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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 intercourse that we documented which do not amount to rape but constitute sexual abuse as defined above, may also constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. This is also true of sexual touching that amounts to sexual assault. Other forms of sexual misconduct that do not constitute rape or sexual assault or abuse, rise to neither the level of torture nor of cruel or inhuman treatment, but may be condemned as degrading treatment, that is, treatment that causes or is intended to cause gross humiliation or an insult to a person's dignity. (137) This includes inappropriate pat or strip searches and verbal harassment. The manner in which strip searches and pat searches are conducted, while clearly infringing upon the privacy rights of prisoners, can also constitute a form of degrading treatment. The mere performance of a strip search or a pat search by a correctional officer for the purpose of controlling contraband is not, in and of itself, degrading treatment. For example, the use of close body searches for a valid purpose has been upheld under international law. (138) However, the fondling and groping of women in the course of a strip search or a pat search serves no penological purpose; it is extraneous to the search for contraband and unnecessarily invades a prisoner's physical integrity and humiliates her. Furthermore, the use of pat searches as a means of retaliation, and the targeting of specific women for such searches without due cause, also violates these principles and constitutes degrading treatment. The prohibition on degrading treatment also extends to the use of demeaning language, where the employment of such language is intended to dehumanize and weaken an incarcerated person. (139) In the Greek case, the European Commission found that "psychological pressure designed to break the will" of prisoners, including verbal harassment and humiliation, was prohibited under Article 3 of the European Convention on Human Rights. It specifically relied on examples in which officials told prisoners, "you have excrement in your soul. . . . Your daughters are prostitutes." (140) While isolated name calling may not rise to the level of degrading treatment, a pattern of such language or the use of such language in combination with obscene gestures and physical advances may create an environment of pressure or harassment that leads to humiliation sufficient to constitute degrading treatment. Custodial Sexual Misconduct: A Violation of the International Right to Privacy In the same way that the U.S. government is accountable under international law for preventing torture and ill-treatment, it is also required to uphold prisoners' privacy rights as codified in the ICCPR and the Standard Minimum Rules. In fact, unlike the articles governing torture and ill-treatment, the U.S. government did not enter a reservation to Article 17 of the ICCPR with respect to the right to privacy other than the non-self-executing declaration that applied to all the substantive articles of the treaty. The U.S. government's decision not to enter any reservations with respect to this right in particular, suggests that the U.S. intends to comply fully with the ICCPR standard or, at least, that such standard is not understood to impose any obligation greater than that under current U.S. law. The Human Rights Committee, which interprets the ICCPR, has spoken directly to the use of personal and body searches. In its General Comment 16 to Article 17, the committee stated: So far as personal and body searches are concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body searches by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex. (141) In hearings before the U.N. Human Rights Committee, the U.S. government has taken the position that it is substantially in compliance with the right to privacy as established by the ICCPR. The U.S. government told the Human Rights Committee that: In order to protect the privacy of female inmates, only female officers are permitted to conduct strip searches or body cavity searches, except in cases of emergency situation. Male officers work in the women's housing units, but they are admonished to respect the inmates' privacy by not intentionally observing them in a state of undress. (142) However, our investigation revealed that such protections quite often are not in place in the state prisons, and that in practice, norms regulating the role of male officers are not followed for both body searches and housing areas. With respect to the use of male guards to conduct strip searches, in particular, we find that the U.S. falls far short of ensuring the protections provided under international law. We found that strip searches often occur in the presence of male officers and that pat-frisks are conducted in an abusive manner by male guards. Moreover, Michigan and California explicitly permit all corrections officers to make random and unannounced searches of housing areas. We affirm the Human Rights Committee's general comment opposing cross-gender strip searches as a necessary measure to protect the privacy of incarcerated women as well as their individual dignity and bodily integrity. Strip searches, except in extreme and limited cases of emergency, should only be conducted by corrections officers of the same sex as the prisoner and in a location where individuals of the opposite sex are not in a position to observe the search. To the extent possible, we also believe that pat searches should be carried out by corrections officers of the same sex. We recognize that pat searches are less invasive than strip searches, but evidence indicates that corrections officers have used such searches to grope women and violate their personal dignity and bodily integrity. Corrections officers of both sexes must be fully trained to conduct pat searches in a respectful and professional manner. Custodial Sexual Misconduct and International Rights to an Effective Remedy International law also obliges the United States to ensure that prisoners may raise complaints of ill-treatment, that such complaints are investigated promptly and impartially that abusers are punished, and that complainants are protected from retaliation or punishment. As with respect to the right of privacy, the U.S. did not reserve on any of these articles under either the ICCPR or the Torture Convention. Thus, the U.S. has indicated its willingness to comply fully with these protections. Unfortunately, U.S. practice with respect to guaranteeing an effective remedy in cases of custodial misconduct again falls far short of the international standards set forth in detail below. Article 13 of the Torture Convention requires the United States to ensure that a person alleging she was tortured or ill-treated has the right to complain, (143) as does Article 3 of the ICCPR, which requires an effective remedy for all rights contained in the convention. As noted above, the authoritative Standard Minimum Rules provide a more detailed structure to protect this right and to ensure that prisoners are able to gain access to a complaint mechanism. Rule 35 mandates that prisoners receive written information about the "authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable [her] to understand [her] rights and [her] obligations." Rule 36 stresses the right of prisoners to raise a complaint to one of several individuals, including the director of a prison, a prison inspector or the central administration. (144) The Rule also provides that unless these complaints are "evidently frivolous or groundless," prison administrators must respond promptly and "without undue delay." The authoritative Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that prisoners "have the right to make a request or complaint regarding [their] treatment . . . to the authorities responsible for the administration of the place of detention and to higher authorities, and, when necessary, to appropriate authorities vested with reviewing or remedial powers." (145) The ICCPR and Torture Convention, furthermore, obligate the U.S. to provide and ensure that certain remedies are available to those prisoners alleging acts of torture or cruel, inhuman or degrading treatment or punishment. The Human Rights Committee, the body officially charged with interpreting the ICCPR, has ruled that the prohibition on torture and cruel, inhuman, or degrading treatment or punishment in Article 7 carries with it a positive obligation for state parties to investigate complaints of ill-treatment effectively, punish those found guilty, and provide remedies to the victim, including compensation. (146) The Torture Convention explicitly sets forth these requirements in Article 12. (147) The Body of Principles also underscores the importance of these protections by imposing in Principle 7 an obligation on government agents to report allegations of misconduct and by directing governments to conduct impartial investigations when they receive such complaints. (148) Each of the states we visited provides a grievance mechanism to prisoners. However, we found that obstacles often hinder the ability of prisoners to file complaints or to see them fully pursued. Prisoners do not always receive information about the grievance mechanism, and some women we interviewed were entirely unfamiliar with the grievance process. In addition, an informal stage included in the grievance process in several states we visited often discourages women from filing complaints and prevents their complaints from reaching appropriate higher authorities. The informal level is particularly problematic in cases of sexual misconduct because it requires the woman to confront her abuser, and in essence, request him to acknowledge that he has abused her and violated her rights before she can file a formal complaint. Women prisoners who understandably fear taking this step are thus effectively shut out of the grievance system and denied the right to raise their charge through the complaints procedure. We also found that official investigations of staff misconduct often were fraught with many of the same irregularities as the grievance process. Provisions governing the right of prisoners to complain of misconduct and the duty of state officials to investigate such allegations frequently are accompanied by an obligation to protect complainants from retaliation and mistreatment. Article 13 of the Torture Convention provides that steps must be taken to protect the complainant and her witnesses from all ill-treatment or intimidation in retaliation for filing a complaint or providing information. Such protections are reiterated in the Body of Principles; Principle 33 emphasizes a prisoner's right to complain of mistreatment and explicitly requires that a complainant not "suffer prejudice" for making a complaint. Yet, in the U.S. women's prisons that we investigated, such retaliation--and in some cases, official punishment--was commonplace. We found that many prisoners who raised allegations of staff sexual misconduct were placed in administrative segregation or protective custody. There is nothing in either U.N. resolutions or any international human rights convention providing for the physical separation of either the prisoner who raises a complaint of staff misconduct or her witnesses. Rather, international law recognizes that such segregation is often punitive. (149) Within the Standard Minimum Rules, segregation is addressed solely in terms of the punishment of prisoners and is viewed as a punitive measure. (150) International law also mandates that efforts be made to limit the application of solitary confinement, for whatever purpose. (151) This does not mean, however, that segregation or solitary confinement per se, constitutes a violation of a prisoner's rights, in particular, since a state has a positive obligation to protect the bodily integrity of the prisoner. In the U.S. this protective, rather than punitive, practice is often termed "administrative segregation" or "protective custody." Unfortunately, in the women's prisons that we visited, we found that administrative segregation or protective custody is not only viewed as punitive by many prisoners, but, in fact, often is punitive. Such protective custody has in some cases amounted to solitary confinement. (Prisoners placed in administrative segregation or protective custody, who have committed no disciplinary offense, are subjected to the same treatment as prisoners serving disciplinary sentences.) To make matters worse, they are denied the basic protections that are available to those prisoners placed in segregation on disciplinary grounds. Therefore, in our view, administrative segregation or protective custody is inherently punitive for prisoners who have filed a complaint of staff misconduct because it results in the physical separation of the prisoner from the general population and correspondingly results in a certain loss of freedom within the confines of the prison when the prisoner herself has done nothing wrong. Its use, therefore, should be restricted to circumstances when the prison administration has reasonable cause to believe that the prisoner's safety is in jeopardy, consistent with the international legal obligation to protect a prisoner's bodily integrity, or when a prisoner explicitly requests protective custody within prison, particularly since segregated custody on nondisciplinary grounds may be perceived as a repercussion for raising a complaint of staff mistreatment. The use of such segregated custody must be accompanied by procedural regulations that are at least as protective as those required for prisoners sentenced to segregation for disciplinary offenses since the prisoner has committed no offense. And, as much as possible, ordinary treatment and privileges should be maintained for prisoners in segregation for non-punitive purposes. One important method for preventing sexual misconduct is to provide appropriate training for guards. The Standard Minimum Rules mandate training for officers on how to carry out their professional duties. Rule 47(2) requires that all corrections personnel "be given training in their general and specific duties and be required to pass theoretical and practical tests." Rule 47(3) further specifies that prison staff maintain and improve their knowledge and professional capacity by attending training during their employment in prisons. Standard Minimum Rule 35(1) also calls for prisoners to be provided with written information about the regulations governing the treatment of prisoners, authorized methods of seeking such information and making complaints, and whatever else is necessary to enable her to understand her rights and obligations. If the prisoner is illiterate, such information must be provided orally. Yet, in the prisons we investigated we found little voluntary effort by the departments of corrections to train corrections officials charged with guarding women in custody. For example, little, if any, information was provided concerning the impact of previous sexual abuse on incarcerated women. Security techniques, prisoner profiles, and other training materials are often based upon the model of a male prisoner. States inadequately train corrections officers working in women's prisons on the obligation to refrain from sexual contact, verbal degradation or privacy violations. The departments of corrections that did conduct training for guards with which we are familiar, Georgia and the District of Columbia, were both compelled to do so pursuant to court orders. The state of Michigan did initiate a training program that would include cross-gender guarding situations, but to our knowledge, it has yet to address the specific issue of custodial sexual contact. In addition, according to our interviews, most women in prison were not informed of what constituted proper conduct by guards or staff and were unaware of the procedures for filing grievances and complaints. In our investigation, we found that the only women well-informed about these standards and procedures were those who had been in prison for a long time or who had received instruction from outside nongovernmental organizations--instruction provided when departments of corrections took the positive step of facilitating training for prisoners. Most notably, Brenda Smith of the National Women's Law Center conducts a voluntary training for women incarcerated in the District of Columbia. This four-month class occurs three times a year and provides information on issues from child custody, medical care, and reproductive health to sexual misconduct, dispute resolution, and plans for post-incarceration life. This series, according to Smith, has made the women more sophisticated about these issues and better able to resolve problems without external intervention. Nongovernmental organizations in the other states we visited also conducted training, but most were unable to get the access necessary for such a complete program. Given the grave nature of custodial sexual misconduct described in this report, there is simply no excuse for the U.S. government to deny women in prison the full scope of protections against this abuse available to them under international law. Nor is it defensible in any way for the United States to argue, as it did in its first report to the U.N. committee responsible for overseeing compliance with the ICCPR that the problem of custodial sexual misconduct is addressed under U.S. law, "through staff training and through criminal statutes prohibiting such activity." (152) Nothing could be further from the truth. In fact, the problem of sexual misconduct is not being adequately addressed under state administrative or criminal laws, and protections available at the federal level, while they cover much of the abuse discussed in this report, do not protect against it all. Human Rights Watch calls on the federal government, as a matter of some urgency, to recognize this fact and to take immediate steps to guarantee to women and all other persons incarcerated in the U.S. the full scope of rights available to them under international law. Most U.S. department of corrections' regulations do not incorporate the United Nations standard that no male staff shall enter a women's institution unless accompanied by a woman. Nonetheless, the important underlying issue of sexual abuse is addressed California has the largest number of incarcerated women in the United States and the world's two largest women's prisons, the Central California Women's Facility and the recently opened Valley State Prison for Women, both in Chowchilla. Two lawsuits filed in 1995 alleging constitutional violations in California's prisons for women, one of which concerned sexual assault (153) and the other alleging inadequate medical care, (154) have led the California Department of Corrections (CDC) to take some action against individual employees when directly confronted with evidence of their misconduct. Overall, however, the CDC has failed to prevent sexual misconduct in its women's facilities, and such abuse is commonplace, in some instances amounting to sexual abuse, assault, or rape. Our investigation, based on interviews with female prisoners, their attorneys, attorneys active on two civil suits, and sociologists familiar with the California prison system and the CDC, revealed serious flaws in the system's current pattern of response to sexual misconduct in its facilities. California has few administrative or, where appropriate, criminal protections against custodial sexual misconduct and fails to train male officers adequately concerning appropriate conduct or to counsel female prisoners about this issue. Moreover, the CDC procedures for reporting and investigating complaints of such abuse are inadequate, biased in favor of officers and often expose female prisoners to retaliation. Not until 1994 did California take the welcome step of criminalizing all sexual contact in custody. Given California's steadily growing female prison population, it behooves the state to engage in substantial prison reform before the problem of sexual misconduct escalates. We strongly urge California to adopt substantive reforms in its prison rules and general practice relating to sexual misconduct that will ensure the reporting, effective investigation and, ultimately, punishment of custodial sexual misconduct. We also call on the CDC to make significant improvements in officer training and prisoner counseling with respect to this problem. At present, slightly over 50 percent of corrections officers within California's women's prisons are men. (155) This means that, day to day, female prisoners in California are supervised by male officers more often than by female officers. Yet, California has few effective guidelines for male guards working with female prisoners in women's prisons. As noted above in the legal background section, Human Rights Watch does not oppose the presence of male guards in contact and supervisory positions in women's prisons per se. However, we are concerned that California has taken few steps to protect against the potential for sexual misconduct that arises out of this cross-gender guarding situation. In fact, we found that training for California corrections officers regarding security and contact with prisoners concentrates primarily on male prisoners. According to a 1995 report described in greater detail below, the only training provided for corrections officers of either sex assigned to work with women addresses the proper procedure for pat-searching women. (156) Correctional authorities also fail to inform female prisoners about the risk of custodial sexual misconduct or the availability of mechanisms to report such misconduct should it occur. Yet most women enter prison ill-equipped to deal with the potential problem. A 1995 study found that an overwhelming percentage of women incarcerated in California experienced physical, sexual and emotional abuse prior to incarceration. (157) According to the study, 71 percent experienced physical abuse on an ongoing basis before the age of eighteen, while 62 percent reported ongoing physical abuse after the age of eighteen. Forty-one percent of incarcerated women reported being sexually abused before they turned eighteen, while 41 percent reported such abuse after the age of eighteen. This is a population largely unaccustomed to having recourse against abuse; all the more necessary, then, for the state to present the available means of recourse clearly and in an accessible fashion. The potential for custodial sexual abuse in California is exacerbated by the rising female prison population and resultant overcrowding. California's female prison population increased by 450 percent between 1980 and 1993, a rate that significantly outpaced that of men. (158) By 1995, the women's population in California had risen to over 9,000 prisoners, compared to 1,316 in 1980, (159) and women now account for nearly 6.5 percent of the total California prison population. As of November 30, 1995, approximately 40 percent of women incarcerated in California state facilities were African American, and approximately 30 percent were Latina. (160) Nearly 55 percent were serving their first prison sentence. The majority of women within the California prison system are committed for nonviolent offenses; in fact, since 1982, the proportion of women imprisoned for violent offenses has decreased. (161) The war on drugs, in particular, has contributed to the rapid growth of the female prison population: one-third of all women in the California prisons are serving sentences for nonviolent drug offenses. Of these, most were convicted for offenses such as "possession" or "possession for sale." (162) This burgeoning female prison population has led to serious overcrowding in the California Institution for Women (CIW), Central California Women's Facility (CCWF), and Northern California Women's Facility (NCWF), all three of which, as well as the California Rehabilitation Center (CRC), a drug treatment and rehabilitation facility, were operating at between 60 to almost 100 percent over capacity as of April 9, 1995. (163) The recently opened Valley State Prison for Women (VSPW) has reduced the pressure on the other prisons somewhat, but they continue to operate over capacity. Attorneys and volunteers told us that this overcrowding places a severe strain on prison resources and has reduced the correctional system's capacity to supervise the conduct of male officers with respect to female prisoners. (164) Close to 80 percent of all women incarcerated in California are mothers who have at least two dependent children. (165) Nonetheless, most California women's prisons are located far from the major urban areas where most of the prisoners' children and families live. For instance, CIW is approximately five hours by bus from Los Angeles, the nearest city, and Chowchilla is similarly inaccessible. Further, the CDC has taken action specifically to limit visitation; it is considering requiring children to visit their incarcerated parents unsupervised. The accompanying adult already is refused admittance to a state prison in many cases, requiring the child to undergo a body search alone. (166) Moreover, California has recently decided to reduce attorneys' and volunteers' access to women prisoners for interviews and telephone contact. (167) We ourselves received cooperation from the CDC only after repeated requests for information. (168) State Legal and Regulatory Framework The state of California prohibits all sexual intercourse between corrections staff and prisoners. The first violation of this prohibition is a misdemeanor; any subsequent violation is a felony. Beyond this criminal prohibition, Title 15 of California's administrative code (also known as the Director's Rules), which governs the CDC and the treatment of prisoners, contains only a general and vague provision prohibiting corrections staff from engaging in "personal transactions" with prisoners, parolees or their relatives. (169) The administrative code does prohibit prisoners from engaging in sex, (170) but we were unable to learn from the CDC whether prisoners sexually involved with corrections staff, rather than with other prisoners, may be punished under this provision. The CDC's operations manual, which reflects the Director's Rules for the CDC, states that employees should be suspended, or placed on administrative leave, "in most cases [where they are] subject to dismissal because they . . . have shown unacceptable familiarity with inmates." (171) But, exactly what constitutes "unacceptable familiarity" is nowhere explained. Thus, California's prison rules contain no clear definition of nor prohibitions on sexual misconduct, nor do they set forth the appropriate disciplinary sanctions for such conduct should it occur. Despite the vagueness of the operations manual, at least one warden of a California women's prison has interpreted Title 15 clearly to prohibit any personal involvement by guards with prisoners. Teena Farmon, warden of CCWF, wrote in a memorandum to staff dated July 24, 1995, that the Director's Rules "are clear regarding expectations of staff. . .Anything other than authorized physical contact, authorized verbal or written communications, or involvement with any inmate/parolee or their family, is a violation of policies and procedures and in some cases can be a violation of the law." (172) In her memorandum, Farmon explicitly asserted that officers must not establish a personal relationship with a prisoner or provide personal favors or preferential treatment to any prisoner. In addition, Farmon required guards to inform supervisors if any of their colleagues were violating the rules. Farmon also stated that since CCWF opened in October 1990, eighteen employees have been fired because of "overfamiliarity" with prisoners and parolees. However, no independent prisoner advocates were able to confirm this figure. California does expressly mandate that prisoners be treated humanely by prison staff. Title 15, Section 3004, of the state's administrative code establishes that "inmates have the right to be treated respectfully, impartially and fairly by all employees." With respect to verbal abuse in particular, the code goes on to provide, in Section 3391, that: Employees shall be alert, courteous, and professional in their dealings with inmates . . . Inmates shall be addressed by their proper names and never by derogatory or slang reference . . . Employees shall not use indecent, abusive, profane, or otherwise improper language while on duty. This express protection of prisoners' right not to be subjected to verbal degradation by officers is welcome and might serve as a model for other states that we visited, most of which do not possess such prohibitions. Unfortunately, it is rarely honored in practice within the California correctional system. National and International Law Protections As discussed in the legal background chapter of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international treaty and customary law that is binding on the U.S. federal government as well as its constituent states. (173) The eighth amendment to the constitution, which bars cruel and unusual punishments, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from inappropriately viewing or strip searching female prisoners or conducting intrusive pat-frisks on female prisoners. Constitutional protections for prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark victories through private litigation, particularly suits litigated by prisoners' rights such as the National Prison Project of the American Civil Liberties Union (ACLU). However, if certain stringent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the Constitution. In addition to constitutional protections, prisoners' rights are protected under international human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The ICCPR guarantees prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international bodies have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a particular purpose, such as obtaining information from a victim, punishing her, intimidating or coercing her, or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for any particular purpose. When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. (174) The abuses discussed in this section occurred from 1990 through 1996. Our own investigation took place between July 1994 and November 1996. We found that custodial sexual misconduct in California includes rape, sexual assault, and criminal sexual contact. In addition, we found pervasive and constant violations of women's privacy and degrading language and treatment. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld. Rape, Sexual Assault or Abuse, and Criminal Sexual Contact Prisoners in California are subjected to sexual misconduct in many different forms. It can involve sexual intercourse or inappropriate sexual touching between corrections staff (176) and prisoners, constant and highly sexualized verbal degradation of the prisoners, and unwarranted invasions of their privacy. California has a history of inappropriate sexual contact between male officers and female prisoners in its women's prisons. In July 1990 the Orange County Register ran a series of investigative articles on CIW alleging rape, corruption, and negligent medical care and documenting retaliation against women and correctional employees who spoke out about such practices. According to the Register, Harold Delon Anderson, the son of the former CIW warden, Kathleen Anderson, was dismissed in October 1987 amid allegations that he had forced ten incarcerated women to submit to sexual relations with him. (177) Internal investigations and other documentation obtained by the Register indicated that Anderson forced some of the women into sexual relations repeatedly, over a period of months or years. Corrections staff reportedly discovered him on three separate instances in "compromising positions" with prisoners before any disciplinary action was taken. One female corrections officer who exposed Anderson's actions was allegedly threatened and harassed by coworkers. (178) At the time the article ran in the Register, the CDC had treated Anderson's behavior as a personnel matter and had not referred the case to the county prosecutor for a criminal investigation. (179) Three years after the Register story, the state Commission on Female Inmate and Parolee Issues also raised concerns relevant to sexual misconduct in custody. (180) A report issued by the commission in 1995 found that the CDC had no policy for respecting the privacy rights of incarcerated women and that the only training the CDC provided for male correctional staff working with incarcerated women was procedural training on how to conduct appropriate body searches. (181) The commission recommended that several changes be instituted, among other things to protect prisoner privacy rights and train correctional staff about characteristics specific to incarcerated women. With respect to sexual misconduct in particular, the commission recommended: The CDC should continue to aggressively conduct training regarding inappropriate sexual conduct toward female inmates. The CDC should maintain its policy of treating as a matter of utmost seriousness, any inmate grievance alleging a breach of these rules by its employees, and should respond through disciplinary channels and, where appropriate, through criminal sanctions. (182) Our own investigation, conducted from April 1994 to November 1996, indicates that rape, sexual assault and abuse, and criminal sexual contact persist in California's women's prisons. Two women we interviewed alleged that male corrections officers raped or attempted to rape them. Uma M. told us that she first experienced a long period of harassment in late 1993 by a male corrections officer, including being observed by him while in the shower, being "cornered" by him in the prison laundry room, and having him hit her on her buttocks or grab her breasts as she walked by. On one occasion the guard, Officer G, left her a note under her pillow with his phone number and address on it. He also once went to her family's home and started asking questions about her personal life. The situation with Officer G escalated until one day he entered Uma M.'s cell while her cellmates were at breakfast and raped her. She told us: I felt fear real quick. I knew something was wrong and I didn't want to look. [Officer G] pulled the blanket. I sat up and tugged at the blanket. The other guard had the garbage can in the door and then the whole blanket came off. . . . He just tore my whole shirt. That's when he assaulted me sexually. [Officer H] yelled at [Officer G] to calm down and left. I was screaming, yelling and crying. Martha across the hall was banging on her window. While he was still in the room, I went into the shower. I felt dirty. (183) According to Quintin N., another prisoner we interviewed, a young Hispanic woman approached her in the fall of 1994 to complain about Officer G. (184) Officer G allegedly told the young woman that he would "take care of her" and asked her whether "she likes a big chorizo [sausage]." Rose S. told us that she was sexually assaulted by a corrections officer on her work assignment. (185) According to Rose S., Officer R began pressuring her for sex and making sexually explicit comments in early 1994 shortly after she arrived at the prison. Officer R would approach her on "the yard" [prison grounds] and ask her when she was going to lay out because "he wanted me to show him some skin." Then, when she was on the yard, she said, "He and two other officers would say things like, 'Let's go in and have a threesome.'" One day Rose S. arrived at her work assignment early and discovered Officer R alone. When she noticed that the supervising officer was not there, Officer R replied that he had arranged time for them to be alone. Rose S. wrote in a statement that Officer R: got up off [the] couch. [He] went to the front door and locked it. Came back, turned the lights out and walked up to me, put his hand on my shoulders, and said, "Are you going to break me off some of that?" I told him, "No, I have only eleven [months] left, and I don't need any trouble." Then he unzipped his pants pulled out his penis, started playing with it, then he started [fondling] my breast. Then he said, "You are at least going to give me some head." I shoved him and told him no, got up off the desk and turned the lights on. By this time, there were other workers outside the door. One of the workers had seen me locked inside. [Officer R] told me, "Sit down in the chair and don't say anything," because he was not going to let any of them in, so I did as I was ordered but one of the workers, pushed her way in and . . . came straight back and saw me sitting in the chair. (186) Rose S. told us that she later learned that another woman allegedly was raped by Officer R a year earlier. Officer R reportedly picked the other woman up in a prison vehicle and took her to a supply area where he forced her to perform oral sex on him. In addition to the cases of rape and attempted rape, we also learned of cases involving sexual assault of prisoners by corrections staff. Staff of Legal Services for Prisoners with Children (LSPC), a San Francisco-based organization, told us that several women at CCWF have been sexually assaulted by a prison doctor. (187) This attorney told us that one prisoner had described being assaulted during a medical visit regarding a lump on her neck in August 1994. The doctor conducted a vaginal examination and, according to the prisoner, made remarks about how tight she was and how long it had been since she had sexual intercourse. A medical assistant was present during the exam, but she reportedly moved behind a screen and did nothing to stop the doctor. The prisoner stated that the doctor then "played with her" and touched her in a sexual way. He never examined the lump on her neck. The same doctor reportedly forced another female prisoner, who had complained of stomach cramps, to get on all fours on the examining table and then gave her a prolonged and painful rectal examination. (188) In addition, LSPC also has received complaints about a male nurse on the CCWF prison medical staff. One woman, who has a disabling medical condition that leaves her physically unable to resist sexual assault, reported that the male nurse repeatedly entered her cell and at times, groped and fondled her. (189) Other times, he would make sexual and degrading comments. Such actions made the prisoner vividly recall her experiences of childhood sexual abuse. In 1996 another prisoner also complained to the prison officials that this same nurse was sexually assaulting her. She wore a hidden microphone that led to prison officials catching the nurse attempting to assault her. The nurse was reportedly removed from the premises immediately and is reportedly on administrative leave without pay while CDC investigates the situation. (190) In 1995 the Post-Conviction Justice Project at the University of Southern California filed a lawsuit against the Protestant chaplain and his supervisors at the California Institute for Women. (191) The suit alleges that the chaplain sexually assaulted female prisoners, thus violating the eighth amendment's prohibition against cruel and unusual punishment. In addition, the suit asserts that women prisoners were afraid to worship with the chaplain and thus, their freedom of religion was infringed. Although some prisoners reported the sexual assaults to prison staff in October 1994, no action was taken against the chaplain until February 1996. At that time, subsequent to the filing of the lawsuit in October 1995, the chaplain was barred from the prison, but only after he reportedly assaulted another women. (192) We found that, at times, sexual relations between officers and prisoners do not involve the officers' overt use or threat of force, punishment or retaliation. Instead, officers abuse their authority by offering prisoners otherwise unavailable goods and services if they submit to sexual demands. Women we interviewed told us that male corrections officers often use the promise of such favorable treatment to draw female prisoners into sexual relations. According to Rebecca Jurado, a law professor and attorney who has worked for many years with female prisoners in California, the women may see nothing out of the ordinary or abusive about this exchange. Given that a number of women prisoners' personal histories include sexual abuse, she told us many women often simply accept such practices as a condition or element of incarceration. (193) Uma M. told us of a pattern on her hall, where one officer would "pop" [release] certain prisoners' doors while other prisoners were at breakfast. The prisoners would then meet the officer at his station or another location. She told us: He would shut the lights down low and pop certain women's doors. One girl Jeanne F. used to go to the officer's room and get stuff. Or, she would go to the laundry room. Other days, he would pop another girl. (194) Uma M.'s observations were supported by Ximena L., another prisoner, who reported similar conduct by other officers. She told us that the relationships often start in a familiar pattern: "They start calling them into the office or come on very nice. They give you ice [cubes], pop you out after hours. They give you an extra phone call." (195) In exchange for such favorable treatment, the prisoners provide sex. According to women whom we interviewed, male officers in California target "like radar" younger female prisoners who are new to the prison system or unfamiliar with the prison environment. Nancy C. told us that the male officers often "pick on the first timers, it seems. They mess with newcomers." While in the receiving area (196) at CCWF, Nancy C. said she observed one male officer who "went through" three women on her unit over a period of approximately six months. According to Nancy C., who worked with one of these women, the officer: would have things for her [the other prisoner] to do where she would have to go to a vacant room or the supply closet. It happened several times . . . The one girl was a little disoriented. The police was just being an opportunist and taking advantage of it. (197) She believes the officer was subsequently transferred to a men's facility. In some instances, prisoners engage in sexual contact with officers absent any overt coercion or exchange. Ximena L., who has been serving a long prison term, told us, "There are relationships going on. Some are consensual and some not. There have always been sexual relationships. The majority are not consensual. They are doing it for drugs and can't say no. Some are initiated by the girls." (198) Susan R. has been incarcerated for several years. She told us that beginning in 1990, she became sexually involved with a corrections officer, primarily out of loneliness. She said: I have no visits. No outside contacts whatsoever. So when a male figure shows you a little attention it made me feel special, worthy of something, someone . . . When he showed me attention, I jumped at it. I built this up in my mind. When I first saw him, I was attracted to him. He's no prize but for some reason I was attracted. He started joking, making catty remarks . . . I jumped at it. I wanted the attention. (199) Susan R. said that she often stayed at her work assignment during dinner to be with him. Later, she said, when he was assigned to her housing unit, she had sexual relations with him in the laundry room, ice room, storage closet or the showers. Patty T. told us that she became involved with an officer for many of the same reasons that motivated Susan R.