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USA: Nowhere to Hide: Retaliation Against Women in Michigan State Prisons

Publisher Human Rights Watch
Publication Date 1 July 1998
Citation / Document Symbol G1002
Cite as Human Rights Watch, USA: Nowhere to Hide: Retaliation Against Women in Michigan State Prisons, 1 July 1998, G1002, available at: http://www.refworld.org/docid/3ae6a86718.html [accessed 25 April 2014]
Comments In December 1996 Human Rights Watch released All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, a report documenting pervasive sexual harassment, sexual abuse and privacy violations by guards and other corrections department employees in state prisons in California, the District of Columbia, Georgia, Illinois, Michigan, and New York.1 The report also exposed the failure of states to respond to women's reports of sexual abuse and harassment. The failure was twofold: states failed to conduct impartial investigations of allegations of sexual abuse, and they further failed to protect women who reported these abuses to prison authorities, leaving them vulnerable to retaliation by guards.
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

I. SUMMARY

In December 1996 Human Rights Watch released All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, a report documenting pervasive sexual harassment, sexual abuse and privacy violations by guards and other corrections department employees in state prisons in California, the District of Columbia, Georgia, Illinois, Michigan, and New York.[1] The report also exposed the failure of states to respond to women's reports of sexual abuse and harassment. The failure was twofold: states failed to conduct impartial investigations of allegations of sexual abuse, and they further failed to protect women who reported these abuses to prison authorities, leaving them vulnerable to retaliation by guards.

Since the publication of All Too Familiar, Human Rights Watch has continued to receive reports of sexual abuse of and retaliation against women incarcerated in jails, state prisons, and federal prisons. We have been particularly disturbed by reports of an apparent campaign by some corrections officers of retaliation against several of the women in Michigan prisons who are active in the ongoing civil litigation against the Department of Corrections alleging widespread sexual abuse by guards and staff. Several of these women had provided information for All Too Familiar, and Human Rights Watch knows their case histories. We therefore conducted further research, focusing specifically on retaliatory behavior that appeared to be connected to the women's roles as plaintiffs in the class action suit, Nunn v. Michigan Department of Corrections (Nunn suit).[2] We also collected information on the chilling impact of the perceived retaliation on other inmates.

In order to document retaliation, Human Rights Watch focused on the experiences of a few women who, by their participation in the Nunn suit, are particularly visible to the corrections staff and vulnerable to retaliation. The class action suit was filed in June 1995 and alleges constitutional violations, including retaliation, rape, and violations of their right to privacy. We interviewed the women, lawyers representing these women, former guards and reviewed misconduct reports against the women, grievances made by the women, and materials available through the discovery process in Nunn suit. We conducted our interviews and research from December 1997 through June 1998.

As reported in All Too Familiar, being a woman prisoner in a U.S. state prison can be a terrifying experience. If you are sexually abused by a prison staff person, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and corrections employees continue to engage in abuse because they believe they will rarely be held accountable, administratively, civilly, or criminally. Few people outside the prison walls know what is going on or care if they do know. Fewer still do anything to address the problem.

Over 1.7 million people are incarcerated in the United States.[3] Approximately two-thirds are held in federal and state prisons, the rest in local jails.[4] Women account for 6.4 percent of all prisoners nationwide.[5] The femaleinmate population continues to grow at a much faster rate than the male inmate population.[6] The vast majority of these women are incarcerated for non-violent crimes, such as drug offenses, property crimes, and prostitution.[7] According to current estimates, nearly half of all female prisoners have experienced some form of sexual and/or physical abuse prior to incarceration.[8] More than two-thirds of women in prison have children under the age of eighteen, and among them, 75 percent (versus 10 percent for men) are the sole custodial parent.[9]

In Michigan approximately 2,000 women are incarcerated in state prisons and constitute about 5 percent of the prison population in the state.[10] As in virtually every other state, the women prisoners in Michigan are held in increasingly overcrowded facilities.[11] Male guards account for at least half of the corrections staff in the state's two largest facilities for women.[12]

In Michigan, as in the other jurisdictions we investigated, the custodial sexual abuses and misconduct reported in All Too Familiar took many forms. Male corrections employees vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. In the course of committing such gross abuses, male officers not only used actual or threatened physical force but also abused their near-total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or to reward them for having submitted to sexual acts. In other cases, male officers violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers used mandatory pat-frisks or room searches to grope women's breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male corrections officers and staff also engaged in regular verbal degradation and harassment of female prisoners, thereby contributing to a custodial environment that was-and as this report documents, continues to be-highly sexualized and excessively hostile.

No one group of prisoners appears to suffer sexual abuse and misconduct more than any other, although those in prison for the first time and young or mentally ill prisoners are particularly vulnerable to abuse. Lesbian and transgendered prisoners have also been singled out for sexual abuse and harassment by officers; so, too, are prisoners who have in some way challenged an officer, either by informing on him for inappropriate conduct or for refusing to submit to demands for sexual relations.

The issues in Michigan are in many ways representative of those facing corrections departments throughout the U.S. One of the clear contributing factors to sexual abuse in U.S. prisons for women is that the United States, despite authoritative international rules to the contrary, allows male corrections employees to hold contact positions over women prisoners, that is, positions in which they serve in constant physical proximity to the prisoners of the opposite sex. Under the United Nations Standard Minimum Rules for the Treatment of Prisoners[13] (Standard Minimum Rules), which constitute an authoritative guide to international law regarding the treatment of prisoners, cross-gender guarding of prisoners is prohibited. However, since the passage Title VII of the Civil Rights Act of 1964 and the introduction of equal employment rights for women, U.S. employers have been prohibited from denying a person a job solely on the basis of gender unless the person's gender is reasonably necessary to the performance of the specific job.[14] In the absence of unusual circumstances, U.S. federal courts have been unwilling to recognize a person's gender as meeting this standard with respect to corrections employment.[15] As a result, most restrictions on male officers working in women's prisons that predated the Civil Rights Act have been removed, and by some estimates, male officers working in women's prisons now outnumber their female counterparts by two, and in some facilities three, to one.

Human Rights Watch is concerned that the states' adherence to U.S. anti-discrimination laws, in the absence of strong safeguards against custodial sexual harassment and abuse, has often come at the expense of the fundamental rights of prisoners, including privacy rights. To ensure respect for the women inmates' basic privacy rights, Human Rights Watch urges corrections departments to implement regulations on a prison-by-prison basis that take into account the specific physical layout of the prison and that restrict male guards from such areas as community showers, toilets, and dormitory type rooms during changing times except in emergency situations.[16]

Under both international and U.S. law, states are clearly required to prevent and punish custodial sexual abuse and harassment. The International Covenant on Civil and Political Rights[17] (ICCPR) and the International Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment[18] (Convention Against Torture), both of which the United States has ratified, require states parties to prohibit torture and other cruel, inhuman, or degrading treatment or punishment and to ensure that such abuse is investigated and punished. The International Covenant on Civil and Political Rights further guarantees prisoners a basic right to privacy, which has been interpreted to preclude strip-searches by officers of the opposite sex. These rights are further elaborated in the Standard Minimum Rules, which calls on governments to prohibit custodial sexual abuse, provide prisoners with an effective right to complain of such abuses and violations, ensure appropriate punishment, and guarantee that these obligations are met in part through the proper training of corrections officers. In addition, the United States constitution expressly protects prisoners from cruel and inhuman punishment and has been interpreted to accord prisoners limited privacy rights as well as to guarantee them access to the courts.

The United States is thus clearly bound under its own constitution to prevent and punish custodial sexual abuse. It is equally bound by international human rights law to take these steps, although in ratifying the International Covenant on Civil and Political Rights and the Convention Against Torture, the United States attempted to limit its treaty obligations in ways that were particularly adverse to the elimination of custodial sexual abuse.[19]

The widespread abuse of female prisoners described in All Too Familiar is fueled by institutional cultures in the five states documented and the District of Columbia, cultures in which sexual abuse of incarcerated women is routinely tolerated or even condoned. Among these states, however, the resistance of the Michigan Department of Corrections (MDOC) to monitoring and accountability was striking. Not only did Michigan officials deny the allegations made in All Too Familiar, but Kenneth L. McGinnis, director of the Department of Corrections, responded to our findings with a letter to Human Rights Watch in which he stated that the corrections department would refuse to cooperate further in any manner with Human Rights Watch.[20] Such resistance to outside monitoring is not new to Michigan. In 1995, when the U.S. Department of Justice initiated its investigation into civil rights abuses of female inmates, Michigan refused to allow federal investigators access to the prisons. More recently, after initially granting the United Nations Special Rapporteur on Violence Against Women's request to visit the Florence Crane Women's Facility (Crane) and the Scott Correctional Facility (Scott), Gov. John Engler withdrew permission on the eve of her visit.[21] The hostility to monitoring not only raises the question of what information or conditions Michigan is trying to keep from the public but also is disturbing in light of the fact that Michigan claims to have a zero-tolerance policy with regard to sexual abuse of inmates yet refuses to be transparent about its response to numerous allegations of such abuse.

In 1995 the U.S. Department of Justice, after gaining access to the prisons, released its own findings of pervasive sexual abuse in Michigan's prisons for women.[22] Justice Department investigators interviewed women inmates and found that "nearly every woman . . . interviewed reported various sexually aggressive acts of guards."[23] Justice Department investigators further found that women at Scott and Crane had been raped, sexually assaulted, subjected to groping and fondling during pat-frisks, and subjected to improper visual surveillance by guards in violation of the legitimate privacy interests of the women. Finally, the Department of Justice noted that in interviews with women at Scott, they found "an almost universal fear of retaliation."[24] In March 1997, the Department of Justice joined in a class action suit against the Michigan Department of Corrections.[25] That suit is currently in the discovery phase and is expected to go to trial in late 1998. In the wake of the release of All Too Familiar and the Justice Department's decision to join in the class action suit against the Michigan Department of Corrections, Human Rights Watch received information indicating a campaign of retaliation against several of the named plaintiffs in the lawsuit.

