In All Too Familiar, Human Rights Watch made extensive recommendations on how to prevent custodial sexual abuse. We are reiterating the recommendations for the federal government because nearly two years after the release of All Too Familiar, despite extensive advocacy by Human Rights Watch and other organizations, no significant reforms have been implemented. For the purposes of this report, our state recommendations seek to prevent retaliation against women who report abuse and are tailored specifically to Michigan.
To the Federal Government:
The U.S. should reinvigorate its efforts to secure ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention) by the U.S. Senate and, after ratification, to include in its periodic compliance reports to the Committee on the Elimination of Discrimination Against Women information regarding federal measures to eradicate the problem of custodial sexual abuse in U.S. state, as well as federal, prisons. The U.S. should also include information on custodial sexual abuse 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.
To the U.S. Congress:
1. 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 corrections staff and prisoners and, as discussed below, to report annually to the Department of Justice regarding conditions of incarceration in their respective facilities.
2. 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 corrections staff. This information should be collected by the Department of Justice data collection office, discussed below, for use by all states.
3. Appropriate the funds necessary to enable the Department of Justice to conduct increased and thorough investigations of custodial sexual misconduct and to enjoin prohibited conduct pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA).34 These funds should also be used by the Department of Justice 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 Department of Justice should be mandated to do outreach about this office to federal and state corrections facilities, prisoners, and other relevant actors, including through the publication of materials about the data collection office that could be posted within corrections 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. 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 corrections facilities. Those revisions, at a minimum, should include the following:
· repealing 18 United States Code Section 3626(a)(1), which requires that judicially enforceable consent decrees contain findings of federal law violations;
· repealing 18 United States Code Section 3626(b), which requires all judicial orders to terminate two years after they are issued; and
· restoring funding for special masters' and attorneys' fees to the levels that prevailed before the passage of the Prison Litigation Reform Act.
5. Engage in a review of the Civil Rights of Institutionalized Persons Act procedures for certifying the grievance procedures of U.S. corrections systems to ensure that certified procedures will function effectively for complaints of custodial abuse.
6. Withdraw the restrictive reservations, declarations, and understandings that the U.S. has attached to the International Covenant on Civil and Political Rights and the Convention Against Torture.
7. Introduce implementing legislation for the International Covenant on Civil and Political Rights and the Convention Against Torture such that persons in the United States can 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.
To the U.S. Department of Justice (Civil Rights Division):
1. As a necessary step toward improving its responsiveness to sexual misconduct and the quality of its information about same, establish a secure, toll-free telephone hotline to receive complaints of sexual misconduct by corrections staff and should publicize the existence of this service. The hotline should
· provide prisoners information about their rights and about nongovernmental organizations that they may contact for assistance;
· forward complaints to both the state officials and the Special Litigation Section and Criminal Section of the Department of Justice's Civil Rights Division;
· ensure confidentiality;
· be accessible under all circumstances, including times when prisoners are in segregation;
· be viewed as a component of exercising the constitutional right to legal representation and therefore be free from monitoring by prison officials; and
· extend its confidentiality to any written correspondence emerging from a prisoner's contact with the hotline.
2. Use the information collected through the hotline to help compile the semi-annual reports of the office of data collection, suggested above.
3. Formulate and issue specific, public procedures that detail its investigative process under the Civil Rights of Institutionalized Persons Act.
4. 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. Exercise its full authority under the Civil Rights of Institutionalized Persons Act to initiate, with the participation of its Office of Violence Against Women, investigations of allegations of custodial sexual abuse that appear to rise to the level of a "pattern or practice." Other allegations of which the Justice Department becomes aware should be forwarded to state authorities for investigation.
6. Require states, as a condition of continued federal assistance, to report annually to the Civil Rights Division regarding conditions of incarceration in their respective corrections facilities. Such reports should include, among other things, patterns of rape, sexual abuse, and other forms of violence against women. The Department of Justice should publish an annual report based upon this information.
7. Appoint an attorney within its Special Litigation Section responsible for overseeing all complaints of sexual misconduct lodged with the section.
To the U.S. Department of Justice (National Institute of Corrections):
1. 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 procedures and practices comport with international and constitutional protections.
