RETALIATION AGAINST WOMEN IN MICHIGAN STATE PRISONSI. SUMMARY
In December 1996 Human Rights Watch released All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, a report documenting pervasive sexual harassment, sexual abuse and privacy violations by guards and other corrections department employees in state prisons in California, the District of Columbia, Georgia, Illinois, Michigan, and New York.1 The report also exposed the failure of states to respond to women's reports of sexual abuse and harassment. The failure was twofold: states failed to conduct impartial investigations of allegations of sexual abuse, and they further failed to protect women who reported these abuses to prison authorities, leaving them vulnerable to retaliation by guards.
Since the publication of All Too Familiar, Human Rights Watch has continued to receive reports of sexual abuse of and retaliation against women incarcerated in jails, state prisons, and federal prisons. We have been particularly disturbed by reports of an apparent campaign by some corrections officers of retaliation against several of the women in Michigan prisons who are active in the ongoing civil litigation against the Department of Corrections alleging widespread sexual abuse by guards and staff. Several of these women had provided information for All Too Familiar, and Human Rights Watch knows their case histories. We therefore conducted further research, focusing specifically on retaliatory behavior that appeared to be connected to the women's roles as plaintiffs in the class action suit, Nunn v. Michigan Department of Corrections (Nunn suit).2 We also collected information on the chilling impact of the perceived retaliation on other inmates.
In order to document retaliation, Human Rights Watch focused on the experiences of a few women who, by their participation in the Nunn suit, are particularly visible to the corrections staff and vulnerable to retaliation. The class action suit was filed in June 1995 and alleges constitutional violations, including retaliation, rape, and violations of their right to privacy. We interviewed the women, lawyers representing these women, former guards and reviewed misconduct reports against the women, grievances made by the women, and materials available through the discovery process in Nunn suit. We conducted our interviews and research from December 1997 through June 1998.
As reported in All Too Familiar, being a woman prisoner in a U.S. state prison can be a terrifying experience. If you are sexually abused by a prison staff person, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and corrections employees continue to engage in abuse because they believe they will rarely be held accountable, administratively, civilly, 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.
Over 1.7 million people are incarcerated in the United States.3 Approximately two-thirds are held in federal and state prisons, the rest in local jails.4 Women account for 6.4 percent of all prisoners nationwide.5 The femaleinmate population continues to grow at a much faster rate than the male inmate population.6 The vast majority of these women are incarcerated for non-violent crimes, such as drug offenses, property crimes, and prostitution.7 According to current estimates, nearly half of all female prisoners have experienced some form of sexual and/or physical abuse prior to incarceration.8 More than two-thirds of women in prison have children under the age of eighteen, and among them, 75 percent (versus 10 percent for men) are the sole custodial parent.9
In Michigan approximately 2,000 women are incarcerated in state prisons and constitute about 5 percent of the prison population in the state.10 As in virtually every other state, the women prisoners in Michigan are held in increasingly overcrowded facilities.11 Male guards account for at least half of the corrections staff in the state's two largest facilities for women.12
In Michigan, as in the other jurisdictions we investigated, the custodial sexual abuses and misconduct reported in All Too Familiar took many forms. Male corrections employees vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. In the course of committing such gross abuses, male officers not only used actual or threatened physical force but also abused their near-total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or to reward them for having submitted to sexual acts. In other cases, male officers 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 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 corrections officers and staff also engaged in regular verbal degradation and harassment of female prisoners, thereby contributing to a custodial environment that was-and as this report documents, continues to be-highly sexualized and excessively hostile.
No one group of prisoners appears to suffer sexual abuse and 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 abuse and harassment by officers; so, too, are prisonerswho 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.
The issues in Michigan are in many ways representative of those facing corrections departments throughout the U.S. One of the clear contributing factors to sexual abuse in U.S. prisons for women is that the United States, despite authoritative international rules to the contrary, allows male corrections employees to hold contact positions over women 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 Prisoners13 (Standard Minimum Rules), which constitute an authoritative guide to international law regarding the treatment of prisoners, cross-gender guarding of prisoners is prohibited. However, since the passage Title VII of the Civil Rights Act of 1964 and the introduction of equal employment rights for women, U.S. employers have been prohibited from denying a person a job solely on the basis of gender unless the person's gender is reasonably necessary to the performance of the specific job.14 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 corrections employment.15 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.
