cases of sexual violence in custody is wellfounded. Both government reports5 and testimony by current6 and
former prosecutors7 reveal that these cases present significant
challenges in the current prosecution environment. First, these
cases are not high profile, high value cases; they
do not increase the stature of the prosecutor withFocus Groups
[P]rosecutors may be reluctant in his office and the community at large. In fact,
to pursue prison sexual assault prosecuting these cases could significantly weakAfter holding a series of “breakout sesen a prosecutor’s standing in the community by
cases because they see their job making her appear to be soft on criminals.
sions” with prosecutors during NIC/WCL
Project training sessions, it was apparent that as done after securing the con- Additionally, in many jurisdictions correctional
group discussions with prosecutors would yield viction or because they do not staff are sworn peace officers who, as alleged sexrich information on this subject. In the interest view crimes that occur in con- ual offenders, are the same individuals that proseof reaching a greater population of prosecutors,
cutors must rely on to testify in their other crimifinement as part of their
the NIC/WCL Project held focus groups with
nal cases.
federal and state/local prosecutors. The focus
Second, unsympathetic victims, delayed
groups also generated discussions and encourreports of the assault, lack of physical evidence,
aged the exchange of ideas between prosecupoor investigations, and conflicting testimony in
tors, which could not be accomplished through one-on-one
these cases make them high risk cases. Prosecutors often measure
interviews. Twenty-seven prosecutors attended the focus group
their success by their wins.8 Sexual assault cases are notoriously
meetings—seven federal and twenty state and local prosecuhard to win.9 Custodial sexual abuse cases are even more difficult
and expose prosecutors to the possibility of expending valuable
resources on a case that may not have a high likelihood of proseFederal Focus Group
cutorial success – either a plea or conviction.
Third, prosecutors often see their role as securing signifThe federal focus group consisted of seven federal
icant sentences for hardened criminals. Some may even believe
prosecutors, two federal investigators and one federal victim
that being assaulted, physically or sexually, is a part of the penalservices coordinator. The NIC/ WCL Project extended invitaty for the crime. However, the more informed view is that prosetions to individuals based on recommendations from former
cutors must ensure that individuals who are sentenced to imprisprosecutors and the United States Department of Justice (DOJ).
onment are in safe and secure environments. Either way, prosecuDuring the first session of the meeting, prosecutors identified
tors may be reluctant to pursue prison sexual assault cases because
their experience with prosecuting cases from correctional agenthey see their job as done after securing the conviction or because
cies with a focus on sexual assault and abuse. During the secthey do not view crimes that occur in confinement as part of their
ond session, prosecutors addressed issues of barriers to federal
prosecution and tools available to overcome those barriers.

State Focus Group
The state focus group consisted of nine state and local
prosecutors. The NIC/WCL Project extended invitations to
individuals based on recommendations from correctional practitioners and past participants of NIC/WCL Project trainings.
Specifically, the NIC/WCL Project sent a request to its listserv
for contact information of prosecutors who had either prosecuted these cases or were particularly helpful in getting these cases
heard. The NIC/WCL Project received over twenty responses
from correctional professionals across the country. In extending the final invitations, the NIC/WCL Project considered geo-

Spring 2008

Barriers to Prosecuting Prison Sexual Assault Cases
Differences between Administrative and Criminal Cases
One of the major barriers identified by both state and
federal prosecutors is the difference in standards of proof
required for discipline in administrative proceedings and the
burden of proof that prosecutors must meet in criminal proceedings. In administrative proceedings, the standard of proof
required by the person seeking the administrative action is generally “preponderance of the evidence.”11 In criminal cases,
prosecutors will only secure convictions if they prove each


element of an offense “beyond a reasonable doubt.”12 Both
Inspector General Glenn Fine and Senator Jeff Sessions discussed the lack of prosecutions in custodial sexual abuse cases
in their testimony before the National Prison Rape Elimination
Commission (NPREC).13 They both noted the importance of
prosecutions, yet acknowledged the difficulty in bringing these
cases.14 Each raised the standard of proof as one of the major
difficulties in prosecuting prison sexual assault cases.15

tors agreed though, that a more likely scenario is that the incidents of inmate-on-inmate sexual abuse are not being reported
or are handled administratively. While federal prosecutors stated that they would prosecute a forcible rape case if one was
brought to them, none who participated in the focus groups or
individuals interviewed had ever done so.20

Staff Sexual Abuse of Offenders

Another barrier to prosecuting cases of sexual violence
in custody is the issue of consent.21 The defense of consent is
a major factor in the decision to prosecute these cases, according to both federal and state prosecutors. This is true whether
the case involves staff sexual abuse of inmates or inmate-oninmate abuse.