--she was alone, separated from her family, and seeking care and attention. Patty T. described her situation. "I wasn't really close with others in prison. I worked and went to school and kept myself busy. I was just interested in getting out of prison." (200) She was drawn to an officer who supervised her work assignment and had a relationship with him that lasted over a year and a half. According to Patty T., "I totally initiated it. I went after him for a while. I worked the guard and finally he decided he would deal with me." The relationship ended when she became pregnant by the officer and he received a transfer to another facility. (201) Unfortunately, prisoners who considered themselves to be equal partners in sexual relations with officers often later found that it was difficult to extricate themselves from the officers' control. Nancy C., a former prisoner who has served in both CIW and CCWF, told us that she was sexually involved with a corrections officer at CIW in the mid-1980s. She said the officer "was always bringing me stuff, cologne, money." She told us she had sexual intercourse with the corrections officer on two occasions, but met him several times, in her words, "to mess around." Ultimately, Nancy C. had difficulty getting away from the officer. After she refused to continue sexual relations, he persisted in his pattern of appearing outside her door. He reportedly wanted to meet her at the airport upon her release from prison. Mistreatment of Prisoners Impregnated by Guards Over the years, incarcerated women have become pregnant by California's corrections employees. These women, or those with knowledge about the pregnancy or about efforts to terminate the pregnancy, often are harassed and punished by prison officials. In early 1994 we learned that a prisoner at CIW was impregnated by a civilian employee and tried to terminate the pregnancy herself. The prisoner's attempt to abort came to the attention of prison officials and, in March 1994, three other women who reportedly had knowledge about the pregnancy and abortion attempt were sent to administrative segregation for extended periods. They were eventually released without charges. Patty T., mentioned above, became pregnant as a result of a sexual relationship with a corrections officer in the mid-1980s. After learning she was pregnant, she indicated to the prison doctor that she wanted an abortion. Prison officials reportedly used Patty T.'s desire to have an abortion as a tool in their investigation to press her to reveal the identity of the man who impregnated her. The authorities waited approximately two months after she came forward before sending her out for the abortion. During the investigation, Patty T. was repeatedly questioned by high-ranking officers at the prison. She told us, describing their questioning: They'd bring me into the office and ask how, when and who--even to the point of saying things about my son who was eleven or twelve years old. I had family visits and he could stay over. They were insinuating this was the only male I had come into contact with. (202) She, however, was not willing to provide the officer's name to prison officials. She was placed in administrative segregation for two weeks after the abortion. After a hearing was held, she was released, and no charges were filed against her. The following year, prison officials reportedly attempted to use Patty T.'s hopes of entering the Community Prisoner Mother Infant Care program again to pressure her to reveal the identity of the officer who had impregnated her. The Mother Infant Care program is an alternative sentencing program that allows a limited number of women who are mothers to serve their sentence in a residential community setting with their children. (203) A few days before a court hearing regarding the program, Patty T. was called into the administration offices and, she told us, "They went through it all over again. They said they wouldn't let me go . . . until I told them who the father was." (204) Abusive and Degrading Language We found that some male corrections officers disregard the California Administrative Code's provisions on humane treatment, described above, and employ sexually abusive and obscene language when speaking with or referring to prisoners. At times, such language is used as a prelude to groping and making physical advances toward the prisoners. Such language and conduct pervade the prison environment in California and reinforce among many women prisoners the belief that there are no regulations on how the corrections staff behaves toward them. Patty T. told us that another officer who supervised her work assignment harassed and badgered her and other prisoners. (205) According to Patty T., "The police [corrections officer] who used to work there used to harass the women and say real nasty things. Like if they were ugly, he would tell them." The officer was also assigned to her housing unit for a time, during which he reportedly tried to watch her undress and made "little remarks." According to Patty T., women were permitted to hang towels over the windows in their cell doors when changing to allow for a certain amount of privacy. One day, the officer repeatedly pulled the towel down each time she hung it up. She told us, "Because I would not give him attention, he did things to upset me." Women we interviewed said that female prisoners are often referred to as, and directly called, bitches, whores, sluts and prostitutes. Corrections officers at CCWF have reportedly announced over the loudspeaker, "If you want to get your dinner, you better get your asses over here" or, "All you bitches and whores get into your rooms." (206) Some male corrections officers perceive the women as prostitutes and persistently label them as such. Vanessa B. told us that corrections officers said things to her when she had family visits such as, "Have you visited your tricks?" or "One of your johns?" (207) At times, degrading language and sexual innuendo are accompanied by offensive groping of women's bodies. Tammy P., a former prisoner, told us she was groped by an officer while incarcerated at Avenal State Prison (which no longer holds women). (208) Once, she was changing her tampon when she noticed that Officer A had followed her into the bathroom and was watching her. As Tammy P. turned to leave, Officer A reportedly grabbed her vagina and asked, "Do you think I could have a piece of that?" Officer A was also the corrections officer assigned to her work detail, where he propositioned women and commented on their bodies. According to Tammy P., "He'd come into the kitchen, at breakfast or lunch, and say things like. 'How big do you like 'em?' or, 'Is it big enough for you?' He did this all the time." At other times, he would come into the kitchen and grab his genitals, or tell the women, "You shouldn't bend over like that in front of me." As Tammy P. told us, "It was the way he looked at you, like he was undressing you." Other women on her shift reportedly filed grievances regarding his conduct, but no action apparently was taken to reprimand Officer A and his conduct continued unabated. Degrading language is also prevalent at Valley State Prison for Women's (VSPW) Special Housing Unit. (209) One woman housed at VSPW wrote, "Because I am twenty pounds overweight, I am constantly harassed by certain male guards and called names. . . . I feel we should be treated with the same respect we must show the guards. We definitely are not shown that." (210) Guards there also specifically abuse those prisoners identified as lesbians. Many of the prisoners are deeply disturbed by such degrading, sexual language and behavior. According to Vanessa B., "Nothing that you do that's positive and right is taken that way . . . If you look nice, they will try to humiliate you and make you feel less than human." Vanessa B. considers herself a positive role model for other prisoners and has served on the Warden's Advisory Committee (211) but finds it difficult to endure the badgering from correctional staff. At CCWF, women's sanitary supplies often are rationed or distributed in ways that seem designed to humiliate women prisoners. Women in some units at CCWF are provided a limited ration of sanitary napkins, tampons and toilet paper bimonthly, regardless of need. (212) Under the policy, prisoners told us, additional supplies are not provided either when women run out or if they are locked out of their cells when they begin menstruating. Some corrections officers use the requests for sanitary supplies as an opportunity to denigrate women. According to Vanessa B., "They will throw it [the sanitary napkin] to you and say, 'Here's your surfboard,' or they will say, 'Use toilet paper.'" Male corrections officers have also reportedly told women who request additional supplies to "stuff toilet paper in your pants," "turn it over," or "recycle it." Women who requested toilet paper have been told to "use your muumuu" (213) or "use your shirt." Women in administrative segregation in VSPW who need extra sanitary napkins must request them, one at a time, from the mostly male guards. One woman reported that she had to wait until she had menstrual blood running down her leg before she could get a sanitary napkin. (214) In another reported case, male guards threw a packet of sanitary napkins onto the floor, in response to a request for sanitary napkins, and the prisoner had to "fish" for the packet by using a string, with which she was supposed to catch the packet and drag it along the floor into her cell. While she tried to get the napkin, the guards shouted encouragement and bet on whether she would be successful. (215) As discussed in more detail in the legal background section of this report, prisoners retain an internationally protected right to privacy except when limitations on this right are demonstrably required by the nature of the prison environment. In addition, several U.S. courts, including the Ninth Circuit Court of Appeal, which has jurisdiction over California, have concluded that prisoners retain some right to bodily privacy. In particular courts in the Ninth Circuit have recognized that prisoners have a right not to be strip searched by officers of the opposite sex, except in cases of emergency, to be protected from routine inappropriate visual surveillance by officers of the opposite sex and, in case of female prisoners, not to be subjected to pat-frisks by male officers. In 1981, in Bowling v. Enomoto, a male prisoner sued the CDC alleging his right to privacy was violated by the presence of female officers who often saw him undressing, showering, and using the toilet. (216) The court in Bowling directed the CDC to develop a procedure for protecting prisoner privacy similar to that employed in New York's women's prisons pursuant to Forts v. Ward. (217) In a suit with similar allegations filed a few years later, Grummett v. Rushen, (218) the Ninth Circuit Court of Appeals, while recognizing that the prisoners had a constitutional right to privacy, rejected the male prisoners' claims because the CDC already had in place definitions of the duties of female corrections officers designed to minimize viewing of male prisoners in a state of undress. (219) The court also rejected the prisoners' claim that pat-searches conducted by female officers violated their constitutional right to privacy under the Fourth Amendment. However, the Ninth Circuit Court of Appeals later determined that the use of male corrections officers to pat-search female prisoners violates the eighth amendment to the U.S. Constitution. In Jordan v. Gardner, (220) women incarcerated in Washington State challenged the introduction of a policy that would have permitted male corrections officers to conduct pat-searches on female prisoners. The Ninth Circuit determined that in light of the women's history of abuse, pat-searches carried out by male officers violated the eighth amendment's prohibition on cruel and unusual punishment. Materials sent to us by the CDC indicate pat-searches are still governed by a provision in the Operations Manual drafted in 1989, which does not mandate same-sex pat-searches. (221) Despite these rulings and clear international standards upholding prisoners' privacy rights, the 1995 Report of the California Commission on Female Inmates and Parolee Issues, mentioned at the start of this chapter, found that in California "in the case of issues such as female inmate privacy, the CDC has developed no policy at all." (222) Under California's administrative code, male corrections officers may not perform strip searches but are otherwise granted broad authority to enter prisoners' cells and living areas. (223) Corrections officers, in general, may conduct clothed searches of prisoners and perform unannounced, random inspections, including of a prisoner's cell and living area. (224) While "living area" is not defined, our interviews indicate that it is understood to include shower and toilet facilities. Title 15 also requires that strip searches should be conducted in a professional manner that avoids embarrassment and indignity to prisoners and that such searches should be conducted outside the view of others whenever possible. (225) Nonetheless, these rules leave too much to officer discretion with respect to the prisoner's right to privacy and create unnecessary opportunities for privacy-related sexual misconduct to occur. As stated above, California law prohibits male officers from conducting cross-gender strip searches. However, this protection is meaningless if strip searches are carried out by female officers while in the presence of male colleagues. Yet, we have received reports that women incarcerated at CCWF have been forced to strip and be searched in the presence of male corrections employees. Ellen Barry, of LSPC, told us that she received a letter from a prisoner in February 1995 alleging that women prisoners were required to submit to strip searches while in the receiving area at CCWF in a location where male corrections officers were working and while male transportation officers were passing through. The prisoner who contacted the attorney included her name and identification number and those of two other women prisoners who were stripped under the same conditions. She also attached a petition signed by over fifty women prisoners alleging they were stripped under similarly invasive conditions. One male guard, in particular, was mentioned by several women in CCWF as being known for standing in the doorway and leering during strip searches. (226) The prisoner also filed a grievance about the searches. In response, a sergeant at CCWF conceded that the searches occurred as described, but stated that male officers and employees were not obligated to alter their movements to avoid being present while the searches were conducted and, thus, that no misconduct occurred. A woman placed in administrative segregation in VSPW wrote a prisoner advocacy organization that prior to taking a shower she had to strip naked, bend over at the waist and spread her cheeks, in the full view of all staff, including men and women. (227) In addition, she wrote that guards would make rude comments about prisoners' bodies during strip searches and at other times. Inappropriate Visual Surveillance A number of prisoners also told us they had been subjected to inappropriate visual surveillance by male officers. At CIW, current and former prisoners told us they are permitted to cover their cell windows when using the toilet or changing. (228) However, not all corrections officers respect this practice. Our interviews indicate that some male corrections officers have instructed women to leave their window clear while others have removed towels or other items used to cover the window. When Nancy C. was at CIW, she told us, a male corrections officer used to peek through her window to watch her or her cellmate change. In other cases, according to Ximena L., male officers enter the women's cells even when the window is covered. At CCWF, the structure of the living units reportedly contributes to unnecessary viewing by male corrections officers. Prisoners told us that each living unit, which houses up to eight women, has a wide window that opens to the corridor. (229) Unlike at CIW, prisoners at CCWF told us they may not cover this window for short intervals while changing. Male officers, who are routinely stationed on the housing units, wander the corridors at all hours and do not always announce their presence. A large majority of officers in the CCWF housing units are men, and female prisoners sometimes go twenty-four hours without seeing a female officer. A number of women reported that male corrections officers enter living units while women are dressing or showering, on the pretense of conducting a search. At CCWF, male guards routinely watch women use the toilets and showers. Afterwards the guards make degrading remarks about the prisoners' bodies. (230) According to Olga G., "You are never sure when you will get walked in on." Vanessa B. told us: When you take a shower, they'll come in and talk to you . . . When they walk down the hall, they can see you depending on your height through the window. They will stand outside your window or flash their lights, or they will come in and search the room while you are in the shower and tell you to come out. (231) The shower doors are constructed to cover the body only partially, concealing the women from her shoulders to knees. Women in VSPW are accorded virtually no bodily privacy in administrative segregation. If a female prisoner has to use the bathroom during her three-hour exercise period, she must use a toilet that is directly below the guard tower, which usually is staffed by a male guard. (232) Often, the woman must request toilet paper from this same guard. In addition, male guards regularly watch women prisoners shower. The showers are positioned such that all male guards have an unobstructed view of the women showering. The guards reportedly try to engage the women in conversation while they are showering, and if they fail, the guards often will make degrading comments about the women. (233) We have also received reports that female prisoners in VSPW often must receive their medical exams, including gynecological exams, in the presence of male guards. (234) Seven former prisoners sued the CDC for violations of privacy between December 1988 and March 1991. (235) The CDC opened two sections for women at Avenal, then a men's prison, on a temporary basis to alleviate overcrowding at CIW. Avenal was structured as an open dormitory environment with few physical or privacy barriers. Prior to their arrival, the only structural change was the installation of opaque screens along the walkways. These screens provided only limited protection--they were approximately three feet high, and were placed off the ground allowing for visibility from underneath. From certain areas in the facility, male corrections officers had an unobstructed view into the showers, enabling them to observe a woman's naked body from her neck to below her knee. Women's cubicles similarly offered limited protection from being viewed while naked--doors were not installed in the housing units of one section, and many of the doors were removed from housing units in the second section. Women could also be viewed while using the toilet. One common toilet facility abutted the guards' office, separated only by a large plate glass window. This gave the officers an unobstructed view of the women using the facilities. Paper was only irregularly put on the window to shield the toilets from viewing by the male officers. In another area, the women's toilets were visible from the officers' platform. The overwhelming majority of officers at Avenal were men-- approximately 90 percent. These officers were directly counseled by the program administrator, one of whom was assigned to each yard, to enter and patrol regularly the showers, sleeping areas and toilets to check for any "misconduct." The program administrators rejected, "for security reasons," proposals to have officers announce their presence prior to entering an area. The women were not only subjected to constant viewing by male officers, but were also viewed by nonsecurity personnel and visitors to the prison on tours. On a number of occasions, such persons were brought through the women's yards even when the women were undressed or using the toilets. Within this environment, women were exposed to constant physical observation and harassment by male staff. We interviewed two women formerly held at Avenal. According to Quintin N., at times officers would walk into the showers or "they would watch you change your Kotex or go to the bathroom. At times, they would come and talk to you when you were on the toilet." (236) The privacy panels did little to conceal the women from the male correctional officers. According to Quintin N., the officers intentionally sat in certain locations so they could watch the women showering and used to play a game--"name those buns"--trying to identify a particular woman by looking at her naked buttocks. She also told us that when women tried to hang a towel to provide some privacy while dressing, officers would pull it down, smile and remark, "You know you can't do that." Tammy P. supported Quintin N.'s observations. She told us, "I felt like I had no privacy, nowhere to go. I felt exposed at all times . . . I almost lost my mind." (237) The officers, she said, would walk through the sleeping areas at night and in the morning when women were dressing and undressing. Conditions at Avenal were further exacerbated by the fact that the CDC issued extremely revealing nightgowns to the women imprisoned there. The gown, which we saw, had a low scoop neck, was cut to fit tightly against the body, and was virtually transparent. It did not reach the knees. Both women we interviewed also experienced problems with abusive pat-frisks by male officers. Tammy P. told us, "They would use their palms. One guard would get real close, lean against you when he did the search. They all used their palms going over the breasts and through the crotch." (238) Quintin N., similarly, told us she was groped by an officer during a frisk. As she described it, "Officer E put his hands on me . . . At first I didn't believe it and just looked back at him. . . This kind of stuff went on together with everything." (239) The CDC told us that it investigates every allegation of sexual misconduct and refers reports of alleged felonies to the local District Attorney's Office. (240) According to the CDC, in 1994-95 it received only ten reports of sexual misconduct in its facilities, half of which were closed because of insufficient evidence. Of the remaining five reports, three resulted in firing of the abusive employees. Despite these welcome disciplinary actions, our investigation suggests that they address only a fraction of the sexual misconduct occurring in California's facilities. At present, the mechanisms for reporting and investigating such abuse are seriously flawed. In addition, potential complainants perceive that they could face retaliation and thus, are reluctant to come forward. Until these problems are addressed, it will be difficult fully to expose and eliminate sexual misconduct in California's prisons. Only one case was referred to the local District Attorney. (241) International human rights law obligates national governments to ensure that when prison abuses occur they can be reported and investigated without the complainant fearing undue punishment or retaliation. Moreover, in the United States, prisoners are guaranteed access to the courts to challenge prison conditions or other prison problems. (242) Under California's administrative code, prisoners may complain about "any departmental decision, action, condition or policy perceived by [the prisoner] as adversely affecting their welfare." (243) These complaints are known as 602s, the number on the grievance form that a prisoner must file. Both prisoners and attorneys observed, however, that in practice 602s are generally ineffective in addressing complaints of sexual misconduct by corrections officers. According to Professor Jurado, the grievance mechanism functions adequately for routine or clear-cut complaints regarding property or problems with a prisoner's account, but not for what she characterized as "interpersonal" issues. (244) Ximena L. also told us that the grievance procedure works well with technical things: "At the first level, you usually get some idiotic response. You usually need to get to [the second level] to get it fixed." But, she told us, if the grievance raises a problem with an institutional policy or sexual harassment, it generally will be denied. Our interviews indicate that the grievance procedure is difficult for women to access. First, prisoners entering the system receive no training on how to use the procedure and many women do not know how to file a grievance. Some California prison administrators have inhibited or obstructed efforts by women prisoners to provide training or instructions to other prisoners through prison law libraries. The law librarian at one prison, for example, reportedly would not allow Quintin N. to make copies of the 602 form or of an information sheet that she prepared for the prisoners on how to file a grievance, despite a provision of Title 15 which states that "an inmate, parolee or other person may assist another inmate or parolee with preparation of an appeal unless the act of providing such assistance would create an unsafe or unmanageable situation." (245) Second, while Title 15 mandates that appeals forms be "readily available," this was not the case in at least one California prison that we visited. The grievance process further requires corrections officers to participate willingly in the grievance process and to respond in a responsible and professional manner to a prisoner's complaint. (246) Officers do not, however, always respect the procedure. Prisoners we interviewed told us that some corrections officers, when presented with a 602 form, have simply thrown the grievance out and/or mocked the prisoner who filed it. According to Susan S.: [Corrections officers] will tear it up and throw it in the garbage . . . Or, [they] will say, "Go ahead and 602 me because I know it won't go nowhere." Most 602s will get thrown in the garbage before you go away. It's a joke to them. (247) California, like Michigan, requires the prisoner to speak with the offending staff member prior to filing a formal appeal. (248) This informal level is waived in limited circumstances, such as actions that the appeals coordinator determines cannot be resolved informally and alleged misconduct by a "departmental peace officer." (249) Misconduct and "departmental peace officer" are not defined. Even though incarcerated women may bypass this informal level, in Professor Jurado's experience and in the experience of other attorney advisors, the grievance eventually filters back to the officer. As a result, women feel threatened or afraid to lodge grievances because corrections officers ultimately will know that they complained. (250) The U.S. Department of Justice, in reviewing a similar requirement in the Michigan grievance procedure, stated that "this requirement has the purpose, intent or effect of intimidating the inmates and discouraging the filing of grievances." (251) Even when women have filed grievances, they have often faced official bias against prisoner testimony. After the assault on Uma M. detailed in the section on rape and sexual assault above, she told us that she informed a prison investigator about Officer G's previous harassment, his visit to her family's home and his offer to bring her certain items. An investigation was subsequently initiated into Officer G's conduct. According to Uma M., the investigator opened her interview by asserting that she would not believe any charges of sexual misconduct, stating, "Do you know how many girls say they've been sexually harassed? What do you want, to go home early?" This bias against prisoners has also manifested itself in prison officials' selective enforcement of grievance procedures. In one case we investigated, a sergeant did not respond to a prisoner's grievance concerning an inappropriate strip search mentioned above for nearly four weeks, more than three weeks beyond the statutorily mandated period for his response. The authorities nonetheless accepted his response. However, when the prisoner subsequently appealed the sergeant's response to the first level of review, the CCWF's appeals coordinator denied the appeal solely because it was received after the fifteen-day period set forth in Title 15. He never reached the merits of her complaint. (252) The appeals coordinator then denied a second grievance filed by the prisoner regarding the sergeant's initial delay in responding to her grievance on the basis that it was "not an appeal issue." Corrections officials, in reviewing prisoner grievances, often use a prisoner's prior receipt of disciplinary tickets to deny her grievance or to argue that she is lying. This occurs even when the officer's conduct and his issuing the disciplinary ticket itself are at issue. In one grievance we reviewed, a prisoner reported an officer who, she alleged, pulled her into the guards' office and repeatedly called her a "bitch" and a "fucking bitch." According to the prisoner, the officer then handcuffed her and removed her from the unit. On appeal, CDC officials determined there was no merit to the prisoner's claim because the officer had placed her in administrative segregation following the alleged incident and because her "file [was] replete with misconduct reports which depict a serious pattern of misbehavior." In other words, because the officer disciplined the prisoner at the time of the incident and because she had received disciplinary tickets in the past, her allegation of wrongdoing was deemed meritless. In general, we found that CDC's investigative procedures are fairly ad hoc. Moreover, they often are punitive against the complainant, lack any pretense of confidentiality, are largely closed to outside monitors, including the complainants' attorneys, and often expose the prisoners to retaliation and, in some cases, punishment. As mentioned in the background section above, international human rights law obligates the United States to investigate complaints of ill-treatment effectively. However, California's Title 15 neither specifies a mechanism for investigating allegations of staff misconduct nor indicates when an investigation is required. (253) Instead, the CDC's operations manual, which consists of internal guidelines and not law, governs investigations. (254) The operations manual indicates that allegations of employee misconduct should first be investigated by the Internal Affairs Division of the CDC as a prerequisite to disciplinary action against an employee. However, the manual does not identify what triggers an investigation into alleged staff misconduct or any procedures or time frame for the conduct of such inquiries. (255) We found that investigations are usually conducted at the institutional level by an investigator based at the prison in question. (256) Effective protection of the confidentiality, and hence safety, of complainants and witnesses is essential to the integrity of any grievance or investigative process. Absent such a guarantee, the fear of retaliation against complainants has a chilling effect on those who might report alleged sexual misconduct. In California, a woman's identity may initially be protected when corrections officials question an implicated officer, but her identity is not always concealed as the investigation progresses or once it concludes. From our interviews, it appears that some corrections officers under investigation for alleged sexual misconduct were provided with the name of the prisoner or prisoners during the course of the investigation. Provisions of the CDC's operations manual, which governs employee discipline, in fact provide that employees be given a copy of the investigation report, including a summary of the witnesses' statements and their full names, before any disciplinary action may be taken. This procedure is not problematic where an implicated officer has been suspended and is no longer in direct contact with a prisoner, but such precaution is not always taken. Thus, the revelation of the complainant's identity can expose her to the possibility of continued abuse. Confidentiality is also jeopardized by a provision in Title 15 of the administrative code that encourages corrections officers to review a prisoner's central file "for assistance in better understanding the [prisoner]." (257) A prisoner's central file contains personal information regarding the prisoner, including her criminal and personal history, as well as copies of grievances and documents relating to her role in an investigation. While Title 15 counsels officers that the information is "private and privileged," the access, in and of itself, abrogates any privacy or privilege the prisoner may have with respect to this information. Title 15 also provides that the contents of a prisoner's central file "will not be the subject of banter between employees or between employees and the [prisoner] to whom it pertains or with other [prisoners]." (258) Our interviews indicate, however, that corrections officers have disregarded this provision and have exploited their knowledge of information contained in the central file to harass and badger prisoners. Two women we interviewed reported that corrections officers knew things about previous investigations or grievances that could only be learned through their central files. This information was then used by the officer to harass the prisoners. According to Patty T., a correctional officer on her unit made a comment to her and her roommate about her pregnancy and the abortion she had undergone. (259) Quintin N. told us that she grew suspicious that officers were looking into her files when one or two began questioning her about her role in the Avenal litigation. She subsequently requested permission to see her central file and told us that she discovered that grievances and other information related to the Avenal lawsuit had tabs placed on them indicating that someone had reviewed her files and particularly her past complaints. (260) In both Rose S.'s and Uma M.'s cases, other corrections officers also obtained information about the investigation. Rose S. remained at the prison during the investigation, and her participation became known because she was repeatedly interviewed and called to meet the prison investigator. (261) According to Uma M., officers at a second prison were aware of her role in the investigation into Officer G and made specific reference to Officer G's suspension. (262) Ximena L. made similar observations to us. She told us that it is "a very dangerous thing to do" to make a report of sexual misconduct against a corrections officer. Prisoners, she said, lacked someone to "run to," they are "without credibility, [without] people who will help [them] or believe in [them]." In her experience, "An awful lot of [women] just silently endure it . . . [They] keep quiet and serve out their term." (263) The absence of confidentiality, both with respect to the employee when he holds a contact position over the prisoner and with respect to the prison population more generally, enhance the risk that complainants will face retaliatory actions without redress, despite Title 15's clear statement that "no reprisal shall be taken against an inmate . . . for filing an appeal." Our interviews indicate that women who have filed grievances and women who participate in investigations are harassed by corrections staff. According to Quintin N., "Most of the women here are afraid to file a 602 because they think they'll get in trouble. Most women here do not know the procedure and the cops [guards] will take reprisals." (264) Tammy M. resisted a friend's suggestion to come forward after Officer A groped her in the bathroom. "[M]y friend tried to get me to go tell. I wouldn't do it, out of fear. I envisioned them putting me in the hole [segregation]. People were thrown in the hole there all the time, for anything." (265) The officers fuel this fear. Ximena L. told us, "It is easy to intimidate those with no education or those with shorter sentences . . . People are very leery about raising allegations." (266) Women who have assisted prison officials in investigating sexual misconduct have faced harassment and retaliation. Uma M. told us that after she alleged sexual misconduct, she was repeatedly harassed by staff as well as prisoners sympathetic to the staff. Corrections officers, she reported, repeatedly questioned her about her role in the investigation and called her out of her cell to tell her such things as, "You think that was bad, now you're in my unit. Wait until you see what we do with you here." Everyone, she said, knew she played a role in having Officer G suspended. The harassment from corrections officers continued even after she was transferred to a different facility. At the second prison two officers pulled her from her room, handcuffed her and took her into their office, where they proceeded to badger her. In an apparent reference to Officer G, they reportedly asked her whether she was going to get one of their colleagues suspended. (267) Rose S. experienced harassment from other officers that she believes stemmed from the investigation into her allegation of attempted rape. Corrections officers allegedly searched her cell repeatedly and made snide remarks such as, "The best thing is to squash this." She told us, "Every day you hear it--'you rat,' 'you slut' . . . They are harassing me to the point where it's getting ridiculous." (268) The female prisoner at CCWF, who was allegedly assaulted by a male nurse, has also experienced harassment from other guards and her fellow prisoners. The harassment reportedly stemmed from the fact that she reported the guard's behavior even though they were both African American. (269) Rebecca Jurado corroborated the prisoners' accounts of reprisal. She told us that the environment within the women's prisons serves as a strong deterrent to raising complaints and filing grievances, particularly about issues such as sexual misconduct. Since both corrections officers and prisoners appear to profit from the most pervasive form of this abuse--the exchange of sexual favors for preferential treatment, money or goods--they oppose anyone who challenges the status quo. This, Jurado told us, gives rise to a climate hostile to complaints of sexual misconduct. Prisoners who tell get a "snitch jacket" from officers and other prisoners--they are labeled and thereby isolated from the prison community. (270) Abuse of Administrative Segregation Efforts by