oversight

Women in Prison: Sexual Misconduct by Correctional Staff

Published by the Government Accountability Office on 1999-06-22.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States General Accounting Office

GAO              Report to the Honorable
                 Eleanor Holmes Norton
                 House of Representatives


June 1999
                 WOMEN IN PRISON
                 Sexual Misconduct by
                 Correctional Staff




GAO/GGD-99-104
GAO                  United States
                     General Accounting Office
                     Washington, D.C. 20548

                     General Government Division



                     B-282772

                     June 22, 1999

                     The Honorable Eleanor Holmes Norton
                     House of Representatives

                     Dear Ms. Norton:

                     As you requested, this report addresses two questions about staff-on-
                                               1
                     inmate sexual misconduct in women’s prisons:

                   • What are the applicable laws, policies, and procedures for addressing such
                     misconduct?
                   • What are the number, nature, and outcome of allegations that have been
                     made in recent years?

                     As agreed with your office, the report focuses on four jurisdictions. These
                     are the nation’s three largest correctional systems for women offenders—
                     the federal Bureau of Prisons (BOP), the California Department of
                     Corrections, and the Texas Department of Criminal Justice—and the
                     correctional system in the jurisdiction you represent, the District of
                     Columbia. At calendar year-end 1998, the 3 largest systems collectively
                     held over one-third of the nation’s approximately 80,000 female prisoners.
                     Comparatively, female offenders held by the District of Columbia
                     Department of Corrections totaled about 320 at year-end 1998. We
                     performed our work from December 1998 to May 1999 in accordance with
                     generally accepted government auditing standards. Appendix I presents
                     detailed information about our scope and methodology.

                     During the 1990s, most U.S. correctional jurisdictions have recognized that
Results in Brief     staff-on-inmate sexual misconduct is a problem that should not be
                     tolerated. As of April 1999, the federal government, 41 states (including
                     California and Texas), and the District of Columbia had passed laws
                     criminalizing certain types of staff sexual misconduct in prisons. Also,
                     most U.S. correctional systems have participated in training to help them
                     develop and implement applicable policies and procedures to address such
                     misconduct. The four correctional systems we studied have or were in the

                     1
                       Staff-on-inmate sexual misconduct can cover a wide range of inappropriate verbal, visual, and
                     physical behaviors, such as using lewd language or making sexual remarks, observing an inmate’s
                     personal activities (e.g., showering) without a sound penological reason, and engaging in sexual
                     contact or acts with or without an inmate’s consent (e.g., touching, kissing, abuse or assault,
                     intercourse, rape, etc.). Depending on its nature and applicable law, staff sexual misconduct may
                     involve either noncriminal or criminal acts.




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                         process of developing specific policies that prohibit staff sexual
                         misconduct.

                         While laws and policies could help minimize staff sexual misconduct, our
                         work in four jurisdictions indicates that such misconduct still occurs.
                         According to data provided by the 3 largest jurisdictions, during calendar
                         years 1995 to 1998, female inmates in these jurisdictions collectively made
                         a total of 506 allegations of staff sexual misconduct, of which 92 (or 18
                         percent) were sustained. Most of the sustained allegations resulted in staff
                         resignations or employment terminations. Further, the full extent of staff
                         sexual misconduct is unknown since two of the three jurisdictions (BOP
                         and Texas) did not provide data on all types of allegations. The District of
                         Columbia provided data for December 1995 to June 1998, during which 12
                         (or 11 percent) of 111 female-inmate allegations were sustained and
                         resulted in staff resignations or disciplinary actions ranging from
                         suspensions to employment terminations. Of the four jurisdictions studied,
                         only BOP reported having any criminal prosecutions with convictions
                         under sexual misconduct laws during 1995 to 1998. All four jurisdictions
                         were involved in at least two civil lawsuits related to staff sexual
                         misconduct during this period.

                         Officials in the four jurisdictions cited lack of evidence as the primary
                         reason why more allegations were not sustained. The officials told us that
                         most allegations involved verbal harassment, improper visual surveillance,
                         improper touching, and/or consensual sex. The officials noted that
                         allegations involving rape and other types of forced sexual assault were
                         relatively rare. Generally, however, none of the four jurisdictions we
                         studied had readily available, comprehensive data or reports on the
                         number, nature, and outcomes of staff-on-inmate sexual misconduct
                         allegations. The absence of such systemic data or reports makes it difficult
                         for lawmakers, corrections management, and others to effectively address
                         staff sexual misconduct issues in federal prisons.

                         We are making a recommendation to the Director, BOP, to develop
                         systems and procedures for monitoring, analyzing, and reporting
                         allegations of staff-on-inmate sexual misconduct in federal prisons.

                         Generally, “sexual misconduct by correctional staff” refers to any type of
Staff Sexual             improper conduct of a sexual nature directed at prisoners. Given the near
Misconduct Issues        total control and power imbalance inherent in a prison environment, there
Have Received            is widespread consensus among correctional officials, advocacy groups,
                         and others that sexual misconduct by correctional staff should not be
Attention in the 1990s   tolerated.



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  During the 1990s, sexual misconduct by correctional staff against female
  inmates became a matter of increased concern for many correctional
  agencies. In addition to the large increase in the female inmate population,
  this concern, according to a 1996 report by BOP’s National Institute of
                                                                              2
  Corrections (NIC), was largely driven by two sources of external pressure.
  Specifically, the 1996 report noted that, within the past 5 years:

• At least 23 departments of corrections had faced class action or individual
  damage suits related to sexual misconduct.
• Most state legislatures had passed laws either making certain types of
  sexual misconduct a criminal offense or increasing the penalties for the
  offense.

  Also, during the 1990s, the Justice Department has filed civil lawsuits
  alleging systemic sexual misconduct by male correctional staff in women’s
  prisons in two states (Arizona and Michigan). Both suits were filed in
                                                                               3
  March 1997 under the Civil Rights of Institutionalized Persons Act of 1980,
  which is designed to protect the rights of people housed in state and local
  governmental institutions, including state prisons. In March 1999, the
  Justice Department and Arizona entered into a settlement agreement,
  which among other things, requires Arizona to revise employee and inmate
  training, strengthen investigative techniques, and requires male officers to
  announce their presence—absent reasonable suspicion of inappropriate
  behavior—when entering areas in which female inmates may be
  undressed. In May 1999, the Justice Department and Michigan entered into
  a settlement agreement. According to Justice officials, in addition to
  provisions similar to the Arizona requirements, the settlement agreement
  requires Michigan to institute a 6-month moratorium on cross-gender pat-
  down searches (not an issue in Arizona).

  In 1996, the Association of State Correctional Administrators identified
  staff sexual misconduct as one of its major management concerns.
  Further, in recent years, additional attention to staff sexual misconduct
  has resulted from media focus and reports issued by various



  2
   Sexual Misconduct in Prisons: Law, Agency Responses, and Prevention, November 1996. The report
  was based on the results of a survey conducted by NIC during the summer of 1996. In its survey, NIC
  mailed a data collection instrument to federal and state agencies responsible for administering adult
  prisons. NIC received responses from 53 departments of corrections—BOP, 47 states, the District of
  Columbia, Canada, Guam, the Northern Mariana Islands, and Puerto Rico. NIC plans to update this
  survey in the summer of 1999.
  3
      P.L. 96-247 (1980).




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                                                                4                                     5
  organizations—such as Human Rights Watch and Amnesty International
                                                         6
  —and an independent fact-finder for the United Nations.

  Since 1995, a primary agenda item of NIC has been to assist correctional
  departments in addressing the issue of sexual misconduct among staff and
  inmates. For example, since October 1995, NIC has trained groups of
  correctional leaders—including members of the Association of State
  Correctional Administrators, as well as deputy directors and wardens of
  correctional facilities—to assist them in developing deliberate
  management responses as they shape policy in their agencies.

