Introduction
In 1999, Amnesty International published “Not part of my sentence”: Violations of the Human
Rights of Women in Custody. The report described conditions for women incarcerated in prisons
and jails across the United States. This report follows up on two areas of concern: custodial
sexual misconduct and the treatment of women in custody who are parents or are pregnant.
The information compiled in this report, based on a survey by Amnesty International,
summarizes existing legislation, policies and practices in every state, the District of Columbia
and the US Bureau of Prisons and reviews these areas in the context of international human
rights standards. The main concerns arising from the surveys are the continuing lack of laws
prohibiting custodial sexual misconduct in some states; the failure of existing laws to provide
adequate protection; and the widespread lack of legislation and uniform standards, in policy and
practice, to protect incarcerated women in labor from being shackled during child birth. Amnesty
International believes legislative and policy shortcomings in these areas contribute to human
rights abuses against inmates.
International human rights standards stipulate that all inmates must be protected from sexual
abuse at the hands of correctional staff. Amnesty International believes that the nature and extent
of sexual abuse of female inmates by male staff in US jails and prisons, and the harm that sexual
abuse causes warrants special focus on the issue. Legislation, regulations, policies and practices
must reflect a commitment to protect inmates against such abuse of power. The six key concerns
arising from the survey relating to legislation on custodial sexual misconduct are:
•

That an inmate could be held criminally liable for sexual contact with guards: Amnesty
International fears that this would have the effect of making retaliation for complaints of
custodial sexual misconduct lawful and sanctioned, and would lead to violations of the
right to an effective remedy as well as the equal protection of the law.

•

That all forms of sexual contact may not be covered by the statute: Amnesty International
believes all sexual contact between inmates and correctional staff is inherently abusive
and should be covered by the statute.

•

That a statute may consider the consent of an inmate to sexual acts a mitigating factor:
Amnesty International believes that sexual relations between staff and inmates are
inherently abusive because as agents of the state, the guards are abusing the considerable
power of their role. Thus the focus is on the guards’ professional misconduct not the
consent of the inmate. Statutes should bar sexual contact between staff and inmates and
leave no room for exceptions.

•

That state laws fail to cover all staff (including contractors and volunteers): Amnesty
International fears this would mean that those not covered by the statute may commit
sexual misconduct without facing criminal charges.

•

That laws may not cover all locations where an inmate could be abused: Amnesty
International fears this could mean that a custodial sexual violation could be exempt from
criminal court proceedings because of where it took place - in a local jail, for example.
1

•

That the level of the penalty meet the nature of the harm: Amnesty International believes
that cases meeting the state standards of criminal first and second degree assaults require
a felony punishment, and those that fit a degree of little or no coercion merit
misdemeanor level punishments. In cases of actions not meeting standards of criminal
prosecution, appropriate actions, including administrative penalties, should be authorized.

Amnesty International is also concerned that authorities do not always implement policies and
procedures to ensure changes on practical levels. Effective policies and procedures for reporting
and investigating allegations of misconduct must be introduced, along with educational programs
on custodial sexual misconduct for staff and inmates.
International standards restrict the use of restraints to situations where they are strictly necessary
to prevent escape or to prevent prisoners from injuring themselves or others or from damaging
property. International standards further provide that chains and irons shall not be used as
restraints. In “Not part of my sentence,” Amnesty International reported that restraints are
routinely used on pregnant women in transport and during medical care, although this is not
essential to prevent escape or protect people and property. Legislation, regulation, policies and
practices must reflect a commitment to protect inmates against such abuse:
•

Amnesty International considers the routine use of restraints on pregnant women,
particularly on women in labor, a cruel and unusual practice that rarely can be justified in
terms of security concerns.

•

Amnesty International is concerned that the shackling of women in labor endangers the
woman and her unborn child, and also constitutes a violation of international standards.

A full discussion of Amnesty International’s position on these issues as well as a thorough
presentation of the methodology of the report can be found under Scope and Methodology.
The focus on the specific issues raised in this report should not obscure the need for further
investigation and policies to protect inmates from other types of abuse or cruel, inhumane and
degrading treatment. Medical or mental health neglect, the over-reliance on solitary confinement
and abuse of stun technology are among other issues that merit attention and immediate action.
Nor should the focus on women downplay the need for policies and programs to protect male
inmates from custodial sexual misconduct and the use of excessive restraints, or to help them
maintain family ties and obtain parenting skills.
Amnesty International hopes this survey will contribute to activism around promoting and
protecting the rights of women in prison. Amnesty International understands that this effort is
part of a larger effort with regard to the criminal justice system in the US. It is not enough to
improve the prison system; a human rights approach also demands a review and criticism of
unfair processes, driven to a large extent by racism and poverty, that result in the huge growth in
incarcerated women and men.
The survey also demonstrates the need for more centralized data collection. This report is also
intended to be a campaigning tool for individuals and organizations wishing to identify issues
and areas to work on, nationwide or in specific states.
2

While this report mostly covers federal and state level, aligning regulations and practices at local
levels with international standards is also of paramount importance. Amnesty International
recommends that federal, state and local governments and authorities take immediate action to
increase transparency and thus improve accountability. The organization appeals to correctional
authorities to enhance their statistical and general data collection capabilities in order to facilitate
appropriate monitoring and identification of issues, which at the moment are obscured by lack of
adequate information.
Amnesty International further urges federal, state and local governments and authorities to take
urgent action to ensure that laws, regulations, policies and practices for which they are
responsible rigorously conform to international standards and respect the human rights of women
deprived of their liberty.
To combat custodial sexual misconduct, Amnesty International recommends that authorities take
the following measures:
• Incarcerated women should be guarded only by female officers. Male staff who provide
professional services in female facilities should always be accompanied by female
officers.
• Sexual abuse of all persons in custody should be expressly prohibited and immediate
action taken against staff who sexually abuse inmates.
• Sexual abuse should be widely defined to include sexual assault and threatened sexual
assault; sexual contact; and sexually explicit language and gestures.
• All staff and inmates should be informed that sexual abuse is prohibited and that
o Inmates have a right to complain if they are abused.
o Staff have a duty to report if they know that an inmate has been abused.
• All complaints must be investigated independently, promptly and thoroughly in line with
best practice for the investigation of sexual assault.
• Victims of sexual abuse must be provided with appropriate care and redress.
• Inmates and staff who report abuse should be protected from retaliation by measures
including:
o Inmates and staff must be informed that they have a right to protection from
retaliation;
o As far as practicable, reports of abuse by inmates and staff should be treated in
strict confidence;
o Disciplinary and/or legal action as appropriate should be taken against any
member of staff who seeks to deter inmates and staff from reporting abuse or
who, in any manner, harasses or intimidates inmates or staff who report abuse.
Amnesty International recommends that State Legislatures develop laws to ban shackling of
pregnant inmates, and that Departments of Corrections, prisons and jails adopt policies on the
use of restraints in accordance with the following:
• Restraints should be used only when they are required as a precaution against escape or
to prevent an inmate from injuring herself or other people or damaging property. In every
case, due regard must be given to an inmate’s individual history.
• Policies should prohibit the use of restraints on pregnant women when they are being
transported and when they are in hospital awaiting birth, and after they have just given
birth.
3

Amnesty International intends to develop recommendations for individual states with further
details. This report is available on line at http://www.amnestyusa.org and will be updated as
necessary.

