Stop Violence Against Women

Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women

Introduction

This report is an update to Amnesty International's 2001 report Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women. It revisits two areas of concern: custodial sexual misconduct–the sexual abuse of inmates by correctional staff–and the use of restraints on women in custody who are pregnant, including during labor and delivery.

The information compiled in this report is based on analysis and surveys conducted by Amnesty International. The report summarizes legislation, policies and practices in every state, the District of Columbia and the US Bureau of Prisons and reviews these in the context of international human rights standards. The main concerns arising from the report are:

The continuing lack of a law prohibiting custodial sexual misconduct in Vermont and the failure of existing laws to provide adequate protection in most states;
Gaps in policies and procedures to prevent or respond to incidents of custodial sexual misconduct in practice; and
A widespread lack of legislation and uniform standards to protect pregnant women from being restrained or shackled when it could be harmful to their pregnancy and during child birth.

Legislative and policy shortcomings in these areas contribute to human rights abuses against inmates and must be addressed.

Custodial Sexual Misconduct

International human rights standards stipulate that all inmates must be protected from sexual abuse at the hands of correctional staff. Amnesty International believes that the nature and extent of sexual abuse of female inmates by male staff in US jails and prisons, and the harm that sexual abuse causes, warrants special focus on the issue. Legislation, regulations, policies and practices must reflect a commitment to protect inmates against such abuse of power.

There have been significant positive developments in the past few years. In 1999, 14 states had no laws prohibiting custodial sexual misconduct. Today, all states except Vermont have enacted laws criminalizing custodial sexual misconduct. Several states have also amended their laws, bringing them more into line with international standards. In addition, the passage of the Prison Rape Elimination Act (PREA) in 2003 brings hope that the federal government will play an increasingly positive role in ensuring protection through improved training, tracking, reporting and investigations. PREA, further discussed below, was drafted primarily to combat sexual assault committed against inmates by other inmates, but it is also concerned with staff sexual misconduct (and a lesser offense, staff sexual harassment, which PREA also considers a form of sexual violence). The federal government has yet to adopt national standards as called for under PREA (this is unlikely to occur before 2007), but several states have already made efforts to implement PREA through state legislation.

Despite this progress, much work remains to be done to protect incarcerated women from being exploited by those charged with their care and custody, on both a legislative and a policy level. The six key concerns in relation to existing legislation on custodial sexual misconduct are the following:

An inmate could be held criminally liable for sexual contact with custodial staff: Amnesty International fears that this would have the effect of making retaliation for complaints of custodial sexual misconduct lawful and sanctioned and would lead to violations of the right to an effective remedy as well as the equal protection of the law.
State laws may not cover all forms of sexual contact: Amnesty International believes all sexual contact between inmates and correctional staff should be illegal.
Statutes may consider the consent of an inmate to sexual acts as a legal defense for corrections staff accused of misconduct: Amnesty International believes that sexual relations between staff and inmates are inherently abusive because as agents of the state, the staff are abusing the considerable power of their role. Thus the focus should be on the staff's professional misconduct, not the consent of the inmate. Statutes should bar sexual contact between staff and inmates and leave no room for exceptions.
State laws fail to cover all staff, including contractors and service providers: Amnesty International fears this would mean that those not covered by the statute may commit sexual misconduct without facing criminal charges. Even though individuals such as kitchen staff or maintenance contractors may lack direct authority over inmates, Amnesty International believes that they are nevertheless in a position to exploit inmates and may also have the ability to write up an inmate for behavior infractions, which could influence her access to resources, including visitation.
Laws may not cover all locations where an inmate could be abused: Amnesty International fears this could mean that a custodial sexual violation could be exempt from criminal court proceedings because of where it took place–for example, in a local jail rather than a state prison, during transportation or when the victim is out on parole.
The level of the penalty may not be proportionate to the nature of the harm: Where state laws do not provide for the ability to prosecute custodial sexual misconduct as a felony, more serious crimes may not meet with an appropriate remedy. In cases of actions not meeting standards of criminal prosecution, appropriate actions, including administrative penalties, should be authorized.

In order to eliminate custodial sexual misconduct, authorities must go further than passing legislation to prohibit the actions. Policies and procedures must be introduced to ensure that custodial staffs are guided in day-to-day activities. Amnesty International's survey of departments of corrections focused on two areas: policies regulating issues specific to women inmates and policies governing official response to incidents of custodial sexual misconduct. AI found that most states have now implemented policies defining and prohibiting custodial sexual misconduct; however, AI is concerned that many still fail to go further and incorporate specific elements regarding prevention and response to custodial sexual misconduct in their written policies. For example, investigative procedures may be generic and fail to take into account the specifics of sexual abuse, as well as elements related to custodial sexual misconduct, such as the gross power differential and fear of retaliation.

In the US, most states allow male custodians to work in women's facilities, in violation of international standards. Further exacerbating the risk this creates for custodial sexual misconduct is the lack of regulation of activities that may be inherently abusive or prone to exploitation and abuse–and that that may contribute to an atmosphere conducive to sexual misconduct. The following are Amnesty International's key concerns:

States may not place restrictions on duties of men responsible for the custody of women. Amnesty International believes that it can be inherently abusive for male staff to perform some duties, including pat-down searches, strip searches and body-cavity searches on women as well as patrolling women's sleeping areas, toilets and showers. These duties can contribute to an environment that fosters custodial sexual misconduct.
States may not provide adequate training to correctional staff on custodial sexual misconduct. Amnesty International believes that in order to ensure effective implementation of statutes prohibiting custodial sexual misconduct, it is essential for correctional departments to provide ongoing training for staff (as well as contractors and service providers to the degree feasible) on the statutes as well as mechanisms for reporting, responding to and investigating incidents of custodial sexual misconduct. This training should be offered to new as well as existing staff on a regular basis.