  Also, as of March 1999, NIC had provided on-site technical assistance to 3
  BOP facilities, 17 states, and the District of Columbia. According to NIC,
  during these on-site visits, NIC representatives provided assistance, such
  as

• conducting small focus groups with correctional staff and inmates to
  assess training needs and general practices within the institution,
• reviewing operational and management practices that may be contributing
  to staff isolation and vulnerability to sexual involvement, and
• providing relevant training to correctional staff.

  Further, NIC has developed a 36-hour (initially a 24-hour) seminar on
  management strategies to address staff sexual misconduct. According to
  NIC, this seminar is to be attended by three-person teams who can shape
  and implement departmental policy and procedures. Topics covered
  include policy development, training strategies, investigative procedures,
  and institutional culture. According to NIC, as of April 1999, officials from
  BOP and correctional departments in 37 states have attended the training.




  4
   Human Rights Watch, Women Rights Project, All Too Familiar: Sexual Abuse of Women in State
  Prisons (Human Rights Watch: New York, NY), December 1996. The report reflects work conducted
  during March 1994 to November 1996 at a total of 11 nonfederal prisons housing female inmates in 5
  states—California, Georgia, Illinois, Michigan, and New York—and the District of Columbia.
  5
      Amnesty International, Rights for All (March 1999).
  6
   Ms. Radhika Coomaraswamy, Report on the Mission to the United States of America on the Issue of
  Violence Against Women in State and Federal Prisons, in accordance with Commission Rights
  resolution 1997/44, January 4, 1999. The fact-finder’s report is based on visits to federal and state
  prisons in six states—California, Connecticut, Georgia, Minnesota, New Jersey, and New York.




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                          According to NIC, as recently as 1990, perhaps as few as 11 U.S.
Most Jurisdictions        correctional jurisdictions—the federal government and about 10 states—
Have Laws That            had laws specifically prohibiting certain types of staff-on-inmate sexual
Criminalize Certain       misconduct. As of April 1999, however, according to an update to a 1998
                                                                 7
                          National Women’s Law Center report:
Types of Staff Sexual
Misconduct in Prisons   • In addition to the federal government, 41 states and the District of
                          Columbia had laws specifically criminalizing certain types of sexual
                                                  8
                          misconduct in prisons.
                        • The federal government and 5 of the 41 states define certain types of
                          sexual misconduct in prisons as either a felony or a misdemeanor,
                          depending on the nature and severity of the conduct.
                        • Of the other 36 states with applicable laws, 28 states (and the District of
                          Columbia) define such conduct as a felony, and 8 states treat such conduct
                          as a misdemeanor.

                          According to the National Women’s Law Center’s 1998 report, because the
                          provisions of criminal statutes are jurisdiction specific, both the definition
                          of sexual misconduct and the penalty imposed for violations vary from
                          state to state. Further, the report noted that even if the state has no
                          criminal law specifically prohibiting sexual misconduct by correctional
                          staff, a prosecutor may apply the general sexual abuse or assault laws of
                          the state. The Center’s report also noted that inmates may file civil actions
                          for intentional infliction of emotional distress, negligence, and assault
                          and/or battery.

                          NIC, in its 1996 report mentioned above, noted that some states’ laws
                          criminalizing sexual misconduct apply to correctional staff in particular,
                          whereas other states’ laws apply to public employees generally.

                          All four jurisdictions we studied—the federal government, California,
                          Texas, and the District of Columbia—have laws criminalizing certain types



                          7
                            The April 1999 update was compiled by Brenda V. Smith (Associate Professor, Washington College of
                          Law, American University) and Giovanna Shay (Soros Justice Fellow, American Civil Liberties Union
                          National Prison Project) and had not been published at the time of our review. Professor Smith
                          authored the 1998 report while employed as the Director of the Women in Prison Project at the
                          National Women’s Law Center, An End To Silence: Women Prisoners’ Handbook on Identifying and
                          Addressing Sexual Misconduct (Washington, D.C.), April 1998.
                          8
                            According to Professor Smith and Giovanna Shay, as of April 1999, the nine states without laws
                          specifically criminalizing certain types of staff sexual misconduct were Alabama, Kentucky,
                          Massachusetts, Minnesota, Nebraska, Oregon, Pennsylvania, Utah, and Vermont. The researchers
                          noted that, although Nebraska and Vermont did not have laws, they had legislation pending.




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                                                                                                                                     9
                              of staff-on-inmate sexual misconduct. The federal law was passed in 1986,
                                                                    10      11
                              while the other three laws—California, Texas, and the District of
                                         12
                              Columbia —were passed during the mid-1990s.

                              Two of the four jurisdictions (the federal government and California)
                              define certain types of staff sexual misconduct as either a felony or a
                              misdemeanor depending on the frequency, nature, and/or severity of the
                              conduct. The other two jurisdictions (Texas and the District of Columbia)
                              define such conduct as a felony. None of the staff sexual misconduct laws
                              in the four jurisdictions list consent as a defense.

                              Whatever the scope of applicable laws, NIC suggests that departments of
Sexual Misconduct             corrections have policies that clearly define, prohibit, and specify penalties
Policies, Staff Training,     for the full range of sexual misconduct involving staff and inmates.
and Inmate Awareness
                              The four correctional jurisdictions we studied have or were in the process
Are Important                 of developing staff sexual misconduct policies. More specifically, as of
                              June 1999, BOP and the District of Columbia Department of Corrections
                              had approved policies, the Texas Department of Criminal Justice had a
                              draft policy (expected to be finalized and implemented in September
                              1999), and the California Department of Corrections was in the process of
                              developing its policy.

                              NIC also suggests that, in addition to having a clear policy, the elements of
                              a comprehensive approach to preventing staff sexual misconduct include
                              the following:

                            • a staff-training program that presents clear information on applicable laws,
                              agency policies, and penalties;
                            • a means for providing inmates with basic information about applicable
                              laws, agency policies, and penalties, including the penalties for making
                              false allegations regarding sexual misconduct; and
                            • specific procedures for handling and investigating allegations of staff
                              sexual misconduct.

                              9
                                The Sexual Abuse Act of 1986 (P.L. 99-646) (codified at 18 U.S.C. sections 2241-2244, and other
                              scattered sections).
                              10
                               California Penal Code section 289.6, “Employee or officer of detention facility; Engaging in sexual
                              activity with consenting adult confined in detention facility.”
                              11
                               Texas Penal Code, section 39.04, “Violations of the Civil Rights of Person in Custody; Improper Sexual
                              Activity with Person in Custody.”
                              12
                                   The Anti-Sexual Abuse Act of 1994 (D.C. Law 10-257) (D.C. Code section 22-4101 et seq.).




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                       Three of the four jurisdictions we studied (BOP, Texas, and the District of
                       Columbia) provide prison staff and female inmates with formal training or
                       briefings that were specifically developed to address staff sexual
                       misconduct. California Department of Corrections officials told us that
                       although prison staff are not provided with training specifically developed
                       to address staff sexual misconduct, this topic is covered during staff
                       orientation and other training. California officials also told us that although
                       female inmates are not provided training on staff sexual misconduct, they
                       are given an orientation handbook that outlines the process for reporting
                       any type of employee misconduct.

                       Further, all four jurisdictions have procedures for handling and
                       investigating allegations of staff-on-inmate sexual misconduct, including
                       when such allegations should be handled administratively or referred for
                       criminal prosecution. Generally, an internal affairs component is
                       responsible for conducting investigations and making referrals.

                       Additional information on sexual misconduct laws, policies, and
                       procedures in the four correctional jurisdictions we studied is presented in
                       appendix II.

