Sexual assaults on female inmates went unheeded (part 2)

(thanks to Lois and The Real Cost of Prisons for bringing this to my attention)


For female inmates, much is at stake as rape trial begins


Second of five parts

The story so far
Toni Bunton landed in a Michigan prison after being convicted for participating in a drug deal that led to a murder. She and other female inmates say they became victims there, helpless to defend themselves against male guards’ sexual advances.

Last January, one day before her civil lawsuit went to trial, Toni Bunton sat on the top bunk in her prison cell at Scott Correctional Facility, a place she had lived almost half her life.

The place where she said she was raped, over and over, by prison guards.

She cried and prayed and wrestled with old doubts that swirled through her head.

Should she stand up in court and tell the world what happened to her? Should she risk her freedom at a time when she was seeking to have her 25- to 50-year sentence commuted? Or should she keep her mouth shut, once more, and hope that her silence was the key to getting out?

She felt trapped.

Once a meek teenager who had silently endured assaults by male guards, Bunton had grown into a confident and respected member of the prison population at Scott, on the border of Northville and Plymouth townships. Even so, she was a convict. With no physical evidence to support her, would jurors believe she had been raped? Would they even care? Bunton was among 500 women who claimed in a lawsuit that prison officials had willfully ignored years of sexual abuse by male guards.

Now, at 34, Bunton was among the first 10 prisoners to reach a courtroom.

"Some people are telling her to lay low, keep your head down until you get out," Dick Soble, one of the lawyers in the prisoners' suit, said of Bunton's fears.

Would the lawsuit help her pitch for commutation or kill it? Even on the eve of her court testimony, the old doubts resurfaced.

The following morning, Jan. 15, Deborah LaBelle woke in a panic, worried about what she would say in her opening statement.

For several days, LaBelle had tried to find the right words, forming thoughts and writing ideas on paper, but she couldn't get it right. She feared her statement was flat, lacking the passion she felt for a case that had consumed her for 12 years.

LaBelle handles civil rights cases from her Ann Arbor office, many involving female inmates. It was while meeting with inmates on visitation and education issues that LaBelle began to hear complaints of sexual abuse. Over the years, as the prison case grew and became more complex, she added likeminded attorneys in private practice.

The chance to speak up

As she prepared for trial, LaBelle knew she had to set the right tone from the start, there was so much at stake. She felt pressure to honor these women, who had waited so long to tell their stories.

So she scribbled on a legal pad, writing and rearranging her notes. As she walked down the sidewalk to the Washtenaw County Courthouse, she was still writing.

Dressed in a simple black dress and coat, intended to convey her serious and somber message, LaBelle continued to scribble as lawyers and spectators filed into the courtroom.

The Department of Corrections had fought the case for years, arguing variously that the statute of limitations had expired on the women's claims; that it should not be considered a class-action; that the hundreds of women in the suit should have their trials held separately; that prisoners don't have the same rights as normal citizens. The appeals went all the way to the Michigan Supreme Court.

Five days earlier, Allan Soros, an assistant state attorney general representing the prison system, filed a motion seeking 10 separate trials for the women. Judge Timothy Connors denied the motion.

LaBelle finished writing as the court was called into session for opening statements. She faced the jury and cleared her throat.

"OK," she said. "Good morning, ladies and gentlemen."

Behind her, against the wall, the 10 women sat in chairs, dressed in civilian clothing -- pink sweaters, blouses, dress pants -- the kind of clothing seen at a PTA meeting. Seven of the women, including Bunton, were still prisoners. They had changed from their prison garb at the courthouse.

"We've all been waiting for this trial for a very long time," LaBelle told jurors.

Her voice was calm. Her mind was racing, trying to find the right balance of emotion. She wanted to scream out loud about how the guards preyed on the pretty ones, the ones who were small and weak, the ones who had been abused as children; how the women had to see the guards every day, yet couldn't report what happened to them, couldn't say no and couldn't fight because guards had all the power.

But the suit wasn't against the guards. They didn't create the system. They didn't have money to pay for damages.

Instead, this lawsuit was filed against the Department of Corrections, former DOC Director Kenneth McGinnis and former Scott Correctional Warden Joan Yukins.

To win, it would not be enough for LaBelle to show the guards had abused the women. LaBelle and her legal team had to convince jurors that prison officials knew about the abuse and did nothing to stop it.

The 1st hurdle: Jury selection

All of the women said they were touched inappropriately -- some, several times a day -- as the guards filled a daily pat-down quota. LaBelle contended that this constant touching emboldened some guards to sexually molest the prisoners.

On the other side of the room, the 10 jury members listened closely. Normally, in a civil trial, six jurors are used and five are needed for a verdict, but Connors said that the trial would last so long that he would lose a few. He kept 10, just in case.

Jury selection took 11 hours.

Several potential jurors said prisoners deserved whatever they got, even though it is a crime for a guard to have sexual contact with a prisoner. Others were dismissed because they said they themselves were sexually abused.

The case against the state

"I want to start with a little history and context," LaBelle told the jury. "Historically, in Michigan ... women used to be supervised in their cells and in their living units and in their showers and in their bathrooms by women. That is the way it was."

But that changed in 1986, when the DOC assigned men to work closer with female inmates.

LaBelle glanced at her notes, but spoke from memory.

She looked into the eyes of the jurors to make sure they were listening, to see whether they were engaged.

"You will hear that these guards -- not all of them, certainly not all of them -- these male guards went further," LaBelle said. "They sexually assaulted these 10 women. After the gropings, after the viewing, after the watching, then they assaulted them. They assaulted them over a period of years.

"Michigan, you will hear, invited men into the women's prison unit areas without training, without restriction and without precautions for these women's safety."

LaBelle told jurors how prison officials had ignored years of warnings.

The Michigan Women's Commission, a governor-appointed group, reported in 1993 an alarming level of sexual abuse and sexual harassment by prison guards. Two years later, the U.S. Department of Justice called it "pervasive." One year after that, Human Rights Watch, the international watchdog group, released a report that said there was a "highly sexualized and excessively hostile" environment.

"Had the wardens and directors looked, they would have seen," LaBelle said. "Had they read, they would have known. Had they listened, they would have heard."

After 47 minutes, she was done.

The state's defense

It was the state's turn.

Soros rose.

Speaking in a dry, steady voice, with little flash or emotion, Soros explained that he represented the prison system and its top officials, not the guards.

Soros, too, offered jurors a history of Scott, and how the facility switched to female prisoners in late spring 1992. At the time of the alleged assaults, there were 860 female inmates and nearly 400 employees.

Admittedly, he said, there are problems in every prison.

"You cannot have a perfectly running correctional facility. There is always going to be some problem that needs to be addressed."

He said the department knew of some allegations of sexual assault and made changes, improving the way it investigates abuses. He added: "You can't solve everything."

He then stressed what would become the backbone of the state's defense: The women had had opportunities to tell the warden and others that they had been assaulted years earlier.

"They didn't report their allegations in a timely manner," he said. "That's crucial."

Over and over, he repeated the point: "You have to know about a problem before we can help resolve it. We didn't get notice. We couldn't do anything about it.

"And we are not at fault."

Human Rights Watch studied abuses

January 4, 2009

The following excerpt comes from a December 1996 report, “All Too Familiar,” by Human Rights Watch. The organization examined sexual abuse of female prisoners in the United States. The full report is available here. It was one of a series of reports in the 1990s that described abuses of female inmates in Michigan prisons.

The Michigan Department of Corrections (MDOC) is currently being sued by seven female prisoners on behalf of all others similarly situated for sexual assault, sexual abuse, sexual harassment, and inappropriate visual surveillance within its correctional facilities for women. The suit comes on the heels of a U.S. Department of Justice (DOJ) finding in 1995 that sexual misconduct pervades Michigan's women's prisons, including rape, sexual abuse, sexually aggressive acts by guards, and violations of the female prisoners' legitimate privacy interests. Our own investigation, conducted from 1994 through 1996, and based on interviews with current and former female prisoners as well as attorneys, prisoner rights advocates, and MDOC, revealed that rape, sexual assault or abuse, criminal sexual contact, and other misconduct by corrections staff are continuing and serious problems within the women's prisons in Michigan have been tolerated over the years at both the institutional and departmental levels.

Rather than seeking to end such abuse, the Michigan Department of Corrections has consistently refused to acknowledge that there is a problem of sexual misconduct in its women's prisons. As noted below, MDOC dismissed the female prisoners' class action suit as "erroneous" and issued a written statement characterizing the DOJ's findings as "vindictive and distorted" and "full of half truths, innuendo, distortion and lies." (658) The state has taken the positive steps of establishing minimal grievance and investigatory procedures as well as disciplinary and criminal sanctions for custodial sexual contact; however, its stated policy of "zero tolerance" for such abuse is belied by a pervasive bias against prisoner testimony, a high incidence of retaliation against complainants, and a consistent problem with the enforcement of appropriate penalties.

MDOC cooperated with Human Rights Watch's on-site investigations at its women's facilities and was prompt in its reply to our requests for additional information. Moreover, we commend the state for expressly criminalizing custodial sexual touching and for establishing clear disciplinary penalties for this crime. However, a significant gap exists between MDOC policy and its practice with respect to sexual misconduct. We strongly urge MDOC to enforce its criminal and administrative prohibitions against sexual misconduct, including rape, sexual abuse, and assault, criminal sexual contact, verbal degradation, and privacy violations; to protect prisoners' right to an effective remedy in cases of sexual misconduct by prison staff; and to end impunity for abusive employees. Moreover, we urge the department to publish regular reports of the nature and results of its sexual misconduct investigations to cooperate fully with the Department of Justice and other independent monitors in their efforts to uncover and remedy on-going custodial sexual misconduct in Michigan's prisons for women.


Custodial Environment

Female prisoners in Michigan, held in increasingly overcrowded facilities, are guarded by a largely male staff. According to recent figures, men constituted from nearly one-half to over two-thirds of the corrections staff in the state's two largest prisons for women, the Florence Crane Women's Facility (Crane) and the Scott Correctional Facility (Scott). (659)

As noted in the legal background chapter of this report, Human Rights Watch does not oppose the presence of male officers in contact positions in female prisons per se. Nor do we believe that all male staff abuse prisoners or that custodial abuse is carried out only by males. However, we are concerned that Michigan has not taken adequate steps to protect against the potential for custodial sexual misconduct that arises out of this cross-gender guarding situation. Although Michigan does expressly prohibit sexual misconduct in both prison rules and criminal law, it fails to train male staff adequately to uphold these prohibitions and does not consistently investigate and discipline those employees found to violate them.

Corrections officials have also failed to inform female prisoners adequately regarding the nature of custodial sexual misconduct and the mechanisms available to seek redress. Christina Kampfner, a clinical psychologist who had worked extensively with women in Michigan's prisons, told us that in these relationships, officers often target "like a radar" women with histories of sexual or physical abuse or prisoners in emotionally vulnerable positions, such as those who lack support from family or friends, who are alienated or isolated by other prisoners or staff, and younger women who are incarcerated for the first time. (660) According to Kampfner, many of these prisoners are so in need of attention that they are easily exploited by the officers.

