May 16, 2012

VII. Obstacles to Enforcement of Applicable Criminal Law

Better that I not call the police, better that I not say anything.
—Marisol Z., New York farmworker, August 2011.
If I had called the police, they wouldn’t have helped me because I’m undocumented.
—Monica V., New York farmworker, August 2011.

Many of the acts of sexual violence and sexual harassment experienced by farmworkers can also be classified as crimes and are prohibited by criminal law. But in most of the cases we investigated, the workers did not report the crimes to police or did so only after making contact with a social service agency that actively encouraged and supported them. Human Rights Watch did not do extensive interviews in any particular jurisdiction, and due to confidentiality concerns, we were unable to follow up with police departments about specific cases. While we thus can reach no conclusions about the adequacy of efforts of any particular police department or other law enforcement agency, the incidents described show that law enforcement agencies can and should do more to investigate and prosecute sexual violence against farmworkers.

Fears of Police Fueled by Police Involvement in Immigration Enforcement

Numerous immigrants and advocates reported that unauthorized immigrants are often reluctant to report any crimes to the police. Lourdes Carrillo, who heads a Latino community organization in North Carolina, stated, “I know victims of domestic violence who don’t report [to the police]…. I know three women … they’re afraid police will deport them.”[307] Police officers also acknowledged that fear of deportation is a major barrier. Sergeant Kevin Smith at the Fresno County Sheriff’s Department stated that when reports of crimes do come in, “Some of the reporting is second-hand. Families are afraid they’ll get deported…. [They are] not coming immediately to the police, not initially.”[308]

As noted above, the increasing cooperation of local law enforcement agencies with Immigration and Customs Enforcement (ICE) has only exacerbated immigrant farmworkers’ fears. Over the last several years, ICE has pushed the adoption of programs like the Criminal Alien Program, 287(g), and Secure Communities. Through these programs, unauthorized immigrants who come into contact with law enforcement, often through incidents as minor as traffic stops, have been checked against an immigration database and then referred to ICE for removal proceedings.[309] ICE claims that the vast majority of immigrants deported under these programs have been dangerous criminals, but ICE’s own data state that as of April 30, 2011, a third of the individuals administratively arrested or booked into ICE custody through the Secure Communities program had no criminal convictions.[310]

Local law enforcement agencies have also increasingly become identified with immigration agents as state governments pass laws that require local law enforcement involvement in immigration enforcement. Arizona, Alabama, South Carolina, Georgia, and Utah have all passed laws that require or authorize law enforcement agencies to check the immigration status of individuals during any lawful stop or arrest.[311] Alabama is the only state thus far in which such provisions were not immediately enjoined by courts, and Human Rights Watch subsequently received reports of incidents in Alabama in which, due to the new law, victims of crimes were unwilling to report them to the police.[312]

The Importance of Police Outreach in Developing Community Trust

It can make a significant difference when a law enforcement agency takes steps to overcome an immigrant community’s distrust and assures them it is working to protect all residents from crime, regardless of their immigration status.

Sergeant Dave Shaw of the Salinas Police Department in Salinas, California, stated, “If they are victims, we don’t care about their status.”[313] To communicate that message, the police department has conducted extensive outreach, with presentations on radio and television, articles in newspapers, and appearances at Latino churches by the police chief. When Sergeant Shaw first started in 1987, such outreach was nonexistent. Since then, however, he believes the outreach has led to more victims coming forward, including victims of sexual assault.

Sergeant Shaw remembered one case in particular where he had encountered a man and a woman in a vehicle and interrupted what he later learned was an attempted rape. At the time, the woman pretended they were in a relationship, but the next day, she came in and reported the assault. Sergeant Shaw stated, “I honestly believe our efforts over the years led to that woman reporting the assault. When I first started, she would have been more afraid of the police than of him.”[314]

Sergeant Shaw, however, is aware that all the work the department has done could be undone easily: “You have to back up what you say. It may take 10 years to build up trust, and then one incident can betray that trust.”[315]

Farmworkers and farmworker advocates across the country reported that police behavior varied greatly from jurisdiction to jurisdiction. But where the police are active in reporting unauthorized immigrants they encounter to immigration, farmworkers are well-aware that even a routine traffic stop[316] or a phone call reporting domestic violence[317] can lead to deportation proceedings. In California and North Carolina, two states Human Rights Watch visited, Secure Communities is now active in every county.[318]

