V SEXUAL ABUSE
"No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment."
Article 7, International Covenant on Civil and Political Rights
"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."
Article 10, International Covenant on Civil and Political Rights
"No one shall be subjected to arbitrary or unlawful interference with his privacy..."
Article 17, International Covenant on Civil and Political Rights
"I'm tired of being gynaecologically examined every time I'm searched."
Inmate at Valley State Prison for Women, California, 18 November 1998, speaking with an Amnesty International delegate about searches conducted by some male staff.
"Nearly every inmate we interviewed reported various sexually aggressive acts of guards. A number of women reported that officers routinely 'corner' women in their cells or on their work details in the kitchen or laundry room and press their bodies against them, mocking sexual intercourse. Women described incidents where guards exposed their genitals while making sexually suggestive remarks."
Findings of US Justice Department investigation into women's prisons in Michigan, 1995 [ Letter from US Department of Justice to Honorable John Engler, Governor of Michigan, 27 March, 1995. Additional findings are cited below in this chapter.].
Many women in prisons and jails in the USA are victims of sexual abuse by staff, including sexually offensive language; male staff touching inmates' breasts and genitals when conducting searches; male staff watching inmates while they are naked; and rape.
In the overwhelming majority of complaints of sexual abuse by female inmates against staff, men are reported to be the perpetrators. Contrary to international standards, prisons and jails in the USA employ men to guard women and place relatively few restrictions on the duties of male staff. As a consequence, much of the touching and viewing of their bodies by staff that women experience as shocking and humiliating is permitted by law.
When an officer's conduct is such that it violates institutional rules (for example, prohibiting any staff-inmate sexual contact) and even criminal laws (for example, concerning rape and sexual assault), the victim is often reluctant to complain because she may have good reason to anticipate that her accusation is less likely to persuade investigators than the denial of an officer; she may also fear retaliation.
The seriousness and prevalence of sexual abuse in six jurisdictions (California, Washington DC, Georgia, Illinois, Michigan, New York) was described in 1996 in a report by Human Rights Watch, an international human rights organization [ All Too Familiar - Sexual Abuse of Women in US State Prisons, Human Rights Watch, New York, 1996.]. Further evidence is provided by the following reports.
Alabama The US Justice Department's investigation of Julia Tutwiler prison in 1994 received what were considered to be credible reports of sexual relations between inmates and some staff. According to the reports, staff members rewarded inmates with food, cosmetics and money for their participation. While the investigation received no allegations of "physically forced rape," it considered the sexual relationships "not appropriate or truly 'voluntary' given the institutional relationship.' [ "Notice of findings from investigation of Julia Tutwiler Prison for Women," March 27, 1995.].
Arizona In 1997 a US Justice Department investigation into women's prisons concluded that the authorities failed to protect women from sexual misconduct by correctional officers and other staff. The misconduct included rape, sexual relationships, sexual touching and fondling, and "without good reason, frequent, prolonged, close-up and prurient viewing during dressing, showering and use of toilet facilities." [ CIV97-476, US District of Arizona.]. The Justice Department reports that since 1992 more than 60 people who worked with female inmates in Arizona have been dismissed, have resigned or have been disciplined as a result of sexual misconduct [ US Memorandum in Opposition to Defendant's Motion for Summary Judgement, US v Arizona et al, Civil Action No.97-746-PHX-ROS, filed November 1998.]. The Justice Department was unable to reach an agreement with the state to implement additional measures to prevent and deal with sexual abuse and initiated legal action. In January 1999, the Justice Department and the state were discussing a possible settlement of the lawsuit.
California During 1997-98, Amnesty International received reports from prisoners and other sources that inmates were the victims of sexual abuse by some staff at Valley State Prison for Women. One of the reports was in the form of a letter from the "general population" of the prison, which stated:
"There's no voice telling taxpayers that their money is being wasted, that we are in need of adequate medical care, that we don't like to be pawed on by male correctional officers under the pretence of being pat searched. No, we do not have a voice that will speak about how we are treated by the male officers, as if we were their private harem to sexually abuse and harass. Not to mention the emotional and verbal abuses when being addressed as bitches, niggers, wet backs, or any other of the racial or sexual slurs that the abusive officer's tiny mind can conjure."
The letter stated that only a minority of officers behaved abusively, but the women were very distressed and felt unable to secure protection. Amnesty International wrote to the Department of Corrections requesting an inquiry into the reports of sexual abuse and other concerns. The Director of the Department, Mr Terhune, responded that the Department did not condone sexual misconduct between inmates and staff, that staff are trained on the subject of sexual misconduct and that all allegations are promptly investigated. Mr Terhune also informed Amnesty International that the prison had recently installed "drop boxes" for inmate complaints which would only be seen by investigative staff who are not staff on housing units. Amnesty International replied that reports received by the organization indicated that inmates did not have confidence in the complaints procedure. It asked to visit the prison and to meet the Director, who agreed to the requests.
Amnesty International delegates visited the prison in November 1998 and interviewed prisoners who reported that it was common for some male officers to watch them dressing and undressing and, in breach of the approved procedure, to touch their breasts and genitals when conducting pat searches. At the time of the visit, the delegates were informed, several guards were being investigated for sexual misconduct including an alleged incident of rape. Several prisoners told the delegates that prisoners were afraid to place complaints in drop boxes because other prisoners might think that they were informing the authorities about prisoner misconduct.