Virtually all of the women incarcerated in Michigan who were interviewed for All Too Familiar and who had lodged complaints of sexual harassment or abuse have suffered some form of retaliation by the accused officer, his colleagues, or other inmates. In some cases, they have also faced punishment by corrections officials. Corrections officers have nearly unlimited discretion in how they enforce prison rules and may enforce rules by reporting an inmate for minor or major violations of prison rules and regulations. Being found guilty of the violation for which the "ticket"[26] was issued can result in a warning, loss of phone and visitation privileges, being locked up in one's own cell, or being placed in punitive segregation. After an inmate accumulates several violations, her security status may change with wide-ranging implications, and she may face loss of "good time" accrued toward early release. Absent glaring inconsistencies or weaknesses in the guard's account of events leading to the issuing of the ticket, the inmate is typically found guilty by the hearing officer. If the validity of the ticket must be judged solely on the basis of the women's word versus the guard's word, the guard's actions are virtually always upheld and the woman is punished.[27]

If a guard has been reported by an inmate for sexual abuse, he may turn to his colleagues for assistance in retaliating against her, and she may be issued tickets for violations which never occurred or for violations which do not typically result in misconduct tickets' being issued. As long as the accused guard does not issue the tickets himself, he can insulate himself from any suspicion of retaliating against the inmate. Furthermore, if an inmate reports a guard for sexual abuse and that grievance is found unsubstantiated, no formal record is kept with respect to the implicated officer,[28] making it difficult to monitor complaints against specific officers of sexual abuse.

Many of the women interviewed for All Too Familiar reported being written up for sexual misconduct themselves after reporting sexual abuse by a guard, the loss of "good time" accrued toward early release, prolonged periods of punitive segregation, and verbal harassments and threats. Others reported being subjected to abusive behavior by guards such as abusive pat-frisks, being issued unwarranted disciplinary tickets, or loss of privileges.

In our subsequent investigation of the Michigan prisons, we found that women believed they were being sent a clear message by the guards and the corrections department: any attempt to protect themselves from sexual abuse by reporting it would result in punitive actions by guards. As these guards wield near-absolute power over the women, retaliation can be devastating to the women's security, health, and psychological well-being. We documented threats of physical harm, abusive pat-frisks, verbal harassment, and trumped-up misconduct tickets that resulted in women being denied visitation rights with their families and losing the chance of early release from prison. By failing to monitor vigorously for retaliatory behavior and to discipline guards and employees who participate in retaliatory behavior, the corrections department sends a message to both the women and the guards that corrections employees may abuse, harass, threaten, and harm women with impunity. Impunity in any context is a serious problem with a chilling effect on victims of violence and discrimination. However, impunity in prisons is particularly devastating because, quite simply, incarcerated women have no protection, no recourse, and nowhere to hide.

Recent studies of female inmates in the U.S. reveal that a significant number of women have a history of prior physical and/or sexual abuse.[29] Particularly for women who have histories of suffering abuse over long periods, such as childhood sexual abuse or abusive relationships with intimate partners, an important part of the healing process is to feel safe from further abuse. Women with these histories may suffer from post-traumatic stress disorder and experience low self-esteem and an inability to trust other people.[30] It is difficult enough for a woman with no history of abuse to cope with sexual assault. It is potentially devastating for a woman with a history of abuse to be abused again. For women with or without a history of abuse, to be punished for reporting the abuse is to be made acutely aware of one's powerlessness and vulnerability. Several of the women we interviewed had suffered serious psychological harm as a result of having been abused in prison.

Incarcerated women are not the only people suffering the consequences of the Michigan Department of Corrections' failure to stop sexual abuse and retaliation. Their families and, in particular, their children are victimized. A direct or indirect result of many of the forms of retaliation is that the women's visitation privileges are curtailed or, in some cases, completely cut off. This not only has a devastating impact on the women, who subsequently suffer social isolation and depression, but also on their children who suffer the adverse consequences of being deprived of the opportunity to build an ongoing relationship with their mothers and on family members who may be struggling to maintain family unity. More than two-thirds of all incarcerated women have at least one child under the age of eighteen, and the majority of these are single mothers.[31] Children need continuity in relationships with their adult caretakers and depend on their being available when needed. Thus, retaliation against incarcerated women that directly or indirectly cuts off their access to their children has a long-term impact on both the women and their children.

The United States relies on incarceration to punish both violent and non-violent offenders more than any other developed country. In fact, the U.S. has the dubious distinction of incarcerating the largest known number of prisoners in the world. The proliferation of "three strikes and you're out" laws,[32] the proposals to end or severely limit parole, the escalation of the "war on drugs," the continued push to build prisons even as violent crime reports drop, and mandatory minimum sentences for non-violent crimes mean the prison population will continue to grow. Even as the number of incarcerated persons rises, remedies for human rights and civil rights violations are being legislatively and judicially curtailed.[33] It is imperative that corrections departments not be allowed to evade accountability for the treatment of prisoners through limiting oversight and precluding access to legal remedies, because lack of accountability sends a message to persons entrusted with guarding inmates that they may abuse those who are incarcerated with impunity. This, coupled with poor training, lack of oversight, and the political powerlessness of incarcerated persons and their families, creates the conditions under which inhumane, abusive, and degrading treatment of prisoners will flourish.

II. RECOMMENDATIONS

In All Too Familiar, Human Rights Watch made extensive recommendations on how to prevent custodial sexual abuse. We are reiterating the recommendations for the federal government because nearly two years after the release of All Too Familiar, despite extensive advocacy by Human Rights Watch and other organizations, no significant reforms have been implemented. For the purposes of this report, our state recommendations seek to prevent retaliation against women who report abuse and are tailored specifically to Michigan.

To the Federal Government:

The U.S. should reinvigorate its efforts to secure ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (Women's Convention) by the U.S. Senate and, after ratification, to include in its periodic compliance reports to the Committee on the Elimination of Discrimination Against Women information regarding federal measures to eradicate the problem of custodial sexual abuse in U.S. state, as well as federal, prisons. The U.S. should also include information on custodial sexual abuse against women prisoners in its next report to the United Nations Human Rights Committee and in its first compliance report to the Committee Against Torture.

To the U.S. Congress:

1.         Pass legislation that requires states, as a precondition to receiving federal funding for the construction and maintenance of state prisons and holding cells, to criminalize all sexual contact between corrections staff and prisoners and, as discussed below, to report annually to the Department of Justice regarding conditions of incarceration in their respective facilities.

2.         Pass legislation that requires states to prohibit departments of corrections from hiring staff who have been convicted on criminal charges, or found liable in civil suits, for custodial sexual misconduct. The names and identifying information of such individuals should be maintained by each department of corrections in a database that must be checked prior to hiring any corrections staff. This information should be collected by the Department of Justice data collection office, discussed below, for use by all states.

3.         Appropriate the funds necessary to enable the Department of Justice to conduct increased and thorough investigations of custodial sexual misconduct and to enjoin prohibited conduct pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA).[34] These funds should also be used by the Department of Justice to create an office of data collection, mandated to keep track of complaints of sexual abuse on a state-by-state basis, to issue semi-annual reports regarding such complaints, to provide complainants with information about the mechanisms available to remedy such abuse, and to follow up with the relevant state departments of corrections or federal prisons regarding any issues of concern. The Department of Justice should be mandated to do outreach about this office to federal and state corrections facilities, prisoners, and other relevant actors, including through the publication of materials about the data collection office that could be posted within corrections facilities. The state-level independent review boards or other oversight mechanisms, discussed below, should also supply information on a regular basis to this office.

4.         Revise certain provisions of the Prisoner Litigation Reform Act that severely limit the ability of prisoners, nongovernmental organizations, and the Department of Justice to challenge unconstitutional conditions in state corrections facilities. Those revisions, at a minimum, should include the following:

-repealing 18 United States Code Section 3626(a)(1), which requires that judicially enforceable consent decrees contain findings of federal law violations;

· repealing 18 United States Code Section 3626(b), which requires all judicial orders to terminate two years after they are issued; and

· restoring funding for special masters' and attorneys' fees to the levels that prevailed before the passage of the Prison Litigation Reform Act.

5.         Engage in a review of the Civil Rights of Institutionalized Persons Act procedures for certifying the grievance procedures of U.S. corrections systems to ensure that certified procedures will function effectively for complaints of custodial abuse.

6.         Withdraw the restrictive reservations, declarations, and understandings that the U.S. has attached to the International Covenant on Civil and Political Rights and the Convention Against Torture.

7.         Introduce implementing legislation for the International Covenant on Civil and Political Rights and the Convention Against Torture such that persons in the United States can legally enforce the protections of these treaties in U.S. courts, or it should formally declare that both treaties are self-executing and thus capable of sustaining claims in U.S. courts without further legislation.

To the U.S. Department of Justice (Civil Rights Division):

1.         As a necessary step toward improving its responsiveness to sexual misconduct and the quality of its information about same, establish a secure, toll-free telephone hotline to receive complaints of sexual misconduct by corrections staff and should publicize the existence of this service. The hotline should

-provide prisoners information about their rights and about nongovernmental organizations that they may contact for assistance;

· forward complaints to both the state officials and the Special Litigation Section and Criminal Section of the Department of Justice's Civil Rights Division;

· ensure confidentiality;

· be accessible under all circumstances, including times when prisoners are in segregation;

· be viewed as a component of exercising the constitutional right to legal representation and therefore be free from monitoring by prison officials; and

· extend its confidentiality to any written correspondence emerging from a prisoner's contact with the hotline.