4

KEY FINDINGS
CUSTODIAL SEXUAL MISCONDUCT
This survey covers all 50 states, DC and the Federal Bureau of Prisons

• Two years ago, 14 states had no law prohibiting sexual relations
between inmates and correctional staff. Six states still have no such law.
Alabama, Minnesota, Oregon, Utah, Vermont and Wisconsin.
In Utah, a bill has passed both Houses and is waiting for the Governor’s signature to be
passed into law. Amnesty International welcomes this initiative, and urges the remaining
five states to redouble efforts to pass similar legislation.

• No states have statutes that meet all of Amnesty International’s six
recommendations to ensure full protection of all persons in custody
from custodial sexual misconduct.
o In four states, the statute allows for making the inmate criminally
liable for engaging in sexual conduct.
Arizona, California, Delaware and Nevada.
In California, the inmate may be penalized for engaging in oral sex only. In Arizona
an inmate who is raped may be charged under this law. In Delaware and Nevada, the
statute calls for punishment of the inmate if he or she is unable to prove rape.

o The statute in eight states and the US Bureau of Prisons does not
penalize custodial sexual misconduct as a felony.
Arkansas, California, Iowa, Kentucky, Maryland, North Dakota, Tennessee and the
US Bureau of Prisons. In these jurisdictions, the penalty is a misdemeanor.

o In 19 states, the statute does not cover all forms of sexual abuse.
The law may not cover threats or oral sex, among other things.
Arkansas, Delaware, Florida, Idaho, Indiana, Iowa, Maine, Maryland, Mississippi,
Missouri, Nevada, New Mexico, North Carolina, Ohio, Rhode Island, South Carolina,
South Dakota, Texas and West Virginia.

o In three states, the statute would allow an officer to claim an
inmate consented to the sexual act(s) to avoid prosecution.
Colorado, Missouri and Wyoming.

5

o Only ten states have a statute that covers all staff and custodians
(eg: vendors, medical or kitchen staff).
Arizona, Arkansas, California, Indiana, Iowa, Kansas, Kentucky, Nevada, North
Carolina and Oklahoma.
In all other states, DC and the US Bureau of Prisons, custodians who are not covered
by the statute may commit sexual misconduct without facing criminal charges under
this statute.

o Twenty-one states have a statute that does not cover all
correctional facilities and locations.
Arkansas, Colorado, Delaware, Florida, Hawaii, Idaho, Louisiana, Maryland,
Michigan, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North
Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee and
Virginia.

• In 1999, a survey showed that all 45 responding states allow crossgender pat down searches in practice. In six of these states, searches
take place routinely.
Connecticut, Kansas, Michigan, New Hampshire, New York, and Pennsylvania.
•

6

Florida, Michigan, South Dakota and the Federal Bureau of Prisons
disallow cross-gender pat down searches today.

KEY FINDINGS
PREGNANCY IN CUSTODY
A legislative survey has been conducted on the shackling of pregnant women in custody in all 50 states
and the District of Columbia. Furthermore, a survey on Department of Corrections policies and practices
has been carried out, by contacting all Departments; Washington DC and 39 state Departments of
Corrections have responded at least partially. We received no response from: California, Maryland,
Michigan, Montana, Nebraska, Nevada, New Hampshire, Utah, Vermont, Virginia, and West Virginia.
The key findings are :

• Only one state, Illinois, has a law banning the shackling of pregnant
women during transport to the hospital for the purpose of delivery and
labor. In New York a bill has been introduced which would ban similar
shackling if it is passed into law. No other states have such legislative
initiatives at present.
• At least 18 state Departments of Corrections and Washington DC have
a policy or practice that may allow women to be restrained during labor
and/or delivery.
Alabama, Arizona, Arkansas, Connecticut, Idaho, Illinois, Indiana, Louisiana, Maine,
Massachusetts, Minnesota, Missouri, North Carolina, North Dakota, Ohio, Oklahoma,
South Carolina and Tennessee.

• At least 33 state Departments of Corrections and Washington DC may
require the restraint of pregnant women during transportation to the
hospital.
Alabama, Arizona, Arkansas, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi,
Missouri, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Washington and Wisconsin.

Labor/Delivery
Of the 21 state Departments of Corrections and Washington DC that
have a policy or practice which may allow women to be restrained
during labor and/or delivery:
o Four state Departments of Corrections have written policies
requiring that inmates be restrained during medical procedures
and make no distinction for women in labor or delivery.
Connecticut, Louisiana, Minnesota and Oklahoma.
In Louisiana women may be restrained with handcuffs and leg-irons. In
Minnesota the policy states that inmates are to be restrained to the bed with at
least one set of restraints at all times.
7

o Ten state Departments of Corrections have policies or practices,
which may require the restraint of women during labor and/or
delivery.
Alabama, Idaho, Kentucky, Massachusetts, North Carolina, North Dakota, Ohio,
Pennsylvania, South Carolina and Tennessee.

o Three states have written policies allowing women to be
restrained during labor, but not during delivery/active labor.
Arkansas, Illinois and Missouri.

o Three states have no policy or practice protecting women from
being restrained during transportation or during labor/ delivery.
Arizona, Indiana and Maine.

o Fifteen state Departments of Corrections have policies or
practices stipulating that no restraints are to be used on inmates
during labor and birth.
Florida, Georgia, Hawaii, Iowa, Kansas, New Jersey, New Mexico, Oregon,
Pennsylvania, Rhode Island, South Dakota, Texas, Washington, Wisconsin and
Wyoming.

Transport
Of the 33 state Departments of Corrections and Washington DC that
may require the restraint of pregnant women during transportation to
the hospital:
o Eight state Departments of Corrections may use handcuffs, leg-

irons and belly-chains.
Idaho, Kansas, Minnesota, Mississippi, North Carolina, Ohio, Oklahoma and
Washington.

o Five state Departments of Corrections may use handcuffs and legirons.
Connecticut, Alabama, Arkansas, Louisiana and Pennsylvania.

o Ten state Departments of Corrections and DC may use handcuffs.
Arizona, Florida, Georgia, Hawaii, Illinois, Missouri, New Jersey, Rhode Island,
South Dakota and Texas.

o Nine state Departments of Corrections allow the use of restraints,
but did not inform Amnesty International what types are used.
Indiana, Iowa, Massachusetts, New York, North Dakota, Oregon, South Carolina,
Tennessee and Wisconsin.
8

Table 1: Overview of State Laws on Custodial Sexual Misconduct
Does The State’s Custodial Sexual Misconduct Law Cover –
Consent
STATE No Penalty All forms
All Custo- All Locaof Sexual
NOT a
Felony
to inmate?
dians
tions
Abuse?
defense?
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Car olina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
District of Columbia
US Bur. of Prisons

ü

ü
ü

ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü

ü
ü
ü

ü
ü
ü
ü
ü
ü
ü
ü

ü
ü

ü
ü
ü
ü
ü
ü
ü
ü

ü
ü

ü
ü
ü
ü
ü
ü

ü

ü
ü
ü

ü
ü

ü
ü
ü

ü
ü
ü

ü
ü
ü

ü

Alabama does NOT have a law
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
Minnesota does NOT have a law
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
Oregon does NOT have a law
ü
ü
ü
ü
ü
ü
Utah does NOT have a law
Vermont does NOT have a law
ü
ü
ü
Wisconsin does NOT have a law
ü
ü

ü
ü
ü
ü

ü
ü
ü
ü
ü
ü
ü

ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü
ü

ü

ü
ü

ü

ü
ü

ü
ü
ü
ü
ü
ü
ü
ü
ü
ü

ü
ü

ü
ü

ü
ü

ü
ü
ü
ü
ü

ü

ü
ü

ü
ü
ü

ü
ü
ü

ü
ü

9

Table 2: Responses to AIUSA from State AGs and DOCs
STATE
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Car olina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
District of Columbia
US Bur. of Prisons

