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Both sexual abuse and misconduct by prison staff and retaliation against women who report sexual abuse and misconduct are clearly prohibited under both U.S. constitutional law and international treaty law that is binding on the U.S. federal government and its constituent states. 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 that occurs as a result of deliberate indifference by corrections officials who knew, or should have known, of the substantial risk of assault.42 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,43 conducting intrusive pat-frisks,44 or engaging in inappropriate visual surveillance.45

The First Amendment to the constitution, which provides for freedom of expression, creates a fundamental right that no person may be punished for exercising.46 When a corrections employee retaliates against a female prisoner for reporting sexual abuse or misconduct, the employee is impinging upon the woman's fundamental right to free expression.47 Finally, it is undisputed that prisoners have a constitutional right of access to the courts48 and that prison officials may neither affirmatively impede a prisoner's efforts to access the courts49 nor retaliate against a prisoner who exercises her right of access to the courts.50

Constitutional protections of prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners or by the U.S. Department of Justice. Historically, U.S. prisoners have achieved most of their landmark civil rights victories through private litigation, particularly by suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union and the National Prison Project of the National Women's Law Center. However, if certain stringent intent requirements are met, the Department of Justice may criminallyprosecute abusive prison officials under federal civil rights provisions.51 In addition, the Department of Justice has a statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act 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.52

Courts examining whether an act by a prison guard is retaliatory have used a variety of tests. According to the Sixth Circuit Federal Court of Appeals, litigants seeking injunctions against retaliatory acts and monetary damages must demonstrate that alleged retaliatory actions constitute an egregious abuse of governmental power or that such actions otherwise shock the conscience.53 Other federal circuit courts have applied a "but for" test to determine if the complained-of conduct rises to the level of retaliation.54 Simply put, the question is whether or not the alleged retaliatory act, such as issuing a major misconduct ticket, would have occurred "but for" the guard's desire to retaliate against the prisoner. Because the Michigan Department of Corrections gives guards broad discretion in addressing possible violations of prison regulations, it is very difficult to establish that a ticket was issued solely for the purposes of retaliation. The obvious exception is if a guard issues a ticket without cause or "sets up" the prisoner, for example, by placing contraband in her possessions or cell. However, as the corrections department appears routinely to credit the testimony of the guards over that of the inmates, it is difficult for the women effectively to fight against tickets issued as part of a set-up or without cause.55

Most retaliation cases that reach the courts with prisoner-plaintiffs fall into the category of retaliation against a prisoner who asserts a fundamental right, for example, filing a grievance against a guard, which is protected under the First Amendment. Some courts, in determining if an act was retaliatory, have looked to the period of time that elapsed between the assertion of a protected right, such as a prisoner filing a complaint against a guard, and the retaliatory act.56 Some courts require the plaintiff to prove that the guard accused of retaliating had actual knowledge of the complaint filed against him by the plaintiff.57 While courts have been reluctant to find retaliation in cases in which the plaintiff is simply written up for some rules violation after filing a grievance, the courts have been open to cases in which the plaintiffs have been able to show that they were set up by the guards.58

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, 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 Standard MinimumRules for the Treatment of Prisoners are also relevant as guidelines adopted by the United Nation that define the fundamental rights of prisoners to humane treatment.

Most of the custodial sexual abuse and misconduct reported in All Too Familiar: Sexual Abuse of Women in U.S. State Prisons and in this report constitute either torture or cruel, inhuman, or degrading treatment as defined by international law. Torture is "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing . . . or intimidating him or a third person," by or with the acquiescence of an official.59 Not all acts of rape constitute torture; however, in a custodial setting, if a guard uses force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, the act of rape constitutes torture.60 If the guard uses force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women's genitals or breasts, and the acts caused severe physical and mental suffering, they, too, would amount to torture.

Retaliatory acts which may not rise to either the level of torture or of cruel or inhuman treatment, 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.61 This includes inappropriate pat- or strip-searches and verbal harassment. The manner in which strip-searches and pat-searches are conducted can also constitute a form of degrading treatment. The mere performance of a strip-search or a pat-search by a corrections 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.62 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, 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.63 In The Greek Case, the EuropeanCommission 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, which prohibits "torture or inhuman or degrading treatment or punishment."64 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 threats such as those experienced by the women whose cases are documented in this report may be sufficient to constitute degrading treatment.

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 Article 17 of the International Covenant on Civil and Political Rights.65 The Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, 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.66

However, our investigation revealed that in practice, the U.S. falls far short of ensuring the protections provided under international law. In the course of our investigations for All Too Familiar and this report, women frequently complained that pat-frisks were conducted in an abusive manner by male guards and in some cases, appeared to be part of a pattern of retaliation against women who had reported sexual abuse.