The gap between policy and practice in Michigan with respect to sexual misconduct is occurring at a time when the women's prisons are increasingly crowded. According to the most recent figures available from MDOC, there are a total of 1,616 prisoners in its women's facilities. (661) The majority of women are held in the Scott Correctional Facility, located in Plymouth, and the Florence Crane Women's Facility, (662) located in Coldwater, which house 771 and 447 women respectively. (663) MDOC also operates Camp Branch, a female camp in Coldwater that holds approximately 400 women. MDOC currently operates both women's prisons in overcrowded conditions--prisoners are double- and triple-bunked — and areas once used for recreational space are being used to house prisoners. (664)

State Legal and Regulatory Framework

Under Michigan's criminal code, any sexual touching with a prisoner by an employee of or a volunteer with MDOC constitutes fourth-degree "criminal sexual conduct," a misdemeanor. (665) The provision was added in 1988 to a pre-existing section of the criminal code that outlawed sexual touching with someone between the ages of thirteen and sixteen who is physically or mentally incapacitated or that is accompanied by force or coercion. The law applies to sexual contact irrespective of a prisoner's alleged consent. (666) Given the position of authority held by a corrections employee over a prisoner, the Michigan legislature found "the usual notions of consent do not apply." (667) The MDOC employee manual reiterates the prohibition on sexual contact with a prisoner and informs employees that such conduct constitutes a crime under Michigan law. (668) Under certain circumstances, corrections officers who engage in sexual intercourse with prisoners may be charged with third or first degree criminal sexual conduct. Third degree criminal sexual conduct occurs when an individual uses force or coercion to have sex. First degree sexual conduct applies to intercourse that occurs under specified aggravating circumstances. (669)

At present, MDOC operates both of its women's prisons and Camp Branch under a court order issued in 1981, in Glover v. Johnson. (670) While the issues raised in Glover are outside the scope of this report, the authorities' persistent defiance of both the judicial authorities and the other external monitors involved in Glover are indicative of similar problems in MDOC's approach to addressing sexual misconduct in its women's prisons.

At the time Glover was decided, it was a landmark decision for incarcerated women regarding their rights and an influential precedent for female prisoners in other states to seek more equal programming. Despite its precedential value, however, women incarcerated in Michigan continue to be denied the full implementation of the judge's order. (671) Attorneys representing female prisoners have been forced to file repeated contempt motions seeking compliance with Glover orders. The district court has found that the state disobeyed the 1981 order in two major contempt rulings. (672)

MDOC's continued noncompliance led the Sixth Circuit Court of Appeals, in 1991, to issue a stern rebuke to the department and to uphold the appointment of a special administrator, a remedy the Circuit Court once found overly intrusive. The Sixth Circuit concluded:

[The] history of this case shows a consistent and persistent pattern of obfuscation, hyper-technical objections, delay, and litigation by exhaustion on the part of the defendants to avoid compliance with the letter and spirit of the district court's orders. The plaintiff class has struggled for eleven years to achieve the simple objectives of equal protection under the law generally, and equality of opportunity specifically. (673)

While the court upheld the creation of a special administrator, MDOC was permitted to designate who would serve in that position. The director of MDOC, Kenneth McGinnis, appointed Nancy Zang, a former parole officer in Illinois as special administrator of the Female Offenders Program. Zang is based in the director's office and reports directly to him.

The Sixth Circuit's rebuke did not appreciably affect MDOC's recalcitrance, and women have continued to face difficulties gaining the remedies ordered by the court. Deborah LaBelle told us there have been more than eight contempt motions filed against MDOC since 1991. (674) The court has issued nine orders to force compliance since 1991, and in March 1995 issued an opinion finding that MDOC had still not obtained compliance, despite MDOC's insistence that they were fully compliant in all areas. (675) On July 19, 1996, the court again issued an opinion and orders to compel compliance. United States District Judge John Feiken concluded: "… Defendants [MDOC et al.] have clearly, positively, and repeatedly violated orders of this court. … In fact, in the nineteen years of this case, Defendants have demonstrated a galling pattern of disrespect for the inmates they hold, the taxpayers of the State of Michigan, and the dignity of this court." (676)

National and International Law Protections

As discussed in the legal background chapter of this report, sexual misconduct is clearly prohibited under both U.S. constitutional law and international treaty law that is binding on the the U.S. federal government and its constituent states. (677) The eighth amendment to the U.S. Constitution, which bars cruel and unusual punishment, has been interpreted by U.S. courts to protect prisoners against rape and sexual assault. This constitutional shield is further augmented by the Fourth Amendment's guarantee of the rights to privacy and personal integrity, which, in a series of lower court cases, has been interpreted to prohibit male guards from strip searching female prisoners, conducting intrusive pat-frisks, or engaging in inappropriate visual surveillance.

Constitutional protections on prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners, or by the U.S. Department of Justice (DOJ). Historically, U.S. prisoners have achieved most of their landmark prison victories through private litigation, particularly by suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union or the National Prison Project of the National Women's Law Center. However, if certain stringent intent requirements are met, the DOJ may criminally prosecute abusive prison officials under federal civil rights provisions. In addition, the DOJ has the statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act (CRIPA) whenever it finds that a state facility engages in a pattern or practice of subjecting prisoners to "egregious or flagrant conditions" in violation of the constitution.

In addition to constitutional protections, prisoners' rights are also protected under international and human rights treaties that are legally binding on the United States. The primary international legal instruments protecting the rights of U.S. prisoners are the International Covenant on Civil and Political Rights (ICCPR), ratified by the United States in 1993, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, ratified in 1994. Both treaties bar torture and cruel, inhuman or degrading treatment or punishment, which authoritative institutional fora have interpreted as including sexual abuse. To constitute torture, an act must cause severe physical or mental suffering and must be committed for a purpose such as obtaining information from the victim, punishing her, intimidating her, coercing her, or for any reason based on discrimination of any kind. Cruel, inhuman or degrading treatment or punishment includes acts causing a lesser degree of suffering that need not be committed for a particular purpose. The ICCPR guarantees the prisoners' right to privacy, except when limitations on this right are demonstrably necessary to maintain prison security.

When prison staff members use force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, their acts constitute rape and, therefore, torture. Torture also occurs when prison staff use force or coercion to engage in sexual touching of prisoners where such acts cause serious physical or mental suffering. Instances of sexual touching or of sexual intercourse that does not amount to rape may constitute torture or cruel or inhuman treatment, depending on the level of physical or mental suffering involved. Other forms of sexual misconduct, such as inappropriate pat or strip searches or verbal harassment, that do not rise to the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment. (678)

ABUSES (679)

The abuses discussed in this section occurred over a ten-year period from 1986 to 1996. Our own investigation took place from March 1994 through November 1996. We found a serious problem of sexual misconduct in Michigan women's prisons, including rape, sexual assault and abuse, criminal sexual contact, inappropriate visual surveillance, and verbal degradation. Unless indicated by the use of a full name, the names of the prisoners have been changed to protect their anonymity. In some cases, the location and exact date of prisoner interviews have also been withheld.

Rape, Sexual Assault or Abuse, and Criminal Sexual Contact

On March 27, 1996, prisoners' rights attorney Deborah Labelle filed a class action suit, Neal/Nunn, on behalf of seven female prisoners and all other females incarcerated in Michigan charging MDOC and several other named defendants with various degrees of sexual assault, sexual harassment, violations of privacy, and physical threats and assaults. (680) Two of the plaintiffs, Tracy Neal and Ikemia Russell, allege sexual assault by male officers at the Scott Correctional Facility in 1994. A third, Helen Gibbs, alleges that she was sexually assaulted by a male officer at the Florence Crane Women's Facility in 1994. Bertha Clark alleges that a male officer at Scott squeezed her breasts and grabbed her crotch during pat-frisks, and Linda Nunn alleges sex-based, derogatory and abusive name calling and sexually threatening comments by a male officer at Scott. Stacy Barker, whose case is described in more detail below, alleges constant harassment and retaliation at Scott for reporting sexual misconduct by staff members, and "Jane Doe" alleges that male officers at Crane subjected her to constant viewing while dressing and undressing, showering, and using the toilet facilities. All seven women report experiencing sex-based insults, sexual harassment, excessively intrusive cross-gender body searches, constant viewing by male staff and threats of retaliation for reporting staff misconduct.

Such allegations of sexual misconduct are not new to Michigan's women's prisons. Documentation we obtained indicates that these charges are consistent with a pattern and practice of conduct in the women's prisons since, at least, the mid-1980s. In 1984 a prisoner accused a resident unit officer, Alfred Beaster, at Huron Valley Women's Facility, (681) of rape. He ultimately confessed to having sexual relations with a prisoner, but asserted the prisoner was the aggressor. He told the prison investigator that:

The prisoner dropped her pants, he took his penis out, but she did all of the manipulation. That is, she backed onto his erection. Officer Beaster maintained he didn't lay a hand on her. Beaster told the officers that he wasn't sure if he was inside of her or not as she was backing up on him. He did tell the officers that he ejaculated and that she asked him if he squirted inside of her. (682)

Then, in 1986, a corrections officer at Crane, Raymond Raby, was dismissed after admitting during a police interview that he had sexual relations on a nightly basis with different women incarcerated at Crane. Raby's exploits came to light after a prisoner, Jackie K., reported that Raby molested her. According to Jackie K.'s statement, Raby entered her cell at night and woke her up. He took her into a visiting room where he grabbed her and kissed her, then fondled her breasts and put his finger in her vagina. (683) Shortly after Jackie K. complained about him, another prisoner reported seeing an officer fitting Raby's description having oral intercourse with a third prisoner. (684)

In 1988 another woman incarcerated at Crane, Kim J., alleged that she was raped by an officer during the night shift. Kim J. reported the incident to the prison psychologist, who then informed other officials in the prison. (685) According to a statement Kim J. made, the officer raped her in the laundry room after she submitted to a "shakedown" (pat-frisk). The next morning, she awakened to find the officer in her cubicle with his hand between her legs. The authorities took no action against the officer because the only evidence was her accusation.

In another incident, Officer Bernard Rivers in 1990 admitted entering a prisoner's segregation cell and sexually assaulting her. According to the prisoner, Lisa G., Rivers entered her cell in April 1988 and told her he could positively or negatively affect her parole, depending on how she responded to his sexual advances. (686) She involuntarily submitted to sexual relations with him. Lisa G. came forward eighteen months later, after Rivers was again assigned to her housing unit, out of fear that he would force her to have sexual relations with him again. MDOC largely ignored Lisa G.'s allegations for four months until she, with the help of her attorney Deborah LaBelle, obtained a court order and wore a wire inside the prison. (687) She successfully taped a conversation with Rivers. His statements acknowledged the sexual assault and resulted in the sheriff's office recommending prosecution. He committed suicide before trial.