Human Rights Watch is concerned that the states' adherence to U.S. anti-discrimination laws, in the absence of strong safeguards against custodial sexual harassment and abuse, has often come at the expense of the fundamental rights of prisoners, including privacy rights. To ensure respect for the women inmates' basic privacy rights, Human Rights Watch urges corrections departments to implement regulations on a prison-by-prison basis that take into account the specific physical layout of the prison and that restrict male guards from such areas as community showers, toilets, and dormitory type rooms during changing times except in emergency situations.16
Under both international and U.S. law, states are clearly required to prevent and punish custodial sexual abuse and harassment. The International Covenant on Civil and Political Rights17 (ICCPR) and the InternationalConvention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment18 (Convention Against Torture), both of which the United States has ratified, require states parties to prohibit torture and other cruel, inhuman, or degrading treatment or punishment and to ensure that such abuse is investigated and punished. The International Covenant on Civil and Political Rights 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 elaborated in the Standard Minimum Rules, which calls on governments to prohibit custodial sexual abuse, provide prisoners with an effective right to complain of such abuses and violations, ensure appropriate punishment, and guarantee that these obligations are met in part through the proper training of corrections officers. In addition, the United States constitution expressly protects prisoners from cruel and inhuman punishment 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 abuse. It is equally bound by international human rights law to take these steps, although in ratifying the International Covenant on Civil and Political Rights and the Convention Against Torture, the United States attempted to limit its treaty obligations in ways that were particularly adverse to the elimination of custodial sexual abuse.19
The widespread abuse of female prisoners described in All Too Familiar is fueled by institutional cultures in the five states documented and the District of Columbia, cultures in which sexual abuse of incarcerated women is routinely tolerated or even condoned. Among these states, however, the resistance of the Michigan Department of Corrections (MDOC) to monitoring and accountability was striking. Not only did Michigan officials deny the allegations made in All Too Familiar, but Kenneth L. McGinnis, director of the Department of Corrections, responded to our findings with a letter to Human Rights Watch in which he stated that the corrections department would refuse to cooperate further in any manner with Human Rights Watch.20 Such resistance to outside monitoring is not new to Michigan. In 1995, when the U.S. Department of Justice initiated its investigation into civil rights abuses of female inmates, Michigan refused to allow federal investigators access to the prisons. More recently, after initially granting the United Nations Special Rapporteur on Violence Against Women's request to visit the Florence Crane Women's Facility (Crane) and the Scott Correctional Facility (Scott), Gov. John Engler withdrew permission on the eve of her visit.21 The hostility to monitoring not only raises the question of what information or conditions Michigan is trying to keep from the public but also is disturbing in light of the fact that Michigan claims to have a zero-tolerance policy with regard to sexual abuse of inmates yet refuses to be transparent about its response to numerous allegations of such abuse.
In 1995 the U.S. Department of Justice, after gaining access to the prisons, released its own findings of pervasive sexual abuse in Michigan's prisons for women.22 Justice Department investigators interviewed women inmates and found that "nearly every woman . . . interviewed reported various sexually aggressive acts of guards."23 Justice Department investigators further found that women at Scott and Crane had been raped, sexually assaulted, subjected to groping and fondling during pat-frisks, and subjected to improper visual surveillance by guards in violation of the legitimate privacy interests of the women. Finally, the Department of Justice noted that in interviews with women at Scott, they found "an almost universal fear of retaliation."24 In March 1997, the Department of Justice joined in a class action suit against the Michigan Department of Corrections.25 That suit is currently in the discovery phase and is expected to go to trial in late 1998. In the wake of the release of All Too Familiar and the Justice Department's decision to join in the class action suit against the Michigan Department of Corrections, Human Rights Watch received information indicating a campaign of retaliation against several of the named plaintiffs in the lawsuit.
Virtually all of the women incarcerated in Michigan who were interviewed for All Too Familiar and who had lodged complaints of sexual harassment or abuse have suffered some form of retaliation by the accused officer, his colleagues, or other inmates. In some cases, they have also faced punishment by corrections officials. Corrections officers have nearly unlimited discretion in how they enforce prison rules and may enforce rules by reporting an inmate for minor or major violations of prison rules and regulations. Being found guilty of the violation for which the "ticket"26 was issued can result in a warning, loss of phone and visitation privileges, being locked up in one's own cell, or being placed in punitive segregation. After an inmate accumulates several violations, her security status may change with wide-ranging implications, and she may face loss of "good time" accrued toward early release. Absent glaring inconsistencies or weaknesses in the guard's account of events leading to the issuing of the ticket, the inmate is typically found guilty by the hearing officer. If the validity of the ticket must be judged solely on the basis of the women's word versus the guard's word, the guard's actions are virtually always upheld and the woman is punished.27
If a guard has been reported by an inmate for sexual abuse, he may turn to his colleagues for assistance in retaliating against her, and she may be issued tickets for violations which never occurred or for violations which do not typically result in misconduct tickets' being issued. As long as the accused guard does not issue the tickets himself, he can insulate himself from any suspicion of retaliating against the inmate. Furthermore, if an inmate reports a guard for sexual abuse and that grievance is found unsubstantiated, no formal record is kept with respect to the implicated officer,28 making it difficult to monitor complaints against specific officers of sexual abuse.