Federal Bureau of Prisons In March 1998, the Federal Bureau of Prisons agreed to pay three women a total of $500,000 to settle a lawsuit in which they reported that guards had committed, orchestrated and facilitated sexual abuse against them and against other women at the Federal Detention Center, Pleasanton, California [ Private Settlement Agreement, Lucas v White, Case number C96-02905 US District Court of Northern California.]. The women reported, among other things, that guards had taken money from male inmates in exchange for allowing the male inmates to enter the women's cells so that they could sexually abuse them.
The women's lawsuit also complained of racial discrimination. All three are African American and at the time they were sexually abused there were also white female prisoners who were being sexually abused. The white female prisoners were moved immediately after a complaint was made to officials but the African American women were not moved for about another 10 days and continued to be subjected to abuse.
As part of the settlement of the women's legal action, the Bureau agreed to institute a variety of measures to prevent and respond to sexual abuse of prisoners, including the provision of a telephone link to allow women to report complaints of sexual abuse to an external inquiry unit.
Florida In March 1998 a former prison guard, was convicted of raping a female inmate at the Florida Correctional Institution in Lowell. Sentencing the man to serve nine years in prison, the judge said: "It's clear from the evidence that you abused the trust that was put in you as a corrections officer." [ St Petersburg Times, March 25, 1998.].
In October 1998, Florence Krell hanged herself from her cell door at Jefferson Correctional Institution. Shortly before her death she wrote letters to the judge who had sentenced her and to her mother, complaining of abuse from guards and other forms of ill-treatment. Among the incidents she described was being left naked in her cell and observed by male officers. In January 1999, the state Department of Corrections announced a change in policy to prohibit inmates being left completely naked in their cells. Florida legislators have held hearings into the death of Florence Krell and the suicide of another female prisoner in December 1998. The American Civil Liberties Union of Florida has asked the Governor of Florida to establish a general investigation of conditions for female prisoners in Florida, citing reports that it has received from and on behalf of prisoners alleging, among other matters, sexual activity between staff and inmates, sexual abuse and harassment [ The Tampa Tribune - various articles e.g. 29 November; 4, 6, 10 and 25 December 1998 and 13 January 1999; Miami Herald 21 January 1999; ACLU of Florida media release, 13 January 1999 and communications from ACLU Florida to Amnesty International.]. Amnesty International has written to the Governor to support the request for a general inquiry.
Idaho In January 1999, a former guard at Jefferson County jail pleaded guilty to a charge of sexual contact with a female inmate, a serious crime in the state. He was due to be sentenced in February 1999 [ Information provided to Amnesty International by Office of Prosecuting Attorney, Jefferson County.].
Illinois In April 1998 a guard at the Will County Jail, was dismissed when an internal inquiry found that he had "used his position as a correctional officer for his own personal gain and sexual gratification." Earlier in the year, the guard was also charged with violating a new criminal law that prohibits prison and jail guards from sexual conduct with inmates. It is alleged that he had sexual relations with five female inmates [Chicago Tribune, May 1, 1998.].
Maryland In January 1998 a former guard was convicted of sexually assaulting an inmate at the Women's Detention Center in Towson. He was sentenced to serve 90 days in prison [The Baltimore Sun, April 29, 1998.].
Massachusetts On 12 December 1997 the state Department of Corrections settled a lawsuit which alleged that the manner in which strip searches of female prisoners at Framingham prison were carried out during a training exercise in September 1995 violated the prisoners' constitutional rights. On the night of 20-21 September 1995, according to the legal complaint filed by the women, 112 women and pre-trial detainees were roused from their beds by masked guards screaming and shouting abuse. Sixteen women were strip searched in front of male and female staff and ordered to provide urine samples. In the settlement agreement the Corrections Department agreed, among other things, that it would carry out future strip searches and urine tests "in relative privacy with as much dignity as possible" and such searches and tests would not be conducted if men were present, unless in an emergency. The women were awarded $80,000 [Prison Legal News September 1998.].
On 16 October 1998, Framingham prison inmate Elizabeth Bouchard telephoned a radio station and described how she was treated when she was put under constant observation as a suicide risk because she was depressed after her baby died.
I was...put on eyeball status, stripped of belongings, clothing, placed in a room with nothing but a plastic mattress on the floor. Watched 24 hours a day by a man or woman. I was haemorrhaging but because of my status not allowed to have tampons or underwear. I was very humiliated, degraded. Being on eyeball status with male officers, my depression intensified. I didn't want to be violated any more than I already was, so I put the mattress up against the window. When I did that I was in violation because they couldn't see me. The door was forced open, I was physically restrained in four point restraints - arms, legs spreadeagled, tied to the floor, naked, helmet on head, men and women in the room ["Here and Now" program, station WBUR, Boston University, 16 October 1998.].
Michigan A US Department of Justice investigation of women's prisons in 1994-95 reported evidence of widespread sexual abuse, including rapes [ Letter from US Department of Justice to Honorable John Engler, Governor of Michigan, 27 March 1995.]. Reports of sexual abuse were provided not only by inmates:"an officer matter-of-factly advised (US Justice Department investigators) that there is frequent sexual activity between guards and inmates." There was also evidence that a number of officers had been charged with sexual assault and evidence that pregnancies had resulted from inmates' sexual involvement with guards. In addition to sexual assaults, the Justice Department reported that:
* officers abused women during pat-down searches by "routinely touching all parts of the woman's body, including fondling and squeezing their breasts, buttocks, and genital areas in ways not justified by legitimate security needs";
* officers stood outside prisoners' cells and watched them dress or undress, and stood in shower areas to observe women showering and using toilet facilities. The Justice Department concluded that "the degree and kind of surveillance employed by many guards at these facilities goes well beyond legitimate security needs."