During focus groups held with state and federal prosecutors, attendees pointed out that proceedings to impose administrative sanctions often preceded criminal prosecutions in staff
sexual misconduct cases. They agreed that this timing often
creates a problem for criminal prosecutions.16
First, the burden of proof in an administrative proceeding is lower. If a staff member is successful in the administrative proceeding, it often implicitly discourages additional action
in the criminal matter, given the lower burden of proof in
administrative cases. Second, investigations that are conducted
for purposes of the administrative proceedings can often taint
later criminal prosecutions, particularly if the suspect employee
is compelled to testify under threat of losing employment. Case
law makes clear that, employee testimony secured under threat
of firing is compelled and cannot be used in a later criminal
prosecution.17 Finally, often correctional staff are allowed to
resign, an administrative sanction, in lieu of being criminally
prosecuted for sexual abuse with persons in custody.
Prosecutors generally recognize that with the burden of proof so
high for a criminal case, administrative sanctions will be the
most likely outcome in many cases and thus recommend harsher administrative penalties as a substitute for prosecution.18
While this may seem to be an appropriate solution, it
creates a number of problems. In particular, staff who resign or
are even fired are often rehired in other correctional environments, potentially importing their predatory behavior with even
more vulnerable populations. Moreover, in the absence of a
criminal conviction, it is difficult to flag predatory staff.
Agency fears of employee lawsuits for libel or slander,19 mean
that in practice employers provide little information other than
the dates of employment for past employees, giving little notice
to others of the reason for termination. Finally, the resignation
creates a sense among employers and prosecutors that the matter is resolved. Given the high burden of proof in criminal
cases, many prosecutors see this as a just result, failing to realize that prosecution accomplishes other goals – a public recognition that sexual abuse of offenders rises to the level of a
crime, that prisoners are victims who deserve their day in court
as well, and that no one is above the law.
Inmate-on-Inmate Sexual Abuse
Most prosecutors, federal and state, who were interviewed and attended focus group meetings, had not tried
inmate-on-inmate sexual abuse cases. Federal investigators and
prosecutors noted that they may not have seen inmate-oninmate cases because investigation of those incidents in Federal
Bureau of Prison (BOP) facilities are handled by the Federal
Bureau of Investigations (FBI). Both federal and state prosecu-


“Consensual” v. Forced Sex

Staff Sexual Abuse of Offenders
All fifty states, the District of Columbia, and the federal government prohibit staff sexual abuse of offenders.22
Twenty-five states and the District of Columbia specifically
provide that inmates cannot consent to sex with staff.23 The
large majority of states recognize that staff have tremendous
control over every aspect of an offender’s custody. That imbalance of power negates consent. However, two states, Nevada
and Delaware, have laws which recognize that inmates can consent to sex with staff. In Delaware and Nevada, inmates can be
prosecuted for consensual sex with staff members.24
Even though statutes, were enacted to address the issue
of inmate consent by creating separate crimes for this offense,
prosecutors still find it difficult to prosecute these cases. Both
state and federal prosecutors noted that while it was easier for
juries to understand the abuse of power issue, juries have problems accepting the credibility of inmates. Juries perceived
inmates as liars with a bias against corrections staff, as well as
having a financial motive for making the allegations.
Additionally, prosecutors reported that juries often viewed both
male and female inmates as seducers of correctional staff.25
Often, both male and female inmates have histories of work in
the sex industry, and histories of physical and sexual victimization.26 These histories make them more vulnerable to sexual
abuse and at the same time more willing to use sex to bargain
for better treatment.27 For example, in a 2005 Bureau of Justice
Statistics (BJS) publication on correctional authorities’ reports
of sexual violence in custody, correctional agencies classified
two-thirds of all staff sexual abuse of inmates as romanti; in
2007, they classified fifty-seven percent of staff sexual abuse of
inmates as “appeared willing.”28
Inmate-on-Inmate Sexual Abuse
Inmate-on-inmate sex in correctional settings presents a different barrier to prosecution. In correctional settings, there is a continuum
of sexual behavior between inmates that goes from rape to completely
consensual sex. Between those ends of the spectrum are coerced and
strategic sex.29 Complicating matters, consensual sex today can
become forced, coerced or strategic at some other point. In other
words, the behavior and the motivation of the parties are not static
and often change. This flux in the conduct creates tremendous bar-

Criminal Law Brief

closed them from prosecuting cases that occurred in private
contract facilities which often housed federal inmates.
OIG recommended that federal law be amended to
correct these deficiencies. Amendments were passed and
became effective on January 5, 2006, making sexual abuse of an
offender by corrections staff, absent force or overt threats, a
felony punishable by up to five years imprisonment. The
amendment also expanded federal jurisdiction to include sexual abuse of federal prisoners housed in private correctional
facilities. Another piece of legislation, The Adam Walsh Child
Protection and Safety Act, also passed in 2006. This Act
increased penalties for the sexual abuse of a minor or ward to
fifteen years.40
The new legislation should result in more cases
involving allegations of sexual abuse in BOP facilities being
investigated41 and presented to United States Attorney’s Offices
(USAOs) for prosecution. However, the likeliDeficiencies in Criminal Laws Prohibiting
State prosecutors report that hood of full prosecution on the merits after a
the Sexual Abuse of Individuals in Custody
often state statutes still do not case is presented remains to be seen. Still, prosecutors faced with limited resources must concover custodial sexual abuse in sider investing time and resources in cases
Prior to 1990, most state and federal
a number of settings--parole where victim/witness reliability is an issue and
jurisdictions did not have laws which specificaland probation for example.
ly prohibited the sexual abuse of individuals
where potential defendants are law enforcement
under correctional supervision by correctional Some states allow consent as a officers who are community members without
staff. As a result, few corrections staff could be defense in staff abuse of inmates criminal records. Prosecutors are also conprosecuted for the sexual abuse of persons in
cerned about jury and judge appeal for the reaand still others impose minimal sons identified above. The combination of these
custody. Today, each of the fifty states and the
federal government have passed laws making it
two factors creates a perceived and real risk that
a crime for correctional staff members to engage
prosecutions will fail. Additionally, sex offend32
requirements, while providing stronger penalin any sexual conduct with a person in custody.
Even after this conduct was criminalized, however,
ties, also makes judges and juries more reluctant to convict
sexual abuse of persons in custody by corrections staff carried
these law enforcement defendants in the absence of exceptionrelatively lenient sentences compared to sexual assault statutes
ally strong evidence.43
This was especially true
covering rape in the community.
under federal law, where prior to 2006, sexual abuse of a ward
State Law
was a misdemeanor.34 Not surprisingly, federal prosecutors
While all states have criminalized, in some form, the
cited low penalties as the primary reason for not prosecuting
sexual abuse of persons in custody, these laws are not uniform
custodial sexual abuse cases.35 Recent amendments to state and
and vary widely. State prosecutors report that often state
federal laws have substantially increased the penalties for sexstatutes still do not cover custodial sexual abuse in a number of
ual abuse of offenders, but it is difficult to determine the effect
settings--parole and probation for example.44 Some states allow
of these enhancements on prosecution, particularly in the federconsent as a defense in staff abuse of inmates45 and still others
al system where the changes are so recent and prosecution sta36
impose minimal sanctions.46
tistics for these cases have not been studied.
In some states, prosecutors voiced frustration with
their statutory scheme that only made prosecution of sex offensFederal Law
es of persons in custody a misdemeanor. With low maximum
In April 2005, the Office of Inspector General (OIG)
penalties, i.e., misdemeanor status, prosecutors believed it sigissued a report which found federal laws prohibiting sexual
naled that the offense was not serious, or at least not a priority.
abuse of persons in custody deficient in two respects. First,
Others felt it gave them far less bargaining power in plea negotiations. Moreover, in many states, corrections officers cannot
while the federal law37 criminalized all sexual relations or conbe terminated simply because they have a misdemeanor convictact between prison staff and offenders, those acts were classified as misdemeanors, and thus punishable by a maximum sention.47
tence of one year, unless the conduct involved force or overt
Some state prosecutors pointed out that other tools
threats. Second, the OIG report noted that the federal laws did
such as revoking peace officer certifications or licenses may
help. Additionally, they felt that sex offender registration could
not apply to employees of contract facilities,38 further hamperact as a bargaining chip because fewer people would risk going
ing OIG and federal prosecutors in “obtaining prosecutions” of
to trial if they knew they might be required to register as a sex
sexual abuse in those facilities.39 Compounding the problem
offender if convicted. Ultimately however, state prosecutors
was the fact that state prosecutors often had limited resources
agreed with their federal counterparts that, especially in cases of
which they could focus on prosecuting sexual abuse in correcstaff sexual misconduct, mandatory sex offender registration
tional facilities at the state level. This lack of resources fore-

