prisoners’ handbook
on identifying and addressing
sexual misconduct
Second Edition

Brenda V. Smith American University, Washington College of Law

prisoners’ handbook
on identifying and addressing
sexual misconduct
Second Edition, January 2002

Brenda V. Smith
Associate Professor, American University, Washington College of Law
4801 Massachusetts Avenue, NW Washington, DC 20016
Tel (202) 274-4182
Fax (202) 274-4182
bvsmith@wcl.american.edu

Copyright © 2002 by Brenda V. Smith
All rights reserved. No part of this publication may be reproduced or transmitted in any form
or by any means, electronic or mechanical, including photocopy, recording, or any information
storage and retrieval system, without permission in writing from the author. Requests for
permission to make copies of any part of this publication should be mailed to:
Brenda V. Smith
American University
Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Acknowledgments
An End to Silence: Prisoners’ Handbook on Identifying and Addressing Sexual
Misconduct is the end product of many years of work by many organizations and individuals
concerned about preventing and addressing staff sexual misconduct against inmates.
The first acknowledgments of course go to countless inmates — male and female — who
were willing to share information about the role of staff sexual misconduct in their prison experience. Their honest and insightful comments gave this publication its voice. I would also like to
acknowledge the contributions of the National Women’s Law Center and its staff for their support
during the publication of the first edition of the Handbook. The Center co-presidents, Marcia D.
Greenberger and Nancy Duff Campbell and staff contributed many hours of time and expertise in
the conceptualization and production of the first publication.
Additionally, I would like to thank the many reviewers who have tweaked, questioned and suggested content for the Handbook: Mary Beth Lyon, Villanova University School of Law for her
help on the international law section; Andie Moss, National Institute of Corrections, for the corrections perspective on this issue; Giovanna Shay, D.C. Public Defender Service; Binny Miller, Professor of Law, Washington College of Law, American University, for her help in conceptualizing
the issues for lesbian, gay, bisexual and transgender prisoners; and the many research assistants
who worked on this project (Sheila Bedi, Amy Bowles, Margaret Byrne, Stephanie Joseph, Loren
Ponds, Erika Rivera, Christine Rose and Sue Tatten). Finally, I would like to thank Victoria Phillips,
Elizabeth Bruch, Vivian Hamilton and Peter Jaszi, my colleagues at the Washington College of
Law for their editing assistance and advice on copyright issues.
Finally, I would like to express my deepest thanks to the foundations* which provided generous
funding for this project:
The Morris and Gwendolyn Cafritz Foundation
The Center on Communities, Crime and Culture of the Open Society
The D.C. Bar Foundation
The Educational Foundation of America
The Ford Foundation
Eugene and Agnes Meyer Foundation
The Public Welfare Foundation
Women’s Law and Public Policy Fellowship Program
An End to Silence addresses rapidly developing areas of law and practice in the United States.
The information in this publication is current as of November 30, 2001. Both law and policies
may change. We will remain abreast of the changes and encourage you to contact us with new
information as it becomes available.
Brenda V. Smith, Associate Professor
American University, Washington College of Law

*The information and opinions contained in this Handbook do not necessarily represent the views or positions of the
sponsoring organizations or foundations.

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Foreword
There has been increasing national and international attention to the issue of staff sexual misconduct with inmates since the first edition of End to Silence was published by the National
Women’s Law Center in April, 1998. In 1998, when the Handbook was first published, 13
states did not have laws which specifically prohibited staff sexual misconduct with inmates.
Today, only three states — Oregon, Alabama and Vermont have no laws criminalizing sexual
contact between staff and inmates.
In the meantime, many states have strengthened existing laws to mandate tougher penalties for
sexual abuse of prisoners; require sex offender registration for those convicted; provide coverage in settings other than prison and of staff other than correctional officers; and to provide for
separate penalties for staff who fail to report the conduct, interfere in investigations of staff sexual misconduct with inmates and provide false information relating to a claim of sexual misconduct with inmates.
There have been numerous reports on staff sexual misconduct with inmates including, two by
the National Institute of Corrections, one by the General Accounting Office, three by Human
Rights Watch, three by Amnesty International, USA, and one by the Special Rapporteur on
Violence Against Women of the United Nations Commission on Human Rights. There has also
been tremendous coverage of the issue by both print and television organizations.
The fundamental question, however, is whether the conditions that permit staff sexual misconduct with inmates have changed. The answer is complicated. While, there has been a great deal
of progress made by state departments of corrections and the federal government in addressing
these issues, there is still much work to be done. While many tools have been developed —
state law, policies, training materials and publications — a climate still exists where sexual abuse
of inmates is an accepted part of the culture of penal institutions. Prosecutions for these offenses
are few and far between and the penalties meted out to those found guilty are weak.
Important work remains to address same gender staff sexual misconduct and to address the
notion that inmates can “consent” to sexual contact with staff. As I said in the first edition,
addressing sexual misconduct is at the core of assuring prisoners’ safety. Only a coordinated
strategy that involves law and policy development, aggressive and consistent enforcement of
policy and law, prosecution of wrongdoers, training of prisoners and corrections workers, and
public education will reduce the occurrence of staff sexual misconduct with inmates.
This publication makes a first step by addressing staff sexual misconduct against all inmates —
both male and female. Hopefully, it will begin a dialogue and open a channel for communication
by male and female inmates, prison staff and systems responsible for their care about ways to
prevent and address staff sexual misconduct.

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Table of Contents
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Recognizing Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Physical, Emotional and Institutional Consequences of Sexual Misconduct . . . . . 3
Third Party Victims of Sexual Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
What You Can Do if It Happens to You . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Take Informal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pursue Formal Administrative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Take Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6
6
7
8

International Standards and Treaties for the Treatment of Prisoners . . . . . . . . . . 9
Other Things to Consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Seeking Medical Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Questions and Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Appendix
Attorneys General in Your State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
50-State Survey of Criminal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Order Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

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Recognizing Misconduct
A range of inappropriate behavior can constitute sexual misconduct.
Which of the following do you think is sexual misconduct?
A prison guard walks in on you while you are changing your clothes and tells you that you
are “what he likes.”
The food service contract employee tells you he can get you cigarettes if you “flash” him.
You fall in love with a staff member and agree to get married as soon as you are released.
You begin a sexual relationship with her while in prison.
The chaplain comforts you when you receive bad news from home. She keeps asking you
to come by and see her even when nothing is wrong. She begins to write you letters telling
you how much she loves you.
You were an exotic dancer before being incarcerated. Three officers on the midnight shift
pay you to dance for them.
A correctional officer locks you in a storage room and rapes you.
Answer:
All of the Above are Examples of Sexual Misconduct
Increasing numbers of states define sexual misconduct as:
Requests for sexual favors by staff members, agents or volunteers of the corrections
department;
Any sexual advance by staff members, agents or volunteers of the corrections department;
and/or
Verbal or physical conduct of a sexual nature in prison toward a prisoner by staff members,
agents or volunteers of a corrections department.
Sexual misconduct by corrections staff against a prisoner is prohibited in all states
by departmental policy and/or law.
Depending on the severity of the misconduct and the law in your jurisdiction, the sexual misconduct may violate:
1. Department of Corrections policy
2. state civil and/or criminal law
3. federal civil and/or criminal law
4. state or federal constitutional law
5. international human rights law

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Sexual harassment of prisoners is a form of sexual misconduct.1
Sexual misconduct happens any time a staff member, agent or volunteer of a corrections
department makes a sexual advance or engages in sexual contact with a prisoner, even if the
prisoner consents.
Sexual misconduct does not have to be sex. It can include:
touching
kissing
correctional staff walking in on you unannounced while you are dressing
inappropriate body or cavity searches not justified by a legitimate institutional security need
inappropriate comments about your personal appearance
language of a sexual nature
staff member showing you his or her body or requiring you to show your body to him
or her

1In

this publication, we use the terms sexual misconduct, sexual harassment, and sexual abuse. All of these terms refer
to improper conduct of a sexual nature directed at prisoners. This conduct can range from acts that violate departmental regulations to those that violate a particular state or federal law. Sexual harassment, as it relates to prisoners, is any
sexual advance, welcome or not, by a staff member, agent or volunteer of a corrections agency that creates a hostile
environment, or is either tied to promises or special benefits (cigarettes, candy, better work assignments; etc.) or
punishments (administrative segregation, poor job assignments, revoking telephone privileges, etc). In this publication
we only address staff-inmate sexual misconduct. However staff-staff sexual harassment is often part of the culture of
the prison environment and it reinforces staff-inmate sexual misconduct.

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Physical, Emotional and
Institutional Consequences of
Sexual Misconduct
The physical, emotional and institutional consequences of sexual misconduct can be devastating.
You may contract the HIV virus or other sexually-transmitted diseases.
You may become pregnant.
You may feel trapped in the situation and feel powerless to change it.
You may suffer emotional trauma.
You may receive disciplinary or other negative institutional consequences such as loss of
privileges, work assignments, transfers and loss of institutional good time.
These are repercussions that can affect you long after you leave prison and can affect when
you leave prison.
Contracting HIV or Other
Sexually-Transmitted Diseases
You cannot assume correctional employees are practicing safer sex. Correctional employees
who are having sex with prisoners may not use a condom and may have sex with several partners both inside and outside of the prison. This creates a fertile breeding ground for HIV and
other sexually-transmitted diseases.
Becoming Pregnant
If you are a woman, having sex puts you at risk of becoming pregnant. Becoming pregnant
while in prison is stressful for several reasons:
You may be afraid to tell anyone about the pregnancy and afraid to seek medical attention.
Prenatal care in many prisons is inadequate and it may be difficult to receive the medical care
and nutrition necessary to have a healthy baby.
There are few prisons that will allow you to keep your child with you.4 More often, women prisoners must place their newborns for adoption, foster care or with family members soon after the
child is born.

2Laura

M. Maruschak, HIV in Prisons and Jails, Bureau of Justice Statistics Bulletin (1999) available at:
www.ojp.usdoj.gov/bjs.

3Id.
4Nebraska,

California, New York, Ohio and Federal prisons are the only jurisdictions that allow women inmates to remain
with their newborns for some period of time.

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Some Facts About
HIV and STDs
“At the end of 1997, the rate
of confirmed AIDS in State and
Federal prisons was 51⁄2 times
higher than in the total U.S.
population”.2
Unlike in the general population, the rate of HIV infection
among women in prison is
higher than that of men. A
1997 study of prisons found
that in most states, the AIDS
infection rate for women
inmates was 3.5%, while
for men inmates the AIDS
infection rate was 2.2%.
Prisoners are at greater risk of
contracting AIDS than most of
the population because of the
high rate of past intravenous
drug use and other high risk
behaviors.
In prisons and jails, 36% of
inmates receiving medications
for HIV and AIDS are not given
the recommended antiretroviral regimens.
Among inmates who are
HIV positive, 43% are AfricanAmerican, 38% are White, and
13% are Hispanic.
The incidence of other sexually-transmitted diseases
(gonorrhea, syphilis and
chlamydia) is also higher
among prisoners than the
general population and higher
among female prisoners than
male prisoners.
The death rate due to AIDS
related illnesses was 3 times
higher in prisons than in the
total U.S. population age
15–54. For example, “about
19% of prisoner deaths were
attributable to AIDS-related
causes; compared to 6% of
deaths in the general population”.3 Women and people of
color are the fastest growing
population of people living
with HIV and AIDS.

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

If you decide to terminate the pregnancy it can be very difficult to obtain an abortion while
in prison. Many states do not allow government funds to be used to pay for abortions
except in the case of rape, incest or where the mother’s health is threatened. More often
than not, women prisoners must arrange to terminate a pregnancy with a private agency
and pay for the procedure with their own money.
Emotional Trauma
Prisoners who are involved with a correctional staff person can experience a range of feelings
about the relationship. If they believe the relationship meets their emotional or financial needs,
they may feel a sense of power. Prisoners, who feel coerced and pressured by staff to have
these relationships, may feel they are helpless and have lost control of their lives. In both cases,
prisoners may feel fear about being caught and shame at being involved with a staff member.
They may also:
become depressed
begin using or increase the use of alcohol and other drugs
have suicidal and/or homicidal feelings
have panic attacks
be unable to sleep
have fits of rage and anger
MEN AND WOMEN WHO EXPERIENCE THESE FEELINGS RELATED TO SEXUAL MISCONDUCT SHOULD GET COUNSELING WHETHER OR NOT THEY DECIDE TO REPORT
THE CONDUCT!
Institutional Consequences
In most states and institutions, you will not receive a separate criminal charge for becoming
involved with a staff member, especially if the sexual conduct was not wanted. However, you
may suffer other institutional consequences that affect how you do your time. For example you:
may receive a disciplinary report
may be denied parole
may be moved from your current institution
may lose a work training or educational opportunity
may lose institutional good time
may be charged with a separate criminal offense 5

5In

Arizona, Delaware and Nevada, prisoners who voluntarily engage in sexual contact with corrections employees can
be charged with a separate criminal offense.

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Third Party Victims of
Sexual Misconduct
Sexual misconduct hurts all prisoners and all staff. When sexual misconduct goes unaddressed both prisoners and staff become more vulnerable to unwelcome sexual advances. Misconduct also hurts the correctional environment by blurring the boundaries between conduct that
is acceptable and conduct that is unacceptable.

WHAT PRISONERS
THINK
“Sex, just like drugs, is a part
of being in prison. There has
to be a certain amount of that
going on. What’s important is
what the prison does when
they discover someone having
sex.”
“Cops should act like cops.
They should stay in their place
so that we can stay in ours.”

How?
Some correctional employees may believe that all women, both women prisoners and employees, are available for sex, and treat them as such.
Sexual misconduct can erode the boundaries that are necessary for prison security and other
functions such as rehabilitation and program participation.
Prisoners who do not participate in sexual talk or sexual relationships may be penalized by being
denied the opportunities or privileges that prisoners who participate in that conduct receive.
IF YOU FEEL YOU HAVE BEEN HARMED BY SEXUAL MISCONDUCT, EVEN IF YOU HAVE
NOT EXPERIENCED IT DIRECTLY, YOU MAY BE A THIRD PARTY VICTIM. AS A THIRD
PARTY VICTIM, YOU CAN ALSO REPORT THE MISCONDUCT AND EXPECT A REMEDY.