Many of the women interviewed for All Too Familiar reported being written up for sexual misconduct themselves after reporting sexual abuse by a guard, the loss of "good time" accrued toward early release, prolonged periods of punitive segregation, and verbal harassments and threats. Others reported being subjected to abusive behavior by guards such as abusive pat-frisks, being issued unwarranted disciplinary tickets, or loss of privileges.
In our subsequent investigation of the Michigan prisons, we found that women believed they were being sent a clear message by the guards and the corrections department: any attempt to protect themselves from sexual abuse by reporting it would result in punitive actions by guards. As these guards wield near-absolute power over the women, retaliation can be devastating to the women's security, health, and psychological well-being. We documented threats of physical harm, abusive pat-frisks, verbal harassment, and trumped-up misconduct tickets that resulted in women being denied visitation rights with their families and losing the chance of early release from prison. By failing to monitor vigorously for retaliatory behavior and to discipline guards and employees who participate in retaliatory behavior, the corrections department sends a message to both the women and the guards that corrections employees may abuse, harass, threaten, and harm women with impunity. Impunity in any context is a serious problem with a chilling effect on victims of violence and discrimination. However, impunity in prisons is particularly devastating because, quite simply, incarcerated women have no protection, no recourse, and nowhere to hide.
Recent studies of female inmates in the U.S. reveal that a significant number of women have a history of prior physical and/or sexual abuse.29 Particularly for women who have histories of suffering abuse over long periods, such as childhood sexual abuse or abusive relationships with intimate partners, an important part of the healing process is to feel safe from further abuse. Women with these histories may suffer from post-traumatic stress disorder and experience low self-esteem and an inability to trust other people.30 It is difficult enough for a woman with no history of abuse to cope with sexual assault. It is potentially devastating for a woman with a history of abuse to be abused again. For women with or without a history of abuse, to be punished for reporting the abuse is to be made acutely aware of one's powerlessness and vulnerability. Several of the women we interviewed had suffered serious psychological harm as a result of having been abused in prison.
Incarcerated women are not the only people suffering the consequences of the Michigan Department of Corrections' failure to stop sexual abuse and retaliation. Their families and, in particular, their children are victimized. A direct or indirect result of many of the forms of retaliation is that the women's visitation privileges are curtailed or, in some cases, completely cut off. This not only has a devastating impact on the women, who subsequently suffer social isolation and depression, but also on their children who suffer the adverse consequences of being deprived of the opportunity to build an ongoing relationship with their mothers and on family members who may be struggling to maintain family unity. More than two-thirds of all incarcerated women have at least one child under the age of eighteen, and the majority of these are single mothers.31 Children need continuity in relationships with their adult caretakers and depend on their being available when needed. Thus, retaliation against incarcerated women that directly or indirectly cuts off their access to their children has a long-term impact on both the women and their children.
The United States relies on incarceration to punish both violent and non-violent offenders more than any other developed country. In fact, the U.S. has the dubious distinction of incarcerating the largest known number of prisoners in the world. The proliferation of "three strikes and you're out" laws,32 the proposals to end or severely limit parole, the escalation of the "war on drugs," the continued push to build prisons even as violent crime reports drop, and mandatory minimum sentences for non-violent crimes mean the prison population will continue to grow. Even as the number of incarcerated persons rises, remedies for human rights and civil rights violations are being legislatively and judicially curtailed.33 It is imperative that corrections departments not be allowed to evade accountability for the treatment of prisoners through limiting oversight and precluding access to legal remedies, because lack of accountability sends a message to persons entrusted with guarding inmates that they may abuse those who are incarcerated with impunity. This, coupled with poor training, lack of oversight, and the political powerlessness of incarcerated persons and their families, creates the conditions under which inhumane, abusive, and degrading treatment of prisoners will flourish.1 Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996). 2 Nunn v. Michigan Department of Corrections, Civil Action No. 96-CV-71416-DT, United States District Court for the Eastern District of Michigan. 3 Darrell K. Gillard, and Allen J. Beck, "Prison and Jail Inmates at Midyear 1997," Bureau of Justice Statistics Bulletin (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1998). 4 Ibid. 5 Merry Morash, Timothy S. Bynum, and Barbara A. Koons, Women Offenders: Programming Needs and Promising Approaches (Maryland: National Institute of Justice, 1998). 