riers to prosecution both in the community and in prison. One
federal prosecutor stated that she would be unlikely to prosecute a case of inmate-on-inmate sexual abuse unless there was
physical evidence of violence such as injuries or eyewitness testimony.30 Prosecutors reported less interest in a case where
“consent” is an available defense unless there was also evidence
of additional crimes, such as the presence of contraband or the
threat of violence.
While consensual sex between inmates may be a conduct code violation punishable administratively, it is generally
not a crime. Even in those places where it is a crime,31 it is not
a high priority for prosecutors. If one offender claims that the
sex was consensual, prosecutors complain that they become “he
said, she said” cases involving two inmates, both convicted
offenders with clear issues of credibility.

Spring 2008


could hinder successful prosecutions because agencies are more
likely to keep incidents in house and because defendants are
more likely to go to trial.
Lack of Prosecutorial Experience

some ways, prosecuting sexual abuse of an offender is at odds
with prosecutors’ culture and belief systems. State prosecutors
noted that they spend most of their career sending people to
prison, and it is a shift in culture and way of thinking to advocate for offenders by prosecuting their abusers.50

Trying Sex Abuse Cases

Trying Cases from Correctional Settings

Prosecutors face a number of difficulties proving allegations of sexual abuse of persons under correctional supervision. Prosecutors recognize that sex crimes are among the most
difficult cases to prosecute regardless of the status of the victim.
Many prosecutors and investigators interviewed for this article
articulated the unique difficulties in prosecuting allegations of
sexual abuse or assault, whether or not those crimes occurred in
institutional settings. They noted that these cases are difficult
to prosecute because they rely on many aspects of a good
investigation to corroborate the victims’ reports including:
proper processing of crime scenes; collection and preservation
of evidence; knowledge of physical, medical and scientific evidence; prompt reporting and cooperation from the victim; proper interviewing of victims and witnesses; and corroboration of
the victim’s testimony by other witnesses or physical evidence.
Unfortunately, these ingredients are often missing in institutional investigations of custodial sexual abuse.
Prosecutors believe that obtaining a thorough and
prompt investigation is more difficult in the corrections environment. This difficulty is compounded by the lack of training
that correctional investigators receive in responding to sexual
assaults in custody.
Additionally, most states lack staff or units who primarily prosecute sex cases. These cases are often assigned to prosecutors who must take any case that comes to them.
Prosecutors who lack experience trying sexual assault cases
may not fully understand the dynamics of sexual violence,
which is important at every stage of the investigation and prosecution from the first interview with the victim, to crafting
opening statements, direct examinations, and closing arguments. Moreover, understanding the dynamics of sexual violence and a jury’s possible reaction to the victim or circumstances of a particular case, can inform prosecutors’ decisions
about cases. Familiarity with forensic evidence, like DNA, and
special rules of evidence that apply in sexual assault cases, such
as rape shield laws, are also important for successful prosecutions.
One former federal prosecutor illustrated the need for
experience and training by describing a case that he tried and
lost involving the sexual abuse of a fourteen– year old girl by
a corrections official at a halfway house. The prosecutor said
that at the time of the trial he was surprised at the loss because
he thought the case was strong, but realized in hindsight that his
lack of experience trying sexual assault cases led him to misjudge the strength of his evidence and how the jury would view
the credibility of the victim.48
State prosecutors reported that sex crimes in general
require a very specialized knowledge. Even seasoned prosecutors expressed concern that prosecutors know little about corrections institutions making prosecuting sex crimes an even
more daunting task.49 These cases, according to state prosecutors, require prosecutors to learn an entirely new culture. In