In 1992 the Michigan Women's Commission, a governor-appointed body, launched an investigation into the problems facing incarcerated women, focusing in particular on women incarcerated in county jails. (688) The commission interviewed fifty-nine women who were formerly held in jail and were either released or transferred to Michigan's prisons or community-based programs. (689) In each interview, a pre-established series of questions was asked regarding jail conditions including a final, open question, "Are there any concerns you would like to share about conditions here at the prison?" (690)

The prisoners raised a number of concerns in response to the final question, including incidences of rape, sexual assault, and sexual harassment committed by corrections officers. A majority of the women reported sexual harassment and sexual abuse by the guards, ranging from corrections staff demanding sex or sexual favors, often in exchange for certain items, to intrusive pat-downs, to male guards walking through the showers and rooms while the women were undressed. (691) The women's responses to the last question were used to create a final chapter, "Special Report: Women in Prison," of the Women's Commission's Report. At MDOC Director McGinnis's insistence, the section was ultimately deleted from the published report, released in July 1993; the chapter has never been made public in any form. (692)

In February 1993 the Office of the Legislative Corrections Ombudsman, a post attached to the state legislature, conducted a second investigation of sexual misconduct at both Scott and Crane. (693) McGinnis asserts that the ombudsman's findings refuted the information compiled by the Women's Commission, even though a significant percentage of the women surveyed reported that sexual harassment and sexual misconduct were problems in the prison. (694)

In June 1994 the U.S. Department of Justice launched an investigation into prison conditions for women incarcerated at the Scott and Crane facilities pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA). The purpose of the investigation was to determine whether there were any violations of the prisoners' constitutional rights. On March 27, 1995, U.S. Assistant Attorney General Deval Patrick wrote a twelve-page letter to Michigan Governor John Engler that detailed the DOJ's findings. The DOJ concluded:

[T]he sexual abuse of women prisoners by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding and other threats to the physical safety and well-being of prisoners, violates their constitutional rights. (695)

According to the DOJ letter, "nearly every woman . . . interviewed reported various sexually aggressive acts of guards." (696) The DOJ found that prisoners at Scott and Crane had been raped, sexually assaulted, and subjected to groping and fondling during pat-frisks. Additionally, they were subjected to "improper visual surveillance by guards" who:

routinely stand outside the cells of individual prisoners and watch them dress or undress, stand in the shower areas and observe showers and use of toilet facilities. Male maintenance workers stand and watch women inmates who are naked or in various states of undress as well--all on a regular basis without legitimate need. . . . We are unaware of any effort to accommodate the legitimate privacy interests of prisoners. (697)

The status of the DOJ's investigation is discussed in more detail below. In 1994 we interviewed two women--Stacy Barker and Charlene Billups-Hein--who both sued MDOC for repeated sexual abuse by male corrections officers that they endured at the Huron Valley Women's Prison, now closed, and Scott. Barker was raped and sexually assaulted by the same officer, Craig Keahy, over a period of nearly a year and a half, beginning in October 1989. (698) She told us, "He would come to my room or detail [once or twice a week] and force me to perform different sexual acts on him. He would threaten or harass me, like 'I'll make your time hard for you … I have the keys.'" (699) He was discovered by other officers on various occasions leaving Barker's room off-duty but was always allowed to return to her unit and never reprimanded for violation of rules. After a while, his attacks became more violent. She told us, "He'd say things like, 'Come on and suck my dick'. … He'd pull my hair, unzip his pants and force himself in my mouth." Keahy was subsequently discovered by other prison officers, in August 1991, leaving the room of a second woman prisoner. They looked into the prisoner's room and saw that she was naked. While the prisoner initially denied anything had occurred, she was taken to the hospital and an examination was performed which detected the presence of semen. Keahy was convicted in December 1991 on two counts of fourth-degree sexual conduct with a prisoner, a misdemeanor. (700) He was sentenced to community service.

Charlene Billups-Hein was housed in segregation when a male corrections officer, David Rose, started coming to her cell in the early mornings in June and July 1992. (701) According to Billups-Hein, Rose came and spoke with her one night when she was crying and upset. Rose told her he had been having sexual relations with other prisoners and asked her to have sexual intercourse with him. He listed the names and identification numbers of the women with whom he was having sex, many of whom were housed in the segregation unit. According to Billups-Hein, he stated that he had been watching her for a long time and that she would be his fourteenth resident. He had not approached her earlier, Rose said, because she was "with women," implying that she was a lesbian. She told us that she submitted to sexual relations with the officer because she felt that she did not have any choice. When he approached her on subsequent occasions, the officer allegedly brought her various things, such as cigarettes, makeup, perfume, candy, and cookies. She said they had sexual intercourse and that she performed oral sex on him a number of times. Officer Rose was charged with criminal sexual conduct third degree and acquitted. He was returned to Scott where he is currently employed and is reportedly under investigation for renewed charges of sexual misconduct with a different prisoner.

Other women we interviewed in 1994 reported similar assaults by male officers and staff. In late 1993, Anne B. was taking a break from her work assignment in a back room when her supervisor came in. (702) He approached her from behind and started kissing her. He then pulled her to the ground and had sexual relations with her. She told us, "I felt uncomfortable. It wasn't something I wanted. . . . After that, he acted as if nothing happened. He did his job, I did mine." Anne B. discussed the rape with other women on her work assignment, who described similar encounters with the same employee, although none of them admitted actually submitting to sexual intercourse.

Another incarcerated woman we interviewed, Gloria P., told us that Officer A was assigned to guard her room when she was admitted to a hospital outside the prison for medical treatment. (703) During her stay in the hospital, he became increasingly assertive, touching her, making comments like, "You need a man like me," or suggesting she take a shower and helping her undress. He once turned on a nude dance show on the television in the hospital room and made comments such as, "I like women with a lot of butt" or made reference to their breasts. One day, he sat on the edge of her bed and kissed her. On another occasion, she told us, he kissed her breasts and she performed oral sex on him.

According to Gloria P., "It went on from there, and we had a relationship in the sexual sense" in the hospital and once she returned to the prison. Everyone, including staff, she said, knew about the relationship. She explained, "That person never gets tickets [disciplinary write-up], never needs a pass, could go wherever they wanted and, if anybody ever had a problem with her, he'd [take care of it]." (704) During this time, he brought her various things, such as nail polish, money, a ring, and candy. One night, she stated, the relationship "got really intense"--he started rubbing her hair while other prisoners were watching, and they went into a nearby closet to kiss. Within days, Gloria P. was moved to another unit but continued to see Officer A in the yard, or he would switch shifts with officers on either her unit or a neighboring unit in order to see her.

On February 22, 1996, we interviewed an attorney representing a female prisoner who was charging a male officer at Scott with sexual assault. (705) The assault occurred during the midnight shift on July 31, 1995. The prisoner was asleep in her cell when the officer entered, tied her down to her bunk, sexually abused her, and hit her repeatedly. The officer eventually left and during the early hours of the morning, another officer found the prisoner tied to her bed and badly beaten. The prisoner was taken to the hospital and then returned to Scott. The officer was placed on leave immediately and eventually charged with first-degree criminal sexual conduct. He pled guilty to assault with intent to commit criminal sexual contact and received four years probation, one of which he must serve in jail. (706)

In mid-1996, we obtained information about a December 26, 1995, sexual assault by a male officer on a female prisoner at Scott. The assault allegedly occurred during the midnight shift when the officer on duty came into the prisoner's cell, unzipped his pants, and raped her. After hearing a noise outside her cell, he told her to meet him in the bathroom area, where he raped her again. After coming into her cell later in the night and raping her another time, he told her the rapes would be "our little secret." The prisoner reported the rapes on January 9, 1996. She was visited by an inspector at the facility that same day and by a state police officer the following day. At this writing, the prisoner is still incarcerated at Scott and has no knowledge about the progress of the investigation. The officer has not been assigned to her unit but is still working at the facility.

On November 4, 1996, we received reports of an alleged sexual assault at the Camp Branch facility. The assault occurred on October 29, 1996 and was allegedly committed by a civilian food service employee. State troopers were contacted and are investigating the case. To date, no warrant has been issued.

Prisoners who are not involved with officers often witness their sexual activities with other prisoners. According to Frances U., when she worked nights in the school building, she often saw officers in the library with their pants down with a prisoner. She told us, "We would watch officers taking women to the basement. If you couldn't find an officer, you would wait to see which room he came out of. It runs rampant." (707)

Mistreatment of Prisoners Impregnated by Guards

As a result of custodial sexual misconduct, some prisoners have been impregnated by corrections staff. These women are particularly vulnerable to harassment by staff and to the punitive investigatory measures at times employed by MDOC. The experience of one woman, Anne B., whom we interviewed in 1994, is particularly telling. In 1993 Anne B. reported that she had been sexually assaulted by a corrections employee and requested a pregnancy test. Almost immediately after the test results returned positive, the authorities removed her from the prison where the assault occurred and placed her in a segregated cell at Huron Valley Men's Prison (HVM) infirmary.

While at HVM, Anne B. was locked in for nearly twenty-four hours a day and denied access to a phone. Attorney Deborah LaBelle told us that she learned of Anne B.'s predicament only through another prisoner at HVM who contacted LaBelle. (708) Anne B. was removed from her cell only for meetings with MDOC staff investigating her pregnancy. According to Anne B., these investigators repeatedly interrogated her about the circumstances of her pregnancy. One investigator threatened to keep her in segregation throughout her pregnancy, take away her accrued good time, and return her to the facility where she was assaulted unless she assisted with the investigation. Anne B. also told us that this investigator pressed her to have an abortion, repeatedly asking her, "Don't you think it'd just be better for you and the child to just have an abortion?" (709) She resisted this pressure and carried her pregnancy to term.

Anne B. was released from segregation after nearly three months and placed in the general population at another women's prison in the state. She told us that in this new facility she had been continuously harassed by prison staff about what she had told investigators and whether she reported who impregnated her. The doctor at this prison reportedly refused to treat Anne B. during her pregnancy, and she had to receive prenatal care from a doctor in a nearby town.

In February, 1996, we learned of another female prisoner who had been sexually assaulted by a male officer during an August 1995 stay in a hospital at the Huron Valley Men's Prison, where she had been sent for treatment for an ongoing medical problem. The prisoner had taken a shower and was toweling off in the bathroom when the officer, an employee of the HVM who had been guarding her, entered the room and had sexual relations with her. Subsequent to the incident, she requested a pregnancy test and was found to be pregnant. The baby was determined by a paternity test to be his, and he was charged with fourth degree criminal sexual misconduct, to which he pled no contest. (710) A person familiar with the case told us that after the prisoner decided to report the officer, she was harassed by other officers at Scott. One officer reportedly told her that it might make her time easier if she did not pursue the case.

Privacy Violations

Despite clear decisions in U.S. courts and relevant international law, Michigan has no policy in place to ensure the privacy of incarcerated women. MDOC makes no distinction between male and female corrections officers in conducting pat-frisks or searches of a prisoner's cell or the shower and toilet areas. (711) In practice, male corrections officers patrol these areas and are in a position to view incarcerated women in a state of undress or while using the shower or toilet facilities.

