Brenda Smith: Women's abuse in jail, like that alleged in a suit by Rikers Island inmates, has a shameful history
Male guards' access to vulnerable inmates, along with women's lack of faith in grievance processes, creates climate for abuse
Editor’s Note: Brenda V. Smith is a professor at the Washington College of Law at American University, where she teaches in the Community Economic Development Law Clinic. She is also the Project Director for the Project on Addressing Prison Rape and a former commissioner of the National Prison Rape Elimination Commission. The opinions expressed in this commentary are solely those of the author.
Two women who were inmates at Rikers Island have sued New York City’s Department of Corrections and one of its officers, Benny Santiago, in federal court, alleging that he and other officers raped them, infected them with sexually transmitted disease, and threatened and retaliated against them for reporting the attacks.
The women, identified as Jane Doe I and Jane Doe II, say that other officers have perpetrated similar abuses, even impregnating women in custody. They allege that the city is deliberately indifferent to their victimization and to the risk faced by other female inmates.
How could such a situation, so obviously rife with the potential for abuse occur, especially when the peril that exists when male staff supervise female inmates is so well known? The accusations in the Jane Doe lawsuit are appalling, but they are not surprising to those who know the long history of coerced and forced sex of female inmates by male jailers – and the difficulties in preventing it in a system that seems incapable of learning from its own history.
Sexual abuse of women behind bars has been a problem since the beginning of female imprisonment. Elizabeth Frye, the mother of the modern prison-visit movement, despaired about the condition of women in custody at Newgate prison in England. Women in Newgate were housed with men, and subjected to abuse by inmates and jailers alike.
Women in the Auburn State Prison in New York were treated similarly and had unfettered contact with male inmates and staff. In 1825, Rachel Welch, a pregnant woman housed at Auburn Prison, was beaten to death by a male guard. That incident led to significant changes in the housing of incarcerated women and the creation of the Women’s Prison Association of New York, founded in part to address the sexual abuse of women in custody.
Human Rights Watch issued a report in 1996 called “All Too Familiar: Sexual Abuse of Women in U.S. Prisons,” which included New York among its case studies. Then in 2003, sexual abuse by male staff in New York prisons was challenged by 17 women in Amador v. Andrews.
These women, some of whom were pregnant by staff, alleged that prison officials’ actions enabled sexual abuse to continue unabated, because of inadequate supervision and because officers, despite repeated and credible complaints of abuse, were allowed to continue to guard women, even alone in housing areas, even at night. This case has long been delayed on procedural grounds.
Similar issues were raised in the District of Columbia, where I was co-counsel in a case to determine whether the court found a pattern and practice of sexual abuse of a class of over 700 women. In that case, Women Prisoners v. DC women in the jail and prison routinely conceived while in custody. The female inmates’ complaints of abuse were rarely investigated. Women also lived in such poor conditions that they traded sex for food, cigarettes and personal items.
The more things change, the more they stay the same.
The recent Rikers litigation spotlights many of the identical problems identified in the Human Rights Watch report and by the litigation against New York State and the District of Columbia. Women inmates face another challenge: In many systems, an unsubstantiated report of sexual abuse or substandard conditions can result in discipline, including punishment and disciplinary segregation for “lying,” which simply means that the prisoner is not able to prove the abuse occurred.
It wasn’t supposed to be this way. In 2003 Congress passed the Prison Rape Elimination Act. I was appointed to the National Prison Rape Elimination Commission that same year and spent the next five years developing comprehensive standards to address abuse of women in custody.
In the last year data was reported, women inmates were still 3.5 times more likely than men to experience sexual abuse and harassment. The commission’s standards limit cross-gender searches and viewing by male staff of unclothed female inmates. They prohibit retaliation for reporting abuse, require unannounced rounds by supervisory staff, and allow women to report abuse anonymously and outside the agency. They also call for counseling, emergency medical care and other services for victims.
Most states long ago separated male staff from female inmates. Why are men guarding women’s housing units at Rikers — with significant access to female inmates, as is alleged in the new lawsuit? This access, in combination with women’s lack of faith in the grievance and investigative processes, makes women particularly vulnerable and creates a climate of abuse, mistrust and fear.
Until there are limits on male staff’s access to women inmates, better monitoring of interactions between in mates and staff, and consequences — administrative and criminal — for abuse of women in custody, there will be more of the same rape, intimidation and physical abuse of women in custody.