“A lot of female staff come
here looking for love. They
don’t get a lot of support at
home or at work. First, they
become friends with inmates
and the next thing you know
they are in love.”
“A lot of these women have
low self-esteem. They don’t
think a lot of themselves so
they’ll settle for a soda, candy
or some cigarettes.”
“The officers here are worse
than the inmates. They drug
and trick just like inmates.
There is really no difference.”
“If we had more jobs in here,
we wouldn’t have to have sex
just to get a candy bar, some
street food or a perm.”
“When the judge sentenced
me to this time, he didn’t
sentence me to not have sex.
A person’s need for that contact doesn’t stop just because
he is locked up.”
“A lot of girls that the officers
bother are slow (have mental
health problems). They can
prey on these women because
they don’t know any better.”

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Department of
Corrections (DOC):
Policies Regarding
Sexual Misconduct6
All DOC’s address sexual
misconduct of correctional
staff in their administrative
policies.
Thirty DOC’s and the Federal
Bureau of Prisons, Guam and
Puerto Rico have developed
separate policies with explicit
language that specifically
address sexual misconduct
between staff and inmates.
Many agencies discipline
inmates found to be voluntarily
involved in sexual misconduct.
Many agencies dismiss
staff involved in serious,
substantiated sexual misconduct incidents. Other actions
include prosecution, suspension, oral reprimands, staff
transfer and staff resignation.
Agencies generally take no
action toward staff or inmates
when allegations of misconduct are found to be unsubstantiated — the agency is
unable to either prove or
disprove misconduct occurred.
However, most agencies will
discipline staff and inmates
who make false allegations
of sexual misconduct.
Agencies generally will protect
inmates from retaliation by
staff or others even if they do
not find or cannot prove that
sexual misconduct occurred.

What You Can Do if It
Happens to You
You Can Take Steps to Prevent or Stop
Sexual Misconduct!
Sexual misconduct by corrections staff against a prisoner is prohibited in all states by departmental policy and/or law. However, this type of inappropriate or illegal behavior will continue
unless you act.
You must decide whether it is worth it to you to speak out against sexual misconduct. In making
the decision to speak out, you should consider your individual circumstances and personal priorities. Only you can decide what action feels safe to you and how much you are willing to put up
with to end the sexual misconduct.
There are several actions you can take. They are listed below:
Take Informal Action
Tell the staff person that his/her advances are offensive and are not welcome
if you are comfortable doing so.
Try to separate yourself from the staff person. This can be difficult. You should first
request that the staff person be moved or reassigned so that you do not have any contact
with him or her. If your request is denied, you may want to consider being placed in protective custody. You may also have the option of requesting a move to another institution,
but you must consider the risk of losing your programming placement, and the possibility
of moving farther away from your family.
Tell a corrections staff member you trust about the incident. In many states,
Department of Corrections personnel are required to file written reports regarding any sexual misconduct that they witness or that is brought to their attention. In Missouri and Florida, correctional staff, who fail to report, face separate criminal charges. These reports can
lead to an investigation of the sexual misconduct and disciplinary proceedings against the
perpetrator. In many states, Department of Corrections personnel who report the misconduct are required to keep it confidential. However, information about sexual misconduct is
often leaked. Therefore, choose the staff member you confide in wisely.
REMEMBER, TAKING INFORMAL ACTION IS OPTIONAL. IF YOU FEEL YOU ARE IN
PHYSICAL DANGER OR IF THE STAFF PERSON HARASSING YOU WILL NOT STOP
HIS/HER CONDUCT AFTER YOU HAVE ASKED HIM/HER TO STOP, YOU SHOULD TAKE A
MORE FORMAL APPROACH.

6National

Institute of Corrections, Sexual Misconduct in Prisons: Law, Remedies, and Incidence, Special Issue in
Corrections (May 2000).

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Pursue Formal Administrative Action
File a formal complaint with the institution. Your institution should have an inmate
grievance process, which allows inmates to file a formal complaint about prison-related
matters. Use this process to report the sexual misconduct.
Try to keep copies of any forms that you send or receive in a safe place. Having detailed
and accurate records of the conduct, and your attempts to stop it, will help during an
investigation of the matter. Remember though that there is little privacy in prison. Corrections staff or other inmates may have access to your belongings. Therefore, use your best
judgment when deciding whether, where, and how to keep your records. If you feel that
you will not be able to keep your records confidential in the prison you may want to consider mailing copies of these records to a trusted friend or relative outside the prison for
safe-keeping, or to an advocate or attorney whom you know and trust.
Write directly to the warden of your institution or the Director of your Department of Corrections. You may also write directly to the Inspector General or Office of
Internal Affairs for the Department of Corrections. You may also report sexual misconduct
by writing directly to the warden of your facility or the Director of your Department of Corrections. You can send your letter either through the institutional or regular mail. Be sure to
write “Legal Mail” and “Emergency-Confidential” across the top of your letter and on the
envelope to ensure its confidentiality. In some jurisdictions, you can write directly to the
Inspector General or Office of Internal Affairs with complaints about staff misconduct, sexual
or otherwise. Once the misconduct is reported, the Department of Corrections should conduct an investigation. It should be confidential but this may not always be the
case. The purpose of the investigation is to determine the nature and extent of the misconduct. You may be asked to testify at a hearing or give a statement. Ask whether you
are allowed to have an attorney present. If you are allowed to have legal representation,
make every effort to locate an attorney who will appear on your behalf. Once the investigation is completed, you should follow up to find out the result. If the investigation finds sexual misconduct occurred, the employee could face punishment including a reprimand, suspension or termination and in some states, criminal prosecution. Follow the procedures that
the institution has set forth with regard to reporting and resolving misconduct. Not only is
this the most effective way of dealing with the problem, but you may be prohibited
from bringing an action in court later if you have not used these procedures to
try and resolve the problem.
Remember that sexual misconduct investigations are supposed to be confidential. But the
reality is that many are not. Corrections staff, the inmate involved and others may possibly
leak information. Many corrections departments punish breaches of confidentiality as a
separate violation of their sexual misconduct policy. Use your best judgment about how to
report the misconduct. Use the method most likely to protect your privacy when informing
the Department of Corrections of your complaint and YOU should remember to keep the
information confidential, so that YOU are not responsible for breaches of confidentiality.

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

State Laws

Take Legal Action

Forty-seven states, the District
of Columbia, and the federal
government have laws imposing criminal sanctions on corrections staff members who
have sexual relations with
inmates. Nineteen of state
statutes specifically provide
that the consent of the inmate
is not a defense to staff
sexual conduct.

If you have a lawyer, contact him/her.
You can pursue a remedy under state or federal criminal laws.7 Depending on
the severity of the conduct, the government may be able to prosecute the staff person
under state or federal criminal laws. Such laws usually criminalize conduct that includes
sexual touching.
Also, remember that the prosecutor makes the decision about whether to prosecute the
corrections staff person. The government may prosecute a correctional staff person for
sexual misconduct even if you do not complain and do not cooperate in the investigation.

Eleven state statutes, the
District of Columbia, and the
federal government specifically provide that marriage is a
defense to a charge of sexual
misconduct.

You can pursue a remedy under state civil laws. You may have a cause of action
under state civil laws for intentional infliction of emotional distress, assault and/or battery, or
negligence. The claims will depend on the facts of your situation and state law. Be aware
that various state statutes of limitations require that you file claims within a certain period of
time. The time period for filing claims depends on state law.

Three state statutes —
Arizona, Delaware and Nevada
— specifically provide that
the prisoner, as well as the
staff member, will be punished
for having consensual sexual
relations.
Even if a state does not have
a statute that specifically
covers sexual activity in
prisons, state rape laws apply
to sexual assaults which occur
in prison. So, a corrections
staff person can be convicted
of rape if he has sexual relations with an inmate against
his or her will.

You can pursue a remedy under federal law. Sexual misconduct in prison is prohibited under federal law. A prisoner who has been subjected to sexual misconduct in prison
may have a claim or cause of action pursuant to: (1) the Eighth Amendment of the United
States Constitution, which prohibits cruel and unusual punishment; (2) the Fourteenth
Amendment of the United States Constitution, which mandates equal protection under the
law; or (3) Title IX of the Education Amendments of 1972, which prohibits sexual harassment in educational programs or activities that receive federal funds.
Seek Legal Advice
Whether you decide to take legal action in state or federal court, seek advice and legal assistance from organizations who might prosecute these cases or who assist prisoners in your area.
If you decide to file a lawsuit, few large national organizations other than the NAACP or the
ACLU provide legal assistance to prisoners on this issue. However, most states have local organizations that can provide legal assistance to prisoners who have been subjected to sexual abuse.
Contact organizations such as your state’s bar association, prisoners’ rights organizations, local
women’s advocacy groups or area law schools. Also, Amnesty International has local chapters
which may be able to assist you. In their recent publication, Abuse of Women in Custody,
Amnesty International has listed organizations and resources in each state. See page 12 for the
address and web site where you can obtain this publication.

7See

Appendix for Fifty-State Survey of Criminal Laws Prohibiting Sexual Misconduct Against Prisoners.

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International Standards and
Treaties for the Treatment of
Prisoners
Sexual misconduct occurs not only in prisons within the United States but also internationally. In
response to these serious human rights violations, many countries from around the world have
come together and created international treaties and standards prohibiting sexual abuse of prisoners.
What Is a Treaty?
A treaty is a formal agreement between nations. These agreements were created by governments and officials acting on behalf of the government to provide protection to particularly vulnerable groups and to act against human rights violations. Countries have to report on their
efforts to comply with treaties and are monitored by international tribunals. Some treaties allow
individuals to file complaints about their own situation with an international tribunal or court.
Which Treaties Are Important to American
Prisoners Challenging Staff Sexual Misconduct?
When an international treaty or law is ratified, it becomes binding on that particular country.
Regarding sexual misconduct, there are two relevant treaties to which the United States is a
party: the International Covenant on Civil and Political Rights, ratified in 1992, and the Convention Against Torture, ratified in 1994. The American Declaration on the Rights and Duties of Man
is also an important international legal instrument. It allows American prisoners to file an individual petition to the Organization of American States. Also, important are the Standard Minimum
Rules for the Treatment of Prisoners.
What Treaties Might Apply to Sexual
Misconduct in Prisons?
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights (ICCPR) sets out the fundamental civil and
political rights that belong to all people, prisoners included. Some of these rights include:
“the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment” (Article 7);
“the right of any detained person to be treated with humanity and with respect for the
inherent dignity of the human person” (Article 10); and
“the right to privacy without arbitrary interference” (Article 17).
The Human Rights Committee monitors countries’ efforts to implement the goals of this treaty. In
relation to Article 17, the Human Rights Committee states that body searches
should be conducted only by someone of the same sex as the prisoner.

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140 nations have agreed to be legally bound by the ICCPR, including the United States.
How can this help you? U.S. prisoners are not entitled to sue under the International
Covenant on Civil and Political Rights because the United States claims that its domestic
laws provide prisoners with remedies for violations. However, in a lawsuit the courts may
look to the treaty’s goals in a particular case for further guidance on how to apply the
relevant U.S. laws.8 Also, every 5 years the United Nations Human Rights Committee holds
a hearing at which the United States has to answer questions about its performance under
the Covenant. You can tell the Committee about your situation to influence what happens at
that hearing and what the Committee says in its final written comments.
United Nations Convention Against Torture (CAT)
The United States became a party to the Convention Against Torture in 1994. It is an international treaty that is monitored by the Committee Against Torture. The Committee is responsible
for helping countries to implement practices that guard against torture and providing recommendations for improving current policies and practices. The Convention Against Torture is also
considered to be customary law, which means that it represents a standard of practice against
torture that is agreed to and followed by all countries within the international community.
Importantly, the Committee Against Torture considers the rape of a woman in
custody by a correctional officer to be a form of torture.
How can this help you? Like the ICCPR the United States designated certain provisions in
the CAT “non-self-executing,” meaning that U.S. law provides its own remedies for private parties
wishing to sue for violations. For example, the Eighth Amendment’s prohibition of “cruel and
unusual punishment” covers any violations of prisoners’ rights that may include torture. However,
courts might look to the goals of the treaty for guidance in certain cases.
The Inter-American Commission on Human
Rights (IACHR)
The Inter-American Commission on Human Rights (IACHR) is a committee of 7 human rights
experts that promotes and protects human rights. It is a part of the Organization of American
States. In 1965, IACHR was authorized to examine complaints regarding specific cases of
human rights violations. The U.S. has not ratified the American Convention on Human Rights,
but U.S. cases may still be processed under the American Declaration of the Rights and Duties
of Man.
How can this help you? This is the only setting where an individual or group can complain
about human rights violations in the United States and get a formal decision from an international body.
Another important aspect of the Inter-American Commission is that the American Declaration
also protects economic and social rights, like the right to medical care, adequate food and
protection of family life.

8See

Sterling v. Cupp, 625 P.2d 123 (Or. 1981).

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But before you can bring a claim, the petition must show that the victim has exhausted all
domestic (U.S.) means of remedying the situation. This means you must try to bring your complaint in the U.S. courts and use all the appeals available to you.
“If domestic remedies have not been exhausted, it must be shown that the victim tried to
exhaust domestic remedies but failed because: 1) those remedies do not provide for adequate
due process; 2) effective access to those remedies was denied or, 3) there has been undue
delay in the decision on those remedies.”
If domestic remedies were exhausted, a petition must be presented within six months after the
final decision in the domestic proceedings. If domestic remedies have not been exhausted, the
petition must be presented within a reasonable time after the occurrence of the misconduct
complained of.
Anyone can file the petition; it doesn’t have to be the person suffering. This means someone,
like a family member or legal organization could bring a complaint on your behalf.
The Standard Minimum Rules9
Lastly a branch of the United Nations, called the United Nations Economic and Social Council
(ECOSOC), approved the Standard Minimum Rules for the Treatment of Prisoners. This document directly addresses cross-gender supervision of prisoners. In particular, the Standard
Minimum Rules provide that women and men prisoners be segregated and that
prisoners be guarded only by officers of the same sex. The rules also provide that
female corrections officers should monitor male corrections officers whenever
they come into contact with women prisoners.
The Standard Minimum Rules are not binding international law. They are guidelines that countries
should follow to ensure the protection of prisoners’ human rights. The United States, however,
does not completely follow the Standard Minimum Rules. United States law, for example, allows
male corrections officers to work in women’s prisons and female corrections officers to work in
men’s prisons.
How can this help you? Know that your situation is not an isolated problem and that countries around the world have considered the problem and are working together to create institutional policies that will be flexible enough to work within various countries to help them eliminate
sexual misconduct in prisons. In addition, becoming informed and knowing your rights is crucial
to your own self-determination and rights as a human being. The Minimum Standards should be
mentioned when making complaints in court because, even though they are not binding, they
are considered important guidelines..