Finally, Article 19 of the International Covenant on Civil and Political Rights guarantees a prisoner's freedom of expression. It is a violation of an inmate's freedom of expression if, as a result of her filing a grievance against a corrections employee for abusive behavior, she is punished. Under paragraph 36 of the Standard Minimum Rules, prisoners are ensured the right to make complaints without censorship to the central prison administration, the judicial authority, or other proper authorities. This guarantee is critical to the protection of prisoners from abuses and substandard conditions. All the regulations and standards by which prisons should be run are meaningless absent a mechanism for prisoners to report violations. Therefore, when prison staff retaliate against a woman who has exercised her right to free expression through filing a complaint for sexual abuse, the retaliation is a violation of the International Covenant on Civil and Political Rights and the Minimum Standards Rules.

42 Farmer v. Brennan, 114 S. Ct. 1970 (1984). 43 Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982), rehearing denied, 696 F.2d 1007 (11th Cir. 1983); Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994). 44 Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993); Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982); Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983). 45 Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993); Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991); Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982); Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981). 46 Bates v. Little Rock, 361 U.S. 516 (1960). Justices Black and Douglas argue in their concurring opinion that First Amendment rights are beyond abridgment and specifically cite impairment of the right through "harassment, humiliation or exposure by government." 47 Johnson v. Avery, 393 U.S. 483 (1969); Wolfel v. Bates, 707 F.2d 932 (6th Cir. 1983); Franco v. Kelly, 854 F.2d 584 (2nd Cir. 1988). 48 Bounds v. Smith, 430 U.S. 817 (1977); Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990); Goff v. Burton, 7 F.3d 734 (8th Cir. 1993), cert. denied, 114 S.Ct. 2684 (1994). 49 Green v. Johnson, 977 F.2d 1383 (10th Cir. 1992). 50 Smith, 899 F.2d at 947, Jones v. Coughlin, 45 F.3d 677 (2nd Cir. 1995). "A prisoner has a substantive due process right not to be subject to false misconduct charges as retaliation for his exercise of a constitutional right such as petitioning the government for redress of his grievances." 51 Title 18, U.S.C. Sections 241 and 242. 52 42 U.S.C. Section 1997 et seq. 53 McLaurin v. Cole, 1997 Fed. App. 0180 (6th Cir.). 54 McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979);Goff v. Burton, 7 F.3d 734 (8th Cir. 1993), cert. denied, 114 S.Ct. 2684 (1994). 55 Human Rights Watch telephone interview, Jane Doe, former corrections officer at Scott Correctional Facility, Ann Arbor, Michigan, March 27, 1998. See also Yukins Deposition, June 6, 1995. 56 Conner v. Schnuck Markets, Inc., 121 F.3d 1390 (10th Cir. 1997), Soranno's Gasco, Inc. V. Morgan, 874 F.2d 1310 (9th Cir. 1989). 57 Hines v. Gomez, (9th Ct. App., 1997). 58 Cale v. Johnson, 861 F.2d 945 (6th Cir. 1988). 59 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment, Article 1. 60 Rape committed by prison authorities against inmates has been recognized as a form of torture. In 1992, the U.N. Special Rapporteur on Torture noted, "Since it was clear that rape or other forms of sexual assault against women in detention were particularly ignominious violations of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture." U.N. Doc. E/CN.4/1992/SR.21, para. 35. Report by the Special Rapporteur, P. Koojimans, appointed pursuant to Commission on Human Rights resolution 1985/33, U.N. Doc. E/CN.4/1986/15 (February 19, 1986), p. 29. More recently, the U.N. Special Rapporteur on Torture recommended "that female security personnel be present during interrogation of women detainees, as interrogation and detention of detainees by exclusively male personnel constitute conditions that may be conducive to rape and sexual abuse of women prisoners or the threat or fear thereof." U.N. Doc. E/CN.4/1995/34 para. 24. 61 The European Commission on Human Rights has done the most to clarify a definition of degrading treatment. In the Greek Case, the commission defined degrading treatment as that which "grossly humiliates one before others or drives him to act against his will or conscience." Greek Case, 1969 Y.B. Eur. Conv. on H.R. (Eur. Comm'n on H.R.) 186. The Commission elaborated in the East Asian Africans Case: degrading treatment must "lower the victim in rank, position, reputation or character whether in his own eyes or in the eyes of other people," as well as cause serious humiliation. East Asian Africans v. United Kingdom, App. No. 4403/70, 3 Eur. H.R. Rep. 76, 80 (1981) (Commission report). 62 The European Commission upheld the use of close body searches where there was a history of concealed objects. McFeeley v. United Kingdom, App. No. 8317/78, 3 European Human Rights Reporter, p. 201 (1980) (Commission Report). 63 The Greek Case, 1969 Yearbook of European Convention on Human Rights, pp. 462-3 (1969). 64 European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3. 65 "No one shall be subjected to arbitrary or unlawful interference with his privacy . . ." International Covenant on Civil and Political Rights, Article 17. 66 General Comment 16 to Article 17, "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," U.N. Doc. HRI/GEN/Rev.1, July 29, 1994.

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