MDOC's use of male corrections staff in the housing units of the women's prisons and the dearth of restrictions on their job assignments appear to be rooted in a 1982 federal court decision, Griffin v. Michigan Dept. of Corrections. (712) Griffin was a class action lawsuit filed by female corrections officers who alleged that they were unfairly discriminated against, in violation of Title VII of the Civil Rights Act banning sex discrimination, because MDOC limited their job assignments to female facilities and they were denied positions in the over twenty men's prisons. These assignments, in turn, adversely affected their professional advancement. At the time, the MDOC restricted female corrections officers from working on the housing units in the men's prisons for the security and safety of the female officers and for reasons of prisoner privacy and rehabilitation. (713)

The judge in Griffin flatly dismissed the contention that prisoners had a constitutionally protected right to privacy. He found that:

Any contention by [MDOC] that they are entitled to the Title VII [bona fide occupational qualification] exception on the basis of the prisoner's right to privacy . . . is without merit. Prisoners do not possess any protected right under the Constitution against being viewed while naked by corrections officers of the opposite sex. (714)

The judge's blunt denial to prisoners of a constitutionally protected right to privacy was made without reference to or consideration of any legal precedent and was strikingly inconsistent with similar decisions from other jurisdictions that predated Griffin. Prior to 1982, other courts repeatedly recognized that prisoners had a constitutionally protected right of privacy, including the right to be protected from being unduly observed while naked or while using the toilet. (715) Where the employment rights of corrections officers were at issue, the courts directed the state to balance the equal employment opportunities of the corrections officers with the need to protect the prisoners' right to privacy. Griffin, however, decided otherwise.

MDOC has chosen to rely on Griffin rather than on other federal court decisions since Griffin that ordered or allowed prison officials to protect prisoners from unwanted and unwarranted intrusions on their privacy by guards of the opposite sex. (716) The court did not address the privacy rights of female prisoners which subsequent courts have acknowledged are entitled to a different analysis. A number of decisions have specifically dealt with the role of male corrections officers, upholding or directing limitations on cross-gender pat-downs or frisks by corrections officers of the opposite sex, (717) and permitting the removal of male officers from the housing units. (718) In some of these decisions, the court has explicitly stated that Griffin is the exception rather than the rule. (719) Strikingly, in contrast MDOC's combative approach to Glover and its tendency to appeal virtually every adverse district court ruling, it did not appeal Griffin.

Abusive Pat-Frisks

MDOC does train corrections officers in the proper procedure for conducting pat-frisks: they should use the back of their hand, rather than the palm, when searching the chest and genital areas. (720) MDOC policy requires each nonhousing corrections officer to search at least five "randomly selected" prisoners per shift. These searches are intended to prevent prisoners from possessing contraband; under departmental policy "no search shall be conducted for the purpose of harassing or humiliating a prisoner." (721)

Nonetheless, male corrections officers frequently abuse their power to conduct random pat-frisks in a degrading and sexually hostile manner. During pat-frisks and pat-searches, male officers often use their open hands and fingers to grope or grip a women's breasts and nipples, vagina, buttocks, anus, and thighs. They reportedly target certain women, usually the younger ones, while older, long-term prisoners are rarely frisked. Joann F. told us:

The male officers sit by the door to the kitchen and shake the women down as they leave. We watch the way they do it and who they pick. I watched one who felt a woman down in front of everyone else as she left. It's always male officers at the door in the kitchen who do the shakedowns. (722)

Carol H. noted, "The [women] look ashamed because they have the officer pawing at their body. It depends on what you look like, what you have on. You can guess who and when they are going to shake a [woman] down." (723)

Corrections officers have used the frisks and pat-searches to exercise undue power and control over incarcerated women. When ordered to submit to a frisk or pat-search, a woman must comply or risk disciplinary action. In some instances, women who have requested that a female corrections officer conduct the frisk or who have pulled away during an offensive frisk have received major misconduct tickets for disobeying a direct order. Such tickets have resulted in administrative segregation and loss of good time and disciplinary credits. According to one grievance we reviewed, prisoner Maxine Q. was being pat-frisked by Officer W when, she alleged, he cupped her breasts and then groped her vagina as he ran his hands between her legs. Maxine Q. pulled away and requested the presence of a female officer. A second prisoner who witnessed the frisk contacted a female officer. Maxine Q. then agreed to continue the frisk. The male officer wrote two misconduct tickets against her for disobeying a direct order to submit to a frisk and for creating a disturbance, both of which constitute a serious disciplinary offense. In another incident, a prisoner was found guilty of assaulting a resident unit officer (RUO) and placed in segregation after she pushed the male officer's hands off her breasts during a pat-frisk. Another prisoner had previously filed a grievance against the same RUO for fondling her breasts and groping her during a pat-frisk.

On June 15, 1995, MDOC introduced a housing unit policy requiring female prisoners to wear bras. (724) In some instances, officers have required female prisoners to lift their shirts in order to ascertain whether or not they are complying with that policy.

While the policy stipulates that a strip search should be performed by employees of the same sex as the prisoner, it creates several broad exceptions. A male staff member may strip search a female prisoner he is assigned to transport outside the facility or in case of emergency. A male supervisor may be present during a strip search if his presence is "required by policy." (725)

Inappropriate Visual Surveillance

Housing Units

Crane currently houses 447 women in an open dormitory setting. (726) Initially, there were four units per building, with each unit separated into a cubicle with two or four women per cubicle. The cubicles were placed against the walls with six- to eight-foot partitions on the sides and front providing privacy. MDOC has now begun to eliminate the partitions in front of and between the cubicles, thereby eliminating all privacy. A woman prisoner reported being called on by MDOC to assist in the removal of the partitions. Moreover, as of early 1996, the majority of the housing units at Crane have all male officers. All the assistant unit managers are male. Female prisoners report being forced to dress and undress under the direct supervision of officers and staff of the opposite gender.

On January 8, 1996 Michigan prisoners' rights attorney Deborah LaBelle filed a motion in federal district court, as part of the ongoing Glover litigation, protesting the removal of privacy partitions in the women's housing units at Crane. (727) To date, attorneys pursuing the motion have received over 200 letters from women incarcerated at Crane noting that the loss of privacy has caused "the loss of their last vestiges of dignity." Prisoners report in these letters that:

  • officers come and go without announcing themselves;
  • it is extremely hard to dress without being in full view of the other inmates, along with many male officers;
  • it is not right that they have to be subjected to this open dorm atmosphere with the majority of officers being male;
  • they live in an open dorm and are subject to constant viewing from any individual passing their unit. They do not even have space to get dressed in the living area, and if they reach out their hands while dressing and so does their neighbor, they can touch one another; and
  • the officers walk in at every opportunity without prior notice, sometimes catching them nude or in various other stages of undress.

In mid-1996, the court ruled that the January 8 motion was within its jurisdiction pursuant to Glover, and the judge stated his intent to visit the facility. The visit has not yet occurred. However, during a recent visit to Crane pursuant to the Neal/Nunn class action suit, a visit which was discontinued in the middle because of a temporary stay of the suit granted to MDOC by the district court of appeals, attorneys acting for the women prisoners reported that in one of the units, partitions have been reinstalled. This is a positive step. However, the new partitions are only four feet in height, and as the cubicle areas are double-bunked, the women on the top bunk in particular will still be vulnerable to constant viewing by male officers.

Searches of the Showers and Toilets

Prisoners we interviewed stated that some male corrections officers routinely patrol the showers and toilet areas while the women are using these facilities. Such checks, ostensibly a means to insure that no sexual misconduct is occurring between prisoners, are entirely unwarranted, since the facilities are designed particularly to allow for proper monitoring. (728) In practice, however, male corrections officers appear to abuse their authority freely to conduct "searches"; they fail to announce their presence in the area and pull back shower curtains on prisoners to comment or stare. At times, this occurs even after a prisoner has been asked to identify herself and show her face. Carol H. told us that officers come into the bathrooms while they are in use to "chitchat" or get water. As she put it:

The women can complain and bitch, but it doesn't do any good. The [officers] pull the curtains back and look. There is an agreement that male [officers] could look under the curtain, and as long as the feet were in the right position, they would not pull back the curtain. But, they do it anyway. . . . If we complain, the male guards respond, "I can do what I damn well please" or, "Well, we've got to have shower checks." (729)

When Carol H. objected to the officer's conduct, he responded, "You don't have anything I haven't seen before." She filed a grievance that was denied, she was told, because officers are permitted to conduct shower checks.

Medical Appointments

Male corrections officers have also accompanied women on gynecological visits and while female prisoners are giving birth, and remained in the examination or delivery room. One prisoner, Nina L., filed a grievance over the lack of privacy during gynecological exams, stating that she felt uncomfortable discussing her medical condition or undressing in front of the male officer. She asked the officer if he would step outside while she was examined, but he refused. Nina L. pursued the grievance until it was reviewed by the warden, who told her that it was prison policy for the officer to keep the prisoner in his sight, and that the prisoner could have refused the outside medical visit. (730) In other words, the prisoner was expected to choose between foregoing medical treatment or undressing in front of a male officer.

Male officers have also reportedly watched prisoners giving birth. Michelle T., a former prisoner, told us that she was accompanied by two male officers in the delivery room while she was giving birth. According to Michelle T., the officers handcuffed her to the bed while she was in labor and positioned themselves where they could view her genital area while giving birth. (731) She told us they made derogatory comments about her throughout the delivery. (732)


MDOC Director Kenneth L. McGinnis has acknowledged that sexual misconduct does occur within Michigan's prisons. (733) However, he has repeatedly contended that the department has "zero tolerance for such behavior," (734) despite the contrary findings of the Women's Commission, the Legislative Correction's Ombudsman, and the U.S. Department of Justice. Unsurprisingly, in light of its failure to recognize the problem of sexual misconduct, MDOC has also failed to take adequate steps to respond to this abuse. In particular, the department's grievance, investigatory, and disciplinary procedures and practices and its manner of treating prisoners who have complained of sexual misconduct are in urgent need of reform. Moreover, the role of the state criminal justice system in investigating and prosecuting criminal sexual misconduct needs to be enhanced and its record improved.

The Right to an Effective Remedy

As discussed in the legal background chapter of this report, international human rights law obligates national governments not only to prohibit torture and cruel, inhuman, or degrading treatment, but also to ensure that when such abuses occur, they can be reported and fully and fairly investigated without the complainant fearing punishment or retaliation from the authorities. (735) In addition, under U.S. law, prisoners are also guaranteed access to the courts to challenge prison conditions or other prison problems.

Flawed Grievance and Investigatory Procedures

Michigan has both general grievance and investigatory procedures that can be applied to sexual misconduct. The state's grievance procedure, in principle, allows prisoners to challenge "alleged violations of policy and procedure, unsatisfactory conditions of confinement, official acts, or denial of rights which directly affect them." It is a three-stage process which allows for a first-stage internal complaint to a grievance coordinator, a second stage appeal to the warden, and a third stage appeal to the director of MDOC itself. At each stage, both prisoners and staff are required to respond to and/or appeal grievances within proscribed time periods. As with grievance procedures in other states, Michigan requires the prisoner to consult informally with the staff person involved before filing a formal grievance. The only exceptions to this process are grievances regarding racial discrimination or staff corruption, which may be submitted directly to the director. Whether sexual misconduct is considered a form of staff corruption is not expressly indicated.

