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January / February 2010
Volume 22, Number 1

Preventing Inmate Sexual Harassment

When most people hear the term prison rape, they think about the kind of nightmare suffered by Toni Bunton.

As a prisoner inside the Scott Correctional Facility in Michigan, Bunton was repeatedly raped by male guards, who threatened her with their authority and trapped her in a life hardly livable.

“I was away from my family, 18 years old. I had never been around people like that,” Bunton said during testimony about the experiences she had for years after her arrest for her role as the getaway driver in a drug deal that ended tragically.

Tears fell down her face and sobs quietly escaped her voice as she testified in front of a jury during an historic lawsuit that quickly became a financial and ethical nightmare for the Michigan Department of Corrections, which had systematically failed in its lack of attempts to stop the widespread inmate abuse.

“I just don’t think I was sophisticated enough to deal with the types of people I had to deal with,” she said. “I felt that it was a part of prison life, I didn’t know any different. Nobody sat me down and told me that — I felt it was part of the punishment. I blamed myself.”

Soon, inmates like Bunton and even arrestees never charged with a crime will be more empowered to fight sexual advances, harassment or assault committed against them while in custody. Under the federal Prison Rape Elimination Act (PREA), jails and prisons will be required to give inmates a full orientation of their right to not be sexually abused —which may seem obvious but can be lost within the power dynamics of a custodial or community corrections setting —as well as information on multiple ways to report any perceived offenses and what they can expect to happen once a complaint has been made.

But PREA doesn’t end there; though specific rules are still being written, PREA will affect not just correctional settings, but any law enforcement officer, vendor, contractor or service provider that is responsible for the care of a person in custody, whether the person is under arrest on the side of the road, is in the back of a squad car, or is in a temporary holding facility like those found in court. As such, it will affect not just county jailers, but bailiffs, sheriff’s deputies, constables, vendors and contractors, nurses and medical staff and anyone else who has contact with a person who is being supervised by a corrections agency. “The word ‘prison’ is probably confusing in some cases,” said consultant Jim Layman, a former internal affairs investigator from Florida who is working with the U.S. Department of Justice to help implement the PREA standards, “but this applies to jails and police lockups.

It could be just a room, could be an interview space.” And, it will cover not just rape, but any type of sexual harassment that would be considered inappropriate in an office environment.

PREA was originally signed by President George W. Bush in 2003, but with the caveat that it would take years to properly define and implement. The act established a six-person commission and gave it four years to travel around the country and hold hearings to establish a set of operations and accountability standards that would help eliminate all levels and forms of inmate sexual abuse.

The commission published its draft set of standards more than a year and a half ago, with a revised set of standards published on June 23 of last year. Those standards are going through one final review period; the U.S. Attorney General’s Office has said it expects to sign a final set of standards into law by June of this year.

The approved PREA standards are expected to define prison rape as four prohibited behaviors: non-consensual sexual acts between inmates, abusive sexual contacts between inmates; staff sexual misconduct, including both consensual and non-consensual sex or touching; sexual harassment by staff against an inmate, including demeaning references about a person’s gender, body, or clothing or profane or obscene language or gestures.

The law will require staff training on PREA, specialized sexual assault investigators to address complaints, newly-developed prisoner orientations, facility risk assessments, multiple avenues available to inmates to report any abuse, proof of action on any complaints filed and annual reporting of all investigative results, among other things. Officials that do not follow the requirements will be subject to civil penalties and those agencies will not be eligible to receive federal grant funding and may lose part of their share of Homeland Security dollars passed down through the state Legislature.

The good news is that many jails and prisons are already doing most of what the expected requirements will entail; those involved with creating the PREA standards said jail officials should only need to “tweak” their existing policies in order to be in compliance. However, some tweaks will cost dollars — especially expected requirements regarding cross-gender supervision — and there is no funding available to help agencies comply with the new standards.

“We have always had the moral and ethical responsibility to protect those in our care, custody and control,” said consultant Elizabeth Layman, a former sexual assault investigator who is also working with the U.S. Department of Justice on creating a final set of standards that agencies can comply with without facing an incredible amount of financial or staff hardship.

The Laymans travel as a team around the United States to educate law enforcement agencies about the potential impacts of PREA. They came to Texas in December at the request of Texas Association of Counties law enforcement specialists to conduct a series of regional workshops across the state.

During the workshops, the pair discussed the previous grievances filed on behalf of inmates in other states, the lack of response those inmates received from corrections leadership, and the large, successful class-action lawsuits that resulted from the lack of action. The lawsuits cost agencies in Michigan and the District of Columbia tens of millions of dollars and helped pave the way for the PREA reforms.