9See

Standard Minimum Rules for the Treatment of Prisoners, U.N. High Commissioner for Human Rights, Geneva
Convention (1955), approved by res. 663C (1957) and 2076 (1977).

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Who to Contact
Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights, part of the Organization of American
States, is a committee of seven human rights experts that promote and protect human rights.
Inter-American Commission on Human Rights
1889 F Street, NW
Washington, DC USA 20006
E-mail: cidhoea@oas.org
Telephone: (202) 458-6002
Fax: (202) 458-3992
www.cidh.oas.org
Amnesty International
Amnesty International, a grassroots activist organization with over one million members
worldwide, is dedicated to abolishing the death penalty, assisting political prisoners to get a
fair trial, freeing prisoners of conscience, promoting peace, ending torture and killings due
to political beliefs, and promoting justice.
Amnesty International
322 Eighth Avenue
New York, NY 10001
Telephone: (212) 807-8400
www.amnesty-usa.org
Human Rights Watch
Human Rights Watch is an independent non-governmental organization whose mission is
to protect human rights throughout the world. Human Rights Watch works to prevent
discrimination, protect people from torturous war crimes and to prosecute such criminals.
Additionally, Human Rights Watch researches and investigates human rights violations and
then reports and holds abusers accountable.
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
E-mail: hrwnyc@hrw.org
Telephone: (212) 290-4700
International Human Rights Law Clinic
American University, Washington College of Law
For people who cannot afford a lawyer, the Human Rights Clinic of American University
offers free representation to people who want to complain about their situation to the United Nations or the Inter-American Commission on Human Rights. Contact the clinic at the
address listed or by calling the 800-number. The Clinic will also accept collect calls.
International Human Rights Law Clinic
American University, Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016
Telephone: (202) 274-4147
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Other Things to Consider
It can be difficult for prisoners to speak out against sexual misconduct. How difficult it is
depends on the circumstances in your facility and jurisdiction. For example, it may depend on
how many prisoners have complained before you, your state’s commitment to ending sexual
misconduct in prison and the presence of advocacy organizations that care about this issue. The
following are a few things that prisoners may face by reporting sexual misconduct:
Retaliation by Corrections Staff
Corrections staff may try to intimidate you to prevent you from filing a complaint or from participating in an investigation of sexual misconduct. Most corrections departments have policies that
prohibit any individual from interfering with an investigation, including intimidation or retaliation
against witnesses. Some states have laws that make it a separate criminal offense for staff to
retaliate against a person who has made a complaint. If you believe that you are being denied
privileges or are being unfairly transferred or punished in some way because you filed a complaint or assisted in the investigation of a complaint, you should report this to the warden, to an
investigative agency or to the prosecuting attorney.
Hardship During Internal Investigations
In some systems, prisoners are placed in administrative segregation or protective custody for
weeks or months during sexual misconduct investigations. Being in administrative segregation or
protective custody affects your freedom of movement, access to programming, privacy, visitation
and contact with family. In deciding whether to report sexual misconduct, you should consider
whether it is worth it to you if you are placed in administrative segregation or protective custody.
Barriers to Prosecution
You may already know that prosecutors possess a great deal of discretion in determining whom
they will prosecute and the crimes that they will charge. Even if you have been the victim of
severe misconduct, the prosecutor may decide not to prosecute the staff member. Sometimes
prosecutors feel there is insufficient evidence, that prisoners lack credibility as witnesses, or that
politically, it is not a good idea to prosecute corrections staff members. Other prosecutors may
simply feel that sexual misconduct is not a high priority crime to prosecute.
Obstacles to Bringing a Successful Civil Lawsuit
It can be tough to bring a successful civil lawsuit. Depending on your jurisdiction, it may be difficult to find a lawyer who is willing to represent prisoners in civil litigation. A federal law called the
Prison Litigation Reform Act (PLRA) has created some additional barriers to litigation by prisoners on conditions of confinement. Among other things, the PLRA requires that a prisoner use
every step of the grievance procedure that is available before bringing a lawsuit in court. Also,
the PLRA contains a physical injury requirement, stating that a prisoner cannot recover damages
for mental or emotional injury alone. There is a case, however, that determined that sexual

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misconduct is not a “condition of confinement” and therefore not covered by the PLRA’s
limitations.10
Gathering a Support System
The process of dealing with sexual misconduct, whether or not you decide to formally report it,
is difficult at best. It is important that you get support during this time.
Here are some suggestions:
Tell your lawyer from your criminal case.
Consider telling your lawyer from your criminal case. Some prisoners who have spoken out
successfully against sexual misconduct first reported the abuse to their criminal defense
attorneys. A criminal defense attorney may be a good ally for a number of reasons. You
may already have a good relationship with your criminal defense attorney. Because your
criminal defense attorney knows the local legal community, he or she may be able to
refer you to a civil attorney who will help you if you want to sue. Also, your criminal
defense attorney may be familiar with your prison or jail and may help you to report the
misconduct safely.
Tell a trusted friend inside the prison community.
Find other prisoners whom you trust and with whom you can talk about your experiences.
This support will help you and other prisoners in similar situations. Keep in mind that other
prisoners could use this information to better their own situation. Therefore, it is extremely
important that you only confide in those people you know you can trust.
Tell a trusted friend outside the prison community.
A friend or family member outside the prison community can help you decide what to do,
including notifying the prison about the misconduct and requesting that the prison respond
appropriately. The individual can also be used to corroborate your account of the misconduct should the claim be investigated.

10See

Peddle v. Sawyer, 64 F. Supp. 2d 12 (D. Conn. 1999).

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Contact community and other agencies for help, or have your family and friends go to these
organizations on your behalf. For example, both C.U.R.E. (Citizens United for the Rehabilitation of
Errants) and F.A.M.M. (Families Against Mandatory Minimums) are national groups with local
chapters. Both assist the families of prisoners to address problems their incarcerated family
member may be facing. You can also obtain a copy of the ACLU (American Civil Liberties Union)
National Prison Project Resource Guide which may provide some valuable help. Recently, human
rights organizations like Amnesty International and Human Rights Watch, have become interested
in this issue. For example, Amnesty International completed a 50-state report on abuse of
women in custody which lists state organizations that may be able to provide assistance. It is
a great resource. You may call or write these organizations as follows:
ACLU National Prison Project
1875 Connecticut Avenue, NW, Suite 410
Washington, DC 20009
(202) 234-4830
C.U.R.E.
P.O. Box 3210
National Capital Station
Washington, DC 20001
(202) 789-2126
F.A.M.M.
1612 K Street, NW, Suite 1400
Washington, DC 20006
(202) 822-6700
Amnesty International, USA
322 Eighth Avenue
New York, NY 10001
(212) 807-8400
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY 10118-3299
(212) 290-4700

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Seeking Medical Help
You must seek medical help if:
you may be pregnant
you have been raped or sexually assaulted
you may have been exposed to HIV or other sexually-transmitted diseases
Pregnancy
If you become pregnant while in prison, whether or not it is the result of sexual assault, it is very
important that you receive medical care. Remember, only you can decide what is in your best
interest — carrying the pregnancy to term, adoption, foster care or termination. Do not be
pressured by anyone — family members, friends, other prisoners, the biological father or prison
officials — to do what is not in your best interest.
First, if you decide to continue the pregnancy, proper prenatal care is essential for your health
and that of the fetus. This is especially true for women who are in high risk groups, such as
those who have a history of drug or alcohol abuse, have HIV or other sexually-transmitted
diseases, or suffer from poor nutrition.
Second, if you do not wish to keep the child, you can receive counseling on other options such
as adoption, foster care placement or terminating your pregnancy. In most communities, organizations exist to provide you with information about your options. You can contact these organizations directly or through the case manager or medical staff at your institution. For example, you
can contact your local Planned Parenthood or the National Abortion Federation about terminating
an unwanted pregnancy. For information about adoption or foster care placement you can
contact your local department of human services or local private social service agencies, such
as Family and Child Services, Catholic Charities or Jewish Social Services.
Rape and Sexual Assault
If you have been raped or sexually assaulted, you must get medical attention immediately. You
should request to be taken to a hospital where a “rape-kit” can be performed. During a rape kit
examination, the doctor performs an examination and takes samples of hair, semen and other
fluids which the perpetrator may have left on your body during the assault. These samples often
provide crucial evidence in proving a sexual assault occurred and in identifying the perpetrator.
That is why it is especially important that you have a rape kit in a hospital, where the medical
staff is accustomed to performing it.
Although it may be difficult, it is important that you do not shower after the assault. Showering
may wash off the hair, semen and other evidence. Also, bring the clothes and underwear that
you had on at the time of the assault to the hospital with you along with any other items that
may have come into contact with the perpetrator’s bodily fluids — blood, semen or saliva. This
includes any towels the perpetrator may have used to wipe himself, herself or you, and condoms

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if they were worn during the assault. The doctors may be able to take hair and semen samples
from all of these items. Technology is such that even small traces of blood, semen, vaginal fluids
or saliva can yield information that can identify the source of these fluids.
If you have been raped or sexually assaulted, you should always be tested for pregnancy, HIV
and other sexually-transmitted diseases. Even if you test negative for HIV, you should request
that you be re-tested six months later, since it may take that long for a test to detect the HIV
antibodies in your blood.
Sexually-Transmitted Diseases
A sexually-transmitted disease, if left untreated, can have very serious consequences. It can
cause sterility or otherwise negatively affect your health. HIV infection, for which there is no cure,
decreases the body’s ability to fight infection and makes a person susceptible to a large number
of illnesses. While there is no cure for HIV, there are new medical treatments that can greatly
increase both the quality and length of the lives of those infected with the virus. Proper medical
care can, in some cases, cure a sexually-transmitted disease. If no cure is available, it can often
reduce the effects of the disease. Therefore, it is very important to get medical care as soon as
possible.
Counseling
If you have been subject to sexual misconduct, you may want to seek professional counseling or
mental health advice whether or not you decide to seek medical help for injuries resulting from
the conduct. Many prisons offer mental health services for victims of sexual abuse, and some
offer counseling sessions. There are also community-based counseling services such as local
rape crisis centers. If you cannot obtain mental health services, talk about your experiences with
a trusted friend, relative or spiritual advisor. Talking with someone helps you explore your feelings
about the incident and is an important step in gaining control over your life.

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Questions and Answers
Q. Why is all sexual conduct between correctional staff and inmates considered
misconduct?
A. Because sexual contact between staff and inmates is an abuse of power. Correctional staff
have the ultimate power in corrections settings, and they often control the way a prisoner
serves his or her time. One way in which correctional staff may abuse their power is to
coerce, threaten or seduce inmates into giving them sexual favors. Inmates may feel they
have to comply with these demands in order to survive in prison or protect their safety.
Q. Are some prisoners more vulnerable to sexual misconduct than others?
A. Yes. Prisoners who are especially vulnerable to sexual misconduct are likely to fall into one
or more of the following categories:
Inmates with Addictions
Inmates often enter prison with untreated substance abuse problems. Given this, it is not
surprising that some prisoners and staff are often willing to trade sexual favors in exchange
for both legal and illegal drugs. For example, more than 80% of male and female prisoners
suffer from an addiction to alcohol, drugs or nicotine and sometimes all three. Because
these items are difficult to get in prison, they are highly valued. Correctional employees
sometimes use the prisoner’s addiction to their advantage by offering to exchange alcohol,
tobacco or other drugs for sex or sexual favors.
Survivors of Sexual Abuse
It is estimated that 80% of women and 40% of men in prison and jails have been victims
of sexual and physical abuse. Individuals, who have been sexually abused in the past, are
far more likely to be abused while in prison. They may feel that sex with a male or female
staff member is a small price to pay for the possible increased benefits of money, drugs,
food or better work assignments and may believe they are powerless to stop abuse in
prison. They may accept the sexual abuse as an unwelcome, but normal, part of life. They
may even believe they deserve the abuse or that the abuser will grow to care for them if
they allow it to continue.
Inmates with Mental Health Issues
Mentally ill inmates are often less equipped than other prisoners to handle the stresses
and challenges of incarceration. Because of this some are at risk for exploitation by other
inmates and staff. Inmates suffering from mental illness may not fully realize what is
happening when they are being sexually abused. When they do realize it, they may also
have a more difficult time reporting the abuse or being believed by staff or investigators.
Inmates with Little Experience in the Criminal Justice System
Inmates entering the prison system for the first time may feel intimidated by other prisoners
and the corrections staff. They may feel isolated, and when subjected to sexual harassment

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or other inappropriate sexual behavior, they may not know where to turn. They may also
feel that this is the way to survive in prison. For men, they may believe it will protect them
from rape by other prisoners. In addition, these inmates may be fearful or may not understand how to report incidents of sexual misconduct.
Gay, Lesbian, Bisexual and Transgender Inmates
There are gay, lesbian, bisexual and transgender individuals in correctional environments,
both as inmates and employees. Also men and women, who are in heterosexual relationships when they are in the community, may engage in same sex relationships while
incarcerated due to limited access to sex with opposite gender individuals. Because
sexual activity is prohibited in all correctional environments, it becomes highly valued.
Often lesbian, gay and heterosexual staff target inmates who are gay, lesbian, bisexual or
transgender because they are seen as vulnerable and available. In male institutions, gay
and transgender inmates are targeted as being sexually available by both inmates and staff.
Q. What if I am in control of the relationship or am receiving some benefit from
it? Doesn’t that make it OK?
A. No. Remember, even if you feel you can control the relationship and end it when you want
to, it is the correctional employee, not you, who is in charge. Often, prisoners find that once
a sexual relationship starts they can’t end it even if they want to. The authority that correctional employees have in prison carries over into the sexual relationship. So if a prisoner
tries to end the relationship or threatens to report a correctional employee, the correctional
employee can make things particularly difficult for the prisoner. The employee can:
change your work assignments
threaten you with a transfer or disciplinary action
give you a negative parole recommendation
interfere with your visits
threaten or commit physical violence against you
allow or encourage others to harm you
harass and intimidate you
Q. What if I have sex with a correctional employee willingly? Is this sexual
misconduct?
A. Yes. Not only is consensual sex with a correctional employee sexual misconduct, but it is
also against most departmental policies and state and federal law. If prison officials discover
that you are having sex with a correctional employee, you could face disciplinary charges
and if you live in Arizona, Delaware or Nevada, you could also be charged with a separate
criminal offense.

