Alex Coolman, Sexual Misconduct in Women's Facilities: The Current Climate, Corrections Today, October 2003.

Jackie Noyes caused a sensation when her story hit the papers this spring. The 24-year-old, mentally ill female inmate at Wisconsin's Taycheedah Correctional Institution had been sent to disciplinary segregation as punishment after she was impregnated by a TCI corrections officer. The moment her situation was described publicly, it became a scandal.

"Abuse of Power in Prison" was the headline of a searing editorial that the Milwaukee Journal Sentinel ran about the case, and several hard-hitting news articles followed. Battered by the publicity, Taycheedah officials released Noyes from segregation - but not before the reputation of the facility had been linked in the public mind to what the Journal Sentinel called "guards who take advantage of their public trust for the sake of sex." Such cases, unfortunately, are not as unusual as one would hope.

Unlawful Conduct

In recent months, a federal lawsuit has alleged that female inmates became pregnant by corrections officers in New York; a male California officer pled guilty to assaulting a female inmate; and a female officer in Colorado was sentenced to five years' probation for having sexual relationships with two male inmates. In Maryland and Texas, a corrections officer and a prison doctor were arrested on suspicion of sexual assault. Sadly, Wisconsin has plenty of company.

But the headlines, however compelling they may be, don't tell the entire story. A less sensational reality, one that exists alongside the reports of misconduct, is that attitudes and agency responses toward sexual contact between officers and inmates have changed in recent years. Sexual misbehavior, along with practices such as name-calling and inappropriate leering, is now explicitly prohibited by the policies of many corrections departments.

And though sexual misconduct remains a threat to the physical and psychological health of inmates, many corrections departments and groups such as the American Jail Association have adopted language that makes it clear they understand the weight of the issue.

"It's all in the way you handle it," said Chuck Jackson, chief of the correctional services division for the Los Angeles County Sheriff's Department. In the Los Angeles County system, he noted, all allegations of custodial misconduct are investigated for possible criminal prosecution, and the inquiry is automatically referred to the department's internal affairs bureau. Taycheedah-style responses to misconduct - where dismissal is assumed to be punishment enough for any sexual offense - are, in some places, a thing of the past, and in late 2002, a Los Angeles custody assistant was sentenced to three years in prison for performing sex acts with an inmate. 

"It's to our benefit and to (the officer's) benefit to conduct an investigation," Jackson said. If allegations weren't handled that way, he added, "we'd just be sitting here saying we didn't believe the inmate, and that just doesn't fly anymore."

A Mental and Physical Health Threat

While a forcible sexual assault poses a serious danger to an inmate's health by anyone's measure, non-forcible sexual encounters between staff and inmates are typically considered harmful as well. As many agencies, including the Federal Bureau of Prisons, have noted, the great imbalance of power between officer and inmate makes the notion of "consent" impossible.

But the nonconsensual nature of such encounters is only part of the issue. The U.S. Department of Justice reported in 1999 that nearly half of women in jails in prisons reported having been physically or sexually abused before incarceration. Fully a third of the women serving time in state prison reported having been previously raped, according to the USDOJ.[1]

Cassandra Newkirk is the mental health director at Rikers Island Penitentiary and has served as an expert witness in many cases involving the psychological impact of custodial sexual contact. Newkirk said the likelihood that female inmates have suffered prior abuse means that the custodial sexual encounter may amount to a reenactment and reinforcement of trauma. "(Women) feel used and abused all over again," she said, "even though it was couched in terms of being consensual."

Women with a history of prior abuse who are sexually victimized in custody "do suffer psychological symptoms, or an exacerbation of their symptoms," including depression and the development or worsening of post-traumatic stress disorder, she said. Like other forms of sexual activity behind bars, custodial sexual misconduct also poses a risk for spreading sexually transmissible diseases, and - for unwanted pregnancy.

Getting Explicit

For many corrections officials, it has often gone without saying that sexual contact between officers and inmates is unacceptable. However, that very assumption - that the boundaries of appropriate behavior are obvious to all - has sometimes left room for so-called "bad apples" to exploit ambiguity in policies and legal loopholes.