“PREA’s aim was to further increase the accountability of those who failed to act in a reasonable and proven manner as it relates to our detainees. It standardizes prohibited behaviors so that when you are reporting it and looking at it, the State of Texas and the State of Montana are talking about the same thing,” Jim said.

Myths and Challenges for Preventing Inmate Rape
Training and education are assuredly going to be major components of the PREA standards, once they are passed.

Correctional and law enforcement officers will need specific training on PREA itself, as well as why sexual abuse occurs in corrections settings, what to do if they witness or have evidence of a sexual assault — PREA will require that any employee aware of a situation covered under its standards report that situation or face a civil penalty — and what the investigative process following a complaint will entail.

Inmates that are considered residents of a facility will have to go through an orientation that discusses PREA, the dynamics of sexual assault in a custodial setting, what they can do if they are sexually harassed or assaulted, how victims are commonly affected by sexual abuse and the help available to victims.

Inmates generally become involved with sexual relationships or in sexual abuse to gain privileges or benefits, because of low self-esteem or because they are fearful of authority or another inmate. Certain inmates are either more vulnerable to sexual abuse or more likely to abuse than others. Facilities should begin assessing each inmate’s personal sexual abuse history. In general, the percent of inmates who have been victims of sexual abuse is double that of the free world.

“If 90 percent of the abuse has been committed by people they know, what does that mean? To me, that means they are used to dealing with these close relationships with the people around them … if they have been sexually abused, they may think that’s the only way to succeed in getting something that they want,” Beth said. Mental illnesses may also make some inmates more vulnerable to sexual attention or abuse.

Part of the challenge will be creating an open dialogue among jailers and officers about sexual abuse and personal boundaries so they have a better awareness of situations that need to be fixed.

Red flags can range from things like positive pregnancy and STD tests of long-term inmates to overhearing an officer using sexual overtones while talking with an arrestee or an inmate. Other red flags may be if an officer may defend a single inmate or request him or her to perform certain jobs or duties, or if an officer frequently visits a particular tank.

Officers should be aware that some behaviors or personality changes — say, an inmate goes to shower and refuses to remove shorts or underwear, or an inmate that begins refusing medication — are possible signs that a person may be a victim of a sexual assault.

“It’s really good for our line staff to be able to talk about this, because they do not know what they are supposed to do when they see (these behaviors),” Beth said, adding that any type of favor performed for an inmate could be an indication of some type of sexual misconduct. “Favors for favors.”

Jim described a situation in one agency he has visited, in which one state trooper was known for only arresting good-looking women. “They didn’t come to the realization that what they were watching were crimes in progress until that trooper was arrested,” he said. “Had they only thought about it and mentioned it to somebody, how many people could they have prevented from being victims of that trooper?”

Staff should also be aware that even a relationship that begins as the result of manipulation by the inmate — known in some circles as “downing the duck,” based off an inmate’s account of how he spent months manipulating a correctional officer into a friendship until the officer began doing illegal favors and eventually helped him escape from prison, after which the inmate killed three people in a robbery — is a prohibited behavior that has criminal and civil penalties.

“Manipulative behavior is only successful (with) those of us who don’t say no,” Beth said. Officers can watch how they wear their uniforms, the language they use and how respectful they are to coworkers and the agency itself to avoid becoming a target.

Statistically, rookie corrections officers are not the ones that break rules regarding sexual contact or friendships with inmates. Instead, mid-line supervisors in their 30s and 40s are more likely to engage an inmate with friendly banter, which can be the beginning of a slippery slope. “They are running under the radar. They are comfortable,” Beth said. “They think, I know exactly how to deal with this, I’ve been around a long time, I know what I’m doing.”

Employees who have recently gone through a dramatic personal change — like divorce or a financial crisis — are especially vulnerable to inmate manipulations or sexual advances. “Inmates may say they consent and it may seem like a consensual relationship, but because of the imbalance of power, the person in authority over the person in custody, consent is not a defense,” Beth said. “We all know they do fall in love sometimes, but that doesn’t make it right.”

Creating an investigative process that handles each complaint seriously yet is fair to both the inmate and employees is another challenge. Employees should understand that results from PREA investigations have only administrative and civil consequences and cannot be used in a criminal case, and that they can be fired for lying or not cooperating with an investigation. “Employees have to really feel that the outcome of the investigation is going to be honest,” Jim said. “In a vast majority of (investigations) all over the United States, probably something like 90 percent of investigations clear the employee, but they get tripped up and they get fired or they get something done to them, like days off, not because of what they did but because they lied about it.”