Michigan disputes the findings of the Justice Department that there is persistent and systematic sexual abuse that is not being dealt with effectively. According to the Michigan Department of Corrections, sexual misconduct is "aggressively investigated," as indicated by the following data. In 1996 there were 13 allegations of sexual misconduct at Michigan's two prisons for women; all were investigated and two were sustained and resulted in disciplinary action. In 1997 there were 19 allegations of sexual misconduct of which five were sustained. In 1998, to 20 November, there were 24 allegations of sexual misconduct of which five were sustained and resulted in disciplinary action and nine were pending [ The Insider - a Public Information Service of the Michigan Department of Corrections, 20 November, 1998.].
In 1997 the Justice Department and women prisoners initiated legal action asking a court to order the state to take stronger action to protect prisoners from sexual abuse [ Letter from US Justice Department to John Engler, Governor of Michigan, March 27, 1995. The Justice Department unsuccessfully sought a court order to secure access. The letter notes that investigators were permitted to interview inmates during regular visiting hours in visiting room facilities.]. As of February 1999, it appeared that the case would go to trial during the course of 1999.
In 1998, Michigan refused permission to the United Nations Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, to visit women's prisons in the state to investigate reports of sexual misconduct. "I view the United Nations as an unwitting tool in the Justice Department's agenda to discredit the state of Michigan in spite of the objective evidence that the state of Michigan has not violated the civil and constitutional rights of women inmates," Michigan Governor Engler wrote to the Office of the United Nations High Commissioner for Human Rights [ Reported
by Inter-Press Third World News Agency, 14 August, 1998.].
In October 1998, inmates and a guard reported to Amnesty International that sexual abuse of female inmates by staff continues to occur. In November 1998, the Detroit City Council adopted a resolution calling on the Governor "to end all prison practices which allow, promote and enforce violence against women in Michigan state prisons including custodial sexual abuse and harassment."
New Hampshire In October 1998, a correctional officer was convicted of sexually assaulting an inmate at the New Hampshire State Prison for Women in Goffstown. State Assistant Attorney General Constance Stratton has informed Amnesty International that, following the officer's arrest and subsequent convictions, meetings were held between staff and inmates at the prison in order :
* to create an environment where it is appropriate for correctional officers to report any behaviour of peers which causes them concern;
* to make it safer for inmates to report inappropriate behaviour;
* to give inmates access to levels of authority in the institution other than the correctional officers themselves.
The Department of Corrections has also enacted "harsher discipline" for sexual abuse by staff and intends to appoint as the head of the Department's Internal Affairs section a person who has experience of conducting investigations into allegations of sexual abuse [ Letter to Amnesty International, 5 January 1999.].
New York In October 1997 a corrections officer employed at Taconic Correctional Facility for Women pleaded guilty to a charge involving sexual activity with an inmate [ The charge was described in a press release issued by the District Attorney of Westchester County, 24 April 1997; in January 1999, an officer of Bedford Court informed Amnesty International of the outcome.].
Female prisoners initiated a lawsuit in 1998 claiming that pat frisks (searches of clothed women prisoners) that are regularly carried out by male correctional officers constitute "legalised sexual molestation." [ Fleming et al v Goord, 98 CIV 8022, US District Court, Southern District of New York.]. Additional information about this case is provided later in this chapter.
Ohio In October 1996, a former prison guard at the Correctional Medical Center, a prison facility, pleaded guilty to sexual misconduct with inmates and was sentenced to two years in prison. In May 1997, another former guard was placed on probation for three years after pleading guilty to sexual misconduct with two female inmates at the same facility [The Columbus Dispatch 12 February 1997 and 29 May 1997.].
Texas In November 1998, a correctional officer pleaded guilty to sexual misconduct with female inmates at Plane State Jail. He was fined $3000 [ Texas Department of Criminal Justice, letter dated 7 January 1999 to Amnesty International.].
Virginia In January 1998 a former guard at Rappahannock Regional Jail pleaded guilty to sexually assaulting a female inmate and was sentenced to six months in jail [ Daily Press, 14 January 1998.].
Washington In November 1998 the state of Washington agreed to pay a former prisoner $110,000 to settle a lawsuit she initiated after she was raped and made pregnant by a guard at the Washington Corrections Center for Women in 1993. Similar cases are pending, including one case in which an inmate who had been imprisoned since 1985 gave birth to a child in December 1997. In the latter case the woman alleged that she was raped but prosecution authorities declined to charge the officer identified as the father because they considered they could not prove the officer had used force or threat of force. The state has no law prohibiting consensual sex between inmates and staff. In February 1998, it is reported that the Department of Corrections introduced a written policy prohibiting sex between prison employees and inmates and was reportedly preparing policies to investigate allegations of sexual abuse and to protect the health and safety of inmates who report that they have been raped [The News Tribune, 3 February, 1998; 6 June 1998; 3 November 1998, 30 January 1999.].In January 1999, Amnesty International was informed that legislators were proposing to introduce legislation to prohibit sex between staff and inmates.