6 Between 1985 and 1995 the number of women inmates tripled, while the number of men inmates doubled. Ibid. Between June 30, 1996, and June 30, 1997, the number of men prisoners grew by 4.7 percent; however, the number of women prisoners grew by 6.1 percent. Gillard and Beck, "Prison and Jail Inmates at Midyear 1997." 7 Tracy L. Snell and Danielle C. Morton, "Women in Prison: Survey of State Prison Inmates 1991," Bureau of Justice Statistics Special Report (Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics 1994). 8 Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches. These figures, however, may be conservative, as state-specific studies have generally yielded a higher percentage of women reporting prior sexual or physical abuse. A 1988 study found that 88 percent of the incarcerated women sampled had experienced at least one major form of prior abuse: childhood physical abuse, childhood sexual abuse, adult rape, or adult battering. Russ Immarigeon and Meda Chesney-Lind, Women's Prisons: Overcrowded and Overused (San Francisco: National Council on Crime and Delinquency, 1992). Another National Council on Crime and Delinquency study found that 67 percent of women reported physical or sexual abuse as children, and 71 percent reported such abuse as adults. Leslie Acoca and James Austin, The Crisis: Women in Prison (San Francisco: National Council on Crime and Delinquency, 1996). 9 Ibid. 10 Gillard and Beck, "Prison and Jail Inmates at Midyear 1997." 11 Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches. 12 Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons. 13 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, pp. 243-62. 14 Under Title VII, an employer may not discriminate on the basis of sex unless the employee's sex is a bona fide occupational qualification (BFOQ), i.e., a qualification that is "reasonably necessary" to perform the specific job. 15 In the absence of unusual circumstances, U.S. federal courts have been reluctant to characterize a person's sex as a BFOQ. Dothard v. Rawlinson, 433 U.S. 321 (1977); Fort v. Ward, 621 F.2d 1210 (2nd Cir. 1980; Griffin v. Michigan Department of Corrections, 645 F.Supp. 690 (E.D. Mich. 1982); Gunther v. Iowa State Men's Reformatory, 462 F.Supp. 952 (N.D. Iowa 1979), affirmed 612 F.2d 1079 (6th Cir. 1980), cert. denied, 446 U.S. 966 (1980). 16 In Torres v. Wisconsin Department of Health and Human Services, 859 F.2d 1523 (7th Cir. 1988), cert. denied, 489 U.S. 1017 (1989), the court held that considering the women's histories of sexual and physical abuse, sex could be used as a BFOQ to restrict male officers from working on the housing units. In Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), the court ruled that, based on the female prisoners' histories of physical and sexual abuse, cross-gender pat-frisks constitute cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. 17 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 220 A (XXI) of 16 December 1966, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, Art. 7, p. 23. 18 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, pp. 293-307. 19 The U.S. ratified the International Covenant on Civil and Political Rights in 1993 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994. However, the U.S. declared the provisions of both treaties to be "non-self-executing," effectively denying individuals the right to sue the government for noncompliance with these treaties. 20 Letter from Kenneth L. McGinnis, director of the Michigan Department of Corrections, to Human Rights Watch, June 10, 1997 (on file with Human Rights Watch). 21 Letter from Gov. John Engler, State of Michigan, to Maarit Kohonen, Office of the United Nations High Commissioner for Human Rights, June 12, 1998 (on file with Human Rights Watch). 22 Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to Gov. John Engler, State of Michigan, March 27, 1995. 23 Ibid. 24 Ibid. 25 Nunn v. Michigan Department of Corrections, Civil Action No. 96-CV-71416-DT, United States District Court for the Eastern District of Michigan. 26 "Ticket" is the term used to indicate that a corrections officer has initiated a procedure by which an inmate will be charged with a violation of prison rules and regulations. 27 Deposition of Joan Yukins, warden of the Scott Correctional Facility, June 6, 1995 [hereinafter Yukins Deposition]. "If that was the only information we had, a prisoner's word against a staff member's word and no other substantiating evidence, no other documents, no other witnesses, the staff member's word would take precedence." 28 Ibid. 29 Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches. 30 Ibid. In light of the number of women inmates who have parental responsibilities or who have histories of being abused, there is a notable lack of screening for needs related to children, spouse abuse, and childhood sexual abuse. For example, women with children are often not informed of parenting classes, and women with histories of abuse are not referred to psychological counseling services. 31 Ibid. 32 "Three strikes and you're out" laws mandate that any person convicted of three felonies must be sentenced to life without parole. Some states only consider violent felonies, while other states include any felony convictions. 33 In April 1996 the Prison Litigation Reform Act of 1995 (PLRA) 18 U.S.C. 3626 et seq. was signed, dramatically limiting the ability of individuals, nongovernmental organizations, and even the Department of Justice to challenge abusive prison conditions through litigation.
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