Amnesty International is concerned by reports of continuing impunity for perpetrators of custodial sexual misconduct. Reports to AI and other organizations indicate that custodial sexual misconduct often goes unpunished or merely results in a transfer or quiet termination despite laws criminalizing it. Our key concerns regarding official response to incidents of custodial sexual misconduct include the following:

Victims may be subject to retaliation for reporting incidents of custodial sexual misconduct. Amnesty International is concerned that measures are not always taken to ensure that the victim is protected from her alleged abuser and that when they are, they may be in the form of solitary confinement, which punishes the victim.
Investigations of incidents may be inadequate.
- States may lack defined and specific procedures for investigating custodial sexual misconduct. Amnesty International fears that investigations may not be conducted thoroughly in the absence of procedures governing preservation of evidence, taking of witness statements and the protection from retaliation.
- Investigations may lack independence because they are not conducted by an external agency.
Most states lack adequate independent oversight. Amnesty International believes that independent oversight is an important tool in addressing custodial sexual misconduct. An independent agency, such as a corrections ombudsman, should have the authority to investigate individual complaints and to pursue remedies for victims in addition to a mandate to review correctional policies and practices and make recommendations for improvement.

Shackling of Pregnant Women

Amnesty International is extremely concerned by the continuing lack of legislation and policies to protect pregnant women from being restrained or shackled when it could be harmful to their pregnancy and child. Lack of mobility may hamper a woman's ability to move during contractions to alleviate pain and can be dangerous during transportation due to the risk of falling and an inability to break the fall when restrained. Of most concern is the delay restraints may cause if complications arise during delivery and an emergency C-section must be performed. In such a situation, a delay of even five minutes could result in brain damage for the baby. Postpartum, restraints may also prevent women from breast-feeding and from recovery best accomplished by walking.

International standards restrict the use of restraints to situations where they are strictly necessary to prevent escape, to prevent prisoners from injuring themselves or others and to prevent property damage. International standards further provide that chains and irons shall not be used as restraints. In its 1999 report "Not part of my sentence": Violations of the Human Rights of Women in Custody, Amnesty International reported that restraints are routinely used on pregnant women in transport and during medical care, although this is not essential to prevent escape or protect people and property. Amnesty International is concerned that these practices continue in many states.

Amnesty International welcomes the heightened awareness of this issue among a small number of departments of corrections that have adopted policies prohibiting restraints during labor and delivery, as well as those that reported that they do not restrain women "in practice." However, other states still do not have a written policy or even a stated practice guiding correctional staff in this matter. AI believes that only written policies, training on the policies and ultimately legislation prohibiting the use of restraints can adequately and comprehensively protect women from this human rights violation.

Amnesty International considers the routine use of restraints on pregnant women, particularly on women in labor, a cruel, inhumane and degrading and practice that rarely can be justified in terms of security concerns.
Amnesty International is concerned that the shackling of women in the third trimester and during labor endangers the woman and her child and also constitutes a violation of international standards.

A full discussion of Amnesty International's position on these issues as well as a thorough presentation of the methodology of the report can be found under Scope and Methodology.

The focus on the specific issues raised in this report should not obscure the need for further investigation and policies to protect inmates from other types of abuse or cruel, inhumane and degrading treatment. Medical or mental health neglect, overreliance on solitary confinement and abuse of stun technology, as well as the need to help those in custody maintain family ties and obtain parenting skills, are among other issues that merit attention and immediate action. Nor should the focus on women downplay the need for policies and programs to protect male inmates from custodial sexual misconduct and the use of excessive restraints. Likewise, the serious nature and reportedly widespread incidence of sexual abuse of inmates by other inmates, as well as allegations that custodial authorities fail to prevent or directly contribute to the risks of such abuse, warrants immediate and sustained attention. Furthermore, though this report only covers policies and procedures at federal and state levels, aligning regulations and practices at local levels with international standards is also of great importance.

Amnesty International hopes this survey will contribute to the work promoting and protecting the rights of women in prison. Amnesty International understands that this effort is part of a larger effort with regard to the criminal justice system in the U.S. It is not enough to improve the prison system; a human rights approach also demands a review and criticism of unfair processes, driven to a large extent by racism and poverty, which result in which result in continuing growth in the number of incarcerated women and men.

The survey also demonstrates the need for more centralized data in order to document the incidence of custodial misconduct as well as to track the adoption of policies to address the issue. Amnesty International welcomes efforts undertaken by the Bureau of Justice Statistics in accordance with PREA requirements to study the problem of custodial sexual misconduct, as well as other sexual abuse in a prison setting. In a report published in July 2005, the bureau also highlights the absence of uniform reporting and tracking procedures. The report notes that the highest incidence of allegations of sexual violence was found in state-operated juvenile facilities, which are often required by law to record all allegations and report them to state and local law-enforcement authorities. Similar legislation should be passed to enforce reporting of allegations in adult facilities. AI believes it is paramount for federal, state and local authorities to take immediate steps to increase transparency in order to improve accountability.

Amnesty International further urges federal, state and local governments and authorities to take urgent action to ensure that laws, regulations, policies and practices for which they are responsible rigorously conform to international standards and respect the human rights of women deprived of their liberty. Specific recommendations are detailed in the section on Recommendations.