The Lack of Clear Prison Rules and Appropriate Criminal Law
One of the key factors in creating a U.S. women's prison environment ripe for sexual misconduct is the lack of clear prison rules and, where appropriate, criminal laws that prohibit such abuse. As a result of this political and legal indifference to the problem, states routinely fail to deter, discipline or criminally sanction incidents of custodial sexual misconduct adequately. This directly contributes to the prevalence of such abuse.
All state departments of corrections assured us that sexual misconduct was something that they treated as a serious matter and would not tolerate. However, we found little concrete evidence of such commitment. Prison rules in the majority of correctional systems that we investigated only vaguely discourage "overfamiliarity" or "personal dealings" with prisoners and are too euphemistic for officers to understand that the proscribed conduct includes not only all sexual contact with prisoners, but also the use of sexually explicit comments and gestures and unwarranted invasions of their privacy.96 Even where rules clearly prohibiting such conduct do exist, corrections authorities simply fail to emphasize them enough.97 As a result of the states' failure to train officers to recognize and refrain from sexual misconduct, male officers engage in such misconduct with female prisoners without any informed sense of the prohibitions on and likely consequences of such behavior.
Most states we investigated lack any clear policy or procedure for punishing officers who engage in sexual misconduct of whatever form. With respect to actual sexual contact between officers and prisoners, the appropriate sanction should be dismissal, but this is not always made clear. We found that even in those instances where such misconduct is proven, the culpable officers are rarely dismissed. Instead correctional authorities have engaged in disciplinary half-measures, such as the officers' reassignment, transfer or voluntary resignation, the last of which often terminates the department of corrections investigation into the prisoner's complaint. These approaches are highly problematic, primarily because by failing to prevent work in otherprison areas or facilities or later re-employment, they risk exposing more prisoners to misconduct by the abusive officer. For example, in Michigan, a corrections officer was rehired after he resigned voluntarily rather than face an investigation into allegations of sexual misconduct. He was then suspended three months later for "overfamiliarity" with another prisoner.98 Women prisoners in Illinois consistently raised the same names of officers who were known to be physically aggressive and abusive.
Both state department of corrections and criminal justice systems have left sexual misconduct unremedied. Our investigation indicates that states prosecute very few cases of sexual intercourse or sexual touching between officers and prisoners. The majority of the states that we investigated have no criminal law that deals directly with this abuse and those that do often decline fully to enforce such prohibitions. When an attorney in Illinois contacted the local district attorney's office to inquire how to file a criminal complaint, she was informed that his office did not have jurisdiction—it had to be referred from the Illinois Department of Corrections.99 Thus, prisoners are denied the right to file criminal complaints for alleged crimes committed against them. In Georgia, it was the district attorney's policy until 1992 not to enforce that state's criminal statute outlawing sexual contact between an officer and a prisoner as a felony offense. It took the class action suit filed in 1992 on behalf of all the female prisoners in that state to reverse this trend and secure criminal indictments of officers suspected of such misconduct. In most cases, the actual prosecution of these indictments has yet to occur. In fact, the district attorney responsible for the prosecutions told us that, in his view, custodial sexual misconduct was "a crime without a victim."100
If states where custodial sexual contact is not expressly prohibited pursue such cases at all, they do so under existing rape and sexual assault laws, which often do not take into account the circumstances of incarceration or the officer/prisoner relationship as possible elements of these crimes. In these states, the simple fact that the custodial sexual contact occurred at all—no matter what the circumstances—is not considered a crime. Thus, unless the female prisoner who complains of such misconduct can show the presence of severe physical force, grave bodily injury or other recognizedelements of the crimes of rape and sexual assault (and sometimes even then), prison officials and prosecutors are likely to presume that she consented to sexual contact and, thus, that no rape or sexual assault occurred. If the female prisoner cannot prove rape or sexual assault, not only will her complaint of sexual misconduct go unprosecuted, but it is likely that she will be punished for what is seen as her own participation in a breach of prison rules. In some cases that we investigated, the female prisoner was punished severely while the male officer escaped sanction altogether. According to Ruth Cassell, a prisoners' rights advocate, an inspector general in New York brought charges against a young woman for sexual misconduct after determining that she was pregnant. At the hearing, she was sentenced to 730 days, or two years, in segregation and a twenty-four month loss of good time credit, because the inspector general believed the prisoner was lying about who impregnated her. After two and a half months in segregation, all charges against the prisoner were dropped except the charge for engaging in sexual relations, for which she was sentenced to time served. She was punished even though she testified that she was coerced into having sex by her supervisor.101
All states that we investigated sanction female prisoners for sexual misconduct as a matter of practice and two states, New York and Illinois, do so as a matter of policy.102 Even prisoners whose allegations seemingly are credited by prison officials effectively are punished by authorities by being placed in administrative segregation pending the outcome of the investigation into their complaints. While such segregation could, if voluntarily requested by the prisoner, function as a form of protective custody, we found that in most instances prison officials used it to punitive effect. For example, in California, 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.103 A women prisoner in Michigan was sent involuntarily to segregation while 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, even though the prisoner passed a polygraph test that the officer refused to take.104 Even in those instances where the presumption of officialcoercion is not supported by the evidence, we believe that whatever state interests might be served by punishing the prisoner for sexual misconduct are insufficient to outweigh the deterrent effect of such punishment on the willingness of women to report such abuse. The fear of punishment prevents many women from reporting any sexual misconduct by guards.
96 In Michigan, department of corrections policy appears to prohibit both degrading language toward and degrading treatment of prisoners, but the provisions seem to apply only to the conduct of other prisoners. A later clause does prohibit "personal abuse" of prisoners by corrections staff, but does not define the term. Michigan Department of Corrections Policy directive 03.03.130, "Rights of Clients to Humane Treatment and Living Conditions," June 7, 1982.
97 For example, in New York, when the employee manual addresses "overfamiliarity" it portrays it as a problem initiated by prisoners.
98 Telephone interview, Deborah LaBelle, attorney, February 27, 1995.
99 Interview, Margaret Byrne, attorney, Illinois, May 9, 1994.
100 Interview, Joe Briley, district attorney, March 24, 1994. He was forced to resign in August 1994 on suspicion of sexually harassing his female staff. "Ocmulgee DA was told to quit, GBI report says," Atlanta Constitution, October 11, 1994.
101 Telephone interview, Ruth Cassell, Prisoners Legal Services, January 26, 1995.
102 Rule 101, New York Department of Corrections Inmate Handbook; 20 Illinois Administrative Code, §504, Table A.
103 Interview, Carrie Hempel, attorney, California, July 25, 1994.
104 Interview, Michigan, March 1994.
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