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Q. Do some prisoners invite sexual abuse?
A. No. Sometimes people blame prisoners for sexual misconduct because they behave or
dress in what others believe is a seductive or inviting way. It is wrong for a corrections staff
member to have sex or engage in inappropriate sexual behavior with a prisoner regardless
of how an inmate acts, dresses or what the inmate offers, even if the inmate actively suggests sex with the staff member. Correctional staff are responsible for their own actions
and for setting and enforcing appropriate boundaries between staff and inmates.
Q. What if a female staff member is making sexual advances? Is that also sexual
misconduct?
A. Yes. Sexual misconduct is about power and a female staff member can abuse that power
in the same way as her male counterparts. A female staff member who coerces or forces
you into granting sexual favors, touches you inappropriately, or makes inappropriate comments is also committing sexual misconduct. Even if the female staff member is making
advances or having a sexual relationship with a male inmate that is sexual misconduct.
You should use the same procedure to report sexual misconduct by a female staff member
as you would that of a male staff member.
Q. Is it okay for me to have a sexual relationship with a corrections employee
after I leave the institution?
A. It depends. Several state laws make it a crime for a corrections employee to have sex
with individuals under their custody. This includes probationers or parolees. The same
issues of power and control are present in those situations. In many states there is an argument that when you are on probation and/or parole you are no longer under the custody of
the employee. Even so, many states prohibit corrections employees from maintaining their
employment if they are married to or involved with a person under criminal
justice supervision.

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Resources
This section provides additional resources that may be helpful in obtaining more information
about state laws or in reporting sexual misconduct in prison.
The Criminal Laws in Your State
In addition to the civil remedies discussed earlier, you may also decide that you want to pursue
criminal prosecution of the corrections staff person. In the Appendix section of this guide is a
Fifty-State Survey of Criminal Laws which prohibit sexual contact between prisoners and corrections staff. Even if your state does not have a law which specifically covers sexual misconduct in
prison, you can still use your state’s general sexual assault laws. In many states, even if you do
not want to pursue the action, the institution can independently decide to seek criminal prosecution of a staff member. The following is some basic information about state criminal laws prohibiting the sexual abuse of prisoners:
47 states, and the District of Columbia, and the federal government have laws specifically
criminalizing sexual abuse in prisons.11
36 states, and the District of Columbia define sexual misconduct in prisons as a felony.12
6 states define sexual misconduct in prisons as a misdemeanors.13
5 states and the federal government define sexual misconduct in prisons as either a felony
or a misdemeanor depending an the nature and severity of the assault.14
3 states criminalize the conduct of both the prisoner and the corrections employees in
“consensual” cases of sexual misconduct.15
19 states and the District of Columbia specifically provide that even if a prisoner
“consents” to or voluntarily engages in sex with a corrections staff person, the staff
member is criminally liable.16

11Alaska, Arizona, Arkansas,

California, Colorado, Connecticut, Delaware, District of Columbia, 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, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

12Alaska, Arizona, Arkansas,

Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas,
Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire,
New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Texas, Virginia, West Virginia, Wisconsin, and Wyoming.

13California,

Iowa, Kentucky, Maryland, Montana, and Tennessee.

14Colorado,

Connecticut, New York, Utah, and Washington.

15Arizona,

Delaware and Nevada.

16Arkansas, California, Delaware, District

of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Massachusetts, Minnesota,
Mississippi, Montana, Nevada, New Hampshire, New York, North Carolina, South Carolina, Utah and Washington.

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11 states, the District of Columbia and federal government provide that marriage is a
defense to a charge of sexual misconduct.17
3 states have no laws criminalizing sexual misconduct in prisons.18
States that have enacted laws criminalizing the sexual abuse of prisoners have done so for several reasons. First, these states view prisoners as a vulnerable population — similar to the elderly, mentally ill or mentally retarded — and view prison staff as owing them a particular duty of
care. Second, because prisoners often trade sex for food, drugs or money, the sexual incident
could appear to be consensual and therefore outside the scope of traditional sexual abuse
statutes. Third, states have enacted these laws to send a message to the community that they
take sexual misconduct in prison seriously and that they will seek prosecution of those who
abuse prisoners.
The Attorney General in Your State
If you have been subject to sexual misconduct in a state that has a specific statute prohibiting
sexual misconduct in prison and are having difficulty pursuing your claim or obtaining information
about the law, you should write to the Attorney General of your state. If you are in a federal correctional facility you should contact the Office of Inspector General, which has oversight of the
Federal Bureau of Prisons. Included in the Appendix section of this guide are the addresses for
the Attorneys General in each state. Because Attorneys General are elected officials, you should
contact their office and ask them for the name of the current Attorney General. A letter to the
Attorney General in your state or the Office of Inspector General will be most effective if it
includes a detailed account of the misconduct, as well as the steps you have taken to pursue
your claim. Remember to keep a copy of the letter for your records.

17Alaska, Arizona,

District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, New York

and Oklahoma.
18Alabama,

Oregon, and Vermont.

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Publications
Since the first edition of the Handbook was published in 1998, there has been significant
publishing activity in the area of staff sexual misconduct with inmates. Listed below are a
number of the publications and reports on the subject and web sites where you can obtain
additional information on this subject. We have listed both the address and web site where
possible for these organizations and whether there is a charge for the publications. Even where
there is a charge, a letter indicating that you are a prisoner and do not have the money
to pay for the publication may be enough for you to receive a free copy. Your ability to receive
the publications will depend on the specific regulations of your penal institution.
1. Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women —
A State-by-State Survey of Policies and Practices in the USA, Amnesty International USA
(March 2001).
Amnesty International USA
Attn: Publications
322 Eighth Avenue
New York, NY 10001
(212) 807-8400
www.amnesty-usa.org/women/custody/abuseincustody.html
2. Smith, Brenda V., Sexual Abuse Against Women in Prison, American Bar Association
Criminal Justice Magazine, Vol.16, Issue No. 1 (Spring, 2001).
American Bar Association Service Center
541 N. Fairbanks Court
Chicago, IL 60611
(312) 988-5522
www.abanet.org/crimjust/smith.html
3. Layman, Elizabeth, McCampbell, Susan, and Moss, Andie, Sexual Misconduct in
Corrections, American Jails Magazine (November/December 2000).
American Jails Magazine
2053 Day Road, Suite 100
Hagerstown, MD 21740
www.secure.corrections.com/cc/aja/mags/zorders.html
4. Mullendore, Kristine and Beever, Laurie, Sexually Abused Female Inmates in State and
Local Correctional Institutions, Women Girls & Criminal Justice, Vol.1. No.6 pps. 81-96
(October/November 2000).
Women Girls & Criminal Justice, Civic Research Institute, Inc.
4478 Route 27, P.O. Box 585
Kingston, NJ 08528
www.civicresearchinstitute.com/co9.html

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5. Women in Prison: Issues and Challenges Confronting U.S. Correctional Systems,
U.S. General Accounting Office, GAO/GOD-00-22 (December 1999).
U.S. General Accounting Office
P.O. Box 37050
Washington, DC 20013
(202) 512-6000
E-mail: info@www.gao.gov
www.gao.gov
6. Women in Prison: Sexual Misconduct by Correctional Staff, U.S. General Accounting Office,
GAO/ GOD-99-104 (June 1999).
U.S. General Accounting Office
P.O. Box 37050
Washington, DC 20013
(202) 512-6000
E-mail: info@www.gao.gov
www.gao.gov
7. Not Part of My Sentence, Violations of Human Rights of Women in Custody, Amnesty
International, AM 51/01/99 (March 1999).
Amnesty International USA
Attn: Publications
322 Eighth Avenue
New York, NY 10001
(212) 807-8400
www.amnestyusa.org/rightsforall/women/
8. All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch,
Women’s Rights Division (December 1996).
Human Rights Watch
485 Fifth Avenue
New York, NY 10017-6104
(212) 972-8400
E-mail: hrwnyc@hrw.org
www.hrw.org /summaries/s.us96d.html
9. No Escape: Male Rape in U.S. Prisons, Human Rights Watch (2001).
Human Rights Watch
485 Fifth Avenue
New York, NY 10017-6104
(212) 972-8400
E-mail: hrwnyc@hrw.org
www.hrw.org /summaries/s.us0ld.html

American University Washington College of Law

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

10. United States of America, Justice for Women Prisoners, The Human Rights of Women
Prisoners, Amnesty International, ACT 77/01/99, April 2000.
Amnesty International USA
Attn: Publications
322 Eighth Avenue
New York, NY 10001
(212) 807-8400

American University Washington College of Law

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26

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Notes

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Notes

American University Washington College of Law

27

28

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Notes

American University Washington College of Law

Appendix

30

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Notes

American University Washington College of Law

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Attorneys General in Your State
State

Address

Phone Number

Alabama

State House, 11 S. Union St.
Montgomery, AL 36130

(334) 242-7300

Alaska

P.O.Box 110300
Diamond Courthouse
Juneau, AK 99811-0300

(907) 465-2133

American Samoa

P.O.Box 7
Pago Pago, AS 96799

(684) 633-4163

Arizona

1275 W. Washington St.
Phoenix, AZ 85007

(602) 542-4206

Arkansas

200 Tower Building, 323 Center St.
Little Rock, AR 72201-2610

(501) 682-2007

California

1300 I St., Suite 1740
Sacramento, CA 95814

(916) 445-9555

Colorado

Department of Law
1525 Sherman St.
Denver, CO 80203

(303) 866-3052

Connecticut

55 Elm St.
Hartford, CT 06141-0120

(860) 808-5318

Delaware

Carvel State Office Building
820 N. French St.
Wilmington, DE 19801

(302) 577-8400

District of Columbia

Office of the Corporation Counsel
441 4th St., NW
Washington, DC 20001

(202) 727-6248

Florida

The Capitol, PL 01
Tallahassee, FL 32399-1050

(850) 487-1963

Georgia

40 Capitol Square, SW
Atlanta, GA 30334-1300

(404) 656-4585

Guam

Judicial Center Building
Suite 2-200E
120 W. O’Brien Dr.
Hagatna, Guam 96910

(671) 475-3324

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32

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Attorneys General in Your State (Continued)
State

Address

Phone Number

Hawaii

425 Queen St.
Honolulu, HI 96813

(808) 586-1282

Idaho

Statehouse
Boise, ID 83720-1000

(208) 334-2400

Illinois

James R. Thompson Ctr.
100 W. Randolph St.
Chicago, IL 60601

(312) 814-2503

Indiana

Indiana Govt. Ctr.
S.402 W. Washington St., 5th Floor
Indianapolis, IN 46204

(317) 232-6201

Iowa

Hoover State Office Bldg.
1305 E. Walnut
Des Moines, IA 50319

(515) 281-3053

Kansas

120 S.W. 10th Ave., 2nd Fl.
Topeka, KS 66612-1597

(785) 296-2215

Kentucky

State Capitol, Rm. 116
Frankfort, KY 40601

(502) 696-5300

Louisiana

Dept. of Justice
P.O. Box 94095
Baton Rouge, LA 70804-4095

(225) 342-7013

Maine

State House Station 6
Augusta, ME 04333

(207) 626-8800

Maryland

200 St. Paul Place
Baltimore, MD 21202-2202

(410) 576-6300

Massachusetts

1 Ashburton Place
Boston, MA 02108-1698

(617) 727-2200

Michigan

P.O.Box 30212
525 W. Ottawa St.
Lansing, MI 48909-0212

(517) 373-1110

Minnesota

State Capitol, Suite 102
St. Paul, MN 55155

(651) 296-6196

American University Washington College of Law

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Attorneys General in Your State (Continued)
State

Address

Phone Number

Mississippi

Dept. of Justice
P.O. Box 220
Jackson, MS 39205-0220

(601) 359-3692

Missouri

Supreme Ct. Bldg.
207 W. High St.
Jefferson City, MO 65101

(573) 751-3321

Montana

Justice Bldg.
215 N. Sanders
Helena, MT 59620-1401

(406) 444-2026

Nebraska

State Capitol
P.O. Box 98920
Lincoln, NE 68509-8920

(402) 471-2682

Nevada

Old Supreme Ct. Bldg.
100 N. Carson St.
Carson City, NV 89701

(775) 684-1100

New Hampshire

State House Annex
25 Capitol Street
Concord, NH 03301-6397

(603) 271-3658

New Jersey

Richard J. Hughes Justice Complex
25 Market St., CN 080
Trenton, NJ 08625

(609) 292-4925

New Mexico

P.O. Drawer 1508
Sante Fe, NM 87504-1508

(505) 827-6000

New York

Department of Law
The Capitol, 2nd Floor
Albany, NY 12224

(518) 474-7330

North Carolina

Department of Justice
P.O. Box 629
Raleigh, NC 27602-0629

(919) 716-6400

North Dakota

State Capitol
600 E. Boulevard Ave.
Bismarck, ND 58505-0040

(701) 328-2210

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Attorneys General in Your State (Continued)
State