2.         Use the information collected through the hotline to help compile the semi-annual reports of the office of data collection, suggested above.

3.         Formulate and issue specific, public procedures that detail its investigative process under the Civil Rights of Institutionalized Persons Act.

4.         Use the information contained in this report and information from other reliable sources to consider initiating additional criminal investigations under 18 U.S.C. Sections 241 and 242.

5.         Exercise its full authority under the Civil Rights of Institutionalized Persons Act to initiate, with the participation of its Office of Violence Against Women, investigations of allegations of custodial sexual abuse that appear to rise to the level of a "pattern or practice." Other allegations of which the Justice Department becomes aware should be forwarded to state authorities for investigation.

6.         Require states, as a condition of continued federal assistance, to report annually to the Civil Rights Division regarding conditions of incarceration in their respective corrections facilities. Such reports should include, among other things, patterns of rape, sexual abuse, and other forms of violence against women. The Department of Justice should publish an annual report based upon this information.

7.         Appoint an attorney within its Special Litigation Section responsible for overseeing all complaints of sexual misconduct lodged with the section.

To the U.S. Department of Justice (National Institute of Corrections):

1.         Develop standards akin to the U.N.'s Standard Minimum Rules in order to provide national guidelines for the treatment of prisoners to ensure that state corrections procedures and practices comport with international and constitutional protections.

2.         Develop model grievance, investigatory, and training mechanisms to address in particular many of the concerns raised in this report. These procedures should be developed in close consultation with all relevant parties, including those nongovernmental organizations familiar with prisoner work, including with work on sexual abuse in women's facilities.

To the State of Michigan:

To the Michigan Department of Corrections:

1.         Ensure the right to an effective grievances procedure by

-amending its grievance procedure in cases of alleged sexual misconduct by corrections employees expressly to authorize prisoners to bypass the informal level of review and file their complaints directly with the prison superintendent or investigator;

· taking steps to insure that its grievance procedure includes provisions that

(1)protect the confidentiality of the complainant and witnesses during the time in which the officer is still potentially in contact with them;

(2)withhold information about complaints from those not directly or by authority involved in the alleged incident;

(3)ensure that prisoner testimony is given due weight; and

(4)prohibit the implicated officer from conducting the investigation;

-making grievance forms readily available in the prison library or other neutral place where it would not be necessary for the inmate to ask for the form;

· refraining under all circumstances from assigning implicated officers to investigate allegations of their own abuse. Officers alleged to have committed rape, sexual assault or abuse, or criminal sexual contact[35] should be assigned to non contact positions or suspended until the circumstances are clarified and the investigation completed; and

· ensuring that all officers named as defendants in civil suits alleging rape, sexual assault or abuse, or criminal sexual contact should be assigned to noncontact positions or suspended until the case is resolved or, in the alternative, ensuring that no defendant in a civil suit alleging custodial sexual abuse is in a contact position vis-à-vis the plaintiffs.

2.         Ensure the right to an impartial investigation, by

-promulgating a written procedure for conducting investigations into custodial abuse and misconduct, with specific reference to sexual misconduct, both at the facility level and within 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 abuse and misconduct complaints, in particular, with the necessary human and material resources to do so;

-establishing clear and exhaustive investigatory policies that

(1) protect as much as possible the anonymity of the complainant;

(2) guard complainants and witnesses from retaliation and harassment;

(3) ensure accountability to outside monitors; and

(4) provide the complainant's legal counsel, upon request, a written record of the investigation, including all statements made by witnesses;

-requiring all corrections employees to report promptly any allegations of sexual abuse, other over familiar conduct, or retaliation to the prison warden and rewarding those that do while penalizing those who do not; and

· referring 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, the Michigan Department of Corrections should continue, not cease, its own internal investigation into possible employee misconduct and proceed with disciplinary action when appropriate.

3.         Prevent retaliation against complainants, by

-ensuring, 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. The Michigan Department of Corrections should also seek to prevent the complainant's name from being revealed generally within the facility;

· restricting access to prisoner files and ensuring confidentiality of records that reveal the name of the complainant in sexual abuse cases;

· suspending any employee accused of sexual misconduct, including over familiarity with a prisoner, if such misconduct once proven would result in dismissal;

· investigating reports of retaliation promptly and vigorously and disciplining transgressing employees appropriately; and

· ensuring prisoners the right to counsel in cases of sexual assault.

4.         Curtail the use of administrative segregation and other punishment, by

-authorizing 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 upon her request. The Michigan Department of Corrections should train employees assigned to segregated housing units regarding such provisions;

· ensuring that prisoners who complain of sexual misconduct are not directly or indirectly punished for such complaints through the loss of "good time" toward early release, being suspended from program or work, or any form of disciplinary segregation; and

· ensuring 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."[36]

5.         Ensure discipline, by

-creating a clear policy on disciplinary action against abusive corrections employees for all forms of sexual abuse or retaliatory behavior; and

· dismissing any employee found to have engaged in sexual relations, sexual contact with prisoners, or retaliation against prisoners. Transfer of such employees to other positions or facilities does not constitute appropriate punishment.

To the Michigan Legislature:

1.         Ensure accountability to outside monitors, by

-strengthening 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 and retaliation. 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; and

· providing a toll-free telephone number that prisoners can use to contact investigators or to file anonymous complaints of misconduct, including retaliation against complainants.

III. DEFINITION AND IMPACT OF RETALIATION IN PRISONS

Retaliation, for the purposes of this report, is any act by a corrections officer, corrections employee, or official aimed at an inmate in order to punish her for having reported abuse or in order to keep her from reporting abuse. Here we document specific acts of retaliation against women who have spoken out against sexual abuse by guards as well as the chilling impact retaliation has had on other inmates who now fear reporting any abuse. It is clear that retaliation is a serious problem in the women's prisons in Michigan and that the women fear retaliation if they dare to report or protest against abuse. It is equally clear that the Michigan Department of Corrections has done little to protect the women from retaliation.

Because retaliation has a devastating impact on incarcerated women, their families, and the integrity of a corrections department, if a corrections department official receives credible information that any guard or staff person may have behaved in an abusive manner toward an inmate, it is imperative that the corrections department arrange for a thorough investigation by an independent qualified person, protect the alleged victim and potential witnesses during the course of the investigation, and, if it is determined that abuse has occurred, punish the abusive guard appropriately. If, after a woman reports abuse or after a determination has been made in the investigation, she is issued a disciplinary ticket, the ticket should be carefully scrutinized to ensure that it was issued legitimately and not in retaliation for exercising her rights.

Within the Michigan prison system, no such precautions are taken. When a woman reports being sexually abused by a guard, the report is written up and kept at a duty desk where any officer can read it.[37] No attempt is made to protect the identity of the accuser. The only protective measure taken by the Michigan Department of Corrections is to place the accuser in protective custody, even though most women report that this feels punitive because the guards frequently fail to distinguish between women in punitive segregation and women in protective segregation and withhold privileges from any woman in segregation. The investigation of the allegation is conducted by a member of the corrections department and rarely moves beyond deciding that the guard's defense is more credible than the woman's allegations. Although several women report sudden increases in the number of disciplinary tickets issued after filing a complaint against a guard and ask that hearings be held on the tickets, a review of decisions issued by hearing officers in such cases turned up no decision in which the potential for retaliation was addressed by the hearing officer.

Corrections officers in Michigan are given immense discretion in determining how and when to discipline inmates.[38] Some guards choose not to issue tickets, preferring instead to resolve any conflicts by talking with the women. Other guards routinely issue tickets for violations of both minor and major prison regulations.[39] Guards can force a confrontation that results in a ticket; for example, women report asking permission to go to the toilet, being denied permission, and then being written up for insubordination if they insist that they need to go to the toilet. Women also reported being issued tickets for such infractions as being "out of bounds" for standing slightly off the center of the cafeteria line. It is very difficult to document abuses of power and retaliation. If the guards are intentionally masking their retaliatory behavior, documentation becomes even more difficult. Human Rights Watch is aware of cases in which guards who have been reported for sexually abusing inmates or other forms of abuse have allegedly turned to other guards for help in discrediting and intimidating the women who have made the reports.[40] Because guards enjoy immense discretion, it is difficult to demonstrate a causal link between the complaint against one guard and a ticket issued by another guard. Furthermore, the Michigan Department of Corrections routinely upholds tickets, especially when the only evidence is the guard's word against the woman's, creating an unspoken presumption that the women are guilty of the alleged violations.[41]

The Michigan Department of Corrections has thus created a system ripe for abuse. Our investigation shows that, at a minimum, the Michigan Department of Corrections is indifferent to allowing the appearance of impunity, and may in fact be turning a blind eye to cases of abuse of power and retaliation against women who dare try to protect themselves from sexual abuse by reporting it. As described in the case studies below, in section V, the retaliatory abuses that result range from verbal harassment, intimidation, abusive pat-frisks to sexual assault.