California to remedy the lack of appropriate confidentiality in its grievance and investigatory procedures and to ensure that complainants will not be retaliated against will be of little value unless they are accompanied by the assurance that the state will not punish prisoners if they speak out. At present, no such assurance exists and, in fact, women who complain of sexual misconduct are often punished. Of particular concern to us is the placement of prisoners who report sexual misconduct in administrative segregation while an investigation is pending. In VSPW, according to Millard Murphy, a law professor at the University of California, Davis, many of the women in administrative segregation are there because they resisted pat searches that they perceived as sexually degrading. (271) We also are concerned about reports of women who have complained about the medical staff at CCWF and were then placed in administrative segregation. (272) Title 15 of California's administrative code contains a vague provision which corrections officials exploit to segregate prisoners even when they have done no wrong. The provision states that a prisoner may be placed in administrative segregation if her "presence [in the general population] presents an immediate threat to the safety of the inmate or others, endangers institution security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity." (273) Title 15 also provides that the prisoner may be held in administrative segregation for ten days without a hearing, and the prisoner receives a review of the segregation order every thirty days thereafter. There is no outside limit on the time spent in segregation. (274) While administrative segregation is clearly intended as a legitimate means to isolate prisoners who pose a risk to others or who have violated the rules, this provision also has been used to isolate rule-abiding prisoners who have reported abuse by corrections employees. Moreover, Title 15 requires that the conditions of administrative segregation "approximate" those of the general population. However, we found that women housed in administrative segregation pending an investigation have been kept there for extensive periods of time and denied access to the telephone and visits with their attorneys. They were permitted to leave their rooms for shorter periods than those in general population and reported receiving inadequate and inedible food. Prisoners held in administrative segregation at CIW reported that there were rats and bugs in the cells and that the food arrived cold, with bird droppings in it. (275) Carrie Hempel, an attorney and law professor, told us that one of her clients was kept in administrative segregation for over three months. (276) The prisoner was sent to administrative segregation after another prisoner, who was impregnated by a staff member, attempted to self-administer an abortion. Hempel's client was one of three prisoners placed in administrative segregation at the prison for allegedly having knowledge of the incident, while prison officials purportedly investigated. While in administrative segregation, the prisoner was not permitted to telephone an attorney. In addition, upon the prisoner's placement in administrative segregation, her personal property was confiscated and her space within the general population reassigned. At the time we spoke with Hempel, prison officials had returned only certain items to the prisoner and she was experiencing difficulties obtaining the rest. No charges were ever filed against Hempel's client, or the other two women, who both spent more than thirty days in segregation. The male staff member was reportedly suspended. Uma M., who reported having been raped by an officer, was repeatedly placed in administrative segregation for long periods of time throughout the first half of 1994. According to Uma M., after she came forward, she was transferred to a second prison while officials at the first prison conducted an investigation. At this second prison, she was initially placed in the general population and then moved by an assistant warden to administrative segregation, where she was housed for over a month. She told us prison officials denied her privileges of the general population even though she was sent to administrative segregation "for the security of the institution" and not on a disciplinary offense. Uma M. was subsequently transferred a second time and once again placed in administrative segregation for nearly six weeks for the "security of the institution," again due to her role in the investigation at the first facility. (277) This punitive use of administrative segregation during investigations strongly deters prisoners from bringing allegations of misconduct by correctional officers. Prisoners believe that if they come forward, they will be placed in segregation while the institution decides how to respond to the complaint. According to Ximena L., "People can't really come forward. If it's an allegation of substantial wrongdoing by an officer against a prisoner, you can count on going to jail [administrative segregation]." Lack of Accountability to Prisoners and External Monitors Improvements in California's response to prisoner complaints of sexual misconduct would be that much more likely, and effective, if they were adopted in cooperation with external, independent monitors, including prisoners' attorneys. At present, however, such external advocates have inadequate access to prison facilities and to prisoners, and are consulted infrequently, if at all, with respect to these issues. Moreover, significant barriers exist to prisoners' communication with those outside the system. Prisoners are permitted only one collect telephone call every two weeks unless they obtain special privileges through their work details or through the willingness of particular staff. Legal visits are also restricted to certain days and times, and legal calls are difficult to arrange. (278) When we contacted one prison to obtain information about the procedure for arranging legal visits, we were given the procedure but informed that we would have to give additional notice if we were with the American Civil Liberties Union (ACLU) and looking into medical care issues. California enacted legislation in August 1994 to restrict prisoners' rights and their access to those outside the prisons even further. Under Title 15, a prisoner's visits may only be restricted "as is necessary for the reasonable security of the institution and safety of persons." (279) The legislation amended Section 2601 of the California Penal Code to grant prison officials broader authority to limit visits, allowing the denial of visitation if they determine that this would serve a "legitimate penological interest." (280) The provision appears to permit prison officials the same, broad discretion in denying legal as well as family visits. Although the language may be unconstitutional (plans to challenge it are underway), prior to a court ruling it could lead to severe limitations on the rights of prisoners to access the court. Prisoners housed in administrative segregation are further limited in their ability to contact their attorneys. As mentioned above, according to Carrie Hempel, one of her clients was denied telephone calls completely after she was sent to administrative segregation and was forced to contact Hempel in writing. This delayed Hempel's efforts to pursue her client's case with prison officials. Hempel experienced even more difficulties when she attempted to visit her client. She told us that, contrary to Title 15, prison officials initially would allow her to see the prisoner only in a noncontact, nonconfidential setting. (281) Prison officials eventually granted the prisoner a confidential, noncontact visit only after she persisted and waited approximately two and one-half hours. According to Hempel, who directs a legal clinic at the University of Southern California that provides legal representation to women at CIW, officials at the prison have not been open to meeting with clinic representatives. In contrast, prison officials at the Terminal Island men's prison had been receptive to the legal clinic and they were able to establish a good working relationship. (282) California also has taken steps to reduce journalists' access to prisoners by prohibiting reporters from interviewing prisoners in the prison. (283) According to J.P. Tremblay, assistant secretary of the Youth and Adult Correctional Agency (an executive body), as of December 1995 the ban was a temporary measure to discourage the media glamorization of certain prisoners. The ban would be in force until new guidelines could be drafted that distinguished between "legitimate news and entertainment news." (284) However, when justifying the prohibition on reporters, Tremblay cited Vaughn Dortch, whose media exposure had been limited to recounting his experience of being scalded during a forced bath while in prison. This suggests that part of the ban's rationale was to prevent prisoners from publicizing certain prison conditions. On March 29, 1996, the CDC further restricted prisoners' ability to correspond confidentially with reporters by filing proposed revisions to prison regulations that would make the media ban permanent and allow the CDC to read prisoners' letters to reporters. (285) Tremblay stated the latter revision was designed to prevent prisoners from requesting help for escapes. (286) Prisoners may still call reporters on the phone, but such conversations are monitored randomly. One of the most troubling aspects of the CDC's failure to respond adequately to sexual misconduct is its consistent unwillingness adequately to discipline or punish correctional officers who engage in such abuse. As noted above, California does have a law criminalizing actual sexual misconduct in custody. However, according to the CDC's own figures, this only rarely results in referral for prosecution. Of the total of ten reported complaints of sexual misconduct in 1994-95, only one case was referred to the district attorney. (287) Testimony we received from prisoners indicates that, in some cases, corrections officers and other employees allegedly involved in sexual relations with prisoners are suspended or moved to noncontact positions pending investigation. (288) Quintin N. provided us with the names of seven male officers--including Officers G and R--who were reportedly suspended from the prison where she was incarcerated amid, she believed, allegations of sexual misconduct. However, according to the testimony we received, although the officers are temporarily suspended, they often return to the facility after an investigation ends, or are transferred to another prison. Investigators reportedly told Rose S. that if she was transferred to another facility, Officer R would return to the prison. We learned, moreover, that the CDC does not always respond promptly with disciplinary action. As mentioned above, in 1993 seven women formerly incarcerated at Avenal sued several corrections officers and the CDC for alleged violations of their constitutional rights. Some of these officers remained at Avenal after the women left; others, including Officer G, were transferred to CCWF. Once at CCWF, Officer G was suspended after he was reportedly discovered bringing women's lingerie and other contraband into the facility. Shortly after this incident, CDC settled the Avenal suit. However, an attorney representing the women knew of no disciplinary action taken against any of the corrections officers named in the suit. He told us the CDC "took pains not to admit any liability as part of the settlement." (289) In addition, to our knowledge, the doctor at CCWF, who reportedly sexually assaulted several women prisoners, continues to practice there. I. Prohibiting Sex in Custody A. California should enforce its law criminalizing all instances of sexual intercourse between prison staff and prisoners by investigating all reports of such incidents and prosecuting responsible prison staff to the full extent of the law. B. The California Legislature also should amend Title 15 of the Administrative Code to explicitly ban sexual intercourse, sexual touching or any other form of sexual contact between corrections employees and prisoners and to require that prisoners are free from torture or cruel, inhuman, or degrading treatment as a matter of compliance with U.S. obligations under international law. Such contact not only constitutes a violation of the corrections official's professional duty; it is also a criminal offense and should be prosecuted as a felony. C. The CDC should remove all administrative provisions that allow for the punishment of prisoners who engage in sexual intercourse, sexual contact or any other form of sexual conduct with corrections staff, and cease punishing prisoners found to have engaged in such behavior. Punishment of prisoners has the effect of deterring their reporting of sexual abuse by corrections staff. D. The CDC should cease using administrative segregation as de facto punishment when prisoners report sexual misconduct by guards. II. Safeguarding Prisoners Impregnated by Guards A. The CDC should stop punishing or harassing in any way prisoners who are impregnated by officers. The CDC should also refrain from administratively segregating pregnant prisoners, unless they expressly request it. Administrative segregation should provide for the provision of adequate medical and hygienic requirements necessary for a safe pregnancy. B. The CDC should ensure that female prisoners impregnated by corrections staff are not pressured in any way to undergo an abortion. Prisoners also should receive neutral counseling on the options available to them. C. The CDC should ensure that pregnant women receive timely and adequate medical care, and that medical treatment recommended by physicians is provided as prescribed. D. Medical care should include psychiatric counseling for prisoners who are impregnated as a consequence of rape or sexual abuse. III. Prohibiting Abusive and Degrading Language The CDC should enforce provisions of Title 15 that mandate humane treatment and prohibit derogatory language. Corrections staff must be made aware, through enforcement, that they are obligated to comply with such provisions or be subjected to disciplinary sanctions. IV. Protecting Privacy: The Need for a Policy A. The CDC should institute a policy to protect the privacy of women prisoners consistent with several federal court decisions recognizing that prisoners have a constitutionally protected right to privacy. Corrections employees should be fully trained in this policy, and it should be enforced strictly. Such a policy should include, among other things: 1. a requirement that male officers announce their presence before entering a women's housing unit, toilet or shower area; 2. permission for prisoners to cover their cell windows for limited intervals while undressing or using the toilets in their cells; and 3. a rule that only female officers should be present during gynecological examinations. B. Consistent with Title 15, Section 3287, the CDC should cease "unclothed body searches" of women prisoners either by or in the presence of male employees, or under circumstances where a male employee may be in a position to observe the prisoner while she is undressed. Strip searches should be administered in a location that limits access by other prisoners or employees. C. The CDC should use female officers to pat-search female prisoners whenever possible. All officers should be trained in the appropriate conduct of pat frisks and in the disciplinary sanctions associated with improperly performed searches. Women prisoners who either pull away during offensive pat-searches or request that the search be conducted by a female officer should not be subjected automatically to disciplinary action. V. Ensuring an Effective Remedy Grievances A. In cases of alleged sexual misconduct by corrections employees, prisoners should be authorized to bypass the informal level of review and file their complaints directly with the prison superintendent or investigator. The CDC should amend Title 15 to encourage the use of an informal stage rather than to require such a stage. B. The CDC should also introduce into Title 15 protections that require prompt and impartial investigations into complaints of sexual misconduct by corrections employees. The grievance procedure should, among other things, protect the confidentiality of the complainant and witnesses during the time that the officer is potentially in contact with them, ensure that prisoner testimony is give due weight, and prohibit the implicated officer from conducting the investigation. C. The CDC should make grievance forms readily available in the prison library or some other neutral place. D. The CDC should enforce provisions of Title 15 that permit prisoners to assist each other in the preparation of grievances. Investigations A. The CDC should promulgate a written, public procedure for conducting investigations into sexual misconduct. The investigative procedure should, at a minimum: 1. specify the circumstances necessary to initiate an investigation; 2. provide for a special investigator trained to handle such issues, with the necessary human and material resources to do so; 3. set forth a clear structure and time frame for conducting investigations; 4. protect as much as possible the anonymity of the complainant; 5. guard complainants and witnesses from retaliation and harassment; and 6. ensure accountability to outside monitors. The complainant's legal counsel, upon request, should be provided a written record of the investigation, including all statements made by the complainants and witnesses. B. The CDC should integrate the investigative procedure into its operations manual and make it available as a public document. C. The CDC should require all corrections employees to report promptly any allegations, including rumors, of sexual misconduct or other overfamiliar conduct to the prison warden. Failure to do so should be a punishable offense. D. The CDC should not, under any circumstances, assign implicated officers to investigate allegations of their own misconduct. Officers alleged to have committed rape, sexual assault or criminal sexual contact should be assigned to noncontact positions or suspended until the circumstances are clarified and the investigation completed. E. The CDC should refer promptly all allegations of rape, sexual assault and other alleged criminal conduct to the state police for criminal investigation. When a referral is made to the state police, the CDC should continue, not cease, its own internal investigation into possible employee misconduct and proceed with disciplinary action when appropriate. VI. Preventing Retaliation Against Complainants A. Investigators should not recommend a disciplinary report, and wardens should not impose one, as punishment for a complaint of sexual abuse found to be unsubstantiated, unless the complaint is manifestly frivolous or made in bad faith. B. The CDC should ensure, as much as possible, the confidentiality of allegations of sexual misconduct by prison staff and the anonymity of both complainant and witnesses; their names should not be given to the accused officer while he or she remains in a contact position with the complainant or is assigned to the facility where the complainant resides. The CDC should also prevent the complainant's name from being revealed generally within the facility. C. The California Legislature should review Title 15, Section 3402, of the administrative code and amend it further to restrict access to files not already protected and to ensure that better protections for the confidentiality of records are provided. We believe that in order to be prepared to work with women prisoners, corrections investigators should receive increased staff training and supervision, rather than unfettered access to prisoner files. D. In accordance with its operations manual, the CDC should suspend (place on administrative leave) any employee accused of sexual misconduct, including "unacceptable familiarity," with a prisoner, if such misconduct once proven would result in dismissal. E. The CDC should investigate reports of retribution promptly and vigorously and should discipline transgressing employees appropriately. VII. Curtailing the Use of Administrative Segregation The CDC should authorize the use of administrative segregation during an investigation only at the prisoner's explicit request. Since a prisoner placed in administrative segregation for her own protection has not committed a disciplinary offense, she should retain the rights of the general population (e.g., telephone calls, visits, access to recreation, etc.). She should be returned to the general population when she requests to be. The CDC should train employees assigned to segregated housing units regarding such provisions. VIII. Ensuring Discipline A. The CDC should create a clear policy on disciplinary action against abusive corrections employees. This policy should state explicitly that an employee found to have engaged in sexual relations or sexual contact with prisoners will be dismissed. Transfer of such employees to other positions or facilities does not constitute appropriate punishment. B. The CDC should also discipline officers who have violated Title 15 provisions mandating the humane treatment of prisoners. C. The CDC should publish, at least quarterly, a report on disciplinary actions taken against corrections employees responsible for misconduct or abuse. The reports should omit the names of prisoners and, if necessary, of employees. But they should include dates, locations, and other relevant details about the reported incidents and the types of punishment applied. IX. Hiring and Training Corrections Employees A. The CDC should improve its screening procedures for applicants for corrections positions. Background checks should be completed before new employees are sent into correctional facilities. In no case should the CDC rehire an employee who has been convicted of an offense related to sexual misconduct in custody or who resigned in order to avoid such investigation. B. The CDC should, as soon as possible, implement comprehensive and mandatory training on issues specific to incarcerated women for all current and future corrections employees assigned to women's prisons. This training should include, among other things: 1. a general discussion or profile of female prisoners and their potential vulnerability to sexual misconduct; 2. CDC policies on privacy and the prohibition on sexual relations, degrading language, and other sexually oriented or degrading behavior toward incarcerated women and the disciplinary or criminal sanctions associated with this behavior; and 3. appropriate methods for conducting pat-searches, strip searches, and searches of women's cells. The CDC should collaborate with local nongovernmental organizations experienced in working on issues affecting incarcerated women, including rape and sexual assault. X. Educating Prisoners A. The CDC should advise incarcerated women, as part of their orientation to the corrections system, as well as prisoners already serving their sentences, of the following: 1. Corrections officers are strictly prohibited from having any form of sexual contact with prisoners. The orientation should also include a thorough review of departmental process regarding privacy and humane treatment; the procedures for reporting and investigating sexual misconduct; and the departmental or criminal law sanctions associated with it. 2. Grievances relating to sexual misconduct may be filed directly and confidentially with the prison investigator. All grievances should be acknowledged and resolved as soon as possible. Prisoners should be informed about the issues that may be dealt with through the grievance procedure, with a particular emphasis on instances of sexual misconduct; the location of grievance forms; any specific procedures for reporting sexual misconduct; the recourse available when corrections officers fail to respond; and the potential to resolve complaints through the internal investigation procedure and the independent review board when one is established. 3. The CDC should also acquaint prisoners with their rights under international human rights treaties ratified by the U.S. as well as under U.S. constitutional law. B. The above information should be included in the prisoner handbook. XI. Allocating Supplies The CDC should ensure that incarcerated women, including those in administrative segregation, receive sufficient and appropriate supplies, especially sanitary napkins and toilet paper. These items should be available in a neutral location. XII. Ensuring Accountability to Outside Monitors A. The CDC should provide timely and written information about an investigation to the complainant and the people she designates, such as her attorney and her family, upon their request. B. The California Legislature should create a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct. The review board should have the authority to turn over evidence of possible criminal wrongdoing to prosecutorial authorities. The board should also be able to recommend remedial action to stop abuses or other problems during an investigation. The review board also should 1. develop a system whereby the records of any corrections employee who has been the subject of repeated sexual misconduct complaints are reviewed by the appropriate authorities; and 2. further provide a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of misconduct, including retaliation against complainants. Sexual abuse and degrading treatment have been persistent problems for women incarcerated in the District of Columbia. In October 1993 women in Washington, D.C. prisons filed suit in district court against the District of Columbia Department of Corrections (DCDC) alleging sexual misconduct by guards, along with other violations of their constitutional rights. On December 14, 1994, the district court found that the rape, sexual assault and degrading language in the DCDC violated the eighth amendment's prohibition against cruel and unusual punishment. (290) The district court also found that the DCDC had not made adequate efforts to prevent and punish such sexual misconduct. The case was overturned by D.C. Circuit Court in August 1996 on other issues. (291) In light of the litigation, we were unable to conduct personal interviews with women incarcerated in the District of Columbia. (292) Our discussion of sexual misconduct in Washington, D.C. is, therefore, based on our observations at trial, press accounts, public documents relating to the litigation, the judge's decision and order in the case, and interviews with attorneys working with prisoners. Because the decision and court order arising from this class action offer an important example for providing redress for custodial sexual abuse, we include the case in this report even though Human Rights Watch did not conduct firsthand interviews in the D.C. prisons for women. The overwhelmingly African American--96 percent--female prison population in the District of Columbia is growing at an enormous rate. Most of the growth is fueled by mandatory sentencing laws for drug-related crimes; over 78 percent of female prisoners in D.C. are incarcerated for nonviolent offenses, and over 58 percent were sentenced for drug-related crimes. (293) In addition, 80 percent of women incarcerated in the district have children and two-thirds have legal custody. (294) These women are primarily guarded by male officers. As of 1994, in each facility that houses women, the majority of the prison staff was male. (295) However, the DCDC houses female prisoners in the same facilities as male prisoners, therefore it is difficult to establish the gender breakdowns for the female housing areas. State Legal and Regulatory Framework When women prisoners in Washington, D.C. filed suit in 1993, sexual intercourse and sexual contact with prisoners were not prohibited under Washington D.C.'s criminal law beyond the general prohibition against rape and sexual assault. In December 1994, subsequent to the suit, the D.C. City Council modified its rape law (defined as "sexual abuse" in D.C. law) to make both sexual intercourse and sexual contact with a person in the custody of the District of Columbia explicitly felony offenses. Under the amended statute, a person commits "first degree sexual abuse of a ward" if he or she "engages in a sexual act with another person or causes another person to engage in or submit to a sexual act when that other person . . . is in official custody." (296) This felony is punishable by up to ten years in prison and a fine not to exceed $100,000. A person commits "second degree sexual abuse of a ward" if he or she "engages in sexual contact with another person or causes another person to engage in or submit to a sexual contact when that other person . . . is in official custody." (297) This charge carries a penalty of up to five years in prison and a fine not to exceed $50,000. Consent of the prisoner is not a defense to either provision. The law went into effect on May 23, 1995. National and International Law Protections As discussed in the legal background chapter of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international and international treaty and customary law that is binding on the U.S. federal government as well as its constituent states. (298) The eighth amendment to the Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from inappropriately viewing or strip searching female prisoners or conducting intrusive pat-frisks on female prisoners. Constitutional protections for prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark victories through private litigation, particularly suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union. However, if stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the Constitution. In addition to constitutional protections, prisoners' rights are protected under international human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The ICCPR guarantees prisoners' rights to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international bodies have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from a victim, punishing her or intimidating or coercing her or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. (299) Legal Action to Expose and Remedy Abuses As stated above, in 1993 women prisoners in the District of Columbia sued the DCDC. Their complaint asserted that the DCDC failed to protect them from rape, sexual assault and sexual harassment by corrections officers, provided them with inadequate medical care, subjected them to poor conditions of confinement, and offered them educational, work, religious and recreational programs inferior to those provided to male prisoners. Brenda Smith of the National Women's Law Center (NWLC), an attorney on that lawsuit, told Human Rights Watch that through her work providing legal services and programming to incarcerated women since 1990, she had received reports of sexual assaults and pregnancies within the prisons and assisted several women on an individual basis. However, it was not until the lawsuit was filed that the magnitude and pattern of the abuses were exposed. She told us, "It is really like this dirty little secret that everyone in corrections knows about and doesn't want to talk about. It is a huge problem." (300) According to Smith, attorney on the lawsuit, over ninety women came forward and many, although not all of them, complained of sexual misconduct by prison staff. (301) All of these women were incarcerated in one of three facilities operated by the DCDC: D.C. Central Facility (Jail), the D.C. Correctional Treatment Facility (CTF), and the Lorton Minimum Security Annex (Annex). A three-week trial was held in June 1994, before June Green, a senior district court judge for the District of Columbia. In her December 1994 ruling, Judge Green found a general acceptance within the DCDC of sexual relationships between staff and prisoners that gave rise to a "sexualized environment." (302) As to the legal claim, she concluded that there was a pattern of sexual harassment of incarcerated women by male corrections staff that violated the eighth amendment's prohibition against cruel and unusual punishments. (303) Subsequent to her findings, Judge Green issued an extensive order directing the DCDC to remedy constitutional violations within its corrections system. Her order addressed a range of problems that contributed to the sexual abuse and degrading treatment of incarcerated women, including: the absence of a clear prohibition on sexual activity and sexualized language, the failure to report and investigate allegations of such misconduct, and the lack of training for corrections staff and for female prisoners. (304) Within the order, the judge appointed an independent special monitor (305) to receive and investigate complaints of sexual misconduct at the three facilities housing women and to report her findings to the warden at each institution. The special monitor was also instructed to investigate any outstanding allegations of sexual misconduct and to oversee the DCDC's resolution of sexual misconduct complaints. The special monitor, Grace Lopes, who has a three-person staff, began her duties on December 1, 1995. While the special monitor has improved the complaints process, she is responsible for monitoring several other court orders in D.C. prisons and is extremely busy. (306) In addition, Lopes has not taken many affirmative steps to contact women prisoners. Smith of NWLC asked Lopes to explain her job and responsibilities at a session of NWLC's training for women prisoners in D.C. She declined. (307) The order also requires the DCDC to institute training for corrections employees specifically addressing issues arising in a women's institution as well as training on sexual harassment for female prisoners. Corrections employees have already begun to receive training provided by the DCDC, although without any contributions from local nongovernmental organizations working on the issue. The judge further directed the DCDC to write and institute a policy prohibiting sexual harassment of female prisoners by corrections employees. This policy, which went into effect on May 15, 1995, prohibits sexual misconduct against prisoners by any employee or agent of the DCDC. (308) Sexual misconduct is defined broadly in the policy to include: any act of sexual abuse, sexual assault, physical contact of a sexual nature, sexual harassment, (309) and invasion of privacy (including observing prisoners' personal affairs without a sound penological reason), and any "conversations or correspondence which demonstrates or suggests a romantic or intimate relationship between an inmate and employee." (310) Penalties range from reprimands for some first offenses to termination for a first offense of sexual assault or sexual abuse. But, even though the new D.C. sexual abuse law criminalizes any sexual contact between prisoners and prison officials regardless of evidence of coercion, the DCDC policy requires that only allegations of unwelcome sexual intercourse or sexual touching be reported to the police. (311) The policy also contains many additional safeguards for female prisoners. The policy strictly prohibits overt or covert retaliation against prisoners, sets a time frame for investigations (312) and imposes a positive obligation on DCDC and its employees to report in writing sexual misconduct, either witnessed or suspected. Failure to report shall subject the employee to disciplinary action, up to termination. (313) Another innovation is a confidential twenty-four-hour telephone hotline for female prisoners to report sexual misconduct, which became operational in 1996. Under the new policy, information and documentation of sexual misconduct complaints must be kept confidential and only released to relevant parties on a "need to know basis." Moreover, any prisoner who reports sexual misconduct "may request and be treated as a anonymous informant." (314) The DCDC appealed the court's appointment of a special monitor to investigate allegations of sexual misconduct, and certain programming requirements, (315) but not the court's finding of an eighth amendment violation. The DCDC's appeal was argued in front of the D.C. Circuit Court of Appeals in February 1995. However, after the April 1996 passage of Prison Litigation Reform Act, federal legislation which limits the available remedies for custodial abuse, (316) the DCDC filed a brief requesting that certain provisions of the district court's decision, including the appointment of a special monitor to investigate sexual misconduct, be removed. (317) On August 30, 1996, a three-judge panel of the Circuit Court released its decision overturning most provisions of the district court's decision, including the appointment of a special monitor to investigate sexual misconduct. The eighth amendment finding, however, was not affected. The women prisoners have filed an appeal to have the case heard by the entire D.C. Circuit. (318) Female employees at DCDC also sued the department for sexually degrading conduct by staff at all levels in women's prisons, including high-ranking officials. (319) In January 1994 eight current and former female employees filed a sexual harassment lawsuit against the DCDC alleging a pattern of sexual harassment against female staff. (320) The trial, which concluded August 9, 1995, was bifurcated into a liability phase and a separate damages phase. Under the liability phase, the jury found that there was a pattern of sexual harassment of female corrections officers and retaliation against those officers who tried to protect women from sexual harassment. (321) It also found that the DCDC constituted a hostile work environment whereby supervisors and employees engaged in offensive conduct of a sexual nature. (322) The jury then awarded the original six plaintiffs more than $1.4 million in damages. (323) The DCDC appealed the jury verdicts and court findings. Oral arguments for the appeal were held on May 14, 1996. On May 20, 1996, the circuit court remanded the case to the district court for additional findings of fact on the district court's finding that defendants had not complied with discovery rules and court orders. The district court complied with this request on June 19, 1996, (324) and on August 23, 1996, the Circuit Court overturned the District Court's decision to prohibit the DCDC's witnesses from testifying. (325) The case will be tried again with the additional testimony from the defense. In addition to the two class action suits, at least one civil suit has been pursued in the District of Columbia by a female prisoner raped and impregnated by a guard. The prisoner filed suit in 1993 against the DCDC and Lt. Joseph Willis who worked at the Correctional Detention Facility. (326) The plaintiff's suit alleged that the DCDC was liable for Willis's actions because it had failed to take sufficient action to discourage or prevent guards from having sex with prisoners. The DCDC withdrew its legal support of Willis in July 1994 after firing him for reasons unrelated to the suit. The DCDC then asserted that once Willis became involved with the plaintiff he violated DCDC policy and therefore, the DCDC had no responsibility for his actions. Willis, on the other hand, argued that he had a consensual relationship with the plaintiff and as a result, she suffered no injury. Willis submitted alleged love letters from the plaintiff to support that defense. In response, the plaintiff alleged that there was no possibility of consent in prison. In October 1995, the jury rejected the defenses of the DCDC and Willis and found the DCDC liable for $5,000 in damages, which as of February 1996 they still had not paid. The jury also found Willis liable for $25,000 in damages. ABUSES (327) Rape, Sexual Assault or Abuse, and Criminal Sexual Contact During the Women Prisoners case, the district court heard from many women incarcerated in Washington, D.C. who were sexually assaulted and sexually harassed by prison staff, including corrections officers as well as civilian staff. (328) The judge cited the testimony of Jane Doe RR, Jane Doe Q, and Jane Doe W, all of whom were raped or sexually assaulted by male corrections staff. Jane Doe RR was forced to perform oral sex on a corrections officer at CTF, Jane Doe Q was raped by a corrections officer while housed in the prison infirmary at the Jail, and Jane Doe W was sexually assaulted by a sergeant while incarcerated at CTF. In addition, a CTF officer tried on several occasions to fondle Jane Doe K's breasts, vagina, and buttocks; male officers and employees fondled women's breasts, legs, arms, and buttocks; and a teacher at the print shop often tried to kiss Jane Doe OOO. (329) More recently, complaints were filed against L.C. Jones, acting deputy warden for operations at the CTF, alleging that he anally raped a female prisoner in November 1995. (330) Reportedly, the prisoner went to Jones's office to get his signature on an official order. Jones, according to the prisoner, refused to sign the order until the woman had sex with him. The prisoner asserted that although she agreed to have sex with Jones, he forced her to have anal