Prosecutors and investigators noted that prosecutors
are not sufficiently knowledgeable about prisons, prison culture
or correctional practices. Federal investigators also felt that
prosecutors did not have sufficient knowledge of issues such as
the coercive influence of contraband on sex and security in the
institution, and admittedly, many prosecutors and investigators
have never been inside a correctional facility prior to their
involvement in these cases.
One prosecutor, who has seen many cases from her
state prison system, said that it took prosecutors in her office
some time just to understand the prison’s record keeping system. She said that every time they prepared for trial and assured
defense counsel and the judge that all documentation from the
prison had been provided in discovery, they learned of new documents. Finally, her office learned that the prison kept two sets
of records, one for the prison and a second to provide to prosecutors and police. She said that in some cases, they also
described crimes in a third set of documents created and maintained by the intelligence branch of the prison. The prosecutor
said that until all of the document problems were resolved with
the prison, the prosecutors had trouble meeting their discovery
obligations in these cases.


Lack of Understanding About the Correctional Environment
Some corrections administrators and investigators
believe that prosecutors do not have a full appreciation of the
impact of sexual abuse on inmates.51 Sexual abuse of persons
in custody violates constitutional rights, creates psychological
and emotional trauma,52 may result in disciplinary actions
against the victim, and undermines the safety and security of the
Sexual abuse of persons in custody also undermines the
system of security of the institutions because often it is not limited to sexual abuse. Nearly half of the subjects in federal staff sexual misconduct cases also smuggled contraband into prisons for
the offenders with whom they had sexual relationships.54 Many
of these staff members helped offenders conceal contraband by
alerting the offenders to unannounced searches or by storing contraband with the staff’s possessions.55 This quid pro quo relationship for the purpose of engaging in sexual conduct with an inmate
compromises safety barriers and subjects the remaining prison
population and correctional staff to substantial risk.
Witness Credibility
Credibility of witnesses is paramount in any sexual assault case. The credibility of an inmate witness in
cases of sexual abuse in correctional settings is immediately suspect because of his status as an offender.

Criminal Law Brief

Both state and federal prosecutors have reported that in cases
with your victim; and (7) creative tools for prosecution.
Finally, prosecutors and investigators need to underwhere the only evidence is the victim’s report with no corrobostand
investigating and prosecuting custodial sexual abuse
ration—the case is virtually untriable. Credibility issues that
These prosecutions are essential to mainare not supported by physical evidence, corroborated by correctaining
humane institutions and communities.
tional staff, or have multiple victim incidents become a case of
correlates with other issues such
“he said, she said.” According to prosecutors, the risk of tryas
of force. In order to protect
ing these cases is great. The high likelihood of an acquittal may
it is important to
offset the deterrent effects of investigating these cases as well
as discourage prompt reporting of sexual assaults for fear of retribution following an acquittal at trial.
Build Relationships with Others in the Field
Multiple interviews of victims that generally happen in
the correctional setting can also have an impact on whether
In order to overcome barriers to prosecuting these
prosecutors accept a case. Inconsistencies in statements and the
important for correctional officials, investigators and
victim’s credibility in general led one federal prosecutor to
to understand each other’s roles and challenges. In
believe a victim was lying. That prosecutor indicated that
these relationships, focus group participants recthere are many cases of sex between staff and offenders that are
ommended forming agency task forces, comnot presented to prosecutors because there was
posed of investigators, prosecutors, correctional
often no evidence. In order to corroborate the
prosstaff, law enforcement and victim services.
victim’s story, prosecutors want physical eviSpecific to federal prosecutions, focus group
dence and contemporaneous reporting, or the
recommended having an investigaknowledge that the staff member had assaulted
cases in prisons do not
in the U.S. Attorney’s Office
more than one offender.
“sell.” Often, only the intro- in order to reduce problems prosecutors have
Federal prosecutors also agreed that if
duction of other violations identified in regards to resources—staff time
there is no physical evidence or non-inmate
proof of the abuse, they are less likely to take the committed by staff members and cost for the prosecutor’s office. For state
case generally because of credibility issues with or inmate defendants result systems, using outside law enforcement can
help gain credibility. Many agencies recomthe victim.59 Prosecutors admitted that even if
in convictions.
mend using third-party investigative units in
they do prosecute, witnesses who are incarceratstate prisons and local jails. Establishing an
ed are often immediately impeached with past
investigative protocol that includes outside law
convictions. One prosecutor felt that jurors assess the credibilienforcement,
often have special sexual assault units, adds
ty of a witness from a correctional setting the same way they
because they often bring special skills and
assess the credibility of any witness, but because they are
as allied with correctional agenfelons, they are presumed to lack credibility by many jurors and
indeed jury instructions direct that jurors may consider previous
convictions in assessing credibility.60
Amend State and Federal Criminal Law
Recommendations for Improving Prosecutions
of Correctional Sex Abuse Cases
Train Prosecutors on the Dynamics of
Sexual Abuse in Correctional Settings
Training prosecutors on techniques for prosecuting
custodial sexual abuse cases is critical. Additionally, while it is
important to train prosecutors, it is essential to take a team
approach and include federal and state level investigators, law
enforcement, facility administrators and correctional staff, and
victim advocates to have a collaborative effort in understanding
the dynamics of prison rape.
The Civil Rights Division of the Department of Justice
recommends that U.S. Attorneys team with them in order to
train prosecutors on the unique techniques used in sex crimes
cases such as the use of a grand jury, interview techniques, and
the benefits of having an OIG investigator involved—techniques that are not used in other cases. They suggested curricula that included: (1) correctional culture; (2) prosecuting a sex
crime; (3) security implications; (4) understanding sexuality in
a correctional setting; (5) corroboration and alternative evidence to DNA; (6) helping judges and juries to sympathize