IV. NATIONAL AND INTERNATIONAL LAW PROTECTIONS

Both sexual abuse and misconduct by prison staff and retaliation against women who report sexual abuse and misconduct are clearly prohibited under both U.S. constitutional law and international treaty law that is binding on the U.S. federal government and its constituent states. 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 that occurs as a result of deliberate indifference by corrections officials who knew, or should have known, of the substantial risk of assault.[42] 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,[43] conducting intrusive pat-frisks,[44] or engaging in inappropriate visual surveillance.[45]

The First Amendment to the constitution, which provides for freedom of expression, creates a fundamental right that no person may be punished for exercising.[46] When a corrections employee retaliates against a female prisoner for reporting sexual abuse or misconduct, the employee is impinging upon the woman's fundamental right to free expression.[47] Finally, it is undisputed that prisoners have a constitutional right of access to the courts[48] and that prison officials may neither affirmatively impede a prisoner's efforts to access the courts[49] nor retaliate against a prisoner who exercises her right of access to the courts.[50]

Constitutional protections of prisoners' rights are enforceable via lawsuits filed by or on behalf of prisoners or by the U.S. Department of Justice. Historically, U.S. prisoners have achieved most of their landmark civil rights victories through private litigation, particularly by suits litigated by prisoners' rights groups such as the National Prison Project of the American Civil Liberties Union and the National Prison Project of the National Women's Law Center. However, if certain stringent intent requirements are met, the Department of Justice may criminally prosecute abusive prison officials under federal civil rights provisions.[51] In addition, the Department of Justice has a statutory right to investigate and institute civil actions under the Civil Rights of Institutionalized Persons Act 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.[52]

Courts examining whether an act by a prison guard is retaliatory have used a variety of tests. According to the Sixth Circuit Federal Court of Appeals, litigants seeking injunctions against retaliatory acts and monetary damages must demonstrate that alleged retaliatory actions constitute an egregious abuse of governmental power or that such actions otherwise shock the conscience.[53] Other federal circuit courts have applied a "but for" test to determine if the complained-of conduct rises to the level of retaliation.[54] Simply put, the question is whether or not the alleged retaliatory act, such as issuing a major misconduct ticket, would have occurred "but for" the guard's desire to retaliate against the prisoner. Because the Michigan Department of Corrections gives guards broad discretion in addressing possible violations of prison regulations, it is very difficult to establish that a ticket was issued solely for the purposes of retaliation. The obvious exception is if a guard issues a ticket without cause or "sets up" the prisoner, for example, by placing contraband in her possessions or cell. However, as the corrections department appears routinely to credit the testimony of the guards over that of the inmates, it is difficult for the women effectively to fight against tickets issued as part of a set-up or without cause.[55]

Most retaliation cases that reach the courts with prisoner-plaintiffs fall into the category of retaliation against a prisoner who asserts a fundamental right, for example, filing a grievance against a guard, which is protected under the First Amendment. Some courts, in determining if an act was retaliatory, have looked to the period of time that elapsed between the assertion of a protected right, such as a prisoner filing a complaint against a guard, and the retaliatory act.[56] Some courts require the plaintiff to prove that the guard accused of retaliating had actual knowledge of the complaint filed against him by the plaintiff.[57] While courts have been reluctant to find retaliation in cases in which the plaintiff is simply written up for some rules violation after filing a grievance, the courts have been open to cases in which the plaintiffs have been able to show that they were set up by the guards.[58]

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, ratified by the United States in 1993 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. The Standard Minimum Rules for the Treatment of Prisoners are also relevant as guidelines adopted by the United Nation that define the fundamental rights of prisoners to humane treatment.

Most of the custodial sexual abuse and misconduct reported in All Too Familiar: Sexual Abuse of Women in U.S. State Prisons and in this report constitute either torture or cruel, inhuman, or degrading treatment as defined by international law. Torture is "any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing . . . or intimidating him or a third person," by or with the acquiescence of an official.[59] Not all acts of rape constitute torture; however, in a custodial setting, if a guard uses force, the threat of force, or other means of coercion to compel a prisoner to engage in sexual intercourse, the act of rape constitutes torture.[60] If the guard uses force or coercion to engage in sexual touching of prisoners, including aggressively squeezing, groping, or prodding women's genitals or breasts, and the acts caused severe physical and mental suffering, they, too, would amount to torture.

Retaliatory acts which may not rise to either the level of torture or of cruel or inhuman treatment, may be condemned as degrading treatment, that is, treatment that causes or is intended to cause gross humiliation or an insult to a person's dignity.[61] This includes inappropriate pat- or strip-searches and verbal harassment. The manner in which strip-searches and pat-searches are conducted can also constitute a form of degrading treatment. The mere performance of a strip-search or a pat-search by a corrections officer for the purpose of controlling contraband is not, in and of itself, degrading treatment. For example, the use of close body searches for a valid purpose has been upheld under international law.[62] However, the fondling and groping of women in the course of a strip-search or a pat-search serves no penological purpose; it is extraneous to the search for contraband, unnecessarily invades a prisoner's physical integrity, and humiliates her. Furthermore, the use of pat-searches as a means of retaliation, and the targeting of specific women for such searches without due cause, also violates these principles and constitutes degrading treatment.

The prohibition on degrading treatment also extends to the use of demeaning language where the employment of such language is intended to dehumanize and weaken an incarcerated person.[63] In The Greek Case, the European Commission found that "psychological pressure designed to break the will" of prisoners, including verbal harassment and humiliation, was prohibited under Article 3 of the European Convention on Human Rights, which prohibits "torture or inhuman or degrading treatment or punishment."[64] While isolated name-calling may not rise to the level of degrading treatment, a pattern of such language or the use of such language in combination with threats such as those experienced by the women whose cases are documented in this report may be sufficient to constitute degrading treatment.

In the same way that the U.S. government is accountable under international law for preventing torture and ill-treatment, it is also required to uphold prisoners' privacy rights as codified in Article 17 of the International Covenant on Civil and Political Rights.[65] The Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, has spoken directly to the use of personal and body searches. In its General Comment 16 to Article 17, the committee stated:

So far as personal and body searches are concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body searches by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.[66]

However, our investigation revealed that in practice, the U.S. falls far short of ensuring the protections provided under international law. In the course of our investigations for All Too Familiar and this report, women frequently complained that pat-frisks were conducted in an abusive manner by male guards and in some cases, appeared to be part of a pattern of retaliation against women who had reported sexual abuse.

Finally, Article 19 of the International Covenant on Civil and Political Rights guarantees a prisoner's freedom of expression. It is a violation of an inmate's freedom of expression if, as a result of her filing a grievance against a corrections employee for abusive behavior, she is punished. Under paragraph 36 of the Standard Minimum Rules, prisoners are ensured the right to make complaints without censorship to the central prison administration, the judicial authority, or other proper authorities. This guarantee is critical to the protection of prisoners from abuses and substandard conditions. All the regulations and standards by which prisons should be run are meaningless absent a mechanism for prisoners to report violations. Therefore, when prison staff retaliate against a woman who has exercised her right to free expression through filing a complaint for sexual abuse, the retaliation is a violation of the International Covenant on Civil and Political Rights and the Minimum Standards Rules.

V. RETALIATION AGAINST WOMEN INCARCERATED IN MICHIGAN STATE PRISONS

Since 1990 numerous cases have been brought in Michigan state and federal courts alleging sexual abuse in the state's prisons. The abuse documented by Human Rights Watch and the U.S. Department of Justice includes rape, sexual abuse and assault, criminal sexual contact, verbal degradation, and privacy violations. Many of the women who have alleged the sexual abuse and have been either witnesses in criminal prosecutions or plaintiffs in civil suits report having suffered some form of retaliation by prison guards. The most common form reported is verbal harassment, but many women reported being threatened with physical or sexual abuse, subjected to abusive pat-frisks, and written up for rules violations they did not commit. Moreover, a select few appear to have been targeted for ongoing, relentless, and systematic retaliation, including allegedly being set up by prison guards. All levels of the Michigan Department of Corrections are implicated in these retaliatory campaigns: the guards who carry out the individual acts of retaliation, the wardens who look the other way, and the corrections department officials who have, through their inaction, created a climate of impunity.

Although it is always difficult to understand why one person is targeted while another apparently similarly situated person appears to survive relatively unscathed, the consensus among advocates and fellow inmates is that the most vicious retaliation is aimed at the women who are perceived as articulate, strong, even charismatic leaders within the inmate population or women who have successfully challenged the abuse-particularly if their challenge has resulted in a guard's losing his job. By targeting inmates who are perceived as strong, the Michigan Department of Corrections sets an example of what will happen to a woman if she dares to report abuse. By targeting inmates who have successfully fought back against the abuse, the corrections department sends a message that even if an inmate is successful in court, she is not protected within the walls of the prison.

The Michigan Department of Corrections is being sued by a class of women plaintiffs for sexual assaults, sexual abuse, sexual harassment, and inappropriate visual surveillance within its two corrections facilities for women.[67] Corrections department officials have consistently denied that such abuse is a problem within the prisons despite well-supported evidence to the contrary. John Engler, governor of Michigan, in a letter refusing to allow a U.N. human rights monitor access to the prisons, called the lawsuit "baseless" and accused the monitor of being an "unwitting tool in the Justice Department's agenda to discredit the State of Michigan."[68] Human Rights Watch continues to receive reports of sexual abuse from Michigan inmates and, as recently as January 1998, a Michigan corrections officer who was assigned to the Scott facility was found guilty of the crime of criminal sexual conduct in the fourth degree.

The continuing reports of sexual abuse and retaliation since the release of All Too Familiar and the decision of the U.S. Department of Justice to join the class action suit against the state raise serious concerns that the Michigan Department of Corrections, rather than addressing the need to prevent sexual abuse of female inmates, has concentrated its energies on blanket denials of the allegations. These denials create an atmosphere hostile to the women who assert their right not to be subjected to sexual abuse by guards and allow the abuse to continue with impunity.

There are approximately thirty named plaintiffs in the current class action suit, including formerly incarcerated women, and approximately twenty corrections officers named as defendants. We interviewed five named plaintiffs in the ongoing class action suit who remain incarcerated and all of whom claim to have been victims of a systematic campaign of retaliation as a result of their participation in the suit. Furthermore, we collected information from several women who chose not to report abuse because of their fear of retaliation.