                       Available data provided to us by the four jurisdictions we studied indicate
Staff Sexual           that staff sexual misconduct in women’s prisons is not a hypothetical
Misconduct Occurs,     issue, i.e., such misconduct does occur. The data show that during
Although the Full      calendar years 1995 to 1998:
Extent Is Unknown    • At least 92 allegations of staff sexual misconduct were sustained in the
                       three largest U.S. correctional systems. That is, the allegations resulted in
                                          13
                       staff resignations, employment terminations, or other administrative
                       sanctions.
                     • Only BOP reported having any criminal prosecutions with convictions
                       under staff sexual misconduct laws.
                     • Each of the four jurisdictions was involved in at least two civil lawsuits
                       related to staff sexual misconduct.

                       While the data indicate that staff sexual misconduct occurs, the full extent
                       of the problem is unknown. Many correctional experts believe that staff-
                       on-inmate sexual misconduct is likely underreported nationally due to the
                       fear of retaliation and vulnerability felt by female inmates. Also, as

                       13
                        Sustained allegations include applicable staff resignations that resulted during or after investigations.
                       According to correctional officials, these were cases wherein the investigations concluded that a
                       preponderance of the evidence supported the allegations that violations had occurred.




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                                          discussed more fully later in this report, the jurisdictions we studied did
                                          not have readily available, comprehensive data on the number, nature, and
                                          outcome of sexual misconduct allegations. For example, BOP and Texas
                                          provided data only on the more serious types of allegations, such as
                                          improper sexual contact and assault. These jurisdictions either did not
                                          have or could not readily compile data on allegations involving other types
                                          of sexual misconduct, such as verbal harassment and inappropriate visual
                                          surveillance.

At Least 92 Allegations of                According to data provided to us by BOP, California, and Texas officials,
                                          female inmates in these three jurisdictions collectively made a total of at
Staff Sexual Misconduct                   least 506 allegations of staff-on-inmate sexual misconduct during calendar
Were Sustained in the Three               years 1995 to 1998. As table 1 shows, 92 (or 18 percent) of the 506
Largest U.S. Correctional                 allegations were sustained; that is, the allegations resulted in staff
Systems During 1995 to                    resignations, employment terminations, or other administrative sanctions.
1998

Table 1: Staff-on-Inmate Sexual
Misconduct Allegations Reported and                                                                       Calendar years 1995 to 1998
                                                                                                         a                     b
Sustained at BOP, California, and Texas   Staff-on-inmate sexual misconduct                          BOP     California Texas       Total
Female Prisons, Calendar Years 1995 to    Number of allegations reported                               236           117      153       506
1998                                      Number of allegations sustained (staff                        22c           22       48         92
                                          resignations, employment terminations, or
                                          other administrative sanctions)
                                          Total allegations sustained as a                               9%            19%          31%      18%
                                          percentage of allegations reported
                                          Note: For each jurisdiction, some allegations reported during calendar years 1995 to 1998 may not
                                          have been fully resolved (e.g., investigated and found unsubstantiated or sustained) during those
                                          same years. Similarly, some of the allegations sustained during these years may have been filed
                                          before 1995.
                                          a
                                           BOP data represent only those allegations potentially involving sexual abuse as defined under
                                          federal law. Data on allegations involving other types of sexual misconduct—such as verbal
                                          harassment and inappropriate visual surveillance—were not readily available. Also, according to BOP
                                          officials, the data may include a small but indeterminable number of allegations that involve female
                                          staff and male inmates, female staff and female inmates, or male staff and male inmates.
                                          b
                                           Texas data represent only those allegations referred to the Office of Internal Affairs. According to
                                          Texas officials, these allegations involved the more serious types of misconduct, such as sexual
                                          contact and assault. Data on allegations involving other types of sexual misconduct—such as verbal
                                          harassment and inappropriate visual surveillance—were not readily available.
                                          c
                                              Also, 14 of the 22 sustained allegations resulted in criminal prosecutions with convictions.
                                          Source: GAO summary of BOP, California Department of Corrections, and Texas Department of
                                          Criminal Justice data.


                                          District of Columbia officials could not readily provide us with data on
                                          allegations for the entire 4-year period, 1995 to 1998. Rather, according to
                                          an official from the District’s Office of the Corporation Counsel, for the
                                          period December 1995 to June 1998, female inmates in the District made
                                          111 allegations of staff sexual misconduct, of which 12 (or 11 percent)



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                                                    14
                            were sustained. The official could not readily provide information on the
                            nature or outcome of the allegations but noted that sustained allegations
                            resulted in either staff resignations or disciplinary actions ranging from
                            suspensions to employment terminations.

                            Officials in the four jurisdictions we studied cited lack of evidence as the
                            primary reason why the number of sustained allegations was relatively
                            small compared to the total number of reported allegations. The officials
                            explained that medical or other physical evidence frequently was not
                            available and, thus, investigators were often faced with instances of “she
                            said versus he said.” The officials told us that another reason why more
                            allegations were not sustained was that many allegations were false
                            assertions made by inmates in an attempt to manipulate the system and
                            victimize staff.

Federal Bureau of Prisons   The 22 allegations BOP sustained during 1995 to 1998 resulted in 18 staff
                            resignations, 3 employment terminations, and 1 staff reassignment. As
                            noted in table 1, each of the 22 allegations involved sexual abuse—which,
                            by definition, is potentially criminal conduct. In fact, 14 of the 22
                            allegations sustained also resulted in criminal prosecutions with
                            convictions. The 14 prosecution cases consisted of (1) the 3 employment
                                                                                             15
                            termination cases and (2) 11 of the 18 staff resignation cases.

                            Regarding the other seven staff resignation cases, BOP officials told us
                            that six of the seven employees resigned without any adverse personnel
                                                                     16
                            action being recorded in personnel files. Information provided to us by
                            BOP indicates that two of the seven allegations had elements of forced
                            sexual contact, whereas the other five cases perhaps involved consensual
                            sex—which, nonetheless, can be a criminal offense under federal law. A
                            BOP official noted that BOP does maintain a database of staff who resign
                            while under investigation and that BOP checks the database for rehiring
                            purposes.

California Department of    The 22 allegations California sustained during 1995 to 1998 resulted in 12
Corrections                 staff resignations, 4 employment terminations, and 6 other types of
                            administrative sanctions being imposed (i.e., a letter of instruction, a pay

                            14
                             According to the Corporation Counsel official, the female-inmate allegations of staff sexual
                            misconduct may include a small but insignificant number of allegations involving female correctional
                            staff.
                            15
                                 The nature and outcome of the 14 prosecution cases are discussed later in this report.
                            16
                             One of the seven employees who resigned worked for the U.S. Forest Service. He allegedly abused a
                            BOP female inmate assigned to a work detail.




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                               reduction, and 4 unspecified adverse personnel actions). California
                               officials could readily provide information on the nature of only the five
                               allegations that were sustained during 1998. Of the five sustained
                               allegations during that year, three resulted in resignations—two involving
                               “overfamiliarity,” including the exchange of personal information (address
                               and telephone number) and one involving alleged sexual intercourse—and
                               two resulted in terminations (involving improper touching).

                               California Department of Corrections officials told us that in each of its 12
                               cases that resulted in resignations, the accused staff member resigned
                               while under investigation. The officials noted, however, that the
                               employees’ personnel files were documented with one of the following
                               annotations: “resigned under adverse circumstances,” “resigned with
                               fault,” or “resigned with prejudice.” California officials noted that since
                               late calendar year 1998, all department investigations, including those
                               during which staff members exercise their right to resign, are to be
                               continued to resolution and, if warranted, the results recorded in
                               personnel files.

