Staff Sexual Misconduct Criminal Laws

1. Staff Sexual MisconductCriminal Laws Custodial Sexual Misconduct – Statute 709.16 – Sexual misconduct with offenders and juveniles. Iowa’s law is in the Sexual Abuse section of the Criminal Code. It creates a status offense that covers any officer, employee, contractor, vendor, volunteer, or agent of state or local jails and department

2. Custodial Sexual Misconduct • Does the law impose a criminal Penalty on the inmate? (No) • Does the statute cover all relevant forms of sexual abuse? (No) • Does the law allow an officer to claim an inmate consented to the sexual act(s) to avoid prosecution? (No) • The law does not penalize the inmate. • The law prohibits penetration and some forms of sexual touching. • The law does not allow the consent of the victim as a defense.

3. Custodial Sexual Misconduct • Does the statute cover all custodians and staff in contact with inmates? (Yes) • Does the statute cover all places where an inmate might be abused? (Yes) • The law covers goods and service providers to the inmates and facilities. • The law protects all individuals in the custody of the department of corrections or a judicial district department of correctional services as well as those incarcerated in county jails.

4. Custodial Sexual Misconduct • Is the penalty a felony? (No) • Violation is an aggravated misdemeanor.

5. Staff Sexual Misconduct • The Prison Rape Elimination Act of 2003 directs prison officials to make the prevention of sexual abuse in prisons a top management priority. • Apart from criminal charges, corrections staff may be subject to administrative discipline for engaging in misconduct that is not criminal but violates employee conduct policies, such as using indecent language or gestures, or watching offenders for the purpose of sexual gratification.

6. Staff sexual abuse • Staff sexual abuse of offenders has severe consequences for victims: • Undermines the safety and security of prisons In some cases leads to other crimes. • Offenders who are victims of staff sexual abuse may suffer physical pain, fear, humiliation, degradation, and desperation, and this harm can last beyond the victims’ incarceration. Moreover, because female prisoners in particular often have histories of being sexually abused, they are even more traumatized by further abuse inflicted by correctional staff while in custody.

7. On January 5, 2006, the Violence Against Women and Department of Justice Reauthorization Act of 2005 increased the maximum criminal penalty for sexual abuse of a ward from 1 to 5 years and the maximum penalty for abusive sexual contact with a federal inmate without the use of threat or force from 6 months to 2 years. The crimes, which had formerly been misdemeanors, became felonies. On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 further increased the maximum penalties for sexual abuse of a ward to 15 years. The Adam Walsh Act also requires all federal employees who are found guilty of any criminal sexual abuse offense involving a federal inmate or detainee to register as sex offenders. We examined how the change from misdemeanors to felonies affected acceptance rates for prosecution and prosecutorial outcomes.

8. Court Approach Courts are not prison administrators Court always have the benefit of hindsight Litigation brings other issues- press coverage

9. What the Court Looks For Prior practice of the Department / Facility • Have there been prior complaints? • Who has raised them? • Is there policy? Consistently applied? • Is there training? Mandatory? For whom? • Was there a through investigation? • Were appropriate actions taken? (Discipline, termination, ect.)

10. Staff Sexual Misconduct Criminal Laws • The climate has changed in the last two decades • Similar to the current emphasis on –PREA Staff Sexual Misconduct became significant in the early 1990’s • Problems arose due to major cases in several states

11. PREA And Legal Issues PREA does not create a separate cause of action, however, it will be used as justification in other lawsuits. Byrd V. Brennan, 511 US 825 (1994) • Transsexual offender suite for the injuries suffered when the prison officials placed him in general prison population. • Established new legal standard with two part test 1. The injury must be objectively 2. The official must have acted with deliberated indifference or reckless disregard of constitutional rights

12. 8th AMENDMENT: What the Court Looks For • Deliberate Indifference to offender vulnerability – safety or health • Official knew of and disregarded an excessive risk to offender safety or health • Official must be aware of facts which would indicate a substantiated risk of harm and the official drew that inference • Do not need to know of actual harm just risk

13. Official Liability • Did not happen on your watch? • Were you responsible for declaring and/or enforcing policy? • Did you fail to act or ignore information presented to you? • Did it result in harm- proximate cause (as opposed to the direct cause).

14. Official Liability Can Result From: • Failure to train-ensure staff are aware of laws policies • Negligent supervision-oversight to ensure policies followed and complaints addressed • Negligent employment or retention- take action if needed failure to fire. • Best protection is proactive approach- courts will look to see what steps have been taken

15. Penalties • Who will be penalized? • Staff • What will the penalty be? • Misdemeanor /Terminated/ loss of license (counselor) • Register as sex offender/ Fine / SOTP/ Probation / Parole

16. Policy is Not Enough- DASKALEAV.DC(DC CIR.2000) Court ordered sexual Misconduct policy could not insulate agency even though officer’s acts were against policy • No training or policy • Never gave policy to staff or offenders • Policy not posted • 15 grievances by offenders resulted in no actions • No supervision by staff or camera’s

17. Staff Sexual MisconductFinal thoughts • An incident polarizes staff, offender population and leadership • Training is essential • Legislation can be reinforced by internal policies • Absence of the law does not mean that our state cannot address the issue • Education, prevention, sanctioning, and visible aggressive prosecution can only be used to remedy and eradicate this problem