Four of the five women we interviewed reported having been raped by guards. The fifth woman had a consensual relationship with a guard who subsequently became abusive when she tried to end the relationship. Three of the women have minor children. The women are serving time for various crimes ranging from minor drug possession charges to murder. Regardless of the nature of the crimes these or any other incarcerated women committed, sexual violence against female inmates is never acceptable.

Stacy Barker[69]

Stacy Barker entered the prison system with a life sentence in 1987. Barker is an articulate, intelligent woman who has fiercely defended her rights within the system. She has been a plaintiff in several civil and class action suits against the corrections department, including the ongoing Nunn suit, a private civil action, and a class action suit challenging disparate services for women inmates.[70] Barker believes that she has been targeted for retaliation because she is outspoken and because she was successful in a civil suit against the Michigan Department of Corrections from which she received a substantial monetary settlement based on her allegations that she was sexually assaulted by a corrections officer over a period of a year and a half.[71] Barker reports that the retaliation began shortly after her civil suit was settled and the Nunn suit was filed in June 1995. Initially, the retaliation took the form of verbal harassment. Over time, however, the retaliation has intensified. Barker claims to have been set up by corrections officers, denied due process, threatened with physical harm, and denied all visitation privileges for the remaining years of her life sentence.

At the time the settlement in the civil suit was reached, Barker was designated as a Level 1 security inmate with zero points for unfavorable behavior, the lowest security rating possible.[72] She had spent no time in punitive segregation since 1990 and was pursuing a B.A. in behavioral sciences. Barker, who has been incarcerated since 1987, had never tested positive for any banned substance even though she, like all the inmates, was subjected to random drug testing throughout her incarceration. The only disciplinary citation or "ticket" she had received for controlled substances prior to October 1995 was a ticket for having over-the-counter pain reliever beyond the expiration date.

Beginning in September 1995, Barker reports guards began calling her a "set-up queen" who was "always suing the department," marking the beginning of a campaign of harassment against her by prison staff. Thus began a series of searches of Barker's cell and belongings. On each occasion, guards found contraband, ranging from a razor deemed a weapon to bits of a green leafy substance identified by the corrections department as marijuana. Over an eight-month period, Barker was found guilty on three of four substance abuse tickets issued.[73] This pattern of alleged substance abuse stands in stark contrast to her prior record of eight years of random drug tests and searches during which she only received one substance abuse ticket for possession of expired over-the-counter pain reliever. All the citations occurred in the eight months immediately after the adoption by the Michigan Department of Corrections of a policy of punishing inmates with repeated substance abuse violations by banning all visitation privileges, including visitation with family members, for the duration of their sentences. Because Barker is serving a life sentence, this ban is effectively a life ban on visitation.

Barker denies using drugs and repeatedly challenged the corrections department to allow her, at her own expense, to submit a hair sample for confirmatory testing and to take a lie detector test. Barker also challenged the tickets, arguing that the guards repeatedly ignored procedures designed to ensure that evidence cannot be tampered with. Not only were these requests for additional tests denied, even though they are permissible under the Michigan Department of Corrections regulations, and challenges to procedural violations dismissed, but also during this time, Barker was arraigned for possession of 0.06 grams of marijuana in the Plymouth District Court based on a major misconduct ticket issued on October 12, 1995. According to Barker's criminal defense attorney, Stuart Friedman, the presiding judge expressed consternation that this case was being prosecuted given the minuscule quantity of marijuana allegedly possessed by Barker. After Friedman filed for discovery, the state entered into a negotiated settlement in which the charges were dismissed and the state agreed to pay court costs. Friedman acknowledged that criminal prosecution of inmates for drug possession varies from county to county and prison to prison but asserted that prosecuting Barker was a misuse of prosecutorial resources and a result of retaliation for her having won a civil suit. "Guards are going to retaliate against you if you win a legal case. Because of Stacy, a guard lost his job. That has an impact on guards," said Friedman.[74] According to Friedman, documents released by the Michigan Department of Corrections in response to discovery requests revealed that Barker's prosecution was indeed unusual. The documents indicate that at least nine other female inmates were ticketed at the same time as Barker for possession of larger quantities of drugs or with possession of more serious drugs, but none of these women was subjected to criminal prosecution.[75] Furthermore, as Barker is serving a life sentence without parole, even a finding of guilt would serve no purpose because her sentence cannot be increased.

As a result of these various misconduct tickets and other allegations, including being issued a major misconduct ticket for arranging a paid hit on a prison official (a charge for which no hearing was ever held), Barker spent a total of 275 days in punitive segregation between October 1995 and August 1996. While housed in segregation as a result of these charges, Barker reports that she was threatened by a corrections officer who warned her against testifying in the class action suit pending against the Michigan Department of Corrections. Women held in punitive segregation are kept in their cells for twenty-three hours a day; they are not allowed to wear their own clothes or have personal possessions with them. Visitation is restricted and, when permitted, is by appointment only. Women in segregation are not allowed to use the phone. They are allowed to shower only three times a week. Women who are working or in school are forced to give up their jobs or studies.

As of June 1996, Barker had acquired three substance abuse tickets. Her security level had jumped from one to four, and she had gone from having zero to fifteen points for unfavorable behavior, all within a nine-month period. In October 1996, the Michigan Department of Corrections placed Barker on a permanent visitation ban, one of the most severe punishments administered. As of July 20, 1997, the corrections department had placed seven other women inmates on permanent visitation bans as a direct result of guilty findings for tickets issued for substance abuse. However, each of these women had had at least four drug charges before being placed on the permanent visitation ban.[76]

The degree to which guards and the Michigan Department of Corrections feel free to violate basic procedures that are designed to protect inmates from being erroneously punished was demonstrated by Barker's experience in February 1997, when she was subjected to a urine test. Barker remembers that Corrections Officer Adams collected the sample on February 18 at 3:50 p.m. Barker filed a grievance alleging that Adams did not follow the proper procedure and that the specimen bottle was taken out of Barker's sight before it was sealed-a violation of the Michigan Department of Corrections regulations. Adams acknowledges collecting the urine sample but denies violating the chain of custody protocol. However, a copy of the chain of custody for the drug analysis form reflects that the urine sample was collected on February 4, 1997, at 9:32 p.m. and was signed by a person named Miller. Barker has received no explanation for the discrepancy between the date, time, and name of the collector noted on the chain of custody paper and the statements made by Adams, even though the corrections department issued a fourth substance abuse ticket based on that urine sample. No hearing was held on that ticket until June 1998, nearly sixteen months after the date it was issued, and Barker was found guilty. The Michigan Department of Corrections procedures provide that tickets must be heard within fourteen days or be dismissed.[77] Again, Barker did not receive any explanation of why a major substance abuse misconduct ticket was held for sixteen months. One serious ramification of delaying the hearing for sixteen months was that Barker's permanent visitation ban continued long after she was eligible to petition to have her visitation rights restored.[78] For Barker, who has a young child, the permanent visitation ban is particularly painful.

Barker's problems intensified when, in January 1997, she alleges Corrections Officer Portman, a defendant in the Nunn suit, began sexually assaulting her. Portman allegedly threatened to make trouble for Barker if she testified against him in the lawsuit. Among other things, Barker reports that Portman threatened to send her back to segregation. Portman also pointed out that if Barker did report the abuse it would be his word against hers. Finally, Portman told Barker that Inspector Howard was "out to get her," because he was friends with the correction officer who had been accused of sexual assault by Barker in 1990, subsequently found guilty, and lost his job. When Portman began sexually abusing Barker, she recalls feeling defeated and in shock that it could happen again. Barker decided not to report the assaults, despite being ashamed of her fear of reporting the abuse. The abuse came to light when another inmate saw Portman leaving Barker's cell one night and reported this to her lawyer. Barker finally reported the abuse herself to a prison psychiatrist on February 27, 1997. She was taken immediately to segregation and then transferred to the Huron Valley Center, a psychiatric hospital for inmates, on February 28, 1997. Unfortunately, Barker learned that her reputation as a "set up queen" had preceded her to Huron Valley. Barker reported being verbally harassed by attendants at the hospital facility, including one male staffer who told her repeatedly that he would "bring her down a few rungs."

On October 19, 1997, Barker attempted suicide. She told Human Rights Watch that when she was found, she was stripped naked by three male guards, placed in five-point restraints on a bed with no blanket, and held for nine hours. Once she was taken out of the restraints, she was placed on a suicide watch. Although prison regulations permit twenty-four-hour surveillance by a staff person who is never more than four feet away for three to five days, Barker reported being monitored twenty-four hours a day for twenty-nine days. Despite being on a suicide watch, she received no counseling or psychiatric evaluation during this period. One of her monitors was the employee who kept telling her that he would "bring her down a few rungs."

On February 3, 1998, Barker was transferred from the Huron Valley Center to the Florence Crane Facility. She was assigned to a housing unit in which the residential unit officer is a defendant in the Nunn lawsuit. Under oath, Deputy Warden Linda Gutierrez testified that Warden Sally Langley specifically decided to transfer Barker to the housing unit where the defendant worked. The deputy warden also testified that the warden virtually never makes housing placement decisions but had made an exception in Barker's case.[79]

Barker believes that she is being punished for her participation in previous and ongoing law suits. Others concur. A former female corrections officer who worked at the Scott facility when Barker was there reports that she often heard fellow guards talking about punishing Barker. She also explained that it would be easy for a guard to set up an inmate for substance abuse tickets and that the abusive guards protect each other from getting caught when they violate prison regulations.[80]

Tanika Lynch[81]

Tanika Lynch entered the prison system in October 1996 with a life sentence. A young, articulate, intelligent woman, Lynch was very assertive about her rights from the moment she entered the system. She successfully complained of sexual abuse by a corrections officer who was subsequently found guilty of criminal sexual conduct. Lynch was added as a plaintiff in the Nunn suit after she complained of retaliatory abuse by the corrections officer. She believes she has been targeted for retaliation because the officer she accused of sexual abuse lost his job as a result of being found guilty.