In the Taycheedah case, for example, an investigation into the behavior of the officer who impregnated Noyes found not only that the officer had previously caused another inmate to become pregnant; but also that a third female inmate had been sentenced to segregation for "fraternizing" with yet another officer, while the officer involved was able to quit and faced no criminal charges.[2]

Lara Stemple, executive director of the nonprofit human rights group Stop Prisoner Rape, said that part of the problem in the Taycheedah case is the lack of a Wisconsin law criminalizing custodial sexual contact. "When this incident happened, there were still four states in the nation where this kind of behavior wasn't illegal," Stemple said. "Where explicit prohibitions are not in place, misconduct is going to happen more often."

Fortunately, recent years have seen a nationwide push toward creating laws and policies that deal directly with the issue of sexual behavior. Whereas in late 1999, the USDOJ reported that eight states were lacking laws on custodial sexual contact,[3] several of those states subsequently added legislation on this subject, leaving only Wisconsin, Alabama, Vermont and Oregon as holdouts. Then, in August, Wisconsin Gov. Jim Doyle signed a law that criminalized custodial sexual misconduct.

Shari Burt, spokeswoman for the Minnesota Department of Corrections, said policies and training curriculum have changed significantly since the state passed its law, in June of 2001, with the support of the DOC's support. "Any offender, upon admittance to the facility, is given a brochure, that we developed specifically for the offender, that explains the law," Burt said.

This effort to make inmates aware of the rules - and to tell them ways of dealing with potentially problematic situations - is coupled with annual online training for staff on sexual misconduct. The training curriculum includes both a discussion of acceptable personal behavior and information on how to handle concerns about misconduct among colleagues, she said. "If you believe something may be happening you're required to report it," Burt said. "You can't just turn your head and look the other way."

The emphasis on greater clarity in policies is something found in other corrections departments and in groups like the American Jail Association, which adopted a draft resolution on staff sexual misconduct at its May 2003 meeting. The resolution expresses support for the creation of policies and laws to prohibit and criminalize misconduct.

Room for Improvement

Even with the push for more clarity in laws and policies, there continue to be gray and problematic areas in the way sexual contact is understood and responded to by facilities. Stemple said Stop Prisoner Rape is particularly concerned about the policy of many facilities to routinely segregate and withhold basic privileges from inmates who report sexual assault. "This practice may be termed 'non-disciplinary,' but it effectively punishes inmates for reporting sexual abuse," Stemple said. "We don't feel that this is an acceptable response, and, unless the inmate requests protective segregation, we would like to see it end."

Jackson said Los Angeles County does not segregate inmates who make reports. "That's deemed to be disciplinary in nature, and we don't have the right to discipline somebody just for making a complaint," he noted. Instead, Jackson added, staff who have been accused of sexual misconduct are asked to avoid contact with the inmate and to avoid potentially problematic situations - such as spending time alone in a room with an inmate.

Stemple said Stop Prisoner Rape would also like to see all facilities make sure that inmates have an understanding of the rules and their rights with regard to sexual contact. Even basic ground rules for sexual behavior can not necessarily be taken for granted because of the reality that the lives of many inmates - particularly female inmates - have been shaped by sexual abuse and the use of sex as a defense mechanism or a bargaining tool, Newkirk said. "It happens so often that the women really don't understand what has happened to them over the years," she said. Some offenders have never developed a clear feeling of what constitutes abuse, she said, and even the statement "This is not good for you, because you have a right to [control] what happens to your body," may come as a revelation.

Simple, seemingly obvious ideas may also need to be incorporated into training curriculum for officers. Newkirk noted that it may not always be clear to everyone that inmates' sexually provocative behavior or attempts to bargain with sexual favors do not grant license for inappropriate contact.

What can be safely taken for granted? Only that sexual misconduct in custody will take place anywhere it is not explicitly prohibited - and that even the best-run facilities must prepare to respond to sexual misconduct from time to time.

"We applaud those who have adopted clear policies to address sexual misconduct," Stemple said. "And, it goes without saying, that policies on the books are just the beginning. Enforcement, professionalism, and follow-through will characterize the response of officials who deal with this problem effectively."

Alex Coolman is the communications coordinator for Stop Prisoner Rape.

[1] U.S. Department of Justice, Bureau of Justice Statistics, Prior Abuse Reported by Inmates and Probationers, available at (http://www.ojp.usdoj.gov/bjs/abstract/parip.htm, last visited May 29, 2003).

[2] Abuse of Power in Prison, Milwaukee Journal Sentinel, February 3, 2003.

[3] U.S. Department of Justice, National Institute of Corrections, Sexual Misconduct in Prisons: Law, Remedies, and Incidence, May 2000.