10

Attorney General Letter Responses

Department of Corrections Responses

No law
No response
No response

Response received
Restricts all information
Response received
Response received
No response
Restricts all information
Response received
Restricts all information
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Restricts all information
Response received
Response received
No response
Response received
No response
Response received
Response received
Response received
No response
No response
No response
No response
Response received
Response received
Restricts some information
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Response received
Response received
No response
No response
No response
No response
No response
Response received
Response received
Response received
Not contacted

Response received
Response received
No response
No response
No response

Response received
No response
No response

Response received
No statistics
No response
No response
No response
No response
No response
No statistics
No response
No response
No statistics
No law
No response
No statistics
No response
No response
No response
No statistics
No response
No response
No response
No statistics
No statistics

Response received
No statistics
No law
No statistics

Response received
Response received
No statistics
No response
No response
No law
No law
No response
No response from AG/ DOC responded
No statistics
No law
No response
Not contacted
Not contacted

Scope and Methodology
This report brings together surveys and reports on different aspects of prison conditions
and Department of Corrections’ policies, procedures and practices. The intent is to
present information, which while largely available to the public, is dispersed and often
difficult to obtain for activists and others with an interest in the issues.
In the following, discussions on the scope and methodology applied to the writing of the
report will be presented. Each heading corresponds to the content in the state pages.
Under the general headings, overall discussions and Amnesty International’s position and
recommendations on the issues are presented. Hereafter, categories and data presented in
the report are introduced, along with comments on the sources available to Amnesty
International in the preparation of the report.

I. Custodial Sexual Misconduct Survey
Under international law, rape of a prisoner by correctional staff is considered to be an act
of torture. 1 Other forms of sexual abuse are clearly violations of the internationally
recognized prohibition of cruel, inhuman or degrading treatment or punishment, which
governments are called upon to interpret “so as to extend the widest possible protection
against abuses, whether physical or mental.” 2 Sexual abuse also violates other rights,
including the right to be treated with respect for human dignity, the right to privacy, the
right to liberty and security of the person, and the right to equal protection under the law,
all enshrined in the International Covenant on Civil and Political Rights (ICCPR – which
the US has ratified). Sexual abuse further violates rights, such as the right to the highest
attainable standard of physical and mental health, which is part of the rights contained in
the Universal Declaration of Human Rights (UDHR) and formally stated in the
International Covenant on Economic, Social and Cultural Rights (ICESCR, which the US
has signed but not ratified). Sexual abuse in custody is included within the protections of
The Declaration on the Elimination of Violence against Women, which notes that women
in detention are especially vulnerable to violence. 3
Amnesty International’s 1999 report “Not part of my sentence”: Violations of the Human
Rights of Women in Custody 4 highlighted the fact that sexual abuse at the hands of staff
is one of the abuses faced by women in custody. It is a harsh reality faced by many
1

In a report to the United Nations Commission on Human Rights, then United States Special Rapporteur on Torture,
Professor Kooijmans noted that “since it was clear that rape or other forms of sexual assault against women in
detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the
human begin, they accordingly constituted an act of torture.” United Nations Committee on Human Rights, UN Doc
E/CN.4/1992/SR.21, 21 February 1992, paragraph 35
2
Explanatory footnote to Principle 6, “United Nations Body of Principles for the Protection of All Persons Under Any
Form of Detention or Imprisonment”
3
Declaration on the Elimination of Violence against Women G.A> res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217,
UN Doc. A/48/49 (1993)
4
“Not part of my sentence”: Violations of the Human Rights of Women in Custody,” Amnesty International, AI Index
AMR51/01/99, March 1999

11

women who are incarcerated in the USA, regardless of their sentence. Women are
subjected to sexually offensive language; male staff touching their breasts and genitals
when conducting searches; male staff watching while they are naked; and rape. A
prisoner’s race, language, sexual identity or other status may affect the likelihood of this
abuse, and affect her ability to obtain remedies.
The focus of this report is the risk of being an incarcerated female. It is important to note
that the legal regime to respond to sexual abuse should cover both male and female
inmates. However this report focuses on examining legal and policy issues facing women
inmates of all colors and identities. The report does contain incidents of custodial sexual
misconduct where male inmates are the victims, since the custodial sexual misconduct
legislation is not gender specific and should be vigorously enforced in all circumstances
regardless of whether the victim is male or female.
Ms Radhika Coomaraswamy, the United Nations Special Rapporteur on violence against
women, its causes and consequences, reported in 1999 that sexual misconduct (not
limited to rape) by male guards against women inmates is widespread. She found a wide
range of abusive sexual practices in the context of custody in the US. 5
Amnesty International, the Special Rapporteur, as well as other non-governmental
organizations and several correctional authorities, believe there should be attention on the
whole continuum of sexual abuse. First, Amnesty International and other organizations
are concerned that there are many abuses that, based on the facts, should be prosecuted as
rape or (as appropriate) first-degree sexual assault. It is clear that neither the states nor the
federal government have adequate investigations and prosecutions of these crimes of rape
in custodial settings. Second, Amnesty International and other organizations are
concerned with the wide range of coercive sexual practices between guards and prisoners
that do not qualify under existing rape laws as rape, but must be investigated and
punished as abuses of fundamental rights. These relations, whether apparently initiated
by the inmates or not, are inherently abusive because of the gross difference in power
between the parties. Engaging in such relations may be the primary way for inmates to
gain access to essential aspects of dignity, such as tampons and extended child visits, or
aspects of life that rise above prison survival as access to more food or cigarettes. These
interactions are based on the control of such goods by the state, the guards as the direct
distributors of the goods - many of which constitute rights - and the inability of inmates
to negotiate in any other way. The legal responsibility for such coercive relations thus lies
with the state and its agents, the guards. By definition sexual activity between guards and
inmates is a violation of the guard’s custodial duties. Therefore, as noted in the sections
below, neither the state’s or the guard’s response can include arguing that the inmate
“consented,” as consent is irrelevant to the elements of the crime committed by the guard
or staff.
5

The Special Rapporteur on violence against women, its causes and consequences visited Washington DC, New York,
Connecticut, New Jersey, Georgia, California, Michigan and Minnesota from 31 May to 18 June 1998 and studied state
and federal prisons in each state. “Report of the mission to the United States of America on the issue of violence
against women in state and federal prisons,” the Fifty-fifth session, Item 12 (a) of the provisional agenda,
E/CN.4/1999/68/Add.2, January 4, 1999

