STOP PRISONER RAPE - National Center on Domestic and Sexual ...

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C. U.S. Rape and Custodial Misconduct LawsRape and sexual assault are serious crimes under the laws of all 50 U.S. states. There is noexception for when such crimes occur inside detention facilities.In addition, custodial sexual misconduct laws prohibiting sexual relations between correctionsstaff and inmates are in effect in all U.S. states except Vermont. Nevertheless, relatively fewcases of sexual violence in detention are prosecuted, because of a lack of prosecutorial will andresources. 12 The criminal penalty under custodial sexual misconduct statutes is often limitedto a fine and a one-year prison sentence, depending on the level of force used to carry out thecrime and whether it was a first offense. These low penalties contribute to prosecutors’ lackof interest in using resources to pursue them. Moreover, in several states, including Colorado,New Hampshire, and Wyoming, consent is recognized as a legal defense to custodial sexualabuse, ignoring the inherent authority corrections staff hold over detainees that makes theconcept of consent largely meaningless. 13The U.S. Department of Justice (DOJ) also has the discretion to investigate abuses and pursuecivil suits against state institutions under the Civil Rights of Institutionalized Persons Act orthe Violent Crime Control and Law Enforcement Act of 1994. 14 The DOJ may criminallyprosecute persons “acting under color of state law” for violating a prisoner’s constitutionalrights. However, these statutes are seldom used to combat sexual violence in detention.Recommendations on the U.S. Legal FrameworkIn contrast to the prevailing U.S. practice of not fully enforcing its existing laws, the CAT mandates thatdetainees held at U.S. facilities be provided with protections to ensure that they are not subjected to torture andother cruel, inhuman, and degrading treatment. Articles 2 and 16 require state parties to take effective legislative,administrative, judicial or other measures to prevent torture and cruel, inhuman, and degrading treatment. Inaddition, Article 12 provides that the competent authorities “proceed to a prompt and impartial investigation”whenever an act contrary to the CAT may have occurred.SPR calls on U.S. policymakers and law enforcement authorities to use the extensive existing U.S. legalframework to combat prisoner rape as well as conditions of detention that tend to increase its incidence.• Vermont, the only state in the U.S. without a custodial sexual misconduct statute, must enact such legislation.• Penalties for custodial sexual misconduct must be increased to appropriately reflect the severity of suchcrimes.• With the Prison Rape Elimination Act as an impetus, DOJ officials must aggressively use the arsenal oflegislation at their disposal to prosecute state corrections systems and officials involved in the sexual assault ofinmates.<strong>STOP</strong> <strong>PRISONER</strong> <strong>RAPE</strong>7
III. SYSTEMIC CONDITIONS GIVING RISE TO SEXUAL ASSAULT IN DETENTION“How was it possible, in a protective custody unit, for twogang members who had spent many years in prison to rapea vulnerable man who had never been to prison and nevercommitted a violent crime? At the time of the rape, a singleofficer was responsible for observing a day room, a diningarea, and two floors of cells with open doors. It was notpossible, at any given time, for that officer to observe the entireunit. [T]he victim [reported] that the rape took place over aforty-five minute time span, in a second floor cell, while theofficer was in the day room, where she was unable to see insidethe cells on the second floor…But in an overcrowded system,it is unlikely that prisoners of different security levels who areidentified as being in need of protective custody will be furthersegregated…”Terry Kupers, “Rape and the Prison Code,” in Prison Masculinities 113 (Don Saboet. al. eds., 2001).As the U.S. inmate population continuesto swell, the likelihood of sexual abuseincreases. Prison and jail administratorsacross the nation are failing to keeptheir populations from outpacing thecapacity of existing facilities. Partly dueto the massive influx of new inmates,many prisons and jails also fail to ensurethat non-violent, first-time offenders areseparated from potentially predatoryinmates. In addition, a ‘code of silence’that is honored by prisoners andcorrections officials alike continues tokeep prisoner rape shrouded in secrecyboth inside prisons and jails and insociety at large.A. Over-Incarceration and Prison OvercrowdingWith more than 2.2 million people behind bars, theU.S. incarcerates a larger percentage of its populationthan any other country in the world. The inmatepopulation quadrupled between 1980 and 1999. 15More than 500,000 of these prisoners are incarceratedon drug charges. 16Although public support in the U.S. for the “war ondrugs” has waned considerably in recent years, the U.S.government has continued to pursue anti-drug policiesthat lead to the incarceration of large numbers of low-leveldrug users. Exceedingly long drug sentences contributeto the current prison overcrowding and understaffing.Despite a prison building boom of nearly two decades,officials at many U.S. corrections facilities have had toconvert cafeterias and gymnasiums into dormitories. Suchsevere overcrowding creates opportunities for predators, 17as procedures for housing potential perpetrators andvictims of sexual violence separately tend to be overlookedin facilities with a shortage of beds. 18“Teresa Smith,” a mother of two and a victimof sexual abuse during childhood, began to usepowdered cocaine at age 19 and eventuallybecame addicted to crack cocaine. She wassent to prison for the first time at age 26 forpossession of stolen goods, and was in and outof prison for the next 11 years. Smith wasraped by corrections officials twice, and wasrepeatedly sexually harassed and assaultedthroughout her years in prison. She told SPR:“The prisons are so overcrowded, and theofficers take advantage of that. They see allyour weaknesses. Some of them are predators.The gym is where I slept in and there were 120women in there. There is no privacy. Thereare no partitions. There are no doors…. Whathappens when you kick the covers off in bed atnight? You have got officers walking by withflashlights looking at you. Being locked upin that kind of environment was devastating– emotionally, physically, and mentallydraining.”SPR staff in-person interview, August 2005.8IN THE SHADOWS: Sexual Violence in U.S. Detention Facilities
Page 2 and 3: IN THE SHADOWSSexual Violence in U.
Page 4: TABLE OF CONTENTSExecutive Summary
Page 8 and 9: I. INTRODUCTIONWhen photos of Unite
Page 10 and 11: INCIDENCE OF SEXUAL ASSAULT IN U.S.
Page 14 and 15: B. Lack of Proper Inmate Classifica
Page 16 and 17: of Justice Statistics highlighted s
Page 18 and 19: Many prisons have failed to impleme
Page 20 and 21: prison officials have set gay and t
Page 22 and 23: • Juvenile inmates must be housed
Page 24 and 25: B. Prosecution of Staff RareIn addi
Page 26 and 27: Recommendations on Adequate Service
Page 28 and 29: 21. Daniel Brook, The Problem of Pr

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