Address

Phone Number

North Mariana
Islands

Administrative Building, 2nd Floor
Capitol Hill
Caller Box 10007
Saipan, MP 96950

(670) 664-2341

Ohio

State Office Tower
30 E. Broad St.
Columbus, OH 43266-0410

(614) 466-3376

Oklahoma

State Capitol, Room 112
2300 N. Lincoln Blvd.
Oklahoma City, OK 73105

(405) 521-3921

Oregon

Justice Building
1162 Court St., NE
Salem, OR 97310

(503) 378-4732

Pennsylvania

Strawberry Square
Harrisburg, PA 17120

(717) 787-3391

Puerto Rico

P.O. Box 192
San Juan, PR 00902-0192

(787) 721-7700

Rhode Island

150 S. Main St.
Providence, RI 02903

(401) 274-4400

South Carolina

Rembert C. Dennis Office Building
P.O. Box 11549
Columbia, SC 29211-1549

(803) 734-3970

South Dakota

500 E. Capitol
Pierre, SD 57501-5070

(605) 773-3215

Tennessee

500 Charlotte Ave.
Nashville, TN 37243

(615) 741-5860

Texas

Capitol Station
P.O. Box 12548
Austin, TX 78711-2548

(512) 463-2191

Utah

State Capitol, Rm. 236
Salt Lake City, UT 84114-0810

(801) 538-1326

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Attorneys General in Your State (Continued)
State

Address

Phone Number

Vermont

109 State St.
Montpelier, VT 05609-1001

(802) 828-3171

Virginia

900 E. Main St.
Richmond, VA 23219

(804) 786-2071

Virgin Islands

Dept. of Justice, G.E.R.S.
Complex 48B-50C
Kronprinsdens Gade
St. Thomas, VI 00802

(340) 774-5666

Washington

P.O. Box 40100
1125 Washington St., SE
Olympia, WA 98504-0100

(360) 753-6200

West Virginia

State Capitol
1900 Kanawha Blvd., East
Charleston, WV 25305

(304) 558-2021

Wisconsin

State Capitol, Suite 114E
P.O. Box 7857
Madison, WI 53707-7857

(608) 266-1221

Wyoming

State Capitol Building
Cheyenne, WY 82002

(307) 777-7841

Copyright © 1997–2001 National Association of Attorneys General, 750 First Street, NE,
Suite 1100, Washington, DC 20002; Phone: 202-326-6000; Fax: 202-408-7014.
United States Office
of Inspector General

U.S. Department of Justice
Office of Inspector General
950 Pennsylvania Avenue, NW
Suite 4706
Washington, DC 20530-0001

1-800-869-4499

American University Washington College of Law

35

State

Statute

Alabama

No legislation a

Alaska

Alaska Stat.
§11.41.410
(West 1998 and
2000 Supp.)

Coverage

§11.41.410
§11.41.410(a): An offender commits
Sexual assault in the the crime of sexual assault in the first
first degree
degree if, (3) the offender engages in
sexual penetration with another person
§11.41.410
(B) who is in the offender’s care (i) by
Sexual assault in the authority of law; or (ii) in a facility or
second degree
program that is required by law to be
licensed by the state.
§11.41.425
Sexual assault in the §11.41.420(a): An offender commits
third degree
the crime of sexual assault in the
second degree if, (2) the offender
§11.41.427
engages in sexual contact with a
Sexual assault in the person (B) who is in the offender’s care
fourth degree
(i) by authority of law; or (ii) in a facility
or program that is required by law to
§12.55.125
be licensed by the state.
Sentences of
imprisonment for
§11.41.425 (a): An offender commits
felonies
the crime of sexual assault in the third
degree if the offender (2) while
§11.41.432
employed in a state correctional facility
Defenses
or other placement designated by the
commissioner of corrections for the
custody and care of prisoners, engages
in sexual penetration with a person who
the offender knows is committed to the
custody of the Department of
Corrections to serve a term of
imprisonment or period of temporary
commitment
§11.41.427 (a): An offender commits
the crime of sexual assault in the fourth
degree if (1) while employed in a state
correctional facility or other placement
designated by the commissioner of

Definitions/Notes

Penalties

Defenses

§11.41.410(b):
Sexual assault in the
first degree is an
unclassified felony.

§11.41.432:
Defenses: (a) It is a defense to a
crime charged under AS
11.41.410(a)(3) or AS
11.41.420(a)(2) that the
§12.55.125(i):
offender is: (1) mentally
The penalty for an
incapable; or (2) married to the
unclassified felony shall person and neither party has
be imprisonment for a filed with the court for a
term of 8 years for first separation, divorce, or dissolution
time, unarmed offense. of the marriage.
§11.41.420(b):
Sexual assault in the
second degree is a
class B felony.
§12.55.125(d):
The penalty for a class
B felony shall be
imprisonment for a
term not to exceed 10
years.
§11.41.425(b):
Sexual assault in the
third degree is a class
C felony.
§12.55.125(e):
A defendant convicted
of a class C felony may
be sentenced to a
definite term of not
more than 5 years.

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

American University Washington College of Law

Alaska Stat.
§11.41.420
(West 1998 and
2000 Supp.)

Title

36

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
State

Statute

Title

Arizona

Definitions/Notes

corrections for the custody and care of
prisoners, the offender engages in
sexual contact with a person who the
offender knows is committed to the
custody of the Department of
Corrections to serve a term of
imprisonment or period of temporary
commitment.

American University Washington College of Law

Ariz. Rev. Stat. Ann.
§13-1419
(West 1989 and
Supp. 1999)

§13-1419
Unlawful sexual
conduct; correctional
employees;
prisoners;
classification

§13-1419(A): A person who is
employed by the state department of
corrections, the department of juvenile
corrections, a private prison facility or a
city or county jail, or who contracts to
provide services with the state
department of corrections, the
department of juvenile corrections, a
private prison facility or a city or county
jail commits unlawful sexual conduct by
engaging in oral sexual contact, sexual
contact, or sexual intercourse with a
person who is in the custody of the
department or with an offender who is
under the supervision of the department
or a city or county.

Penalties

Defenses

§11.41.427(b):
Sexual assault in the
fourth degree is a class
A misdemeanor.
§13-1419.D:
Unlawful sexual
conduct is a class 5
felony.
NOTE: The statute
makes it illegal for the
prisoner to engage in
any sexual contact
with a custodian.

§13-701(C)(4):
The penalty for a class
5 felony shall be
imprisonment for two
years and/or
§13-802(A):
a fine not to exceed
$150,000.

§13-1419.C.1:
Marriage is a defense for
employee or contractor if the
marriage occurred before the
prisoner was sentenced to the
state department of corrections.
§13-1419.C.2:
Marriage is a defense for an
offender who is on release status
if the marriage occurred before
the prisoner was sentencedto
the state department of
corrections.

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Alaska
(Continued)

Coverage

(B): A prisoner who is in the custody of
the state department of corrections or
an offender who is on release status
and who is under the supervision of the
state department of corrections
commits unlawful sexual conduct by
engaging in oral sexual contact, sexual
contact, or sexual intercourse with a
person who is employed by the state
department of corrections or a private
prison facility or who contracts to
37

State

Statute

Title

Arizona
(Continued)

Arkansas

Definitions/Notes

Defenses

Ark. Code Ann.
§5-14-108
(West 2001)

§5-14-108
Sexual abuse in the
first degree

§5-14-108: Sexual abuse in the first
degree: (a) A person commits sexual
abuse in the first degree if: (6) being
employed directly or through contract
with the Department of Corrections,
Department of Community Punishment,
or with any city or county jail, engages
in sexual contact for the purpose of
sexual gratification with any person in
the custody of the Department of
Corrections or the Department of
Community Punishment or within any
city or county jail, the consent of the
person in custody notwithstanding.

5-14-109(b):
Sexual abuse in the
first degree is a Class
C felony.

§5-14-109:
Consent is not a defense.

§5-4-201
(Michie 1987)

Cal. Penal Code
§289.6
(West 1999 and
Supp. 2001)

§289.6
Public entity
employees, officers,
or agents;
sexual activity with
confined consenting
adult; defense;
application; violation;
penalty

§289.6(a)(2): An employee or officer
of a public entity detention facility, or an
employee, officer, or agent of a private
person or entity that provides a
detention facility or staff for a detention
facility, or person or agent of a public or
private entity under contract with a
detention facility, or a volunteer of a
private or public entity detention facility,
who engages in sexual activity with a
consenting adult who is confined in a
detention facility, is guilty of a public
offense. (3) An employee with a dept.,
board or authority under the Youth &
Adult Correctional Agency or a facility
under contract with a dept., board or
authority under the Youth & Adult
Correctional Agency, who during the
course of employment directly provides
treatment, care, control, or supervision

§289.6(g):
Any violation of this
section is a
misdemeanor.

5-4-401(a)(4):
The penalty for a Class
C felony shall be no
less than 3 years nor
more than 10 years
imprisonment; and/or
5-4-201(a)(2):
a fine not to exceed
$10,000.

§19:
The penalty for a
misdemeanor where
not otherwise
prescribed shall be
imprisonment in the
county jail for a term
not to exceed 6
months, and/or a fine
not to exceed $1,000.

§289.6 (e) Consent by a
confined person or parolee to
sexual activity proscribed by this
section is not a defense to a
criminal prosecution for violation
of this section.

§289.6 (f)
This section does not apply to
sexual activity between
consenting adults that occurs
during an overnight conjugal
visit that takes place pursuant
to a court order or with the
written approval of an authorized
representative of the public entity
§289.6(i):
that operates or contracts for the
Any person previously operation of the detention facility
convicted of a violation where the conjugal visit takes
of this section shall,
place.

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American University Washington College of Law

Penalties

provide services with the state
department of corrections or a private
prison facility.

§5-4-401
(Michie 1987 and
Supp. 1999)

California

Coverage

38

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
State

Statute

Title

of inmates, wards or parolees, and who
engages in sexual activity with a
consenting adult who is an inmate,
ward or parolee, is guilty of a public
offense.
§289.6(i): Any person previously
convicted of a violation of this section
shall, upon a subsequent violation be
guilty of a felony.

Definitions/Notes

Penalties
upon a subsequent
violation, be guilty of a
felony.
§18:
The penalty for a felony
where not otherwise
prescribed shall be
imprisonment for a term
of 16 months, 2 years,
or 3 years.

American University Washington College of Law

§289.6(h): Any violation of this section
shall be punished by imprisonment not
exceeding one year and/or by fine not
exceeding $10,000.
Colorado

Colo. Rev. Stat.
§18-3-404
(West 2000)
§18-7-701

§18-3-404
Unlawful Sexual
Contact

§18-3-404: Unlawful Sexual Contact.
(1) Any actor who knowingly subjects a
victim to any sexual contact commits
unlawful sexual contact if: (f) the victim
is in custody of law or detained in a
hospital or other institution and the
actor has supervisory or disciplinary
authority over the victim and uses this
position of authority, unless incident to
a lawful search, to coerce the victim to
submit.
§18-7-701: Sexual conduct in penal
institutions. (1) An employee of a
correctional facility or jail who engages
in sexual conduct with a person who is
in lawful custody and confinement in a
correctional facility operated by or
under contract with the department of
corrections or in a county or municipal
jail commits: (a) A class 6 felony if the
sexual conduct consists solely of sexual

§18-3-404(2):
Unlawful Sexual
Contact is a class 1
misdemeanor, but it is
a class 4 felony if the
actor compels the
victim to submit by use
of such force,
intimidation or threat.

Defenses

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California
(Continued)

Coverage

§18-1-105(V)(A):
The penalty for a class
4 felony shall be
imprisonment for a term
ranging from 2–6 years
with a 3 year
mandatory period of
parole and/or
§18-1-105(III)(A):
a fine ranging from
$2,000 to $500,000.
39

State

Statute

Title

Colorado
(Continued)

Definitions/Notes

Penalties

contact; (b) A class 5 felony if the
sexual conduct includes sexual intrusion
or sexual penetration. (2) For purposes
of this section, “sexual conduct” means
sexual contact as defined in section
18-3-401(4), sexual intrusion as
defined in section 18-3-401 (5), or
sexual penetration as defined in section
18-3-401(6). “Sexual conduct” does
not include acts of an employee of a
correctional facility or jail or a person
who has custody of another person that
are performed to carry out the
necessary duties of the employee or
the person with custody.
Conn. Gen. Stat.
Ann. §53a-71
(West 1994 and
Supp. 2001)
(Repealed and
Replaced by 2000
Conn. Legis. Serv.
P.A. 00-61, H.B.
5882, West)
Conn. Gen. Stat
Ann. §53a-73a
(West 1994 and
Supp. 2001)

§53a-71
Sexual assault in
the second degree:
Class C felony:
Nine months not
suspendable
§53a-73a
Sexual assault in
the fourth degree:
Class A
misdemeanor

§53a-71: Sexual assault in the second
degree: (a) A person is guilty of sexual
assault in the second degree when
such person engages in sexual
intercourse with another person and (5)
such other person is in custody of law
or detained in a hospital or other
institution and the actor has supervisory
or disciplinary authority over such other
person.
§53a-73a: Sexual assault in the fourth
degree: (a) A person is guilty of sexual
assault in the fourth degree when: (1)
Such person intentionally subjects
another person to sexual contact who
is (E) in custody of law or detained in a
hospital or other institution and the
actor has supervisory or disciplinary
authority over such other person.

§53a-71(b):
Sexual assault in the
second degree is a
class C felony for which
9 months of the
sentence imposed may
not be suspended or
reduced by the court.
§53a-35a(6):
The penalty for a class
C felony shall be
imprisonment for a term
not less than 1 year nor
more than 10 years.
§53a-73a(b):
Sexual assault in the
fourth degree is a class
A misdemeanor.
§53a-36:
The penalty for a class

Defenses

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American University Washington College of Law

Connecticut

Coverage

40

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
State

Statute

Title

Coverage

Definitions/Notes

Delaware

Defenses

A misdemeanor shall
be imprisonment for a
term not to exceed 1
year.
De. Code Ann. tit.
11, §1259
(Michie 1995 and
Supp. 2000)

§1259
Sexual relations
in detention
facility; Class
G felony

American University Washington College of Law

§4205
(Michie 1995 and
Supp. 2000)

§1259: Sexual Relations in detention
facility; Class G felony: A person is
guilty of sexual relations in a detention
facility when, being a person in custody
at a detention facility or being an
employee working at a detention
facility, the person engages in sexual
intercourse or deviate sexual
intercourse on the premises of a
detention facility.

