Men's Hands Off Women Prisoners

By Corey Weinstein

          Human rights laws and treaties signed by the US codify basic rules for the treatment of prisoners.  Rule 53 of the Standard Minimum Rules for the Treatment of Prisoners states that women prisoners must only be guarded by female officers.  The exclusion of male custodial staff from posts in housing units for women prisoners is the standard world wide, but not in the US.  Ignoring human rights standards and common sense male staff in the US continue to have unbridled visual and physical access to women in what constitutes their bedrooms, restrooms and living rooms in prison.  Sexual assault and physical and psychic trauma for the women are the results. 

Background

          Before the 1960s it was routine in California and the US for women prisoners to be guarded by women, often called matrons. In 1964 the Civil Rights Act was passed in Washington, DC. It was an historic act that created equal rights for all people in employment and public accommodations. Since then (especially in California) there has been the creation of a racially diverse prison guard staff with many female officers. In New York, Georgia and Michigan there have been Court battles between prisoners and public employee and guard unions over the right of women prisoners to privacy and safety, and the right of employees to have any job for which they have seniority. Male staff have been removed from women’s housing units by the Court and then allowed to go back to those posts, and even removed again. 

          More than 50% of women in jails and prisons have been subjected to sexual or physical assault by men before entering prison.  Male staff doing pat searches of women or observing them in their housing units are likely to stir up memories of that troubled time and force women to relive their painful past. As forensic psychiatric expert and author of Prison Madness, a book about mental illness and psychiatric care in prison, Terry Kupers, MD observes, “Women with histories of abuse are especially vulnerable and likely to be retraumatized by sexual harassment and abuse in prison. When male officers treat women with disrespect it has a different impact than having women officers act disrespectfully to male prisoners. Disrespect towards women by male officers is more likely to be sexual in content or implication, and in women who were traumatized by sexual abuse perpetrated by males, it is more likely to be experienced as a retraumatization.” 

          Various jurisdictions have limited male staff’s contact with women prisoners.  In Arizona prison policy states that, “Frisk searches (pat-downs) of inmates shall be conducted by staff members of the same gender as the inmate. Male officers shall not frisk search female inmates, except in emergency situations.” Presently in New York prisons male staff are prohibited from pat searching women except in emergencies. In emergencies men can pat search women, but not all women.  In recognition of the frequent sexual abuse histories of women prisoners, any woman can object to the search and it must be stopped. Women can apply for and carry a card that if shown will stop male staff from pat searching them. A human rights campaign in 2005 forced the prison administration to end cross gender pat searches of women prisoners in California.

There is a standing legal decision in the 9th Circuit US Federal Court called Jordan v. Gardner (986 F.2d 1521 (9th  Cir.1992) that found it is cruel and unusual punishment to have male officers conduct clothed body searches on female prisoners.

         In her summary of eighteen important cases Michigan Attorney Deborah LaBelle points out that prisoners retain their constitutional rights to bodily integrity, privacy and safety from assaults and harassment during their incarceration. Women prisoners' safety and privacy is impaired by the use of male officers in certain supervisory positions or by allowing male officers to perform certain tasks. Male officers’ employment concerns should not be allowed to interfere with women prisoners’ safety and privacy, particularly being subjected to pat searches by male staff or being guarded by men in the housing units.  In Alaska in 1994 a Court found that “minimal standards of privacy and decency include the right not to be subjected to sexual advances, to use the toilet without being observed by…the opposite sex, and to shower without being viewed by …the opposite sex.”

          Human Rights Watch conducted a two year study of women’s correctional institutions and one decade ago published their report: All Too Familiar, Sexual Abuse of Women in U.S. State Prisons.  In the report they concluded:

 We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so.. In addition to engaging in sexual relations with prisoners, male officers have 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 correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often highly sexualized and excessively hostile.  No one group of prisoners appears to suffer sexual 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 misconduct by officers, as have 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. In some instances, women have been impregnated as a result of sexual misconduct, and some of these prisoners have faced additional abuse in the form of inappropriate segregation, denial of adequate health care, and/or pressure to seek an abortion.