Spring 2008

Prosecutors have noted deficiencies in both federal
and state criminal law in this area. First, prosecutors recommend stronger penalties. Prosecutors feel that misdemeanor
sanctions for these offenses are inappropriate for the crime and
limit their bargaining power; staff will not accept a plea and
inmate defendants will only receive limited penalties in addition to current sentences. On the other hand, especially where
correctional officers are concerned, jurors may be reluctant to
convict staff members of a felony for sexually abusing inmates.
Additionally, laws need to be amended to cover all
personnel in all correctional settings, and provide that inmate
consent is not a defense to sexual abuse. Furthermore, correctional administrators should sanction behavior that may not be
criminal, but which is sexually abusive – such as inappropriate
viewing or photographing of inmates.
Utilize a Variety of Laws as Tools
for Prosecuting Sexual Abuse
Both investigators and prosecutors pointed out that sex
cases in prisons do not “sell.” Often, only the introduction of
other violations—such as contraband, bribery or malfeasance in
office—committed by staff members or inmate defendants


result in convictions. Prosecutors should be encouraged to use
all of the tools available to them when prosecuting sexual abuse
of persons in custody. Mandatory reporting, obstruction of justice, malfeasance in office, statutory rape, sexual assault and
conspiracy are all legal tools which are available to prosecute
custodial sexual abuse and surrounding circumstances. In addition, prosecutors could look to loss of license and sex offender
registration, as ways to either secure pleas or impose additional sanctions, which ensure that the staff defendant does not
secure employment in other institutional settings.
Develop Special Prosecution Units for Sexual Abuse Cases
In general, federal prosecutors rotate through a variety
of assignments, while state prosecutors often prosecute whatever case they are assigned. Federal and state prosecutors recommend having dedicated staff who are familiar with sex cases or
having allegations of sexual abuse of a person in custody
referred to specialized sex crimes or civil rights units61 where
they exist. At a minimum, there should be a designated prosecutor in every jurisdiction who is trained and prepared to prosecute these crimes when they occur. Historically, the types of
experience and support provided by specialized units has
improved the rate of successful prosecution for crimes once
considered difficult to prosecute, such as domestic violence,
sexual assault, and crimes against children.
Increase Resources for Prosecution of Sexual Abuse
Federal prosecutors have suggested a resource shift
would be most helpful for them. To begin to elevate this issue,
federal prosecutors have suggested that an OIG agent be
assigned to each USAO, and funds to prosecute cases of sexual violence in institutions be increased. While federal prosecutors recognize that there are staff and budgetary limits, they
suggest that moving the resources, both funding and personnel,
to offices that have more of these cases, would improve prosecution outcomes.
State prosecutors have stated that the only way to prosecute these cases with any expertise would require an increase
of resources. In addition to needed financial support and manpower, state and local prosecutors called for some clarity on the
responsibility of prosecuting these cases—are they state cases,
federal cases, local cases and who pays for prosecution and who
Change the Culture of Prosecutors and Judges
Regarding Sexual Abuse in Correctional Settings
Prosecutors agreed that a cultural shift would elevate
this issue on the political agenda of many elected prosecutors as
well as appointed and elected judges.62 Investigators and corrections officials report that the likelihood that a particular case
will be prosecuted often has a lot to do with the perception of
the individual prosecutor and his or her office about the importance of these cases, especially in relation to the case prosecution priorities in her jurisdiction.
The Attorney General, United States Attorneys, and


the heads of state and local prosecutors’ offices must send the
message to their prosecution staff that sexual abuse of persons
in custody will be prosecuted vigorously, and they must provide
them with the resources and training to do it.
Prosecutors believe that, in addition to training and
resources to improve investigations and prosecutions of allegations, decision makers must have the political will to change
prosecutorial and investigative responses to custodial sexual
violence. Prosecutors requested that policy makers at the highest levels of government put their authority behind this issue
because where the interest of such persons lie, so go the
resources. Organizations like Human Rights Watch,63 The
Commission on Safety and Abuse in America’s Prisons,64 and a
myriad witnesses testifying before the NPREC have echoed this

†This article relies heavily on the work of current and former
state and federal prosecutors, in particular the work of Roy
Austin, Diane Berman, Deborah Connor, and Julie Grohovsky.
We particularly want to thank Deborah Connor for her feedback
and insights on this article. Ms. Connor’s deep experience litigating sex offenses and domestic violence offenses was invaluable. In particular, her experience securing a conviction in
United States v. Robert White, which involved the sexual
assault of a transgendered inmate by a correctional officer,
informs this article. We were ably assisted in this endeavor by
Julie Grohovsky, a former federal prosecutor who worked for
several years in the United States Attorney’s Office for the
District of Columbia prosecuting domestic violence and sexual
assault cases. Ms. Grohovksy also worked in the Office of the
Inspector General. Her experience and knowledge were invaluable in making contacts and collecting this information.

Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. §§
15601-15609 (2003).
2 See generally The National Institute of Corrections/
Washington College of Law Project on Addressing Prison Rape
(NIC/WCL Project), Addressing Staff Sexual Misconduct with
Offenders (March 2006), Investigating Allegations of Staff
Sexual Misconduct with Offenders (March 2005, 2004),
Responding to Inmate – on – Inmate Sexual Violence (March
2007), and Addressing Sexual Abuse of Youth in Custody (July
2007, Nov. 2005), under National Institute of Corrections (NIC)
cooperative agreements 01P18G108 through 07S24GJQ1.
3 See NIC/WCL Project, Investigating Allegations of Staff
Sexual Misconduct with Offenders, Prosecutor Break Out
Sessions (July 9-14, 2006), under NIC Cooperative Agreements
06S20GJJ1 (meeting notes on file with author) [hereinafter
2006 Prosecutor Breakout Sessions]; NIC/WCL Project,
Investigating Allegations of Staff Sexual Misconduct with
Offenders, Prosecutor Break Out Sessions (July 15-20, 2007),
under NIC Cooperative Agreement 07S24GJQ1 (meeting notes
on file with author) [hereinafter 2007 Prosecutor Breakout ses-

Criminal Law Brief

4 See NIC/WCL Project, Improving Prosecutions of Allegations
of Sexual Abuse in Correctional Settings, A Meeting with
Federal Prosecutors (Oct, 13, 2006), under NIC Cooperative
Agreements 06S20GJJ1 (attendance list on file with author)
[hereinafter Federal Meeting]; NIC/WCL Project, Improving
Prosecutions of Allegations of Sexual Abuse in Correctional
Settings, A Meeting with State Prosecutors (Oct. 27, 2006),
under NIC Cooperative Agreements 06S20GJJ1 (attendance list
on file with author) [ hereinafter State Meeting].
INMATES 3 (2005) [hereinafter OIG REPORT] (noting that sexual
abuse of female inmates is both underreported and alarmingly
6 See The Honorable Kim Worthy, Prosecuting Attorney for
Wayne County, Michigan at the Public Hearing Before the
National Prison Rape Elimination Commission: Reporting,
Investigating and Prosecuting Prison Rape: What is Needed To
Make The Process Work? (August 3, 2006), available at [hereinafter
NPREC Worthy Testimony] (elaborating on why Wayne
County is unable to continue to prosecute inmate sexual abuse
cases); see also The Honorable Gregory Miller, United States
Attorney for the Northern District of Florida at the Public
Hearing Before the National Prison Rape Elimination
Commission: Reporting, Investigating and Prosecuting Prison
Rape: What is Needed To Make The Process Work? (August 3,
2006), available at
.pdf (discussing the many issues which make it difficult for
prosecuting sexual assault within prisons).
7 See Senator Jeff Sessions, Address at the Public Hearing
Before the National Prison Rape Elimination Commission: The
Cost of Victimization: Why Our Nation Must Confront Prison
Rape (June 14, 2005), available at
SenatorJeffSessionsRemarks_Vol_1.pdf [hereinafter NPREC
Sessions Testimony] (encouraging the criminal justice system
to take the problems of incarcerated sexual abuse seriously).
8 See generally Mary De Ming Fan, Disciplining Criminal
Justice: The Peril and Promise of Numbers, 26 YALE L, & POL.
R. 2 (2007) (explaining that the seemingly favorable statistics
regarding criminal justice prosecutions do not necessarily signify success).
9 See Rape, Abuse and Incest National Network, Reporting
Rates, (last visited Mar. 26, 2008) (finding that if a sexual
assault is reported there is a 50.8% chance of an arrest; if there
is an arrest made, there is an 80% chance of prosecution; and if
there is a prosecution there is a 58% chance of a conviction).
Factoring in unreported rapes, only 6% of sexual assault perpetrators will spend time incarcerated—15 of 16 perpetrators walk
free. Id.
10 See NPREC Worthy Testimony, supra note 6 (explaining that
in the wake of budgetary constraints, prosecution of crimes
between inmates is not a priority for Wayne County).
11 See Steadman v. S.E.C., 450 U.S. 91 (1981) (finding that in

Spring 2008

an administrative proceeding, matters in issue need only be
established by a preponderance of the evidence).
12 See Victor v. Nebraska, 511 U.S. 1, 5 (1994) (finding that the
standard of proof beyond a reasonable doubt “is an ancient and
honored aspect of our criminal justice system”).
13 See NPREC Sessions Testimony, supra note 7; see also
Glenn Fine, Inspector General, Address at the Public Hearing
Before the NPREC: The Cost of Victimization: Why Our Nation
Must Confront Prison Rape (June 14, 2005), available at
df (admonishing that the laws criminalizing staff sexual relations with federal inmates are not sufficient).
14 Id.
15 Id.
16 Id.
17 See Garrity v. State of New Jersey, 385 U.S. 493 (1967) (discussing employees’ rights against criminal self-incrimination).
18 See Federal Meeting, supra note 4 (discussing that while
investigators in general agreed with the need to increase administrative penalties, they complained that more often than not,
those were met with opposition by unions).
19 See Robinson v. Robinson, No. 05-CV-01433, 2006 WL
726296 (D. Colo. Mar. 20, 2006) (issues included: malicious
prosecution, defamation, 14th Amendment Due Process);
Corona v. Lunn, No. 00-CIV-7330, 2002 WL 550963 (S.D.N.Y.
Apr. 11, 2002) (issues included: false arrest and malicious prosecution).
20 See Federal Meeting, supra note 4 (noting the lack of experience in prosecuted forcible prison rape cases).
21 See id.; see also State Meeting, supra note 4 (discussing and
indentifying consent as one of the most difficult issues in prosecuting prison rape).
22 Brenda V. Smith, Fifty State Survey of State Criminal Laws,
Prohibiting the Sexual Abuse of Individuals Under Custodial
Supervision (January 2008), under NIC Cooperative Agreement
07S27GJT7 [hereinafter 50 State Survey].
23 Id.; see, e.g., CAL. PENAL CODE § 289.6 (2001) (“Consent by
a confined person or parolee to sexual activity proscribed by
this section is not a defense to a criminal prosecution for violation of this section.”); FLA. STAT. ANN. § 944.35 (2006) (“The
consent of the inmate or offender supervised by the department
in the community to any act of sexual misconduct may not be
raised as a defense to a prosecution under this paragraph.”);
WIS. STAT. ANN. § 940.225 (West 2005) (“Consent is not an
issue in alleged violations . . . .”).
24 See 50 State Survey, supra note 22; see, e.g., DEL. CODE ANN.
tit. 11, § 1259 (1995) (“A person is guilty of sexual relations in
a detention facility when, being a person in custody at a detention facility or being an employee working at a detention facility, the person engages in sexual intercourse or deviate sexual
intercourse on the premises of a detention facility.”); NEV. REV.
STAT. ANN. § 212.187 (1997) (“A prisoner who is in lawful custody or confinement, other than in the custody of the Division
of Parole and Probation of the Department of Public Safety or
residential confinement, and who voluntarily engages in sexual
conduct with another person is guilty of a category D felony.”);