2. Develop 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 abuse in women's facilities.
To the State of Michigan:
To the Michigan Department of Corrections:
1. Ensure the right to an effective grievances procedure by
· amending its grievance procedure in cases of alleged sexual misconduct by corrections employees expressly to authorize prisoners to bypass the informal level of review and file their complaints directly with the prison superintendent or investigator;
· taking steps to insure that its grievance procedure includes provisions that
(1) protect the confidentiality of the complainant and witnesses during the time in which the officer is still potentially in contact with them;
(2) withhold information about complaints from those not directly or by authority involved in the alleged incident;
(3) ensure that prisoner testimony is given due weight; and
(4) prohibit the implicated officer from conducting the investigation;
· making grievance forms readily available in the prison library or other neutral place where it would not be necessary for the inmate to ask for the form;
· refraining under all circumstances from assigning implicated officers to investigate allegations of their own abuse. Officers alleged to have committed rape, sexual assault or abuse, or criminal sexual contact35 should be assigned to noncontact positions or suspended until the circumstances are clarified and the investigation completed; and
· ensuring that all officers named as defendants in civil suits alleging rape, sexual assault or abuse, or criminal sexual contact should be assigned to noncontact positions or suspended until the case isresolved or, in the alternative, ensuring that no defendant in a civil suit alleging custodial sexual abuse is in a contact position vis-à-vis the plaintiffs.
2. Ensure the right to an impartial investigation, by
· promulgating a written procedure for conducting investigations into custodial abuse and misconduct, with specific reference to sexual misconduct, both at the facility level and within the internal affairs section or other departmental divisions. The investigative procedure should, at a minimum
(1) clarify which investigations should be conducted from within the facility, which by internal affairs, and the relationship between the two entities with respect to any such investigation;
(2) specify the circumstances necessary to initiate an investigation at either end;
(3) describe exactly the steps investigators within prison facilities should follow in conducting an investigation;
(4) set forth the same criteria for investigations by the internal affairs section;
(5) set forth a clear structure and time frame for conducting investigations; and
(6) provide for a special investigator in the office of internal affairs section trained to handle sexual abuse and misconduct complaints, in particular, with the necessary human and material resources to do so;
· establishing clear and exhaustive investigatory policies that
(1) protect as much as possible the anonymity of the complainant;
(2) guard complainants and witnesses from retaliation and harassment;
(3) ensure accountability to outside monitors; and
(4) provide the complainant's legal counsel, upon request, a written record of the investigation, including all statements made by witnesses;
· requiring all corrections employees to report promptly any allegations of sexual abuse, other overfamiliar conduct, or retaliation to the prison warden and rewarding those that do while penalizing those who do not; and
· referring all allegations of rape, sexual assault, and other alleged criminal conduct promptly to the state police for criminal investigation. When a referral is made to the state police, the Michigan Department of Corrections should continue, not cease, its own internal investigation into possible employee misconduct and proceed with disciplinary action when appropriate.
3. Prevent retaliation against complainants, by
· ensuring, as much as possible, the confidentiality of allegations of sexual misconduct by prison staff and the anonymity of both complainant and witnesses during the period that the accused remains in a contact position with the complainant or is assigned to the facility where the complainant resides. The Michigan Department of Corrections should also seek to prevent the complainant's name from being revealed generally within the facility;
· restricting access to prisoner files and ensuring confidentiality of records that reveal the name of the complainant in sexual abuse cases;
· suspending any employee accused of sexual misconduct, including overfamiliarity with a prisoner, if such misconduct once proven would result in dismissal;
· investigating reports of retaliation promptly and vigorously and disciplining transgressing employees appropriately; and
· ensuring prisoners the right to counsel in cases of sexual assault.
4. Curtail the use of administrative segregation and other punishment, by
· authorizing 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 upon her request. The Michigan Department of Corrections should train employees assigned to segregated housing units regarding such provisions;
· ensuring that prisoners who complain of sexual misconduct are not directly or indirectly punished for such complaints through the loss of "good time" toward early release, being suspended from program or work, or any form of disciplinary segregation; and
· ensuring that prisoners who file grievances are not wrongfully charged with "interference with the administration of rules" or other disciplinary offenses, such as "false accusation," solely because the accused officer denies any misconduct or because the alleged incident is "unsubstantiated."36
5. Ensure discipline, by
· creating a clear policy on disciplinary action against abusive corrections employees for all forms of sexual abuse or retaliatory behavior; and
· dismissing any employee found to have engaged in sexual relations, sexual contact with prisoners, or retaliation against prisoners. Transfer of such employees to other positions or facilities does not constitute appropriate punishment.
To the Michigan Legislature:
1. Ensure accountability to outside monitors, by
· strengthening the office of the Legislative Corrections Ombudsman to function as a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct and retaliation. 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; and
· providing a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of misconduct, including retaliation against complainants.
34 42 U.S.C. Section 1997 et seq.
35 Under the Michigan Penal Code, consensual sexual contact between a guard and an inmate is Criminal Sexual Conduct in the 4th Degree, a two-year offense. Michigan Comparative Law Annotated section 750-520(e)(d).
36 Under administrative procedures, "unsubstantiated" simply means that the investigator or hearing administrator was unable to determine the legitimacy of the allegations, usually because of lack of collaborative evidence.
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