Washington DC In 1994, a court found that despite the correctional authority's policies and procedures designed to address sexual misconduct by staff, female prisoners in three facilities were subjected to many incidents including violent sexual assaults, invasions of privacy and inappropriate remarks. The authority conceded that it had failed to protect the women from sexual abuse. The court ordered that the authority should implement a number of remedial measures. In 1998, female prisoners returned to court complaining that the authority had failed to comply with the court's order and as a consequence female prisoners continued to be sexually assaulted and harassed [ Women Prisoners of the District of Columbia v District of Columbia, 899 F. Supp 659 (D.D.C. 1995); Women Prisoners of the District of Columbia v District of Columbia, F.3d 910 (D.C. Cir. 1996); Women Prisoners of the District of Columbia v District of Columbia, Plaintiff's Memorandum in Support of Motion for Contempt and to Enforce the Court's Order for Injunctive Relief, 22 June 1998.]. As of January 1999 the matter had not been resolved.
West Virginia In October 1997 the former sheriff of Grant County was sentenced to seven years' imprisonment in a case in which female inmates at Grant County Jail were forced to engage in sex acts with law enforcement officials. In the same case, a former police officer of the Petersburg Police department, also in Grant County, was sentenced to five years' imprisonment for raping a female inmate four times. The former police officer acknowledged that the sex acts had occurred but argued they were consensual, according to a police investigator. The victims have initiated legal action against the county for compensation [Charleston Gazette, 16 October, 1997.].
Wyoming In June 1998, a guard at the Wyoming Women's Center in Lusk pleaded guilty to a charge of raping two female prisoners on three occasions [ Prison Legal News, September 1998.].
2. International standards and US law in relation to sexual abuse
"It's not consensual - they have the power, the uniform, the badge."
Elizabeth Bouchard, prisoner in Massachusetts, November 1998 [ Elizabeth Bouchard was speaking on radio, by telephone from Framingham prison - "Here and Now" program, station WBUR, Boston University, 16 October 1998.].
Under international law, rape of a prisoner by correctional staff is considered to be an act of torture [ In a report to the United Nations Commission on Human Rights, then United Nations Special Rapporteur on Torture, Professor Kooijmans noted that "since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture." UN Commission on Human Rights, UN Doc E/CN.4/1992/SR.21, 21 February 1992, paragraph 35. The International Tribunal for Yugoslavia has considered that rape in armed conflict is an act of torture, referring to a report of the United Nations Special Rapporteur on "Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict." Case No. IT-96-21-T, paragraph 493.]. Other forms of sexual abuse are clearly violations of the internationally recognised prohibition of cruel, inhuman or degrading treatment or punishment, which governments are called upon to interpret "so as to extend the widest possible protection against abuses, whether physical or mental." [ Explanatory footnote to Principle 6, United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment.]. Sexual abuse also violates the right to be treated with respect for human dignity, and the right to privacy, both enshrined in the International Covenant on Civil and Political Rights (ICCPR).
Some reports indicate that women who were sexually abused were targeted not only because of their gender. As described earlier, in its study of sexual abuse of women in US prisons, Human Rights Watch noted that lesbian and transgendered prisoners had been singled out for sexual abuse [ Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch, New York, 1996, 2.]. Targeting of incarcerated women because of their sexual identity violates not only their right against sexual abuse but also their right to be free from discrimination, which is enshrined in the ICCPR and Convention Against Torture. As described earlier in this chapter, the three women who sued the Federal Bureau of Prisons complained, among other things, of racial discrimination because white female prisoners were moved to safety far more quickly than they were. Targeting of women because of their race or ethnic identity violates their right against discrimination under the ICCPR, the Convention against Torture and the International Convention on the Elimination of Racial Discrimination.
International standards do not specifically deal with the issue of consensual sexual relations between staff and inmates. Incarcerated and formerly incarcerated women with whom Amnesty International has spoken, and correctional authorities and other people familiar with the environment of jails and prisons, consider that sexual relations between staff and inmates are inherently abusive of the inmates and can never be truly consensual, even if initiated by inmates, simply because of the considerable difference in power between the parties. As an Arizona prison psychiatrist has explained, "the relationship can never be equal. " In his view,
"clearly an inmate by their role as inmate is vulnerable and not in parity situation with the jailor...who has all kinds of authority and power and potential means to exert influence and pressure...The jailkeeper...(is) mandated by law and by society to fulfill a certain function and that is not to fulfill their own personal sexual needs...On an individual level, if in fact, as you point out that even up to 80% of the female inmates have a history of sexual or other kinds of abuse in the past, then very likely some and maybe many of those inmates have sufficient degree of disturbance in their identity, their self esteem...in their own sexuality that would make them vulnerable and not as able to make proper decisions." [ United States' Memorandum in Opposition to Defendants' Motion for Summary Judgement, USA v State of Arizona et al, Civil Action No. 97-476-PHX-ROS, US District Court for the District of Arizona.]