Although Lynch at first willingly participated in a sexual relationship with Corrections Officer Philip Lewis, her experience demonstrates that the power guards have over inmates puts the women at risk of abuse and retaliation should they decide to end the relationship. In late 1996, Lynch offered to accompany a wheelchair-bound inmate to the health care services office. While she was waiting to escort the woman back to her cell, Lynch and Lewis struck up a conversation. After that encounter, Lewis began pressuring Lynch to have a sexual relationship with him, but even though she was interested, it was difficult for them to get time alone. He gave her a condom-contraband under prison regulations-and asked her to keep it for him until they could use it. He told her what clothes to wear and would instruct her to show him different parts of her body.

Not only did Lewis put Lynch at risk by giving her contraband to keep for him, but as other prison staff became aware of the relationship, it was Lynch, not Lewis, who was blamed. In fact, when Lynch's supervisor at the store where she worked in the prison, Mr. Little, became aware of the relationship between Lynch and Lewis, Little told Lynch that if the over familiarity between her and Lewis continued, she would be fired.

Lynch immediately informed Lewis of Little's reprimand. Lewis responded by calling her a bitch and accusing her of being sexually involved with Little. The verbal hostility increased with Lewis' calling Lynch's daughter a bastard and offering to read the definition of bastard to her from a dictionary. Lewis threatened Lynch with physical harm and took advantage of routine pat-frisks to sexually abuse her. Initially Lynch tried to protect Lewis from any problems even though she was afraid of his escalating hostility. As the harassment increased, Lynch talked about Lewis's behavior to other women prisoners, to Little, and to officers whom she trusted. She also talked to Lewis and told him if he did not stop abusing her that she would be forced to report him. He reportedly responded, "Who do you think they're gonna believe? I'm the officer. You're just an inmate bitch."

On July 8, 1997, Lynch finally reported the abuse by Lewis. The next day, Lewis issued Lynch a major misconduct ticket for stealing from the prison store. In the first seven months of 1997, Lynch had received four misconduct tickets. In the four months after she reported the sexual abuse by Lewis, she received twenty-five tickets.[82] On September 23, 1997, Lynch asked the residential unit officer (RUO) permission to go to the bathroom. He denied her permission and reportedly said, "Bitches like you get found in ditches." Lynch reports that other officers have taunted her as they issued her tickets and told her if she does not like, it she should call on her friends in the Federal Bureau of Investigation. Lynch filed a grievance citing the Resident Unit Officer that was dismissed as frivolous.

Initially, other guards appeared to rally around Lewis. Theron F. Atkinson, the person charged with reviewing grievances filed by the inmates, issued a major misconduct ticket to Lynch alleging that she had filed a frivolous grievance. In his deposition taken for the Nunn suit, Atkinson admitted that it was extremely rare for him to issue such a ticket.[83] Atkinson also admitted that he told several co-workers that he thought Lynch was a liar.[84] Atkinson took time off work to attend Lewis's preliminary examination, where he told Lewis not to worry because "I'm behind you."[85] Under oath, Corrections Officer Julie Kennedy-Carpenter said that originally she did not believe Lynch's accusation against Lewis. However, after a couple of other inmates told her that Lewis had behaved in a similar manner toward them, she found the report more credible. Kennedy-Carpenter also reported that Lynch was being harassed by other officers: "I know a lot of officers have talked about making her pay."[86]

On January 27, 1998, Lewis was found guilty of criminal sexual conduct in the fourth degree. Lynch had planned to give a victim impact statement at the sentencing. However, before sentencing, two guards who work with Lewis approached Lynch and made thinly veiled threats against her family. Lynch decided not to speak at the sentencing out of fear that something might happen to her child. Lewis was sentenced to two years' probation. Lynch reports that she is still subject to intense verbal harassment by guards.

Ronesha Williams[87]

Ronesha Williams entered the Michigan Department of Corrections system in December 1996 for a one- to three-year sentence. A young, reserved woman who has done her best not to make waves while incarcerated, Williams stepped forward to report sexual abuse when Justice Department investigators visited Scott. The staff at Scott were immediately made aware of her charge, and from that moment on, Williams reports being subjected to unrelenting harassment and retaliation. As a direct result of the retaliation, Williams's release into a community-based program was delayed.

Williams reported that she was raped in May 1997 by a guard at Scott but did not report the assault until July 1997 during a Department of Justice investigation. Justice Department investigators made no attempt to protect her identity until she could be transferred to another facility for safety. Several weeks later, Williams was transferred from Scott to the Crane facility where she heard prison officials explaining her transfer by saying, "They don't want her at Scott." Williams also heard the response of the guards: "We don't want her here."

A Michigan Department of Corrections official explained to Williams that she was being transferred to protect her from retaliation after reporting the alleged rape to the Department of Justice, yet she detailed to Human Rights Watch being subjected to intense retaliation upon her arrival at Crane. During her eight months at Scott, Williams received three major misconduct tickets and no minor misconduct citations. However, within a four-month period at Crane from September 23, 1997, through January 26, 1998, Williams received nine major misconduct tickets. Four of those tickets were subsequently dismissed, but the remaining five were all for behaviors for which she claims other inmates would not have been cited. For example, on September 23, 1997, Williams was assigned to work in the food service section. When she showed up for work she was written up for coming to breakfast early, even though that was part of the job requirement.

In January 1988, Williams was moved to a housing unit within Crane in which the resident unit officer, Hauk, is a defendant in the Nunn suit. In February 1998 alone, Hauk issued four minor misconduct tickets to Williams. As a consequence of the misconduct tickets, Williams was not paroled and transferred to the community release center in May 1998 as she had anticipated.

Williams reported that the retaliation also took the form of excessive pat-frisks. As documented in All Too Familiar, abusive guards use pat-frisks to humiliate and inflict pain upon female prisoners. Prior to reporting the rape to the Department of Justice, Williams estimated that she was subjected to one pat-frisk a week. After the transfer to Crane, she noticed a marked increase in the number of pat-frisks After her transfer to Hauk's unit, Williams reports that she was pat-frisked eighty-eight times in the month of February alone, forty-nine times by Hauk. Williams also reports that the pat-frisks were often accompanied by threatening comments. One officer who repeatedly pat-frisked Williams told her it was "to teach her to keep her mouth shut." In January 1998, another guard told Williams that he knew she was keeping a log of the pat-frisks and informed her that his name "better not show up in relation to the law suit."

Williams has asked to be transferred from the housing unit where Hauk is assigned. Her requests for a transfer have gone unanswered. She also said that if she had had any idea how difficult her life would be after reporting the rape to the Justice Department investigators, she would never have come forward, and she believes that she would now be out on parole.

Jane Doe 1[88]

Women who try to maintain a low profile even as they search for ways to protect themselves from being sexual harassed and abused can suffer severe consequences if their attempts to deal with the abuse are exposed. Jane Doe 1 alleges that in July 1997 a corrections officer exposed himself to her and asked her explicit sexual questions. After confiding in another inmate, she decided to speak to the chaplain about the sexual abuse. The chaplain subsequently passed on the information to the prison authorities. After an investigation and a hearing in which the hearing officer apparently relied upon confidential witnesses and documents to which Jane Doe 1 was never privy, the charge against the officer was dismissed, and she was issued a major misconduct ticket for interference with the administration of rules by making a false charge against a corrections officer. She was found guilty of the charge and punished, thereby losing her release date. She appealed the guilty finding and asked for a re-hearing. Her request was denied.

Jane Doe 1, who had been reluctant to speak of the allegations and who sought advice from the prison chaplain who then made a unilateral decision to report the conduct, believes that she is being punished for reporting the sexual abuse. She further feels that she would never step forward with another accusation under any circumstances because she does not believe she will be given a fair opportunity to be heard but instead will be punished.

Jackie Myrick[89]

Jackie Myrick entered the Scott facility in April 1995. A quiet, nervous woman with a long history of emotional problems stemming from various forms of abuse, Myrick believes she has been held responsible by many corrections officers for the suicide of a guard who she reported raped her when she was serving time for a prior conviction at Crane.

When Myrick was sentenced to prison again, the judgment sentence of the court specifically recommended that Myrick be placed in a local facility or even in a federal facility to guarantee her safety. That recommendation was ignored by the Michigan Department of Corrections. As soon as she entered Scott, she was subjected to verbal harassments and threats by guards who blamed her for the officer's death. The harassment escalated, and she was physically assaulted and told not to cooperate with the Department of Justice investigation. Myrick alleges that one of the defendants in the Nunn suit was harassing and assaulting her. As a result of the threats, Myrick attempted suicide in February 1997. She was placed in segregation. However, Myrick was extremely fearful because she had been raped before while in protective custody. Myrick, who has been diagnosed with an adjustment disorder, post-traumatic stress disorder, and borderline personality disorder, had a psychotic episode while in segregation during which she reports that she had visual and auditory hallucinations of the officer who raped her. On February 11, 1997, she was transferred to the Huron Valley Center for treatment.