Texas Department of Criminal   As table 1 also shows, Texas had the most sustained allegations (48)
Justice                        during the 4-year period, accounting for about 52 percent of the 92 total.
                               Among these three jurisdictions, at 31 percent, Texas also had the highest
                               figure for total allegations sustained as a percentage of allegations
                               reported.

                               Texas Office of Internal Affairs officials could readily provide information
                               on only the 11 allegations sustained during 1998. For that year, the 11
                               allegations involved consensual sex or other inappropriate sexual
                               contact—which can be criminal offenses under Texas law—and resulted in
                               employee resignations or terminations. The officials told us that most of
                               the 11 sustained allegations resulted in the employee resigning either
                               during the investigation or when he found out he would be terminated. The
                               officials told us that regardless of whether the employees resigned or were
                               terminated, Internal Affairs completed the investigations and documented
                               the outcome in personnel files. The officials also told us that in each of the
                               11 cases, a “no rehire letter” was put in the employee’s file.

                               Texas Internal Affairs officials told us that, although detailed information
                               was not readily available for allegations filed during 1995 to 1997, most of
                               these allegations involved consensual sex or other inappropriate sexual
                               contact. The officials also told us that, similar to the allegations sustained
                               during 1998, most, if not all of the allegations sustained during 1995 to 1997
                               resulted in employee resignations or terminations.



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Only BOP Reported              As previously mentioned, all four of the jurisdictions we studied have laws
                               that specifically criminalize certain types of staff-on-inmate sexual
Criminal Prosecutions With     misconduct. Officials in all four jurisdictions told us that criminal
Convictions                    prosecutions can be initiated even if the staff member resigns. However,
                               only BOP reported having any criminal prosecutions with convictions
                               under applicable laws during calendar years 1995 to 1998. BOP provided us
                               with summary information for the 14 cases that resulted in prosecutions
                               with convictions during this period. The summary information shows that
                               the allegations involved male staff at seven different BOP facilities and
                               included having sex with an inmate, having sex in exchange for money,
                               sexual abuse, and forced sexual assault (i.e., rape). BOP provided the
                               following sentencing information for the 14 cases:

                             • Seven convictions resulted in sentences of incarceration ranging from 3 to
                               232 months.
                             • Six convictions resulted in sentences of probation ranging from 12 to 60
                               months, of which, 1 conviction also included home confinement.
                             • One conviction resulted in a sentence of 3-months home confinement.

                               In addition to incarceration, probation, and home confinement, 10 of the
                               14 sentences included fines or restitution ranging from $25 to $5,000. Other
                               sentencing provisions included community service and supervised release.
                               Regardless of whether incarceration was or was not a sentencing
                               provision, as previously mentioned, the 14 convicted staff members either
                               resigned or BOP terminated their employment.

                               BOP’s Office of Internal Affairs generates quarterly status reports on
                               criminal investigations involving staff-on-inmate sexual misconduct and
                               provides these reports to BOP’s Office of General Counsel.

                               In California, at the time of our review, no cases involving alleged staff-on-
                               inmate sexual misconduct were under investigation by cognizant
                               prosecution authorities. However, the other two jurisdictions did have
                               open or ongoing investigations at the time of our review. Specifically, in
                               Texas, local district attorney’s offices were considering three cases for
                               possible prosecution; and, in the District of Columbia, the U.S. Attorney’s
                               Office was considering six cases.




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Civil Lawsuits Related to   In addition to resignations, employment terminations, other administrative
                            sanctions, and criminal prosecutions, staff-on-inmate sexual misconduct at
Staff Sexual Misconduct     female prisons may result in civil lawsuits. According to summary
Were Filed in All Four      information provided to us by BOP, during 1995 to 1998, BOP was involved
Jurisdictions               in 14 civil lawsuits. Of these 14 cases, 4 had been closed or dismissed, 3
                            had been settled, and 7 were still pending at the time of our review. In one
                            of the cases settled, BOP agreed to pay three women $500,000 to end a
                            lawsuit in which the women claimed they had been beaten, raped, and sold
                            by guards for sex with male inmates.

                            According to California Department of Corrections officials, the
                            department was involved in two civil lawsuits related to staff sexual
                            misconduct during 1995 to 1998. In one case, settled in 1996, the
                            department agreed to pay the plaintiff and her attorneys $73,000 to end a
                            lawsuit that alleged forced sexual intercourse, among other things. The
                            other lawsuit—alleging sexual harassment, assault, improper touching,
                            and lewd sexual remarks—was still pending at the time of our review.
                            However, according to department officials, the employee was terminated
                            in 1997 for behavior not specifically related to the lawsuit.

                            Since 1995, the Texas Department of Criminal Justice has been involved in
                            four civil lawsuits related to sexual assault claims by female inmates
                            against male correctional staff, according to information provided us by
                            the Law Enforcement Defense Division, Texas Office of the Attorney
                            General. One of the lawsuits, filed by a female inmate in 1996, was closed
                            in 1997 based on the federal district court’s granting of a motion to
                            dismiss. The other three lawsuits, each filed in 1998, were still open at the
                            time of our review. One of these 3 open lawsuits was filed on behalf of 12
                            plaintiff female inmates, who alleged that they had been sexually
                            assaulted. The other two open lawsuits each involved one plaintiff, i.e., a
                            different female inmate in each case.

                            The District of Columbia Department of Corrections has had long-standing
                            problems involving allegations of sexual misconduct by correctional staff.
                            For example, in October 1993, female inmates filed suit in federal district
                            court, alleging various violations of constitutional rights, including an
                            allegation that the Department of Corrections failed to protect them
                                                                                              17
                            against sexual harassment, sexual assault, and rape by guards. A result of
                            this lawsuit was that, in December 1994, the Department of Corrections
                            17
                             Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 877
                            F. Supp. 634 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995), vacated in
                            part, remanded by 93 F. 3d 910 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1552 (1997), on remand, 968 F.
                            Supp. 744 (D.D.C. 1997).




                            Page 12                             GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                           B-282772




                           was required by court order to develop a policy, provide staff and inmates
                           with training, and take other appropriate steps to prevent and remedy staff
                           sexual misconduct. The department implemented its initial sexual
                           misconduct policy in March 1995.

                           In September 1995, female inmates performed a striptease for a group of
                           predominantly male correctional staff, according to an official from the
                           District’s Office of the Corporation Counsel. The official noted that based
                           on this incident (1) four correctional officers were fired and six were
                           suspended without pay and (2) four civil lawsuits were filed, all of which
                           were pending at the time of our review. The official told us that no other
                           civil lawsuits were filed or ongoing from 1995 to 1998.

Justice                    According to the cognizant NIC official, a nationally recognized expert on
BetterDepartment
        Monitoringandand   sexual misconduct in correctional facilities, both the reporting of staff-on-
Arizona Reached a
Analysis Could Help        inmate sexual misconduct allegations and the breadth of investigations
Settlement Agreement
Address Staff        in
                Sexual     have improved in many jurisdictions during the 1990s. The official noted,
March  1999
Misconduct                 however, that most U.S. correctional systems still do not adequately
                           capture or track data related to such allegations. The absence of adequate
                           information systems makes it difficult to monitor the incidence of sexual
                           misconduct, to keep track of allegedly abusive employees or those who
                           have been found to have violated prison rules and/or criminal law, and to
                           identify corrective actions needed to help prevent such misconduct.

                           As previously mentioned, the four jurisdictions we studied generally had
                           no readily available, comprehensive data or reports on the number, nature,
                           and outcomes of staff-on-inmate sexual misconduct allegations. Rather, in
                           response to our inquiries for such information, corrections officials
                           conducted file reviews or undertook other manual efforts rather than rely
                           on management information systems or other centralized sources.

