Not Part of Her Sentence: Sexual Misconduct by Corrections Personnel

Article by Julia Lutsky and Brigette Sarabi

In all jurisdictions, male guards in contact with women prisoners outnumber female guards filling that position. This was not always so but it became almost mandatory with the passage of Title VII of the 1964 Civil Rights Act which prohibits employment discrimination based on sex. The courts have been unable to find that an employee’s sex is a bona fide occupational qualification. The Human Rights Watch report, All too Familiar: Sexual Abuse of Women in U.S. prisons, December 1996, summarizes each jurisdiction’s laws and regulations.

A U. S. Government Accounting Office (GAO) report to Eleanor Holmes Norton, Women in Prison: Sexual Misconduct by Correctional Staff, June, 1999, points out that, in the four years from 1995 through 1998, 31,400 women prisoners in the three largest U.S. jurisdictions (Federal BOP, California, Texas) alleged 506 cases of custodial sexual misconduct; and of these, only 92 were sustained. The report also notes that “Because many female [prisoners] may be reluctant or unwilling to report staff sexual misconduct and jurisdictions lack systematic data collection and analysis of reported allegations, the overall extent of staff-on-[prisoner] sexual misconduct in female prisons is largely unknown.”

Amnesty International has made several recommendations that would ensure the protection of individuals in custody from sexual misconduct by correctional staff. These stipulate that prison rules and regulations must cover all sexual conduct between prisoner and any custodial staff (including contractors) as well as all locations where a prisoner could be abused (e.g., jails, during transport, etc.); the focus must be on custodial staff’s professional misconduct not the consent of the prisoner; and the level of penalty must correspond to the level of harm inflicted (e.g., felony punishment for first or second degree assault and so on down to administrative punishment for cases not meeting criminal prosecution standards).
The various jurisdictions have, in the past several years, instituted laws and regulations dealing with sexual misconduct in their prisons. Until about 1997, 14 states lacked any laws whatsoever prohibiting sexual relations between prisoners and correctional personnel. Four states, including Oregon, still lack such laws.

AFSC’s Bonnie Kerness gives several examples of custodial sexual misconduct: one prisoner wrote, “I am tired of being gynecologically examined every time I am searched,” while another stated “[t]hat was not part of my sentence to... perform oral sex with officers.” Kerness reports that a New Jersey woman who filed charges of rape was kept in isolation beginning the day she filed her complaint. She “had held semen in her mouth, spitting it into a plastic bag when she returned to her cell. She called [shortly thereafter] to let [Kerness] know that the guard who forced her to have sex was ... back working at the prison.”

This article originally appeared in Justice Matters in Summer 2003.