The rules of the international criminal courts on the former Yugoslavia and Rwanda take note of the coercive reality of the custodial environment by providing that in cases of alleged sexual assault, consent is not allowed as a defence if the victim was subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression [ Rule 96 of the rules of procedure and evidence (IT/32/Rev.3/Corr.1 of 6 February 1995) of the International Criminal Tribunal for the Former Yugoslavia and a similar rule in the International Criminal Tribunal for Rwanda which set forth evidentiary procedure for cases of sexual assault.]. Further, international standards recognise that the proper administration of prisons depends upon their staff's "integrity, humanity, professional capacity and personal suitability for the work." [ Rule 46(1), Standard Minimum Rules for the Treatment of Prisoners.] None of these personal qualities is consistent with staff exploiting opportunities for sexual relations with inmates.
Under federal and state laws of the US, rape and other forms of coerced sexual contact are prohibited by general criminal laws. In addition, 36 states, the District of Columbia and the federal government have laws specifically prohibiting sexual relations between staff of jails and prisons and inmates [ Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas and Wyoming. For an outline of the laws, see B Smith, Fifty-State Survey of Criminal laws Prohibiting Sexual Abuse of Prisoners, National Women's Law Center, Washington DC, 1998. The survey and the information in this report vary because: Maryland and Tennessee legislated after the Smith survey was completed; Amnesty International considers that Wisconsin should be characterized as not having a law specifically prohibiting sexual contact although it has a law generally prohibiting abuse of prisoners.]. Thirteen states do not have such laws [Alabama, Kentucky, Massachusetts, Minnesota, Montana, Nebraska, Oregon, Utah, Vermont, Virginia, Washington, West Virginia and Wisconsin (this state has a law prohibiting "abuse" of people in penal institutions). In states about which Amnesty International has information, for example Massachusetts, prison staff rules prohibit sexual relations between staff and inmates.]. The laws vary in scope and nature. For example, in 13 states and the District of Columbia a correctional employee commits an offence even if the inmate consented; three states (Arizona, Delaware and Nevada) make it a crime for an inmate as well as a correctional employee to engage in sexual activity with each other.
In 1998, proposed legislation was introduced into Congress to encourage states to criminalize sexual conduct between correctional staff and prisoners, by financially penalizing states that do not have such laws. Violence Against Women Act of 1998, introduced in the House of Representatives. The proposed legislation also required that the Department of Justice establish a national, toll-free telephone "hotline" for prisoners to report sexual contact with correctional staff. Callers were to be provided with counselling and referred to assistance; the Attorney General was to be required to provide an annual report on the number and status of complaints. The proposed legislation was not considered before the Congressional term ended. Amnesty International has been informed that similar proposed legislation may be introduced in 1999.
3. Standards relating to male staff
"Women's full enjoyment of equal rights is undermined by the discrepancies between some national legislation and international law and international instruments on human rights."
Beijing Declaration and Platform for Action, adopted at Fourth World Conference on Women, 1995 [ Report of the Fourth World Conference on Women, UN document A/CONF.177/20, 17 October 1995, paragraph 219.]
"Showers do not allow for privacy, especially for females as their chests are exposed through the top window." A prison official giving the tour claimed the showers get fogged up and therefore block guard's vision of inmates' chest and genital area. However, we observed a male taking a shower and we could clearly see him."
Report of tour of Colorado State Penitentiary, 1998 [ The Prisoners Rights Project of the Rocky Mountain Peace and Justice Center, Notes of tour of Colorado State Penitentiary, September 9, 1998.].
The employment of men to guard women is inconsistent with international standards [ Rules 53(2) and 53(3), Standard Minimum Rules for the Treatment of Prisoners.] which provide that:
* female prisoners should be attended and supervised only by female officers;
* male staff such as doctors and teachers may provide professional services in female facilities, but should always be accompanied by female officers.
The standards also provide that measures which are designed solely to protect the rights and special status of women are not considered discriminatory [Principle 5(2), Body of Principles for the Protection of All Persons Under Any Form of Detention.]. The United Nations Human Rights Committee has stated that to ensure protection of the dignity of a person who is being searched by a state official, a body search should only be conducted by someone of the same sex [ General Comment 16 to Article 17 of the ICCPR, "Compilation of General Comment and General Recommendations Adopted by Human Rights Treaty Bodies," UN Document HRI/GEN/Rev.3, 15 August 1997.].
Men form a very large proportion of the staff in prisons and jails in which women are incarcerated in the US. A 1997 survey of prisons in 40 states found that on average 41 percent of the correctional officers working with female inmates are men [ "Female Offenders: As Their Numbers Grow, So Does The Need for Gender-Specific Programming," Corrections Compendium, March 1998. The following states did not provide data on the male-female composition of their prison staff: Alaska, Arizona, Georgia, Illinois, Iowa, Maryland, Michigan, New York, North Dakota, South Dakota; the Federal Bureau of Prisons also did not respond. In a separate survey, Mississippi reported that 237 male correctional officers were assigned to female prisons as of January 1, 1997: Criminal Justice Institute, The Corrections Yearbook 1997, Criminal Justice Institute, New York, 1997 - Amnesty International is not aware of the reason for the discrepancy between Mississippi's data in this and the first mentioned survey. Another survey of prisons as of 31 December 1997 reported that in state-operated facilities, female staff filled on average 55 percent of custody positions, ranging from 18-97 percent; three privately operated prisons had an average of 69 percent female custody staff: US Department of Justice National Institute of Corrections Information Center, Current Issues in the Operation of Women's Prisons, National Institute of Corrections, Colorado, 1998. Amnesty International is not aware of similar information about jails but the proportion of male staff may well be greater.]. The proportion varied greatly between states. Men were 72 percent of correctional staff guarding women in Kansas and 66 percent in California and Idaho. Mississippi reported that it had no male officers guarding women while Nevada employed no men in one of its two prisons for women; in the other Nevada women's prison, 35 percent of employees were men. In Louisiana, men constituted four per cent of staff guarding women. Twenty six of the 40 states also reported that they do not require special training for staff who guard female prisoners.