                           BOP’s Office of Internal Affairs is responsible for tracking both
                           noncriminal and potentially criminal allegations of staff-on-inmate sexual
                                                            18
                           misconduct in federal prisons. However, information on all allegations
                           was not readily available from BOP’s tracking system. For example,
                           Internal Affairs officials could not readily differentiate allegations of
                           noncriminal sexual misconduct—involving, for example, indecent
                           language—from other types of allegations classified as “unprofessional
                           conduct.” Consequently, BOP did not provide us with any information on
                           noncriminal allegations. According to BOP officials, while such

                           18
                             The Justice Department’s Office of the Inspector General is to review all cases and investigate those
                           involving suspected criminal activity.




                           Page 13                            GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
B-282772




information is not readily available from BOP’s tracking system,
noncriminal allegations are routinely reported and investigated.

Also, BOP’s legal database could not readily differentiate lawsuits
involving staff-on-inmate sexual misconduct from other lawsuits.
Consequently, in response to our request, BOP obtained this information
from each of its six regional offices. BOP officials told us that before our
inquiries, BOP had awarded contracts for databases that, when
implemented, will allow Internal Affairs and legal officials to perform data
searches by name, subject matter, and other items.

California Department of Corrections officials told us that the
department’s current system does not provide a format for distinguishing
staff sexual misconduct from other types of staff misconduct.
Consequently, in response to our request, the department contacted each
of California’s five prisons housing female inmates to obtain information
on the number and outcome of staff-on-inmate sexual misconduct
allegations. Also, department officials told us that providing specific
information or examples on the nature of allegations (e.g., verbal
harassment, improper touching, and/or rape) was impractical, since it
would require a thorough reading of all allegations or complaints filed as
                                                                        19
staff misconduct to identify those involving staff sexual misconduct. In
response to our request, department officials reviewed files and provided
information on the nature of the five allegations sustained during 1998.

The Texas Department of Criminal Justice provided information on only
those staff sexual misconduct allegations that were referred to the
department’s Internal Affairs Division by prison wardens. According to
Internal Affairs officials, these allegations generally involved the more
serious types of misconduct, such as sexual contact and assault. The
officials noted that allegations involving other types of sexual
misconduct—such as verbal harassment and inappropriate visual
surveillance—are usually handled administratively by prison wardens and,
consequently, information on these allegations is not readily available.

Further, Texas Internal Affairs Division officials told us that information
on the allegations referred by wardens to Internal Affairs was not readily
available or extractable from the department’s systems or databases.
Consequently, to obtain information on the number of staff sexual
misconduct allegations filed and sustained during calendar years 1995 to
1998, the department conducted a case-by-case search of all allegations
19
     In California’s correctional system, inmate allegations or complaints are referred to as “appeals.”




Page 14                                GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
              B-282772




              filed under improper employee-inmate relationships. In response to our
              request, department officials reviewed files and provided information on
              the nature and outcome of cases sustained during calendar year 1998.
              However, the department could not readily determine the nature and
              results or outcomes of the allegations sustained during calendar years 1995
              to 1997, because, according to department officials, providing such
              information would require a time-consuming review of case files.

              As previously mentioned, District of Columbia officials could not readily
              provide us with data on the number, nature, or outcome of staff sexual
              misconduct allegations during the 4-year period, 1995 to 1998. Rather,
              District officials provided us with information on the number of allegations
              filed and sustained for the period December 1995 to June 1998. Also, the
              Department of Corrections has been required by court order since
              December 1994 to (1) notify the Metropolitan Police Department about any
              allegation involving unwelcome sexual intercourse or unwelcome sexual
              touching, (2) communicate with the police department concerning the
              status of any investigations of these allegations, and (3) periodically
                                                             20
              document the status of police investigations. However, in response to our
              initial inquiries, the Department of Corrections did not have any current or
              readily available information on the status of police investigations. In
              response to our follow-up inquiries, the Department of Corrections
              obtained investigation status information from the Metropolitan Police
              Department.

              Further, all four jurisdictions we studied did not routinely analyze data on
              staff sexual misconduct allegations or generate management reports to
              identify potential trends or problem areas. Correctional officials in these
              jurisdictions told us that the current systems used to capture sexual
              misconduct data do not facilitate subsequent analyses and reports.

              Recognizing the need for better data and management systems to address
              staff sexual misconduct issues, NIC began offering training in this area in
              1996. NIC suggests that important data to capture, monitor, and analyze
              include the facility in which the alleged incident occurred; the date, time,
              and place of the alleged incident; the name of the complainant and
              respondent(s); and the nature of the incident.

              Because many female inmates may be reluctant or unwilling to report staff
Conclusions   sexual misconduct and jurisdictions lack systematic data collection and

              20
                The District of Columbia Department of Correction’s October 1997 policy on sexual misconduct
              against inmates requires that the status of police investigations be documented every 30 days.




              Page 15                           GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                        B-282772




                        analysis of reported allegations, the overall extent of staff-on-inmate
                        sexual misconduct in female prisons is largely unknown. However, prior
                        research and our work indicate that such behavior can and does occur.
                        Moreover, there is widespread consensus that sexual misconduct by
                        correctional staff should not be tolerated. While applicable laws, policies,
                        and procedures would not eliminate staff sexual misconduct, these tools
                        could help minimize the incidence of such behavior. For the most part, the
                        jurisdictions we studied do have these tools.

                        None of the four jurisdictions we studied had readily available,
                        comprehensive data or reports on the number, nature, and outcomes of
                        staff-on-inmate sexual misconduct allegations. The systemic absence of
                        such data or reports makes it difficult for lawmakers, correctional system
                        managers, relevant federal and state officials, inmate advocacy groups,
                        academicians, and others to effectively address staff sexual misconduct
                        issues. For example, without such data or reports, correctional system
                        managers cannot effectively monitor the incidence of staff sexual
                        misconduct, keep track of allegedly abusive employees, and identify
                        corrective actions needed to help minimize such misconduct. Also, absent
                        better management information systems and more comprehensive data, it
                        remains unclear the extent to which laws are routinely enforced and
                        policies and procedures are followed. Accordingly, this is an area wherein
                        NIC began providing training in 1996.

                        We recommend that the Director of BOP develop systems and procedures
Recommendation to       to
the Director, BOP
                      • monitor and analyze allegations of staff sexual misconduct in federal
                        prisons and
                      • periodically report results to the Justice Department’s Office of the
                        Inspector General and to appropriate BOP officials (e.g., senior managers
                        and wardens).

                        These analyses and reports should be in sufficient detail to identify and
                        monitor trends and determine whether any corrective actions are needed.
                        For instance, the analyses and reports should quantify all categories of
                        alleged staff sexual misconduct, including allegations of unprofessional or
                        noncriminal conduct, as well as allegations involving potentially criminal
                        conduct.

                        On May 26, 1999, we provided a draft of this report for review and
Agency Comments and     comment to the Department of Justice, BOP, the California Department of
Our Evaluation

                        Page 16                   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
B-282772




Corrections, the Texas Department of Criminal Justice, and the District of
Columbia Department of Corrections.

On June 3, 1999, Justice’s Audit Liaison Office (Justice Management
Division) orally advised us that (1) the draft had been reviewed by
Justice’s Office of the Deputy Attorney General, the Office of the Inspector
General, and the Civil Rights Division and (2) these reviewers generally
had no specific comments on the information presented in the draft.
However, Justice’s Civil Rights Division provided updated information
regarding a civil lawsuit. That is, the division informed us that, in May
1999, the Justice Department and Michigan entered into an agreement to
settle a civil lawsuit related to sexual misconduct by male correctional
staff in the state’s prisons for women. This information has been
incorporated in this report where appropriate.