sex. The authorities became aware of the rape when the woman was treated at D.C. General Hospital for a ruptured rectum. (331) Jones, who was the first individual to be charged under D.C.'s new "anti-sexual abuse" law, was placed on administrative leave with pay during the criminal proceedings. The case was presented to a grand jury for an indictment, and the grand jury declined to press charges. (332) In addition, the special monitor, in a separate, concurrent investigation, cleared Jones of all charges. (333) To our knowledge, no other cases have been pursued under the "anti-sexual abuse" statute as of this writing. (334) Attorneys in the Women Prisoners case also argued that women incarcerated in D.C. prisons were coerced into sexual activity with prison staff through the use of threats, including the use of disciplinary reports. (335) According to the court papers and testimony at trial, corrections employees also compelled women into sexual relationships in exchange for favorable treatment and goods, including cigarettes, candy, food, and money. (336) In some cases, women became pregnant as a result of these liaisons. (337) The district court found that these allegations were proved during the trial. Abusive and Degrading Language Several plaintiffs testified that women prisoners in the District of Columbia are constantly subjected to degrading, sexualized language. One Jane Doe testified that when she informed an officer that she was going to take a shower, he responded, "Well, you go ahead and do that, and I'll be in there to stick my rod up in you." (338) The court also found that male corrections staff and male prisoners frequently made derogatory comments about the women's breasts and buttocks. (339) Testimony at trial revealed that some staff at the Annex were aware of and witnessed the male prisoners' conduct but failed to take any disciplinary action. Since the court decision, as discussed later in this chapter, the degrading treatment continues at D.C. correctional facilities. Further, one former employee testified at the corrections employees trial that in the early 1980s female prisoners at the D.C. jail were lined up by several high-ranking male officials who: looked them over and picked the women they wanted to work in their offices. Lower ranking officers picked from the inmates who were left over . . . and those women were assigned to do special duties for them. (340) The former employee also testified that several of these prisoners told her that the male employees used the work assignments as an opportunity to have sex with the prisoners. (341) These abuses took place in a context that is largely devoid of privacy protections for women from viewing by male guards and prisoners. (342) According to Judge Green's opinion, male officers did not announce themselves in the housing areas, and the structural design of CTF permitted male prisoners to view the women's cells from a number of locations inside the facility. (343) Prior to the filing of the class action suit in 1993, the DCDC had been very slow to respond to allegations of sexual misconduct and degrading treatment within its facilities. Judge Green found that while the DCDC had several policies ostensibly intended to respond to allegations of sexual misconduct and criminal behavior, including a grievance procedure, these were "of little value since the [DCDC] address[ed] the problem of sexual harassment of women prisoners with no specific staff training, inconsistent reporting practices, cursory investigations and timid sanctions." (344) The district court found that there was no clear procedure for reporting and investigating complaints of sexual misconduct. Investigations were handled inconsistently among the three facilities, and staff did not routinely report abuses that came to their attention. In some cases, the DCDC failed entirely to investigate, while in other instances investigations lingered and remained unresolved. Judge Green also found that the investigative process was biased in favor of corrections staff; where an allegation amounted to the word of a prisoner against the word of an employee, the DCDC sided with the employee and summarily dismissed the prisoner's claim. (345) The DCDC also generally failed to discipline employees for sexual misconduct. Some officers were reassigned to other facilities while others remained at the same institution and were even assigned to work in the unit where the complainants were housed. In one case cited by the district court, several prisoners complained to the prison administration about sexually explicit harassment from a teacher, but "there [was] no evidence that the administration took corrective action." (346) In another instance, Deputy Warden L.C. Jones, discussed elsewhere in this chapter, reportedly discouraged a prisoner from pressing a complaint or discussing it with attorneys on the suit. (347) In exchange, he promised to assist her in getting released from prison. Jones himself was cited for sexual misconduct in both the Women Prisoners litigation (348) and the women corrections officers' suit, yet, to our knowledge, he has never been disciplined by the DCDC. Attorney Brenda Smith reiterated this point. She found very few instances of disciplinary action against abusive officers, and even when such actions were taken, the penalties were disproportionately mild, limited often to a brief suspension. (349) The corrections department seldom referred cases of sexual assault or rape to the D.C. police; when the police did investigate, the DCDC automatically ceased its own internal inquiry. There was no effective mechanism in the DCDC for protecting the complainants' confidentiality. The judge found that reported incidents "quickly became a matter of public knowledge among prisoners and staff," who then retaliated against and harassed the complainants. (350) Judge Green concluded that "those who report the [sexual] harassment often experience increased stress and may end up becoming isolated from other women in the institution." (351) She was persuaded by testimony at the trial that the department's failure to respond to abuses, combined with the women's history of sexual abuse, compounded the women's ordeal. Attorney Smith agreed with the judge's conclusion. In investigating the abuses, she found a serious problem of underreporting of sexual misconduct because many women had a well-founded fear of filing complaints. (352) Retaliation by staff within the DCDC assumed many forms: complainants were placed in administrative segregation; targeted for disciplinary reports, which affected their parole; removed from programs which they needed; and denied work assignments. (353) Women who spoke out also received a "snitch jacket" or reputation within the prison community that they were untrustworthy. This label then exposed them to abuse from other prisoners. The Effect of Women Prisoners v. District of Columbia In response to the order issued in the Women Prisoners suit and the accompanying policy, the DCDC response to sexual misconduct has improved. For example, in August 1995, the DCDC suspended seven corrections officers for attending a party at the city jail where two female prisoners did a striptease. (354) In addition, Smith reports that since the new policy went into effect, more officers have been reporting sexual misconduct by their fellow guards. (355) She attributes this improvement to the policy's reporting requirement and to the increased awareness of the problem of sexual misconduct raised by the suit. Nonetheless, according to Smith, a "significant core" of the corrections officers continues to not take sexual misconduct seriously, and she continues to receive allegations of sexual misconduct by DCDC staff. (356) Moreover, it is particularly problematic that, in regard to the anal rape allegation against L.C. Jones that was rejected by the grand jury and special monitor, the special monitor reportedly planned to explore the possibility of filing perjury charges against the prisoner. (357) Brenda Smith told us that she credits her client's testimony and is concerned more generally that prosecution for perjury in this instance will discourage women prisoners from coming forward in the future. (358) Human Rights Watch shares this concern. While we oppose false allegations, we believe prosecution should be used only in extreme cases where such accusations are manifestly malicious or in bad faith. This caution takes into account the chilling effect such punishments have on prisoners reporting sexual misconduct. In addition, neither Smith nor her client was officially informed of the grand jury's decision or the conclusions of the special monitor. Indeed, Smith learned of the grand jury's decision and the special monitor's report from a Washington Post reporter. (359) She then notified her client. As of March 21, 1996, neither Smith nor her client had received written notice of the special monitor's decision or a copy of the special monitor's report. Smith later received a copy of the decision after specifically requesting it. Without a copy of the report being provided automatically, the right to appeal guaranteed by the new DCDC policy had been rendered virtually meaningless because neither Smith nor her client were aware of the rationale for the decision. The client has appealed the decisions. (360) I. The U.S. attorney should strictly enforce the anti-sexual abuse law of the District of Columbia prohibiting sexual intercourse and contact with a person in custody. The consent of the victim, which is not a legal defense to a prosecution under this section, should not be a de facto bar to prosecution. II. The DCDC should revise its sexual misconduct policy to require that all complaints of sexual contact between a prisoner and a corrections official be forwarded to the police, pursuant to the D.C. anti-sexual abuse law, rather than the current requirement of forwarding only allegations of "unwelcome" sexual intercourse or touching. III. The DCDC should notify prisoners and their legal representatives of the results of investigations into their complaints and forward their findings to them promptly in order to permit prisoners to file well-grounded appeals in accordance with the DCDC policy. IV. Prisoners who file sexual misconduct complaints that either the criminal authorities or the DCDC decide not to pursue, should not automatically be subject to a perjury investigation, without any additional evidence that the prisoner filed a false statement maliciously or in bad faith. V. The D.C. City Council should create a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct that are not satisfactorily resolved by the grievance or investigative mechanisms. A. The review board should have the authority to turn over evidence of wrongdoing for criminal investigation and prosecution. The board should also be able to recommend remedial action--including temporary reassignment or suspension of the accused--to end abuses or other problems uncovered during an investigation. B. The review board should develop a system whereby the records of corrections employees who have been the subject of repeated complaints are reviewed by the appropriate authorities. C. The review board should provide a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of employee misconduct, including retaliation against complainants. In Georgia prison officials entrusted with custodial power over the women's prison population have engaged in serious sexual misconduct. Indeed, prior to 1992, officers raped, sexually assaulted and sexually harassed female prisoners with little regard for legal or institutional constraints. Although Georgia criminal law formally prohibited sexual contact between prison officials and prisoners, the law was not enforced. Similarly, the departmental policies arguably barring such abuses were belied by the impunity with which prison staff, including supervisory staff, engaged in sexual relations with prisoners. Unlike most other states, however, Georgia has been forced to take meaningful steps to put a stop to these abuses. In 1992, because of an amended class action lawsuit filed on behalf of Georgia women prisoners, the problem of custodial sexual misconduct received significant public attention, spurring departmental efforts toward reform. More concretely, the lawsuit resulted in a number of federal court orders requiring the Georgia Department of Corrections (GDC) to rectify many of its past practices. Although at times the GDC responded less than enthusiastically to this persistent judicial prodding, the overall atmosphere in its women's prisons has greatly improved. Nonetheless, even now sexual contact between officers and prisoners occurs and, in some instances, amounts to rape or sexual assault. Our investigation of custodial sexual misconduct in Georgia was conducted during the pendency of the aforementioned lawsuit, Cason v. Seckinger. (361) The case was originally filed in 1984 as a challenge to prison conditions in Georgia and was amended in March 1992 to include allegations that women incarcerated at the Georgia Women's Correctional Institution (GWCI) were being subjected to custodial sexual abuse. In conducting our investigation, we interviewed nine current and former prisoners, all of whom served time at GWCI; (362) attorneys and a clinical social worker active on the suit and on the civil damages suits spawned by the abuses at GWCI; the former Baldwin County prosecutor, responsible for trying prison staff indicted for criminal sexual contact with prisoners; the former GDC assistant deputy commissioner for women's services; and other individuals with firsthand knowledge of the conditions at GWCI, including a former GDC employee. (363) We also reviewed the records of disciplinary hearings of correctional officers that corroborate or augment the testimony of the prisoners we interviewed. While we primarily investigated abuses that occurred prior to March 1992, our investigation also examined incidents of sexual misconduct occurring since March 1992 and the GDC's response to these abuses. Human Rights Watch urges the Georgia authorities responsible for the corrections and criminal justice systems to intensify their efforts toward preventing and prosecuting custodial sexual misconduct. In particular, we believe that Georgia prosecutors should strictly enforce the state's criminal prohibition on sexual contact with a person in custody and that the GDC, for its part, should refer to prosecution all cases that fall within the statutory definition. The GDC should also use extreme caution in assessing disciplinary reports against prisoners whose complaints of sexual misconduct are found to be unsubstantiated; collaborate with lawyers litigating Cason, and with organizations that assist victims of rape, to develop further the training programs for staff and women prisoners regarding sexual misconduct; and publish regular reports of the results of its sexual misconduct investigations and of disciplinary actions taken as a result of such investigations. Finally, we recommend that the Georgia Legislature create a fully empowered and independent review board to monitor the GDC's compliance with the requirements of Cason and to ensure that complaints of sexual misconduct are adequately investigated and remedied. Mirroring a national pattern, Georgia's female prison population has increased dramatically over the last fifteen years. (364) As of March 1996, women constituted 6 percent--over 2,000 prisoners--of an overall prison population of 35,000. (365) One-third of these women have been convicted of violent crimes, 22 percent of drug offenses. Their average age is thirty-three. Two-thirds of female prisoners are non-white (Georgia's prison statistics do not indicate the racial makeup of the prison population beyond white and non-white). The vast majority have at least one child. Until 1989 Georgia operated only one prison for women--the Georgia Women's Correctional Institution (GWCI)--in conjunction with a nearby camp facility, Colony Farm. In 1989 the state opened a second women's facility, the Milan Correctional Institution, to ease overcrowding at GWCI (Milan CI has since reverted back to being a male facility). Then, largely in response to the litigation mentioned above, the GDC converted the Washington Correctional Institution (Washington CI) to a women's facility in 1992; also at plaintiffs' request, it began to convert Metro Correctional Institution (Metro CI) to a women's facility in 1993; then in 1994 it opened the Pulaski Correctional Institution as an additional women's facility, as was previously planned. The GWCI was converted to a men's facility in 1993 and renamed the Baldwin Correctional Institution. In mid-1996, as a symbolic element in a "get tough on prisoners" campaign, Georgia changed the names of all of its penal facilities, replacing the designation "correctional institution" with "state prison," so that Pulaski Correctional Institution, for example, is now Pulaski State Prison. (366) Georgia, like other states, permits male officers to work in its women's prisons. (367) At GWCI, the prison whose abuses were cited in the amended lawsuit, male guards far outnumbered female guards at the time the suit was revised to cover custodial sexual abuse. In April 1992, immediately after the amended complaint was filed, the GDC promulgated a rule restricting certain staff positions to staff of the same sex as the prisoners supervised. The positions for which cross-gender guarding was deemed inappropriate were those "involving frequent or prolonged physical contact with, and/or visual observation of unclothed inmates, and/or where potential invasion of the inmate's privacy is unavoidable in the course of normal facility operations." (368) In March 1996, the GDC further narrowed the positions for which cross-gender guarding is permissible: it agreed to a consent order in the Cason suit by which only female staff will be assigned to women's housing units. (369) Despite these restrictions on assignment, male guards still outnumber female guards in two of three Georgia women's facilities; only Pulaski has more women than men officers. In March 1996, however, GDC Commissioner Wayne Garner began transferring male guards out of Washington CI and replacing them with female guards. He planned to continue transferring staff--and to effect similar transfers at Georgia's other two women's prisons--until there were no male staff in contact positions with women inmates. (370) The new policy was immediately challenged by the Georgia State Employees Union on anti-discrimination grounds, however. (371) In late August 1996, after the Georgia Equal Employment Opportunity Commission initiated an investigation of the transfers, the GDC reversed itself and returned the transferred women guards back to work in their original facilities. (372) The potential for abuse inherent in the custodial context--heightened by reliance on cross-gender guarding--is reinforced by the case histories of many women prisoners. A high proportion of incarcerated women--and, according to Cason class counsel, an overwhelming proportion of the women singled out for sexual abuse--enter the correctional system with a prior history of sexual victimization. As Darien Bogenholm, a clinical social worker who worked on the Cason litigation, described it: "[You] do not have to go far until you hear this train wreck history of sexual abuse." (373) Accustomed to sexual exploitation, many women prisoners have little awareness of their rights. Indeed, Lisa Burnette, an attorney with Zimring, Ellin & Miller litigating the class action, explained: "These women do not have a clear idea what is rape . . . [They do not] realize what rape [is], let alone sexual harassment." (374) In her view, if abusive custodial relationships are to be stopped, the women must be given education and counseling. Not only must they be told of their right to object to sexual misconduct, many of them would benefit greatly from psychological care regarding their prior sexual abuse. (375) Corrections staff often targeted the most vulnerable women: those who were younger, emotionally weaker or with lower self-esteem. Attorney Bob Cullen told us that the initial psychological profile of a women will indicate whether she is likely to be a victim or report abuse. This profile is contained in a woman's file and is accessible to prison staff. He found a high correlation between those women who were victimized by corrections staff and those who had a victim profile. In fact, he said, "I haven't seen a file of a woman deemed unlikely to be victimized who was." (376) Preying on women inmates' vulnerabilities, male officers enticed them into sexual involvement by making them feel special. A number of incarcerated women emphasized this point in their administrative hearing testimonies and in their interviews with us. Jane Doe 85 told us that in order to persuade her into sexual relations, Lt. James Philyaw made her feel like he cared: "Sometimes he would call me to his office to see how I was and he would tell me things, like how pretty I was and that he was there for me." Other prisoners spoke of receiving cards and flowers from staff, personal items, favors--special attention that helped allay their fear of being alone and unprotected in the correctional setting. State Legal and Regulatory Framework As a matter of state criminal law, sexual contact with a person in the custody of the Georgia Department of Corrections has been punishable as a felony since 1983. Under Section 16-6-5.1 of Georgia's criminal code, which carries a penalty of one to three years' imprisonment, a person commits sexual assault when: he engages in sexual contact with another person who is in the custody of the law . . . or who is detained in [an] institution and such actor has supervisory or disciplinary authority over such other person. (377) Sexual contact is defined as "any contact for the purpose of sexual gratification of the actor with the intimate parts of a person not married to the actor." (378) The consent of the incarcerated person is irrelevant. Until January 1995, when new standard operating procedures went into effect pursuant to a consent order in the Cason litigation, the statutory ban on sexual contact with a prisoner was not incorporated explicitly into GDC departmental policy. Rather, when seeking to discipline officers and employees for misconduct, the GDC, like many other state correctional agencies, relied on broad provisions regarding personal dealings. One such provision is a short, vague statement on the back of signed employee identification cards which provides: "There shall be no personal or business dealings with prisoners, probationers or parolees." (379) Another is included in the GDC standards of conduct, which states: "It shall be prohibited for any employee to knowingly have personal involvement with . . . known prisoners or active probationers." A third provision, Administrative Regulation 125-2-1.07(d), provides: "Employees shall not . . . maintain personal associations with, engage in personal business or trade with, or engage in non-job-related correspondence with, or correspond in behalf of or for, known prisoners, active probationers, or parolees." (380) At present, GDC standard operating procedures specifically distinguish sexual misconduct from personal dealings, defining what actions constitute sexual contact, sexual abuse and sexual harassment. (381) National and International Law Protections The eighth amendment to the Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is further augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from strip-searching female prisoners or conducting intrusive pat-frisks. In one recent case, the Eleventh Circuit Court of Appeals, which has jurisdiction over Georgia, ruled that prisoners retain a constitutional right to bodily privacy protecting them from being viewed while naked by corrections officers of the opposite sex. (382) The case was filed by men incarcerated at the Georgia State Prison to challenge the assignment of female officers to their housing units, where the officers could view the prisoners using the showers and toilets and while they were undressed. The circuit court expressly referred to and followed an emerging trend in other circuits recognizing that prisoners retain a constitutional right to privacy. (383) The decision did not, however, address what specific measures the GDC must implement to protect this right. Constitutional protections on prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark victories through private litigation, particularly through suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union. Yet if certain stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under general federal civil rights provisions. (384) In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutional Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the Constitution. (385) In addition to constitutional protections, prisoners' rights are also protected under international human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international fora have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from the victim, punishing her, or intimidating or coercing her. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. Legal Action to Expose and Prevent Abuses The amended complaint filed in 1992 in Cason v. Seckinger, a federal class action lawsuit against the GDC, marked a turning point in Georgia's handling of custodial sexual misconduct. (386) The complaint alleged rape, sexual assault and coerced sexual activity, involuntary abortions, and retaliation or threats of retaliation against women who refused to participate in sexual activities within the prison. Supporting the complaint were the affidavits of ten women, identified only as Jane Does, who either were forced to engage in sexual relations with prison staff or who had direct knowledge of ongoing sexual misconduct within the prison. (387) The prisoners' allegations were reported almost immediately in the Atlanta Journal-Constitution and other local press. Under intense public scrutiny, the GDC, in negotiation with the plaintiffs' attorneys, launched an investigation of the charges and entered a period of internal review. This internal review, discussed in more detail below, included an investigation into past misconduct, disciplinary action against certain staff, and a number of reforms. In March 1993 the story was aired nationally by "Day One," an ABC television news show that had conducted its own four-month investigation of the problem. Subsequently, the Department of Corrections commissioner, Bobby Whitworth, stepped down and joined the Georgia Parole Board. The deputy commissioner, Lanson Newsome, opted for early retirement. (388) The lawsuit, which was still pending at the time this report went to print, has never resulted in a full trial, although numerous hearings have been held. Under the supervision of the magistrate judge hearing the case, attorneys representing the women and those representing the GDC have attempted to work together to investigate and address the concerns raised by the suit. The magistrate has also issued a number of orders requiring the GDC to institute reforms. Most notably, in March 1994, he issued an order permanently enjoining sexual contact, sexual abuse, and sexual harassment of all women incarcerated, now and in the future, by any staff, employee, agent or contractor of the GDC. (389) He found that such an injunction was necessary in light of the past and continuing problems with sexual abuse, and despite efforts being made by the GDC to prevent future misconduct, to guarantee the women's constitutional rights under the eighth and fourteenth amendments of the U.S. Constitution. Custodial sexual misconduct in Georgia has involved a range of offenses. Corrections officials have raped, sexually assaulted and engaged in criminal sexual contact with prisoners. They have also degraded female prisoners verbally, using highly sexualized language, and violated their right to privacy. While Georgia's criminal law bans sexual contact in custody, prisoners and advocates for prisoners rights have had to wage a long battle to ensure its enforcement. And, our investigation found, past practices linger. Abuses prior to March 1992 included forced sexual intercourse and other misconduct likely to result in severe physical and psychological harm to the prisoner. Moreover, the perpetrators engaged in such abuses with impunity. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld. Rape, Sexual Assault or Abuse, and Criminal Sexual Contact Until March 1992 an environment existed within Georgia women's prisons such that sexual relations between staff and prisoners were an accepted occurrence. Within GWCI and Colony Farm, members of the prison staff fondled and groped female prisoners, sexually propositioned them, and coerced them into sexual relationships either upon threat of retaliation or in exchange for contraband, favorable treatment and attention. They manipulated women's work schedules and freely called women from their units or work details for sex. As Bob Cullen, Cason class counsel, put it, "You get the impression from the staff at GWCI that it was a sexual smorgasbord and they could pick and choose whom they wanted." (391) Other corrections employees at the prison turned a blind eye to the ongoing sexual misconduct. Disciplinary hearings conducted by the GDC reveal that it was often those in supervisory positions at GWCI who exploited their positions to coerce prisoners into sexual relations over a period of years. In particular, the hearings showed that three men--Lt. James Philyaw, Deputy Warden Cornelius Stanley, and Ray Griffin, then senior ranking officer at Colony Farm--used their positions of authority to abuse sexually a number of female prisoners under their supervision. Many of the descriptions of abuses below are based on the decisions of administrative law judges in state disciplinary hearings and the testimony of incarcerated women at those hearings. The Department of Corrections called the prisoners to testify as witnesses against the employees to substantiate charges of sexual misconduct. The most notable among those charged was Lt. James Philyaw, who worked as the night shift supervisor for security at GWCI. According to testimonies at his disciplinary hearing, Philyaw had sex with at least seven prisoners over a five-year period, from 1987 to 1991, while employed at GWCI and Colony Farm. Philyaw appeared to follow a pattern. He would approach certain prisoners, compliment them by telling them how pretty they were and offer them his assistance. He would tell them to come to him if they needed anything, including assistance with a disciplinary report, and he offered to bring them things such as cigarettes and alcohol. He then pushed them into having sexual relations with him, threatening them if they did not comply. Philyaw directed women to meet him in various locations around the prison, particularly offices in the administration building which were empty in the evenings. Each time, he apparently assigned officers under his supervision to locations where they would not discover his activities. The administrative law judge in the hearing concluded that Philyaw had the power to call prisoners to certain locations and "knew precisely where all of his subordinates were at any given time and had the power to position them where he wanted and at times as he wished." (392) Jane Doe 14 was reassigned in the summer of 1990 by Philyaw to buff the floors in the administration building (A-building) at night. This switch reportedly occurred a few days after he called her into his office and complimented her on her appearance. According to Jane Doe 14, on her first night on duty, Philyaw told her to follow him into the bathroom, where he kissed her and told her he was attracted to her and wanted to have sex. She told him she was menstruating and nothing else occurred that evening. Philyaw continued to pressure Jane Doe 14 for sex on subsequent evenings. A few evenings later, Philyaw called Jane Doe 14 into the men's bathroom, where he had spread a sheet on the floor, and raped her. Over the next three months, Jane Doe 14 had sex--anal, oral and vaginal--with Philyaw on repeated occasions. Jane Doe 14 stated at the disciplinary hearing that Philyaw's status within the institution not only prompted her to submit to his advances, it prevented her from coming forward. When asked why she allowed Philyaw to have sex with her, she replied, "because he was a lieutenant and he was over that shift, he was like the warden of that shift, and he could do anything he wanted to me, and no one was going to believe me just like he said." The situation ended when Lieutenant Philyaw was transferred to Colony Farm. (393) Philyaw also manipulated at least one prisoner's dependency on alcohol to entice her into sexual relations. Jane Doe 85 had a drinking problem prior to incarceration; she submitted to sexual relations with Philyaw because, she said, he gave her alcohol and made her believe he cared. He allegedly also suggested items such as marijuana, alcohol and cigarettes. She testified: I drank, and I would smoke marijuana. . . . When I got locked up I didn't know how to deal with my problems without getting high, I was real vulnerable and depressed at that time. I had not been locked up very long, and I didn't go outside much, so when he came along it was comforting to know that someone in blue could help me, so I believed in him. I believed he could help me, and he gave me alcohol. (394) In exchange for having sexual relations with him, Philyaw provided prisoners with certain items and granted them special privileges that often violated prison policy. The first time Jane Doe 85 had sex with Philyaw, he called her into the room, locked the door and gave her a bottle of Jack Daniels which they drank, and she submitted to sexual intercourse. Jane Doe 85 told us that she and Philyaw had sexual relations on four or five occasions over a two-month period, either in a counselor's office at Colony Farm or at her work assignment. He would come to her dorm and put cigarettes in her locker or under her mattress. Philyaw promised Jane Doe 14 "that if she received any DRs [disciplinary reports] to let him know so that he could take care of them; and . . . he would write a letter in her behalf to the parole board." (395) When a friend received a DR, Jane Doe 14 raised the issue with Philyaw and performed oral sex on him; the friend was never called on the DR. Jane Doe 15, according to the disciplinary hearing, had sexual intercourse with Philyaw seven to eleven times over a three-month period. In return, he did favors for her, such as moving prisoners at her request and permitting her to see her prison file, contrary to prison policy. (396) In another incident, Jane Doe 88 witnessed Philyaw having sexual intercourse with Jane Doe 111 in a secretary's office; he later approached her and "told [her] not to repeat what [she] had seen and he asked [her] was there anything he could do for [her]." (397) Philyaw subsequently put money in her prison account. Jane Doe 88 testified that she wrote to Internal Affairs about the incident but received no response. (398) Philyaw often targeted prisoners who were loners or emotionally vulnerable. According to testimony at his disciplinary hearing, Philyaw called Jane Doe 13 from the prison yard to the control area and told her "he had noticed that she did not hang around with a lot of other people and therefore felt he could trust her. . . . He told her he was attracted to her and would like to have sex with her." (399) Philyaw proceeded to kiss and undress the prisoner, then to have sexual intercourse with her. Following this, Philyaw gave Jane Doe 13 special privileges and interceded on her behalf when she was disciplined by another officer. (400) Philyaw pursued a similar pattern with Jane Doe 64. He counseled Jane Doe 64 one evening when she was upset about a broken relationship with a male prisoner, then continued to pay her special attention. According to Jane Doe 64's testimony at his disciplinary hearing: I liked the feeling that I had of being special and important to someone, and he made me believe that I was special. . . . He made me feel like I was the only person that he was involved with, by telling me so many things . . . that made me think it was special. (401) She testified that she started spending extended periods of time in the prison library so she could see or talk to Philyaw. Then, on one occasion, Philyaw brought her to the administrative offices to "do some filing" and, she testified: [I] went back to the office where he was, and he shut the door and we began to kiss and fondle, and at that time is the first time that I performed oral sex on him, but we did not finish because he told me to stop, and I suppose he told me to stop because he hadn't made arrangements for that particular meeting, and perhaps didn't know where all of his officers were, or if someone was due to come back, and so he made me stop. (402) He arranged for them to meet and have either oral or vaginal intercourse on two additional occasions. The abuses ended when Philyaw canceled a prearranged meeting, and Jane Doe 64 learned that he had sex with another prisoner earlier that day. (403) The disciplinary hearings we reviewed also showed that Deputy Warden Cornelius Stanley raped at least one inmate, Jane Doe 39, and attempted to intimidate another, Jane Doe 15, to prevent her from repeating her allegations of sexual misconduct against Philyaw. According to his disciplinary hearing, Stanley called Jane Doe 39 into his office to discuss problems she was having, then groped her breasts and genitals, and told her, "I want to fuck you." He then pulled down Jane Doe 39's pants and forced her to have sexual intercourse with him. Stanley reportedly told her "there was nothing she could do and that she would not be believed if she told any one about his actions." (404) On two other occasions, while Jane Doe 39 was in lockdown in the Mental Health Unit (MHU) without clothing, Stanley came into her cell and groped her. On one of these occasions, he also raped her. According to Jane Doe 39, Stanley said, "You should give up. You're going to have sex with me whether you want it or not." (405) A third employee in a supervisory position, Baby Ray Griffin, maintained a sexual relationship with Jane Doe 11 both while she was incarcerated and during her parole. Griffin was a correctional institutional manager at GWCI, assigned to Colony Farm as its highest ranking officer. (406) According to the disciplinary decision, Griffin had sexual intercourse with Jane Doe 11 on a regular basis at Colony Farm, in places such as the storage closet, the officer's restroom, or an office. When Jane Doe 11 was transferred to the Macon Transitional Center, Griffin would pick her up either on her weekend leaves and take her to a hotel, or drive her to or from her work assignment, and they would engage in sexual intercourse in his car. Upon her release, Jane Doe 11 moved into Griffin's home near the prison until she was seen driving his car by another prison employee in September 1990. (407) In another case at GWCI, a first-time prisoner, Felicia J., was sexually involved for several months with Officer A, the male supervisor on her work assignment. (408) According to Felicia J., Officer A would talk to her and, she said, make her laugh and feel good. One day, she and Officer A had sexual intercourse. They continued to meet for nearly a year at various locations he designated--the dining hall, the gym, the warehouse, the clinic--knowing others would not be present. She told us the relationship over time became increasingly intense and Officer A began requesting her to perform "strange sex acts," like putting on handcuffs, biting her, and roughhousing. She reportedly tried to get out of the relationship and began to stay close to officers whom she knew would not tolerate Officer A's behavior. The relationship came to the attention of officials within the prison, and an investigation was initiated. Felicia J. told us that she repeatedly denied any sexual involvement with the officer because she feared that she would be disciplined if she told the truth. According to Felicia J., then Warden Black ultimately called her into his office and told her to avoid the officer. Documentation we obtained indicates that Black similarly counseled the officer to avoid Felicia J. Eventually, she and the officer were discovered by a nurse having sex in a closet, and the officer was transferred to a men's prison. After her relationship with Officer A ended, Felicia J. became involved with Officer B who reportedly brought her certain things, such as gum and stamps, which she either could not afford or could not obtain within the prison. She told us that she has no family in Georgia and the relationship was "the way to make my life." (409) Philyaw, Stanley, Griffin, and Officer A were not the only employees at GWCI sexually involved with female prisoners. A number of other employees were later indicted for such misconduct under Georgia criminal statutes covering sexual assault, sodomy and rape. Not all of the officers indicted were men. Four women, Jackie Lee, Sandra Floyd, Rachel Durden, and Pam Saulsbury, were