February 12, 2019
In the previous entry, we briefly touched on the subject of Objective Classification and the need to have it in a jail to reduce risk, or to make sure it is brought into play during Request For Production (for those you who unfamiliar with this term, good job and keep running a well operated facility…those of you who cringed keep reading…those of you who write them, take note). Our next topic is sexual misconduct by staff.
First topic, there is no such thing as consent in a custody environment. In this case, the term custody can be at time of arrest; in a jail or prison; or under supervision by a correctional employee or volunteer. An inmate has no way of giving consent to a sexual act to a person in the position of any type of authority. In all states that I have worked, there is legislation that makes sexual conduct with an inmate a violation of law (check your state statutes by searching for sexual misconduct and inmates).
Second topic, it is not always a male perpetrator and female victim. The victim can be male, female, non-binary or in transition or gender identification. The perpetrator can be of any gender, identification and need not be an employee. Anyone with authority over an inmate or someone on supervision can commit sexual misconduct.
Third, it need not be in a jail or prison. This can occur at time of arrest; in the jail; in a prison; or during a home check while on probation or other form of community supervision.
Now that everyone is a suspect, what are the proper steps to reduce the likelihood of sexual misconduct?
- Proper screening at time of hiring: Make sure your agency or the agency you are in litigation with, has performed a proper and thorough pre-employment background check.
- Proper training at time of hiring and at least annually: Staff should be aware of sexual misconduct and proper ways of searching inmates, interacting with inmates and being aware of their surroundings and potential manipulation.
- Proper supervision: Staff should be supervised and their working areas should be randomly inspected and have unannounced visits by supervisors and administration. This is particularly difficult in a jail where you can not move without being on camera (you should be on camera) and through doors that are remotely controlled. However, if you know how to move through facilities, you will get a sense for what is going on in a living unit. It does not take long once you start to dig.
- Proper supervision of volunteers and visitors: just like staff, visitors and volunteers must be trained in proper interaction with the inmate population and made aware of potential manipulation.
- Education of the Inmate Population: The management of a jail is pretty straightforward. A well-run facility operates on positive and negative consequences. If you clean your cell area and dayroom, the group gets cookies, extra TV, extra recreation or some other reward. If the rooms are not cleaned, these same things are removed. Inmates should be educated as to what are proper rewards or discipline. If you can get a dayroom cleaned for cookies (proper use of rewards), imagine what you can get for a cell phone or other items from the outside. Inmates must be taught this is wrong and how to report it.
- Proper training of management: Management must be aware and engaged in the supervision of their facilities. They must be aware of potential red flags (a staff member isolating an inmate, meeting with an inmate in an unusual area, paying special attention to an inmate, etc.) and have the training to immediately investigate and address the situation.
These steps are basic and by no means an exhaustive list. For more information, search the Internet for the National PREA (Prison Rape Elimination Act) Resource Center and then for PREA essentials, training and certifications. You can also look to the US Attorney Generals Website for the final PREA rule from 2012, or you can email me and I can help get you pointed in the right direction (or help you with your litigation matter).