          One year ago an historic decision was written by the Sixth Circuit United States Court of Appeals in the case of Everson v. Michigan Department of Corrections.  It is the legal decision with the highest standing on this matter of any in the United States.  The issue of this trial was whether the Michigan Department of Corrections should bar male custodial staff from certain positions in prisons for women.  Following separate lawsuits by female prisoners that alleged rampant sexual abuse of women prisoners the MDOC barred males from working in women’s housing units.  After winning the suit, correctional officers counter sued alleging that the MDOC violated Title VII of the Civil Rights Act of 1964, and that gender was not a bona fide occupational qualification (BFOQ) for the positions in question.  In other words the District Court agreed with that and rendered a permanent injunction against using gender in determining work assignments in prison.  But the Circuit Court outlined the 11 year history of reports, law suits and partial solutions to the rampant sexual abuse of women prisoners by male staff in Michigan’s prisons.  Then the Circuit Court reversed the District Court decision and ruled that gender is indeed a BFOQ and essentially ordered the removal of male custodial staff from being assigned to any unit housing women prisoners.  This is the standing legal opinion in the US and should provide the basis for all penal authorities to come into compliance with international human rights instruments. 

          The US Court system now has joined the international human rights community in barring male staff for housing units in women’s prisons.  It is a challenge for each of us to take this powerful tool back to our own States and insure its implementation as soon as possible.  Only when men are removed from the housing units in prisons holding women and when any male working inside must be accompanied at all times by a female officer will the wholesale sexual abuse of women prisoners be finally stopped in the US.

International Human Rights Standards

1.  Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

              Principle 1: “All persons under any form of detention of imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.”

2.  International Covenant on Civil and Political Rights (ICCPR)

              Article 7: “No one shall be subjected to torture or to cruel, inhumane and degrading treatment or punishment.”

3.  The United Nation’s Standard Minimum Rules for the Treatment of Prisoners

              Rule 53(3): “…women prisoners shall be attended and supervised only by women officers.”

              Rule 53(4): “…male staff providing professional services such as doctors and teachers should always be accompanied by female officers.”

4.  General Comment on Article 17 (Thirty-second session, 1988) set out by the Human Rights Committee that monitors State’s compliance with the ICCPR:

              “…so far as personal and body search is 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 a body search by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.”

Women Are Not Men

          No part of California’s prosecution and detention system more glaringly clarifies its inadequacies than its treatment of women.  As the bipartisan Little Hoover Commission said California runs a prison system with policies, practices, programs and facilities designed mostly for violent male prisoners, and “has remained focused, almost singularly, on a policy of punishment and incapacitation designed for male offenders.”  Remember that the overwhelming majority of women in prison are incarcerated for nonviolent offenses, especially drug crimes.  More of them have been victims of violent crimes than have been convicted of violent crimes.          

          There are about 11, 250 women housed in four prison facilities in California.  8,000 of the women are kept in two prisons across Highway 99 from Chowchilla, California a 40 minute drive north of Fresno in the Central Valley.  Each of those prisons, Central California Women’s Facility and Valley State Prison for Women is the largest prison for women in the world.  These two mega-

prisons are far from the population centers where the women were living before imprisonment.  The average female prisoner is in her late 30s and most have been victims of sexual and/or physical abuse.  64% of women prisoners are mothers of minor children, 2/3 of whom were single parents.  More than half of the women were caring for their children at the time of their arrest. 

            Little attempt is made by the California Department of Corrections and Rehabilitation (CDoCR) to assist women in retaining their family ties.  Until 2007 there had been no CDoCR transportation program for bringing children to the prisons to visit their mothers.  There are only 140 community placement beds for pregnant women or those with short sentences and kids under six years old.  In other States women who are placed in secure community facilities with their children almost always complete their sentences and parole successfully and avoid future incarceration.  The rate of return to prison for women in such community and family based prison facilities is less than 1/3 of that for usual prisons. 

           Incarcerated women have important mental health needs and drug treatment needs.  They are often undereducated and many have few job skills.  The most common crime committed by female offenders is stealing to support a drug habit.  Other frequent offenses are credit card and check fraud.  But less than 1/3 of the women in California prisons are in any academic, vocational or job training program.  There is far too little drug treatment, and the treatment programs use a punitive model.  If a woman is caught using drugs she is put in the hole and denied further drug treatment.  The standard and more successful harm reduction model is not used in our prisons.  There are long waiting lists for any drug treatment.