In its written comments dated June 3, 1999, BOP concurred with our
recommendation that BOP develop systems and procedures for
monitoring, analyzing, and reporting allegations of staff-on-inmate sexual
misconduct. The Director of BOP noted that, as stated in our draft, BOP
has begun the process for acquiring a new, more sophisticated database.
According to the Director, this database is expected to be operational by
the end of calendar year 1999, and when fully implemented, will (1) allow
better sorting and analysis of allegations of staff sexual misconduct and (2)
enable BOP to improve its monitoring and identification of potential
trends. During the period June 2-4, 1999, we also received oral comments
from BOP indicating that the draft was reviewed by BOP’s Office of
Internal Affairs, Office of General Counsel, Correctional Programs
Division, and NIC. These components provided technical comments and
suggestions, which have been incorporated in this report where
appropriate.

During the period June 2-7, 1999, the California Department of Corrections,
the Texas Department of Criminal Justice, and the District of Columbia
Department of Corrections provided either oral or written technical
comments and clarifications, which have been incorporated in this report
where appropriate.

As arranged with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days after the
date of this report. At that time, we will send copies to Representative
Henry Hyde, Chairman, and Representative John Conyers, Ranking
Minority Member, House Judiciary Committee; and to Senator Orrin Hatch,
Chairman, and Senator Patrick Leahy, Ranking Minority Member, Senate



Page 17                   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
B-282772




Judiciary Committee. We will also send copies of this report to: The
Honorable Janet Reno, Attorney General; The Honorable Kathleen Hawk
Sawyer, Director, BOP; Mr. C.A. “Cal” Terhune, Director, California
Department of Corrections; Mr. Wayne Scott, Executive Director, Texas
Department of Criminal Justice; Mr. Odie Washington, Acting Director,
District of Columbia Department of Corrections; and other interested
parties. Copies will also be made available to others upon request.

The major contributors to this report were Danny Burton, Assistant
Director; Eric Erdman, Evaluator-in-Charge; Kay Muse, Senior Evaluator;
and Geoffrey Hamilton, Senior Attorney. Please contact me on (202) 512-
8777 if you or your staff have any questions about this report.


Sincerely yours,




Norman J. Rabkin
Director
Administration of Justice Issues




Page 18                  GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Page 19   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Contents



Letter                                                                                                    1


Appendix I                                                                                               22
                         Overview Perspectives                                                           22
Scope and                Four Correctional Systems Studied                                               22
Methodology              Limitations and Clarifications                                                  23


Appendix II                                                                                              25
                         Federal Bureau of Prisons                                                       25
Laws, Policies, and      California Department of Corrections                                            27
Procedures Related to    Texas Department of Criminal Justice                                            29
                         District of Columbia Department of Corrections                                  30
Staff-on-Inmate Sexual
Misconduct in Four
U.S. Correctional
Jurisdictions
Tables                   Table 1: Staff-on-Inmate Sexual Misconduct Allegations                           8
                           Reported and Sustained at BOP, California, and Texas
                           Female Prisons, Calendar Years 1995 to 1998




                         Abbreviations

                         BOP           Bureau of Prisons
                         NIC           National Institute of Corrections




                         Page 20                    GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Page 21   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Appendix I

Scope and Methodology


                          To obtain overview perspectives regarding staff-on-inmate sexual
Overview Perspectives     misconduct, we conducted a literature search and also contacted the
                          National Institute of Corrections (NIC), a component of the federal Bureau
                          of Prisons (BOP) that provides assistance to federal, state, and local
                          corrections agencies working with adult offenders. In recent years, NIC
                          has focused on staff-on-inmate sexual misconduct issues and has provided
                          extensive training to federal and state correctional system personnel.

                          Also, we contacted the National Women’s Law Center (Washington, D.C.),
                          a nonprofit organization that has been working since 1972 to advance and
                          protect women’s legal rights. In 1990, the center initiated a project to
                          address problems confronting women prisoners. As part of this project, in
                          1998, the center produced an educational manual designed for
                          incarcerated women and others concerned about sexual misconduct in
                                                    1
                          correctional institutions.

                          To obtain additional perspectives regarding staff sexual misconduct at
                          female prisons, we contacted the Department of Justice’s Civil Rights
                          Division, which is responsible for investigations and litigation under the
                                                                                2
                          Civil Rights of Institutionalized Persons Act of 1980. According to the
                          Justice Department, investigations are initiated when there is reason to
                          believe that serious, systemic, unconstitutional conditions exist at a facility
                                                   3
                          covered by the statute. Investigations and related actions can involve
                          general conditions of confinement, such as inadequate fire safety, poor
                          sanitation, improper use of restraints, inadequate medical and mental
                          healthcare, and staff sexual misconduct.

                          As agreed with the requester, to obtain specific information about (1)
Four Correctional         applicable laws, policies, and procedures and (2) the number, nature, and
Systems Studied           outcomes of allegations made in recent years, we focused on four
                          correctional systems—BOP, the California Department of Corrections, the
                          Texas Department of Criminal Justice, and the District of Columbia
                          Department of Corrections. The first three are the nation’s largest
                          correctional systems for female offenders. At calendar year-end 1998,
                          approximately

                        • 9,200 female inmates were in federal prisons,
                          1
                           National Women’s Law Center, An End to Silence: Women’s Prisoners Handbook on Identifying and
                          Addressing Sexual Misconduct, April 1998.
                          2
                              P.L. 96-247 (1980).
                          3
                           This act is designed to protect the rights of people housed in state and local governmental
                          institutions, including state prisons.




                          Page 22                            GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                    Appendix I
                    Scope and Methodology




                  • 11,500 female prisoners were under the jurisdiction of the California
                    Department of Corrections, and
                  • 10,700 female prisoners were under the jurisdiction of the Texas
                    Department of Criminal Justice.

                    In 1998, these three correctional systems held over one-third of the
                    nation’s approximately 80,000 female prisoners. At calendar year-end 1998,
                    about 320 female offenders were under the jurisdiction of the District of
                    Columbia Department of Corrections.

                    Our contacts included officials in (1) BOP’s Office of Internal Affairs,
                    Office of General Counsel, and Correctional Programs Division; (2) the
                    California Department of Corrections’ Institutions Division and Internal
                    Affairs Division; (3) the Texas Department of Criminal Justice’s Internal
                    Affairs Division; and (4) the District of Columbia Department of
                    Corrections’ Office of the Deputy Director for Institutions and the
                    District’s Office of the Corporation Counsel (Special Litigation Division).
                    We reviewed applicable statutes; policy documents and operations
                    manuals; inmate orientation handbooks; and available statistics (for
                    calendar years 1995 to 1998) regarding the number of allegations filed and
                    the number sustained (i.e., allegations that resulted in staff resignations,
                    employment terminations, or other administrative sanctions). Further, we
                    inquired about the number and outcomes or status of criminal
                    prosecutions with convictions and civil lawsuits alleging staff-on-inmate
                    sexual misconduct.

                    The scope of our work did not include (1) interviewing inmates, (2) testing
Limitations and     or confirming whether applicable policies for reporting and investigating
Clarifications      sexual misconduct were being followed in actual practice, or (3) reviewing
                    the merits of allegations or the appropriateness of outcomes or
                    disciplinary actions.

                    Further, except for some civil lawsuits that are public records,
                    correctional officials did not provide us information identifying either the
                    individuals who filed allegations of sexual misconduct or the correctional
                    staff who allegedly engaged in the prohibited behaviors. Thus, we did not
                    specifically determine whether a relatively few inmates were responsible
                    for making multiple or repeated allegations against relatively few or the
                    same correctional staff.