NOTE: The statute
also makes it illegal
for a prisoner to
engage in sexual
relations with an
employee at the
detention facility.

§1259:
§1259:
Violation of this section It shall be no defense that such
shall be a class G
conduct was consensual.
felony.
4205(b)(7):
The penalty for a class
G felony shall be
imprisonment at Level
V for a term not to
exceed 2 years, and
4205(k):
The penalty may
include fines and
penalties as the court
deems appropriate.

District of
Columbia

D.C. Code Ann.
§22-4101
§22-4101 (1981 Definitions
and Supp. 1999)
§22-4113
D.C. Code Ann.
First degree sexual
§22-4113 (1981 abuse of a ward
and Supp. 1999)
§22-4114
D.C. Code Ann.
Second degree
§22-4114 (1981) sexual abuse of a
ward
D.C. Code Ann.
§22-4117
§22-4117
Defenses to sexual
(Supp. 1999)
abuse of a ward,
patient, or client

§22-4113: Whoever engages in a
sexual act with another person or
causes another person to engage in or
submit to a sexual act when that other
person: (1) Is in official custody, or is a
ward or resident, on a permanent or
temporary basis, of a hospital,
treatment facility, or other institution:
and (2) Is under the supervisory or
disciplinary authority of the actor.

§22-4113:
The penalty for first
degree sexual abuse of
a ward (2): shall be
imprisonment for a term
not to exceed 10 years,
and may include a fine
not to exceed
$100,000.
§22-4114:
The penalty for second
degree sexual abuse of
a ward (2): shall be
imprisonment for a term
not to exceed 5 years

§22-4117(a):
Consent is not a defense, to
either first or second degree
sexual abuse of a ward; (b)
Marriage between the defendant
and the victim at the time of the
offense is a defense to both first
and second degree sexual abuse
of a ward, which the defendant
must prove by a preponderance
of the evidence.

41

§22-4101:
Definitions: For the
purposes of this
chapter: (6) “Official
custody” means: (A)
Detention following
arrest for an offense;
following surrender in
lieu of an arrest for an
offense; following a
charge or conviction
§22-4114: Whoever engages in sexual of an offense, or an
contact with another person or causes allegation or finding
another person to engage in or submit of juvenile
to sexual contact when that other
delinquency; following
person: (1) Is in official custody, or is a commitment as a

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Connecticut
(Continued)

Penalties

State

Statute

Title

District of
Columbia
(Continued)

Florida

§775.082
(Harrison’s 1991
and Supp. 2000)
§775.083
(Harrison’s 1991
and Supp. 2000)
§944.35(3)(b)(1)
(Harrison’s 1991
and Supp. 2000)

Authorized use of
Force; malicious
battery & sexual
misconduct
prohibited; reporting
required; penalties
§944.35(3)(b)(2)

Definitions/Notes

Penalties

resident, on a permanent or temporary
ward or basis, of a hospital, treatment
facility, or other institution; and (2) Is
under the supervisory or disciplinary
authority of the actor.

material witness;
following or pending
civil commitment
proceedings, or
pending extradition,
deportation, or
exclusion.

and may include a fine
not to exceed
$50,000.

§944.35(3)(b)(2): Any employee of the
department who engages in sexual
misconduct with an inmate or an
offender supervised by the department
in the community, without committing
the crime of sexual battery, commits a
felony of the third degree.

§944.35(3)(b)(1):
Sexual Misconduct
means the oral, anal,
or vaginal penetration
by, or union with, the
sexual organ of
another or the anal or
vaginal penetration of
§944.35(4)(a): Any employee required another by any other
to report pursuant to this section who object. Does not
knowingly or willfully fails to do so, or
include an act done
who knowingly or willfully prevents
for a bona fide
another person from doing so, commits medical exam or an
a misdemeanor of the first degree.
internal search lawfully
conducted.
§944.35(4)(b): Any person who
knowingly or willfully submits inaccurate, §944.35(40(c):
incomplete, or untruthful information
to take effect October
with regard to reports required in their 1, 2001 in addition to
section commits a misdemeanor of the §951.221 sexual
first degree.
activity between
detention facility
§944.35(4)(c): Any person who
employees and
knowingly or willfully coerces or
inmates; penalties: (2)
threatens any other person with the
Notwithstanding
intent to alter either testimony or a
prosecution, any
written report regarding the incident of violation of this
sexual misconduct commits a felony in section, as determined
the third degree. As part of the
by the administrator
correctional-officer training program,
of the facility,
the Criminal Justice Standards and
constitutes sufficient

§775.082(3)(d):
Sexual misconduct is a
felony in the third
degree. The penalty for
a felony in the third
degree shall be:
imprisonment for a
term not to exceed 5
years and/or payment
of a fine; dismissal from
employment; and
prohibition from
employment in any
capacity in connection
with the correctional
system.
§775.082(4)(a):
Failure to report is a
misdemeanor of the
first degree. The penalty
for a misdemeanor of
the first degree shall be
imprisonment for a term
not to exceed 1 year
and/or payment of a
fine.
§775.082(7):
The penalty may also
include dismissal from

Defenses

§944.35(3)(b)(3):
Consent is not a defense.
§944.35(3)(b)(4):
Ignorance that inmate is an
inmate or under the supervision
by the Department of Corrections
is a defense.
§944.35(3)(b)(4):
Marriage is a defense.

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Fla. Stat. Ann.
§944.35
(Harrison’s 1998)

Coverage

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Statute

Title

Definitions/Notes

Penalties

Training Commission shall develop
course materials for inclusion in the
appropriate required course specifically
designed to explain the parameters of
this subsection and to teach sexual
assault identification and prevention
methods and techniques.

cause for dismissal of
the violator from
employment, and
such person may not
again be employed in
any capacity in
connection with the
correctional system.

employment or any
other civil penalty.

Defenses

§775.083(1)(c):
The fine for a felony in
the third degree is
$5,000.

American University Washington College of Law

§775.083(1)(d):
The fine for a
misdemeanor in the
first degree is $1,000.
Georgia

Ga. Code Ann.
§16-6-5.1
(Lexis 1999)

§16-6-5.1
Sexual assault
against persons in
custody; sexual
assault against
person detained or
patient in hospital or
other institution;
sexual assault by
practitioner of
psychotherapy
against patient

§16-6-5.1(b): A probation or parole
officer or other custodian or supervisor
of another person referred to in this
Code section commits sexual assault
when he engages in sexual contact with
another person who is a probationer or
parolee under the supervision of said
probation or parole officer or who is in
the custody of law or who is enrolled in
a school or who is detained in or is a
patient in a hospital or other institution
and such actor has supervisory or
disciplinary authority over such other
person.

§16-6-5.1(a):
As used in this Code
section, the term: (4)
“Sexual Contact”
means any contact
for the purpose of
sexual gratification of
the actor with the
intimate parts of a
person not married to
the actor.

§16-6-5.1(b):
The penalty for sexual
assault shall be
imprisonment for a term
not less than 1 year nor
more than 3 years.

§16-6-5.1(c)(3):
Consent of the victim is not a
defense.
The definition of “sexual contact”
in §16-6-5.1(a)(4) excludes
contact between married
persons.

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Florida
(Continued)

Coverage

(c) A person commits sexual assault
when such person has supervisory or
disciplinary authority over another
person and such person engages in
sexual contact with that other person
who is: (A) In the custody of law; or (B)
Detained in or is a patient in a hospital
or other institution.
43

Statute

Title

Hawaii

Haw. Rev. Stat.
Ann. §707-731
(Michie 1999)

§707-731
§707-731: Sexual assault in the
Sexual assault in the second degree: (1) A person commits
second degree
the offense of sexual assault in the
second degree if: (c) the person, while
§707-732
employed in a state correctional facility,
Sexual assault in the or while employed as a law
third degree
enforcement officer, knowingly subjects
to sexual penetration an imprisoned
person, a person confined to a
detention facility, or a person in custody.

Haw. Rev. Stat.
Ann. §707-732
(Michie 1999)

Coverage

Definitions/Notes

Penalties

Defenses

§707-731(2):
Sexual assault in the
second degree is a
class B felony.
§707-732(2):
Sexual assault in the
third degree is a class
C felony.

American University Washington College of Law

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§706-660:
(1) The penalty for a
class B felony shall be
imprisonment for a term
of 10 years. The
penalty for a class C
felony shall be
imprisonment for a term
of 5 years. (2) The
minimum length of
imprisonment shall be
determined by the
paroling authority.

§707-732: Sexual assault in the third
degree: (1) A person commits the
offense of sexual assault in the third
degree if: (d) the person, while
employed in a state correctional facility,
knowingly subjects to sexual contact an
imprisoned person or causes such
person to have sexual contact with the
actor.

Idaho

Idaho Code
§18-6110
(Michie 1997 &
2000 Supp.)

§18-6110
Sexual contact with
a prisoner

§18-6110: Sexual contact with a
prisoner. It is a felony for any officer,
employee or agent of a state, local or
private correctional facility to have
sexual contact with a prisoner, whether
an in-state or out-of-state prisoner,
housed in such facility.

§18-6110:
For the purposes of
this section “sexual
contact” means
sexual intercourse,
genital-genital, oralgenital, anal-genital or
oral-anal, between
persons of the same
or opposite sex.

§18-6110:
The penalty for sexual
contact with an inmate
shall be imprisonment
in the state prison for a
term not to exceed life.

Illinois

720 I.L.C.S.
5/11-9.2
(West 1993 and
2000 Supp.)

§11-9.2
Custodial Sexual
Misconduct

§11-9.2 (a) A person commits the
offense of custodial sexual misconduct
when he or she is an employee of a
penal system and engages in sexual

§11-9.2(g)(1):
“Custody” means: (i)
pretrial incarceration
or detention; (ii)

§11-9.2(c):
Custodial sexual
misconduct is a Class
3 felony.

§11-9.2(e):
Consent is not a defense to a
criminal charge under this
section.

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State

Statute

Title

conduct or sexual penetration with a
person who is in the custody of that
penal system.

incarceration or
detention under a
A Class 3 felony carries
sentence or
a penalty of 2–5 years.
commitment to a
State or local penal
institution; (3)
“Employee” means:
(i) an employee of any
governmental agency
of this State or any
county or municipal
corporation that has
by statute, ordinance,
or court order the
responsibility for the
care, control, or
supervision of pretrial
or sentenced persons
in a penal system; (4)
“Sexual conduct” or
“sexual penetration”
means any act of
sexual conduct or
sexual penetration as
defined in Section
12-12 of this Code.

American University Washington College of Law

Definitions/Notes

Indiana

Ind. Stat. Ann.
§35-44-1-5
(Lexis 1998 and
Supp. 2000)

§35-44-1-5
Sexual misconduct
by a service provider
with detainee

§35-44-1-5: Sec. 5(b) A service
provider who knowingly or intentionally
engages in sexual intercourse or
deviate sexual conduct with a person
who is subject to lawful detention
commits sexual misconduct, a Class D
felony.

Penalties

§11-9.2(f)(1):
Marriage is a defense if the
marriage occurred prior to the
date of custody.
§11-9.2(f)(2):
Lack of knowledge that the
individual with whom the
employee was engaged in
custodial sexual misconduct was
a prisoner is a defense.

§35-44-1-5(c):
It is not a defense that an act
described in subsection (b) was
consensual.
(d) Marriage is a defense.

45

§35-44-1-5: Sec. 5(a): §35-44-1-5(b):
As used in this
Sexual misconduct is a
section, “service
class D felony.
provider” means a
public servant or other §35-50-2-7(a):
person employed by The penalty for a Class
a governmental entity D felony is
or another person who imprisonment for 11⁄2
provides goods or
years and may also
services to a person include a fine not to
who is subject to
exceed $10,000.
lawful detention.

Defenses

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Illinois
(Continued)

Coverage

Statute

Title

Coverage

Definitions/Notes

Penalties

Iowa

I.C.A. §709.16
(West 1993 and
2001 Supp.)

§709.16
Sexual misconduct
with offenders and
juveniles

§709.16: Sexual misconduct with
offenders and juveniles: (1) An officer,
employee, contractor, vendor, volunteer
or agent of the department of
corrections or agent of a judicial district
department of correctional services,
who engages in a sex act with an
individual committed to the custody of
the department of corrections or a
judicial district department of
correctional services commits an
aggravated misdemeanor.

§709.16(2)
For purposes of this
subsection, a “juvenile
placement facility”
means (c) juvenile
detention and juvenile
shelter care homes.

§709.16
Sexual misconduct with
offenders is an
aggravated
misdemeanor.

I.C.A. §903.1
(West 1993 and
2001 Supp.)

American University Washington College of Law

(2) An officer, employee, contractor,
vendor, volunteer, or agent of a juvenile
placement facility who engages in a sex
act with a juvenile placed at such
facility commits an aggravated
misdemeanor.
Kansas

K.S.A. §21-3520
(West 2001)

§21-3520
Unlawful sexual
relations

§21-3520: Unlawful sexual relations:
(a) Unlawful sexual relations is engaging
in consensual sexual intercourse, lewd
fondling or touching, or sodomy with a
person who is not married to the
offender if: (1) The offender is an
employee of the department of
corrections or the employee of a
contractor providing services in a
correctional institution and the person
with whom the offender is engaging in
consensual sexual intercourse, lewd
fondling or touching, or sodomy is a
person 16 years of age or older who is
an inmate; or (2) the offender is a
parole officer and the inmate has been
released on parole or conditional
release or post-release supervision
under direct supervision and control of

Defenses

§903.1(2)
The penalty for an
aggravated
misdemeanor shall be
imprisonment for a term
not to exceed 2 years
and a fine ranging
between $500 and
$5,000.