There are some internal investigation best practices that agencies can implement to help officers feel more comfortable with the process. “The more employees know about the process … the more likely those people are to cooperate with the investigation,” Jim said, adding that it’s important to have a plan in place to address rumors. Giving officers the basic information and then asking them not to discuss an investigation tends to help ease and control the environment. “Our suggestion is have the line supervisor talk to the shift and say, look, ‘Jim’s under investigation, it’s being handled according to our policies and procedures, the Rangers are conducting a criminal investigation, such and such is conducting an administrative violation (investigation), I would ask that you not discuss it because that is possibly a violation of the case if you want to make it fair, and when all is said and done, you’ll hear about the results.’”

Agencies should expect that a percentage of the allegations will be unsubstantiated. “We all should be concerned about false allegations. Basically, when inmates get time, that means they have nothing but time, and they are going to fill that time with anything they can figure will control their situations,” Beth said, adding that educating inmates about laws already in place to protect against those types of accusations may help deter some false claims.

But almost every agency should expect at least some complaints. A facility that doesn’t receive sexual harassment complaints from inmates or reports from employees may have a problem somewhere in its policies and procedures or institutionalized culture — either employees and inmates haven’t been properly trained on PREA or the atmosphere is so accepting of certain types of harassment that it’s not considered harassment. “Just the kind of sexual harassment that we have in the workplace, among our coworkers, if that kind of stuff is going on and nothing is being done about it, if it’s a very permissive culture among our staff, then that is going to bleed over to how we deal with inmates,” Beth said. “You should be hoping you are getting reports.”

Complying with PREA
To comply with the PREA standards, agencies will have to show they took progressive actions toward preventing sexual harassment in their facilities, and that they responded actively and appropriately to any complaints or allegations that were made. And, they will have to file annual reports about the results of their investigations, with the first set of reports possibly due in June 2011.

There are several real-life stories out there that illustrate the importance of taking action, not just because of PREA but because of the $100-million class-action lawsuit that could develop if an agency is aware of allegations and does nothing.

For instance, the District of Columbia had to pay $50 million in a class-action suit because it failed to adequately investigate claims of inmate rape. In Michigan, the Department of Corrections was forced to close many of its prisons, layoff about 30 percent of its employees and release many of its offenders after one class-action lawsuit resulted in a $100 million paycheck to the plaintiffs. “Wardens were showing up at their prison after this lawsuit was done and they were given a pinkslip and told, okay, now you have to lay off all your staff, and by the way, we are closing your institution and we are letting your inmates go,” Beth said. “The Michigan Department of Corrections had to do this massive reclassification of all their inmate population.”

The lesson from those cases, Beth said, is that agencies should use the data they will begin to collect to examine and fix the patterns of misconduct. “If you are collecting data about all the allegations in your agency, what are the things you might be seeing as a pattern? How about the same officer, the same inmate, a particular location in the facility where this stuff is happening. Those are the kinds of patterns we need to be looking at,” she said.

But some changes required or suggested by the National Prison Rape Elimination Commission could be costly for counties.

For instance, the current standards require each agency to have a fulltime PREA coordinator. Beth said she hopes that is one standard that will be revised as it’s too burdensome on agencies, but that each agency will still have to dedicate additional manpower to fulfilling the annual reporting requirements and investigating any sexual abuse allegations.

“Depending on the size of the agency, they may only say that there needs to be a point of contact in the agency,” she said.

The investigations that result from PREA complaints may also carry additional expenses. Investigators must be separate from any criminal case and must have specific training in conducting sexual abuse investigations. “We want to provide the same level of confidence, investigative expertise and crime lab facilities as we do if a lady in our community is the victim of a sexual assault,” Jim said.

Agencies will also be required to access their physical plans to look for danger spots where sexual abuse may occur. The assessment could be as simple as noticing a classroom that has paper covering up glass windows and removing the paper; it could be as pricey as purchasing video monitoring equipment for areas that do not have it already. Other standards that could end up being costly for agencies have to do with cross-gender searches and supervision. The current standards do not allow for cross-gender pat-down searches except in emergency situations and also prohibit female officers from observing male inmates in certain situations. If those standard hold, it could force smaller agencies to hire additional officers.

In general, Beth said agencies that act in good faith should be able to avoid any lawsuits that may arise from the PREA standards. “If you’ve looked at the standards … and you’re doing what you think is the right thing, you’ll be covered,” she said.