In April 1997 Huron Valley Center officials decided to send Myrick back to Scott, but she became so distraught at the idea of returning that they never executed the transfer. In May 1997 the Michigan Department of Corrections agreed to provide Myrick's lawyer seventy-two-hour notice of any plans to transfer her from Huron Valley. However, in a discharge summary signed by Jaya K. Madhaven, M.D., the narration includes the statement that Myrick wanted to return to Scott. The Michigan Department of Corrections failed to comply with the seventy-two-hour notice provision, and Myrick was transferred to Scott on November 20, 1997. She was so agitated upon arriving that she was immediately placed on a one-on-one suicide watch. The same day a hearing was held before Judge John Corbett O'Meara, who ordered her returned to Huron Valley. Myrick remains at Huron Valley Center and continues to express fear for her life if she is forced to return to Scott.

VI. THE CHILLING EFFECT OF RETALIATION

The women interviewed for this report clearly feel they are being punished for reporting sexual abuse by guards. Their belief is supported by the perceptions of other inmates, the testimony of other prison guards, and prisoners' rights advocates. The impact on their participation in rehabilitative programs such as work and school, visitation privileges, and physical and mental health has been profound, but they are not the only ones suffering as a result of the perceived retaliation. The women in Michigan prisons have learned from their fellow inmates' experiences. Put simply, most women in the system are now too scared to report sexual abuse, because they feel the consequences may be more devastating than the abuse itself.

Jane Doe 2 entered the corrections system in 1995. At the time of her incarceration, she spoke very little English. After she had been in the prison for several months, she was approached by a guard who asked her to give him oral sex. She did not want to agree, but because she did not feel comfortable talking with any of the guards or administrators, she went along with the guard's request. The sexual abuse continued over a two-year period until the guard transferred to another facility. As she became more comfortable in the system and her English improved, she decided to seek outside counsel and approached a lawyer about what she could do to stop the abuse. However, once she realized that it would be impossible to file a complaint without her identity being revealed, she decided not to take any action, reportedly saying, "I don't want to end up like Tanika Lynch."[90]

This woman's story demonstrates the chilling effect that retaliation has on female prisoners. In some cases women choose to live with the sexual abuse rather than risk being targeted for retaliation. In other cases, such as thatof Ronesha Williams, women regret coming forward to make complaints about sexual harassment. Regardless, the word is out that if you choose to file a complaint against a guard for sexual harassment, you may suffer from unrelenting retaliation and even loss of credit for good behavior and have your release date pushed back.

The question arises: why do other corrections officers not speak out against the sexual abuse and retaliation? Under oath, Kennedy-Carpenter talked about the fear corrections officers have about speaking out against the abusive guards:

They're afraid of their supervisor setting them up and getting them fired. They're afraid of some of the dirty officers doing things to them; setting them up, running them off the expressway, all the things they've been doing. A lot of them know what's right and what's wrong, but they don't have the guts to put up with it on a daily basis, the harassment they are going to have.[91]

When questioned about retaliation against corrections officers who come forward, Kennedy-Carpenter asked in reply:

How are you going to protect them? That's all I want to know. How in the world are you going to protect them in this environment? You are going to have to guarantee them jobs within other state systems here; transfer them to another department . . . because there's no way they're going to be able to function here afterwards.

You can't put them in another prison. There is not an officer here that doesn't know people at twenty other prisons. And word gets out-before that person ever hits the front gate, word will get to that prison that they were a snitch. There's just no way you're going to be able to protect these officers.[92]

Given that a corrections officer within the system despairs at the possibility of protecting a fellow officer from retaliation if he or she speaks out about the abuse or retaliation, it is clear that prisoners are even less able to protect themselves. No attempt is made to keep the names of prisoners who file grievances against officers confidential. According to Kennedy-Carpenter, officers find out immediately if they have been reported by a prisoner just by checking the docket boards at the control center.[93]

The suit against the Michigan Department of Corrections continues; however, the toll paid by the women who are bringing the suit is extremely high. Three of these women have attempted suicide and spent a substantial amount of time in the Huron Valley Center. While housed there, the women do not have access to work or school or other programs available to women at the Scott and Crane facilities. Although the Michigan Department of Corrections continues to deny all the charges, its actions place the complainants at clear risk of retaliation and belie a neutral and professional intent. For example, even as the suit is active in the discovery phase, three of the plaintiffs are housed in a unit with one of the defendants.

VII. ACKNOWLEDGMENTS

This report was researched and written by A. Widney Brown, consultant with the Women's Rights Division of Human Rights Watch. The report was edited by Regan E. Ralph, executive director of the Women's Rights Division, with invaluable editorial oversight from Cynthia Brown, program director of Human Rights Watch, and Allyson Collins, senior researcher with Human Rights Watch. Dinah PoKempner, counsel for Human Rights Watch provided legal review. Special thanks to Kerry McArthur for her assistance throughout the research, writing, and editing of this report.

This report would not have been possible without the courageous cooperation of the women in Michigan prisons who agreed to speak with Human Rights Watch. We also wish to thank the attorneys working on the Nunn suit, in particular, Deborah LaBelle and Molly Reno, and corrections officers who agreed to speak with us.

We would also like to thank the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the Sandler Family Supporting Fund, and the Sister Fund for their generous support of our work.

Human Rights Watch Women's Rights Division



[1] Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996).

[2] Nunn v. Michigan Department of Corrections, Civil Action No. 96-CV-71416-DT, United States District Court for the Eastern District of Michigan.

[3] Darrell K. Gillard, and Allen J. Beck, "Prison and Jail Inmates at Midyear 1997," Bureau of Justice Statistics Bulletin (Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1998).

[4] Ibid.

[5] Merry Morash, Timothy S. Bynum, and Barbara A. Koons, Women Offenders: Programming Needs and Promising Approaches (Maryland: National Institute of Justice, 1998).

[6] Between 1985 and 1995 the number of women inmates tripled, while the number of men inmates doubled. Ibid. Between June 30, 1996, and June 30, 1997, the number of men prisoners grew by 4.7 percent; however, the number of women prisoners grew by 6.1 percent. Gillard and Beck, "Prison and Jail Inmates at Midyear 1997."

[7] Tracy L. Snell and Danielle C. Morton, "Women in Prison: Survey of State Prison Inmates 1991," Bureau of Justice Statistics Special Report (Washington D.C.: U.S. Department of Justice, Bureau of Justice Statistics 1994).

[8] Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches. These figures, however, may be conservative, as state-specific studies have generally yielded a higher percentage of women reporting prior sexual or physical abuse. A 1988 study found that 88 percent of the incarcerated women sampled had experienced at least one major form of prior abuse: childhood physical abuse, childhood sexual abuse, adult rape, or adult battering. Russ Immarigeon and Meda Chesney-Lind, Women's Prisons: Overcrowded and Overused (San Francisco: National Council on Crime and Delinquency, 1992). Another National Council on Crime and Delinquency study found that 67 percent of women reported physical or sexual abuse as children, and 71 percent reported such abuse as adults. Leslie Acoca and James Austin, The Crisis: Women in Prison (San Francisco: National Council on Crime and Delinquency, 1996).

[9] Ibid.

[10] Gillard and Beck, "Prison and Jail Inmates at Midyear 1997."

[11] Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches.

[12] Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons.

[13] Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, pp. 243-62.

[14] Under Title VII, an employer may not discriminate on the basis of sex unless the employee's sex is a bona fide occupational qualification (BFOQ), i.e., a qualification that is "reasonably necessary" to perform the specific job.

[15] In the absence of unusual circumstances, U.S. federal courts have been reluctant to characterize a person's sex as a BFOQ. Dothard v. Rawlinson, 433 U.S. 321 (1977); Fort v. Ward, 621 F.2d 1210 (2nd Cir. 1980; Griffin v. Michigan Department of Corrections, 645 F.Supp. 690 (E.D. Mich. 1982); Gunther v. Iowa State Men's Reformatory, 462 F.Supp. 952 (N.D. Iowa 1979), affirmed 612 F.2d 1079 (6th Cir. 1980), cert. denied, 446 U.S. 966 (1980).

[16] In Torres v. Wisconsin Department of Health and Human Services, 859 F.2d 1523 (7th Cir. 1988), cert. denied, 489 U.S. 1017 (1989), the court held that considering the women's histories of sexual and physical abuse, sex could be used as a BFOQ to restrict male officers from working on the housing units. In Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), the court ruled that, based on the female prisoners' histories of physical and sexual abuse, cross-gender pat-frisks constitute cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution.

[17] International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 220 A (XXI) of 16 December 1966, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, Art. 7, p. 23.

[18] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, reprinted in United Nations, A Compilation of International Instruments: Volume 1(first part) Universal Instruments (New York: United Nations, 1993), E.93.XIV.I, pp. 293-307.

[19] The U.S. ratified the International Covenant on Civil and Political Rights in 1993 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994. However, the U.S. declared the provisions of both treaties to be "non-self-executing," effectively denying individuals the right to sue the government for noncompliance with these treaties.

[20] Letter from Kenneth L. McGinnis, director of the Michigan Department of Corrections, to Human Rights Watch, June 10, 1997 (on file with Human Rights Watch).

[21] Letter from Gov. John Engler, State of Michigan, to Maarit Kohonen, Office of the United Nations High Commissioner for Human Rights, June 12, 1998 (on file with Human Rights Watch).

[22] Letter from Deval Patrick, assistant attorney general, U.S. Department of Justice, to Gov. John Engler, State of Michigan, March 27, 1995.

[23] Ibid.

[24] Ibid.

[25] Nunn v. Michigan Department of Corrections, Civil Action No. 96-CV-71416-DT, United States District Court for the Eastern District of Michigan.

[26] "Ticket" is the term used to indicate that a corrections officer has initiated a procedure by which an inmate will be charged with a violation of prison rules and regulations.