In New York, Secure Communities was activated in half of the counties, including many of the counties engaged in agriculture, but New York suspended its participation in Secure Communities statewide in June 2011.[319] Even after the suspension, farmworker advocates in New York report that local police continue to call Border Patrol for interpretation assistance, leading to situations in which, for example, a Spanish-speaking victim who calls the police for help will see immigration authorities, with the power to deport her, arrive on the scene to interpret.[320] They further reported that police and Border Patrol officers often sit outside churches, laundromats, and other places where Latino immigrants congregate.[321]

In one small town in California’s Central Valley, several farmworkers said they distrusted the police because they felt police had “arrested and deported [people] for no reason” or for offenses like driving without a driver’s license,[322] and that a particular police officer “helps ICE” and “doesn’t like Mexicans.”[323] In Kern County, California, a major agricultural area, a sheriff’s deputy was convicted in 2011 of pulling over unauthorized immigrants and stealing money from them.[324] In Jackson County, North Carolina, a farmworker advocate reported that he has heard rumors of one particular deputy, nicknamed “El Gordo,” who “puts his hands on people and says ugly things to them.”[325] The Department of Justice recently concluded that illegal racial profiling by local law enforcement has occurred in Maricopa County, Arizona, and East Haven, Connecticut.[326] The perception that unauthorized workers can be stopped by police and deported “for no reason” is a powerful deterrent to reporting crimes.

Although no one reported incidents to us in which farmworker survivors of sexual violence or harassment were turned over to immigration authorities after reporting crimes to police, several people reported incidents in which minor interactions with police, such as a phone call to report domestic violence, had led to inquiries into the victim’s immigration status and, in some cases, deportation proceedings.[327] Several farmworkers and farmworker advocates stated that such stories raise the level of fear in immigrant communities.[328]

Failure to Investigate Sexual Assault

Survivors of sexual assault in the US—regardless of ethnicity, occupation, or legal status—face significant barriers to justice, including police departments that fail to adequately investigate their complaints.[329]

According to the Centers for Disease Control, nearly one in five women in the US, and one in 71 men, has been raped in his or her lifetime.[330] Reporting rates for sexual assault in the general population are low. According to the Bureau of Justice Statistics, in 2008 only 41 percent of victims of rape or sexual assault reported the incidents to the police.[331] In 2010, according to the Federal Bureau of Investigation, only 24 percent of forcible rapes reported to police resulted in an arrest.[332]

The rate of reporting is even lower in the Latino community. According to a recent survey of sexual assault among Latinas, only 6.6 percent of Latinas who had experienced sexual victimization (defined to include sexual assault, attempted sexual assault, and fondling/forced touch) reported that they had contacted the police, and only 21 percent reported that they had sought formal help of any kind (defined as medical care, police involvement, social service agency involvement, restraining order, or criminal charges).[333] The study surveyed women in high-density Latino areas; the numbers are likely even starker for Latina farmworkers, let alone unauthorized Latina farmworkers.[334]

Even when rapes are reported, US law enforcement agencies often fail to adequately investigate them. Human Rights Watch has previously documented the failure of Illinois and Los Angeles County authorities to test rape kits (the results of medical examinations intended to collect DNA evidence),[335] while a recent investigation by the Baltimore Sun uncovered serious and pervasive problems with Baltimore police response to allegations of sexual assault, including an unusually high rate of classification of such allegations as “unfounded” (meaning the police did not believe a crime had occurred) and aggressive and rude questioning of victims by police.[336]

Some farmworkers told us that police seemed indifferent when they reported other crimes or did not fully understand them because of language gaps.[337] Lideres Campesinas, a farmworker women’s advocacy organization, reported that when a police department only has one Spanish-speaking officer, that person is often “pigeon-holed” and “gets burnt out.”[338] When Lideres Campesinas has offered to do outreach with local police departments, they have not been interested, showing little “institutional commitment to providing services.”[339] Maria A., who reported that she was raped, also reported that she called the police about harassing phone calls she was getting before the rape, but they showed no interested in helping her.[340]

After two farmworkers in different states reported rapes to local law enforcement, they reported the perpetrators were deported but not criminally prosecuted. Rosana C. stated the police never followed up with her complaint and never arrested the perpetrator as they had promised after she gave them his name and other information. Rather, she found out through others that he had been deported: “When he returns to Mexico, he’s going to make me pay back. What is the point of asking for justice when there is no justice? They should have put him in jail.”[341] Patricia M. was less visibly outraged, but she expressed concern that a relative of her rapist told her that he was planning to return to visit her and her child.[342]