According to MDOC, three potential mechanisms may be employed to investigate charges of sexual misconduct raised by prisoners: institutional investigations, internal affairs investigations, and referrals to the state police. Which mechanism is used depends on the nature and seriousness of the allegation and the individual involved. (736)

Inspectors operating within the prisons commonly endeavor to substantiate the prisoner's claim through conversations with the officer, the prisoner and any witnesses or other relevant parties. The results of this investigation are then shared with a supervisor who makes a recommendation to the warden, usually orally, about what additional steps, if any, should occur. According to an April 1994 MDOC policy directive, whenever investigations conducted at this level indicate that an employee is "alleged to have committed criminal activity of a major magnitude," (737) including sexual assault, prison officials must "immediately notify" the department's internal affairs section.

While these procedures exist, there appears to be no clear guidelines to determine when a particular mechanism, alone or in conjunction with another, will be used, and prison officials retain a considerable amount of discretion in determining whether or not an investigation of whatever sort should be initiated. (738) Moreover, in practice they have often effectively denied women the right to complain of such abuse and are fraught at all levels of the process with a bias against prisoner testimony and conflicts of interest. Finally, the process of filing a complaint of sexual misconduct or having it investigated routinely subjects complainants to retaliation and punishment.

Effective Denial of the Right to Complain

While Michigan's grievance procedure may not be flawed on its face and has been certified under the CRIPA process described in the legal background chapter of this report, it is highly ineffective for reporting and addressing sexual misconduct. Problems begin at the initial, informal step in the process requiring prisoners to confront the officer against whom they are filing a grievance. Where prisoners fail to take this step, their grievances have been rejected. (739) Yet, the fact that they will have to confront their abuser often deters women from reporting sexual abuse for fear of the retribution discussed in more detail below. In reviewing MDOC's grievance procedure, the DOJ stated that this requirement has the purpose, intent, or effect of intimidating the inmates and discouraging the filing of grievances. (740)

Moreover, even if the prisoner were to succeed in lodging a complaint without first confronting the officer, her complaint is likely to be made known to him almost immediately. While Human Rights Watch believes that the officer should have the right to confront the complainant, MDOC often allows this to happen when he is still in a contact position over her. This further exposes prisoners to retaliation and so deters them from filing grievances of sexual misconduct that it effectively denies them their right to complain. Moreover, her complaint is often made know to persons not directly related to the incident.

Bias Against Prisoner Testimony

Where women prisoners do decide to lodge a formal grievance of sexual misconduct, they face a review and investigatory procedure that is tainted by a pervasive bias against prisoner testimony. Corrections officers responding to grievances of sexual misconduct generally deny that the incidents ever occurred. In one grievance we reviewed, an officer responded to a prisoner's complaint of an offensive pat-frisk in the following manner, "I shake down [frisk] everybody the same way, no exceptions. . . . The balance of the allegations are untrue. At no time did these allegations ever happen or occur [emphasis in the original]." In another grievance, the officer responded, "The statement in this grievance is a flat out lie and therefore there is not merit to it." In a third, the officer asserted that the prisoner wrote the grievance as a means to avoid a disciplinary ticket, stating, "This grievance has been filed in an attempt to get out of one misconduct. … This grievance has been falsified and is totally untrue." On this basis, the grievance is then denied.

The officers' denials do not, in and of themselves, constitute a violation of the procedure; some grievances may result from misunderstandings or prisoners' mischaracterization of a situation. And prisoners are granted the right, at their own initiative, to lodge an appeal. However, the problem is that reviewing officers -- warden, captains, or sergeants -- have often accepted without further inquiry the accused's blunt assertions that the prisoner lied. In one case, a prisoner filed grievances against two officers, one of whom was in training, for standing in the showers and watching the prisoners. The responding officer denied any unprofessional conduct. When the prisoner appealed her grievance to Warden Carol Howes at Crane, Howes responded that action would be taken where there were instances of abuse or where the prisoner's claim could be verified. She deemed the prisoner's own complaint insufficient to support the allegation of abuse and dismissed it.

As with the grievance procedure, the integrity of the investigative process is often compromised by a bias against prisoner testimony. MDOC proceeds on the assumption that any statement made by a prisoner is per se not credible and insufficient in and of itself to support a charge against a corrections employee. Documentation we obtained reveals that MDOC has repeatedly stated that it will not uphold an employee's dismissal where the only evidence of inappropriate or illegal conduct is the prisoner's testimony. While prisoners must prove the veracity of their allegations of sexual misconduct by prison staff, their words and the words of other prisoners around them who may have witnessed the incident are deemed insufficient. Meanwhile, a corrections employee's statement is presumed, prima facie, to be a true and accurate portrayal of what transpired. (741)

From our interviews and the documentation we obtained, it seems that after a prisoner comes forward to allege sexual misconduct, she is repeatedly interviewed and required to prepare a written statement. The accused employee is also questioned informally or receives a short set of questions designed by the investigator. These questions often require no more than a yes or no response from the officer and can be fairly leading, such as: "Have you today or previously had any contact with that is sexual in nature or that could be considered to be sexual by her?" "Have you ever been alone with for any reason, either today or previously?" "Have you had any contact of any kind with either today or previously?" (742) Their responses in the negative to the questions posed have sometimes proven sufficient to close any further inquiry into a prisoner's charges.

Bias against prisoner testimony exists even in cases where prisoners pass polygraph examinations. Kim J., a prisoner discussed above, passed a polygraph examination regarding her charges that an officer raped her. The accused officer refused to submit to a polygraph exam. MDOC declined to proceed with any disciplinary action because, according to documents we obtained, it "[does ] not recognize prisoner testimony, nor [does it] recognize results of polygraph examinations." (743)

This tendency to reject prisoner testimony out of hand has had a chilling effect on the reporting of sexual misconduct and has allowed abusive staff to continue working unchecked, free to abuse other prisoners. In 1986 a prisoner at Crane asserted that she had sexual relations with a corrections officer, Don Davenport, in exchange for favorable treatment. When she stopped meeting him, she allegedly began to receive misconduct tickets from this officer and others on his shift. (744) Three additional prisoners were interviewed who substantiated various elements of the prisoner's account. (745) Davenport and a second officer, who was partially implicated, denied the allegations. The institution discontinued its investigation for undisclosed reasons within two weeks, three days after receiving notice from the county prosecutor that he would take no further action. (746) No separate disciplinary inquiry was instituted, and Davenport remained employed at Crane. He was subsequently convicted in 1989 for arranging an attack on a female prisoner after she reported that he was bringing drugs into the facility and sexually harassing prisoners.

Even a series of complaints from prisoners indicating a pattern of abuse by a particular officer sometimes proved inadequate to substantiate charges of sexual abuse where the only victims and witnesses were prisoners. In March 1993 four prisoners at Scott alleged a pattern of sexual harassment by the resident unit officer (RUO) on their unit, ranging from abusive pat-frisks to inappropriate shower checks. One prisoner asserted that the RUO fondled and groped her during a frisk while another complained that he tried to pull the shower curtain back while she was showering. A third prisoner was found guilty of assaulting the officer and put in segregation after she pulled away during a frisk when the RUO fondled her breasts. The women's allegations of mistreatment were supported by letters and statements from other prisoners on the unit. (747) The investigator dismissed the prisoners' allegations as a conspiracy to remove the officer from the unit. In so doing, the investigator cited interviews he had with prisoners who had not raised complaints, but gave no reason why those prisoners were deemed more credible than the ones who reported the abuse and the ones who prepared statements.

In addition to frequently dismissing prisoners' allegations out of hand, MDOC has sometimes also failed to respond to corrections staff's reports of a pattern of sexual misconduct by particular officers. Between January and October 1992, staff and prisoners reported that a food service supervisor at Scott was overfamiliar or sexually involved with various prisoners. In the first incident, in January 1992, an officer reported finding a prisoner in this employee's car while the prisoner worked a maintenance detail. (748) The food service director dismissed the officer's report because another employee witnessed the prisoner standing a few cars away, despite the latter having arrived on the scene later. (749) Although the food service supervisor received a written reprimand following the car incident and an oral reprimand subsequent to a separate incident, the prison administrators made no apparent effort to investigate a possible pattern of ongoing misconduct with a series of prisoners.

In Stacy Barker's case, prisoners and staff repeatedly alleged seeing Officer Keahy leaving her cell when he was working the night shift. The institution initiated an investigation but took no action against the officer for over a year and a half, until he was discovered engaging in sex with another prisoner. As noted above, he was later tried and convicted in December 1991. Similarly, no action was taken against Raymond Raby for over a year, despite several reports by sergeants and his supervisor that he was engaged in inappropriate sexual conduct: in one report, his supervisor stated he saw Raby leaving a prisoner's cell with his shirt untucked; in another, Raby was allegedly seen running away from the women's housing area. While Raby was suspended temporarily, he was later reinstated for a year despite these reports. He was finally dismissed after he confessed to the state police that he was having sex with prisoners on a nightly basis. (750) He was never prosecuted.

Conflicts of Interest

The legitimacy of the grievance and investigatory procedures is undermined completely in cases where officers are assigned to investigate themselves. According to Joan Yukins, the warden of Scott Correctional Facility, as late as 1995 it was departmental policy to allow an employee to participate in investigating a grievance against him or her. (751)

While the creation of institutional inspectors and an internal affairs section are important steps toward guaranteeing the impartiality of the grievance and investigatory procedures, we found that the credibility of such investigations is still undermined by many of the same procedural irregularities that we discovered with respect to the grievance procedure, including bias against prisoner testimony, conflicts of interest, and fear of retaliation or punishment.

In one 1988 case that we reviewed, a male captain accused of inappropriately strip searching a prisoner was placed in charge of the investigation into his own misconduct. After interviewing the prisoner himself and obtaining exculpatory statements from officers under his supervision, the captain concluded that the prisoner's allegation had no merit. The warden upheld the captain's finding and did not question the inherent conflict of interest in an officer investigating himself.

The prisoner involved subsequently received a ticket for major misconduct for interference with the administration of rules--a ticket that can result in segregation and loss of good time credit--for having made a "false accusation." The hearing officer on the ticket determined that the captain would have to have intentionally engaged in conduct that could affect his rank and continued employment in order for the prisoner's allegation to be true. In other words, in the prison administration's eyes, no corrections staff person would knowingly engage in misconduct that could affect his employment; therefore, the prisoner must have lied.

In August 1992 a deputy warden at Scott headed an investigation in which he and eleven other staff members were implicated in various acts of overfamiliarity with prisoners. The investigation was triggered by an anonymous letter sent to the legislative ombudsman. The deputy warden was put in charge of questioning the staff and reporting back to the warden. Not surprisingly, the deputy warden cleared himself of the allegations, stating in his memorandum to the warden, "This is the most ludicrous, ridiculous, trumped up lie I have ever been accused of. I unequivocally deny these charges … " (752) To our knowledge, no further review was conducted.