Courts in the US have ruled that anti-discrimination employment laws mean that prisons and jails cannot refuse to employ men to supervise female inmates, or women to supervise male inmates. Court decisions, legislation and the policies of jail and prison authorities in the US impose limits on what male staff in female facilities are permitted to do (and also on female staff in male facilities) and the limits differ between and within states.
In Hawaii, a court in 1998 upheld the legal right of the Department of Corrections to assign only female correctional officers to work a particular time of day when they might have unsupervised access to the inmates and be required to observe inmates in the showers and toilet areas. The Department's policy, the court decided, was "a reasonable response to the concerns about inmate privacy and allegations of abuse by male (staff)." In reaching its decision, the court took note that in a similar case in Wisconsin, ten years earlier, a court had held that a warden "made a professional judgment that giving women prisoners a living environment free from the presence of males in a position of authority was necessary to foster the goal of rehabilitation," particularly in light of the fact that many of the inmates had been physically and sexually abused by men [ Robino v Iranon, 145 F.3d 1109 (9th Circuit, 1998). The Wisconsin case was Torres v Wisconsin Department of Health and Social Services, 859 F.2d 1523 (7th Circuit, 1988). ]. In Kenton County jail, Kentucky, male guards are not permitted into the isolation section if it holds a female inmate unless they are accompanied by a female guard. In contrast, in Vermont prisons, a labour union contract specifically forbids assignments on the basis of gender [ US Department of Justice National Institute of Corrections Information Center, Current Issues in the Operation of Women's Prisons, National Institute of Corrections, Colorado, 1998, 3.].
In general, laws and policies permit male staff to guard female inmates and prohibit them from conducting strip searches and intimate body searches of female inmates, except in emergency situations. Male staff are permitted to view undressed females "if it is reasonable, the exception rather than the rule, and based on a legitimate reason."
[ W Collins and A Collins, Women in Jail: Legal Issues, National Institute of Corrections, 1996, 18.]. According to the US Government, male officers who work in women's housing units are "admonished to respect the privacy of female inmates." [ Human Rights Committee, Fifty-third session, "Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant - Initial report of the United States of America," CCPR/C/SR.1405, 24 April 1995, 8.].
Courts have taken different views about the legitimacy of male staff conducting what are described as "pat" searches or "pat frisks," that is, searching women who are dressed. Thorough pat searches require some contact with the genital area. In the state of Washington, a court decided that such searches of women by men amounted to cruel and unusual punishment, in violation of the US Constitution [ Jordan v Gardner, 986 F.2d (9th Cir., 1993).]. Many of the women in the prison had been subjected to physical and sexual abuse prior to being imprisoned and they and experts testified that pat searches by men would traumatize them because it constituted continuation of the abuse. Further, in the opinion of one judge, prisoners who had not been sexually abused prior to their imprisonment would be substantially harmed by cross-gender searches. He stated:
"The intrusive, probing searches at issue here permit men in position of ultimate authority to flatten the breasts of women who are powerless and totally subject to their control, to knead the seams of their clothing at their inner thighs, and then thrust their hands inward and upward into their crotches. Such conduct is offensive in the extreme to all women, regardless of their prior sexual history.
"A common-sense understanding of the different experiences of men and women in this society, leads to the inescapable conclusion that invasive searches of the bodies of female prisoners by male prison guards are harmful both because they constitute and reinforce gender subordination, and because they offend our basic values and our concepts of human dignity."
In a later case, male and female correctional officers successfully sued the director of the Nevada Department of Prisons to prevent him transferring male officers out of a female facility and transferring female officers into the facility. The court decided that it was not against the law for male correctional officers to conduct clothed body searches of female inmates which include touching their breast and genital areas, unless there was evidence (as had been presented in Washington) that the women would suffer severe distress. Even if there was such evidence, the court held, cross-gender searching would be legal if it could be shown to be necessary for security reasons because there were not enough female correctional officers to conduct all searches [ Carl v Angelone, 883 F.Supp.1433 (D.Nev., 1995).].
As stated earlier in this chapter, in 1998 female inmates in New York initiated legal action to challenge the legality of pat searches of women by male guards in that state. The lawsuit describes the authorised method of pat searches in New York as follows:
"[A]n officer begins by ordering the inmate to stand against a wall with her back to him. The officer then approaches the inmate from behind, placing his hands on the inmate's neck inside the collar of her shirt. He works his hands down every inch of the surface of her body. Probing for small items, the officer runs his hands under and over the woman's breasts, brushing her nipples. Searching the woman's legs, the officer grips one inner thigh. His hands press against the woman's vagina before moving down her thigh toward the ankle. He then grips her other thigh and repeats this procedure on the woman's other side." [ Fleming et al v Goord, 98 CIV 8022, US District Court, Southern District of New York.].