Police and prosecutors may opt not to pursue investigations and prosecutions for a variety of reasons. Jeff Ponting, an attorney with California Rural Legal Assistance, believes inaction is more likely given pervasive prejudice against and misconceptions of unauthorized immigrants.[343] Kern County District Attorney Lisa Green emphasized other problems, including the loss of evidence that results when sexual assault is not reported immediately and difficulties getting juries to connect with Spanish speakers and understand why survivors of workplace sexual assault would go back to work in the same place.[344]

[307] Human Rights Watch interview with Lourdes Carrillo, Director, HOLA, Wilkesboro, North Carolina, August 24, 2011.

[308] Human Rights Watch telephone interview with Sergeant Kevin Smith, Fresno County Sheriff’s Department, July 25, 2011.

[309] American Immigration Lawyers Association, “Immigration Enforcement Off Target: Minor Offenses with Major Consequences,” August 2011, http://www.aila.org/content/fileviewer.aspx?docid=36646&linkid=236762 (accessed April 13, 2012).

[310] US Department of Homeland Security, Immigration and Customs Enforcement, “Secure Communities: IDENT/IAFIS Interoperability Monthly Statistics through April 30, 2011,” May 23, 2011, http://www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_stats-fy2011-feb28.pdf (accessed March 5, 2012). An additional 38 percent had non-“aggravated felony” convictions.

[311] American Civil Liberties Union, Immigrants’ Rights Project, “SB 1070-Type Legislation,” updated November 1, 2011, http://www.law.nyu.edu/ecm_dlv1/groups/public/@nyu_law_website__centers__bickel_brewer_latino_institute_for_human_rights/documents/documents/ecm_pro_070426.pdf (accessed February 29, 2012).

[312] Human Rights Watch, United States—No Way to Live: Alabama’s Immigrant Law, December 14, 2011, http://www.hrw.org/reports/2011/12/14/no-way-live.

[313] Human Rights Watch telephone interview with Sergeant Dave Shaw, Community Services Unit, Salinas Police Department, June 22, 2011.

[314] Ibid.

[315]Ibid.

[316] Mayor Thomas Menino of Boston sent a letter to the Department of Homeland Security in July 2011 seeking to withdraw from Secure Communities in part because many immigrants had been detained and arrested by ICE after being stopped for traffic violations. Julia Preston, “Resistance Widens to Obama Initiative on Criminal Immigrants,” The New York Times, August 13, 2011, http://www.nytimes.com/2011/08/13/us/politics/13secure.html?pagewanted=all (accessed March 6, 2012).

[317] Maria Bolanos, an unauthorized immigrant in Maryland, was identified by Secure Communities as unauthorized after she called the police to report a domestic dispute and was arrested for illegally selling a phone card, a charge that was eventually dropped. Shankar Vendantam, “Call for help leads to possible deportation for Hyattsville mother,” The Washington Post, November 1, 2010, http://www.washingtonpost.com/wp-dyn/content/story/2010/11/01/ST2010110106818.html?sid=ST2010110106818 (accessed March 6, 2012).

[318] US Immigration and Customs Enforcement, “Activated Jurisdictions,” updated March 6, 2012, http://www.ice.gov/doclib/secure-communities/pdf/sc-activated.pdf (accessed March 6, 2012).

[319] Letter from Governor Andrew M. Cuomo to John Sandweg, Counselor to the Secretary, US Department of Homeland Security, June 1, 2011, http://www.governor.ny.gov/assets/Secure%20Communities.pdf (accessed March 6, 2012). Other states have also expressed reluctance to participate in Secure Communities, but it is unclear whether New York will be permitted to continue to opt-out. Although Secure Communities was originally described by ICE as a voluntary program, ICE released a memorandum in response to a Freedom of Information Act request indicating that it plans to make Secure Communities mandatory by 2013. US Immigration and Customs Enforcement, Memorandum to Beth N. Gibson, Assistant Deputy Director, “Secure Communities—Mandatory in 2013,” October 2, 2010, http://images.politico.com/global/2012/01/icefoiaoptoutdocs.pdf (accessed March 6, 2012).

