1. Legal Responses to Staff Sexual Misconduct with Individuals in Custody: Elements of Good State Laws National Institute of Corrections and The Washington College of Law July 10-15, 2005 Keith Reid and Jaime Yarussi

2. Training Objectives  To understand the basic elements of state criminal law prohibiting the sexual abuse of individuals under correctional supervision  To understand the strengths and weaknesses about your state law  To understand the impact of state laws on investigations

3. Enacting a Law  Context  Climate  Proponent

4. Sexual misconduct in prisons is defined as a misdemeanor. Sexual misconduct in prisons is defined as a felony. Sexual misconduct in prisons is defined as a felony or mis- demeanor, according to the nature and severity of the assault. No laws criminalizing sexual misconduct in prisons. Law Enacted 1987 Law Enacted 1986 Law Enacted 1958 Law Enacted 1974 Law Enacted 1983 Law Enacted 1986 Law Enacted 1985 Law Enacted 1988 Law Enacted 1987 Law Enacted 1986 Law Enacted 1981 Law Enacted 1983 Law Enacted 1978 Law Enacted 1983 Law Enacted 1983, Amended in 1995- removing necessary language. Law Enacted 1989 Law Enacted 1983 M M WASHINGTON, DC State Criminal Laws Prohibiting Sexual Misconduct with Offenders in 1990 National Institute of Corrections Source: 1997, Fifty State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners, Brenda V. Smith, National Women = s Law Center.

5. Sexual misconduct defined as a misdemeanor. Sexual misconduct defined as a felony. Sexual misconduct defined as either a felony or misdemeanor depending on the nature and severity of the assault. No statute specifically criminalizes sexual misconduct. Source: July 2004. Brenda V. Smith, The American University, Washington College of Law State Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody National Institute of Corrections/American University, Washington College of Law – March 2005 Florida Arizona Texas Montana N.D. S. D. Wyoming Colorado Neb. Kansas N. M. Utah Idaho Wash. Oregon Nevada California Minn. Iowa Ark. La. Wis. Ill. In. Ohio Ms. Al. Tenn. Ky. Va. WV Pa. N.Y. Me. Mo. Mich. Ga. N.C. S.C. D.C. Md. Del. N.J. Vt.N.H. Mass. RICt. Hawaii Alaska Okla.

6. Optimal Legal Elements  Coverage  Conduct  Reporting  Defenses  Penalties

7. Things to Consider About Your State Law  What conduct does the law cover?  Which staff does the law target?  Do you penalize offender-victims?  What agencies are covered under the law?  What are the penalties?  Is this a strict liability offense?  Is this a separate statute?

8. Coverage  Agency Secure Confinement Community Correction Agencies Juvenile Facilities  Personnel StaffClergy VolunteersMedical Staff ContractorsFood Service Maintenance Workers Will place matter?

9. Conduct  Physical PenetrationContact  Non-Physical HarassmentOver-familiarity

10. Activity Part 1 Applying Your State Law

11. Reporting  Duty to Report  False Reports  Retaliation and Coercion

12. Defenses  Ignorance of Status  Marriage  Consent

13. Penalties  Who will be penalized? - Staff - Offender Victims  What will the penalty be? - Felony - Misdemeanor - Graduated Sanctions - Malfeasance in Office - Loss of License - Sex Offender Registry

14. Impact of State Criminal Laws on Investigations InvestigationsCriminal Law  Determining Course of Action  Crime Scene Preservation and Evidence Collection  Civil Liability  Criminal Prosecution

15. Activity Part 2 Applying Your State Law

16. Food for Thought  Staff sexual misconduct is embedded in the culture of an institution  An incident polarizes staff, population, and leadership and affects investigations  Policies need to be in place to direct staff to prevention  Investigative training on state law is essential  Law should be reinforced by internal policies

17. Things to Remember…  Absence of a law does not mean that states don’t or cannot address the issue  Laws that may be sound in theory may not be in practice and reality  Enactment of a law does not guarantee enforcement or prosecution  Education, prevention, sanctioning, and visible aggressive prosecution can only be used to remedy and eradicate this problem