The women state that even when searches are conducted strictly in accordance with departmental policy they traumatize the large number of inmates who had been physically and sexually abused before they were imprisoned. According to the lawsuit, some male officers disregard departmental procedure and "sexually grope and fondle the prisoners...and/or make sexual and obscene comments about the women's bodies." Women report that officers fondled their breasts, grabbed their genitals, masturbated in front of them and made sexual advances. The women report that as a consequence their health had been adversely affected. The women say that the events occurred over a period of five years and that they were afraid to complain because they feared not being believed and that they would suffer retaliation.
In her study of prisoners at the Central California Women's Facility, many women reported to Barbara Owen that they preferred male staff and gave no indication of "forced abuse" by officers. However, women were troubled by male staff "supervising and observing intimate activities, such as showering, physical searching, or dressing..." [ B Owen, In the Mix - Struggle and Survival in a Women's Prison, State University of New York Press, Albany, New York 1998, 164.].
Reviewing US compliance with the provisions of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed concern at the practice of using male guards for female inmates, "which has led to serious allegations of sexual abuse of women and the invasion of their privacy." It called on the authorities to amend existing legislation "so as to provide at least that [male officers] will always be accompanied by women officers."
[ Human Rights Committee, Fifty-third session, "Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant - Comments of the Human Rights Committee," CCPR/C/79/Add.50, 7 April 1995.].
In a 1998 report to the Committee on custodial violence against women around the world, the United Nations Special Rapporteur on Violence Against Women called on states to "fully implement the Standard Minimum Rules for the Treatment of Prisoners and ensure that protective measures are guaranteed in all situations of custody." In light of the information described in this report, Amnesty International agrees that the action called for by the Special Rapporteur should be taken by authorities responsible for jails and prisons.
4. Responses to complaints of sexual abuse
"Most officers will tell you, 'go ahead and tell - it's your word against mine. Who are they gonna believe? I'm an officer, I have a badge on, I'm in a superior position to you.'"
Elizabeth Bouchard, prisoner, Framingham prison, Massachusetts, November 1998 [ Interview on "Here and Now" radio program, station WBUR, Boston University, 16 October 1998.].
Jail and prison systems in the US have various mechanisms to deal with complaints of sexual abuse and other forms of ill-treatment, in particular:
* investigation and action by personnel within the facility where abuse has been reported;
* investigation and action by personnel of the authority responsible for the facility where abuse has been reported (e.g Department of Corrections);
* referral of allegations of criminal conduct to the police and general criminal prosecutorial agencies.
A number of states and the Federal Bureau of Prisons have introduced special measures aimed at handling complaints and preventing sexual abuse [Cason v Seckinger, Civil Action Number 84-313-1-MAC(CWH)(1994); Washington Prisoners of the District of Columbia Department of Corrections v District of Columbia, US District Court for the District of Columbia, 877 F Supp 634, 1994.]. For example, under the terms of the settlement of the sexual abuse lawsuit cited in the section at the beginning of this chapter, the Bureau of Prisons agreed to provide all inmates with the telephone number of the Inspector General of the Department of Justice, to whom they can report sexual assaults, threats or other ill-treatment; to provide medical and psychological care to an inmate reporting to be the victim of sexual assault; and to develop a training program for all Bureau of Prison staff "which will address Bureau policies and procedures concerning sexual assaults, sexual contacts, sexual misconduct, confidential reporting, sexual harassment and other issues arising out of the special needs of female prisoners." In a separate initiative, the National Institute of Corrections, part of the US Justice Department, provides training and advice to correctional authorities on the prevention of sexual misconduct in women's prisons. Prisoners, lawyers and other sources have told Amnesty International that prisoners are often reluctant to complain, for a variety of reasons, including:
* the difficulty of proving an allegation, particularly when the only evidence is the prisoner's account;
* a prisoner who makes a complaint may be placed in protective segregation while the complaint is investigated; prisoners have said they find this punitive;
* fear of retaliation, which is discussed in the following section.
Of course, a woman can only use prison or jail complaints procedures to complain about treatment that breaches institutional policies. She cannot use these procedures to complain about being searched or being watched while naked by male guards if these activities were conducted in a manner that conforms with the policy of the jail or prison in which she is held. In that case, her only recourse is to challenge the legality of the policy in court, a remedy which is complex and can take years to invoke [ See, Amnesty International, United States of America - Rights for All, AI Index: AMR 51/35/98 at 82-83.].
"Each State Party shall ensure that any individual who alleges that he has been subjected to torture has the right to complain to and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given."
Article 13, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[ Article 13 refers only to torture; Article 16 applies Article 13 to other forms of cruel, inhuman or degrading treatment or punishment.]
"Confidentiality concerning the request or complaint [regarding treatment] shall be maintained if so requested by the complainant."
Principle 34, United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment.
"...the rules are fine the way they are. The trouble is they're just not enforced...I don't know how you're going to protect [officers who might testify about sexual abuse.). You're going to have to guarantee them jobs within other state systems here; transfer them to another department; Mental Health; Lottery, something. Because there's no way they're going to be able to function here afterwards."
Julie Kennedy Carpenter, Michigan correctional officer [ Deposition taken in relation to legal action by the US Justice Department and women prisoners concerning alleged sexual abuse in Michigan prisons: USA v State of Michigan, 97-CV-75124-DT and L Nunn et al v Michigan Department of Corrections, 97-CV-71416-DT. As reported elsewhere in this report, Michigan Department of Corrections denies the allegations and states that retaliation is prohibited and all complaints are investigated.]
