Lance Cpl. Shane Bardes is a convicted rapist serving a five-year sentence in the military penal system. But inside the brig, he alleges, two female guards found him irresistible, and over a period of months subjected him to demeaning, deviant sexual contact, much of it unwanted. Worse, Bardes claims, his pleas for help were ignored by those in charge.
Bardes, 27, a single-tour Marine rifleman who was stationed in Hawaii before landing in July
2011 at Naval Consolidated Brig Miramar in California, is seeking an early release, arguing he was “systematically victimized by the very institution charged with his rehabilitation,” according to his request for special clemency. It’s a lurid tale, and Bardes is hardly a white knight. But while his criminal record might undermine his credibility, his allegations coupled with a recent Justice Department report showing a steep rate of staff sexual misconduct in the very brig where he was kept, raise troubling questions about inmate safety and the military’s compliance with federal regulations aimed at protecting them from sexual abuse.
The Naval Criminal Investigative Service is investigating Bardes’ complaint about his treatment at the Miramar brig, said Ed Buice, a spokesman for NCIS. He declined to answer questions seeking insights into the agency’s findings thus far. “What I can say,” Buice said, “is that NCIS is investigating allegations made by an individual who was in confinement at the Miramar Brig, of unwanted and inappropriate sexual contact. The investigation is ongoing and, to date, no charges have been filed in connection with this case.”
Karen Suich, a spokeswoman for Navy Personnel Command, which oversees the service’s brigs, said that after Bardes’ complaint surfaced, he was given access to a victim advocate and all other victim services, including counseling. Officials are unaware of any other cases of alleged misconduct similar to what Bardes claims to have experienced, she said, and no new policies are being considered regarding staff and prisoner discipline. Current regulations had been deemed appropriate, Suich said.
Bardes was willing to discuss his allegations in detail. His attorney, John Hafemann, first contacted Marine Corps Times in September, and the newspaper subsequently petitioned the Navy for an in-person interview with Bardes at Naval Consolidated Brig Charleston, S.C., to which he was transferred this past summer after officials in Miramar learned of the circumstances surrounding his complaint. The interview request was denied, but Hafemann arranged for Bardes to document his story in writing, which he did in a
16-page personal statement. Hafemann, a former Marine captain who is representing Bardes on behalf of the law firm Military Justice Attorneys, copied the letter and shared it via email.
Everything about his account, and his criminal record, is appalling. Bardes pleaded guilty in 2011 to raping two women on separate occasions. According to court documents, he choked one of his victims until she passed out as he raped her. He’s not a model prisoner either. By his own count, in the three years he has been incarcerated, he has been written up more than 25 times for infractions and has done several stints
in disciplinary segregation, or DSeg.
None of this, Hafemann argues, excuses Bardes’ alleged treatment at the hands of the brig’s staff, or the alleged refusal by its commanders to take his complaint seriously. And the justice Department likely would agree.
A well-documented problem
In May, the Justice’s Department’s Bureau of Justice Statistics published a report indicating that the rate of staff sexual misconduct at the Miramar brig -- 4.9 percent -- is nearly twice that of prisons nationwide and three times the average among local jails. In fact, the only facilities with higher rates of staff sexual misconduct were the Northwest Joint Regional Correctional Facility at the Army’s Fort Lewis in Washington state, and the Oglala Sioux Tribal Offenders Facility jail in South Dakota.
That data was collected from 2011 to 2012, and its release comes on the heels of guidance from President Obama directing all federal confinement facilities to align themselves with standards laid out in the Prison Rape Elimination Act of 2003. Prior to the report’s release, in February 2013, the acting undersecretary of defense for personnel and readiness, Jessica Wright, published a memo directing all military departments to draft procedures for bringing their correctional facilities into compliance.
PREA emphasizes zero tolerance toward inmate rape and sexual assault, mandates statistical data collection to chart incidents, and calls for development of new standards aimed at preventing sexual violence and enforcing accountability when it occurs. Some facilities already have aligned themselves with this guidance. The Charleston brig, where Bardes is now, declares on its website that staff there comply with PREA standards. A spokesman for the Miramar brig, Brewster Schenk, said that facility also
observes PREA standards. But some watchdog groups have criticized the Pentagon and the individual services for being too slow to uniformly enforce the law.
“Of all the divisions of government subject to Obama’s memo, the Defense Department should have responded with the most alacrity,” say David Kaiser and Lovisa Stannow, two senior staffers with the organization Just Detention International, writing in the Oct. 24 edition of the New York Review of Books. “Just two months previously, the department had proclaimed that sexual assault is a crime that has no place in the Department of Defense. ... Nonetheless, the Defense Department’s reaction has, so far, been completely unsatisfactory -- the worst of any of the departments and agencies to which the president’s directive applies.”
Chris Daley, the organization’s deputy executive director, told Marine Corps Times that his group wants to see the new PREA-compliant standards finalized and each of the branches working with outside advocacy organizations to determine best practices. “There is, I think, a belief that service members don’t do this to other service members,” he said. “And the willful ignorance that has to underlie that belief, given all the conversations we’re having about sexual abuse in the military right now, is a little bit astonishing.”
Daley said Bardes’ allegations of sexual assault by female guards were unsurprising; in more than half of reports of prisoner sexual abuse, the alleged aggressor was a staff member, he said. And in most allegations of staff abuse, the named perpetrator is a female, and the victim a male inmate, he added.
“Just to be clear, the cultural perception is that sexual abuse is committed by male inmates on other male inmates,” Daley added. “The data really puts the reality in context. It’s something that corrections is starting to grapple with, and the military is starting to grapple with, as well.”