                    Also, we did not independently verify information provided to us by
                    corrections officials regarding the number, nature, and outcomes of sexual
                    misconduct allegations made by female inmates during calendar years



                    Page 23                   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Appendix I
Scope and Methodology




1995 to 1998. However, we did obtain annual statistics that do add to the 4-
year totals presented in table 1. Also, the information we reported
regarding the nature and outcomes of allegations is based on written
responses provided to us by corrections officials. These responses,
according to senior corrections officials, were compiled by applicable
program staff and were reviewed by applicable managers before being
provided to us.

Finally, as previously mentioned, “sustained” allegations include applicable
staff resignations that resulted during or after investigations. According to
correctional officials, these were cases wherein the investigations
concluded that a preponderance of the evidence supported the allegations
that violations had occurred.




Page 24                   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Appendix II

Laws, Policies, and Procedures Related to
Staff-on-Inmate Sexual Misconduct in Four
U.S. Correctional Jurisdictions
                    This appendix presents information about staff-on-inmate sexual
                                1
                    misconduct laws, policies, and procedures regarding women’s prisons in
                    four correctional jurisdictions—the federal Bureau of Prisons (BOP), the
                    California Department of Corrections, the Texas Department of Criminal
                    Justice, and the District of Columbia Department of Corrections.

                    At the federal level, criminal offenses enacted by the Sexual Abuse Act of
Federal Bureau of                                                                        2
                    1986 are the primary laws covering staff-on-inmate sexual abuse. Under
Prisons             the act, a staff person who engages in a sexual act with an inmate is
                    criminally liable. Consent is not listed in the statute as a defense to
                                                                                 3
                    criminal prosecution. According to an April 1999 survey, the federal
                    government is one of the few jurisdictions that does not define all cases of
                    staff sexual assault in prisons as a felony. Rather, misconduct is defined as
                    either a felony or a misdemeanor, depending on the nature and severity of
                    the assault.

                    According to BOP officials, since 1973, BOP’s “standards of employee
                    conduct” has covered inappropriate staff relationships with inmates. The
                    officials noted that in 1996, BOP modified its standards to prohibit an
                    employee from engaging in, or allowing another person to engage in,
                    sexual behavior with an inmate.

                    In 1995, BOP approved a sexual misconduct policy that primarily
                    addressed inmate-on-inmate sexual misconduct. In December 1997, BOP
                    updated its policy to include instances of staff-on-inmate sexual
                    misconduct and to present more detailed mental health treatment
                    protocols for victims. The 1997 policy update defines staff-on-inmate
                    sexual misconduct as “engaging in, or attempting to engage in a sexual act
                    with any inmate or the intentional touching . . . with the intent to abuse,
                    humiliate, harass, degrade, arouse, or gratify the sexual desire of any
                    person.” As with applicable federal law in which consent is not listed as a


                    1
                      Staff-on-inmate sexual misconduct can cover a wide range of inappropriate verbal, visual, and
                    physical behaviors, such as using lewd language or making sexual remarks, observing an inmate’s
                    personal activities (e.g., showering) without a sound penological reason, and engaging in sexual
                    contact or acts with or without an inmate’s consent (e.g., touching, kissing, abuse or assault,
                    intercourse, rape, etc.). Depending on its nature and applicable law, staff sexual misconduct may
                    involve either noncriminal or criminal acts.
                    2
                      The Sexual Abuse Act of 1986 (P.L. 99-646) (codified at 18 U.S.C. sections 2241-2244 and other
                    scattered sections). The laws address aggravated sexual abuse, sexual abuse, sexual abuse of a minor
                    or ward, and abusive sexual contact.
                    3
                      The April 1999 survey was conducted by Brenda V. Smith (Associate Professor, Washington College of
                    Law, American University) and Giovanna Shay (Soros Justice Fellow, American Civil Liberties Union
                    National Prison Project) and had not been published at the time of our review.




                    Page 25                            GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Appendix II
Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
Correctional Jurisdictions




defense, the 1997 policy update also provides that any sexual act between
staff and inmates is prohibited, even when no objections are raised.

BOP’s current policy does not cover the full range of staff sexual
misconduct, but an update of the policy is planned for late 1999. That is,
currently, while sexual acts and improper touching are covered, the policy
does not mention other types of misconduct, including, for example,
indecent sexual language or gestures and inappropriate visual surveillance.
According to BOP officials, although such behaviors are not covered by
BOP’s sexual misconduct policy, these behaviors are included under a
more encompassing category in BOP’s standards of employee conduct.
While the standards do not specifically define or prohibit staff sexual
misconduct, BOP training documents indicate that these other types of
misconduct are defined and discussed during staff training. Also,
according to BOP officials, before our inquiries, BOP had planned to
update its sexual misconduct policy in late 1999 to cover noncriminal
sexual behavior, such as indecent, profane, or abusive language or
gestures and inappropriate visual surveillance of inmates.

Key elements of BOP’s 1997 sexual misconduct policy include (1)
educating and training staff and inmates; (2) safeguarding, assessing,
treating, and managing sexually assaulted inmates; and (3) investigating,
disciplining, and/or prosecuting perpetrators of sexual assault.

BOP’s policy requires that all staff be trained to recognize signs of sexual
assault, understand the identification and referral process, and have a
basic understanding of sexual assault prevention and response techniques.
In 1998, BOP began training its staff regarding staff-on-inmate sexual
misconduct, and it plans to continue such training in future years during
required annual refresher courses. Specialized training is also required for
staff who are likely to be most involved in the treatment or management of
sexually assaulted inmates, such as health and psychology services staff.
Further, the Director of BOP has addressed BOP’s zero tolerance towards
staff sexual misconduct during training and briefings to senior BOP
officials. According to BOP officials, before 1998, the topic of staff sexual
misconduct was covered during other staff training.

BOP’s policy also requires that inmate education include information
about (1) how inmates can protect themselves from becoming victims
while incarcerated, (2) treatment options available to victims of sexual
assault, and (3) methods of reporting incidents of sexual assault.
According to BOP, each inmate is also provided a handbook that details
BOP’s policy and explains the process for filing sexual misconduct



Page 26                        GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                        Appendix II
                        Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
                        Correctional Jurisdictions




                        complaints. The handbook describes the various methods inmates can use
                        to report allegations of staff sexual misconduct—i.e., directly to a facility
                        staff member, the warden, a chaplain, the applicable BOP regional office,
                        and/or the Justice Department’s Office of the Inspector General. According
                        to BOP policy, after reporting an allegation, the complainant should be
                        referred for a medical examination and offered immediate protection.

                        BOP’s Office of Internal Affairs is responsible for tracking all sexual
                                                 4
                        misconduct allegations. The Justice Department’s Office of the Inspector
                        General is to review all cases and investigate those involving suspected
                        criminal activity. If warranted, the Inspector General’s Office can refer
                        cases to the U.S. Attorney’s Office for prosecution. Cases not involving
                        criminal activity are to be returned to BOP’s Office of Internal Affairs for
                        an administrative investigation, which can result in various types of
                        disciplinary action.

                        California state law related to staff sexual misconduct specifically defines
California Department                              5
                        prohibited sexual activity. Under this law, correctional staff who engage in
of Corrections          sexual activity with an inmate are criminally liable. Consent is not a
                        defense to criminal prosecution for this offense. The first violation of this
                        offense is considered a misdemeanor and any subsequent violation of this
                        offense is a felony.