charged with sexual contact against a person in custody for their alleged relationships with different Jane Does between 1987 and 1990. (410) Allegations of sexual misconduct also arose at the Milan Correctional Institution, which was opened in 1989. The record of one disciplinary hearing reveals that the store manager at Milan, Samuel Evans, between 1990 and 1991, offered prisoners store goods in exchange for fondling their breasts or asking them to undress, while other prisoners served as lookouts. (411) GDC documents also indicate that in 1991 an athletics coach at Milan CI groped one prisoner's breasts and pulled down her pants, while he cornered and "engaged in a sex act in a standing position" with another prisoner. He repeatedly commented on a third prisoner's breasts and asked her to do a "table dance" for him. Mistreatment of Prisoners Impregnated by Guards In at least one instance prior to March 1992, a prisoner at GWCI became pregnant by a corrections officer. (412) According to Jane Doe 1, the supervisor on her work assignment had been repeatedly "coming on" to her. Then, one day, the supervisor allegedly cornered and raped her. Both before and after this incident, she reportedly spoke to her counselor on at least three occasions to request a change of assignment, but her request was denied by the warden. At one time, she said, she stopped reporting to work but returned after she was threatened by prison officials with segregation. When she missed a menstrual period after her rape, Jane Doe 1 told her supervisor she thought she was pregnant. She told us he responded, "I could always beat it out of you." (413) Days later, in May 1989, approximately seven weeks after the rape, Jane Doe 1 reportedly was called into the warden's office early in the morning. She alleges that the warden at the time, Gary Black, "told me if I did not get an abortion then I would not get parole." Jane Doe 1 stated that she never consented to the abortion but was forced to have one by then Warden Black. She told us, "I never consented to Black. I never signed anything indicating consent." The conversation was reportedly overheard by Black's secretary who, according to Jane Doe 1, came forward as a witness in Jane Doe 1's civil suit against the state. Despite her unwillingness to undergo the abortion, she was taken out of the prison at 4:00 a.m. and driven to an Atlanta clinic where the procedure was performed. At the clinic, she was "dragged through a picketing group of anti-abortion activists." She described the whole experience as emotionally wrenching. She was very depressed following the abortion, but was not offered therapy for over five years. Another former employee, who escorted Jane Doe 1 to the hospital for the procedure, kept copies of the check written by the GDC and Jane Doe 1's medical record to support Jane Doe 1's allegations. Privacy Violations and Mentally Ill Prisoners Women prisoners with mental illnesses have been particularly vulnerable to privacy violations, in some instances so severe that they amounted to torture or cruel, inhuman or degrading treatment. Women incarcerated in the Mental Health Unit at GWCI, perceived to be suicide risks, were forcibly stripped by male and female staff and placed in restraints, including straightjackets or four-point restraints. In some cases, women were stripped and left hog-tied in their cells. (414) The women were then left naked for up to three days where they could be viewed by members of the opposite sex. Videotapes of women being stripped sometimes revealed discrepancies between officers' reports of their treatment of prisoners and the visual record. In one incident, the officer's report neglected to reveal that a prisoner's hands and feet were shackled, a point made clear by the video. (415) The GDC policy in place required prison personnel to employ the least restrictive means possible to restrain disruptive or mentally ill prisoners but was silent on the stripping of prisoners, the use of videotapes, and the presence of correctional officers of the opposite sex. (416) According to press reports, the then deputy commissioner of the GDC, Lanson Newsome, told wardens in November 1991 never to hog-tie psychiatric patients. The practice, however, continued at the women's prison until April 1992, when a new warden and administration were installed. (417) Attorney Bob Cullen told us that it is virtually impossible to obtain an accurate assessment of the number of women who were victimized in this way, since many of the GDC's logbooks vanished. Based upon the remaining logbooks, Cullen found that at least sixty-four women incarcerated at GWCI were forcibly stripped and restrained over an eight-month period from 1991-1992. Our inquiry focused not only on past abuses but also on more current instances of sexual misconduct in Georgia women's prisons. We recognize that since the Cason lawsuit was amended in 1992, the GDC has taken important steps to improve its investigation of and response to allegations of custodial sexual misconduct. Nonetheless, on many issues, the necessary reforms were only instituted after persistent prodding from Cason class counsel, supported by the court, raising concerns regarding whether such improvements will prove to be deep-rooted and permanent. Rape, Sexual Assault or Abuse, and Criminal Sexual Contact The initial publicity and subsequent court orders stemming from the Cason lawsuit had a noticeable effect in reducing the level of abuse. Advocates monitoring the women's prisons noted a decline in the frequency and severity of sexual misconduct and what they describe as "perverse sexual behavior." (418) Most notably, incidents of forced sexual intercourse have declined precipitously. Instances of rape, sexual assault or abuse, and sexual harassment by corrections staff have nonetheless continued to occur, though the climate of impunity that existed prior to the suit has dissipated. Bob Cullen told us that he has learned of approximately 370 reported incidents of sexual misconduct since March 1992, a number of which have been detailed in press reports. (419) In one case a female prisoner, Dolores T., reported that she was sexually involved with a religious leader employed by the GDC who provided her with marriage counseling. After several prior counseling meetings, the religious leader arrived at the prison one evening in August 1992 and called her to the chapel. When she got ready to leave, he reportedly embraced her and made a move to kiss her, but she pulled away. She told us, "It was too long . . . I was uncomfortable and felt threatened." (420) Approximately two weeks later, Dolores T. saw him again during a scheduled service that, she said, only she attended. He had allegedly told the other women that the service for the evening was canceled. That night, he reportedly grabbed her ankle and wanted to know why she pulled away on the other occasion; they kissed and he fondled her. She subsequently had three "sexual encounters" with the religious leader over the next two months. The relationship ended when she discovered he was involved with two other prisoners. Dolores T. told us that he was fired after his wife discovered collect phone calls that Dolores T. and other prisoners had made and letters they had written to him. In May 1993 two kitchen workers at Washington CI were suspended for alleged sexual misconduct with incarcerated prisoners. (421) Describing sexual misconduct by staff there, social worker Darien Bogenholm said, "You go there to meet a mate and have a baby," and "It's an atmosphere of a middle school bus in the summer time." (422) She told us: There is sex all over--the kitchen, the utility room--it seems. The guards are known to be touchers and sexually inappropriate. There is a lot of discussion of the women's sex lives in the free world. (423) Sexual misconduct persisted at other facilities as well. In June 1993 a teacher at GWCI/Baldwin was suspended and ultimately fired after he raped a prisoner. (424) In September 1993 one corrections officer was fired from GWCI/Baldwin, and another was transferred to a men's facility for sexual misconduct with prisoners. The first officer, according to press reports, allegedly had "sexually explicit and suggestive" conversations with a prisoner, sent her cards and flowers, and gave her his home phone number. The second officer, accused of impregnating a prisoner at GWCI/Baldwin, was transferred pending DNA testing to determine paternity, and later fired. (425) At Metro CI, another prisoner told a number of corrections employees of her sexual involvement with male staff but received no response for months. According to her affidavit, she was approached by a male corrections officer and a maintenance employee around Christmas 1993 and began to have sexual relations with them in March and April 1994. (426) During this time, the woman discussed her sexual relations with an athletics coach at Metro CI and also told a number of corrections officers. At one point, she reportedly informed an officer that she believed she was pregnant, and he told her to "pray about it." She also allegedly requested a pregnancy test from the medical clinic, but no test was given, nor did anyone ask any questions. The situation was finally revealed in April 1994, when the woman told the warden and her attorney, yet she reportedly had sexual intercourse with one of the male staff days later. Prisoners' difficulties in obtaining goods, even relatively minor items, enhance their vulnerability to sexual misconduct. Unlike other states we visited, Georgia does not provide prisoners with a stipend for their work. As a result, prisoners are financially dependent: they must rely on state allocations to obtain personal items, including clothing and personal hygiene supplies, or they must depend on their families or friends to purchase them. Until the last couple of years, the GDC provided a very limited supply of sanitary products, including toilet paper. Cullen told us that when he began the case, he "couldn't go through a day of interviewing without hearing complaints about this." These restrictions, said Cullen, "encouraged problems because the women will do whatever they have to, to get what they need." (427) Similarly, a surprising proportion of the reported instances of sexual misconduct during 1995 stemmed from a new state prison policy banning cigarettes. Imposed in July 1995, it immediately created a tremendous black market in cigarettes and a trade in sex for cigarettes. As of February 1, 1996, however, the ban was lifted: all facilities now permit smoking in the outdoor areas. Mistreatment of Prisoners Impregnated by Guards There has been at least one case of a prison employee impregnating an inmate at Washington CI since the Cason suit was filed. In 1994 a prisoner at Washington CI was impregnated by a male teacher on staff. (428) The teacher reportedly asked the woman to remain after class, then took her into the bathroom. She allegedly took off her pants, bent over and he entered her from behind. The woman informed the teacher when she discovered she was pregnant. He reportedly brought her, over a period of days, a substance thought to be quinine to induce a miscarriage. Attorneys on Cason assert that the woman was given a pregnancy test and a sonogram in mid-March 1994, after another prisoner reported the incident. Bob Cullen told us this sonogram revealed that the fetus was dead, but no action was taken for approximately a month to give the woman an abortion. (429) Medical records we reviewed did not indicate when the woman was first given a pregnancy test or a sonogram. The records did show that on the day the abortion was conducted, nearly a month after Cullen states the incident came to the attention of authorities, the woman received a sonogram. Privacy Violations and Mentally Ill Prisoners GDC policy permits male correctional officers to conduct pat-searches, although it stipulates that such searches "be conducted, when possible, by an officer of the same sex." (430) The policy also states that strip searches of female prisoners should be conducted by female corrections officers, except in case of emergency and "only if a correctional officer of the same sex is not available." (431) In practice, we were told, in the last few years only women guards conduct pat- and strip searches of women prisoners. Attorney Burnette on Cason believes that this de facto ban is of critical importance in protecting female prisoners from abuse. (432) She notes, however, that over one-tenth of recent misconduct complaints involve women staff and that a high proportion of such allegations involve abusive searches. Until March 1996, there was no statewide policy restricting the use of male officers in women's housing units; different prisons had different rules on the subject. At GWCI, only female corrections officers were assigned to work the women's housing units and dorms. In addition, GDC rules required that male officers be escorted while in the dorms. (433) However, according to testimony presented at several disciplinary hearings, this policy was "not consistently enforced" and was often ignored by high ranking male supervisors. (434) At Pulaski, which had the highest proportion of female officers of any Georgia women's prison, male officers were not assigned to housing units. But even there, we were told, men would walk around the units and the day rooms without announcing their presence. (435) Women we interviewed at Metro reported that a large number of male officers were assigned to their living units, including segregation units. While they said some officers called out "man on the hall" before entering, others did not announce their presence. (436) Some women told us that male officers at Metro would enter their cells, even when they placed paper over the window, and stand outside the showers when they were naked. Since a consent order signed in March, however, only female staff can be assigned to women's housing units, reducing the likelihood of privacy violations. (437) In addition, pursuant to Cason, the GDC promulgated a new policy--made part of another consent order (438)--requiring all male staff members to announce themselves before entering any area where women prisoners might be undressed, and to allow the prisoners an appropriate amount of time to dress. (439) As another consequence of the Cason suit, the GDC entered into a consent decree on September 15, 1994 to change its policy on restraining and stripping mentally ill prisoners. The new policy specifically prohibits the "tethering or restraint in a hog-tied position," (440) as well as the stripping of mentally ill inmates, unless the clothing could be used for self-injury or destruction of property. Even then, stripping is only allowed upon a doctor's order. (441) Prisoners who are stripped are to be offered a paper gown and panties. According to Bob Cullen, the GDC appears to be adhering to this policy. International human rights law obligates national governments not only to prohibit torture and cruel, inhuman or degrading treatment but also to ensure that when such abuses occur they can be reported and fully and fairly investigated without the complainant fearing punishment or retaliation from the authorities. U.S. law, additionally, guarantees prisoners access to the courts to challenge abusive prison conditions and other problems. Without question, the prison context, in which officers are granted significant power over the daily lives and welfare of their charges, carries with it an inherent potential for custodial abuse. The state, having established a fundamentally unequal relationship between prison staff and prisoners, is responsible for ensuring that staff members do not wrongfully exploit this inequality. Particularly given the reliance on cross-gender guarding, the authorities must formulate policies and procedures to ensure against custodial sexual misconduct and to facilitate the reporting and investigation of such abuse when it occurs. Prior to Cason, the mechanisms available for reporting and investigating custodial sexual abuse in Georgia were so seriously flawed as to be almost useless. At that time, in addition, the environment within the correctional system made it difficult for women to come forward with such complaints without fear of retribution. Even now, after procedures have been substantially reformed, obstacles still exist that hinder women from fully enjoying their right to report abuses and to see them remedied. Failure of the complaint mechanisms within Georgia women's prisons and routine blindness by the leadership at GWCI and within the GDC more generally to allegations of rape and sexual assault or abuse contributed to the perpetuation of sexual misconduct by prison staff. In the period preceding the Cason amended complaint, that is, until March 1992, the environment within Georgia women's prisons was hostile to women and staff coming forward with allegations of misconduct. Prison employees at GWCI freely engaged in sexual relations with incarcerated women with the knowledge that the women had little, if any, ability to report such behavior. Where women attempted to report abuse, they were targeted for retaliation by prison staff and thwarted by a general GDC presumption that prisoners lie and that, without staff corroboration, their assertions should automatically be dismissed. Fellow officers, furthermore, turned a blind eye to sexual relations as long as the staff member maintained a minimal level of discretion. Those employees who attempted to report sexual misconduct by their colleagues were often ignored and even harassed at the institutional level. Only in cases where the abuse simply could not be ignored, as in cases of pregnancy or where another member of the staff happened upon a colleague in the act, was any action taken. However, even in these cases, the GDC either permitted the guilty individual to resign or transferred him to another facility rather than take appropriate disciplinary action, including dismissing the staff person in question and referring the case to the district attorney for possible criminal prosecution. The GDC has a grievance procedure that in principle enables prisoners to complain about "any condition, policy, procedure or action over which the department of corrections has control." (442) In practice, however, this mechanism was largely unavailable to women prior to 1992. As a result of either their direct personal experiences or their general impression that the procedure was ineffective, incarcerated women seldom resorted to it. The problems with the grievance mechanism stem from both its design and its implementation. The procedure itself, which stipulates that "whenever possible, inmate complaints and grievances should be resolved on an informal basis without the filing of a formal grievance," (443) discourages the actual filing of grievances. Instead, priority is placed on conciliation and negotiated solutions. Whatever the advantages of this approach with regard to ordinary complaints, it is utterly inappropriate for complaints of custodial sexual misconduct. Women prisoners' concern that offending staff members would learn of their grievances deterred them from reporting abuses. Moreover, the grievance mechanism's bias against the formal institution of complaints was greatly reinforced before 1992 in practice. According to one institutional counselor: The grievance procedure was a joke. My job was to convince the inmate not to file the complaint. I would try to resolve the situation without it. Really though, I was not to give the prisoners grievances. If one was filed, I was responsible for investigating it. The supervisors would not. Nothing happened with the grievances and the women were often retaliated against. (444) Bob Cullen echoed these comments. He told us, "The grievance procedure is irrelevant to the women reporting [sexual misconduct]. The women must get permission from their counselors to grieve." (445) Cullen reviewed the records of many of the women involved in the Cason suit and was active in bringing their allegations to light. By reviewing these records, he learned that counselors at the prison often talked women out of filing grievances. One of the few occasions in which the counselor cited above allowed a prisoner to file a grievance was when the prisoner reported that a staff member in the dental lab had propositioned her. When the counselor consulted a supervisor to inquire how to proceed, the supervisor told the counselor to "investigate" the grievance and to state that it was unfounded. According to the counselor, the supervisor said, "Did anyone see [the incident]? Since he denied it, without a witness, there's your answer." Prior to March 1992, in a limited number of cases, the GDC conducted internal investigations into allegations of sexual misconduct by prison staff at the women's prisons. There was no written policy or procedure for conducting these investigations. Allegations were generally raised at the institutional level, through letters or complaints to staff, or by staff observations and reports. The warden often conducted the investigation himself by interviewing the prisoner raising the allegation or the implicated officers. (446) In some cases, it was then turned over to the GDC Internal Affairs division (IAD), which is located in Atlanta. (447) Investigations appeared to be conducted promptly by the IAD, but charges against officers were rarely substantiated because the testimonies of incarcerated women were rarely deemed credible. Where an allegation involved the prisoner's word against the employee's, the GDC seldom took disciplinary action. (448) Many allegations of sexual misconduct were simply never investigated. A GDC senior investigator and the current and former directors of Internal Affairs testified in February 1994, in a disciplinary hearing, that prior to March 1992 it was the policy or practice of the GDC to cease an investigation if an employee resigned voluntarily. (449) According to attorney Lisa Burnette, this approach did not necessarily prevent the GDC from rehiring the employee at a future date. She explained that a code is placed in an employee's personnel file to indicate whether the GDC could rehire him. If a person resigns, a "no rehire" code was not necessarily entered into the file. (450) Prisoners who reported sexual misconduct risked not only disbelief by the prison administration but also intimidation by the employees they implicated. According to the testimony at Philyaw's disciplinary hearing of Anne Collins, a counselor at GWCI/Baldwin, Philyaw attempted to intimidate both Collins and a Jane Doe she was assisting. Collins testified that Jane Doe 15 approached her one afternoon to discuss a disciplinary report she received for contraband. She told Collins that she had received the contraband from Philyaw. She also informed Collins that she was afraid that Philyaw and other prisoners might retaliate against her for speaking out because Philyaw "did them favors." (451) After this conversation, Jane Doe 15 prepared a written statement implicating Philyaw. The harassment allegedly occurred the evening after Jane Doe 15 prepared the report. Collins testified that Jane Doe 15 returned to her office in an agitated state, disheveled and crying because she feared Philyaw would learn about her report. Collins was working a late night shift and was the only counselor on staff at the time. During this meeting, Philyaw appeared and began walking through the office and loitering outside the doorway. After Philyaw passed through the office several times, Collins became extremely concerned, both regarding her own safety and that of Jane Doe 15. Indeed, she tried to try to place Jane Doe 15 in protective custody but was unable to reach the security supervisor. In addition to obstacles in their own reporting of sexual misconduct, incarcerated women could not rely on prison staff either to report sexual misconduct or to protect prisoners from retaliation if the latter raised complaints. As one former employee told us, "That's the way the system was--you keep your mouth shut about the rumors and allegations." This person knew one colleague who avoided the administration building when she worked late at night for fear of seeing a staff person engaging in sex with a prisoner. (452) According to the disciplinary decision against Deputy Warden Cornelius Stanley, even where staff reported misconduct, their allegations often were not treated any more seriously than those of prisoners, and an investigation was not necessarily launched. Stanley's disciplinary record reveals that in September 1991, Collins informed her superiors about Philyaw's involvement with Jane Doe 15. Both Collins and Jane Doe 15 submitted written statements that were then given to Stanley. (453) Collins testified that Stanley approached her a week later and told her that he was handling the investigation and that she need not concern herself with the matter any further. No investigation, however, was initiated until three months later, in January 1992, when the warden directed someone to look into the allegations. (454) The failure to discipline officers for sexual misconduct and, where appropriate, pursue criminal charges against them, was intimately connected to the GDC's faulty policy and procedure for conducting investigations. Prior to March 1992, in those instances where employees agreed to resign, the GDC ceased investigating the allegations and made no referral to the district attorney, even where the employee admitted to sexual contact with an inmate in violation of the state's felony provision. The law's disuse was apparently not a matter of oversight but of design. Indeed, Bobby Whitworth, then commissioner of corrections, stated that it was departmental policy not to enforce the felony provision. (455) Whitworth told ABC's "Day One" that it was "the policy of this agency prior to 1990 really not to press for prosecution. It was a policy that if we had an officer or a staff member who engaged in sexual relations with a prisoner [they] were either terminated or fired." In other words, the GDC actively and knowingly failed to protect women in its custody from the criminal acts of its employees. Department employees, as a result, were able to sexually assault prisoners at the risk only of losing their jobs. Even then, it appears they may have risked only a temporary loss of employment. During the period preceding Cason, corrections staff caught engaging in sexual misconduct were generally let off with minor chastisement, transferred to other facilities, or permitted to resign rather than face investigation or be demoted. The employee who impregnated Jane Doe 1, one of the Jane Does, was permitted to resign with no admission of guilt, rather than face a departmental investigation. Warden Black told GDC leadership that he hoped the employee could find a new position in another Georgia corrections facility. The decision to retain staff and close investigations, even in the presence of substantiating evidence, was upheld at the highest levels of the GDC. In numerous incidents, the deputy commissioner closed investigations where charges of misconduct were substantiated, upheld minor disciplinary sanctions and failed to refer credible allegations to the district attorney for prosecution. (456) Throughout his tenure, the former commissioner of the GDC was regularly kept appraised of the findings and disposition of such investigations. The GDC's failure to sanction employees appropriately, by dismissing them and referring their cases as appropriate to the district attorney, amounted to complicity in the staff's misconduct and abuse. In at least two circumstances, employees who received only minor reprimands persisted in their misconduct. As noted earlier, a 1990 investigation found that Baby Ray Griffin was found cohabitating with Jane Doe 11, a recent parolee. Griffin was not punished. Rather, the deputy commissioner closed the investigation and retained Griffin in his position following "extensive counseling" for his "questionable judgment and conduct." (457) According to Griffin's disciplinary hearing, the reprimand had no impact on Griffin's behavior. He continued his relationship with Jane Doe 11 and, she testified, he became verbally and physically abusive, threatening to have her parole revoked if she left him. (458) In 1990 an investigation substantiated charges that the store manager at Milan, Samuel Evans, was trading store goods for sexual favors. The employee initially received only a salary reduction and verbal instructions on how to conduct his job. (459) He was only dismissed two years later, after Cason was filed, when he was found to be engaging in the same conduct with additional prisoners. When the Cason suit was amended in 1992, the GDC entered a period of internal review of the past allegations of sexual misconduct raised by the amended complaint. Old investigations were reopened and reexamined, and a number of corrections officers and other prison staff were disciplined. Changes were also made regarding the supervision of incarcerated women. Investigations and Disciplinary Action In March 1992, the GDC deployed an investigator, Andie Moss, to GWCI to examine the allegations raised by the Cason suit and to give her assessment to the deputy commissioner and commissioner. (460) While the prisoners' names were otherwise protected by court order, according to which they were identified only as Jane Does, both Moss and the GDC leadership knew who each woman was. The Georgia Bureau of Investigations (GBI) was also called in to interview those prisoners who had filed affidavits. Moss's investigation focused on allegations raised by and predating the Cason suit. Many of these allegations, found unsubstantiated prior to March 1992, were, upon reinvestigation, substantiated and found sufficient for disciplinary action. According to Bob Cullen, the differing results in response to the same allegations were due in large part to the GDC's new willingness to give weight to prisoner testimony. (461) Fifteen employees, including Philyaw, Griffin and Stanley, were suspended and eventually fired, or otherwise disciplined for sexual misconduct or misconduct associated with the Cason litigation. Pursuant to civil service regulations governing the terms of their employment, Philyaw, Stanley, Griffin, and several others appealed their dismissals, which were upheld by the reviewing administrative judge. Not all dismissals sought by the GDC were granted, however. Art Gavin, the warden who succeeded Gary Black, was disciplined but not fired. Gavin was discovered copying and providing confidential information about certain Jane Does to Jackie Lee, a female correctional officer at GWCI who was, at the time, suspended amidst allegations of sexual misconduct. The GDC also did not seek to terminate Gary Black. Rather, in January 1993, Black was demoted and reassigned as a program coordinator to the northeastern regional office. (462) He later filed suit in federal court seeking his job back, as well as $500,000 in pain and suffering and $1 million in punitive damages. (463) The case has not yet gone to trial. (464) Criminal Indictments--Failed Prosecutions For the first time, the GDC also referred many cases of sexual misconduct to local prosecutors for criminal action. (465) In October and November 1992, indictments were handed down against fourteen former GWCI or Colony Farm employees on state criminal law charges ranging from sodomy and sexual assault against a person in custody to rape. (466) A fifteenth defendant was later indicted after DNA testing showed him to be the father of a prisoner's baby. The sexual acts alleged in the indictments took place between 1983 and 1992 and involved more than twenty-five prisoners. Only two defendants were actually brought to trial on these charges, although two others pled guilty and were sentenced to terms of probation. The first to be tried, Lt. James Philyaw, was charged with twenty-one counts of sexual assault and sodomy involving eight women, for incidents which occurred over a period of five years. He was acquitted in June 1993, despite extensive testimony against him. (467) The jury deliberated only twenty minutes. Philyaw's trial was marred by a number of irregularities that contributed to his acquittal. First, there were difficulties seating an impartial jury. The criminal trial was held, pursuant to Georgia law, in the same county where GWCI was located. The county is heavily dependent on the state correctional system for employment--it is home to four other state institutions, including three prisons. Of the fifty-six people from whom the jury was selected, twenty-eight either had a friend or relative working for the GDC. (468) At least another ten members of the jury pool were then presently or formerly employed at a correctional institution. The jury itself included a man whose son worked at a correctional institution, another whose uncle worked in one and a woman, who served as the jury foreman, whose cousin was one of those indicted. (469) One of the alternates was a former GDC employee who knew three of the indicted defendants. Secondly, then District Attorney Joseph Briley, who oversaw GWCI-related prosecutions, did not engage in a vigorous prosecution of the defendant. Briley believed that the felony of sexual contact with a prisoner was a crime without a victim. He viewed the women prisoners as accomplices and contemplated trying for sodomy those prisoners who engaged in oral sex with corrections officers; in fact, he told us, "the women themselves could have been charged as aiding and abetting the commission of a crime." (470) In his opinion, sexual relations between prisoners and prison staff are inevitable when "pretty young things" are locked up and deprived of sex; the officers, he said, were merely guilty of giving in to temptation. (471) Witnesses called to testify by the prosecution report that Briley did not prepare them for trial and did not present relevant testimony. One witness told us that, when she was on the witness stand, Briley never questioned her about sexual abuse of which she had firsthand knowledge. He reportedly cut her off when she tried to highlight such information in her testimony. (472) After Philyaw's acquittal, indictments in other cases languished: some were expressly dismissed, others expired. At the time of our interview in March 1994, Briley had no timetable to proceed with prosecution, blaming the slow pace on an absence of available judges. In June 1994, Briley dropped charges of rape and sodomy against former Deputy Warden Cornelius Stanley. (473) Briley himself was forced to resign in August 1994 after he was caught on tape making sexual advances to a female staff member. (474) Press reports indicate that a second woman also came forward with similar charges. (475) The original indictments resulted in only two convictions: both were based on guilty pleas, and both men were sentenced to probation in 1994. Indeed, to our knowledge, no custodial sexual misconduct prosecution to date has resulted in prison time for the guilty party. The only other case that went to trial, that of Julien Edwards, ended in acquittal in April 1996 despite the fact that DNA evidence, indicating a match of one in 57,000, showed that he was the father of a prisoner's baby. With later indictments, prosecutors have only obtained convictions via plea bargaining and have always settled for imposing terms of probation. A typical case is that of two maintenance workers at GWCI. Convicted in 1994 of three counts of sodomy, one count of sexual assault on a person in custody, and one count of aggravated sodomy, the first defendant was sentenced to five years' probation and a $1,000 fine. The other defendant, who was convicted of one count of sodomy and one count of sexual assault against a person in custody, received twenty months' probation and a $1,000 fine. (476) Not all GDC employees implicated in pre-1992 incidents of sexual misconduct were even indicted. The district attorney in Telfair County, home to Milan CI, was unable to secure indictments and prosecute GDC employees for allegations arising there. According to press reports, shortly after Philyaw was acquitted in June 1993, a Telfair County grand jury declined to indict eight GDC employees accused of sexually abusing women incarcerated at Milan. (477) Briley ascribed these unsuccessful prosecutions to jurors' extreme reluctance to prosecute or punish corrections employees for acts against convicted criminals. (478) The GDC's practice of not referring allegations of sexual misconduct promptly to local prosecutors resulted in impunity for many abuses that occurred at GWCI prior to March 1992 because the charges were filed after the statute of limitations had expired. For this reason, in November 1994 the state dropped nineteen counts of sodomy and sexual assault against a person in custody against Jackie Lee, a female officer at GWCI. The indictment had stemmed from incidents at GWCI in 1987. (479) Retaliation Against "Jane Does" Our interviews reveal that corrections officers and prisoners have retaliated against women involved in the Cason lawsuit as Jane Does. According to Cullen, this harassment fuels the women's insecurities and has discouraged them from speaking out about subsequent incidents. The "Jane Does" represented a threat to many incarcerated women who had come to accept and even benefit from the exchange of sex for things such as alcohol, cigarettes, gum and stamps in the prisons. Even though their identities were ostensibly concealed by a protective order, the Jane Does were easily identified by prison staff and other prisoners. (480) After the suit was filed, the women were called "Jane Doe hos" and "Jane Doe sluts." According to inmate Carrie Johnson: It was hard to deal with the other prisoners who weren't Jane Does. They are hateful and mean and give the Jane Does a hard time. Everywhere you went, they would call you "Jane Doe ho." . . . The officers would be with the prisoners and join them in the teasing. (481) Some of the women we interviewed indicated that, at one point or another, they could no longer bear the pressure related to their Jane Doe status and tried to end their participation in Cason. Corrections officers have on occasion been hostile towards other prisoners, besides the Jane Does, whom they think may report instances of abuse or threaten the status quo, and they have pressured prisoners not to speak to the administration and especially to class counsel. In the words of one Jane Doe, "Once, here at Metro, an officer told me I had been up here snitching after I talked to the warden." (482) Jackson similarly told us that she gets "strange looks" whenever she meets with her attorney. Changes in Leadership and Administration The GDC has undergone various changes in leadership since March 1992. In April of that year, a female warden, Mary Esposito, was installed at GWCI--the first female warden of a women's prison in Georgia. (483) After GWCI was converted into a men's facility, she was reassigned to serve as warden at Metro CI. (484) The GDC also created a new supervisory post, an assistant deputy commissioner for women's services, to oversee female prisoners under the department's jurisdiction. Andie Moss was installed in that position, but her jurisdiction over the female prisons was only temporary. In 1994 the GDC removed oversight of the women's prisons from Moss's direct administration and returned it to the regional offices of the GDC. In late 1995, Andie Moss left the GDC, and her remaining responsibilities with regard to the female correctional population shifted to someone lower in the GDC hierarchy. In July 1993, following the airing of the "Day One" segment on sexual abuse at GWCI, Deputy Commissioner Lanson Newsome resigned and Commissioner Bobby Whitworth was reassigned to the parole board by the governor. (485) Dr. Allen Ault, who had served as commissioner of the GDC years earlier, became the new commissioner. Whitworth's position on the parole board raises concern. A number of prominent Jane Does, including Jane Doe 1, who have come before the parole board since 1993 have had their parole denied while other less prominent Jane Does have received parole. According to Cullen, it is impossible to attribute the parole denials directly to Whitworth's new position. The denial of parole to Jane Doe 1 and another Jane Doe followed a change in parole board policy regarding the granting of parole more generally. (486) Cullen added, however, that a general perception exists within the women's prisons that because of Whitworth's position, women are or will be denied parole because of their involvement in the lawsuit. (487) Jane Doe 1 told us she believed her parole was denied because of her involvement as a Jane Doe and a pending civil suit in which Whitworth is a defendant. (488) Such a perception is likely to have a chilling effect on prisoners who may wish to file complaints. In December 1995 a new commissioner, Wayne Garner, was appointed after Ault resigned. Judging from his early policies and public statements, his primary goals in running the Georgia correctional system are to cut costs and toughen punishments. Prisoners have raised concerns that the new punitive atmosphere prevailing at the prisons only encourages sexual