[27] Deposition of Joan Yukins, warden of the Scott Correctional Facility, June 6, 1995 [hereinafter Yukins Deposition]. "If that was the only information we had, a prisoner's word against a staff member's word and no other substantiating evidence, no other documents, no other witnesses, the staff member's word would take precedence."

[28] Ibid.

[29] Morash, Bynum, and Koons, Women Offenders: Programming Needs and Promising Approaches.

[30] Ibid. In light of the number of women inmates who have parental responsibilities or who have histories of being abused, there is a notable lack of screening for needs related to children, spouse abuse, and childhood sexual abuse. For example, women with children are often not informed of parenting classes, and women with histories of abuse are not referred to psychological counseling services.

[31] Ibid.

[32] "Three strikes and you're out" laws mandate that any person convicted of three felonies must be sentenced to life without parole. Some states only consider violent felonies, while other states include any felony convictions.

[33] In April 1996 the Prison Litigation Reform Act of 1995 (PLRA) 18 U.S.C. 3626 et seq. was signed, dramatically limiting the ability of individuals, nongovernmental organizations, and even the Department of Justice to challenge abusive prison conditions through litigation.

[34] 42 U.S.C. Section 1997 et seq.

[35] Under the Michigan Penal Code, consensual sexual contact between a guard and an inmate is Criminal Sexual Conduct in the 4th Degree, a two-year offense. Michigan Comparative Law Annotated section 750-520(e)(d).

[36] Under administrative procedures, "unsubstantiated" simply means that the investigator or hearing administrator was unable to determine the legitimacy of the allegations, usually because of lack of collaborative evidence.

[37] Human Rights Watch telephone interview, Jane Doe, former corrections officer at Scott Correctional Facility, Ann Arbor, Michigan, March 27, 1998. She requested anonymity based on her allegation that she had been attacked by guards who resented her reporting them to corrections officials for serious violations of departmental regulations. See also Yukins Deposition, June 6, 1995.

[38]

[39]

[40]

[41]

[42] Farmer v. Brennan, 114 S. Ct. 1970 (1984).

[43] Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir. 1982), rehearing denied, 696 F.2d 1007 (11th Cir. 1983); Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994).

[44] Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993); Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982); Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S. 996 (1983).

[45] Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993); Cookish v. Powell, 945 F.2d 441 (1st Cir. 1991); Cumbey v. Meachum, 684 F.2d 712 (10th Cir. 1982); Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981).

[46] Bates v. Little Rock, 361 U.S. 516 (1960). Justices Black and Douglas argue in their concurring opinion that First Amendment rights are beyond abridgment and specifically cite impairment of the right through "harassment, humiliation or exposure by government."

[47] Johnson v. Avery, 393 U.S. 483 (1969); Wolfel v. Bates, 707 F.2d 932 (6th Cir. 1983); Franco v. Kelly, 854 F.2d 584 (2nd Cir. 1988).

[48] Bounds v. Smith, 430 U.S. 817 (1977); Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990); Goff v. Burton, 7 F.3d 734 (8th Cir. 1993), cert. denied, 114 S.Ct. 2684 (1994).

[49] Green v. Johnson, 977 F.2d 1383 (10th Cir. 1992).

[50] Smith, 899 F.2d at 947, Jones v. Coughlin, 45 F.3d 677 (2nd Cir. 1995). "A prisoner has a substantive due process right not to be subject to false misconduct charges as retaliation for his exercise of a constitutional right such as petitioning the government for redress of his grievances."

[51] Title 18, U.S.C. Sections 241 and 242.

[52] 42 U.S.C. Section 1997 et seq.

[53] McLaurin v. Cole, 1997 Fed. App. 0180 (6th Cir.).

[54] McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979);Goff v. Burton, 7 F.3d 734 (8th Cir. 1993), cert. denied, 114 S.Ct. 2684 (1994).

[55] Human Rights Watch telephone interview, Jane Doe, former corrections officer at Scott Correctional Facility, Ann Arbor, Michigan, March 27, 1998. See also Yukins Deposition, June 6, 1995.

[56] Conner v. Schnuck Markets, Inc., 121 F.3d 1390 (10th Cir. 1997), Soranno's Gasco, Inc. V. Morgan, 874 F.2d 1310 (9th Cir. 1989).

[57] Hines v. Gomez, (9th Ct. App., 1997).

[58] Cale v. Johnson, 861 F.2d 945 (6th Cir. 1988).

[59] Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment, Article 1.

[60] Rape committed by prison authorities against inmates has been recognized as a form of torture. In 1992, the U.N. Special Rapporteur on Torture noted, "Since it was clear that rape or other forms of sexual assault against women in detention were particularly ignominious violations of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture." U.N. Doc. E/CN.4/1992/SR.21, para. 35. Report by the Special Rapporteur, P. Koojimans, appointed pursuant to Commission on Human Rights resolution 1985/33, U.N. Doc. E/CN.4/1986/15 (February 19, 1986), p. 29. More recently, the U.N. Special Rapporteur on Torture recommended "that female security personnel be present during interrogation of women detainees, as interrogation and detention of detainees by exclusively male personnel constitute conditions that may be conducive to rape and sexual abuse of women prisoners or the threat or fear thereof." U.N. Doc. E/CN.4/1995/34 para. 24.

[61] The European Commission on Human Rights has done the most to clarify a definition of degrading treatment. In the Greek Case, the commission defined degrading treatment as that which "grossly humiliates one before others or drives him to act against his will or conscience." Greek Case, 1969 Y.B. Eur. Conv. on H.R. (Eur. Comm'n on H.R.) 186. The Commission elaborated in the East Asian Africans Case: degrading treatment must "lower the victim in rank, position, reputation or character whether in his own eyes or in the eyes of other people," as well as cause serious humiliation. East Asian Africans v. United Kingdom, App. No. 4403/70, 3 Eur. H.R. Rep. 76, 80 (1981) (Commission report).

[62] The European Commission upheld the use of close body searches where there was a history of concealed objects. McFeeley v. United Kingdom, App. No. 8317/78, 3 European Human Rights Reporter, p. 201 (1980) (Commission Report).

[63] The Greek Case, 1969 Yearbook of European Convention on Human Rights, pp. 462-3 (1969).

[64] European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3.

[65] "No one shall be subjected to arbitrary or unlawful interference with his privacy . . ." International Covenant on Civil and Political Rights, Article 17.

[66] General Comment 16 to Article 17, "Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," U.N. Doc. HRI/GEN/Rev.1, July 29, 1994.

[67] Nunn v. Michigan Department of Corrections, Civil Action No. 96-CV-71416-DT, United States District Court for the Eastern District of Michigan.  

[68] Letter from Governor John Engler, State of Michigan, to Maarit Kohonen, the Office of the United Nations High Commissioner for Human Rights, June 12, 1998 (on file with Human Rights Watch).

[69] Human Rights Watch interview, Stacy Barker, Huron Valley Center, December 29, 1997. Unless otherwise indicated, all information in these narratives is based on interviews with each of the women.

[70] Glover v. Johnson, 931 F.Supp. 1030 (E.D. Mich. 1996).

[71] Craig Keahy, the officer Barker accused, was convicted on December 18, 1991, for sexual contact with another inmate and pled no contest to charges of sexual contact with Barker on December 21, 1991.

[72] MDOC Security Classification Screen Review for Stacy Barker, dated September 21, 1995.

[73] Barker was issued tickets on Oct. 12, 1995, for possession of marijuana, upheld on Oct. 17, 1996; on Oct. 12, 1995, for use of cocaine, upheld on Nov. 18, 1995; on Oct. 30, 1995, for possession of marijuana, subsequently dismissed; and on June 6, 1996, for use of cocaine, upheld July 16, 1996.

[74] Human Rights Watch interview, Stuart Friedman, criminal defense attorney for Stacy Barker, Ann Arbor, Michigan, March 27, 1998.

[75] Ibid.

[76] MDOC Permanent Visitor Restrictions List (Substance Abuse Only), dated January 27, 1997.

[77] Human Rights Watch interview, Stuart Friedman, criminal defense attorney for Stacy Barker, Ann Arbor, Michigan, March 27, 1998.

[78] Women who do not receive any major misconduct tickets for a twelve-month period after being issued a permanent visitation ban may apply to the warden to have the ban lifted. MDOC Memorandum on Permanent Visitor Restriction (Substance Abuse Only), dated January 27, 1997.

[79] Deposition of Linda Gutierrez, taken in the Nunn case, February 19, 1998.

[80] Human Rights Watch interview, Jane Doe, former corrections officer at Scott Correctional Facility, Ann Arbor, Michigan, March 27, 1998.

[81] Human Rights Watch interview, Tanika Lynch, Crane Correctional Facility, March 26, 1998.

[82] After the ticket issued on July 9, 1997, Lewis did not issue her any more tickets.

[83] Deposition of Theron F. Atkinson, taken in the Nunn suit, October 20, 1997.

[84] Ibid.

[85] Ibid.

[86] Deposition of Julie Kennedy-Carpenter, taken in the Nunn suit, April 13, 1998.

[87] Human Rights Watch interview, Ronesha Williams, Crane Correctional Facility, December 30, 1997.

[88] Human Rights Watch interview, Jane Doe 1, March 27, 1998.

[89] Human Rights Watch interview, Jackie Myrick, Huron Valley Center, December 29, 1997.

[90] Human Rights Watch interview, Molly Reno, attorney for Tanika Lynch, Ann Arbor, Michigan, March 25, 1998.

[91] Deposition of Julie Kennedy-Carpenter, April 13, 1998.

[92] Ibid.

[93] This information confirms a statement made by a former corrections officer interviewed by Human Rights Watch.

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