§21-3520(c)
Unlawful sexual
relations is a severity
level 10 felony.
§21-4704(a)
The penalty for a
severity level 10 person
felony shall be
imprisonment for a term
between 8 and 13
months depending on
offender’s criminal
history.

§21-3520(a):
Marriage is a defense.
§21-3520(a):
Consent is not a defense.

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State

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Statute

Title

American University Washington College of Law

Kentucky

Definitions/Notes

Penalties

Defenses

§510.120(2):
Sexual abuse in the
second degree is a
Class A misdemeanor.

§510.120:
Marriage is a defense.

the offender; or (3) the offender is a
law enforcement officer, jail employee,
or employee of a contractor and the
person is 16 or older under lawful
confinement; or (4) the offender is a
law enforcement officer, employee of a
juvenile detention facility, or employee
of a contractor; or (5) the offender is an
employee of the juvenile justice
authority or the employee of a
contractor; or (6) the offender is an
employee of the juvenile justice
authority or employee of a contractor,
and the person is 16 or older and (A)
on conditional release from a juvenile
correctional facility under direct
supervision and control of the offender
or (B) placed in custody of juvenile
justice authority under direct supervision
and control of the offender.
K.R.S. §510.120
(Lexis 2000)
§532.090

§510.120
Sexual abuse in the
second degree

§532.090:
Sentence of
Imprisonment for
misdemeanor: (1) For
a Class A misdemeanor,
the term shall not
exceed 12 months.

47

§510.120: Sexual abuse in the second
degree: (1) A person is guilty of sexual
abuse in the second degree when: (c)
Being an employee, contractor, vendor,
or volunteer of the Department of
Corrections, or a detention facility as
defined in KRS 520.010, or of an
entity under contract with either the
department or a detention facility for
the custody, supervision, evaluation, or
treatment of offenders, he subjects an
offender who is incarcerated,
supervised, evaluated, or treated by the
Department of Corrections, the
detention facility, or the contracting
entity, to sexual contact. In any
prosecution under this paragraph, the
defendant may prove in exculpation

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Kansas
(Continued)

Coverage

State

Statute

Title

Kentucky
(Continued)

Coverage

Definitions/Notes

Penalties

48

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
Defenses

that, at the time he engaged in the
conduct constituting the offense, he
and the offender were married to each
other. (2) Sexual abuse in the second
degree is a Class A misdemeanor.
La. Rev. Stat. Ann.
§134.1
(West 1986 and
Supp. 2000)

§134.1
Malfeasance in
office; sexual
conduct prohibited
with persons
confined in
correctional
institutions.

Maine

Me. Rev. Stat. Ann. §253
tit. 17-A,
Gross sexual
assault
§253
(West 1983 and
Supp. 1999)

§134.1: Malfeasance in office; sexual
conduct prohibited with persons
confined in correctional institutions.
(A) It shall be unlawful and constitute
malfeasance in office for any person
who is a law enforcement officer, officer
of the Department of Corrections, or
employee of a prison, jail, or
correctional institution, to engage in
sexual intercourse or any other sexual
conduct with a person confined in a
prison, jail or correctional institution.
§253(2): A person is guilty of gross
sexual assault if that person engages in
a sexual act with another person and:
(E) The other person, not the actor’s
spouse, is in official custody as a
probationer or a parolee, or is detained
in a hospital, prison or other institution,
and the actor has supervisory or
disciplinary authority over the other
person; (F) The other person, not the
actor’s spouse, is not yet 18 and is a
student enrolled in a private or public
elementary, secondary or special
education school, facility or institution
and the actor is a teacher, employee or
other official having instructional,
supervisory or disciplinary authority over
the student; (G) The other person, not
the actor’s spouse, is not yet 18 and is
a resident in or attending a children’s

§134.1.B:
Penalty for a violation
of a provision of this
section shall be
imprisonment for a term
not to exceed 10 years
and/or a fine not to
exceed $10,000.

“Mental health
therapy” means
psychotherapy or
other treatment
intended to change
behavior, emotions or
attitudes, which
therapy is based upon
an intimate
relationship involving
trust and dependency
with a substantial
potential for
vulnerability and
abuse.

§253(5):
Violation of
subsection 2,
paragraph E or H is a
Class B crime.
§253(5):
Violation of subsection
2, paragraphs F, G, I or
J is a Class C crime.
§1252(2)(B):
The penalty for a Class
B crime shall be
imprisonment for a term
not to exceed 10 years.
(C) The penalty for a
Class C crime shall be
imprisonment for a term
not to exceed 5 years.

§253(2)(E):
Marriage is a defense.

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Louisiana

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
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Statute

Title

Penalties

§464G(a)(2)(i):
A correctional
employee is defined
as a correctional
officer, (ii) a head or
deputy head of a

§464G(c):
A person who violates
this section is guilty of
a misdemeanor and is
subject to a fine of not

home, day care facility, residential child
care facility, drug treatment center,
camp or similar school, facility or
institution regularly providing care or
services for children, and the actor is a
teacher, employee or other person
having instructional, supervisory or
disciplinary authority over the person;
(H) The other person is not yet 18 and
the actor is a parent, stepparent, foster
parent, guardian or other similar person
responsible for the long-term care and
welfare of that other person; (I) The
actor is a psychiatrist, psychologist or
licensed social worker or purports to be
to the other person and the other
person, not the actor’s spouse, is a
patient or client for mental health
therapy of the actor; or (J) The actor
owns, operates or is an employee of an
organization, program or residence that
is operated, administered, licensed or
funded by the Dept. of Mental Health,
Mental Retardation and Substance
Abuse Services or the Dept. of Human
Services and the other person, not the
actor’s spouse, receives services from
the organization, program or residence
and the organization, program or
residence recognizes that person as a
person with mental retardation.

American University Washington College of Law

Maryland

Definitions/Notes

Md. Code Ast. 27 §464G
§464G
Sexual acts with
(Michie 1996 and inmates prohibited
Supp. 2000)

§464G: Sexual acts with inmates
prohibited. (b) Prohibition of sexual acts
by correctional employee or employee
of Department of Juvenile Justice (1)
A correctional employee may not
engage in vaginal intercourse or a

Defenses

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Maine
(Continued)

Coverage

49

State

Statute

Title

Maryland
(Continued)

Michigan

§21A
Officer or other
employee of penal
or correctional
institution; sexual
relations with inmate;
punishment

Michigan Statutes §750.520(c)
Ann. §750.520(c) Second degree
(West 2001)
criminal sexual
conduct
2000 Mi. ALS 227

Definitions/Notes

Penalties

sexual act with an inmate. (2) An
employee of the Dept. of Juvenile
Justice or of a licensee may not
engage in vaginal intercourse or a
sexual act with an individual confined in
a child care institution licensed by the
Dept. of Juvenile Justice, a detention
center for juveniles, or a facility for
juveniles listed in Article 83C,
§2-117(a)(2) of the Code.

correctional facility or
any person
having an equivalent
title who is appointed
or employed to
supervise a
correctional facility. (3)
an inmate is a person
incarcerated in a state
or local correctional
facility or a community
adult rehabilitation
center.

more than $3,000
and/or imprisonment
for not more than 3
years.

§21A: An officer or other person who
is employed by or contracts with any
penal or correctional institution in the
commonwealth, and who, in the course
of such employment or contract or as a
result thereof, engages in sexual
relations with an inmate confined
therein, within or outside such
institution, or an inmate who is
otherwise under the direct custodial
supervision and control of such officer
or other person.

“Sexual relations”
includes intentional,
inappropriate contact
of a sexual nature,
including, but not
limited to conduct
prohibited by section
22 or 24 of chapter
265 or section 2, 3,
35 or 53A of chapter
272.

§21A:
Consent is not a defense.
A person who violates
this section shall be
punished by
imprisonment for not
more than five years in
a state prison or by a
fine of $10,000 or
both.

§750.520(c)(1) : A person is guilty of
criminal sexual conduct in the second
degree if he or she engages in sexual
contact with another person and if any
of the following circumstances exist: (g)
The actor knows or has reason to
know that the person is mentally
incapable, mentally incapacitated, or
physically helpless. (i) That the other
person is under jurisdiction of the dept
of corrections and the actor is an
employee or a contractual employee of,

§750.520(c)(2):
Criminal sexual conduct
in the second degree
is felony punishable by
imprisonment for not
more than 15 years.

Defenses

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Massachusetts M.G.L.A. 268
§21A
(West 2000)

Coverage

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Title

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Minnesota

Definitions/Notes

Penalties

Defenses

§609.344 (2):
Penalty: A person
convicted under
subdivision 1 may be
sentenced to
imprisonment for not
more than ten years
or to a payment of a
fine not more than
$20,000 or both.

§609.344 (1)(m):
Consent by the
complainant is not a
defense.

or volunteer with, the dept. of
corrections who knows that the other
person is under the jurisdiction of the
dept. of corrections. (j) that other person
is under the jurisdiction of the
dept. of corrections and the actors
is an employee or a contractual
employee of, or a volunteer with, a
private vendor that operates a youth
correctional facility, who knows that the
other person is under the jurisdiction of
the department of corrections. (k) That
other person is a prisoner or
probationer under the jurisdiction of a
county for purposes of imprisonment or
a work program or other probationary
program and the actor is an employee
or a contractual employee of or a
volunteer with the county who knows
that the other person is under the
county’s jurisdiction.
MN ST §609.345 §609.344: Sex
MN LEGIS 210
Crimes
§22 (2001)
(West)

§609.344 (1): A person who engages in
sexual penetration with another person is
guilty of criminal sexual conduct in the
third degree if any of the following
circumstances exist: (m) the actor is an
employee, independent contractor, or
volunteer of a state, county, city, or
privately operated adult or juvenile
correctional system, including but not
limited to, jails, prisons, detention
centers, or work release faclilties, and
the complainant is a resident of a facility
or under supervision of the correctional
system.

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Michigan
(Continued)

Coverage

51

Statute

Title

Coverage

Definitions/Notes

Penalties

Mississippi

Miss. Code Ann.
§97-3-104
(Lexis Supp.
August, 1999)

§97-3-104
Sex between law
enforcement official
and jailed inmate

§97-3-104: It shall be unlawful for any
jailer, guard, employee of the
Department of Corrections, sheriff,
constable, marshal or other officer to
engage in any sexual penetration as
defined in Section 97-3-97, Mississippi
code of 1972, with any offender, with
or without the offender’s consent, who
is incarcerated at any jail or any state,
county or private correctional facility.

§97-3-97:
Sexual battery,
definitions: (a) Sexual
penetration includes
cunnilingus, fellatio,
buggery, or pederasty,
any penetration of the
genital or anal
openings of another
person’s body by any
part of a person’s
body, and insertion of
any object into the
genital or anal
openings of another
person’s body.

§97-3-104 Section 1: §97-3-104:
Any person who
Consent is not a defense.
violates this section
shall be guilty of a
felony and upon
conviction shall be fined
not more than $5,000
and/or imprisoned for a
term not to exceed 5
years.

Missouri

Mo. Ann. Stat.
§217.405
(West 1996 &
Supp. 2000)

§217.405
Offender abuse;
penalty; employees
not to use physical
force, exceptions

§217.405: Offender abuse, penalty
employees not to use physical force,
exceptions: (1) Except as provided in
subsection 3 of this section, a person
commits the crime of “offender abuse”
if he knowingly injures the physical
well-being of any offender under the
jurisdiction of the department by
beating, striking, wounding or by sexual
contact with such person. (3) No
employee of the department shall use
any physical force on an offender
except the employee shall have the
right to use such physical force as is
necessary to defend himself, suppress
an individual or group revolt or
insurrection, enforce discipline or to
secure the offender.

§217.410:
Employees of the
department are
required to report
reasonable belief of
abuse.

§217.405.2:
Offender abuse is a
class C felony.

Mo. Ann. Stat.
§217.410
(West 1996 &
Supp. 2000)

§217.410
Abuse of offender,
duty to report;
penalty;
confidentiality of
report, immunity
from liability,
harassment
prohibited

§217.410: Abuse of offender, duty to
report, penalty — confidentiality of
report, immunity from liability. (1) When

§217.410.3:
Any person required by
subsection 1 of this
section to report or
cause a report to be
made, but who fails to
do so within a
reasonable time after
the act of abuse or
neglect is guilty of a
class A misdemeanor.
§558.011.1(3):
The penalty for a class
C felony shall be
imprisonment for a term
not to exceed 7 years.

Defenses

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Statute

Title

Definitions/Notes

Penalties

any employee of the department has
reasonable cause to believe that an
offender in a correctional center
operated or funded by the department
has been abused, he shall immediately
report it in writing to the director. … (5)
The department shall begin its
investigation within 24 hours of
receiving a report. (10) No offender or
employee shall be retaliated against for
reporting or providing information.

§558.011.1(5):
The penalty for a class
A misdemeanor shall
be imprisonment for a
term not to exceed 1
year.

Defenses

American University Washington College of Law

Montana

Mont. Co. Ann.
§45-5-502
(West 1999)

§45-5-502
Sexual assault

§45-5-502(5)(a): Any employee or
volunteer at a correctional facility with
supervisory or disciplinary authority
over inmates who has sexual contact
with an adult or juvenile inmate
commits the offense of sexual assault.

§45-5-502(2):
Consent is not a defense.
A person convicted of
sexual assault shall be The act is part of a lawful search.
fined up to $500 and/
or imprisoned for up to
6 months.

Nebraska

R.R.S. Neb.
§28-322.02
(West 1995 &
Supp. 1999)

§28-322.02
Sexual abuse of an
inmate or parolee
in the first degree

§28-322.02: Any person who subjects
an inmate or parolee to sexual
penetration is guilty of sexual abuse of
an inmate or parolee in the first degree.
Sexual abuse of an inmate or parolee in
the first degree is a Class III felony.

§28-322.02:
Sexual abuse of an
inmate or parolee in the
first degree is a Class III
felony.
§28-105:
The sentence for a
Class III felony is a term
of 1 to 20 years
imprisonment and/or a
$25,000 fine.