see also Phillips v. Bird, Dept. of Corrs. of the State of Del.,
2003 U.S Dist. LEXIS 22418 (D. Del. Dec. 1, 2003).
25 See Federal Meeting, supra note 4; State Meeting, supra note
4; see also Carrigan v. Davis, 70 F. Supp. 2d 448 (D. Del. 1999).
PROBATIONERS 1 (1999), available at
bjs/pub/pdf/parip.pdf (detailing the statistical results of prior
sexual abuse in state and federal prisons).
27 See DC Rape Crisis Center, Effects of Sexual Abuse: Internal, (last visited Feb. 6, 2008) (discussing the internal effects of sexual abuse as including: depression, low self-esteem, anger or control issues, anxiety, shame,
guilt); Angela Browne & A.J. Sabree, NIC/WCL Project,
Responding to Inmate-on-Inmate Sexual Violence,
Presentation on the Impact of Victimization (March 2007),
available at
(noting the links between incarceration and victimization);
Brenda V. Smith, NIC/WCL Project, Continuum of Sexual
Behavior in Institutional Settings (2006), under NIC
Cooperative Agreement 06S20GJJ1 (PowerPoint presentation
on file with author) [hereinafter Smith, Continuum of Sexual
Behavior] (illustrating that strategic sex or sex as a bargaining
tool is used).
AUTHORITIES, 2004, at 9 (2005) [hereinafter BECK & HUGHES
CORRECTIONAL AUTHORITIES, 2006, at 6 (2007) [hereinafter
29 See Brenda V. Smith, Rethinking Prison Sex: Self-Expression
and Safety, 15 COLUM. J. GENDER & L. 185, 225 (2006) [hereinafter Smith, Rethinking Prison Sex] (discussing the continuum of sexual expression in correctional environments the main
concern of which is whether the state has an ability to regulate
that expression); see also Smith, Continuum of Sexual
Behavior, supra note 27 (analyzing (through a visual) the limits placed on prisoners’ ability to sexual express themselves).
30 See Federal Meeting, supra note 4.
31 See generally U.S. v. Brewer, 363 F. Supp. 606 (M.D. Pa.
1973); People v. Frazier, 64 Cal. Rptr. 447 (1967); People v.
Coulter, 288 N.W.2d 448 (Mich. Ct. App. 1980) (holding the
state sodomy law constitutional as applied to sex in prison);
George v. Lane, No. 82 C 7084, 1987 U.S. Dist. LEXIS 3659
(N.D. Ill. Apr. 30, 1987) (finding that prison regulations prohibiting consensual sex are constitutional); Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004); Croom v. Wagner, No. 06-1431,
2006 U.S. Dist. LEXIS 64915 (E.D. Pa. Sept. 11, 2006); Barnes
v. Ozmint, 3:04-21836-CMC-JRM, 2005 U.S. Dist. LEXIS
38173 (D.S.C. Nov. 7, 2005); People v. Rollins, 569 N.E.2d
1251 (Ill. App. 1991); U.S. v. Robert White (Criminal Action


No. F130-05, 2006).
32 See 50 State Survey, supra note 22.
(illustrating that prosecutions and the sentence received by staff
in sexual misconduct cases are relatively low); see also, Rape
Abuse and Incest National Network, Reporting Rates, available
at (last visited March 30, 2008) (providing statistics regarding the reporting and prosecution of sexual assaults).
34 See 18 U.S.C. §§ 2243(b), 2244(a)(4), 2244(b) (2006) (raising the penalty for sexual abuse of a ward from misdemeanor to
felony punishable levels).
35 OIG REPORT, supra note 5, at 8.
36 See Interview with Federal Prosecutor (Feb. 28, 2006) [hereinafter FP Interview] (stating that “[t]here have not been enough
cases since the penalties were enhanced, to make any type of
meaningful judgment about the impact the amended law will
make on the rate of prosecutions); see also OFFICE OF THE
under NIC cooperative agreement 06S21GJL7.
37 18 U.S.C. §§ 2241, 2243-2244.
38 OIG REPORT, supra note 5, at 18.
39 Id. at 19.
40 See Adam Walsh Child Protection and Safety Act, Pub. L No.
109-248, 120 Stat 587 (2006) (codified in scattered sections of
18 U.S.C.).
41 Federal investigators are concerned that these amendments
may decrease prosecutions due to the increased severity of the
sentences. See generally OFFICE OF THE INSPECTOR GENERAL
MISCONDUCT WITH OFFENDER (June 2006), under NIC cooperative agreement 06S21GJL7.
42 See Smith v. Doe, 538 U.S. 84, 101 (2003) (holding that
“[a]lthough the public availability of the information may have
a lasting and painful impact on the convicted sex offender, these
consequences flow not from the Ac’'s registration and dissemination provisions, but from the fact of conviction, already a
matter of public record. The State makes the facts underlying
the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary
before dealing with the registrant”).
43 See Federal Meeting, supra note 4.
44 See State Meeting, supra note 4; see also Brenda V. Smith &
Jaime M. Yarussi, NIC/WCL Project, Breaking the Code of
Silence, A Correction Officers’ Handbook on Identifying and
Addressing Sexual Misconducts 4 (June 2007) [hereinafter CO
HANDBOOK] (highlighting that agencies include but are not limited to: jails, lock-ups, prisons, community facilities for adults
or juveniles, juvenile detention centers, immigration detention
facilities and community corrections agencies including probation, parole, half-way homes, electronic or home monitoring,