12

Statutes
When Amnesty International published ‘Not part of my sentence” in 1999, 13 states had
no laws specifically prohibiting sexual relations between inmates and staff of jails and
prisons. Amnesty International has worked with other human rights organizations and
legislators to change this situation, and today, only six states still have no such law. 6 Both
the definition of sexual misconduct and the penalty imposed for violations vary from
state to state. In some states the new law, while ostensibly intended to protect the rights
of inmates, may in fact violate them. Amnesty strongly supports the introduction of
effective and rights-promoting forms of legislation in the states that lack this protection,
and the revising or strengthening of those existing laws that do not provide sufficient
protection.
It is important to note that in all cases, existing state rape statutes are assumed to cover
inmates– meaning that a case will be prosecuted as rape based on the evidence, regardless
of who the victim (inmate) and alleged offender (guard) may be. In states where consent
is a defense to rape, failure to prove rape by a state officer or guard then requires the
prosecution of the lesser offense of custodial sexual misconduct. The fact that the victim
in such cases is incarcerated should automatically trigger at a minimum a custodial sexual
misconduct investigation and prosecution.
The survey in this section focuses on the custodial sexual misconduct statute alone. The
section lists the states and their laws, provides a description of the protection the law
offers, including the penalties for violators convicted under the law - and highlights those
laws or aspects of laws that are harmful to the rights of inmates, with particular attention
to women inmates. The survey for this section was conducted by compiling information
on the statutes in each state by attorneys affiliated with Amnesty International.
Does the statute impose a criminal penalty on the inmate?
Statutes must be evaluated for whether or not they penalize the inmate for sexual activity.
Amnesty International believes that although states may regulate sexual activity within
prisons to the extent required by security and in conformity with fundamental rights of
privacy and bodily integrity as protected by international human rights standards, inmates
should never be penalized for coming forward and reporting sexual abuse, which would
be the practical implication of statutes that allow for penalizing inmates for sex with
guards. Victims of sexual assault will be intimidated not to report the abuse to authorities,
regardless of the formality of the complaint, and are threatened with prosecution if they
continue with their claim. As reported in “Not part of my sentence,” many inmates who
are subjected to abuse are reluctant to come forward because they fear their claims are
difficult to prove, given the circumstances in which the abuse has taken place. Another
very real fear is that they will be retaliated against by the accused guard or his colleagues.
Amnesty International believes that a statute that makes retaliation for complaints of
sexual misconduct by guards lawful and sanctioned is a violation of the rights to an
effective remedy for violations as well as the equal protection of the law.
6

These states are: Alabama, Minnesota, Oregon, Vermont, Wisconsin, and Utah, which has a bill pending signature into
law.

13

Does the statute cover all relevant forms of sexual abuse
Some statutes limit the forms of sexual abuse (not amounting to rape) for which
correctional staff can be prosecuted to those situations when penetration is involved.
Amnesty International believes that all sexual contact between inmates and correctional
staff is inherently abusive and should be covered by the statute. Custodial sexual
misconduct under the statute should be widely defined to include coercive sexual
practices (in cases not amounting to rape), or assault and threatened sexual assault; and a
wide range of sexual contacts (as between the staff and inmate, or including coerced or
traded sexual activities between inmates at the behest of staff). Sexually explicit language
and gestures also constitute custodial sexual misconduct, and should be dealt with using
appropriate administrative disciplinary actions.
Does the law allow an officer to claim that an inmate consented to the sexual act(s) to
avoid prosecution?
In some states, the custodial sexual misconduct statutes allow the correctional staff to
defend themselves by stating that the sexual contact in question was consensual. As
mentioned above, Amnesty International believes that sexual relations between staff and
inmates are inherently abusive because of the considerable difference in power between
the parties. Statutes should bar sexual contact between staff and inmates and leave no
room for exceptions.
Does the statute cover all custodians and staff in contact with inmates?
Correctional officers are not the only staff in an unequal position of power who come into
contact with inmates. All staff members who deal with inmates are in a position to abuse
the power differential with an inmate. Amnesty International believes that it is of great
importance that the statutes provide for the widest possible definition of staff – including
vendors, kitchen staff, medical staff and parole officers.
Does the statute cover all places where an inmate might be abused?
It is essential that state statutes cover all places of detention. The number of jurisdictions
and the many different types of settings in which incarcerated persons come into contact
with correctional staff mean that the statute must explicitly cover all places of detention –
from prisons to jails to persons under custodial control of the state outside of prison. 7
Amnesty International is concerned that the lack of such complete coverage could result
in impunity for staff who are employed in facilities beyond the reach of the statute.
Is the penalty a felony?
Some states have a graduated approach, defining certain types of sexual misconduct as
either a felony or a misdemeanor depending on the nature and severity of the violation.
7

Amnesty International is concerned that many incidences of coercive sex by officers against persons not yet charged
or in conditions of formal detention are currently irremediable under CSM statutes as drafted. In the case of Mejia v.
Peru [Case 10.970, Report No. 5/96, Inter-Am. C.H.R., OEA/Ser.L/V/II.91 Doc. 7 at 157 (1996)] the Inter-American
court found that rape by military police in a woman’s home was sufficiently “in custody” to justify the application of
the torture prohibitions of the American Convention on Human Rights which the US has signed but not ratified.
Likewise the views of the Human Rights Committee, which oversees the implementation of the ICCPR have made it
clear that custodial violations such as torture and CID may occur outside of formal incarceration, as well as in detention
for other purposes such as of asylum seekers or of mental health patients.

14

Other states define all such conduct as a felony, while still others treat all such conduct as
a misdemeanor. This category lists the type of penalty imposed in each state, highlighting
the discrepancies between jurisdictions. Amnesty International is concerned that the level
of the penalty meet the nature of the harm: those cases meeting the standards of criminal
first and second degree assaults (rape, other forms of torture) need a felony punishment,
those that fit a degree of little or no coercion merit misdemeanor level punishments. In no
case should states use the custodial sexual misconduct as a catch all prosecution to excuse
them from conducting the necessary inquiry to determine the true nature of the abuse,
including rape prosecutions.

Allegations and Incidents
While laws and policies help create an atmosphere where such conduct is not acceptable,
research indicates that the problem of custodial sexual misconduct persists even in states
that have passed such legislation. Amnesty International regularly receives complaints
from female prisoners across the US and has issued several “urgent actions” calling for
investigation of and initiatives to halt the abuse occurring at specific locations.
This concern is corroborated by several other organizations – both governmental and
non-governmental. The United States General Accounting Office published a report in
1999 entitled “Sexual Misconduct by Correctional Staff,” which admits that the problem
can and does occur. 8 Amnesty International, the United Nations Committee Against
Torture, 9 Human Rights Watch10 and other organizations working with such issues have
found that sexual custodial misconduct is widespread.
Amnesty International in no way claims to have covered all the allegations or incidents of
sexual custodial misconduct nationwide in this section. Many incidents are never reported
to correctional authorities because incarcerated women fear that they lack credibility in
the eyes of authorities and/or they fear retaliation for coming forward. Only a small
number of these cases make it into the news, fewer become indictments that are
investigated further, and even fewer lead to prosecutions or terminations. In the “Initial
Report of the United States of America to the United Nations Committee Against
Torture” the United States Department of State admits that the absence of reliable
national statistics precludes an accurate statistical description of the frequency with
which incidents of abuse and brutality by law enforcement takes place. 11 While collecting
information for this report, Amnesty International found this problem to be prevalent on
state level, too. This section seeks to give an indication of the geographic concentration
and scope of the problem, despite the difficulty posed by such an endeavor. We have
8

US General Accounting Office, “ Women in Prison – Sexual Misconduct by Correctional Staff,” June 1999. The
report focuses on four correctional systems: the Federal Bureau of Prisons, the California Department of Corrections,
the Texas Department of Criminal Justice and the District of Columbia Department of Corrections. The first three are
the nation’s largest correctional systems for female offenders.
9
The Committee notes concern over the treatment of female detainees and prisoners – sexual assault by law
enforcement officers and prison personnel as well as generally humiliating and degrading conditions. United Nations
High Commissioner for Human Rights, “Conclusions and Recommendations of the Committee against Torture: United
States of America,” 05/15/2000. CAT/C/24/6 (Concluding Observations/Comments)
10
Human Rights Watch, “All Too Familiar – Sexual Abuse of Women in United States Prisons,” Human Rights
Watch, New York, 1996, pg 18
11
US Department of State, “Initial Report of the USA to the UN Committee Against Torture,” Part I, page 16

