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All rights reserved. Printed in the United States of America. ISBN 1-56432-153-3 Library of Congress Catalogue Card Number: 96-79706
ACLU American Civil Liberties Union BOFQ Bona Fide Occupational Qualification BOJS Bureau of Justice Statistics CCWF Central California Women's Facility CDC California Department of Corrections CIW California Institution for Women CLAIM Chicago Legal Aid to Incarcerated Mothers CRC California Rehabilitation Center CORC Central Office Review Committee (New York) CRIPA Civil Rights of Institutionalized Persons Act CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CTF Correctional Treatment Facility (District of Columbia) DCDC District of Columbia Department of Corrections DOCS Department of Correctional Services (New York) DOJ Department of Justice DR Disciplinary Report GBI Georgia Bureau of Investigations GDC Georgia Department of Corrections GWCI Georgia Women's Correctional Institution HVM Huron Valley Men's Prison (Michigan) IAD Internal Affairs Division ICCPR International Covenant on Civil and Political Rights IDOC Illinois Department of Corrections IG Inspector General LSPC Legal Services for Prisoners with Children MHU Mental Health Unit MDOC Michigan Department of Corrections MPC Model Penal Code NCCD National Council on Crime and Delinquency NIC National Institute of Corrections NWLC National Women's Law Center NCWF Northern California Women's Facility PAC Prison Action Committee (Illinois) PLRA Prison Litigation Reform Act PLS Prisoners Legal Services (New York) RUO Resident Unit Officer SHU Segregated Housing Unit VSPW Valley State Prison for Women (California) YACA Youth and Adult Correctional Agency (California) 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. 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. 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 two-and-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. Fifty-two 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 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. anti-discrimination 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 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 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 "overfamiliarity" or "fraternization." 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. 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 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 "good 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. 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. 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 abuses--such as those described in this report--and 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 "egregious 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 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 state--despite 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 "addressed 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 I. U.S. Congress 1. 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. 2. 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. 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:
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 Civil Rights Division 1. 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
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. 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. Executive Branch 1. 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. 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:
Sexual misconduct by prison guards (1) in U.S. women's prisons is occurring in the context of a steadily increasing population of female prisoners--many of whom are first offenders--in 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 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 population (9) and have 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) 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 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) 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, "sexual 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, "The 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 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 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, "given the very special responsibilities of these [male correctional officers] and the 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 staff--and to implement similar transfers at Georgia's other two women's prisons--until 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. 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 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 housed near their place of residence, thus making it easier for family, friends, and attorneys to visit. (33) 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) 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 "they 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 incarceration--in 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 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 "parity of treatment" rather than equal treatment to that of male prisoners. This test requires prison officials "to provide women inmates with treatment facilities that are substantially equivalent to those provided for men--i.e., equivalent in substance, if not in form--unless their actions . . . nonetheless bear a fair and substantial relationship to achievement of the State's correctional objectives." (44) 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 "substantially 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 "similarly 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 "parity of treatment" leave women prisoners with fewer resources and opportunities for personal improvement than male prisoners. PERTINENT NATIONAL AND INTERNATIONAL LAW U.S. law clearly obligates both the federal and state governments to prohibit sexual misconduct. The U.S. Constitution prohibits cruel and unusual punishment--including official sexual misconduct--and 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 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. 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 to the U.S. Constitution bars cruel and unusual punishments. The Supreme Court has ruled that the provision prohibits "only 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 "sufficiently culpable state of mind." (51) The standard for "sufficiently 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 "maliciously and sadistically." (52) To challenge abusive conditions of incarceration, a prisoner must demonstrate that prison officials acted with "deliberate 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 "serves 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 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) 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, "the 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. In fact, many lower federal courts have recognized this limited right to bodily privacy. Courts have upheld limitations on cross-gender frisks (61) 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) 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. 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 "acting 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 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 "specific 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 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 1994--half 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. 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 "reasonable cause to believe" that a state institution engages in a pattern or practice of subjecting prisoners to "egregious 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 "sufficient 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 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. 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 investigators--attorneys with the DOJ and consultants--conduct 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 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) 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 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-nine-day waiting period has long since elapsed, no suit has been filed, and the DOJ maintains that Michigan is still "under 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 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, "the 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 "egregious or flagrant conditions" causing grievous harm before the DOJ may file suit. By contrast, the new statute does not require that the "pattern or practice of conduct" be "flagrant 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. 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. 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 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 "custodial, 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 abuse (97) and classifies sexual contact (98) as a form of sexual assault. However, both constitute only misdemeanor offenses under the MPC. The majority of states follow neither the federal law's nor the MPC's framework. 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 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 states--Arizona, Nevada, and Delaware--the 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. 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 "sexual 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 prisoners--the 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 custody--both intercourse and touching--provide 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. 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. 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 "nonfrivolous" 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 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) 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 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 Detention or Imprisonment (118) provide authoritative guidance under international law for interpreting the more general rules of the ICCPR and Torture Convention. (119) 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, 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. 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 "non-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 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 "severe mental pain or suffering." The U.S. legislation, however, recognizes only mental suffering that is prolonged and that results from one of four things--intentional or threatened harm, administration of "mind-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 requirements--whereby, as discussed above in greater detail, prison officials are culpable only if they acted maliciously and sadistically--may not be covered. Moreover, the U.S. government itself has stated that degrading treatment--clearly prohibited by the ICCPR and the Torture Convention--is "probably not . . . prohibited by the U.S. Constitution." (125) 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 "designed 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 7--limiting its scope to acts already prohibited by U.S. law--has 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 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 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) 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 "the 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 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. Other instances of sexual interc |