[320]Human Rights Watch telephone interview with Lew Papenfuse, Director, and Cheryl Gee, Community Worker, Farmworker Legal Services of New York (now Worker Justice Center of New York), May 5, 2011. The same practice was reported in Ohio. Human Rights Watch telephone interview with Mark Heller, Managing Attorney, Migrant Farmworker and Immigration Program, Advocates for Basic Legal Equality, August 29, 2011.

[321] Human Rights Watch telephone interview with Lew Papenfuse and Cheryl Gee, May 5, 2011; Human Rights Watch interview with Alina Diaz, farmworker advocate, Rochester, New York, August 20, 2011. Human Rights Watch has contacted Customs and Border Patrol for comment, but as of the date of publication, we had not received a response.

[322] Human Rights Watch interviews with Lupe S. (pseudonym), California, June 2011; Juliana T. (pseudonym), California, June 2011; and Lorena U. (pseudonym), California, June 2011.

[323]Human Rights Watch interviews with Emilio R. (pseudonym), California, June 2011; and director of social service agency (name withheld), California, June 2011. Human Rights Watch calls to the police department in this town were not returned.

[324]Jason Kotowski, “Some local law enforcement have fallen on wrong side of the law,” The Bakersfield Californian, April 4, 2011, http://www.bakersfield.com/news/local/x529880740/Some-local-law-enforcement-have-fallen-on-wrong-side-of-the-law (accessed February 5, 2012). Police across the country have been arrested for extorting money from unauthorized immigrants. See Cynthia Roldan, “Lantana cop charged with robbery for allegedly pulling over, shaking down Hispanic men,” Palm Beach Post News, June 29, 2011, http://www.palmbeachpost.com/news/crime/lantana-cop-charged-with-robbery-for-allegedly-pulling-1484923.html?cxntcid=breaking_news (accessed February 5, 2012).

[325]Human Rights Watch interview with farmworker advocate (name withheld), North Carolina, August 25, 2011. When asked for a response, Major Shannon Queen of the Jackson County Sheriff’s Office stated that they had not received any complaints of such misconduct. Human Rights Watch telephone interview with Major Shannon Queen, Jackson County Sheriff’s Office, March 21, 2012.

[326]Letter from US Department of Justice, Civil Rights Division, to Bill Montgomery, County Attorney, Maricopa County, Arizona, December 15, 2011, http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf (accessed March 6, 2012); Letter from US Department of Justice, Civil Rights Division, to Mayor Joseph Maturo, Jr., East Haven, Connecticut, December 19, 2011, http://www.justice.gov/crt/about/spl/documents/easthaven_findletter_12-19-11.pdf (accessed Marcy 7, 2012).

[327] Human Rights Watch interviews with Alejandro Celorio, Consul de Proteccion, Mexican Consulate, Sacramento, California, April 4, 2011; community leader (name withheld), North Carolina, August 2011; Paz B. (pseudonym), New York, August 2011; and Carlos U. (pseudonym), New York, August 2011.

[328]Human Rights Watch interviews with Ana I. (pseudonym), North Carolina, July 2011; Marisol Z. (pseudonym), New York, August 2011; and Barbara L. (pseudonym), California, August 2011. Human Rights Watch telephone interviews with Leoncio Vasquez, Director, Centro Binacional para el Desarollo Indigena Oaxaquena, April 21, 2011; Lew Papenfuse and Cheryl Gee, May 5, 2011; Laura Contreras, Attorney, Columbia Legal Services, and Blanca Rodriguez, Attorney, Northwest Justice Project, March 17, 2011; and Lourdes Carrillo, August 2011.

[329] Human Rights Watch, United States—“I Used to Think the Law Would Protect Me:” Illinois’s Failure to Test Rape Kits,July 7, 2010, http://www.hrw.org/reports/2010/07/07/i-used-think-law-would-protect-me-0; Human Rights Watch, United States—Testing Justice: The Rape Kit Backlog in Los Angeles City and County, March 31, 2009, http://www.hrw.org/en/reports/2009/03/31/testing-justice-0.

[330]US Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, “National Intimate Partner and Sexual Violence Survey: 2010 Summary Report,” November 2011,  http://www.cdc.gov/violenceprevention/nisvs/index.html (accessed January 4, 2012).