15

based our information on several different sources, including State Attorney General’s
Offices, news sources, other organizations, and court cases that have addressed the issues.
These may use different benchmarks, making direct comparisons between states and
sources difficult, as will be discussed in the following, under each heading. The inclusion
of a case does not imply that Amnesty International has found it to have particular merit,
but merely reflects cases that have been reported in one source or another.
Allegations and incidents are reported from both state and local jurisdictions. Custodial
sexual misconduct legislation should cover all custodial settings, as discussed above,
which is why all incidents, regardless of where they have taken place, are of interest in
this report. The report’s survey on policies and practices is limited to the level of state
Department of Corrections as a practical matter, as the US has a fragmented and localized
custodial system where the state and local jails and police department – and anywhere a
parolee may reside – making a full coverage a huge undertaking. Amnesty International
plans on further surveys on local levels.
Indictments/Convictions (answer to AI letter requesting the information)
In June 2000, Amnesty International contacted Attorney Generals in states that have laws
forbidding sexual interaction between custodial staff and inmates, inquiring about the
number of prosecutions and subsequent convictions under the statutes in question. The
result of this survey is presented under this category. The survey does not reflect the
number of prosecutions under rape statutes. As mentioned above, rape and torture
prosecutions should go forward in cases in which the evidence calls for such measures –
but in this category we focus on custodial sexual misconduct statutes.
Incidents reported in select media since 10/98
To gain an indication of the scope of the problem, Amnesty International conducted a
news search via the internet on allegations, prosecutions, disciplinary actions and
convictions on sexual custodial misconduct. These numbers may underestimate the scope
of the problem, since all such cases will be not be reported in the news, particularly for
allegations that are not substantiated. We searched for incidents that took place between
October 1998, when Amnesty International launched its US campaign, “Rights for All,
and January 2001.
Other reported incidents
Under this heading, Amnesty International included information about cases and
allegations mentioned in official reports by government agencies, United Nations’
investigators, and other non-governmental organizations as well as incidents that have
surfaced in court cases. This information also gives an indication of the size of the
problem, albeit often focusing on specific states rather than nationally. Amnesty
International has relied entirely upon the secondary source material presented here
without further investigation of the cases.

16

Policies, practices and procedures of guarding specific to women
inmates
As Amnesty International pointed out in its 2000 report to the Committee Against
Torture, allegations of sexual abuse of women prisoners in the United States nearly
always involve male staff who are allowed unsupervised access to female jail and prison
inmates in many jurisdictions. 12
Employing men to guard women is inconsistent with international standards. Rule 53 of
the Standard Minimum Rules for the Treatment of Prisoners provides that no male
member of staff shall enter part of the institution set aside for women unless accompanied
by a woman officer and that “women prisoners shall be attended and supervised only by
women officers.” The rules provide that male staff such as doctors and teachers may
provide professional services in female facilities but should always be accompanied by
female officers. 13 Likewise, the Special Rapporteur on violence against women, its causes
and consequences, expressed concern over the practice of allowing male officers to guard
women.
Amnesty International has called on United States authorities to ensure that female
prisoners are directly supervised only by female staff as required under international
standards. Amnesty International believes that certain practices, which are allowed in the
United States, are inherently cruel and degrading or are open to abuse, such as allowing
male staff to conduct pat down searches of clothed women for contraband, and allowing
male staff to patrol areas where women may be viewed in their cells while dressing or
washing or when taking showers. 14
Despite the concerns and complaints from Amnesty International, the United Nations
(both the Special Rapporteur on violence against women, its causes and consequences 15
and the United Nations Human Rights Committee 16 ), and the diligent work of a large
number of domestic non-governmental organizations working for the rights of women in
prison, the presence of male officers in female prisons is still condoned and widespread.
Men form a very large proportion of the staff in prisons and jails in which women are
incarcerated. A 1997 survey of prisons in 40 states found that, on average 41, percent of
the correctional officers working with female inmates are men. 17
12

Amnesty International, “United States of America. A Briefing for the UN Committee Against Torture,” May 2000
Rules 53 (2) and 53 (3), Standard Minimum Rules for the Treatment of Prisoners
14
Amnesty International, “United States of America. A Briefing for the UN Committee Against Torture,” May 2000,
Page 18
15
The UN Special Rapporteur on Violence Against Women, its causes and consequences, Ms. Radhika
Coomaraswamy, recommended that certain posts in women’s prisons – such as those responsible for guarding housing
units and body searches should be restricted to female staff, 1999 report on women in prison in the USA. “Report of
the mission to the United States of America on the issue of violence against women in state and federal prisons,” the
Fifty-fifth session, Item 12 (a) of the provisional agenda, E/CN.4/1999/68/Add.2, January 4, 1999
16
Official Records of the General Assembly, Fiftieth Session, Supplement No. 40 (A/50/40), vol.I, paras 285, 299
17
Corrections Compendium, “Female Offenders: As Their Numbers Grow, So Does The Need for Gender-Specific
Programming,” March 1998. The following states did not provide data on the male-female composition of their prison
staff: Alaska, Arizona, Georgia, Illinois, Iowa, Maryland, Michigan, New York, North Dakota, South Dakota; the
Federal Bureau of Prisons also did not respond. Another survey of prisons as at 31 December 1997 reported that in
state-operated facilities, female staff filled on average 55% of custody positions, ranging from 18-97%. In none of the
institutions is there a custody staff made up entirely of women: US Department of Justice National Institute of
13

17

The United States authorities have argued that anti-discriminatory employment laws in
the US mean that they cannot refuse to employ male guards in women’s prisons (or
female guards in male prisons). The Supreme Court has denied the claim that women
prisoners should be supervised only by women officers, under Title VII of the Civil
Rights Act of 1964, the Equal Employment Opportunity statute.
However, international standards provide that measures designed solely to protect the
rights and special status of women are not considered discriminatory. 18 Indeed, some
jurisdictions in the United States have placed certain restrictions on male duties in
women’s prisons (often in response to abuse reports) and United States courts have
upheld such restrictions as lawful. For example, in January 2000, the county executive
authorities in Westchester County, NY, announced that male correctional officers had
been banned from the living quarters at the Westchester County Jail after four guards
were charged with sex crimes, including rape, sodomy, sexual abuse and other
misconduct. 19
Given that the use of male guards in women’s correctional facilities is prevalent, the
policies regulating their conduct and procedures to protect the female inmates and their
right to complain about abuse are essential. This section presents relevant policies,
procedures and practices. Amnesty International is aware that removal of male guards
will not ensure that inmates are not abused, sexually or otherwise. Women guards may
also abuse their power to intimidate women inmates using intrusive pat down searches,
and other sexually-based power violations. Similarly, ending sexual abuse will not stop
other potential forms of torture or cruel, inhumane and degrading treatment that prisoners
often face.
The information under this heading is largely based upon reports and surveys from the
National Institution of Corrections, published in 1996, 1999 and 2000. 20 We have
supplemented the information with updates as they have been available to us: for
example, we cited recent out-of-court settlements that have led to changes in policies and
procedures; included additional information in other reports by NGO’s, the United
Nations, etc; and finally sent the relevant pages to individual Department of Corrections,
asking for comments and updates.
The categories are the following:
Corrections Information Center, “Current Issues in the Operation of Women’s Prisons,” National Institute of
Corrections, Colorado, September 1998
18
Principle 5(2), Body of Principles for the Protection of All Persons Under Any Form of Detention”
19
Amnesty International, “United States of America. A Briefing for the UN Committee Against Torture,” May 2000,
Page 18
20
US Department of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law,
Remedies, and Incidence,” National Institute of Corrections, Colorado, May 2000; National Institute of Corrections,
Prisons Division and Information Center, “Cross-sex Pat Search Practices: Findings From NIC Telephone Research,”
Colorado, January 1999; US Department of Justice National Institute of Corrections Information Center, “Current
Issues in the Operation of Women’s Prisons,” National Institute of Corrections, Colorado, September 1998; US
Department of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law,
Agency Response, and Prevention,” National Institute of Corrections, Colorado, November 1996