                        California Department of Corrections policy documents do not specifically
                        or separately cover staff-on-inmate sexual misconduct. Rather, California
                        Department of Corrections officials told us that such behaviors are
                        included under a more-encompassing category of “employee misconduct,”
                        as presented in Title 15 of the California Code of Regulations and the
                        department’s Operations Manual. According to the manual, allegations of
                        “serious” employee misconduct—which include having intimate
                        relationships with an inmate—are to be investigated by the department’s
                        Office of Internal Affairs. If sustained by Internal Affairs, these serious
                        allegations are to be referred to (1) the applicable warden, who can impose
                        administrative sanctions (adverse personnel actions) ranging from an
                        official reprimand to employment termination and/or (2) the local district
                        attorney’s office for criminal prosecution. Allegations of less serious or
                        performance-related conduct—such as becoming overly familiar with an
                        inmate (e.g., sharing a lunch with an inmate)—are subject to a fact-finding


                        4
                            BOP, Program Statement 1210.17, “Office of Internal Affairs,” August 4, 1997.
                        5
                         California Penal Code, section 289.6, “Employee or officer of detention facility; Engaging in sexual
                        activity with consenting adult confined in detention facility.”




                        Page 27                               GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
  Appendix II
  Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
  Correctional Jurisdictions




  inquiry conducted by a staff person assigned by the warden or other
  appropriate authority.

  According to California Department of Corrections officials, although
  prison staff are not provided with training specifically developed to
  address staff sexual misconduct, this topic is covered during staff
  orientation and other training. The officials told us that female inmates are
  not provided formal training to assist them in recognizing, handling, and
  reporting staff sexual misconduct. The officials noted, however, that
  female inmates are given an orientation handbook that outlines the
  process for reporting any type of employee misconduct. In January 1999,
  the department appointed an ombudsman—reporting directly to the Chief
  Deputy Director, Field Operations—to oversee conditions in female
  prisons and to serve as a focal point for the most sensitive complaints and
  issues.

  In March 1999, senior officials from the California Department of
  Corrections attended NIC training on staff-on-inmate sexual misconduct.
  Based on information presented at this training, according to California
  officials, the department has adopted a three-pronged approach to the
  issue of staff sexual misconduct as follows:

• First, a bill drafted by the department has been submitted to the California
  legislature to increase the penalties for staff sexual misconduct and
  expand the scope of proscribed activities under the law.
• Second, in April 1999, the Director, California Department of Corrections,
  distributed a memorandum to all staff emphasizing the department’s “zero
  tolerance” towards employees engaging in sexual misconduct with inmates
  and parolees. Also, as of May 1999, the department was in the process of
  drafting regulations specifying its zero-tolerance towards staff sexual
  misconduct.
• Third, the department’s Office of Internal Affairs, rather than institutional
  investigators, now investigates allegations of staff sexual misconduct. The
  department anticipates that a significant number of Internal Affairs staff
  will acquire specialized training related to sexual misconduct
  investigations.




  Page 28                        GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                      Appendix II
                      Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
                      Correctional Jurisdictions




                      Texas state law was changed in September 1997 to provide that
Texas Department of   correctional staff who engage in sexual intercourse or in deviate sexual
Criminal Justice                                                                       6
                      intercourse with an individual in custody are criminally liable. According
                      to Texas Department of Criminal Justice officials, effective September 1,
                      1999, new laws will also prohibit certain types of sexual contact and will
                      cover both incarcerated and supervised (e.g., parolees) individuals. The
                      officials told us that before 1997, other state laws generally applicable to
                      sexual assault or aggravated sexual assault could be used to prosecute
                      cases of staff-on-inmate sexual assault.

                      The Texas Department of Criminal Justice’s employees’ general rules of
                      conduct cover prohibited employee-offender relationships. At the time of
                      our review, Texas had a draft policy on staff sexual misconduct with
                      offenders (expected to be finalized and implemented in September 1999).
                      The draft policy also addresses prohibited employee-offender relationships
                      and specifically defines staff sexual misconduct, including written or
                      electronic communication of a sexual nature; obscene or sexual advances,
                      gestures, or comments; sexual intercourse; and other sexual conduct (e.g.,
                      inappropriate touching).

                      The draft policy also specifies penalties or disciplinary actions related to
                      sexual misconduct, describes staff responsibilities for reporting prohibited
                      sexual activities, and requires staff training regarding sexual misconduct
                      with inmates. Also, according to department officials, female inmates are
                      provided sexual misconduct training during intake orientation and are
                      given a handbook that describes the process for reporting any type of
                      employee misconduct.

                      The department’s Internal Affairs Division is responsible for investigating
                      the more serious types of staff sexual misconduct allegations, such as
                      sexual contact and assault. Internal Affairs is to refer suspected violations
                      of criminal law to local district attorney’s offices for prosecution. All other
                      alleged violations of departmental policy are to be investigated by the
                      facility or department administration, with possible disciplinary action
                      taken against the employee.




                      6
                       Texas Penal Code, section 39.04, “Violations of the Civil Rights of Person in Custody; Improper Sexual
                      Activity with Person in Custody.”




                      Page 29                            GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
                         Appendix II
                         Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
                         Correctional Jurisdictions




                         According to various correctional experts, the District of Columbia has
District of Columbia     one of the strictest and most comprehensive sets of sexual abuse laws and
Department of            policies in the country. The District’s Anti-Sexual Abuse Act of 1994, in
Corrections              general, makes staff-on-inmate sexual acts and sexual contact felony
                                   7
                         offenses.

                         The District of Columbia Department of Corrections has been required by
                         court order since December 1994 to take appropriate steps to prevent and
                         remedy staff sexual misconduct. The court order provisions are primarily
                         addressed in the department’s sexual misconduct policy, as revised in
                         1997.

                         In general, the department’s policy defines prohibited staff sexual
                         misconduct to include sexual abuse (any sexual act or sexual contact),
                         sexual harassment (verbal or physical sexual conduct creating a hostile
                         environment), and invasion of privacy (observing an inmate’s personal
                         activities without a sound penological reason or failing to announce
                         presence when entering the housing unit of an inmate of the opposite sex
                         without a sound penological reason). The department’s policy, as does the
                         staff-on-inmate provision of the Anti-Sexual Abuse Act of 1994, provides
                         that consent is not a defense to the crime of staff-on-inmate sexual abuse.
                         The policy also specifies administrative penalties for sexual misconduct
                         involving staff and inmates. Further, the department’s policy prohibits

                       • overt or covert retaliation by any staff against either female inmates or
                         correctional staff for filing a sexual misconduct complaint or cooperating
                         in investigations of sexual misconduct;
                       • interference with sexual misconduct investigations or refusal to testify
                         during an investigation;
                       • failure of staff to report any sexual misconduct, either witnessed or
                         suspected; and
                       • breach of confidentiality by an employee.
                                                                                                                    8
                         Also, among others, the policy’s provisions include the following:

                       • All correctional staff are required to receive training on prohibited sexual
                         misconduct, and all inmates are to be briefed (during intake orientation)
                         and provided written information on prohibited practices and reporting
                         procedures.
                         7
                             Anti-Sexual Abuse Act of 1994 (D.C. Law 10-257) (D.C. Code section 22-4101 et seq.).
                         8
                          District of Columbia Department of Corrections Order 3350.2B, “Sexual Misconduct Against Inmates”
                         (revised October 15, 1997).




                         Page 30                               GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
  Appendix II
  Laws, Policies, and Procedures Related to Staff-on-Inmate Sexual Misconduct in Four U.S.
  Correctional Jurisdictions




• A confidential 24-hour telephone hotline was installed for inmates to use in
  reporting sexual misconduct. Also, inmates may report such misconduct
  directly to the warden or any staff member.
• A sexual misconduct coordinator position was established to monitor
  complaints filed and ensure that allegations are investigated. The
  coordinator is to refer potentially criminal allegations to local law
  enforcement authorities, who, when applicable, are to refer cases to the
  U.S. Attorney’s Office for prosecution.




  Page 31                        GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
Page 32   GAO/GGD-99-104 Staff Sexual Misconduct in Female Prisons
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