It remains to be seen whether the Justice Department’s findings about Miramar point to any larger issues within the command. However, it’s not the first time an outside organization has examined staff sexual misconduct there. In 2006, Miramar’s brig commander, Cmdr. Kris Winter, commissioned the Naval Postgraduate School to study its rates of sexual harassment and coercion compared with civilian facilities. The resulting report determined that they were equal to or better than comparable civilian facilities in
terms of overall incident reports, although researchers did not isolate incidents of staff-on-inmate sexual misconduct.
Sex and contraband
The Miramar brig can house 600 inmates and is the Navy Department’s primary facility for women sentenced to substantial jail time. Because of that, Bardes encountered several female guards and supervisors during his time there.
One day in late 2012, as a female Marine was escorting him from the brig gym back to his dorm, she said something that irritated him, Bardes recalled in the witness statement provided by his attorney. “F--- you,” he said, to which she allegedly responded: “OK. Where?”
The two had about 10 sexual encounters in parts of the brig that didn’t have security cameras, including a dry food storage room, he alleges. Occasionally, he contends, she groped him out in the open, which he says he found embarrassing.
She also gave him several photos of her either nude or just partially dressed, Bardes says. He was later approached by a male staff member who offered to trade him chewing tobacco in exchange for the photos of his colleague, Bardes claims. He agreed. The female guard found out about the trade, he said, but she didn’t seem to mind. Bardes said he traded other contraband with the male guard, who helped him
connect with prisoners who had drugs.
Bardes alleges he also had sexual contact with his work supervisor, a female sailor. First, it happened in an office closet, he says. A subsequent alleged encounter with her made Bardes realize that despite agreeing to much of the sexual activity between them, he was not in control. In one instance, he contends, Bardes repeatedly asked the supervisor to stop touching him only to be embarrassed by her when a male guard entered the room.
An intern, a romance
He says his perspective changed after he began seeing a therapist in late 2012, part of his mandatory rehabilitation treatment. The counselor, who Marine Corps Times agreed not to identify because she is not accused of any criminal behavior, was completing a master’s degree in social work at the University of Southern California and worked at the brig as an intern. They met regularly over 12 weeks, Bardes said, and he developed romantic feelings for her.
But when the guards found out he did not want any further sexual encounters with them, they were not inclined to stop, he alleges. The female Marine assaulted him four more times after she found out about his relationship with the counselor, Bardes alleges.
“That’s when things shifted from, in Shane’s mind, consensual, to not even in Shane’s mind consensual,” said Hafemann. Under federal law and brig policy, sexual activity is prohibited between staff and inmates, he added. The power imbalance renders any such activity nonconsensual, he said. The brig’s standard operating procedures manual confirms that.
The staff’s alleged misconduct came to the brig leadership’s attention inJuly 2012, when Bardes approached his case manager to ask about marrying the counselor while he was incarcerated, Hafemann said. She was reported to her school and fired, and the Naval Criminal Investigative Service was brought in to investigate.
Reached by phone, the counselor, 24, confirmed that she did work with Bardes as an intern and was later asked to leave her program at USC. She also said Bardes told her about his sexual interactions with his guards and how he had come to understand the incidents as assault.
She is petitioning for readmission to USC, she said, but declined to discuss the personal relationship she had had with Bardes, acknowledging only that she had sent letters, called him and spoken with his mother since his transfer from Miramar to Charleston. They last communicated more than two months ago, she said.
Suich, the spokeswoman with Navy Personnel Command, confirmed that the counselor was reported to her university and terminated from her internship. Cmdr. Norman Presecan, the brig’s commanding officer, also issued a military restraining order barring contact between her and Bardes, Suich said.
A legal fight ensues
After NCIS launched its investigation, Bardes was put back in DSeg for an unrelated offense. Then, on July 26, toward the end of his 30 days in isolation, he said Presecan came to visit him, saying Bardes would have access to the lawyer he requested. Bardes met with the attorney, but a day later he was transferred -- without warning, he contends -- across the country to Charleston.
Hafemann said he believes the sudden transfer was for Bardes’ safety as harassment from the guards intensified. Suich said that in light of the allegations, the command determined it was in the best interest of Bardes, Miramar and the ongoing investigation to move him.
When Marine Corps Times asked to interview Bardes in person, the Charleston brig’s commanding officer, Cmdr. Patrick Boyce, said through a spokesman that such an interview “does not currently meet the threshold criteria that ‘such interview or communication serves a legitimate public interest or is in the best interest of the military.’”
On the heels of the investigation and Bardes’ claims of assault, Hafemann said he is troubled by allegations raised by a new client, Parker Miller, an airman incarcerated in Charleston for a drug-related offense.
In a written statement to Marine Corps Times, Miller alleges he was assaulted repeatedly by another inmate known by staff there to be a sexual predator, and that when he approached the brig’s then-head of security, he was told that the staff had let this inmate out into the general population, hoping to catch him in the act.
“He said ‘Sorry, you were just the unlucky one it happened to,’” Miller wrote.
Suich confirmed Miller was an inmate at the brig and said NCIS was investigating his allegations.
For Bardes, it’s now a waiting game. Hafemann has filed a special clemency request on his behalf and has received notice that the request will not be considered until NCIS’s investigation is complete. The clemency request states that Bardes is willing to testify for the prosecution against the guards involved in the misconduct.
Officials with personnel command said the staff in question are no longer working at the brig, but did not elaborate on what charges or punishment they may face. A Marine legal official said it is common for accused parties not to be charged until a criminal investigation is complete.
Hafemann said the case demonstrates a double standard in the treatment of male and female victims of assault, at least within the correctional system. Bardes said he just wants to put this behind him.
“I feel like one of the only ways I can begin to rebuild my life is to get the story out, by putting everything on the table,” his personal statement says. “That will help me move on and be able to recover.”