In one case that we investigated, Phyllis W. reported a corrections officer for continuously harassing her and making comments about her buttocks, charges that the officer flatly rejected. Although he was the accused, the officer went on to participate in the "investigation" into Phyllis W.'s grievance, which entailed an interview with her by the officer and his superior. During the interview, Phyllis W. refused to answer several questions and appealed her grievance to the second level of review, wherein she restated her allegations. The appeals officer apparently considered the previous interview to be adequate and rejected her grievance. He wrote:

Your grievance has been thoroughly investigated. The investigation failed to find conclusive evidence to support your claim. Because your claim has not been substantiated, no further action is recommended.

The Role of the State Police

Not all investigations into alleged sexual misconduct are handled exclusively by the given prison or MDOC. Cases of suspected criminal conduct are at times referred to the state police. MDOC's internal affairs section coordinates these referrals in conjunction with other departmental investigators. (753) According to a summary of sexual misconduct complaints provided to Human Rights Watch by MDOC, of thirty-nine complaints it recorded at the Crane and Scott facilities in 1994 and 1995, twenty-seven were referred to the state police. (754) However, these referrals did not necessarily result in disciplinary action. Only five of the twenty-seven referrals appear to have been sustained. (755) Of particular concern to Human Rights Watch is that in some instances, referrals to the state police have had the effect of discontinuing the departments own investigation. Thus, as in the Davenport case mentioned above, an employee that the state decides not to prosecute may, as a result of the department of correction's failure to pursue its own investigation, also escape sanction for a violation of prison rules.

Retaliation and Punishment

Although MDOC clearly prohibits reprisal for the filing of a grievance, (756) the threat of retaliation pervades the prison environment in Michigan. Such retaliation can function as punishment for having reported misconduct (757) or as a means of coercing prisoners to acquiesce to unwanted sexual relations with corrections employees, and acts as a powerful deterrent to the reporting of sexual misconduct by corrections staff.

From the outset, the accused employee is informed of the name and prison identification number of the complainant, even though it is often unnecessary to reveal the identity of the prisoner. While, as noted earlier, Human Rights Watch supports the right of the accused to confront his accuser, we believe that MDOC does not take adequate steps to ensure that this does not result in retaliation against the prisoner. For example, in one April 1992 investigation, the deputy warden for custody requested an employee's phone bills to document allegations that the officer had permitted prisoners to call his home. The request was accompanied by the heading "staff investigation for over familiarization with ...” and listed the names of several prisoners. The officer was still in a contact position over the prisoners when the request was made, thus unduly exposing them to the possibility of retaliation.

Prisoners who have themselves reported sexual misconduct through the grievance or investigatory process, or those whose abuse was revealed by others, have been subjected repeatedly to room searches, pat-frisks and disciplinary tickets. According to attorney Deborah LaBelle, "harassment is constant and insidious" for those who challenge sexual abuse: "They receive misconducts for the most minute infractions of rules that are not generally enforced against anyone else." (758) Barker described her experience after allegations came to light:

It's normal to do it [frisk] a certain amount of times. But at times I can be shaken down before I leave the unit, when I come in, while I'm in the unit. And when I'm the only one that this is happening to, I feel that's harassment. Certain officers just say certain things. And it's just really hard being in a situation like this and speaking up about something. (759)

Charlene Billups-Hein, for example, was repeatedly ticketed for minor infractions. After she came forward, officers and prisoners treated her, in her words, "like the bubonic plague," making derisive comments and encouraging others to avoid or ignore her. (760) She told us that whenever she walked by one particular officer, he told those around him to shut up, and they stared at her as she walked by.

Gloria P., who was also involved in a different investigation of an officer, has had similar experiences. She told us:

Officer C would follow me everywhere I went. He was the yard officer. Or, he would stand by another officer and talk about me in a loud voice, but not talking to me. To this day, he says, "I hate you" whenever he sees me. (761)

When her father or brother visit, according to Gloria P., "He would tell other prisoners, 'She don't like p-u-s-s-y-s [sic].'"

In Carol H.'s experience, "To complain, you can file a grievance, but that will bring instant retaliation to you." (762) She observed that when women approach the officer to discuss the grievance informally, as required by departmental policy, the officer will often respond, "Well, if you file that grievance, I will write you up for a misconduct." Carol H. continued, "He's not supposed to do that, it's against policy. The ticket sticks because it's his word against hers." In her experience, prisoners who "want to go home," such as those with short sentences or approaching parole, are less inclined to complain.

People outside the prison who are related to or working with a prisoner have also been forced to endure forms of retaliation ultimately targeted at the prisoners. Christina Kampfner, a clinical psychologist who was permitted under court order to counsel one prisoner who was raped by a corrections officer, reported that she was routinely forced to wait up to two hours before being cleared to enter the prison and repeatedly had to present the court order to gain access. (763) This occurred even though she visited the prison on a regular basis. As a result, she had to leave extended periods of time free and was forced to reduce the number of times she visited the prison. Stacy Barker's family reportedly experienced similar problems. According to Barker, her parents contacted the prison several days prior to a visit to ensure that she had visits available. But when they arrived at the prison they were informed, erroneously, that no visits remained for the month. The visitation date in question happened to be the birthday of Barker's daughter, who had joined her grandparents for the denied visit.

Even if MDOC were to take the welcome step of removing the accused officer from any contact with the complainant, this is no guarantee that the prisoner will escape retaliation. Because complaints are often made known to persons not directly related to the incident, other officers may retaliate against the prisoner on behalf of their colleague. In Joann F.'s experience, a woman can report the misconduct of a corrections officer who consequently may be reprimanded, but the abuses do not necessarily cease because the guilty officer's friends on the force may write misconduct tickets against the complainant. (764) Carol H. has observed a similar pattern of retaliation. As she described it, "If one officer is writing up a prisoner, then it's more apparent what's going on. So they use the good ole boy network where others will write her up." (765) Similarly, if an officer said a prisoner did something, other officers would usually vouch for that officer.

Retaliation or the threat or fear of reprisal from corrections staff serves as a very effective way to keep women in sexual relationships with the officers. Within the prisons, some women may enter into seemingly uncoerced sexual relationships with corrections staff. However, women who seek to end these relationships often experience retaliation, hostility and increasingly violent sexual demands. Gloria P. was repeatedly harassed by Officer A. When she learned she was granted parole, she told him she was going home. He reportedly responded, "No you aren't. You are staying with me." (766) She told us she sought to end the relationship with him because he had become ever more hostile and verbally abusive. He began to write her disciplinary tickets and to accost her verbally, often in front of other prisoners and/or officers. The situation worsened until one evening she reportedly cursed at him in front of other officers and received a major misconduct ticket that resulted in the revocation of her parole.

In some cases, prisoners who have accused corrections staff of sexual misconduct have been effectively punished by the institution for coming forward. Often, after alleging sexual misconduct, female prisoners are involuntarily placed in segregation, ostensibly for their own protection, without any charge being filed against them, pending the institution's investigation of their cases. While the prisoner suffers what amounts to punishment for coming forward, often no action is taken against the implicated officer. He generally remains on duty and continues to have responsibilities over and contact with other prisoners. In one case we reviewed from 1990, the institution determined that sufficient evidence existed, including corroborating statements by other staff and prisoners, to refer the case to the Michigan state police. The officer had allegedly cornered and groped a prisoner. While the warden determined that a suspension of the officer was not necessary, she still sent the prisoner to segregation without her consent, supposedly for her own protection. Kim J., mentioned above, was also sent involuntarily to segregation while her charges that an officer raped her were investigated. She was subsequently transferred to a higher-security facility. The officer, to our knowledge, was never disciplined in any way.

The combination of bias against prisoner testimony, conflicts of interest, and fear of retaliation that pervades the MDOC grievance and investigatory procedure makes complaints of sexual misconduct extremely difficult to substantiate. Even if prisoners do decide to complain, their testimony often will not be credited, absent medical evidence or witnesses who are not prisoners. Given the closed nature of the prison environment, such evidence is often very difficult to obtain. Thus, for example, of the thirty-nine reported complaints of sexual misconduct MDOC recorded in 1994 and 1995, only five were sustained. (767)

Inadequate Documentation

One of the biggest obstacles to eradicating sexual misconduct is its invisibility both within and beyond the correctional system. The hidden nature of the problem reflects not only the obstacles to substantiating such complaints, but also MDOC's failure fully to record such complaints and any investigation of them in a consistent and centralized fashion. When allegations of sexual misconduct are not substantiated, no formal record of the complaint is kept with respect to the implicated officer. (768) Thus, an officer may have had several allegations of sexual misconduct lodged against him, but because no complaint was ever substantiated and no disciplinary action was ever taken, the allegations are unlikely to appear in his or her personnel file. Clearly, no officer should be held to account for abuses he or she was not proven to commit. However, the state's failure to keep a formal record of sexual misconduct allegations by the officer named not only renders it unlikely that the future conduct of the officer will be adequately monitored, but also makes it virtually impossible to collect information about a past pattern or practice of alleged sexual misconduct which might prove relevant to substantiating subsequent allegations of abuse.

MDOC officials have noted that any complaints of sexual misconduct, at whatever level, whether substantiated or not, should be referred to a supervisor. However, it is clear that there is no written policy in this regard and no clear department-wide system of keeping track of complaints of or investigations into sexual misconduct. A given correctional facility may or may not be able to report at any specific moment exactly how many complaints of sexual misconduct have been lodged at the facility or in what manner they have been or are being addressed. In addition, no guarantee exists that reports of investigations from within the facility are necessarily contained in monthly reports by the wardens to the director of MDOC. According to Joan Yukins, the warden at Scott, no format exists to report to the central office on a monthly basis regarding investigations of overfamiliarity or disciplinary actions, including dismissals taken with respect to them. (769) As a result, legitimate cases of sexual misconduct, valuable evidence in support of complaints of such abuse, the records of known abusers, and the proper oversight of supervisors are falling through the cracks. This not only puts the prisoners at greater risk of sexual misconduct but also makes it more difficult to monitor such abuse effectively. As such, it raises the question of whether MDOC's own figures regarding sexual misconduct, cited above, are reflective of the full scope of the problem.


According to MDOC policy, the disciplinary sanction for maintaining an improper relationship with a prisoner, including romantic, sexual or overly familiar relationship, is discharge. (770) While MDOC has actually dismissed staff over the years, we reviewed a significant number of past investigations that reveal that MDOC, instead of dismissing corrections employees found guilty of sexual misconduct, often allowed them to resign or to voluntarily transfer to men's facilities. Director McGinnis has acknowledged that resignation or transfer in lieu of discipline "occurs periodically" in Michigan's facilities, (771) but that such actions usually function as a form of settlement when a dismissal appears unlikely to be upheld during the civil service proceeding or labor relations arbitration that accompanies such sanctions.

