Stop Violence Against Women
Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women
- Key Findings
Legislative Protection
This survey covers all 50 states, Washington, DC and the Federal Bureau of Prisons.
- Seven states now have statutes that address the major concerns
of Amnesty International. Alabama, Illinois, Kansas, Michigan, Minnesota,
Nebraska and Oklahoma. This represents a marked improvement, as only
one state (Oklahoma) met the main concerns in 2001. AI notes that while these
statutes have met AI’s basic six criteria, they may have other flaws.
For example, Michigan’s statute requires actual knowledge of the alleged
victim’s status in most cases for a finding of guilt. Illinois’
statute exempts those who have “no knowledge” and “no reason
to believe” that the victim was a person in custody.
- Many of the statutes that do exist fail to address all of Amnesty
International’s main concerns:
- In four states, statutes allow for a woman inmate to be held criminally liable for engaging in sexual conduct. Arizona, California, Delaware and Nevada. Arizona does not consider the inmate’s lack of consent, so even an inmate who was raped could be charged under this law. In California, inmates may be penalized for oral sex or sodomy. In Delaware and Nevada, statutes call for punishment of the inmate if he or she is unable to prove rape.
- Three states would allow an officer to claim that a person in custody consented to the sexual act(s) to avoid prosecution. Statutes in Colorado and Wyoming allow consent as a defense. In New Hampshire, the state must prove coercion in all cases, and consent is a defense; this requirement follows a Supreme Court decision rejecting the state’s argument that coercion is implied.
- The statutes in five states and the US Bureau of Prisons do not penalize custodial sexual misconduct as a felony. California, Iowa, Kentucky, Maryland and Tennessee. In these jurisdictions, abusers may only be charged with misdemeanor offenses under this law.
- In 17 states, statutes do not cover all forms of sexual contact. Arkansas, Delaware, Florida, Idaho, Indiana, Iowa, Maine, Maryland, Mississippi, Missouri, Nevada, New Mexico, North Carolina, Ohio, Rhode Island, South Dakota and West Virginia.
- Twenty-eight states, the US Bureau of Prisons and the District of Columbia have statutes that do not cover all staff and custodians who may be in a position to mistreat women in custody. Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Louisiana, Maine, Maryland, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Wisconsin and Wyoming.
- Fourteen states and the US Federal Bureau of Prisons have statutes that do not cover all detention facilities and locations where custodial sexual misconduct might take place. California, Colorado, Delaware, Indiana, Louisiana, Missouri, Montana, Nevada, New Hampshire, New Mexico, Pennsylvania, South Dakota, Tennessee and Texas.
Policies, Procedures and Practices of Guarding Women
Amnesty International surveyed all 50 state departments of corrections as well as the District of Columbia and the Federal Bureau of Prisons to provide information on issues related to custodial sexual misconduct. These findings are based primarily on information provided in the surveys.
- Seven state departments of corrections do not have a specific
policy prohibiting custodial sexual misconduct. Delaware, Illinois,
Kansas, Maryland, New Jersey, Utah and Vermont.
- In 12 state departments of corrections plus the Federal Bureau
of Prisons, cross-gender pat-down searches are generally allowed.
Arizona, California, Connecticut, Indiana, Kansas, Nebraska, New Jersey,
North Carolina, North Dakota, Ohio, Pennsylvania and Wyoming.
- In 26 state departments of corrections cross-gender pat-down searches may be allowed under certain circumstances:
º Eight states attempt to limit the occurrence of cross-gender pat-down searches but do allow them: Alabama, Georgia, Hawaii, Iowa, Missouri, New York, South Carolina and Tennessee.
º Eighteen states allow cross-gender pat-down searches in case of “emergency”: Alaska, Arkansas, Arizona, Delaware, Florida, Illinois, Maine, Massachusetts, Michigan, Mississippi, Montana, Nevada, New Hampshire, Oklahoma, Rhode Island, Texas, West Virginia and Wisconsin.
- Only three state correctional departments and the District of Columbia told Amnesty International that they prohibit cross-gender pat-down searches. Minnesota, New Mexico and South Dakota.
- Only one state department of corrections and the Federal Bureau
of Prisons do not impose any restrictions on the duties of male guards:
Tennessee.
- New York has no restrictions other than limiting situations where pat searches may be performed by male officers. Connecticut only states that “reasonable accommodations” are to be made to provide for same-sex strip searches.
- In some states, the restrictions imposed only limit or disallow cross-gender strip searches and performing of urinalysis tests. Georgia, Iowa, Massachusetts, New Mexico, Oklahoma, South Dakota, Texas and Wyoming.
Policies and Procedures to Guide Official Response When Incidents of Custodial
Sexual Misconduct Occur
Amnesty International surveyed all 50 states as well as the District of Columbia and the Federal Bureau of Prisons to obtain information on their policies and procedures guiding official response to incidents of custodial sexual misconduct. These findings are based primarily on information provided in the surveys.
- Five state departments of corrections report that they lack special
procedures for investigating custodial sexual misconduct. Alabama,
Iowa, Kansas, Mississippi and Wyoming.
- Hawaii’s procedure requires only that the suspected perpetrator of a sexual assault may not participate in the investigation.
- Amnesty International is concerned that policies and procedures may not adequately address the issue of custodial sexual misconduct but are focused on the sexual assault of inmates by other inmates or are generic in nature.
- Two state correctional departments do not require that a rape kit
be taken for victims of custodial sexual misconduct: Connecticut
and South Carolina.
- Nine state departments of corrections do not refer investigations
of custodial sexual misconduct to an external agency. Alabama, Arizona,
California, Florida, Kentucky, Mississippi, South Carolina, Tennessee and
Washington.
- Twelve state departments of corrections and the District of Columbia conduct external investigations in some but not all cases. Arkansas, Delaware, Georgia, Massachusetts, Minnesota, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Rhode Island and Texas.
- Twenty-two state departments of corrections and the US Federal Bureau of Prisons ensure that external investigations are undertaken in all cases. Alaska, Connecticut, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Dakota, Vermont, Wisconsin and Wyoming.
- Twenty-four state departments of corrections and the US Federal
Bureau of Prisons may place women who report custodial sexual misconduct in
solitary confinement. Alabama, Alaska, Arizona, Connecticut, Delaware,
Georgia, Hawaii, Indiana, Kansas, Massachusetts, Montana, New Mexico, North
Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, Washington, Wisconsin and Wyoming.
- Only three state correctional departments report that they do not use solitary confinement for this purpose. Iowa, Minnesota and Mississippi.
- Two state departments of corrections report they do not have any
special procedures in place to shield victims of custodial sexual misconduct
from retaliation: Kentucky and Delaware.
- Two state departments of corrections do not track statistics about
incidents of custodial sexual misconduct: Hawaii and North Carolina.
- Six states have established independent Ombudsmen whose mandates
include corrections. Alaska, Connecticut, Georgia, Indiana, Iowa
and Nebraska. The Federal Bureau of Prisons answers to the
Office of the Inspector General of the Department of Justice.
- California’s 2005 Sexual Abuse in Detention Elimination Act created the Office of the Sexual Abuse in Detention Elimination Ombudsperson. However, as of this writing, it is not clear that this office has yet been established.
- An ombudsman office in Texas is not independent of the department of corrections and consequently does not meet Amnesty International’s standards.
- Three states had independent ombudsmen and abolished these offices. Kansas, Michigan and Minnesota.
- Five states have oversight committees or an auditor in the state legislature, which may perform limited oversight functions and can make recommendations. Alabama, Arizona, Mississippi, Ohio and Tennessee.