Criminal Law Brief

work release, pre-release centers or pre-trial release and contract facilities). Personnel includes but is not limited to: correctional officers, administrators and staff, volunteers, medical and
mental health personnel, contract employees and maintenance
and food service workers. Id.; see also 50 State Survey, supra
note 22.
45 See 50 State Survey, supra note 22; see also DEL. CODE ANN.
tit. 11, § 1259 (2008); NEV. REV. STAT. ANN. § 212.187
(LexisNexis 2007).
46 See 50 State Survey, supra note 22 (indicating that while the
46 See 50 State Survey, supra note 22 (indicating that while the
vast majority of states define staff sexual misconduct as a
felony, some also still only charge it as a misdemeanor or define
the crime as a graduated sanction allowing the prosecutor to
charge either a misdemeanor or a felony depending on the facts
of the case).
47 See State Meeting, supra note 4.
48 NIC/WCL Project, The Role of Prosecutors in Cases of Staff
Sexual Conduct with Offenders, Investigating Allegations of
Staff Sexual Misconduct with Offenders (July 2005), available
July_2005/Prosecution.ppt?rd=1 (“On the day of her testimony,
the victim dressed provocatively and giggled nervously.
Because of the prosecutor’s lack of experience he had not
instructed her on how to dress for court, did not ask her questions on direct examination that would help her to explain to the
jury why she was giggling and not crying and that in general he
felt that he had misjudged the amount of time it would take to
prepare her to testify.”).
49 See State Meeting, supra note 4.
50 Id.
51 See Federal Meeting, supra note 4; 2006 Prosecutor Breakout
Sessions, supra note 3; 2007 Prosecutor Breakout Sessions,
supra note 3.
53 OIG REPORT, supra note 5, at 7-8; see also CO HANDBOOK,
supra note 44, at 8.
54 See Federal Meeting, supra note 4.
55 OIG REPORT, supra note 5, at 7; see also Chitra
Subramanyam, FCI Guard Sentenced for Sex Act, TALLAHASSEE
DEMOCRAT, Aug. 29, 2006 (noting that in a case in the Federal
District Court in Tallahassee, Florida, Bureau of Prison guards
were charged with and found guilty of crimes arising out of
trading contraband for sex with at least ten offenders). In this
same case, an OIG agent was shot and killed at the Federal
Correctional Institution in Tallahassee as he and another law
enforcement agent were in the process of arresting one of the
guards. Id. This is an indication of how such activities can lead

Spring 2008

to corruption and violence in correctional settings.
56 See Federal Meeting, supra note 4; State Meeting, supra note
57 See FP Interview, supra note 36 (noting that initially the
inmate was believed, but that after a thorough investigation it
was determined that she was lying). The prosecutor said that
the inmate never admitted to lying, but that a “huge amount” of
information, including inconsistencies in her statements as well
as statements of other prisoners that discredited her version of
events and her credibility, generally led prosecutors to believe
the inmate was lying. Id.
58 Id.
59 See Federal Meeting, supra note 4.
60 See FP Interview, supra note 36 (stating that because they are
felons by virtue of their status as a prisoner, you need to corroborate their testimony).
61 See Federal Meeting, supra note 4 (discussing Washington,
DC’s prosecution unit and how some specialize in sex crimes).
Prosecutors noted that because of the difficulty prosecuting sex
crimes, many prosecutors’ offices have specialized sex crimes
units or at least one or two veteran sex crimes prosecutors who
handle these cases. Id. In addition, while state and local prosecutor’s offices are more likely to have experience trying these
cases, the depth of that experience depends on the number and
types of cases that occur in their districts and the resources they
are able to devote to those cases. Id.; see also Gina DeBottis,
Chief Prosecutor, Special Prosecution Unit, Texas at the Public
Hearing Before the National Prison Rape Elimination
Commission: Reporting, Investigating and Prosecuting Prison
Rape: What is Needed To Make The Process Work? (Aug. 3,
2006), available at (describing the special sex crimes prosecution unit in
Texas and their experience with prison sex cases).
62 CO HANDBOOK, supra note 44, at 7.
63 See NO ESCAPE, supra note 52, at 68-75.
ABUSE IN AMERICA’S PRISONS (2006), available at
sionReport.pdf?rd=1 (reporting on the violence and abuse in
U.S. jail and prisons).
65 See generally National Prison Rape Elimination Commission
Hearings, available at (listing
the nationwide public hearings which discuss the elimination of
prison rape).

* Brenda V. Smith is a Professor of Law at American
University’s Washington College of Law and is the Program
Director for the National Institute of Corrections Project on
Addressing Prison Rape ( ) at the
Washington College of Law. Additionally, Professor Smith is
a commissioner on the National Prison Rape Elimination
Commission (
** Jaime M. Yarussi is the Program Coordinator for the
National Institute of Corrections Project on Addressing
Prison Rape ( at the Washington
College of Law.




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