Aside from being an inappropriate penalty, the option of resignation in a number of cases has resulted in the rehiring of implicated staff who had never been exonerated of sexual involvement with prisoners. Resignation does not prevent such employees from seeking future employment as corrections officers either with MDOC or elsewhere. Beaster, the residential unit officer who admitted having sexual relations with a prisoner but claimed that she had backed into his erect penis, was permitted to resign. He subsequently worked for the department of corrections in a neighboring state. (772) A second corrections officer was rehired, with back pay, six months after he voluntarily resigned rather than face an investigation into allegations of sexual misconduct. The institution had collected letters and pictures he sent to the prisoner while she was incarcerated. The officer was suspended three months later for overfamiliarity with another prisoner. A third corrections officer, who resigned from Crane for "romantic involvement" with a prisoner, contacted the institution about future employment. He was informed that he could be reconsidered for employment once the prisoner was no longer at the facility.

While an offer to resign or transfer may occur after an official finding that sexual misconduct took place, it can also be used to sidestep the disciplinary process altogether. In these cases, a employee may resign once faced with the likelihood of a disciplinary hearing before any formal finding of sexual misconduct is made. For example, in one 1992 case we investigated involving a resident unit officer at Scott, the officer denied having sexual relations with the prisoner but then failed a polygraph exam. He was allowed to resign voluntarily in lieu of discipline. Because no disciplinary hearing ever occurred, no record of the employee's suspected activity will be retained by MDOC. The employee may thus seek work elsewhere in the correctional system, and no guarantee exists that his past record of alleged sexual misconduct will be known to his new employers.

Where officers are not offered the option to resign or transfer, they may still be able to escape disciplinary sanction altogether and remain at the facility. Kim J.'s alleged attacker was never investigated thoroughly because the only evidence was her testimony. (773) Another officer who fondled a prisoner's breast while she was asleep was promoted to a RUO position after the investigation closed. He asserted he was merely looking for her identification card. Although she passed a polygraph exam, MDOC decided "from an administrative standpoint there was no evidence of wrongdoing," (774) while the local prosecutor dropped the case reportedly because the prisoner was the sole witness. In a third case, the department suspended David Rose during his criminal trial for allegedly raping Charlene Billups-Hein, but did not investigate his actions for possible violations of prison rules. In 1993, after his acquittal, MDOC allowed Rose to return to his former position at Scott, and even assigned him on occasion to work on the unit where Billups-Hein is incarcerated. (775) According to a recent deposition of Inspector Howard, at Scott, Rose is once again under "investigation" for sexual misconduct with a prisoner with whom he had been previously reported to be involved, but remains on staff at Scott. (776)

In other cases, where MDOC did take action to dismiss an employee, the dismissal only followed an employee's explicit admission of wrongdoing, even though extensive evidence already existed. Raymond Raby, for example, was repeatedly reprimanded, then suspended, only to return to the institution for a full year before he was finally fired in 1986. He was dismissed only after he admitted to state police that he was sexually involved with prisoners on a nightly basis. In Officer Keahy's case, the institution received numerous reports that he was seen leaving Stacy Barker's room, but failed to take any disciplinary action until he was caught raping another prisoner. (777) As stated earlier, he was subsequently convicted in December 1991 and received two six-month sentences for fourth-degree sexual conduct that he was permitted to serve concurrently.

As noted above, only complaints that exhibit "a reasonable suspicion" of a criminal act will be referred to the Michigan state police. (778) To our knowledge, very few such referrals actually result in prosection. According to MDOC's own figures, of twenty-seven complaints of sexual misconduct referred to the state police in 1994 and 1995, only two were referred for prosecution. (779)

Lack of Independent Oversight

One of the key ways to combat impunity with respect to sexual misconduct in any prison facility is to open the system up to investigation and oversight by outside, independent monitors. Given MDOC's refusal to recognize that it has a problem with such misconduct, it is perhaps not surprising that the Michigan government has been extremely hostile to any sort of independent review of its correctional system. The Michigan Women's Commission, which was appointed by the governor, has its findings of possible sexual misconduct suppressed. The office of the Legislative Corrections Ombudsman, which was established by the state legislature in 1988 to oversee conditions in Michigan's prisons, had its investigatory powers restricted in 1995 and its staff reduced. Moreover, when the Department of Justice, which has the legal authority to investigate constitutional rights violations within state prisons, tried to enter women's prisons in Michigan, the state refused to cooperate with the DOJ's investigation and blocked the DOJ from entering the prisons to conduct interviews. (780) A district court judge rejected the DOJ's effort to obtain a temporary restraining order to enter the prisons. MDOC eventually permitted DOJ attorneys to interview prisoners during regular visiting hours, in the nonconfidential setting of the prison visiting rooms, but denied the DOJ access to the prison more generally.

Michigan Women's Commission

In the months preceding the formal publication of the report of the Women's Commission, both the director and governor went on record to refute allegations of sexual misconduct in the women's prisons. On January 6, 1993, Governor John Engler released a statement asserting that sexual abuse is not a problem in the prison system. He maintained:

The vast majority of our 14,000 corrections employees perform their duties in a manner which is beyond reproach. The few which don't are dealt with swiftly and severely. The state of Michigan does not tolerate sexual harassment, abuse or assaults. (781)

On January 7, 1993, MDOC Director McGinnis released a statement contending that the MDOC has "zero tolerance" for sexual abuse, harassment, or sexual contact between employees and prisoners. He stated further, "Our record of disciplinary actions and dismissals verify this fact." (782) Responding to McGinnis's statements, the Michigan Women's Commission, its staff, and a former intern, Jenny Elder, met with Director McGinnis in May 1993. Elder had conducted the majority of interviews for the report and had drafted the controversial chapter on women in prison. According to Elder:

I told him [the director] about the sexual harassment and health care concerns raised in the interviews, such as TB, hepatitis. He was very defensive. McGinnis was not prepared to make any promises to look into these issues. He referred to the grievance procedure as available to the women and that [the MDOC] had not gotten more than one or two letters alleging sexual harassment. He tried to imply the women were lying. (783)

MDOC has since dismissed the information gathered by the Women's Commission about sexual misconduct in the prisons as "unsubstantiated anecdotal information" (784) that was "extremely misleading and written to incite sensationalism rather than fact." (785) On the other hand, to our knowledge, MDOC has not challenged the commission's findings, based on the same interviews, that sexual harassment was a serious problem in Michigan jails.

Legislative Ombudsman

The Michigan State Legislature created the office of the Legislative Corrections Ombudsman in 1988 to provide an independent and external means to investigate allegations of wrongdoing by MDOC. This was a commendable step, designed to ensure that prisoners alleging abuse by MDOC employees had recourse beyond the department itself. Unfortunately, in late 1995, the Michigan state legislature voted to amend the ombudsman's position and moved to restrict its independence.

Under the original legislation, the ombudsman, according to MDOC policy, was authorized by law to investigate "any administrative act by [MDOC] or its employees, which is alleged to be contrary to law or department policy," even if the allegation is "unaccompanied by adequate justification or based upon irrelevant, immaterial or erroneous information." (786) Prisoners were authorized to write to the ombudsman directly, and their letters could not be opened or screened by prison officials. (787) While the amended law retains the confidentiality of communications between the ombudsman and prisoners, it now restricts the ombudsman's authority to initiate investigations. Rather than relying on prisoner communications or other sources to prompt an investigation, the ombudsman may now start an investigation only upon receipt of a complaint from a legislator. The only investigations he can undertake on his own initiative relate to significant health and safety issues of prisoners or parolees. (788)

In our view, the Michigan state legislature should act to strengthen rather than reduce the ombudsman's independent investigative authority. Given the myriad problems with the manner in which MDOC monitors, investigates and punishes sexual misconduct within its women's facilities and the real risk of retaliation or punishment faced by women who report such abuse, a strong, independent and confidential investigative authority is crucial to any meaningful effort to eradicate sexual abuse in custody. The new restrictions on the ombudsman's power and resources suggest that neither the state legislature nor MDOC are fully committed to this end.

Department of Justice

On March 27, 1995, U.S. Assistant Attorney General Deval Patrick wrote a twelve-page letter to Michigan Governor John Engler that detailed the DOJ's findings regarding conditions at Crane and Scott. Specifically, the DOJ concluded:

that sexual abuse of women prisoners by guards, including rapes, the lack of adequate medical care, including mental health services, grossly deficient sanitation, crowding and other threats to the physical safety and well-being of prisoners violates their constitutional rights. (789)

According to the letter, "nearly every women . . . interviewed reported various sexually aggressive acts of guards." (790) The DOJ found that prisoners at Scott and Crane had been raped, sexually assaulted, and subjected to groping and fondling during pat-frisks. Additionally, they were subjected to "improper visual surveillance by guards." (791)

The MDOC has responded to the DOJ's findings in much the same way it responded to the Michigan Women's Commission report. A MDOC spokesman dismissed the findings as "anecdotal and half-truths." (792) MDOC Director McGinnis characterized the DOJ's findings as "outrageous, unverified claims" (793) and issued a written statement calling the DOJ's letter "'vindictive and distorted' and full of 'half-truths, innuendo, distortion and lies.'" (794)

The DOJ issued the letter as a prerequisite to possibly filing suit against Michigan under CRIPA. The suit could not be filed sooner than forty-nine days after the letter was sent to Governor Engler, which would have been mid-May 1995. Today, eighteen months after the requisite forty-nine days expired, the DOJ has yet to file suit. On October 1, 1996, the DOJ described to us its inquiry into prison conditions in Michigan as an "open investigation," but declined to say if or when it may sue MDOC for CRIPA violations. (795)

Lack Of Training

MDOC requires new corrections officers to successfully complete 320 hours of classroom training, which consists of academic, practical, and physical training. Two months of on-the-job training at the officer's assigned facility must also be completed. (796) According to Director McGinnis, no training in cross-gender guarding was provided to MDOC staff prior to 1994. (797) Our interviews indicate that, while MDOC materials describing training now include a reference to "sexual harassment," this training has not been fully carried out and has yet to address in any detail the question of sexual misconduct.

In addition to failing to train officers adequately to refrain from custodial sexual misconduct, MDOC has not yet educated prisoners about the prohibitions on and remedies for such abuse. A 1991 prisoner guidebook, which is provided to all prisoners, does stipulate that "[p]risoners shall not be subjected to personal abuse from Corrections staff," and "[s]taff will discourage, with all appropriate means, any person's use of derogatory, demeaning, humiliating or degrading actions or language toward others." (798) Whether the latter admonition extends to corrections staff is unclear. A revised guidebook (799) issued in 1993 and provided to prisoners at Scott Correctional Facility, fails to mention that sexual abuse by corrections staff is prohibited and, in some cases, criminalized; nor does it indicate how prisoners should proceed in reporting such behavior. (800)


I. Prohibiting Sex in Custody

  • A. The Michigan state district attorney should strictly enforce Michigan's prohibition against criminal sexual conduct and ensure that those correctional employees who violate this law are held fully to account.
  • B. MDOC should strengthen its policy directive to explicitly ban sexual intercourse, sexual touching or any other form of sexual contact between corrections employees and prisoners and to require that prisoners are free from torture or cruel, inhuman, or degrading treatment as a matter of compliance with U.S. obligations under international law.
  • C. MDOC should remove all administrative provisions that allow for the punishment of prisoners who engage in sexual intercourse, sexual contact or any other form of sexual conduct with corrections staff, and cease punishing prisoners found to have engaged in such behavior. Punishment of prisoners for sexual misconduct has the effect of deterring their reporting of such abuse by corrections staff.
  • D. MDOC should cease using administrative segregation as de facto punishment when prisoners report sexual misconduct by guards.