18

Is the current Department of Corrections policy on custodial sexual misconduct
language explicit as to the acts prohibited?
Amnesty International holds that sexual abuse of inmates by staff should be expressly
prohibited.
The National Institute of Corrections suggests that to ensure a clear stance on staff sexual
misconduct, Departments of Corrections should have policies that clearly define, prohibit
and specify penalties for the full range of sexual misconduct involving staff and inmates.
Defining a no-tolerance stance towards staff sexual misconduct in a department’s own
administrative policies is an important signal and administrative tool. 21
The introduction of such comprehensive and specific policies is relatively recent in many
state Department of Corrections. Explicit language is important, as the Special
Rapporteur on violence against women, its causes and consequences noted in her report
on women in prison in the United States. If this is not the case, euphemisms may cloud
the actual intent of the policy and may ultimately prevent adequate disciplinary action
from being taken. 22 In some states, the policies either still do not exist or are indirect or
too generalized.
This category notes whether a policy explicitly forbidding custodial sexual misconduct
exists in each Department of Corrections. When we have more information on the type of
policy currently regulating the area, we include this information.
Allows cross-gender pat-down search in practice
Pat-down searches or pat frisks mean the searching of women who are dressed. Thorough
pat searches require some contact with the genital area. In the state of Washington, a
court decided that such searches of women by men amounted to cruel and unusual
punishment, in violation of the US Constitution. 23 The United Nations Human Rights
Committee has stated that to ensure the protection of the dignity of a person who is being
searched by a state official, a body search should be conducted only by someone of the
same sex. 24
Amnesty International is concerned that such an intrusive procedure may be traumatizing
for women in custody, in particular for the many women who have been subjected to
prior sexual abuse. Amnesty International recommends that such searches be performed
only by guards of the same sex. As mentioned above, this in and of itself does not
21

US Department of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law,
Agency Response, and Prevention,” National Institute of Corrections, Colorado, November 1996, and US Department
of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law, Remedies, and
Incidence,” National Institute of Corrections, Colorado, May 2000
22
Special Rapporteur on violence against women, its causes and consequences Ms. Radhika Coomaraswamy, “Report
of the mission to the United States of America on the issue of violence against women in state and federal prisons,”
Commission on Human Rights, 55th Session, E/CN.4/1999/68/Add.2, January 4 1999, part IV, page 10 and part V page
16-17
23
Jordan v Gardner, 986 F.2d (9th Cir., 1993)
24
General Comment 16 to Article 17 of the ICCPR, “Compilation of General Comment and General Recommendations
Adopted by Human Rights Treaty Bodies,” UN Document HRI/GEN/Rev.3, 15 August 1997

19

guarantee that a guard will not abuse his or her position of power. All guards, male and
female, regardless of the sex of the inmate they are searching, should be monitored and
their behavior subject to review.
This section notes the findings of a National Institute of Corrections survey, which asks
each Department of Corrections when pat-down searches are performed in practice. It
does not include further information on pat-down procedures, since Amnesty
International has not found that such information is available.
Restrictions on the duties of male guards
This section presents information on whether there are policies to protect female inmates
by restricting male guards to certain duties and areas of the prisons.
Amnesty International recommended in “Not part of my sentence” that male staff who
provide professional services in female facilities should always be accompanied by
female officers. Amnesty International is concerned that allowing male guards to have
certain duties, such as working night shifts unaccompanied by female officers, may lead
to situations that lend themselves to abuse and misconduct.
Staff training on sexual misconduct
Amnesty International noted in “Not part of my sentence” that all staff - male and female
- should be informed that sexual abuse is prohibited, that inmates have a right to
complain if they are abused, and that staff have a duty to report knowledge of an inmate
who has been abused.
The National Institute of Corrections also suggests that the elements of a comprehensive
approach to preventing staff sexual misconduct include a staff training program that
presents clear information on applicable laws, agency policies, and penalties for violating
both the policy and applicable state laws. 25
Amnesty International believes that other key modalities of whether training is effective
include: level of senior staff participation; inclusion of training goals in performance
reviews; sensitivity training on issues relating to women who have suffered sexual abuse;
and training on identifying and acting upon situations of suspected abuse. Amnesty
International has not found such detailed information to be readily available in surveys or
reports.
This section presents the results of a National Institute of Corrections survey from 1996.
This includes whether such training was in place before 1996, some details on the kind of
training offered and to whom, and an update from a new report in 2000, which notes
whether staff training has been developed since 1996. In some cases the survey presents

25

US Department of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law,
Agency Response, and Prevention,” National Institute of Corrections, Colorado, November 1996. and US Department
of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law, Remedies, and
Incidence,” National Institute of Corrections, Colorado, May 2000

20

further details, which we have noted. A few states also have such information publicly
available on line – in these cases we have included the information available to us.
Special procedures for investigating allegations of sexual misconduct
Amnesty International appeals to all Departments of Corrections to ensure that
allegations of sexual abuse are treated with appropriate sensitivity and thoroughness.
Such complaints are often very difficult to make, both for personal reasons, as is the case
with sexual assault victims outside of prisons, but also for the reasons outlined above:
fear of retaliation, fear of segregation, and difficulty of proving an allegation.
Amnesty International welcomes the initiatives of some states that are aimed at handling
complaints about sexual abuse. Amnesty International supports the development of
independent review mechanisms and ways for inmates to report abuse, which allow for
anonymity and protection from retaliation.
This section lists Departments of Corrections that have introduced specific procedures for
handling and investigating allegations of staff sexual misconduct before 1996 and those
that have since updated their procedures. We have included further details on the
procedures when possible, and note how inmates can report on sexual abuse in each state.
Informing inmates of agency policies on sexual misconduct
Amnesty International recommended in “Not part of my sentence” that all inmates should
be informed that sexual abuse is prohibited and that they have a right to complain if they
are abused.
The National Institute of Corrections suggests that the elements of a comprehensive
approach to preventing staff sexual misconduct include the means for providing inmates
with basic information about sexual misconduct, applicable laws, agency policies and
penalties. 26
This report presents information on procedures for informing inmates about agency
policies on sexual misconduct, and whether they have been updated since 1996, as many
of the earlier procedures lacked proper dissemination of the information to inmates.

Proposed Legislation 2000-01
The final section is a survey of proposed bills in the states, the District of Columbia, and
on the national level. We have included information on bill sponsors, status of the bill
and a short description of the legislation.