misconduct, as women prisoners feel further intimidated by the prison environment and, faced with losing basic privileges, have more incentive to seek "special treatment" from prison staff. (489) Since Commissioner Garner's arrival, Bernadette Hernandez, the GDC's lead sexual misconduct investigator, has left the department. Her replacement is Jane Roulain, a former investigator with the GDC Internal Affairs division. Failure to Comply with the Court's Orders Until mid-1995, the GDC failed fully to comply with the March 1994 court order that permanently enjoined sexual misconduct, discussed at the beginning of this chapter. To ensure enforcement of the ban, the court required the GDC to notify its staff about the order and obtain a statement from them acknowledging that they had read and understood the order. (490) In April 1995, attorneys on the Cason litigation filed a contempt motion that the GDC had not obtained the requisite acknowledgments from many of the employees working in the women's prisons and was seeking unilaterally to limit the scope of the court order. They cited an April 6, 1995 letter from the GDC's counsel to an institutional administrator informing the administrator that the GDC's attorneys would "decide on a case-by-case basis whether someone should be exempted from the judge's requirement." (491) Similarly, on April 7, 1995, the GDC informed all wardens and superintendents that it would be seeking an exemption from the order for hospital personnel. The GDC's actions led the attorneys to conclude in their motion that the GDC had "no intention of fully complying with the court's order in the future." (492) The genesis of the April contempt motion suggests the importance of notification. Cason class counsel learned of the department's low level of compliance upon investigating a case of custodial sexual assault that occurred at Metro CI. The prison employee, a member of the print shop staff, admitted having sex with an inmate but claimed that he had never received notice of the March 1994 court order. Because he had no notice of the order, he could not be held in contempt of court for violating it. (493) Plaintiffs' pressure led the GDC to greatly improve its notification procedures. At present, no one can enter a women's facility without signing a form acknowledging awareness of the rules and of the Cason suit. In addition, notices informing visitors of the case are now posted on the outer gates of the facilities. The contempt motion cited above also argued that the GDC had largely failed to implement mandatory and effective training for its employees assigned to work in the women's prisons on sexual harassment and sexual abuse of prisoners. Class counsel asserted that "upon information and belief, some supervisors may be discouraging their subordinates from attending [the sexual misconduct] portion of the training." (494) Even where the training was provided, it did not appear directly to address and confront the problem of sexual misconduct and inappropriate relationships. Our review of a training session conducted by the GDC in February 1993 on staff-prisoner relationships found that it focused heavily on homosexuality between prisoners and on prisoners' adaptation to incarceration, but said little about sexual relations between corrections employees and prisoners. As a result of a stipulation resolving the contempt motion, however, the training has since been improved, at least with regard to the requirements ordered under Cason. We were told that it now lasts about a half-day and at the end of the session the employee must take a test on the material. Employees who pass the test receive a sticker for their I.D. cards; without such a sticker, they are barred from entering the women's prisons. (495) An additional element of the stipulation was that the GDC agreed to develop training for women prisoners to educate them about their right not be sexually abused and to teach them how to report instances of misconduct. Women who enter the prison system, while they are in the "diagnostics" or entry stage, now watch a video on the subject. Though attorney Lisa Burnette thinks that the video itself is "not the best," she believes that efforts to educate women inmates regarding their rights are of critical importance. (496) As stated above, the review conducted by the GDC in 1992 focused solely on actions predating the Cason suit, resulting in the reopening of old investigations. Allegations which arose afterwards were addressed separately. For over two years after the allegations in Cason surfaced, the GDC failed to develop an adequate policy or mechanism for investigating sexual misconduct and revealed a continued lack of interest and commitment to addressing allegations of sexual abuse by prison staff. In mid-1993 the GDC assigned to the Internal Affairs division a special investigator solely responsible for examining allegations of sexual assault, personal dealings, and sexual misconduct in the prisons. However, the person hired, Bernadette Hernandez, had no experience or specialized training in investigating sexual assault or rape. (497) Although she was the only investigator, she received no training from the GDC in this area before starting her job, (498) no written guidelines for conducting her work, (499) and no car to get around to the four GDC women's facilities for which she was responsible. The absence of a written and clear GDC procedure for conducting investigations contributed to irregularities and delays in the reporting and investigation of sexual misconduct allegations. According to Cullen, who deposed Hernandez on two occasions as part of Cason, Hernandez was left to cobble together her own method for conducting investigations on a case-by-case basis. The GDC failed to provide timetables and predetermined procedures for interviewing prisoners and investigating allegations. (500) As a result, Cullen told us, investigations under Hernandez initially languished unresolved for extended periods of time. Her deposition revealed that of the fifty-two investigations initiated since she started in mid-1993, over twenty were still unresolved in July 1994. The absence of a clear investigations policy, furthermore, contributed to ad hoc decisions regarding the use of administrative segregation for several months in 1994. In early 1994 some prisoners who alleged sexual misconduct or sexual assault were involuntarily "separated administratively" or placed in segregation pending an investigation into their charges. At the same time, the implicated staff member remained at the institution. Hernandez seemed unaware of how the use of administrative segregation would negatively impact the investigative process, particularly the willingness of incarcerated women to report abuse. While Hernandez acknowledged that being placed in segregation was "automatically punitive," she did not think it would inhibit women from reporting abuse. Rather, Hernandez asserted that the prisoners "who are telling the truth don't worry about that [being placed in segregation]" and would simply know they were not being punished for coming forward since she told them they would not get in trouble for talking to her. In July 1994 the GDC rehired Cornelius Stanley, the former deputy warden for security at GWCI who was fired in July 1992 on the grounds of rape and intimidation of prisoners. (501) The GDC had successfully justified his dismissal on appeal before an administrative law judge. The judge found, by a preponderance of the evidence, that Stanley was guilty of misconduct and had "demonstrated . . . unfitness to perform duties in a Correctional Institution." (502) In fact, this was not the first occasion Stanley had been reprimanded for inappropriate conduct as a correctional employee. In January 1990, two years before his dismissal, Stanley was demoted from correctional manager to captain after an incident at a men's facility where a prisoner was beaten by officers under Stanley's supervision. (503) Despite his record of abusive behavior, Stanley was rehired in July 1994 as a lieutenant at the Hancock Correctional Institution, a prison for men, at the pay of a captain, which was the rank he held when he was fired. (504) His dismissal for sexual misconduct against female prisoners, therefore, had no impact on his employment or his pay scale. In fact, he received over $58,000 in back pay, plus damages, when he was rehired. The criminal charges against him were dropped. Rehiring Stanley, according to Bob Cullen, sent a message that the GDC does not take the issue of sexual misconduct in its facilities seriously. He told us, "[It] hurts big time. It lowers the faith of the women in the new system for reporting these kind of cases. If Stanley is fit to come back, then why not the others?" (505) In fact, in December 1994, the GDC reinstated Jackie Lee, who had been suspended for nearly two years on charges of sodomy and sexual assault against a person in custody; she too claimed the right to back pay and damages (in a negotiated settlement, she received just over $10,000 in back pay, along with leave and retirement benefits). (506) Improved Investigations Procedure In November 1994, more than a year after plaintiffs drafted and submitted a policy to the GDC, the department finally agreed to adopt new standard operating procedures for investigating allegations of sexual contact, sexual abuse, and sexual harassment within the prisons, for handling suspected cases of sexual abuse by the medical staff, and for providing counseling to victims of abuse. (507) In addition, the GDC employed three additional special investigators to implement the new policies under the supervision of the lead investigator. The investigative procedure that went into effect in January 1995 distinguishes, for the first time, between personal dealings and sexual misconduct, specifically defining what constitutes sexual contact, sexual abuse, sexual harassment, and personal dealings. (508) It imposes a strict obligation on staff immediately to report incidents of sexual misconduct, including rumors, to the warden or other designated persons and provides for disciplinary action, up to and including dismissal, for failing to do so. Confidentiality is provided for the complainant as well as the alleged victim. The procedure, furthermore, specifically bans any retaliation against the victim or complainant, limits the use of administrative segregation to "necessary" circumstances and only allows its use for up to seven days. It allows specially trained counselors to meet with the prisoner before she is interviewed and, in certain circumstances, to attend interviews between the prisoner and special investigator. It also introduces a time frame for investigations, review by the GDC commissioner, and notification to concerned attorneys. (509) A prisoner may be disciplined as a result of filing a report of abuse only if it is determined that she "made a false allegation or made a material statement which she, in good faith, could not have believed to be true." Attorney Bob Cullen told us that the investigators have been "roughly abiding by the guidelines" and that they are doing a decent job in evaluating complaints, despite a marked bias against prisoner testimony described in more detail below. (510) During 1995 (from January 23 to December 31), 156 complaints of sexual misconduct were filed under the new investigative procedure. The resulting investigations had the following outcomes: three cases were referred to the district attorney for prosecution, nine staff were terminated, thirteen staff resigned, five were transferred to a male institution, one received a written reprimand, and three were subject to other disciplinary action. (511) Counsel on Cason have the sense that investigators' recommendations for these cases have generally been followed. Persistent Bias Against Prisoner Testimony Unfortunately, the improved investigatory procedure has to some extent been compromised by a renewed bias against prisoner testimony within the GDC. According to Cullen, the GDC has moved away from viewing prisoner allegations and testimony as credible. Immediately following Cason, the GDC relied on prisoner testimony to support charges of misconduct against staff and called prisoners as witnesses in disciplinary hearings. The administrative law judges, in upholding the dismissals, noted that merely because one violated the law in the past did not mean that person was not credible in the present. In more current investigations, however, the GDC has reverted to its previous practice of discounting prisoner testimony, even in instances where the prisoner passes a polygraph test and the employee fails. Cullen told us that in his estimation investigators presently assess prisoners' reports of abuse using an extremely exacting standard: prisoners must prove their allegations "beyond a reasonable doubt," and prisoner testimony alone is almost never sufficient. (512) One serious problem related to the reluctance to credit prisoner testimony, which began to crop up in late 1995, is a trend toward assessing disciplinary reports (DRs) when prisoners' reports of sexual misconduct are found to be unsubstantiated. Obviously the possibility of receiving a DR--which can result in a week or more of disciplinary segregation--works to discourage women inmates from filing complaints. Given the high standards used in evaluating prisoners' complaints, it is clear that not only frivolous complaints result in DRs. Indeed, class counsel in Cason have already had DRs expunged that involved reasonable complaints. In one instance, for example, the warden imposed a DR even though the investigator recommended against it. In another, in which an inmate reported sexual activity that she had witnessed, there was corroborating evidence of such activity--and both the named prisoner victim and the accused staff member failed polygraph examinations regarding the incident--but the investigator found the complaint to be unsubstantiated, and a DR was imposed. Class counsel are carefully monitoring the use of DRs against complainants and will consider filing a contempt motion with the court if they conclude that DRs are being used abusively. (513) The federal government has not invoked its authority under the Civil Rights of Institutionalized Persons Act (CRIPA) to investigate Georgia women's prisons for violations of federal civil rights. It also has not filed any criminal indictments against any corrections officers or other GDC employees for federal civil rights violations. GDC Commissioner Allen Ault reportedly asked the Department of Justice to conduct a federal inquiry into the situation in Georgia's women's prisons in July 1993, a month after Philyaw's acquittal. (514) Local attorneys informed us that while the DOJ apparently made some preliminary inquiries and requests for information, no indictments were ever handed down. (516) Even were the will to investigate ever mustered, the DOJ's slow response has already effectively foreclosed possible federal criminal action on many allegations in Georgia predating Cason, as there is a five-year statute of limitations on bringing criminal charges. It has already been four years since Cason was amended to include allegations of sexual misconduct and three years since the Philyaw trial, and most of the incidents alleged in both instances occurred before 1992. I. Ensuring Compliance with Judicial Order A. The Georgia Department of Corrections should take all action necessary to comply with the March 1994 judicial order issued in Cason v. Seckinger that requires the GDC to prohibit all sexual abuse, sexual contact and sexual harassment of female prisoners. The GDC should also ensure that its employees desist from other forms of degrading treatment of incarcerated women. B. The Georgia Legislature should create a fully empowered and independent review board to monitor the GDC's compliance with Cason's mandates and to ensure that complaints of sexual misconduct are adequately investigated and remedied. The review board should be guaranteed full and unhindered access to GDC facilities and records, including all records collected under the new investigative procedure, and should have the authority to turn over evidence of possible criminal wrongdoing for police investigation. The board should also be able to recommend remedial action--including temporary reassignment or suspension of accused officers--to stop abuse or other problems. 1. The review board should develop a system whereby the records of corrections employees who have been the subject of repeated complaints are reviewed by the appropriate authorities. 2. The review board should provide a toll-free telephone number that prisoners can use to provide information or to file complaints of employee misconduct, including retaliation against complainants. C. As a means of additional oversight, the GDC should facilitate the access of outside monitors, such as lawyers and prisoners rights advocates, to its women's correctional facilities. II. Prohibiting Sex in Custody A. Georgia prosecutors should strictly enforce Section 16-5-5.1 of the Georgia Penal Code prohibiting sexual assault, defined as engaging in sexual contact with a person in custody. The consent of the victim, which is not a legal defense to a prosecution under this section, should not be a de facto bar to prosecution. Of course, cases which fall within the statutory definition of rape should be prosecuted as such. Yet, since the offense of prison sexual abuse is predicated on the abuse of custodial authority, not on distinctions between oral, anal and vaginal sex that are entirely irrelevant to this key issue, we recommend against prosecution under the Georgia sodomy law. B. For its part, the GDC should refer all cases of sexual misconduct that fall within the statutory definition to the local authorities for prosecution. C. The GDC should include in its standard operating procedures a requirement that prisoners be treated humanely and be free from torture and cruel, inhuman or degrading treatment as a matter of compliance with U.S. obligations under international law, in particular the International Covenant on Civil and Political Rights and the Torture Convention. III. Safeguarding Prisoners Impregnated by Guards A. The GDC should make every effort to protect women who are impregnated by corrections employees from being accosted further by those employees. B. The GDC should not punish prisoners, either as a matter of informal practice or of official policy, who are impregnated by officers. The GDC should also refrain from administratively segregating pregnant prisoners, unless they expressly request it. C. The GDC should ensure that corrections staff do not employ coercion to persuade pregnant prisoners to have abortions. D. The GDC should ensure that pregnant prisoners receive timely and adequate medical care, and that medical treatment recommended by physicians is provided as prescribed. Medical care should include professional psychiatric counseling for prisoners who are impregnated as a consequence of rape or sexual abuse. Prisoners also should receive neutral counseling on the options available to them. Administrative segregation should not preclude the provision of adequate medical and hygienic requirements for a safe pregnancy. IV. Ensuring an Effective Remedy Grievances A. The GDC should make grievance forms readily available to prisoners at a neutral location, such as a prison library or other similar place. It should also enable prisoners to file complaints without seeking the permission of any GDC employee. B. The GDC should ensure that institutional counselors do not, under any circumstances, attempt to talk prisoners out of filing their grievances. Investigations A. The GDC should take all action necessary to comply with the November 23, 1994 court order that resulted in new standard operating procedure, adopted in January 1995, for investigating allegations of sexual misconduct. Additionally, it should ensure that investigators have adequate human and material resources to investigate fully and expeditiously all complaints of sexual misconduct. B. In addition to training all persons hired to investigate allegations of sexual misconduct on the requirements of the investigative procedure, the GDC also should ensure that they fully understand the coercive dynamics of the prison environment and the inherently punitive nature of administrative segregation. V. Preventing Retaliation Against Complainants A. Investigators should not recommend disciplinary reports, and wardens should not impose them, as punishment for a complaint of sexual abuse found to be unsubstantiated, unless the complaint is manifestly frivolous or made in bad faith. B. The GDC should investigate promptly and vigorously all charges of harassment and retaliation against prisoners who report wrongdoing. The GDC must effectively inform corrections employees that reprisal against prisoners will not be tolerated, that complaints of such conduct will be treated seriously and expeditiously, and that staff found guilty of retaliation will be sanctioned. VI. Ensuring Discipline A. Human Rights Watch is extremely troubled that the governor of Georgia appointed Bobby Whitworth, former commissioner of corrections, to the state parole board, after he stated on national television that it was his agency's general policy not to enforce the law against custodial sexual assault. We call on the governor of Georgia to remove Bobby Whitworth from the parole board and not to appoint him to any position of authority over prisoners in Georgia. B. Human Rights Watch is also extremely concerned by the GDC's decision to rehire Cornelius Stanley and to return Jackie Lee to her post. The GDC should proceed with investigations into employee misconduct while allegations are pending before the appropriate police or prosecutorial authorities, and take appropriate disciplinary action. Investigations should examine possible criminal law violations as well as administrative infractions of GDC's employee code of conduct. Even if a person is acquitted of a criminal offense, the GDC should still pursue disciplinary action if evidence indicates that the employee violated the rules governing his or her employment. C. The GDC should dismiss employees found to have engaged in rape, sexual assault or sexual abuse of prisoners. There should be no tolerance for rehiring employees who have been disciplined and terminated. Transfer of such employees to other positions or facilities does not constitute appropriate punishment. D. The GDC should publish, at least quarterly, a report on disciplinary actions taken against corrections employees responsible for misconduct or abuse. If necessary, the reports should omit the names of prisoners and, if necessary, of employees. But they should include dates, locations, and other relevant details about the reported incidents, and the types of disciplinary sanctions applied, including referrals to the local prosecutor. VII. Hiring and Training Corrections Employees A. The GDC should improve its screening procedures for applicants for corrections positions. Background checks should be completed before new employees are sent into correctional facilities. In no case should an employee who has been convicted of an offense related to sexual misconduct in custody be rehired. B. The GDC should ensure that the training of all corrections employees assigned to work in the women's prisons includes, among other things: 1. A general discussion of the profile of female prisoners and their potential vulnerability to sexual misconduct; 2. A review of all relevant GDC policies regarding sexual misconduct and their associated disciplinary sanctions, as well as the criminal law prohibition on sexual contact with a person in custody; 3. A demonstration of appropriate methods for conducting pat-searches, strip searches and searches of women's cells. In developing this training, the GDC should collaborate with local nongovernmental organizations experienced in working on issues such as rape and sexual assault. VIII. Educating Prisoners A. The GDC should advise incarcerated women, as part of their orientation to the corrections system, as well as prisoners already serving their sentences, of the following: 1. They have the right to be free from all forms of custodial sexual abuse, including all sexual contact or harassment. The orientation should describe in detail what actions may constitute sexual misconduct, and should also include a thorough review of departmental policies regarding privacy and humane treatment; the procedures for reporting and investigating sexual misconduct; and the administrative and criminal sanctions associated with it. 2. Grievances related to sexual misconduct may be filed directly and confidentially with the prison superintendent or investigator. Prisoners should be informed about: the issues that may be dealt with through the grievance procedure, with particular emphasis on instances of sexual misconduct; the location of grievance forms; bypass mechanisms available for reporting sexual misconduct; and the recourse available when corrections officers fail to respond. 3. Complaints may also be resolved through the investigation procedure and/or the independent review board. 4. Prisoners enjoy a range of rights under international human rights treaties ratified by the United States and under U.S. constitutional law. B. The above information should be included in the prisoner handbook. IX. Allocating Supplies The GDC should ensure that it always allocates basic sanitary items sufficient to meet female prisoners' needs, to avoid situations where prisoners exchange sexual favors with officers for goods. Adequate supplies should be accessible to prisoners at the prison commissary or other similarly neutral place. Our investigation (517) revealed a serious problem with sexual misconduct in the Illinois correctional facilities for women, including frequent privacy violations and sexually explicit verbal degradation of female prisoners, inappropriate sexual contact and, at times, rape and sexual assault and abuse. Neither Illinois prison rules nor criminal law expressly prohibits such abuse. When female prisoners have attempted to report sexual misconduct, they have faced a biased grievance and investigatory procedure and often have suffered retaliation or even punishment by prison staff. This system for addressing sexual misconduct significantly deters women from lodging complaints of such abuse. Given that the Illinois Department of Corrections is the only governmental body that may initiate investigations into such complaints, incidents of sexual misconduct may be significantly underreported. The Illinois Department of Corrections (IDOC) acknowledges that sexual misconduct has occurred in its facilities but strongly takes issue with any implication that the agency tolerates or condones sexual misconduct between prisoners and correctional staff. In an unpublished July 1996 letter to the Chicago Sun-Times, IDOC Director Odie Washington, (518) stated that the department "has a strict policy of zero tolerance regarding both consensual sex and nonconsensual sex between inmates and staff." (519) However, our investigation reveals a gap between the department's stated policy and actual practice. One attorney who represents women prisoners told us, "If [IDOC] really wanted to stop this behavior, they would go about it in a different way." We strongly urge Illinois to reform its prison rules and criminal laws expressly to ban sexual misconduct in prisons, to enforce better those disciplinary measures that already exist to protect prisoners against sexual misconduct, and to uphold the right to an effective remedy of women who file complaints of custodial sexual misconduct. The number of incarcerated women in Illinois has risen dramatically in the last ten years. As of February 1996, there were over 2,200 women in prison, a number over four times greater than that in 1986. (520) Approximately 60 percent of these women are incarcerated for nonviolent offenses. (521) The majority of incarcerated women are of color, with African American women comprising 68 percent of the female prison population. (522) Male correctional officers outnumber female officers by over two to one, (523) and few written restrictions delineate male officers' responsibilities in overseeing female prisoners. Although nearly 60 percent of women incarcerated in Illinois are from Cook County, the area around and including Chicago, Illinois women's prisons are all located at a considerable distance from the metropolitan area. (524) The only prison for women until the 1980s was Dwight Correctional Center, located approximately two hours southwest of Chicago. (525) In response to overcrowding and the expansion of its female prison population, IDOC eventually converted two of its all-male facilities--Logan Correctional Center and Dixon Correctional Center--into prisons for both sexes. Like Dwight, Dixon is located in rural Illinois, almost three hours west of Chicago. In 1995 IDOC began to increase the number of women prisoners at Logan, which, at a distance of nearly four hours from Chicago, is the furthest away of the three prisons. At present, IDOC is planning to make a minimum security prison for 300 women out of a mental health center in Decatur. (526) Decatur is even more isolated than Logan; trips from Chicago to Decatur typically would require an overnight stay. (527) The time and expense of travel to and from the women's prisons make it difficult for advocates and prisoners' families to visit and monitor the treatment of the prisoners. Another concern is availability of basic services. The female prison population is growing at an accelerating pace, which has led to corresponding decreases in female prisoners' access to educational and other rehabilitative programs and medical care. (528) Such access is provided for in the U.N. Standard Minimum Rules. (529) Nonetheless, each of the women's facilities, with the exception of Kankakee, the state's only minimum security prison for women, is operating from 20 to 40 percent over its rated capacity. (530) State Legal and Regulatory Framework Neither sexual relations nor sexual contact with prisoners by corrections staff are expressly prohibited under Illinois's rape and sexual assault laws. With respect to prison rules, the prohibition on sexual contact must be read into a broad provision of the Illinois Administrative Code that prohibits employees from "socializing with committed persons." (531) The administrative code also provides that prisoners may be punished with one year in segregation for sexual misconduct, which could cover sexual behavior between prisoners as well as sexual behavior between a corrections employee and a prisoner. (532) IDOC has used this policy to punish female prisoners who reported sexual misconduct, a practice that Human Rights Watch opposes on the grounds that the deterrent effect on the reporting of sexual misconduct is more damaging than can be justified by any penological purpose served by such punishments. National and International Law Protections As discussed in the legal background section of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international treaty and customary law that is binding on the U.S. federal government as well as its constituent states. (533) The eighth amendment to the Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is augmented by the Fourth Amendment's guarantee of the right to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from inappropriately viewing or strip searching female prisoners or conducting intrusive pat-frisks on female prisoners. Constitutional protections for prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark victories through private litigation, particularly suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union. However, if certain stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the constitution. In addition to constitutional protections, prisoners' rights are protected under international human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The ICCPR guarantees prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative international bodies have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from a victim, punishing her or intimidating or coercing her or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. (534) Custodial sexual misconduct in Illinois's women's prisons includes sexual intercourse, sexual assault and inappropriate sexual contact. It also includes constant and highly sexualized verbal degradation of prisoners and unwarranted visual surveillance. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld. Rape, Sexual Assault or Abuse, and Criminal Sexual Contact Our investigation found that sexual misconduct is not a new problem in the women's prisons in Illinois. In the early 1980s, it came to light that certain corrections employees were involved in the sexual abuse of women incarcerated at Dwight. Press reports revealed that the chief internal affairs officer of IDOC forced at least one prisoner to "commit deviate sexual acts" on him and "to commit lesbian acts upon other female prisoners." (536) Upon learning of this misconduct, the acting warden placed the prisoner in administrative segregation involuntarily for eleven months, ostensibly for her own protection. (537) According to Charles Fasano, who works with the John Howard Association, an Illinois prison monitoring organization, the revelation of these abuses led directly to the resignation of the then warden and the installation of a new warden, Jane Higgins. (538) According to prison advocates, Warden Higgins brought strong leadership skills and implemented programs designed to eliminate sexual misconduct. However, in 1989 Warden Higgins resigned and Gwendolyn Thornton was installed as warden. Advocates we interviewed noted that following this change in wardens, the efforts of Warden Higgins to reduce sexual misconduct have ceased and allegations of sexual misconduct at Dwight have increased. The John Howard Association has received letters from prisoners raising complaints of sexual misconduct within the women's prisons. According to Fasano: I wasn't hearing these things. Jane would never put up with that. If she heard about it, she would be on the case. She wouldn't put up with it. . . . I've seen a big change and sadly, not for the better [in recent years]. (539) Private attorneys and the Prison Action Committee (PAC) similarly reported receiving an increased number of letters alleging such misconduct after Thornton took over. Another attorney who has worked with female prisoners in Illinois, Ruthanne DeWolfe, noted a steady deterioration in the conditions at Dwight since Warden Higgins's departure. She told us, "There [is] a lack of leadership." (540) According to DeWolfe, Warden Higgins brought to the position strong management skills and a sensitivity to the many gender-related needs of women prisoners. Since her departure, many of the model programs she initiated have been stopped. DeWolfe asserted that at an institution like Dwight, one needs to take a firm line with officers in order to combat problems like sexual misconduct. This, she said, is now missing under Thornton. According to Gail Smith, an attorney who heads Chicago Legal Aid to Incarcerated Mothers (CLAIM), "You were not hearing complaints until just a few years ago, since the switch in wardens." (541) Allegations of sexual misconduct have continued in the 1990s. Our interviews, conducted in 1994, 1995, and 1996 revealed that corrections officers at Dwight have used physical force or compulsion to have sexual intercourse--vaginally, orally, and anally--or assault sexually incarcerated women. These acts have been used to retaliate against women who have spoken out about conditions in the prison; have self-identified or are viewed as gay; or have resisted engaging in sexual relationships with officers on other occasions. We also found that officers provided goods to women prisoners either to compel them to have anal, oral, and vaginal intercourse and other forms of sexual contact or to reward them for having done so. Florence R. told Human Rights Watch that in 1992 she was forced to perform oral sex on an officer who targeted her, in her view, because she identified herself as gay. (542) She told us that a number of officers appeared to take her homosexuality as a challenge; they bombarded her with sexual innuendo and advances. One officer who worked nights on her unit, Officer Z, gave her particular problems. He once told her, "Damn, you need a good man. I wish it was me." One night, Florence R. woke up to find Officer Z in her cell. She told us, "He was in there feeling on me. I jumped up and he said, 'I'm going have you!'" Officer Z left when another officer paged him. Several nights later, as Florence R. walked from her work assignment to the medical clinic, Officer Z pulled up in a car and ordered her to get in. He told her he would report her for trying to escape if she refused. Once she was in the car, he drove past the clinic and parked behind another building. He then unzipped his pants, grabbed her by the back of her neck and forced her to perform oral sex on him. According to Florence R., Officer Z was interrupted when others happened upon the car, and he ordered her to move to the backseat. The clinic apparently had contacted Florence R.'s unit when she failed to appear, and a search had been initiated. Approximately nine months after the assault on Florence R. in early 1993, the same officer reportedly entered Holly L.'s cell one night and raped her. (543) Officer Z worked the overnight shift in Holly L.'s unit and, according to Holly L., had been making sexually aggressive comments to her for weeks. When he was on her unit, he would come to her cell and tell her, "You pretty," or "I wanna make love to you," or "I wanna get up with you when you out." Then, when she was transferred to another unit, the officer was reportedly assigned there. Officer Z continued to harass her and according to Holly L., "started to get more forward every time." Holly L. told us that one evening he entered her cell around 4:00 a.m., ordered her to get off her bed and directed her to open her robe. Then, in her words, he started to "get rough" and told her "Do it . . . you know nobody's gonna believe you." Holly L. submitted to sexual relations with the officer on the floor of her cell. Florence R. was prescribed sedatives or psychotropic medication by prison doctors after they came forward with their allegations of sexual misconduct. She was reportedly placed on psychotropic medications by prison doctors after she reported being raped. (544) According to Holly L.'s mother, Holly L. was extremely upset after the alleged rape--crying and unable to sleep. The institution, she told us, "suggested" that Holly L. take psychotropic medication. (545) In addition to these violent attacks, some members of the male corrections staff made physically aggressive sexual advances toward women prisoners. In some instances, these initial advances were accompanied by threats of retaliation against the woman, her family and children if she rejected the sexual advances or informed others about them. In 1993, for example, Brenda N. was ordered by an officer to follow him to the receiving area outside the dining room. "He pushed me against the wall and tried to kiss me." (546) As she turned to leave, the officer grew angry with her, ordered her to "come back here," and said, "Don't you ever pull away from me again." According to Brenda N., "He said he would harm my son if I tell. He named the town where [my son] lives and who he is living with." Over the next few months, the officer repeatedly entered her cell. On her birthday, he reportedly came in, sat on her bed and demanded a kiss. He was interrupted when another prisoner came in. Six weeks later, he reportedly came into an area where Brenda N. was working, pushed her against a wall, grabbed her around her neck and told her, "You have been running your mouth. I will make good on my threat." As Brenda N. told us, "It scares me when he can give me the name of the town. . . . It scares me because I don't know what he can do. It's hard to avoid [an officer] around here." On the day of our interview, she said that this officer called her to the visiting area over an hour before our scheduled meeting time, and while she was waiting, repeatedly approached her and said, "You're looking nice today." Other women we interviewed reported they too had been propositioned or sexually assaulted by male officers. Yolanda M. told us that she was accosted by an officer on her work detail in July 1993. (547) As she described it, the officer called her into the central dining room, pinned her against the wall and tried to kiss her. Yolanda M. pulled away and threatened to tell his wife, who was also a corrections officer. He reportedly replied, "Go ahead, no one is going to believe you." In the ensuing weeks, the officer not only continued to make sexual advances to Yolanda M., but also threatened her, telling her, "If you ever tell anyone, it'll get worse. See how quick you're in seg[regation]." The harassment, according to Yolanda M., continued through the winter of that year. Yolanda M. told us that another prisoner had warned her about problems with