II. Safeguarding Prisoners Impregnated by Guards

  • A. MDOC should stop punishing or harassing in any way prisoners who are impregnated by officers. MDOC should also refrain from administratively segregating pregnant prisoners, unless they expressly request it. Such segregation should provide for the provision of adequate medical and hygienic requirements necessary for a safe pregnancy.
  • B. MDOC should ensure that women who are impregnated by corrections staff are not pressured in any way to undergo abortions. Prisoners should receive neutral counseling on all options available to them.
  • C. MDOC should ensure that pregnant women receive timely and adequate medical care, and that medical treatment recommended by physicians is provided as prescribed. Such medical care should include professional psychiatric counseling for prisoners impregnated as a result of rape or sexual assault or abuse and others victims of sexual misconduct who request it.

III. Prohibiting Abusive and Degrading Language

MDOC should strengthen its policy directive to mandate humane treatment of prisoners and prohibit derogatory language. Corrections staff must be made aware, through enforcement, that they are obligated to comply with such provisions or be subjected to disciplinary sanctions.

IV. Protecting Privacy: The Need for a Policy

A. MDOC should institute a policy to protect the privacy of women prisoners consistent with several federal court decisions recognizing that prisoners have a constitutionally protected right to privacy. Corrections employees should be fully trained in this policy, and it should be enforced strictly. Such a policy should include, among other things:

  • 1. a requirement that male officers announce their presence before entering a women's housing unit, toilet, or shower area;
  • 2. permission for prisoners to cover their cell windows for limited intervals while undressing or using the toilets in their cells; and
  • 3. a rule that only female officers should be present during gynecological examinations.

B. MDOC should cease "unclothed body searches" of women prisoners either by or in the presence of male employees, or under circumstances where a male employee may be in a position to observe the prisoner while she is undressed. Strip searches should be administered in a location that limits access by other prisoners or employees.

C. MDOC should use female officers to pat-search female prisoners whenever possible. All officers should be trained in the appropriate conduct of pat-frisks and in the disciplinary sanctions associated with improperly performed searches. Women prisoners who either pull away during offensive pat-searches or request that the search be conducted by a female officer should not be subjected automatically to disciplinary action.

D. MDOC should rescind immediately the requirement that officers meet quotas for pat-searches per shift. This practice may encourage officers to conduct searches without reasonable cause to believe that a prisoner possesses contraband.

E. MDOC should rescind the policy requiring female prisoners to wear bras.

V. Ensuring the Right to an Effective Remedy


A. MDOC should amend its grievance procedure in cases of alleged sexual misconduct by corrections employees, expressly authorizing prisoners to bypass the informal level of review and file their complaints directly with the prison superintendent or investigator.

B. MDOC should take steps to insure that its grievance procedure includes provisions that inter alia protect the confidentiality of the complainant and witnesses during the time in which the officer is still potentially in contact with them; withholds information about complaints from those not directly or by authority involved in the alleged incident; ensures that prisoner testimony is give due weight; and prevents the implicated officer from conducting the investigation.

C. MDOC should make grievance forms readily available in the prison library or other neutral place.

D. MDOC should, under all circumstances, refrain from assigning implicated officers to investigate allegations of their own misconduct. Officers alleged to have committed rape, sexual assault or abuse, or criminal sexual contact should be assigned to noncontact positions or suspended until the circumstances are clarified and the investigation completed.


A. MDOC should promulgate a written procedure for conducting investigations into custodial misconduct, with specific reference to sexual misconduct, both at the level of the facility itself or at the level of the internal affairs section or other departmental divisions. The investigative procedure should, at a minimum:

  • 1. clarify which investigations should be conducted from within the facility, which by internal affairs, and the relationship between the two entities with respect to any such investigation;
  • 2. specify the circumstances necessary to initiate an investigation at either end;
  • 3. describe exactly the steps investigators within prison facilities should follow in conducting an investigation;
  • 4. set forth the same criteria for investigations by the internal affairs section;
  • 5. set forth a clear structure and time frame for conducting investigations; and
  • 6. provide for a special investigator in the office of internal affairs section trained to handle sexual misconduct complaints, in particular, with the necessary human and material resources to do so.
B. In establishing these clear and exhaustive investigatory policies, the MDOC should endeavor to:
  • 1. protect as much as possible the anonymity of the complainant;
  • 2. guard complainants and witnesses from retaliation and harassment; and
  • 3. ensure accountability to outside monitors. For example, the complainant's legal counsel, upon request, should be provided a written record of the investigation, including all statements made by the complainants and witnesses.
C. MDOC should integrate this expanded investigative procedure into its operations manual and make it available as a public document.

D. MDOC should require all corrections employees to report promptly any allegations, including rumors, of sexual misconduct or other overfamiliar conduct to the prison warden and should reward those that do while sanctioning those who do not.

E. MDOC should refer all allegations of rape, sexual assault, and other alleged criminal conduct promptly to the state police for criminal investigation. When a referral is made to the state police, MDOC should continue, not cease, its own internal investigation into possible employee misconduct and proceed with disciplinary action when appropriate.

VI. Preventing Retaliation Against Complainants

A. MDOC should ensure, as much as possible, the confidentiality of allegations of sexual misconduct by prison staff and the anonymity of both complainant and witnesses during the period that the accused remains in a contact position with the complainant or is assigned to the facility where the complainant resides. MDOC should also seek to prevent the complainant's name from being revealed generally within the facility.

B. MDOC should restrict access to prisoner files not already protected and ensure that better protections for the confidentiality of records are provided.

C. MDOC should suspend any employee accused of sexual misconduct, including overfamiliarity with a prisoner, if such misconduct once proven would result in dismissal.

D. MDOC should investigate reports of retribution promptly and vigorously and should discipline transgressing employees appropriately.

E. MDOC should ensure prisoners the right to counsel in cases of sexual assault.

VII. Curtailing the Use of Administrative Segregation and Other Punishment

A. MDOC should authorize the use of administrative segregation during an investigation only at the prisoner's explicit request. Since a prisoner placed in administrative segregation for her own protection has not committed a disciplinary offense, she should retain the rights of the general population (e.g., telephone calls, visits, access to recreation, etc.). She should be returned to the general population when she requests to be. MDOC should train employees assigned to segregated housing units regarding such provisions.

B. MDOC should ensure that prisoners who complain of sexual misconduct are not directly or indirectly punished for such complaints through the loss of good time toward early parole or any form of disciplinary segregation.

C. MDOC should ensure that prisoners who file grievances are not wrongfully charged with "interference with the administration of rules" or other disciplinary offenses, such as "false accusation," solely because the accused officer denies any misconduct or because the alleged incident is "unsubstantiated."

VIII. Ensuring Discipline

A. MDOC should create a clear policy on disciplinary action against abusive corrections employees for all forms of sexual misconduct.

B. MDOC should ensure that an employee found to have engaged in sexual relations or sexual contact with prisoners will be dismissed. Transfer of such employees to other positions or facilities does not constitute appropriate punishment.

IX. Ensuring Accountability to Outside Monitors

Michigan Women's Commission

MDOC should publish the full report of the Michigan Women's Commission.

Office of the Legislative Corrections Ombudsman

A. The Michigan Legislature should strengthen the office of the Legislative Corrections Ombudsman to function as a fully empowered and independent review board to investigate, among other things, complaints of sexual misconduct. The review board should have the authority to turn over evidence of possible criminal wrongdoing to prosecutorial authorities. The board should also be able to recommend remedial action to stop abuses or other problems during an investigation.

B. The review board should develop a system whereby the records of any corrections employee who has been the subject of repeated sexual misconduct complaints are reviewed by the appropriate authorities.

C. The review board should further provide a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of misconduct, including retaliation against complainants.

Department of Justice

As a matter of urgency, the Michigan governor and the MDOC director should cooperate fully with the Department of Justice in its ongoing investigation into abuses in Michigan's women prisons.

Nongovernmental Actors

MDOC should provide timely and written information about an investigation to the complainant and the people she designates, such as her attorney and her family, upon their request.

X. Hiring, Training, Education, and Information

Correctional Employees

A. MDOC should improve its screening procedures for applicants for corrections positions. Background checks should be completed before new employees are sent into correctional facilities. In no case should MDOC rehire an employee who has been convicted of an offense related to sexual misconduct in custody or who resigned in order to avoid such investigation.

B. MDOC should, as soon as possible, implement comprehensive and mandatory training on issues specific to incarcerated women for all current and future corrections employees assigned to women's prisons. This training should include, among other things:

  • 1. a general discussion or profile of female prisoners and their potential vulnerability to sexual misconduct;
  • 2. MDOC policies prohibiting all sexual contact, degrading language, inappropriate visual surveillance, and other sexually oriented or degrading behavior toward incarcerated women and the disciplinary or criminal sanctions associated with this behavior;
  • 3. appropriate methods for conducting pat-searches, strip searches, and searches of women's cells, housing units, and bathroom areas; and
  • 4. MDOC should, in developing and implementing this training, collaborate with local nongovernmental organizations experienced in working on issues affecting incarcerated women, including rape and sexual assault.


A. MDOC should advise incarcerated women, as part of their orientation to the corrections system, as well as prisoners already serving their sentences, of the following:

  • 1. Corrections officers are strictly prohibited from having any form of sexual contact with prisoners. The orientation should also include a thorough review of departmental process regarding privacy and humane treatment; the procedures for reporting and investigating sexual misconduct; and the departmental or criminal law sanctions associated with it.
  • 2. Grievances relating to sexual misconduct may be filed directly and confidentially with the prison investigator. All grievances should be acknowledged and resolved as soon as possible. Prisoners should be informed about the issues that may be dealt with through the grievance procedure, with a particular emphasis on instances of sexual misconduct; the location of grievance forms; any specific procedures for reporting sexual misconduct; the recourse available when corrections officers fail to respond; and the potential to resolve complaints through the internal investigation procedure and the independent review board when one is established.
  • 3. MDOC should also acquaint prisoners with their rights under international human rights treaties ratified by the U.S., as well as under U.S. constitutional law.

B. The above information should be included in the prisoner handbook.

Improving Documentation

A. MDOC should take immediate steps to improve its system for the documentation of custodial misconduct, including sexual misconduct, and make available on a semi-annual basis reliable and accurate public reports of such misconduct arranged by date, location, and type of allegation; rank and function of employee; and specific actions taken by the facility, internal affairs or other departmental division, or state criminal justice authorities.

B. As a necessary step toward improving its capacity to provide such thorough and timely information, MDOC should:

  • 1. keep files by name of officer of all allegations of custodial misconduct, including those that were not substantiated;
  • 2. ensure that each warden or supervisor reports monthly to the director regarding all allegations or findings of misconduct, including sexual misconduct, and the actions taken or recommended with respect to each; and
  • 3. create a position within MDOC charged primarily with data collection regarding administrative or criminal misconduct by correctional employees, who will review monthly the reports of each facility and provide semi-annual reports to the director.