26

US Department of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law,
Agency Response, and Prevention,” National Institute of Corrections, Colorado, November 1996, and US Department
of Justice National Institute of Corrections Information Center, “Sexual Misconduct in Prisons: Law, Remedies, and
Incidence,” National Institute of Corrections, Colorado, May 2000

21

II. Parenting and Pregnancy in Custody
In 1990 the Eighth United Nations Congress recommended that the imprisonment of
pregnant women or mothers with infants or small children should be restricted and a
special effort made to avoid the extended use of imprisonment as a sanction for these
categories. 27
Nonetheless, as the number of women in prison has risen over the last decade, so has the
number of women who are pregnant or have small children. More than 80 percent of
incarcerated women have at least one child. 28 A high percentage of these children are
under 18. In “Not part of my sentence,” Amnesty International reported that more than
80,000 women in prisons and jails are parents, and approximately 200,000 children under
18 have a mother who is incarcerated. 29 In 1997-1998 alone, more than 2200 pregnant
women were imprisoned, and more than 1,300 babies were born in prisons. 30

Shackling of pregnant women
Amnesty International reported in “Not part of my sentence” that jails and prisons around
the US commonly use restraints on incarcerated women when the women are being
transported to and kept in hospital. This is in direct violation of international standards,
such as the United Nations Standard Minimum Rules for the Treatment of Prisoners:
“Chains or irons shall not be used as restraints. Other instruments of restraints shall not
be used except in the following circumstances:
(a) as a precaution against escape during a transfer;
(b) on medical grounds by direction of the medical officer;
(c) by order of the director, if other methods of control fail, in order to prevent a prisoner
from injuring himself or others or from damaging property.
(Instruments of restraint) must not be applied for any longer time than is strictly
necessary.” 31
Reports reviewed by Amnesty International in connection with researching “Not part of
my sentence” indicated that jails and prisons use restraints on women as a matter of
course, regardless of whether a woman has a history of violence (which only a minority
have), and regardless of whether she has ever absconded or attempted to escape (which
few women have). 32 In May 2000, Amnesty International reported to the United Nations
27

Report of the 8th UN Congress on the prevention of Crime and Treatment of Offenders, UN Doc,
A/Conf.144/28, rev 1(91.IV.2), Res 1(a), 5(c), 1990
28
Human Rights Watch, All Too Familiar – Sexual Abuse of Women in United States Prisons, Human
Rights Watch, new York, 1996, pg 18
29
There is no national data. This estimate is based on various surveys of the number of women who have
children aged under 18 and how many children they have. Gabriel K, Johnston D, eds, Children of
Incarcerated Parents, New York: Lexington Books, 1995
30
Inmate Health Care, Part II, “Corrections Compendium” 1998; 23(1) The number is based on
information provided by 35 state correctional systems and the Federal Bureau of Prisons. Remaining states
did not respond or did not have information on pregnancies and birth.
31
Rule 33, United Nations Standard Minimum Rules for the Treatment of Prisoners
32
Amnesty International, “Not part of my sentence” : Violations of the Human Rights of Women in
Custody,” AI Index: AMR 51/01/99, Amnesty International, March 1999

22

Committee Against Torture that it remains common for restraints to be used on pregnant
women prisoners when they are transported to and kept at the hospital, regardless of their
security status. 33
Amnesty International is concerned that the shackling of women who are about to give
birth endangers the women and their children, as described by physician Dr. Patricia
Garcia:
“Women in labor need to be mobile so that they can assume various positions as needed
and so they can quickly be moved to an operating room. Having the woman in shackles
compromises the ability to manipulate her legs into the proper position for necessary
treatment. The mother and baby’s health could be compromised if there were
complications during delivery, such as hemorrhage or decrease in fetal heart tones. If
there were a need for a C-section (caesarian delivery), the mother needs to be moved to
an operating room immediately and a delay of even five minutes could result in
permanent brain damage for the baby. The use of restraints creates a hazardous situation
for the mother and the baby, compromises the mother’s ability post-partum to care for her
baby, and keeps her from being able to breast feed.” 34
This section will present the findings of a survey conducted over the period between
March 2000 and March 2001. Amnesty International has conducted a search for
legislative statutes covering the shackling and restraints on pregnant women, and has
collected information on policies and practices for shackling pregnant inmates during
transportation, while giving birth and after delivery from State Department of
Corrections. The categories are the following:

Pregnancy: Statutes and Administrative procedures
Legislation banning shackling in the third trimester or during labor
Only one state (Illinois) has an actual law in place that addresses shackling and restraints
applied on pregnant women. In this session there is a bill before the New York State
Senate and House of Representatives, which would ensure the protection of pregnant
women in custody against such dangerous and abusive practices. Amnesty International
considers such legislation a powerful and visible signal to correctional facilities, and
urges legislative bodies across the nation to introduce such measures.
Administrative rules concerning pregnancy and prenatal care
In the absence of legislation to protect the rights of pregnant women, administrative
procedures from state legislatures to guide the Department of Corrections in their
treatment of this part of the prison population may be of great importance.
33

Amnesty International, “United States of America. A Briefing for the UN Committee Against Torture,”
May 2000, Page 18
34
Dr Garcia is an obstetrician and gynecologist at North Western University’s Prentice Women’s Hospital;
her statement was provided to Amnesty International by Chicago Legal Aid to Incarcerated Mothers,
December 1998, and was printed in “Not Part of My Sentence: Violations of the Human Rights of Women
in Custody,” AI Index: AMR

23

Amnesty International has conducted an on-line search using Lexis and state internetbased search engines on administrative codes and regulations. We have included
information on what the states consider to be minimum requirements for treating
pregnant inmates when we have been able to ascertain this information.
Amnesty International believes that a state’s express considerations of what would
constitute humane and proper treatment of pregnant inmates is essential to ensure their
well being in prisons and jails.

Pregnancy: Policies, Procedures and Practices
Amnesty International believes that Departments of Corrections must develop specific
pregnant inmate policies, which are sensitive to their unique health issues, and will help
ensure that pregnant women are not routinely restrained in the same manner as other
prisoners, which may pose undue health risks for the mother and fetus or infant. Amnesty
International recommends that jails and prisons adopt policies on the use of restraints
which prohibit their use on pregnant women when they are being transported and when
they are in the hospital awaiting delivery. Policies should also prohibit their use on
women who have just given birth.
Amnesty International has contacted all Departments of Corrections over a period of time
since June 2000 and has requested information on policies and procedures regarding this
issue. The information presented in this section consists of written policies, letters or
memos detailing procedures or, when no written communication was available, phone
conversations with officials from the Department of Corrections of the individual
women’s prisons. We have furthermore conducted an extensive search for the codes and
policies from the states when we were unable to obtain a response. We have also included
information from news sources and other reports on the subject.
Use of restraints in third trimester
Restraints during transport
Restraints during labor
As mentioned above, Amnesty International considers the routine use of restraints on
pregnant women, and particularly on women in labor, a cruel, inhuman and degrading
practice that seldom has any justification in terms of security concerns. This report lists
the policies concerning these issues in each state, and notes whether no policy regulates
the restraining of pregnant women, thereby leaving the question up to the individual
correctional officers.
Presence of guard during labor
Amnesty International believes that there is no sound reason for authorities to routinely
shackle women in labor or who have just given birth, particularly as most are already
under armed guard. The use of restraints in such circumstances is cruel and degrading
treatment that violates international standards, which state that restraints should be
imposed only when “strictly necessary.” This section notes whether guards are present,
and whether there are any policies as to what gender they are.

24

Pregnancy – Reported Incidents of Shackling
In instances where Amnesty International has received reports on shackling of inmates,
that were not reported in “Not part of my sentence,” they are included under this heading.
It is important to note that the scarcity of reported cases of such abuse may reflect the
mindset of the women who are being shackled while giving birth rather than the
incidence of such cases. Women in custody are used to being routinely shackled and
degraded and often do not make complaints about practices, which they see as inherent
factors of incarceration.