Amnesty International has received a number of reports that inmates and occasionally staff who have reported abuses against inmates have been victimised.
In the litigation brought by Washington DC female prisoners cited in the first part of this chapter, the court was highly critical of the prison authority's failure to treat complaints by prisoners confidentially. "By leaking private information," the court stated, "prison officials coerce women prisoners and staff into silence and insulate themselves from scrutiny." [ Washington Prisoners of the District of Columbia Department of Corrections v District of Columbia, US District Court for the District of Columbia, 877 F Supp 634, 1994.].
Breach of confidentiality leading to retaliation was also complained about in the legal action brought by three women against the Federal Bureau of Prisons, described in the section at the beginning of this chapter. In the legal document describing their complaint, the women state that they reported that they were being sexually abused to custody authorities and that these reports were leaked to prisoners and staff. As a result, they were threatened, harassed and subject to retaliation. Robin Lucas, one of the women, reported that she was beaten, raped and sodomized by three men who in the course of the attack told her that they were attacking her in retaliation for providing a statement to investigators.
At Valley State Prison in California, officials told Amnesty International delegates in November 1998 that they did not consider retaliation was common and that staff cannot readily coerce inmates by measures such as denial of privileges because prisoners' rights are specified in writing. However, prisoners told Amnesty International that staff had harassed women who made complaints by repeatedly searching their possessions and abusing them verbally.
In its investigation of reports of sexual abuse in Michigan prisons, the Justice Department concluded that "many sexual relationships appear to be unreported due to the presently widespread fear of retaliation and vulnerability felt by these women." In October 1998, Amnesty International received reports from prisoners and other sources in Michigan that some correctional staff had threatened or harassed prisoners who had complained. In November 1998, Human Rights Watch published a report of an investigation into complaints of retaliation against Michigan women prisoners who had complained of sexual abuse. The reported acts of retaliation include: guards sexually and physically assaulted prisoners involved in legal action against the Department of Corrections and confiscated legal mail as contraband; guards subjected prisoners to unnecessarily intrusive body searches, verbally harassed them and threatened them with physical or sexual abuse; staff falsely reported that inmates had committed acts of misconduct [ Human Rights Watch, Nowhere to Hide: Retaliation Against Women in Michigan State Prisons, Human Rights Watch, New York, 1998.]. A former guard, Patricia Hibbs, has told Amnesty International that in 1997 she reported abuse by staff and was subsequently physically attacked by an unknown person in an area of the prison where no prisoners are permitted access.
Amnesty International wrote to the Michigan Commissioner of Corrections urging that he establish an inquiry into the allegations of retaliation. The Commissioner responded, saying that departmental policy prohibits retaliation, that all allegations of misconduct are thoroughly and independently investigated and that investigations have not substantiated the assertion that there has been a pattern of abuse by staff. The Commissioner accused Amnesty International of indicting and convicting the thousands of employees of the Michigan Department of Corrections and of "publicly lynching" them [Letter to Amnesty International from Kenneth McGinnis, Director, Michigan Department of Corrections, 9 November 1998.]. Amnesty International has replied, reiterating that the organization called for an inquiry in response to reports of retaliation against inmates and employees who had complained about abuses, and that it did not consider that anything in the letter could reasonably be construed as a statement by Amnesty International that it has found thousands of members of staff guilty of wrongdoing and was calling for them to be punished. Amnesty International said that it welcomed the Department's assurances that abuse and retaliation are prohibited by departmental policies and procedures, that the Department is committed to enforcing the standards vigorously and that all allegations of retaliation are thoroughly investigated. Amnesty International continues to be concerned about reports of retaliation and has asked the Commissioner for further information about the investigation of allegations and the treatment of inmates who allege that they have been the victim of abuse.
Recommendations to protect female inmates from sexual abuse
Amnesty International considers that the nature and extent of sexual abuse of female inmates by male staff in jails and prisons in the USA, and the harm that sexual abuse causes, warrants strong and immediate action by authorities responsible for jails and prisons to provide the protection to which incarcerated women are entitled under international standards. Amnesty International calls upon authorities to publicly recognise that sexual abuse constitutes torture or cruel, inhuman or degrading treatment or punishment and to take the following measures to combat it:
* Female inmates should be guarded only by female officers. Male staff who provide professional services in female facilities should always be accompanied by female officers.
* Sexual abuse of inmates by staff should be expressly prohibited and action taken against staff who sexually abuse inmates.
* Sexual abuse should be widely defined to include sexual assault and threatened sexual assault; sexual contact; and sexually explicit language and gestures.
* All staff and inmates should be informed that sexual abuse is prohibited and that
* inmates have a right to complain if they are abused;
* staff have a duty to report if they know that an inmate has been abused.
* All complaints must be investigated independently, promptly and thoroughly in line with best practice for the investigation of sexual assault.
* Victims of sexual abuse must be provided with appropriate care and redress.
* Inmates and staff who report abuses should be protected from retaliation by measures including:
* inmates and staff must be informed that they have a right to protection from retaliation;
* as far as practicable, reports of abuse by inmates and staff should be treated in strict confidence;
* disciplinary and/or legal action, as appropriate, should be taken against any member of staff who seeks to deter inmates and staff from reporting abuse or who, in any manner, harasses or intimidates inmates or staff who report abuse.