this same officer before she left prison, but Yolanda M. had not believed her. Yolanda M. told us, "People are always saying they were felt on, groped on or thrown in a corner. I've heard zillions of stories, but I don't always believe it." (548) Now, she said, she understands that such assaults do occur. In May 1994 the officer renewed his sexual advances and reportedly told Yolanda M., "I will get you alone this summer." Cindy K. also told us that she had two "run-ins sexually" with male officers. On the first occasion, an officer asked her to clean the women's restroom in the visiting area. She told us, "He came in and told me all what he could do to me. He pushed me into a corner. Wherever I was at, he would always come." (549) After she reported the harassment, the officer left her alone. Gigi H. was reportedly accosted in May 1992 by a roving officer who came onto her unit. (550) According to Gigi H., she was relaxing one night in the common area when an officer called her outside; she followed him downstairs to the basement. The officer then pushed her pants down from behind. Gigi H. said she broke away and ran back upstairs. The officer returned to the unit and confronted Gigi H. In her words, he "started going through that dehumanizing thing" and told her, "Don't nobody care about you being here. Don't nobody care." Sexual misconduct in Illinois prisons, as elsewhere, often becomes entangled with and is perceived as part of an underground prison economy, where officers provide goods to women in exchange for sexual intercourse or other inappropriate contact. Several female prisoners told us of this exchange. Yolanda M. and Cindy K., for example, reportedly witnessed other prisoners submitting to sexual relations with male officers. According to Yolanda M.: I know it went on, I saw it. [Officers] with prisoners in the laundry room and women talk . . . At Logan, I literally saw [officers] getting sex in the laundry room or sex in the hallway. (551) She said it was also obvious that other prisoners were involved with staff because the officers brought them things such as gum and shampoo. Cindy K. agreed, stating: I have seen white shirts [lieutenants] down there go into the girls' rooms. I seen the girls giving them head. . . I guess some of these girls were willing to do it. I was not. (552) Alice C. told us that in 1993 she used to leave her cell so that a lieutenant could be alone with her cellmate. (553) According to Alice C., the lieutenant would come to her cell at night and Alice C. would leave. While she never actually saw her cellmate have sex with the officer, he was alone with her cellmate for approximately forty-five minutes on each occasion. Another woman at the prison, Alice C. told us, used to undress for the same lieutenant while he stood outside her window. This lieutenant also reportedly made sexual advances to Alice C. According to Alice C., she approached him about a disciplinary ticket because she was worried that it would result in her transfer to another facility. The lieutenant told her that he would take care of it. She told us that the following week the lieutenant came into her cell, "put his hands around my waist and moved his hands up near my bust." He said "now that he did me a favor it was time I did him one." In mid-1996 we received information about ongoing sexual misconduct at the Dwight Correctional Facility. Reportedly, Anna P., a prisoner at Dwight, was approached by another prisoner in 1995 and told that a guard was interested in having an intimate relationship with her. (554) This prisoner reportedly told Anna P. that "if she was nice to [the guard], he would be nice to her." In exchange for the sexual relationship, the guard provided Anna P. with extra food, candy bars and perfume. The same prisoner facilitated several other similar exchanges. At first Anna P. believed that the guard was in love with her, but when Anna P. later learned that the guard was involved in a sexual relationship with another prisoner, she reportedly decided to end the relationship. However, Anna P. was afraid that if she attempted to do so she would lose her prison job and privileges. In addition, other guards had begun to approach her, saying "you did it with him, why don't you do me too." In March 1996 Anna P. told Internal Affairs at IDOC about her sexual relationship with the guard and other intimate relations between officers and prisoners that were occurring at Dwight. (555) Two other prisoners, who were not involved with officers, came forward to confirm her story. The prisoners named at least six corrections officers who had engaged in sexual misconduct. As a result of these allegations, three officers resigned and three are on administrative leave with pay pending investigation. One of the later group of officers resigned shortly after being placed on administrative leave. In addition, another employee resigned after an individual sent officials letters the employee had received from a prisoner. (556) Mistreatment of Prisoners Impregnated by Guards We have also received reports that some women have become pregnant by corrections staff. Three women--all of whom were interviewed separately--told us about a fourth prisoner, Lucinda F., who was reportedly impregnated by an officer on her unit. (557) According to the prisoners' reports, Lucinda F. was impregnated by an officer working in the Mental Health Unit (MHU). Evelyn V., who lives on the unit, told us that Officer S was "constantly" going into women's rooms and that she had seen him having sex with prisoners. (558) Officer S's name was repeatedly mentioned by other women as one of the officers who regularly made sexual advances. When the institution discovered Lucinda F. was pregnant, she reportedly was sent to segregation, ostensibly for her own protection. We were told that Lucinda F. received an abortion prior to her transfer to another facility on or around May 10, 1994. According to Brenda N., who spoke with Lucinda F. before the transfer: They took her from MHU and locked her in segregation until she left. They said it was for her own protection. When she got back from the hospital, she spent two weeks in segregation. (559) We confirmed that Lucinda F. was transferred from Dwight to another facility the week of May 10, 1994. When her pregnancy came to light, the implicated officer reportedly was either suspended or placed in a noncontact position. We have no information that the prison administration has taken any further steps in his case. Abusive and Degrading Language To our knowledge, there is no provision within the Illinois Administrative Code that specifically requires the humane treatment of incarcerated persons or restricts the use of vulgar, demeaning or sexualized language by prison staff. (560) The only arguably applicable provision is Section 120.30 of the administrative code which provides: "Individuals shall conduct themselves in a manner which will not reflect unfavorably on the department and shall not engage in conduct which is unbecoming or impairs the operations of the department." (561) Degrading language and treatment appear to pervade the environment at Dwight, although that is less true for Dixon and Logan. Male officers at Dwight reportedly freely make comments about the women's bodies and demand sexual favors. In the officers' station on one maximum security unit at Dwight, male corrections officers reportedly hung a pair of women's underpants on the window and posted on the fan the words "ho [whore] patrol." (562) Denise S. told us in 1994 of being verbally harassed during class by her high school equivalency diploma instructor. (563) According to Denise S., the instructor asked her sexually graphic and degrading questions, such as "How wide is your anus?" and "How deep is your vagina?" He then followed these questions with comments like "No dick be able to get down in there." When she complained about his conduct in January 1994, the warden responded that the staff person in question was a good teacher and that she should just continue her classes. Denise S. also reported the comments to a lieutenant at the prison who conducts investigations; she believes the investigator then spoke with the instructor. After this, according to Denise S., the instructor "came into the class and said there was a stool pigeon, and you know what happens to stool pigeons." Other women also reported problems with prison staff engaging in degrading and sexual banter. According to Yolanda M., some officers have made comments to her, such as "Oh, I know you need it," or "You look good today." (564) She told us, "The [officers] are always saying, 'Ah, you're too pretty to be locked up,' or . . . 'I can bring you this or I can bring you that.'" In the summer, she said, officers have told her "That tan looks so good" and "Wear your shorts shorter." The women felt that the degrading treatment and language was something they could not escape and that they were powerless to confront. They also believed that if they did come forward, they, rather than the officer, would be punished. In Cindy K.'s words, "There's not much I can do about it. . . If I write it up, first thing they are going to do is not believe me, then it's PCU [Protective Custody Unit] and then a transfer. That's how it goes with sexual misconduct." (565) Women we interviewed were even hesitant to discuss the abuse with each other. According to Cindy K., "There are so many females back there that this happens to and they don't tell. They do not want to speak. . .It's the fear. . . they're scared. . . I'm tired of being scared. I'm tired of things not being done." As discussed in more detail in the legal background chapter of this report, prisoners retain an internationally protected right to privacy except when limitations on this right are demonstrably required to maintain prison security. In addition, several U.S. courts have recognized that prisoners have a limited right to bodily privacy. In particular, they have a right to be protected from routine inappropriate visual surveillance and not to be strip searched by officers of the opposite sex, except in cases of emergency. Illinois only partially complies with these constitutional and international standards protecting privacy. Under the Illinois Administrative Code, male corrections officers may conduct pat-searches on female prisoners and routine searches of the prisoner's housing areas, including the bathrooms and showers. The code provides that "all committed persons and their clothing, property, housing and work assignments are subject to search at any time." (566) While the Illinois Administrative Code does not restrict the scope of pat searches conducted by male officers on female prisoners, it does place some restrictions on the cross-gender strip searches and on cross-gender guarding of prisoners outside the correctional facilities. Under Illinois law, strip searches may be conducted only by employees of the same sex as the prisoner and in a place where the search cannot be observed by others, except in cases of emergency. (567) In addition, "to the extent possible," prisoners moved outside of a facility must be accompanied by a corrections employee of the same sex. (568) Male officers in the Illinois prison system work in the women's housing units, patrol the women's facilities and supervise women on their work assignments. The Seventh Circuit, which includes Illinois, has ruled on cross-gender guarding in both men's and women's prisons. In 1994 the Seventh Circuit Court of Appeals concluded that prisons must adopt measures to protect prisoners' privacy from viewing by officers of the opposite sex. (569) The circuit court held that prisoners retain a constitutional right to bodily privacy and as a result are entitled to reasonable accommodations to prevent unnecessary observation of their naked bodies by officers of the opposite sex during strip searches or in the housing units. (570) At the same time, the court ruled that occasional or inadvertent sightings of unclothed prisoners, or pat searches limited in nature and scope, were permissible. (571) However, in a 1995 case, the Seventh Circuit held that while cross-gender body searches were impermissible, the regular monitoring of housing units by guards of the opposite sex was allowed. (572) We are not aware of any limitations on male officers' duties at the Logan Correctional Center, and women who have been incarcerated there reported having had, on occasion, only male officers working on the night shifts. Women who have been incarcerated at Logan also report that male guards do not announce themselves when coming on the units and that they occasionally enter shower areas when women are undressed. (573) They told us that the majority of officers at Logan, even on the night shifts, are men. At the Dwight facility, there appear to be fewer violations of privacy than in the other two Illinois women's prisons we investigated, although male officers do work most housing units at Dwight. According to some prisoners, male officers are not assigned to the overnight shift on the lower security units, but they may substitute for the regular female officer on these shifts. (574) IDOC has acknowledged that sexual misconduct between staff and prisoners has occurred, (575) but strongly denies that it tolerates or condones such abuse. (576) In materials provided to Human Rights Watch, IDOC noted that "all cases [of employee misconduct] are investigated. Where substantiated, the employee is referred for discipline, including discharge, pursuant to applicable prison rules and terms of the union contract." (577) IDOC went on to state that incidents are referred for prosecution, as provided by department rules, "where reasonable grounds exist to suspect that an individual has committed a violation of criminal law." (578) Our own investigation reveals a gap between IDOC's stated policy and its actual practice. While IDOC acknowledges that sexual misconduct occurs, it has at times blamed prisoners for such abuse. In response to the 1996 reports of sexual misconduct at Dwight, for example, IDOC director Odie Washington told a reporter, "this was a typical case of guards being manipulated and, for whatever reason, developing a personal relationship with inmates." (579) In addition, while internal complaints and investigatory procedures exist, they are often biased against the prisoners, exhibit conflicts of interest, and have exposed complainants to retaliation and even punishment. The combined effect of these problems is to render criminal sexual misconduct not only hard to monitor accurately, but difficult to substantiate. Thus for example, of the twenty-nine report complaints of sexual misconduct that IDOC received in 1994-95 in all three facilities for women, only eight were substantiated. (580) Finally, referrals for prosecution do occur, but they are at IDOC's discretion and may come significantly later than the department's own internal investigations. The multiple problems with these procedures have led us to the conclusion that while women complain of sexual misconduct, (581) such abuse may be significantly underreported and underaddressed. International human rights law requires national governments not only to prohibit torture, cruel, inhuman or degrading treatment or punishment and unwarranted privacy invasions, but also to ensure that when such abuses occur they can be reported and fully and fairly investigated without the complainant fearing undue punishment or retaliation from the authorities. Similarly, under the U.S. Constitution, prisoners are guaranteed access to the courts to challenge abusive prison conditions or other prison problems. (582) Our investigation revealed that Illinois falls far short of compliance with these standards. Illinois provides a grievance mechanism for prisoners to report abusive incidents to prison officials. (583) Illinois stipulates that, before filing a formal grievance, prisoners must attempt informally to resolve the grievance through an institutional counselor. (584) If not resolved at this informal stage, the grievance may subsequently be filed with and reviewed by a grievance officer. A "committed person" may bypass the first stage of the procedure and file her grievance directly with the warden if there is a "substantial risk of imminent personal injury or other serious or irreparable harm to the committed person." (585) The provision does not make clear whether sexual assaults, sexual advances, or degrading language from prison staff fall under this exception. The administrative code prohibits disciplinary action or reprisal against prisoners for using the grievance mechanism. (586) Our interviews indicate that the counselor may actually deter the filing of legitimate grievances. According to Barbara Echols, a former prisoner at Dwight and member of the prison watchdog group PAC, grievances rarely proceed beyond the counselor's initial, informal review. Even if a grievance goes to a grievance officer, the second stage of the process, Echols told us: Sometimes the [grievance officer] comments on the grievance but usually [he or she] upholds what the counselor recommends. . . . Many times they will just ignore the grievances. . .You usually hear at a whim, when they want to respond. There are a lot of irregularities in the process. There is a lack of concern in the institution. . . about the nature of the grievance submitted. (587) We reviewed several grievances filed by the women whom we interviewed that were denied or found meritless by the counselor. None had ever been reviewed formally by a grievance officer. Although it is the prisoner's responsibility to pursue a complaint, the institution bears responsibility for ensuring that the process is open and responsive to prisoners' complaints and concerns. Without such assurance, the prisoners' right to complain is effectively denied. Although the Illinois Administrative Code provides regulations for internal investigations that require employees to document any unusual incidents, including sexual assault, they do not contain specifics on how investigations should be handled. (588) Guidelines for conducting internal investigations into claims of rape, sexual assault or abuse, or other sexual misconduct by correctional employees are not publicly available. We were informed that a directive governing investigations into sexual misconduct does exist, but it is internal and could not be released. (589) Given this restriction, we were unable to determine exactly what procedure the IDOC follows. Based on our interviews, however, it appears that after a woman comes forward with a complaint of sexual misconduct, she is interviewed by a senior individual within the institution, such as a deputy warden or shift commander, and asked to prepare a written statement. The complaint may then be referred to the Internal Affairs Department of IDOC and/or to an investigator based outside the prison. We were unable to ascertain exactly what proportion of complaints of sexual misconduct are so referred. During the course of an investigation into sexual misconduct, implicated officers may or may not be reassigned. In one case we reviewed, in the case of Florence R., who was forced to perform oral sex on an officer, the officer was reassigned within the same prison. But the officer continued to have access to Florence R. and made repeated threats against her during the investigation. (590) Other prisoners told us that certain officers had been suspended or assigned to noncontact positions while an investigation was pending. (591) IDOC confirmed that it may place an officer in a noncontact position during an investigation but only in rare cases will authorities temporarily suspend an employee. (592) Investigations are also flawed by conflicts of interest. In one case we reviewed, for example, a prisoner at Dwight received a disciplinary citation for having sexual contact with guards. According to two corrections employees, the panel created to review the prisoner's citation and determine her punishment included the wife of a guard whom the prisoner had accused of having sexual contact with prisoners. (593) Bias Against Prisoner Testimony Our interviews suggest that IDOC does not take allegations of sexual misconduct as seriously as officials contend, and that the department may dismiss claims of such abuse as unsubstantiated even where some credible evidence of sexual misconduct exists. An example of this is Zelda D., who alleged that she was raped three times by a guard between November 1993 and January 1994. Zelda D. was taken to an outside hospital the evening after the first incident. The examining doctor completed a rape kit (594) and wrote "sexual assault" on her medical record in the box marked "Diagnosis." (595) Despite this finding, prison officials sent another female prisoner to segregation for possible sexual misconduct with Zelda D. (596) Prison officials also placed Zelda D. in temporary custody status in a segregation cell for possible sexual misconduct. Zelda D. was cleared of the sexual misconduct charges days later. After the second incident and despite repeated requests for medical evidence from Zelda D.'s attorney, prison staff denied her medical attention until eight days later. When medical care providers finally examined Zelda D., they noted bruising on her body. (597) In addition, IDOC's investigation into Zelda D.'s allegations did not provide allowances for the potential retaliation a prisoner may face in identifying correctional staff. Zelda D. recanted her first identification of her rapist within two weeks of the first incident. Her attorney, Margaret Byrne, informed the warden that Zelda D. did not correctly identify the assaulting officer because he had threatened to kill her. By the time Byrne learned of and gave the warden what she believed to be the alleged rapist's last name, however, IDOC informed her that it already had closed their investigation into Zelda D.'s allegations. (598) Susan O'Leary, IDOC's deputy counsel, confirmed in September 1994 that the investigation was closed and gave no indication that IDOC intended to reopen it. (599) In describing IDOC's approach to investigating sexual misconduct, O'Leary told Human Rights Watch that in incidents where the evidence consisted only of the prisoner's word against the officer's, the officer would not be discharged. Where more than one prisoner comes forward, she told us, "That makes a more compelling case." (600) But, she still noted that without additional evidence, "There's not much to be done. The warden would just monitor that person closely." O'Leary said corroborating evidence was needed and that hearing officers, who review disciplinary sanctions pursuant to civil service contracts, are sympathetic to prison guards and will "not take a job away without evidence." Prisoner testimony alone will not serve as evidence. O'Leary's told us that prisoners make "spurious complaints of sexual misconduct . . . for a variety of reasons, including for personal gain or attention, to manipulate a transfer to a more preferred housing unit or prison, or because they are upset with an employee for doing his or her job." (601) Several additional factors also undermine IDOC's grievance and investigative procedures and significantly deter prisoners from reporting such abuse. The first of these is a lack of confidentiality in the grievance and investigatory procedures. Despite rules requiring that prison officials take steps to protect prisoners' identities during the grievance process, (602) there appears to be little confidentiality for prisoners who raise allegations of sexual misconduct by correctional staff through either the grievance or the investigation procedure. According to Barbara Echols, while she was incarcerated at Dwight, "it was a known fact that if you [filed a grievance] about sexual harassment or sexual assault by an officer, the whole institution [would] know about it." (603) Similarly, the first statement Florence R. wrote was reportedly provided to the implicated officer. Subsequently, according to Florence R., the officer and his colleagues harassed her for submitting the statement. (604) By contrast, the IDOC appears quite protective of employee confidentiality during investigations. As noted above, our interviews revealed that incarcerated women are not necessarily kept apprised of the progress of an investigation. They submit statements and undergo polygraph exams, but, despite clear prison rules to the contrary, are provided with little additional information afterwards. Corrections employees, meanwhile, are apparently kept fully informed. O'Leary, IDOC's deputy legal counsel, told us that the women are not kept informed for reasons of "confidentiality" for the staff member. (605) This creates a situation in which prisoners may be further harassed or mistreated by officers who have information about an investigation that is not known to the prisoner. The confidentiality of legal materials also appears to be violated for women who have experienced abuse. Women we interviewed who had their legal materials confiscated subsequent to raising a complaint of sexual misconduct, found that when the legal materials were returned, copies of certain documents, such as their grievances alleging abuse or retaliation against them, had disappeared. (606) In Florence R.'s case, all of her correspondence from CLAIM, as well as her written records concerning the rape, vanished. (607) According to some of the prisoners we interviewed, the confidentiality of legal mail is similarly not respected. Under procedures governing such correspondence, it should be opened only in the presence of the prisoner and the contents checked for contraband. However, according to some women, the letters we sent, which were clearly marked as "Attorney Mail," were opened before being given to them. (608) Use of Polygraph Tests and Administrative Segregation In addition to the lack of confidentiality of investigative procedures, prisoners also are deterred from reporting sexual misconduct by the likelihood that the authorities will subject them to polygraph exams and administrative segregation. While Human Rights Watch takes no position on the use of polygraph examinations per se and acknowledges the legitimate penological uses for administrative segregation, we are concerned about the selective use of such procedures to intimidate or, at times, punish female prisoners who come forward with allegations of sexual abuse. Under the Illinois Administrative Code, both employees and prisoners may be asked to take polygraph exams. (609) According to IDOC, polygraphs are employed as an investigative tool to question prisoners. (610) The facility is obligated under the administrative code to inform the employee and the prisoner of their own examinations' results, a copy of which they may request in writing. (611) However, one attorney who represents women prisoners told us that women rarely receive the results of their lie detector tests. (612) O'Leary asserted that prisoners were not required to take such exams. In addition, the administrative code states that prisoners may not be required to take polygraph exams. (613) Some of the women we interviewed, however, said they were consistently pressed to take a polygraph exam, whether or not they so chose. If they refused, their allegation of misconduct by staff was not likely to be pursued. It also appears that exam results have been used to punish prisoners without independent evidence that their allegation is false. Consequently, women often are reluctant to take polygraph exams because they fear they will be used as a tool for punishment and not to further an investigation. In one example, Florence R. was sentenced to ninety days in segregation after she reportedly failed her polygraph. (614) Further, because Florence R.'s allegations were not substantiated by the institution she received a number of disciplinary tickets for providing what the institution determined to be "false information." According to Florence R., she was ticketed for lying in her initial report, for lying to the investigator, and for reportedly failing her polygraph. (615) In another case, Zelda D. was punished for her initial false identification in what attorney Margaret Byrne described as an unduly harsh manner, relative to other prisoners she has represented. (616) Zelda D. was issued a disciplinary ticket and sentenced to one year in segregation--the maximum punishment--for falsely accusing Officer B. Human Rights Watch does not oppose punishing prisoners for making false accusations where the prison authorities have evidence beyond the allegations of the implicated guard or staff member to support the conclusion that the prisoner is lying and acted maliciously or in manifestly bad faith. However, such punishment should be used infrequently, because it could discourage prisoners from coming forward with allegations of sexual misconduct. Polygraphs examinations are notoriously unreliable for verifying the veracity of a person's statements. We encourage IDOC to review the use of these exams to ensure their impartiality. In instances where prisoner allegations of sexual misconduct are contradicted only by the testimony of the accused officer or only by a failed polygraph examination, the prisoner should not be punished for false accusation. In addition to being asked to take polygraph exams, women have been sent to segregation on disciplinary grounds as a result of raising allegations of sexual misconduct. Women we interviewed uniformly feared coming forward to report abuse because of a real or perceived threat that, in the course of the investigation, they would end up in segregation. According to Gigi H., "You are going to do seg time for sexual misconduct, but the officer will be protected through transfers." (617) Brenda N. resisted informing a lieutenant at Dwight about her sexual assault because she knew he would report it and she feared she would then experience problems. The lieutenant, whom she described as friendly and supportive, noticed the bruises on Brenda's neck and pressed her for an explanation. She said, "I told him not to take it on a professional basis because I'd be the one getting into trouble if he handled it on a professional basis. . . .They would have put me in seg." (618) The Illinois Administrative Code provides that prisoners may be placed in "temporary confinement" or segregation pending an investigation if it is determined that a need exists "to restrict the committed person's access to the general population to protect him from injury or to conduct the investigation." (619) The employment of such a provision in cases where women are involved in investigations is not only perceived as punitive, but often functions as punishment. Women placed in segregated status are removed from the general population and treated as though they had committed a disciplinary offense. (620) Illinois further provides that prisoners may be punished with one year in segregation for sexual misconduct. (621) The Illinois regulation does not distinguish sexual contact between prisoners from sexual contact between a corrections employee and a prisoner. According to Odie Washington, director of IDOC, women prisoners involved with guards are also potentially subject to administrative and criminal penalties. Washington stated, "We will take whatever means appropriate to discipline staff and inmates who engage in [sexual] activities." (622) When prison officials at Dwight learned in March 1996 that guards were having sexual relations with prisoners, three prisoners who were involved were placed in segregation and lost a year of good-time credit. (623) Although of the six implicated guards three are on administrative leave with pay pending investigation (the other three resigned), that does not justify additionally punishing the prisoners. As discussed in the legal background section of this report, Human Rights Watch opposes any punishment of a prisoner who was forced to engage in sexual contact with an officer or who was rewarded for sex with some material or non-material benefit. As a matter of policy, we also oppose the punishment of prisoners whose participation in sexual contact does not appear to result from force or any form of exchange by the officer and thus whose own conduct might constitute a violation of prison rules. In these cases, we strongly believe that any state interests served by such punishment are vastly outweighed by their deterrent effect on the reporting of sexual abuse. Inappropriate Confiscation of Property A number of women we interviewed reported that the institution confiscated their property after they reported an allegation of sexual misconduct. The women's property often either was not given back or was returned with items missing. The day after Anna P. spoke to Internal Affairs, one of the prisoners, who confirmed Anna P.'s story but who had not been involved with an officer, had her room searched and several items of her legal and personal materials were taken. (624) When Zelda D. returned from the hospital after the first alleged rape, all of her clothing and personal items were confiscated, reportedly as part of the IDOC's investigation. (625) They were not returned for over two months. As noted above, Florence R.'s property, including her legal correspondence, was taken after she was hospitalized. Some of her legal papers were never returned. Attorneys working with prisoners had to write repeatedly to the warden at Dwight to demand the return of the confiscated property. In each case, the warden replied that all of the property had been given back. Byrne noted: That always happens. Whenever someone goes into segregation, they take their property away and hold it for an unspecified period of time. Then they get only some of it back. I see no reason why it happens. They get it back without things in it. I understand when they go into segregation there is some property they take for punishment purposes, like audiovisual. [Zelda D.] had nothing for two to three months. There was no explanation. It took forever for them to get it back to her. (626) One year after Zelda D. was first sent to segregation, prison officials had still had not returned all of her property. (627) Retaliation and Harassment by Officers Women who have come forward with allegations of sexual misconduct against corrections officers report that harassment and retaliation by corrections officers often occur during the course of the investigation. The women are harassed and repeatedly degraded by officers who exploit the women's perceived lack of credibility. Corrections officers may be reassigned during investigations, but this has not stopped them from moving freely within the prison and intimidating complainants. This harassment not only further abuses the women, it works to discourage other prisoners from coming forward either as witnesses or victims. According to Florence R.: The corrections officers were saying, "You're fucked. You ain't got a GED [high school diploma], you flunked your lie detector test." Everyone on the shift swings together. If you get it from one, you get it from all. You feel powerless. They provoke you--say things like 'you're dumb'." (628) One officer, in particular, used to tell her, "Who's going to believe you? You a fruit loop." Florence R. told us, "They made me feel so small that I was beneath them. They'd say, 'Who you think gonna' stand behind you?'" According to CLAIM director Gail Smith, Florence R. suffered repeated incidents of harassment and retaliation. (629) The night Florence R. was discovered with the officer, she was asked to prepare a written statement by the shift supervisor. She was then visited by a representative of Internal Affairs and asked to prepare a second statement in front of investigators. She was also required to take a polygraph exam. Over the ensuing months, she repeatedly was harassed by the officer and his colleagues, which led her to become increasingly despondent and suicidal. (630) In Florence R.'s case, the officer was reassigned but continued to reappear on her unit to harass her. According to Smith, the officer showed up outside Florence's door in the middle of the night. On one occasion, shortly after Florence R. attempted to commit suicide, this officer's colleague called him into the unit where Florence R. was living, and the two stood over her and made harassing comments about the bandages on her wrists. Alice C. also reportedly was harassed after she agreed to assist in a departmental investigation of a lieutenant charged with sexual misconduct. The lieutenant apparently learned that Alice C. had spoken with an investigator. According to Alice C., he came into her cell and told her "if I knew what was good for me, I'd better keep my mouth shut." (631) Alice C., nonetheless, agreed to participate in the investigation and, on one occasion, an excuse was created for her to leave the institution to take a polygraph test. On the day before the appointment, the lieutenant reportedly returned to Alice C.'s room and told her he knew that the excuse was a ruse and that she should fail her polygraph. Based on our interviews, harassment comes not only from officers but also from higher levels, at least at Dwight. A number of women we interviewed reported incidents of harassment from a male assistant warden regarding their investigation. According to Florence R., the assistant warden reportedly called her into his office and asked, "Why don't you stop this investigation? I get more paper from your people than from Legal Affairs." (632) In addition, female prisoners who reported sexual misconduct by guards and cooperated fully with the investigation reportedly have been transferred to different prisons. (633) This practice, allegedly done to protect prisoners from guards they have implicated, can function as punishment for prisoners who often develop supportive relationships in prison. The transfer also can take prisoners away from classes they are attending. Such classes provide prisoners with additional good time that will be lost if they do not complete the course. Consequently, the possibility of being transferred operates as a strong disincentive to reporting sexual misconduct. While it is critical to protect the prisoner from retaliation, other methods, including transferring the guard could achieve the same end. According to IDOC, as noted above, prisoners filed twenty-nine complaints of sexual misconduct in 1994-95 at Dwight, Dixon, and Logan of which only eight complaints were substantiated. Those eight complaints resulted in three discharges, two resignations and three brief, temporary suspensions. (634) Only one was referred for prosecution. Our interviews indicate that officers may be temporarily reassigned, and may even be temporarily suspended, but few officers are ever actually dismissed for their actions. Consequently, women we interviewed consistently raised the same names of officers who were known to be physically aggressive and abusive. For example, the officer who allegedly assaulted Florence R. also later reportedly raped Holly L. It appears that IDOC and employees at Dwight knew this officer had a history of sexually abusing prisoners. The day Elizabeth Carter visited her daughter at Dwight, she told us that a female corrections officer approached her and, while pretending to play with Carter's granddaughter, stated that the officer in question was "nuts" and that he had a reputation for sexually assaulting prisoners. The female officer's comments were supported, according to Carter, by comments made to her by IDOC's investigator, whom she contacted regarding Holly L.'s situation. The investigator told Carter that he believed Holly because "this guard had a history." He reportedly stated that "he would do what he could" but that there were labor issues involved. (635) Barbara Echols of PAC stated that while she was incarcerated at Dwight, this same officer was notorious for sexual misconduct among both prisoners and officers. (636) The system's inadequate response feeds into a continued cycle of sexual misconduct, further entrenching the problem. When women see that officers are allowed to remain in or return to the same or another prison, they are less inclined to report abuse. As Gigi H. stated, "Seeing him here everyday showed me what they thought about it." (637) Attorney Byrne said, "The atmosphere is that it won't do any good to report these acts. Women are terrified, they are afraid to come forward." (638) Our interviews further indicate that IDOC rarely refers women prisoners' complaints of sexual misconduct to law enforcement authorities for investigation. The initial investigation of complaints and the decision to refer them to local law enforcement appear to rest entirely with IDOC. In a conversation with Human Rights Watch, O'Leary did state that if the department receives an allegation of criminal conduct it would involve the state police. However, according to O'Leary, the department would not "typically [involve the police] in sex cases because the evidence is medical." (639) She told us, "In a rape case, there's probably nothing the state police can do that we wouldn't be doing." Where a prisoner alleged rape, O'Leary stated that a rape kit would be performed at the institution and this would be analyzed by the prison doctor. The results would be given