The Custodial Environment in U.S. State Prisons
The United States differs from most prison systems in the world in that it employs male staff in positions involving unsupervised contact with female prisoners. The United Nations Standard Minimum Rules for the Treatment of Prisoners prohibit such employment, but the United States nonetheless allows male officers to hold contact positions in women's prisons.37 It has done so largely to satisfy national labor laws and as a result of numerous anti-discrimination suits.38
The increased presence of male officers and staff in female prisons—at times male officers now outnumber their female counterparts in women's prisons by three to one—places important and fairly unique responsibilities on the U.S. federal and state corrections systems. The corrections administrations must ensure that violations of the basic human rights of female prisoners are not the price paid to satisfy U.S. labor laws. In virtually every prison that we visited, state prison authorities allowed male officers to hold contact positions over female prisoners without the benefit of any clear definition of sexual misconduct, any clear rules and procedures with respect to it, or any meaningful training in how to avoid it.39 Prison officialsalso were failing to equip female prisoners to deal with the potential abuse in the cross-gender guarding situation. They rarely, if ever, informed female prisoners of the risk of sexual misconduct in custody. Nor did they advise them of the mechanisms available—to the extent that they exist—to report and remedy such practices.
The states' failure fully to inform female prisoners about the risks of and remedies for sexual misconduct is particularly negligent, given that female prisoners often enter the U.S. correctional system with a prior history of sexual abuse.40 Although no national statistics in this regard yet exist, attorneys and volunteers in every state that we visited told us that the female prisoners often have such personal histories.41 According to Christina Kampfner, a clinical psychologist working in Michigan's women's prisons, women's past abuse renders the women particularly vulnerable to exploitation by the male officers once they enter prison. Kampfner stated that many women with this history are easy targets for sexual abuse—"the women are so needy and in need oflove, they are set up for oppression. The only way they know is to exchange their bodies [to meet this need]."42 While this may not always be the case, it appears that prior sexual abuse is a significant risk factor for custodial sexual misconduct and one which, in our experience, prison authorities generally and mistakenly ignore.43
In women's prisons across the United States, ill-trained male officers guard female prisoners with little appropriate guidance or oversight regarding sexual misconduct. The result is a custodial environment that is highly sexually charged. Both prisoners and advocates told us consistently that male officers regularly comment on the female prisoners' body parts and treat them to a barrage of degrading physical references and gestures. It is in this context that the officers further step over the line with the prisoners and engage in rape, sexual assault, other forms of sexual contact and inappropriate visual surveillance of the women while they are dressing, showering or using the toilet.
37 Standard Minimum Rules for the Treatment of Prisoners, approved by the Economic and Social Council by resolutions 663 C, July 31, 1957, and resolution 2076, May 13, 1977, reprinted in U.S., A Compilation of International Instruments: Volume I (Part I) Universal Instruments (New York: United Nations Press, 1993), pp. 243-263, Rule 53.
38 Under Title VII, Civil Rights Act of 1964, 42 United States Code Section 2000e et. seq. an employer may not discriminate on the basis of sex, unless an employee's sex is a Bona Fide Occupational Requirement (BFOQ), i.e. reasonably necessary to perform the specific job. In the absence of specific circumstances, U.S. federal courts have been unwilling to characterize a person's sex as a BFOQ.
39 Men comprise the majority of corrections officers in New York's women's prisons, including the evening and night shifts in the housing units. Nonetheless, the New York department of corrections does not provide specific training for male officers assigned to work with women, even though it agreed to do so as an element of the settlement in the class action lawsuit Blackman v. Coughlin. 84-CIV 5698, September 1993 (District Court, New York) (the suit covered only Bayview Correctional facility).In Illinois, where male officers out-number female officers two to one, few written instructions apply to male corrections officers' responsibilities over female prisoners. The only exception occurs at Dwight Correctional Center, where there appears to be some limits on male guards' roles, and, according to some prisoners, male officers are not assigned regularly to the overnight shift on the lower security units, although they may substitute for the regular officer. Michigan's department of corrections allows both men and women to work within the housing units and makes no distinction between male and female corrections officers in conducting pat-frisks or searches of the shower and toilet areas.
40 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. A study of women in Oklahoma's state prisons found that 69 percent reported physical and/or emotional abuse after the age of eighteen. Before eighteen, nearly 40 percent reported being sexually abused—raped or otherwise molested—and 44 percent reported emotional or mental abuse. Sargent, Marcus-Mendoza and Ho Yu, "Abuse and the Women Prisoner," in Women Prisoners: A Forgotten Population (Westport, CT: Praeger, 1993). According to testimony presented in Jordan v. Gardner, 85 percent of women incarcerated in Washington state have reported a history of serious abuse, including rapes, molestation and beatings. Federal Reporter, Second, Volume 986, p. 1525 (Ninth Circuit, 1994).
41 Telephone interview, Rebecca Jurado, professor of law, Western State University, Irvine, California, March 21, 1995; interview, Bob Cullen, attorney, Atlanta, Georgia, August 4, 1994.
42 Interview, Christina Kampfner, psychologist, Ann Arbor, Michigan, May 17, 1994.
43 Interview, Bob Cullen, attorney, Atlanta, Georgia, August 4, 1995.
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