           The special health needs of women have been disregarded by CDoCR.  The first draft of the historic Plata Settlement Agreement in Federal Court designed to bring the provision of medical care for all California prisoners up to minimal Constitutional standard had no provisions for the needs for women prisoners.  This Court settlement over substandard health care just left out 10,000 women.  Despite finally being added to the first tier of facilities for improvement under Plata the care at the two prisons monitored by CPF remains substandard, and in fact is in complete disarray. 

           Mental health care is also inadequate despite Court oversight.  There is even one notorious psychiatrist at VSPW who took women off of their psych medications even though they have been treated by competent community and prison doctors with medication for years prior.  Described as a sadist by a former colleague, this VSPW psychiatrist ignored the pleas of the women and closes his eyes to the sight of their decompensation which often causes behaviors that result in placement in 23.5 hour a day lockdown in the Security Housing Unit.  In the SHU they were treated by a different physician who often just restarted their medications.  One woman taken off her medications suffered a severe delusional behavior disorder.  She viciously mutilated herself, and had to be removed from VSPW to a psychiatric hospital.  That doctor was finally quietly reassigned to the Parole Department.

           There are other special needs that women have, ways in which they are very different than male prisoners.  And these needs are ignored by CDoCR to the detriment of the health and rehabilitative efforts of the women.  It is a tragedy that women in California prisons are forced to live in T shirts, jeans and sneakers.  No feminine clothes are allowed.  No dresses, skirts, slacks, blouses or sweaters can be worn, even during social visits.  The women wear the same clothes as the men.  The jeans are cut for a man’s physique, so are ill fitting for women.  Self respect and a positive self image are critical for successful rehabilitation, yet women are demeaned daily by having to dress as men.  The same is true in hair style, so important to a woman’s psyche.  There are restrictions on hair styles and limited choices in cosmetics and jewelry.

The Women’s Advisory Council of the Valley State Prison for Women published a Gender Specific Policies Proposal.  They pointed out that the grooming policies at the prison were confusing and contradictory and led to lower self esteem and impaired self assurance, and objected to the fact clothing available for purchase is designed for men.  They requested more vocational training in traditional occupational fields for women rather than welding and refrigeration repair, and more battered women, parenting and self-esteem classes.  The WAC listed 18 programs that would be most useful for their rehabilitation that aren’t available including: Lap Blankets for the elderly, Adopt a School, Hobby Craft, Literacy, Victim Support Group, etc.   

Sanitary supplies are frequently inadequate for the women.  Those with heavy menstrual periods are forced to beg and borrow sanitary napkins.  In some facilities the women have to show a Correctional Officer (often male) a fully soaked pad to get another one. 

           Respectful treatment from the custodial staff is essential to the smooth running of any prison, and even more important in a prison for women.  Women are generally treated more graciously in the community, and deserve the same in prison.  Staff should respect the modesty of women and model the behavior the staff wants from the women.  But this is not the case in the CDoCR.  Women are called degrading names and the guards swear at them and taunt them.  Male guards comment on their bodies and criticize the women.  This verbal abuse by many guards and support staff is against regulations.  But few staff if any report the violations up the chain of command, and supervisors do little in any case.  This daily degradation is just accepted. 

Drug Treatment

              70% of women in California’s prisons have need for drug rehabilitation services, but only 14% are in drug treatment in prison or while on parole.  Illicit drugs are easy to obtain in prison.  Many women describe that it is easier to buy drugs inside than on the streets.  Certainly drug trafficking in prison is an important source of violence and strife, and employing unclean needles during intravenous drug use is a significant public health risk.  Most States including California employ some kind of group therapy abstinence model for treatment of the few who can access treatment inside.  Use of drugs is a serious rules violation and results in removal from treatment and if repetitive, assignment to punitive housing such as isolation in a control unit.  Harm reduction strategies are almost unknown in prisons in the US.  Yet harm reduction is considered the standard of care among the 33 nations participating in the World Health Organization’s Health in Prison Project in greater Europe.  WHO HIPP defines harm reduction in this way: In public health relating to prisons, harm reduction describes a concept aiming to prevent or reduce negative health effects associated with certain types of behaviour (such as drug injection) and with imprisonment and overcrowding as well as adverse effects on mental health.     

