|
In
the past five years, several national and international
reports have addressed, explored, and investigated the issue of
staff sexual misconduct. While
the majority of these reports resulted from allegations of abuse
of women in prisons and jails, staff sexual misconduct is by no
means just a “women’s issue.” Briefly, these reports are the following:
(1)
In
December 1996, Human Rights Watch organization published “All
Too Familiar” Sexual Abuse of Women in U. S. State Prisons.”
This report described numerous incidents of sexual
harassment, sexual abuse, sexual contact, and privacy violations
of women in the six large correctional facilities, including one
combined prison/jail system.
The damage to the field of corrections was significant, and
many issues that corrections needed to address were brought to the
forefront. [www.hrw.org].
(2)
In
1997, the United States Department of Justice [DOJ] filed civil
rights lawsuits against two states’ Departments of Corrections.
The results of this litigation were settlement
agreements, involving extensive reorganization and revision of
policies and procedures. The
actions of the U. S. DOJ were based on their findings that the
departments failed to sufficiently protect female inmates from
sexual misconduct by staff.
(3)
In July 1998, “Nowhere to Hide: Retaliation Against Women
in Michigan State Prison” was published by Human Rights Watch.
The report examined numerous acts of retaliation against the
female inmates who had filed suit or complaints against the
department for acts of sexual misconduct [www.hrw.org/reports/98/women].
(4)
In 1999, United Nations, “Report of the mission to the
United States of America on the issue of the violence against
women in state and federal prisons” [pp. 55-63] was issued. The report found that sexual misconduct by staff is
“widespread” in U. S. prisons, especially when compared to
systems in other industrialized counties.
The report offered many recommendations, including the
criminalization of sexual misconduct between staff and inmates [www.un.org/Pubs].
(5)
In June 1999, the United States General Accounting Office
published “Women in Prison: Sexual Misconduct by Correctional
Staff.” Four
jurisdictions, accounting for more than one third of the total
prison population, were studied.
The report found that the following areas were
significantly lacking attention: training, reporting methods,
procedures for responding to allegations, procedure for preventing
retaliation against those filing reports, conducting competent
investigations, maintaining records of reports and investigations,
and tracking the progress of investigations [www.gao.gov].
TOP
Jails
have not been exempt from allegations, misconduct, and scrutiny.
Allegations have surfaced in just about every state.
Jails in many states, including Virginia, Massachusetts,
Florida, George, and California, have been in the news and in court
to defend their agency’s operations.
There
are no statistics on the extent of staff sexual misconduct in jails. This may be due to the large number of local jails (over
3,200) and the diverse manner in which they are organized and
managed. The experts
see no reason to expect that the problem is less in jails than in
prisons. In fact, some
experts think the problem may be more acute.
The turnover of arrestees in jails, most of who have as their
only goal to get released, presents opportunities for misconduct
that may go unreported. Many
arrestees may believe that their treatment by staff and demands made
on them are “routine,” There
is little opportunity for the jail to alert arrestees to protections
accorded by state statute and how to report their allegations.
Clearly,
the 1990s created a new awareness of the problem of sexual
misconduct where an imbalance of power exists – in the military,
in religious institutions, in high schools, and colleges, and in
prison and jail settings. In
terms of incarcerated populations, the response to the problem has
been mixed. Some
jurisdictions still do not acknowledge that misconduct exists, or
recognize the potentially dangerous and harmful implications of
staff sexual misconduct.
At
least 44 of the 53 jurisdictions (the jurisdictions being the 50
states , Puerto Rico, Federal Bureau of Prisons, and the District of
Columbia) have passed laws criminalizing sexual relationships
between staff and inmates or detainees.
This number is an increase from 32 states with legislation in
1996. Even with
overwhelming evidence about staff sexual misconduct, some
legislatures have not fully perceived or acknowledged the problem,
and efforts to pass appropriate laws have been difficult.
The Association of State Correctional Administrators passed a
resolution in 2000 declaring a “zero tolerance” for staff sexual
misconduct.
It
has been the experience in some parts of the country that local
prosecutors have not consistently pursued prosecution with
corrections agencies in cases where law violations are suspected
because of the alleged “consensual” nature of many of the acts.
In regions of the country where jails or prisons are a main
economic force, prosecutors and juries have particularly shown
reluctance in condemning those who work in seemingly difficult jobs
in jails and prisons.
Conversely,
some jurisdictions have taken a proactive approach toward the
problem of staff sexual misconduct.
Establishing policies and procedures for reporting
allegations, investigating allegations, protecting the parties from
retaliation, training staff and inmates/detainees, and adopting
policies of zero tolerance are excellent steps to address the
problem before the crisis occurs.
Staff sexual misconduct is happening and will happen, in
spite of the best efforts to prevent it.
But understanding the nature of the problem and establishing
proactive measures will minimize the amount of events, and prepare
an agency to address the issue appropriately, effectively, and with
integrity and dignity.
TOP
Looking
for excuses? Many
agencies fear that an aggressive zero tolerance policy for staff
sexual misconduct, coupled with the necessary inmate orientation and
education, will invite and encourage malicious and deliberately
false allegations by inmates against staff with whom inmates seek to
“get even.” Agencies
with aggressive policies report this does not occur.
The real danger is to allow this fear to prevent the
development and enforcement of a zero tolerance policy, or to resort
to a watered-down approach that can leave staff more confused and
with less direction. Part
of zero tolerance is setting the guidelines for consequences of
making malicious or knowingly false allegations. Agencies must also be clear in distinguishing between
malicious allegations and allegations for which no corroborating
evidence could be found.
So
what can a jail do to protect itself and the staff from damaging and
dangerous incidents of staff sexual misconduct?
Prevention is not simply sending staff to training, and
prevention is not just telling staff to behavior professionally. Prevention involves a review of policies, procedures, and
practices, and critiquing your agency’s “culture”. Prevention is a long-term commitment to human rights,
protection of inmates, and support of staff.
TOP
Should
jail administrators wait until they are in the news, or sued, to
act? Should jails
just see if the issue surfaces in a neighboring jail, or hold off
acting until a court directs them to review their procedures?
While these options always exist, the risks of waiting to
see what the future brings are significantly higher than assessing
the agency’s vulnerability and acting to protect staff and
inmates.
Written
policy is the best offense. This
wall is built with the commitment to a policy of zero tolerance
for staff sexual misconduct.
This commitment must be clearly role modeled by agency
leadership, through public statements and adoption of concise and
descriptive policies. Without all three – public statements,
policies and setting the example – staff receive mixed messages.
Even model behavior is not enough when written policy does
not exist, “Hey, it’s
not in writing anywhere, so they can’t do anything to me.”
If
personal integrity, facility security, and professionalism are not
sufficient reasons to encourage agencies to adopt zero tolerance
for staff sexual misconduct, then vicarious liability should be.
Vicarious liability is created when
Someone else (such as a
supervisor) knew or should have known what was occurring or about
to occur, but did nothing to correct the situation, and that lack
of action was the proximate cause of subsequent harm, injury, or
death.
Vicarious
liability results from such circumstances as the failure to train,
negligent supervision, or negligent hiring or retention.
Under vicarious liability, administrators are responsible
for activities within their jurisdictions.
The best protection is not insurance or bonding.
It is a proactive approach to any problem, rather than just
a reactive response. Administrators
who develop effective policy, who say abreast of legal issues, and
who treat staff and inmates with the same respect they would
desire if their roles were reversed will achieve far more results
and insulation from liability than any insurance policy could hope
to provide.
TOP
<=
Previous Page | Next => |