Parenting in Custody
Projects that facilitate the maintenance of ties between parents who are incarcerated and
their families are consistent with the international standards that Amnesty International
urges US federal and state governments, and their authorities, to respect. 35 This report
focuses on women, but Amnesty International also believes that family reunification
programs should be available for men who are parents.
Studies have highlighted the importance of maintaining contact between parents and their
offspring while parents are incarcerated. In 1993, the US House of Representatives
published findings of research on the harm of separation and the benefits of maintaining
family ties. The findings indicated that the separation of children from their primary
caretaker-parents may cause harm to the children’s psychological well-being and hinder
their growth and development. For parents, maintaining strong family ties during
imprisonment decreases recidivism and provides a powerful incentive to participate in
and successfully benefit from rehabilitative programs. 36
The information on special visitation rights and parenting programs for women is mainly
taken from a survey by the National Institution of Corrections in 1998, which details the
special programs and policies the different departments of corrections had in place for
women. The information on residency programs is taken from a 1998 General
Accounting Office report. The section has been supplemented by reports and news
sources when available to Amnesty International, as well as information from state
Department of Corrections.
Parenting programs specific for women
The National Institute of Corrections notes that the high proportion of women in state
prisons who are parents, has made the need for parenting programs in women’s prisons a
particular concern. 37 This report lists the states that have introduced such parenting
programs for women.

35

In particular (a) the rehabilitation of offenders is an essential aim of the penitentiary system – Article 10,
International Covenant on Civil and Political Rights; and (b) promotion of the best interests of the child – a
general principle of the Convention on the Rights of the Child
36
Title XLI – Family Unity Demonstration Project, forming part of the Violent Crime Control and Law
Enforcement Act of 1993
37
US Department of Justice National Institute of Corrections Information Center, “Current Issues in the
Operation of Women’s Prisons,” National Institute of Corrections, Colorado, September 1998

25

Special visitation rights for women
To compound the problem of separation, most women’s prisons are located far from
where their children reside, making it difficult to maintain contact. There are fewer
women’s prisons and, consequently, chances of a placement close to their children are
slim. Often the state women’s prisons are overcrowded and women are transferred to
other states. For some, this loss of contact may mean termination of their parental rights.
The impact of incarceration on families as a whole and on the individual family
members, particularly parents who are the primary caregivers of their children is at the
very least disruptive, and commonly traumatic. 38
State Mother and Child Residency Program
In most states, babies are taken from their imprisoned mothers almost immediately after
birth or at the time the mother is discharged from the hospital. 39 US House of
Representatives findings indicated that many infants who are born shortly before or while
their mothers are incarcerated are quickly separated from their mothers, preventing the
parent-child bonding that is crucial to developing a sense of security and trust in
children. 40
This report notes whether any time at all is allowed between the mother and the newborn
infant, if such information has been available to Amnesty International.
In this report, we list the states that have a program for keeping mothers and children
together. We also note policies allowing the mother to keep custody of the infant, and
whether there are any other policies that regulate this area.
Federal MINT (Mothers and Infants Together) program
There is a Federal Bureau of Prisons program, Mothers and Infants Together. Mothers
and Infants Together allows low security-risk pregnant women to be placed in the
community-based program two months before expected delivery. The mother can remain
there for three months with the baby after delivery. They receive prenatal and postnatal
instruction and other training related to chemical dependencies, physical and sexual
abuse, budgeting, and employment. The federal facilities with such programs are listed in
the pages on the Federal Bureau of Prisons.

III. Data: Sources and Reliability
The information presented in the report is composed of several different sources. Some of
the information is original Amnesty International research and primary source material.
Much of the information presented in this report is taken from surveys and reports
conducted by others. Amnesty International has not had the opportunity or resources to
verify the information given through on-site inspections. Amnesty International has
38

Gabriel K, Johnston D, eds, Children of Incarcerated Parents, New York: Lexington Books, 1995
“Inmate Health Care, Part II” , Corrections Compendium, Volume 23, Number 11, 1998, 11
40
Title XLI – Family Unity Demonstration Project, forming part of the Violent Crime Control and Law
Enforcement Act of 1993
39

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factored several sources into the same category when possible: reports from government
agencies, media sources, non-governmental organizations, the United Nations, on-line
statutes and codes, and by contacting Attorney General’s Offices and Department of
Corrections. Additionally all Department of Corrections were sent the pages relating to
their state and had the opportunity to correct the information included.
It is important to note that the numbers we present in this report may underestimate the
scope of the problem. As reported in “Not part of my sentence,” prisoners, lawyers and
other sources have told Amnesty International that prisoners are often reluctant to
complain for a variety of reasons, including:
1. The difficulty of proving an allegation, particularly when the only evidence is the
prisoner’s account;
2. The possibility that making a complaint may place a prisoner in protective
segregation while the complaint is investigated; which many have said they find
punitive;
3. Fear of retaliation.
Furthermore, only a small percentage of the reported incidents lead to disciplinary action,
while even fewer lead to criminal prosecution and even fewer to actual convictions.
According to research conducted by the General Accounting Office in 1999 in four
jurisdictions 41 only about 18 percent of all allegations of staff sexual misconduct resulted
in staff resignation or terminations. The number of staff facing criminal prosecution was
significantly lower and actual convictions were lower still. Lack of evidence was cited as
the primary reason why more allegations were not followed up with indictments.
Officials explained to the GAO that medical or other physical evidence was frequently
not available and, thus, investigators were often faced with situations of one person’s
word against another’s. Officials also told the GAO that many allegations were false and
were made to harass the staff – but did not provide any evidence to prove this. 42
GAO also notes that none of the four jurisdictions they examined had readily available,
comprehensive data or reports on the number, nature or outcomes of staff-on-inmate
sexual misconduct allegations. The report concludes, “Because many female inmates may
be reluctant or unwilling to report staff sexual misconduct and jurisdictions lack
systematic data collection and analysis of reported allegations, the overall extent of staffon-inmate sexual misconduct in female prisons is largely unknown.”
As the GAO notes, the absence of such systemic data or reports makes it difficult for
lawmakers, corrections management and others to effectively address staff sexual
misconduct issues in federal prisons. Introducing centralized monitoring of allegations,
types of violations, criminal prosecution, convictions or other disciplinary measures taken
41

US General Accounting Office, “ Women in Prison – Sexual Misconduct by Correctional Staff,” June
1999
42
US General Accounting Office, “ Women in Prison – Sexual Misconduct by Correctional Staff,” June
1999

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would benefit both inmates and correctional departments by facilitating realistic
assessment of the situation and the adoption of relevant remedies if needed – instead of
having to base such important decisions on estimations and guesswork.
Finally, one of the problems with working in this field is highlighted by this report: there
is a dearth of information on the specifics of conditions, policies and procedures. As is
evident throughout the report, obtaining current and detailed information is not a simple
task. 43 This problem is magnified when seeking information about the correctional
facilities in counties and cities. This report is restricted to state and federal levels - to a
large extent because there is virtually no information available on local and county levels.
Amnesty International sees this report as a first step in a series with the intent of
presenting information in an underreported area. Amnesty International will continue to
collect information about several of the issues touched upon in this report, and plans to
widen the focus to local levels. The report is available on line at
http://www.amnestyusa.org and will be updated and corrected as necessary.

43

National agencies, like the National Institute of Corrections, collect information on a series of important issues.
However, the surveys often have gaps, with information lacking on some states, and they seldom give details, which
would be useful when analyzing the situation in a particular department of corrections. Their reports present an
excellent overview, but also often pose as many questions as they answer.

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