Criminal Law Responses to Staff Sexual Misconduct with Individuals in Custody

1. Criminal Law Responses to Staff Sexual Misconduct with Individuals in Custody Investigating Allegations of Staff Sexual Misconduct with Offenders National Institute of Corrections and The Washington College of Law July 9-14, 2006 Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

2. Objective Review the legal tools for prosecuting staff sexual misconduct with offenders- their content, importance and relevance to investigations Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

3. Important Questions • What are the legal tools for criminally punishing staff sexual misconduct with offenders • What conduct does your law cover? • Which staff does your law target? • Do your laws penalize offender victims? • What agencies does your law cover? • What are the penalties under your law? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

4. What are the legal possibilities for prosecuting staff sexual misconduct? • Sexual abuse with persons in custody • Sexual assault laws • Sodomy statutes • Statutory rape • Sex Offender registration • Malfeasance in office • Vulnerable adult statutes • Assault and battery statutes Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

5. Which of These Have You/ Do You Use? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

6. Sexual Assault Generally felony Lack of consent is element of crime Complainant credibility is an issue Lack of corroboration Sex offender registration usually required Sexual abuse of persons in custody Less likely to be a felony In __ states consent is not an element of the offense Complainant credibility less an issue Lack of corroboration Sex offender registration may not be required Sexual Assault v. Sexual Abuse of persons in custody statute Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

7. Sexual Abuse of Persons in Custody Statutes -- Issues • Coverage • Conduct • Defenses • Reporting • Sanctions/Penalties Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

8. States with Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody National Institute of Corrections/American University, Washington College of Law – June 2006 Vt. N.H. Wash. Montana Me. N.D. Minn. Mass. Oregon Wis. Idaho S. D. N.Y. Mich. RI Ct. 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 Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: June 2006. The NIC/WCL Project on Addressing Prison Rape

9. Sexual Abuse of Persons in Custody Statutes -- Coverage • Agency Secure Confinement Community Correction Agencies Juvenile Justice Agencies • Personnel Staff Clergy Volunteers Medical Staff Contractors Food Service Maintenance Workers • Will place matter? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

10. State Criminal Laws Prohibiting Sexual Abuse of Individuals Under Community Corrections SupervisionNational Institute of Corrections/American University, Washington College of Law – June 2006 Vt. N.H. Wash. Montana Me. N.D. Minn. Mass. Oregon Wis. Idaho S. D. N.Y. Mich. RI Ct. 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 Community corrections explicitly covered under law Community corrections not explicitly covered Community Corrections explicitly excluded from coverage The statute does not mention this class of persons Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: June 2006. The NIC/WCL Project on Addressing Prison Rape

11. State Criminal Laws Prohibiting Sexual Abuse of Juveniles Under Correctional Supervision National Institute of Corrections/American University, Washington College of Law - June 2006 Vt. N.H. Wash. Montana Me. N.D. Minn. Mass. Oregon Wis. Idaho S. D. N.Y. Mich. RI Iowa Pa. Wyoming N.J. Ct. 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 Juvenile Justice agencies explicitly covered by the law Juvenile Justice agencies covered by implication The statute does not mention this class of persons Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: June 2006. The NIC/WCL Project on Addressing Prison Rape NOTE: California and Kansas cover individuals over the age of consent but held in juvenile facilities

12. What about your state? • All states have a criminal law prohibiting the sexual abuse of individuals in custody • Most states cover community corrections agencies and only two explicitly exclude it • What about community agencies that are not under the DOC? • Some states cover juveniles under supervision (either explicitly or by implication) Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

13. Conduct • Physical Penetration Contact • Non-Physical Harassment Over-familiarity Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

14. What about your state? • Most states cover penetration • What about objects • What about anal sex • Many do not cover sexual contact • Fondling • Forced masturbation • Exposure • Most do not cover harassment and over familiarity Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

15. How Do You Address What Your Law Does Not? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

16. Reporting • Duty to Report • False Reports • Retaliation and Coercion Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

17. What Does Your State Law Say? • Most states do not have laws that require reporting • What about juvenile facilities? • What about juveniles in adult facilities? • Most do not have provisions that address retaliation • Most states do not have a provision for false reports • What about good-faith reports? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

18. How Might You Address These Issues? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

19. Defenses • Ignorance of Status • Marriage • Consent Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

20. State Criminal Laws Prohibiting Sexual Abuse of Individuals Under Correctional Supervision: Consent as a Defense National Institute of Corrections/American University, Washington College of Law – January 2006 Vt. N.H. Wash. Montana Me. N.D. Minn. Mass. Oregon Wis. Idaho S. D. N.Y. RI Mich. Ct. 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 Consent is explicitly not a defense to staff sexual misconduct with an offender Consent is not addressed in the statute Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: September 2005. Brenda V. Smith, The American University, Washington College of Law

21. How Might You Address These Defenses? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

22. Penalties • Who will be penalized? - Staff - Offender Victims • What will the penalty be? - Felony - Misdemeanor - Graduated Sanctions Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

23. 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 Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: 1997, Fifty State Survey of Criminal Laws Prohibiting Sexual Abuseof Prisoners, Brenda V. Smith, National Women=s Law Center.

24. State Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody National Institute of Corrections/American University, Washington College of Law – June 2006 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. Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1 Source: June 2006. The NIC/WCL Project on Addressing Prison Rape

25. Optimal Legal Elements • Coverage • Conduct • Reporting • Defenses • Sanctions and Penalties Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

26. How Does Your State Law Compare with PREA? • The term prison is defined as “any confinement facility of a Federal State or local government whether administered by such government or private organization on behalf of such government and includes: a local jail or police lock-up and any juvenile facility used for the custody or care of juvenile inmates.” • The term inmate is defined as any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary programs • Rape is defined as carnal knowledge, oral sodomy, sexual assault with an object and/ or sexual fondling Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

27. Food for Thought • Staff sexual misconduct is embedded in culture • An incident can polarize staff, population, and leadership • Legislation is the floor- it can and should be reinforced by internal policies and discipline Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

28. 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 or prosecution • Education, prevention, sanctioning, and visible aggressive prosecution can be used to remedy and eradicate this problem Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

29. State Law Activity Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1

30. Exercise • What tools do you have at your disposal? • What statutes can help you get the optimal result? • Where could you strengthen statutes? Developed by Brenda V. Smith and Jaime M. Yarussi under NIC Cooperative Agreement #06S20GJJ1