[331] US Department of Justice, Bureau of Justice Statistics (BJS), “National Crime Victimization Survey, 2008,”http://bjs.ojp.usdoj.gov/content/pub/pdf/cvus0805.pdf (accessed April 24, 2012), Table 91. Estimates of the reporting rate for rape and other sexual assault vary considerably. For example, the BJS survey shows that in 2008, 64 percent of rapes and 36 percent of sexual assaults were reported to the police, while a 2007 study found that only 16 percent of rapes were reported to law enforcement. Dean G. Kilpatrick et. al., “Drug-facilitated, Incapacitated, and Forcible Rape: A National Study,” NCJ 219181, July 2007, https://www.ncjrs.gov/pdffiles1/nij/grants/219181.pdf (accessed April 24, 2012).

[332] US Department of Justice, Federal Bureau of Investigation, “Crime in the United States 2010,” http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010 (accessed March 13, 2012).The FBI recently expanded its definition of rape beyond “forcible rape,” to be more in keeping with state law definitions, but this new definition has not yet been incorporated into FBI statistics. “Attorney General Eric Holder Announces Revisions to the Uniform Crime Report’s Definition of Rape,” Federal Bureau of Investigation press release, January 6, 2012, http://www.fbi.gov/news/pressrel/press-releases/attorney-general-eric-holder-announces-revisions-to-the-uniform-crime-reports-definition-of-rape (accessed March 13, 2012).

[333] Carlos A. Cuevas and Chiara Sabina, Sexual Assault Among Latinas (SALAS) Study, April 2010, https://www.ncjrs.gov/pdffiles1/nij/grants/230445.pdf (accessed March 27, 2012).

[334]US Department of Justice, Bureau of Justice Statistics, “National Crime Victimization Survey, 2005.” Seventy-three percent of female victims of rape or sexual assault reported being assaulted by a nonstranger. The SALAS study found similar high rates of victimization by a nonstranger: 44.1 percent of victims of sexual violence reported the perpetrator was a partner or spouse; 48.7 percent reported it was someone else known to the victim. The study also found that immigrants reported sexual victimization to the survey at lower rates than US-born Latinas and those with greater acculturation to the US. The study did not provide a conclusion as to why this would be true, but posited, among other explanations, that American-born Latino women may be more likely to disclose victimization in response to a phone survey than foreign-born Latino women. Carlos A. Cuevas and Chiara Sabina, Sexual Assault Among Latinas (SALAS) Study, April 2010.

[335] Human Rights Watch, “I Used to Think the Law Would Protect Me,July 2010; Human Rights Watch, Testing Justice, March 2009.

[336] Justin Fenton, “City rape statistics, investigations draw concern,” The Baltimore Sun, June 27, 2010, http://www.baltimoresun.com/news/bs-md-ci-rapes-20100519,0,5338041.story (accessed March 13, 2012). A Philadelphia Inquirer investigation in 1999 found similar problems with the investigation of rape by Philadelphia police. Mark Fazlollah, Michael Matza, Craig R. McCoy, and Clea Benson, “Women victimized twice in police game of numbers,” Philadelphia Inquirer, October 17, 1999, http://inquirer.philly.com/packages/crime/html/sch101799.asp (accessed March 13, 2012).

[337] Human Rights Watch interviews with Belen F. (pseudonym), California, June 2011; Santiago I. (pseudonym), California, June 2011; Pilar D. (pseudonym), North Carolina, July 2011; Isabel H. (pseudonym), North Carolina, July 2011; and Cristina N. (pseudonym), California, August 2011.

[338] Human Rights Watch interview with Daniela Ramirez, then-Executive Director, Suguet Lopez, then-Director of Programs and current Executive Director, and Ramona Felix, Statewide Coordinator of Sexual Assault, Harassment, and Trafficking Programs, Lideres Campesinas, Oxnard, California, June 29, 2011.

[339]Ibid.

[340]Human Rights Watch interview with Maria A. (pseudonym), California, June 2011.

[341] Human Rights Watch interview with Rosana C. (pseudonym), New York, August 2011.

[342]Human Rights Watch interview with Patricia M. (pseudonym), California, June 2011. Human Rights Watch did not contact the police departments in these cases, to protect the identities of Rosana C. and Patricia M.

[343]Human Rights Watch interview with Jeff Ponting, Director, Indigenous Farmworker Program, California Rural Legal Assistance, Oxnard, California, June 29, 2011.

[344]Human Rights Watch interview with Lisa Green, Kern County District Attorney, Bakersfield, California, June 28, 2011.