to the warden and the investigator, but there are "no hard and fast rules." (640) O'Leary did assert that prisoners were still free to call or write to the police. (641) But, our interviews indicate that, despite O'Leary's assertion, actual procedures do not permit incarcerated women to bypass the institution to seek police investigations into alleged rapes. When Byrne contacted the state's attorney, Thomas Brown, to inquire how to file a criminal complaint, she was informed that his office did not have jurisdiction--it had to be referred from IDOC. (642) Byrne's experience was confirmed by two other prison monitors, Ruthanne DeWolfe and Gail Smith. DeWolfe stated that the Will County district attorney took the position that any referrals for criminal prosecution of corrections officers must come from IDOC itself. (643) According to Smith, a former CLAIM employee was similarly informed by the Livingston County state attorney's office that a criminal referral to either the police or prosecutor must come directly from the Dwight administration after an internal investigation. (644) In the case of Anna P.'s allegations that guards at Dwight were giving prisoners goods in exchange for sex, three officers reportedly resigned and the others were suspended with pay pending the completion of the internal investigation. (645) Susan O'Leary, IDOC deputy chief legal counsel, told Human Rights Watch that when IDOC forwarded their information on the Dwight allegations to the Livingston County state attorney's office no one at IDOC contemplated the possibility that the female prisoners might be criminally charged. (646) Nonetheless, according to press reports, IDOC spokesperson Nic Howell indicated that charges would be considered against the prisoners, as well as the guards. (647) IDOC's seeming assumption of jurisdiction over criminal acts occurring in prison is inherently problematic. To be fully transparent and neutral, two simultaneous investigations need to be conducted--a departmental investigation for possible employee misconduct, and a separate, independent investigation into the allegation of criminal conduct. By initially assuming exclusive jurisdiction over criminal acts, such as rape, the department, in effect, is permitted to investigate itself. Lack of Accountability to External Monitors Based on our interviews and experience trying to interview women in Illinois, there appears to be an overall lack of accountability in IDOC to outside persons assisting women prisoners, particularly during an investigation of sexual misconduct by prison staff. (648) Family members, attorneys and even a member of Congress who have attempted to monitor investigations into such conduct have either not been fully apprised of the investigation's progress or have been flatly denied access to information. Attorneys report the destruction of documents by IDOC staff, slow response to queries, and daunting procedural irregularities. Gail Smith, who has worked with women at Dwight since the mid-1980s as the director of CLAIM, told us that she has heard of only one successful investigation into an allegation of sexual misconduct. (649) She monitored Florence R.'s complaint and remains convinced not only that Florence R. was forced to perform oral sex, but also that the institution did nothing to address her complaint or to protect Florence R. from her alleged attacker. During this time, Smith told us, "we were not getting attention or cooperation from the institution." (650) According to Smith, the investigation languished for over five months, and CLAIM was not kept informed of its progress. Legal documents taken from Florence R.'s cell by prison staff disappeared. (651) Moreover, Smith told us, little was done to protect Florence R. from harassment by the implicated officer. CLAIM's involvement in Florence R.'s case apparently damaged its previously productive relationship with Dwight, where they had worked to provide family law services for incarcerated mothers. According to Smith, "Once we got involved . . . this affected the relationship with [the institution]. . . . If they get an inkling you are looking into something, then they put the brakes on and it becomes a little harder." (652) Others who have attempted to press for information or to monitor cases have been stonewalled or mistreated by the IDOC. Holly L.'s mother, Elizabeth Carter, tried to pursue Holly L.'s allegation of rape with both the warden and an IDOC investigator. Despite her efforts, the implicated officer remained on Holly L.'s unit for several weeks after the attack. According to Carter, when she visited her daughter after the alleged rape, Holly L. was "beside herself." (653) She requested to speak with the warden that day and called her again several days later. According to Carter, the warden did not return her phone calls until she contacted an attorney and called other people at IDOC. When the warden finally returned Carter's call, she reportedly told Carter that she would "do what she could to facilitate" and said whoever was guilty, "on either side," would be punished. Carter was never notified about the outcome of the investigation. It appears that corrections officials have even misled a representative in the U.S. Congress who sought information about an investigation. Soon after Alice C. took a polygraph to assist in an investigation of sexual misconduct by a corrections employee, she says IDOC officials transferred her involuntarily to another facility, further away from her family and children. "I returned to [the prison] that afternoon and the next thing I knew they said I had thirty minutes. They were transferring me." (654) After her transfer, Alice C.'s family contacted their U.S. congressman, Representative Bob Michels. Rep. Michels then communicated his concerns about Alice C.'s transfer to IDOC, and in September 1993 Howard Peters, then director of IDOC, wrote to him saying he would look into the situation. (655) In November 1993, two months after Alice C. was transferred, Director Peters informed Representative Michels that the investigation had just concluded. He wrote that once the appropriate paperwork was processed "we will have no objections in reconsidering [Alice C.'s request] to return to ." (656) In fact, the IDOC Administrative Review Board had decided in November to deny Alice C.'s request to return to the other prison. I. Prohibiting Sex in Custody A. The Illinois Legislature should amend the Illinois Penal Code to recognize that all instances of sexual intercourse or sexual touching between prison staff and prisoners constitute felonious criminal conduct on the part of the prison staff member. Where such intercourse or touching is accompanied by the overt use or threat of force, including through the provision or denial of privileges, money, or goods, it should be prohibited as felony rape and sexual assault. Given the fact that prisoners have limited resources and privileges and the promise of rewards always carries special weight, cases where correctional officers offer goods or privileges without any actual or perceived threat to the prisoner should be prosecuted as felonious sexual abuse. In instances where it can be shown that no coercion occurred, sexual intercourse and sexual contact between corrections employees and prisoners is, at a minimum, an infraction of staff professional duty and should be punished as criminal sexual contact, also a felony. Such a provision should be integrated into already existing laws that criminalize rape and sexual assault. Prisoners should not be criminally sanctioned for misconduct. B. IDOC should amend the Illinois Administrative Code to explicitly prohibit corrections employees from engaging in sexual intercourse or any other form of sexual contact with prisoners. C. IDOC should cease punishing women prisoners and/or pursuing criminal charges against women prisoners for sexual relations with corrections employees under any circumstances. The Illinois Administrative Code, Section 504 should be revised to prohibit the punishment of prisoners for sexual contact with corrections staff. Even in those instances where evidence overcomes the presumption of some coercive influence on the prisoner and no goods or privileges were exchanged, prison authorities should refrain from punishing her. Whatever penological interest might be served by such sanctions is outweighed by the deterrent effect that such punishments would have on prisoners' willingness to report custodial sexual abuse. II. Safeguarding Prisoners Impregnated by Guards A. IDOC should refrain from administratively segregating prisoners impregnated by corrections staff unless the prisoner expressly requests it. B. IDOC should ensure that pregnant women receive timely and adequate medical care, and that medical treatment recommended by physicians is provided as prescribed. Medical care should include professional psychiatric counseling for prisoners who are impregnated as a consequence of rape or sexual abuse. Administrative segregation should not preclude the provision of adequate medical and hygienic requirements for a safe pregnancy. (657) Prisoners also should receive neutral counseling on the options available to them. III. Prohibiting Abusive and Degrading Language IDOC should revise the administrative code to prohibit the use of abusive and degrading language toward prisoners. Corrections staff must be made aware, through enforcement, that they are obligated to comply with such provision or be subjected to disciplinary sanctions. IV. Protecting Privacy: The Need for a Policy A. IDOC should institute a policy to protect the privacy of women prisoners consistent with international human rights law and with several federal court decisions holding that prisoners have a constitutionally protected right to privacy. Corrections employees should be fully trained in this policy and it should be strictly enforced. Such a policy should include, among other things: 1. a requirement that male officers announce their presence before entering a women's housing unit; 2. permission for prisoners to cover windows in their cells for limited intervals while changing or using the toilet; 3. a restriction that showers and toilets be searched by female officers only and should not be excessively intrusive. B. IDOC should enforce the administrative code provision requiring strip searches to be conducted by corrections officers of the same sex as the prisoner, and in a place where the search cannot be observed by others. Even in emergencies, IDOC should strive to follow this provision. C. IDOC should amend its policy on pat searches to stipulate that female officers should conduct such searches whenever possible. Prisoners who either pull away during offensive pat searches or request that the search be conducted by a female officer should not be subjected automatically to disciplinary action. V. Ensuring an Effective Remedy Grievances A. IDOC should require counselors to report all incidents of sexual misconduct raised through prisoners' grievances or through their conversations with prisoners to the prison superintendent or another designated supervisor within the facility. Such allegations, including rumors, should be promptly and impartially investigated. B. IDOC should make grievance forms readily available in the prison library or other neutral place, and prisoners should be able to seek the assistance of other prisoners to prepare and file grievances. Investigative Procedures A. IDOC should promulgate a written, public procedure for conducting investigations into sexual misconduct between corrections staff and prisoners. The investigative procedure should, at a minimum: 1. specify the circumstances necessary to initiate an investigation, either by the Internal Affairs Department or by an investigator at the prison; 2. establish a clear structure and time frame for conducting investigations; 3. protect as much as possible the confidentiality of the complainant, in particular during any period that the employee retains a contact position over her; 4. guard complainants from retaliation and harassment; and 5. guarantee accountability to outside monitors. B. IDOC should enforce provisions in the Illinois Administrative Code that require corrections employees promptly to report unusual incidents, which should include allegations as well as rumors of sexual or other overfamiliar conduct to the prison warden or investigator. Failure to do so should constitute a disciplinary offense. C. IDOC should refer promptly all allegations of rape, sexual assault, and criminal sexual contact to the state police for criminal investigation. Apart from possible criminal wrongdoing, IDOC should also look into such allegations for possible violations of prison rules. Eliminating Bias Against Prisoners A. IDOC should cease its practice of discounting, as a matter of course, the testimony of prisoners who alleged ill-treatment, particularly sexual misconduct, by corrections staff without a thorough and impartial investigation. B. IDOC should reexamine its policy on the use of polygraph examinations during investigations into employee misconduct. Results of a polygraph examination should not, without other credible evidence, be sufficient to establish that a prisoner has made a false accusation. VI. Preventing Retaliation Against Complainants A. Officers alleged to have committed rape and sexual abuse should be assigned to a noncontact position or suspended until the circumstances are clarified and the investigation is complete. Any violation of such restrictions should constitute grounds for disciplinary action and/or for immediate suspension. B. IDOC should ensure, as much as possible, the confidentiality of prisoners alleging sexual misconduct by prison staff and their witnesses. Their names should not be given to the accused officers while the officers remain in contact positions with the complainants or are assigned to the facility where a complainant resides. IDOC also should prevent the prisoner's name from being revealed generally within the facility. C. IDOC should investigate promptly and vigorously all reports of harassment or retaliation against complainants. Employees who are found guilty should be disciplined appropriately. D. IDOC should reexamine and monitor the policy of impounding prisoners' property to ensure that prison administrators and other corrections officials do not abuse this power as a way to punish or harass prisoners, or deprive prisoners of materials that are crucial to their allegations. VII. Curtailing the Use of Administrative Segregation IDOC should strictly prohibit the use of administrative segregation to punish complainants. IDOC should authorize the use of administrative segregation during an investigation only at the complainant's explicit request. Since a prisoner placed in administrative segregation for her own protection has not committed a disciplinary offense, she should retain the rights of the general population (e.g., telephone calls, visits, access to recreation, etc.). She should be returned to the general population when she wishes. IDOC should train employees assigned to segregated housing units regarding these provisions. VIII. Ensuring Discipline A. IDOC should promulgate and enforce clear, public guidelines governing disciplinary action against abusive corrections employees. These guidelines should expressly state that employees found to have engaged in sexual intercourse, sexual contact, or any other sexual misconduct will be punished, including by dismissal. Transfer of employees found to have engaged in sexual contact with prisoners to other positions or facilities does not constitute appropriate punishment. B. IDOC should publish, at least quarterly, a summary of reports of and disciplinary actions taken against corrections employees responsible for sexual misconduct or abuse to allow the federal government and nongovernmental organizations to monitor IDOC's efforts to prevent sexual misconduct. The reports should omit the names of prisoners and, if necessary, of employees. But they should include dates, locations, and other relevant details about the reported incidents, and the types of punishment applied. IX. Hiring and Training Corrections Employees A. IDOC should improve its screening procedures for applicants for corrections positions. Background checks should be completed before new employees are sent into women's correctional facilities. In no case should an employee who has been convicted of an offense related to sexual misconduct in custody be rehired. B. IDOC should ensure that comprehensive and mandatory training is provided to current and future corrections employees on particular aspects of working with incarcerated women, prior to their assignments in women's prisons. The training should include, among other things: 1. a general discussion of profile of female prisoners and their potential vulnerability to sexual misconduct; 2. IDOC policies on privacy and the prohibition on sexual relations, degrading language, and other sexually oriented or degrading behavior toward incarcerated women and the disciplinary sanctions associated with this behavior; and 3. appropriate methods for conducting pat searches, strip searches and searches of women's cells, toilets, and showers. The IDOC should collaborate with local nongovernmental organizations experienced in working on issues such as rape and sexual assault. X. Educating Prisoners A. IDOC should advise incarcerated women, as part of their orientation to the corrections system, as well as prisoners already serving their sentences, of the following: 1. Corrections officers are strictly prohibited from engaging in sexual contact with prisoners under any circumstances. 2. Grievances may be filed directly and confidentially with the prison superintendent or prison investigator. Prisoners should be informed about: the issues that may be dealt with through the grievance procedure, with particular emphasis on instances of sexual misconduct; the location of grievance forms in the prison library or other neutral place; bypass mechanisms available for reporting sexual misconduct; the recourse available when corrections officers fail to respond; and the potential to resolve complaints through the investigation procedure and/or the independent review board. 3. IDOC should also acquaint prisoners with their rights under international human rights treaties ratified by the United States as well as under U.S. constitutional law. B. The above information should be included in the prisoner handbook. XI. Ensuring Accountability to Outside Monitors A. IDOC should provide timely and full written information about a grievance or investigation to the prisoner and the people she designates, such as her attorney and her family, upon their request. B. The Illinois Legislature should create a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct that are not satisfactorily resolved by the grievance or investigative mechanisms. The review board should have the authority to turn over evidence of possible criminal wrongdoing to prosecutorial authorities. The board should also be able to recommend remedial action to stop abuses or other problems uncovered during an investigation. C. The review board should develop a system whereby the records of corrections employees who have been the subject of repeated complaints are reviewed by the appropriate authorities. D. The review board should provide a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of employee misconduct, including retaliation against complainants. The Michigan Department of Corrections (MDOC) is currently being sued by seven female prisoners on behalf of all others similarly situated for sexual assault, sexual abuse, sexual harassment, and inappropriate visual surveillance within its correctional facilities for women. The suit comes on the heels of a U.S. Department of Justice (DOJ) finding in 1995 that sexual misconduct pervades Michigan's women's prisons, including rape, sexual abuse, sexually aggressive acts by guards, and violations of the female prisoners' legitimate privacy interests. Our own investigation, conducted from 1994 through 1996, and based on interviews with current and former female prisoners as well as attorneys, prisoner rights advocates, and MDOC, revealed that rape, sexual assault or abuse, criminal sexual contact, and other misconduct by corrections staff are continuing and serious problems within the women's prisons in Michigan have been tolerated over the years at both the institutional and departmental levels. Rather than seeking to end such abuse, the Michigan Department of Corrections has consistently refused to acknowledge that there is a problem of sexual misconduct in its women's prisons. As noted below, MDOC dismissed the female prisoners' class action suit as "erroneous" and issued a written statement characterizing the DOJ's findings as "vindictive and distorted" and "full of half truths, innuendo, distortion and lies." (658) The state has taken the positive steps of establishing minimal grievance and investigatory procedures as well as disciplinary and criminal sanctions for custodial sexual contact; however, its stated policy of "zero tolerance" for such abuse is belied by a pervasive bias against prisoner testimony, a high incidence of retaliation against complainants, and a consistent problem with the enforcement of appropriate penalties. MDOC cooperated with Human Rights Watch's on-site investigations at its women's facilities and was prompt in its reply to our requests for additional information. Moreover, we commend the state for expressly criminalizing custodial sexual touching and for establishing clear disciplinary penalties for this crime. However, a significant gap exists between MDOC policy and its practice with respect to sexual misconduct. We strongly urge MDOC to enforce its criminal and administrative prohibitions against sexual misconduct, including rape, sexual abuse, and assault, criminal sexual contact, verbal degradation, and privacy violations; to protect prisoners' right to an effective remedy in cases of sexual misconduct by prison staff; and to end impunity for abusive employees. Moreover, we urge the department to publish regular reports of the nature and results of its sexual misconduct investigations to cooperate fully with the Department of Justice and other independent monitors in their efforts to uncover and remedy on-going custodial sexual misconduct in Michigan's prisons for women. Female prisoners in Michigan, held in increasingly overcrowded facilities, are guarded by a largely male staff. According to recent figures, men constituted from nearly one-half to over two-thirds of the corrections staff in the state's two largest prisons for women, the Florence Crane Women's Facility (Crane) and the Scott Correctional Facility (Scott). (659) As noted in the legal background chapter of this report, Human Rights Watch does not oppose the presence of male officers in contact positions in female prisons per se. Nor do we believe that all male staff abuse prisoners or that custodial abuse is carried out only by males. However, we are concerned that Michigan has not taken adequate steps to protect against the potential for custodial sexual misconduct that arises out of this cross-gender guarding situation. Although Michigan does expressly prohibit sexual misconduct in both prison rules and criminal law, it fails to train male staff adequately to uphold these prohibitions and does not consistently investigate and discipline those employees found to violate them. Corrections officials have also failed to inform female prisoners adequately regarding the nature of custodial sexual misconduct and the mechanisms available to seek redress. Christina Kampfner, a clinical psychologist who had worked extensively with women in Michigan's prisons, told us that in these relationships, officers often target "like a radar" women with histories of sexual or physical abuse or prisoners in emotionally vulnerable positions, such as those who lack support from family or friends, who are alienated or isolated by other prisoners or staff, and younger women who are incarcerated for the first time. (660) According to Kampfner, many of these prisoners are so in need of attention that they are easily exploited by the officers. The gap between policy and practice in Michigan with respect to sexual misconduct is occurring at a time when the women's prisons are increasingly crowded. According to the most recent figures available from MDOC, there are a total of 1,616 prisoners in its women's facilities. (661) The majority of women are held in the Scott Correctional Facility, located in Plymouth, and the Florence Crane Women's Facility, (662) located in Coldwater, which house 771 and 447 women respectively. (663) MDOC also operates Camp Branch, a female camp in Coldwater that holds approximately 400 women. MDOC currently operates both women's prisons in overcrowded conditions--prisoners are double- and triple-bunked--and areas once used for recreational space are being used to house prisoners. (664) State Legal and Regulatory Framework Under Michigan's criminal code, any sexual touching with a prisoner by an employee of or a volunteer with MDOC constitutes fourth-degree "criminal sexual conduct," a misdemeanor. (665) The provision was added in 1988 to a pre-existing section of the criminal code that outlawed sexual touching with someone between the ages of thirteen and sixteen who is physically or mentally incapacitated or that is accompanied by force or coercion. The law applies to sexual contact irrespective of a prisoner's alleged consent. (666) Given the position of authority held by a corrections employee over a prisoner, the Michigan legislature found "the usual notions of consent do not apply." (667) The MDOC employee manual reiterates the prohibition on sexual contact with a prisoner and informs employees that such conduct constitutes a crime under Michigan law. (668) Under certain circumstances, corrections officers who engage in sexual intercourse with prisoners may be charged with third or first degree criminal sexual conduct. Third degree criminal sexual conduct occurs when an individual uses force or coercion to have sex. First degree sexual conduct applies to intercourse that occurs under specified aggravating circumstances. (669) At present, MDOC operates both of its women's prisons and Camp Branch under a court order issued in 1981, in Glover v. Johnson. (670) While the issues raised in Glover are outside the scope of this report, the authorities' persistent defiance of both the judicial authorities and the other external monitors involved in Glover are indicative of similar problems in MDOC's approach to addressing sexual misconduct in its women's prisons. At the time Glover was decided, it was a landmark decision for incarcerated women regarding their rights and an influential precedent for female prisoners in other states to seek more equal programming. Despite its precedential value, however, women incarcerated in Michigan continue to be denied the full implementation of the judge's order. (671) Attorneys representing female prisoners have been forced to file repeated contempt motions seeking compliance with Glover orders. The district court has found that the state disobeyed the 1981 order in two major contempt rulings. (672) MDOC's continued noncompliance led the Sixth Circuit Court of Appeals, in 1991, to issue a stern rebuke to the department and to uphold the appointment of a special administrator, a remedy the Circuit Court once found overly intrusive. The Sixth Circuit concluded: [The] history of this case shows a consistent and persistent pattern of obfuscation, hyper-technical objections, delay, and litigation by exhaustion on the part of the defendants to avoid compliance with the letter and spirit of the district court's orders. The plaintiff class has struggled for eleven years to achieve the simple objectives of equal protection under the law generally, and equality of opportunity specifically. (673) While the court upheld the creation of a special administrator, MDOC was permitted to designate who would serve in that position. The director of MDOC, Kenneth McGinnis, appointed Nancy Zang, a former parole officer in Illinois as special administrator of the Female Offenders Program. Zang is based in the director's office and reports directly to him. The Sixth Circuit's rebuke did not appreciably affect MDOC's recalcitrance, and women have continued to face difficulties gaining the remedies ordered by the court. Deborah LaBelle told us there have been more than eight contempt motions filed against MDOC since 1991. (674) The court has issued nine orders to force compliance since 1991, and in March 1995 issued an opinion finding that MDOC had still not obtained compliance, despite MDOC's insistence that they were fully compliant in all areas. (675) On July 19, 1996, the court again issued an opinion and orders to compel compliance. United States District Judge John Feiken concluded: ". . . Defendants [MDOC et al.] have clearly, positively, and repeatedly violated orders of this court. . . .In fact, in the nineteen years of this case, Defendants have demonstrated a galling pattern of disrespect for the inmates they hold, the taxpayers of the State of Michigan, and the dignity of this court." (676) National and International Law Protections As discussed in the legal background chapter of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international treaty law that is binding on the the U.S. federal government and its constituent states. (677) The eighth amendment to the U.S. Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is further augmented by the Fourth Amendment's guarantee of the rights to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from strip searching female prisoners, conducting intrusive pat-frisks, or engaging in inappropriate visual surveillance. Constitutional protections on prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark prison victories through private litigation, particularly by suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union or the National Prison Project of the National Women's Law Center. However, if certain stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the constitution. In addition to constitutional protections, prisoners' rights are also protected under international and human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, ratified in 1994. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative institutional fora have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from the victim, punishing her, intimidating her, coercing her, or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. The ICCPR guarantees the prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security. When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. (678) The abuses discussed in this section occurred over a ten-year period from 1986 to 1996. Our own investigation took place from March 1994 through November 1996. We found a serious problem of sexual misconduct in Michigan women's prisons, including rape, sexual assault and abuse, criminal sexual contact, inappropriate visual surveillance, and verbal degradation. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld. Rape, Sexual Assault or Abuse, and Criminal Sexual Contact On March 27, 1996, prisoners' rights attorney Deborah Labelle filed a class action suit, Neal/Nunn, on behalf of seven female prisoners and all other females incarcerated in Michigan charging MDOC and several other named defendants with various degrees of sexual assault, sexual harassment, violations of privacy, and physical threats and assaults. (680) Two of the plaintiffs, Tracy Neal and Ikemia Russell, allege sexual assault by male officers at the Scott Correctional Facility in 1994. A third, Helen Gibbs, alleges that she was sexually assaulted by a male officer at the Florence Crane Women's Facility in 1994. Bertha Clark alleges that a male officer at Scott squeezed her breasts and grabbed her crotch during pat-frisks, and Linda Nunn alleges sex-based, derogatory and abusive name calling and sexually threatening comments by a male officer at Scott. Stacy Barker, whose case is described in more detail below, alleges constant harassment and retaliation at Scott for reporting sexual misconduct by staff members, and "Jane Doe" alleges that male officers at Crane subjected her to constant viewing while dressing and undressing, showering, and using the toilet facilities. All seven women report experiencing sex-based insults, sexual harassment, excessively intrusive cross-gender body searches, constant viewing by male staff and threats of retaliation for reporting staff misconduct. Such allegations of sexual misconduct are not new to Michigan's women's prisons. Documentation we obtained indicates that these charges are consistent with a pattern and practice of conduct in the women's prisons since, at least, the mid-1980s. In 1984 a prisoner accused a resident unit officer, Alfred Beaster, at Huron Valley Women's Facility, (681) of rape. He ultimately confessed to having sexual relations with a prisoner, but asserted the prisoner was the aggressor. He told the prison investigator that: The prisoner dropped her pants, he took his penis out, but she did all of the manipulation. That is, she backed onto his erection. Officer Beaster maintained he didn't lay a hand on her. Beaster told the officers that he wasn't sure if he was inside of her or not as she was backing up on him. He did tell the officers that he ejaculated and that she asked him if he squirted inside of her. (682) Then, in 1986, a corrections officer at Crane, Raymond Raby, was dismissed after admitting during a police interview that he had sexual relations on a nightly basis with different women incarcerated at Crane. Raby's exploits came to light after a prisoner, Jackie K., reported that Raby molested her. According to Jackie K.'s statement, Raby entered her cell at night and woke her up. He took her into a visiting room where he grabbed her and kissed her, then fondled her breasts and put his finger in her vagina. (683) Shortly after Jackie K. complained about him, another prisoner reported seeing an officer fitting Raby's description having oral intercourse with a third prisoner. (684) In 1988 another woman incarcerated at Crane, Kim J., alleged that she was raped by an officer during the night shift. Kim J. reported the incident to the prison psychologist, who then informed other officials in the prison. (685) According to a statement Kim J. made, the officer raped her in the laundry room after she submitted to a "shakedown" (pat-frisk). The next morning, she awakened to find the officer in her cubicle with his hand between her legs. The authorities took no action against the officer because the only evidence was her accusation. In another incident, Officer Bernard Rivers in 1990 admitted entering a prisoner's segregation cell and sexually assaulting her. According to the prisoner, Lisa G., Rivers entered her cell in April 1988 and told her he could positively or negatively affect her parole, depending on how she responded to his sexual advances. (686) She involuntarily submitted to sexual relations with him. Lisa G. came forward eighteen months later, after Rivers was again assigned to her housing unit, out of fear that he would force her to have sexual relations with him again. MDOC largely ignored Lisa G.'s allegations for four months until she, with the help of her attorney Deborah LaBelle, obtained a court order and wore a wire inside the prison. (687) She successfully taped a conversation with Rivers. His statements acknowledged the sexual assault and resulted in the sheriff's office recommending prosecution. He committed suicide before trial. In 1992 the Michigan Women's Commission, a governor-appointed body, launched an investigation into the problems facing incarcerated women, focusing in particular on women incarcerated in county jails. (688) The commission interviewed fifty-nine women who were formerly held in jail and were either released or transferred to Michigan's prisons or community-based programs. (689) In each interview, a pre-established series of questions was asked regarding jail conditions including a final, open question, "Are there any concerns you would like to share about conditions here at the prison?" (690) The prisoners raised a number of concerns in response to the final question, including incidences of rape, sexual assault, and sexual harassment committed by corrections officers. A majority of the women reported sexual harassment and sexual abuse by the guards, ranging from corrections staff demanding sex or sexual favors, often in exchange for certain items, to intrusive pat-downs, to male guards walking through the showers and rooms while the women were undressed. (691) The women's responses to the last question were used to create a final chapter, "Special Report: Women in Prison," of the Women's Commission's Report. At MDOC Director McGinnis's insistence, the section was ultimately deleted from the published report, released in July 1993; the chapter has never been made public in any form. (692) In February 1993 the Office of the Legislative Corrections Ombudsman, a post attached to the state legislature, conducted a second investigation of sexual misconduct at both Scott and Crane. (693) McGinnis asserts that the ombudsman's findings refuted the information compiled by the Women's Commission, even though a significant percentage of the women surveyed reported that sexual harassment and sexual misconduct were problems in the prison. (694) In June 1994 the U.S. Department of Justice launched an investigation into prison conditions for women incarcerated at the Scott and Crane facilities pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA). The purpose of the investigation was to determine whether there were any violations of the prisoners' constitutional rights. On March 27, 1995, U.S. Assistant Attorney General Deval Patrick wrote a twelve-page letter to Michigan Governor John Engler that detailed the DOJ's findings. The DOJ concluded: [T]he sexual abuse of women prisoners by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding and other threats to the physical safety and well-being of prisoners, violates their constitutional rights. (695) According to the DOJ letter, "nearly every woman . . . interviewed reported various sexually aggressive acts of guards." (696) The DOJ found that prisoners at Scott and Crane had been raped, sexually assaulted, and subjected to groping and fondling during pat-frisks. Additionally, they were subjected to "improper visual surveillance by guards" who: routinely stand outside the cells of individual prisoners and watch them dress or undress, stand in the shower areas and observe showers and use of toilet facilities. Male maintenance workers stand and watch women inmates who are naked or in various states of undress as well--all on a regular basis without legitimate need. . . . We are unaware of any effort to accommodate the legitimate privacy interests of prisoners. (697) The status of the DOJ's investigation is discussed in more detail below. In 1994 we interviewed two women--Stacy Barker and Charlene Billups-Hein--who both sued MDOC for repeated sexual abuse by male corrections officers that they endured at the Huron Valley Women's Prison, now closed, and Scott. Barker was raped and sexually assaulted by the same officer, Craig Keahy, over a period of nearly a year and a half, beginning in October 1989. (698) She told us, "He would come to my room or detail [once or twice a week] and force me to perform different sexual acts on him. He would threaten or harass me, like 'I'll make your time hard for you . . . I have the keys.'" (699) He was discovered by other officers on various occasions leaving Barker's room off-duty but was always allowed to return to her unit and never reprimanded for violation of rules. After a while, his attacks became more violent. She told us, "He'd say things like, 'Come on and suck my dick'. . . . He'd pull my hair, unzip his pants and force himself in my mouth." Keahy was subsequently discovered by other prison officers, in August 1991, leaving the room of a second woman prisoner. They looked into the prisoner's room and saw that she was naked. While the prisoner initially denied anything had occurred, she was taken to the hospital and an examination was performed which detected the presence of semen. Keahy was convicted in December 1991 on two counts of fourth-degree sexual conduct with a prisoner, a misdemeanor. (700) He was sentenced to community service. Charlene Billups-Hein was housed in segregation when a male corrections officer, David Rose, started coming to her cell in the early mornings in June and July 1992. (701) According to Billups-Hein, Rose came and spoke with her one night when she was crying and upset. Rose told her he had been having sexual relations with other prisoners and asked her to have sexual intercourse with him. He listed the names and identification numbers of the women with whom he was having sex, many of whom were housed in the segregation unit. According to Billups-Hein, he stated that he had been watching her for a long time and that she would be his fourteenth resident. He had not approached her earlier, Rose said, because she w |