Legal Responses to Staff Sexual Misconduct with Individuals in Custody: Elements of Good State Laws

1. Legal Responses to Staff Sexual Misconduct with Individuals in Custody: Elements of Good State Laws National Institute of Corrections and The Washington College of Law March 6-11, 2005 Jaime Yarussi

2. Enacting a Law • Context • Climate • Proponent

3. State Criminal Laws Prohibiting Sexual Misconduct with Offenders in 1990 National Institute of Corrections M Law Enacted 1983 Law Enacted 1986 Law Enacted 1985 M Law Enacted 1988 Law Enacted 1987 Law Enacted 1958 Law Enacted 1988 Law Enacted 1983, Amended in 1995- removing necessary language. Law Enacted 1981 WASHINGTON, DC Law Enacted 1986 Law Enacted 1974 Law Enacted 1983 Law Enacted 1983 Law Enacted 1987 Law Enacted 1978 Law Enacted 1983 Law Enacted 1986 Sexual misconduct in prisons is defined as a misdemeanor. Sexual misconduct in prisons is defined as a felony. Sexual misconduct in prisons is defined as a felony or mis- demeanor, according to the nature and severity of the assault. No laws criminalizing sexual misconduct in prisons. Law Enacted 1989 Source: 1997, Fifty State Survey of Criminal Laws Prohibiting Sexual Abuseof Prisoners, Brenda V. Smith, National Women=s Law Center.

4. State Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody National Institute of Corrections/American University, Washington College of Law – March 2005 Vt. N.H. Wash. Montana Me. N.D. Minn. Mass. Oregon Wis. Idaho S. D. N.Y. Mich. Ct. RI Iowa Pa. Wyoming N.J. Nevada Neb. Ohio Ill. D.C. Utah WV In. Colorado Va. Del. Ky. Kansas Mo. California Md. N.C. Tenn. Ark. Arizona Okla. N. M. S.C. Al. Ms. Ga. Texas La. Florida Hawaii Alaska Sexual misconduct defined as a misdemeanor. Sexual misconduct defined as a felony. Sexual misconduct defined as either a felony or misdemeanor depending on the nature and severity of the assault. No statute specifically criminalizes sexual misconduct. Source: July 2004. Brenda V. Smith, The American University, Washington College of Law

5. Important Policy Decisions • What conduct will the law cover? • Which staff will the law target? • Will you penalize offender victims? • What agencies will the law cover? • What will the penalties be? • Will this be a strict liability offense? • Will this be a separate statute?

6. Coverage • Agency Secure Confinement Community Correction Agencies • Personnel Staff Clergy Volunteers Medical Staff Contractors Food Service Maintenance Workers Will place matter?

7. Conduct • Physical Penetration Contact • Non-Physical Harassment Over-familiarity

8. Reporting • Duty to Report • False Reports • Retaliation and Coercion

9. Defenses • Ignorance of Status • Marriage • Consent

10. Penalties • Who will be penalized? - Staff - Offender Victims • What will the penalty be? - Felony - Misdemeanor - Graduated Sanctions -Malfeasance in Office/ Loss of License

11. Optimal Legal Elements • Coverage • Conduct • Reporting • Defenses • Sanctions and Penalties

12. Food for Thought • Staff sexual misconduct is embedded in culture • An incident polarizes staff, population, and leadership • Policies need to be in place to direct staff to prevention • Training is essential • Legislation can be reinforced by internal policies

13. Things to Remember… • Absence of a law does not mean that states don’t or cannot address the issue • Laws that may be sound in theory may not be in practice and reality • Enactment of a law does not guarantee enforcement • Education, prevention, sanctioning, and visible aggressive prosecution can only be used to remedy and eradicate this problem

14. State Law Activity