           The public health strategy outlined by HIPP includes information, education and communication with psychosocial support for problematic users; detoxification and drug substitution therapy; and needle exchange in prison.  A recent article in the International Journal of Prisoner Health studied the needle exchange programs in Moldova, Spain, Switzerland, Germany, Kyrgyzstan and Belarus.  They found that the programs increased prison safety, did not increase drug consumption, reduced risk behavior and disease transmission and dramatically decreased fatal and nonfatal overdosing of heroin.  Opiate substitution therapy is offered in about half of Europe’s prison systems and is expanding rapidly. 

           Recently the American Medical Association adopted a resolution 443 that supports Opiate Replacement Therapy Programs in Correctional Institutions.  The resolution acknowledges the fact that replacement therapy recognizes the chronic and in many cases incurable nature of addiction, and the

benefit to prisoners and to institutional safety such therapy provides.  Exposure to Hepatitis B/C and HIV decrease as does prison drug trafficking and related violence.  Upon the urging of the New Mexico Society of Physicians New Mexico lawmakers recently passed legislation that provides for opiate replacement therapy in jails and prisons.  Certainly abstinence programs do not work for many drug users.  While helpful for some in the community it is not clear at all that group therapy or even therapeutic community units are effective in prison.  But substitution therapy and needle exchange programs have been shown to reduce drug use and health risks for prisoners. 

Overcrowding

           Overcrowding is widespread in prisons.  Occupancy rates are not uncommonly above 200%.  Many prisons and jails in the US are overcrowded.  California State lockups are almost at the 200%

mark making them among the top 20% in the world only topped by such countries as Iran, Thailand, Pakistan and Bangladesh.  Overcrowding has a disastrous effect on the health problems in prison from the serious epidemic of MRSA in US facilities to influenza, HIV, viral hepatitis and TB.  Medical and mental health services are stretched beyond their limits causing severe delays in care and identification and treatment of acute and chronic disease.

           Overcrowding collapses programming such as educational and vocational training, drug rehabilitation, and the like as all the strapped custodians can do is try to keep a semblance of order and just lock everyone down.  Prisoners get frustrated and fights increase over the petty details of living on top of one another for months and years at a time.  Everyone becomes stagnant.  It brings out the worst in everyone: prisoners, guards, administrators and free staff. 

           One of the most important steps to take in creating humane facilities where rehabilitation can occur is to reduce the prison population.  In California it is absolutely clear that everyone who can be in prison is locked up, rather than having everyone who should be in prison be behind bars.  Public safety needs to be the reason someone is locked up.  If community safety was the criteria for incarceration and we had a truly rehabilitative system focused on community renewal,  most of the drug addicts,  petty offenders, elderly and infirm and moms with preschool kids would be released immediately, and many others diverted from the concrete walls and steel bars.  Then perhaps prisons could serve their stated purpose.         

RESOURCES:

1.  U.S. Department of Justice, Bureau of Justice Statistics:  4/99, Prior Abuse Reported by Inmates and Probationers.  8/00, Incarcerated Parents and Their Children.  11/03, California State Prisoners with Children.  7/01, Mental Health Treatment in State Prisons.  12/99 Special Report: Women Offenders.

2.  All Too Familiar: Sexual Abuse of Women IN US State Prisons, Human Rights Watch, 1997

3.  Not Part of My Sentence: Violations of the Human Rights of Women in Custody, Amnesty International, 1999

4. California Department of Corrections: 2/04, Prison Census Data.  5/04, Rate of Felon Parolees Returned to California Prison.  5/04, Historical Trends: 1983-2003. 

5.  Breaking the Barriers for Women on Parole, Little Hoover Commission of California 2004

6.  Gender Specific Policies Proposal, Women’s Advisory Council, Valley State Prison for Women 2005.

7.  Status Paper on Prisons, Drugs and Harm Reduction, World Health Organization, 2004    

8.  Prison Health care and the extent of prison overcrowding, Roy Walmsley, International Journal of Prisoner Health, V.1 #1, 3/2005, p.9

9.  Rethinking Treatment of Female Prisoners, Jenifer Warren, Los Angeles Times, 6/19/05  10.  California Prison Focus Dignity for Women Prisoners Campaign 2004-2005

11.  Taking action to reduce injecting drug-related harms in prisons: The evidence of effectiveness of prison needle exchange in six countries, Rick Lines et al, International Journal of Prisoner Health, V.1 #1, 3/2005, p.49