Nevada

Nev. Rev. Stat.
§212.187
(NRS 1997)
(Effective until
July, 2001)

§212.187
Voluntary sexual
conduct between
prisoner and another
person

§212.187(2):
As used in this
section, sexual
conduct includes acts
of masturbation,
homosexuality, sexual
intercourse or physical

Violation of
§212.187(2) is a
category D felony.
§193.130(2)(d):
A category D felony is
a felony for which a

§212.187(1):
NOTE: Unlike many laws in other
states, this law addresses
sexual conduct between
prisoners and gives a “duty
defense” to correctional officers:
A person who voluntarily engages

53

§212.187(1): A prisoner who is in
lawful custody or confinement, other
than in the custody of the division of
parole and probation of the department
of motor vehicles and public safety or
residential confinement, and who
voluntarily engages in sexual conduct

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(Continued)

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State

Statute

Title

Nevada
(Continued)

Penalties

Defenses

contact with another
person’s clothed or
unclothed genitals or
(2) A person who voluntarily engages in pubic area to arouse,
sexual conduct with a prisoner who is in appeal to or gratify
lawful custody or confinement, other
the sexual desires of
than residential confinement, is guilty of a person.
a category D felony.

court shall sentence a
convicted person to
imprisonment in the
state prison for a
minimum term not less
than 1 year and a
maximum term of not
more than 4 years. In
addition to any other
penalty, the court may
impose a fine of not
more than $5,000
unless a greater fine is
authorized or required
by statute.

in sexual conduct with a prisoner
… is guilty of a Class D felony.

§632-A:2 A person is guilty of the
felony of aggravated felonious sexual
assault if he engages in sexual
penetration with another person under
any of the following circumstances: (n)
When the actor is in a position of
authority over the victim and uses this
authority to coerce the victim to submit
under any of the following
circumstances: (1) When the actor has
supervisory authority over the victim by
virtue of the victim being incarcerated
in a correctional institution or juvenile
detention facility; (2) When a probation
or parole officer has supervisory
authority over the victim while the
victim is on parole or probation or
under juvenile probation.

§632-A:(3)::
Violation of §632-A:2
is a class B felony.

Consent is not a defense.

with another person is guilty of a
category D felony.

N.H. Rev. Stat.
Ann. §§632-A:
(2),(3)
(Michie 1996 and
Lexis Supp. 1999)

§632-A:2
Aggravated
Felonious Sexual
Assault
§632-A:3
Felonious Sexual
Assault

Consent of the victim ... (n) shall not be
considered a defense.

Definitions/Notes

§625:9::
The penalty for a class
B felony is
imprisonment of 1–7
years and fines.

§212.187(3)(b):
This law excludes acts performed
to carry out the necessary duties
of such a person.

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Hampshire

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Statute

Title

Coverage

New Jersey

N.J. Stat. Ann.
§2C: 14-2
(West 1995 and
Supp. 2000)

§2C:14-2
Sexual assault

§2C:14-2.a: An actor is guilty of
aggravated sexual assault if he commits
an act of sexual penetration with
another person under any one of the
following circumstances: 2 — the
person is at least 13 but less than 16
and (b) the actor has supervisory or
disciplinary power over the person by
virtue of the actor’s legal, professional
or occupational status. 14-2.c: An actor
is guilty of sexual assault if he commits
an act of sexual penetration with
another person under any one of the
following circumstances: (2) The victim
is on probation or parole, or is detained
in a hospital, prison or other institution
and the actor has supervisory or
disciplinary power over the victim by
virtue of the actor’s legal, professional
or occupational status.

New Mexico N.M. Stat. Ann.
§30-9-11
§30-9-11
Criminal sexual
(Michie 1978 and penetration.
Supp. 1999)

§30-9-11: Criminal sexual penetration.
D. Criminal sexual penetration in the
second degree consists of all criminal
sexual penetration perpetrated: (1) on a
child thirteen to eighteen years of age
when the perpetrator is in a position of
authority over the child and uses this
authority to coerce the child to submit;
(2) on an inmate confined in a
correctional facility or jail when the
perpetrator is in a position of authority
over the inmate.

Definitions/Notes

Penalties
§2C:14-2b:
Aggravated sexual
assault is a crime of the
first degree.
§2C:14-2c:
Sexual assault is a
crime of the second
degree.
§2C:43-6a(1):
The penalty for a crime
of the first degree shall
be imprisonment for a
term of between 10
and 20 years.
§2C:43-6a(2):
The penalty for a crime
of the second degree
shall be imprisonment
for a term of between
5 and 10 years.
§30-9-11.D:
Criminal sexual
penetration in the
second degree is a
second degree felony.

Defenses

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State

§31-18-15.A.(3):
The penalty for a
second degree felony
shall be imprisonment
for a term of 9 years
and E.(3): may include
a fine of up to $10,000.
55

Title

Coverage

Definitions/Notes

Penalties

New York

N.Y. Penal Law
§130.05
(West 1998 and
Supp. 2000)

§130.05
Sex offenses

§130.05: Whether or not specifically
stated, it is an element of every offense
defined in this article … that the sexual
act was committed without consent of
the victim: (3) A person is deemed
incapable of consent when he or she is:
(e) committed to the care and custody
of the state department of correctional
services or a hospital; or (f) committed
to the care and custody of a local
correctional facility.

§130.05(3)(e)(i):
Covers employees of
the state department
of correctional
services who perform
professional duties in
a state correctional
facility consisting of
providing custody,
medical or mental
health services,
counseling services,
educational programs
or vocational training
for inmates.

Violation of this section §130.05(3)(e):
is either a class E felony Consent is not a defense.
or a class A
misdemeanor,
Marriage is a defense.
depending on the
nature and severity of
the assault.

§130.05(3)(ii),(iii):
Also covers
employees of the
division of parole and
office of mental health
who perform
professional duties
and provide
professional services
in a state correctional
facility.

Defenses

§70.02(3)(d):
For a class E felony,
the term shall be fixed
by the court, and shall
range from 11⁄2 to 4
years.
§70.15(1):
A sentence of
imprisonment for a
class A misdemeanor
shall … be fixed by the
court, and shall not
exceed one year.

2001 NY S.B. 5313:
pending legislation
adding a new section
130.54 re: gang
sexual assault.
North
Carolina

N.C. Gen. Stat.
§14-27.7
(Lexis 1999)

§14-27.7
Intercourse and
sexual offenses with
certain victims;
consent no defense.

§14-27.7(a): Intercourse and sexual
offenses with certain victims; consent
no defense: … in a person having
custody of a victim of any age or a
person who is an agent or employee of

CASE NOTE:
Custodial sexual
offense does not
require act by force
against the will of

§14-27.7:
A violation of this
section is a class E
felony.

§14-27.7:
Consent is not a defense to a
charge under this section.

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Statute

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Title

American University Washington College of Law

North
Dakota

N.D. Cent. Code
§12.1-20-06
(Michie 1997)

§12.1-20-06
Sexual abuse of
wards

N.D. Cent. Code
§12.1-20-07
§12.1-20-07
Sexual assault
(Michie 1997 and
Supp. 1999)

Definitions/Notes

Penalties

any person, or institution, whether such
institution is private, charitable, or
governmental; having custody of a
victim of any age engages in vaginal
intercourse or a sexual act with such
victim, the defendant is guilty of a
Class E felony.

another person. It
requires that the
perpetrator’s principal
or employer, have
custody of the victim.

§15A-1340.17:
The penalty for a class
E felony shall be a fine
at the discretion of the
court and imprisonment
for a term between 20
and 59 years
depending on the
amount and kind of
prior offenses.

§12.1-20-06: A person who engages
in a sexual act with another person or
any person who causes another to
engage in a sexual act is guilty of a
class C felony if the other person is in
official custody or detained in a hospital,
prison, or other institution and the actor
has supervisory or disciplinary authority
over the other person.
§12.1-20-07(1): A person who
knowingly has sexual contact with
another, or who causes another person
to have sexual contact with that person
is guilty of an offense if: (d) The other
person is in official custody or detained
in a hospital, prison, or other institution
and the actor has supervisory or
disciplinary authority over that other
person.

Ohio

Ohio Rev.
§2907.03
Code Ann.
Sexual battery
§2907.03
(Page’s 1998 and
Supp. 1999)

§12.1-20-06:
Sexual abuse of wards
is a class C felony.
§12.1-20-07(2):
Sexual assault is a class
C felony.
§12.1-32-01(5):
The penalty for a class
C felony shall be
imprisonment for a
maximum of 5 years
and/or a fine of
$5,000.

§2907.03(B):
Sexual battery is a
felony of the third
degree.
§2929.14(A)(3):
The penalty for a felony

§2907.03(A):
Marriage is not a defense.

57

§2907.03: Sexual battery: (A) No
person shall engage in sexual conduct
with another, not the spouse of the
offender, when any of the following
apply: (6) The other person is in
custody of law or a patient in a hospital
or other institution, and the offender has

State v. Raines,
319 N.C. 358, 354
S.E. 2d 486 (1987)

Defenses

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(Continued)

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State

Statute

Title

Ohio
(Continued)

Oklahoma

§1111
Rape Defined
§1111
Rape in the first
degree — second
degree

Definitions/Notes

Penalties

supervisory or disciplinary authority over
the other person.

of the third degree shall
be imprisonment for a
term of between 1 and
5 years.

§1111: Rape defined: A. Rape is an
act of sexual intercourse involving
vaginal or anal penetration
accomplished with a male or female
who is not the spouse of
the perpetrator and who may be of the
same or the opposite sex as the
perpetrator under any of the following
circumstances: 7. Where the victim is
under the legal custody of a state
agency and engages in sexual
intercourse with a state employee or
employee of a contractor of the state
that exercises authority over the victim.

§1114.B:
§1111(A):
Violation of this section Marriage is a defense.
is rape in the second
degree.
§1116
Rape in the second
degree is a felony. And
punishable with
imprisonment for a
term of 1–15 years.

No Legislation a

Pennsylvania PA Title 18
§3124.2
(Supp. 2000)

§3124.2
Institutional sexual
assault

Defenses

§3124.2: (A) Except as provided in
Sections 3121 (Relating to Rape),
3122.1 (Relating to Statutory Sexual
Assault), 3123 (Relating to Involuntary
Deviate Sexual intercourse), 3124.1
(relating to Sexual Assault) and 3125
(Relating to Aggravated Indecent
Assault), A person who is an employee
or agent of the Department of
Corrections or a county corrections
authority, state or a county correctional
authority, youth development center,
youth forestry camp, State or county
juvenile detention facility, other licensed
residential facility serving children and
youth, or mental health or mental

§3124.2:(b)
As used in this
section, the term
“agent” means a
person who is
assigned to work in a
State or county
correctional or juvenile
detention facility, a
youth development
center, youth forestry
camp, other licensed
residential facility
serving children and
youth or mental health
or mental retardation

§106(B)(4):
The penalty for a felony
of the third degree shall
be imprisonment for a
term up to 7 years.

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Oregon

Okla. Stat. Ann.
tit. 21, §1111
(West 1983 and
Supp. 2000)

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Title

retardation facility or institution commits
a felony of the third degree when that
person engages in sexual intercourse,
deviate sexual intercourse, or indecent
contact with an inmate, detainee,
patient or resident.

facility or institution
who is employed by
any state or county
agency or any person
employed by an entity
providing contract
services to the
agency.

§11-25-24
Correctional
employees —
sexual relations with
inmates — felony

§11-25-24: Correctional employees —
sexual relations with inmates — felony.
Every employee of the department of
corrections or the employee of a
contractor who is under contract to
provide services in a correctional
institution who engages in sexual
penetration as defined in §11-37-1 in
chapter 37 of this title entitled “Sexual
Assault” with an inmate confined therein
or who is otherwise under the direct
custodial supervision and control of said
employee shall be guilty of a felony.

§11-37-1(8):
“Sexual penetration”
includes: sexual
intercourse,
cunnilingus, fellatio,
and anal intercourse,
or any other intrusion,
however slight, by any
part of a person’s
body or by any object
into the genitals or
anal openings of
another person’s body
or the victim’s own
body upon the
accused’s instruction,
but emission of
semen is not required.

§11-25-24:
Violation of this section
is a felony, the penalty
for which shall be
imprisonment for not
more than 5 years and/
or a fine of not more
than $10,000.

§44-23-1150
Illegal sexual
intercourse: Sexual
intercourse with a
patient or trainee

§44-23-1150: (B) An actor is guilty of
sexual misconduct when the actor,
knowing that the victim is an inmate,
offender, or patient voluntarily engages
with the victim in an act of sexual
intercourse, whether vaginal, oral or
anal, or other sexual contact for the
purpose of sexual gratification.

§44-23-1150:(A)(1):
‘Actor’ means an
employee, volunteer,
agent, or contractor
of a public entity that
has statutory or
contractual
responsibility for
inmates or patients
§44-23-1150: (D): A person who
confined in a prison,
knowingly or willfully submits inaccurate jail, or mental health

§44-23-1150:(c)(1):
When the sexual
misconduct involves an
act of sexual
intercourse, whether
vaginal, oral or anal, the
actor is guilty of the
felony of sexual
misconduct first degree
and, upon conviction,
must be imprisoned for

Pennsylvania
(Continued)

American University Washington College of Law

Rhode Island R.I. Gen. Laws
§11-25-24
(Lexis and
Supp. 1999)
§11-37-1
(Lexis 1994)

South
Carolina

S.C. Code Ann.
§44-23-1150
(1985 and
Supp. 1999)

Penalties

Defenses

§44-23-1150:(A)(2):
A victim is not capable of
providing consent for sexual
intercourse or sexual contact with
an actor.

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State
South
Carolina
(Continued)

Statute

Title

Definitions/Notes

Penalties

or untruthful information concerning
sexual misconduct as defined in this
section is guilty of the misdemeanor of
falsely reporting sexual misconduct and,
upon conviction, must be imprisoned
for not more than one year. (E) A
person who has knowledge of sexual
misconduct who has received
information in the person’s professional
capacity and fails to report it to the
appropriate law enforcement authority,
or a person who threatens or attempts
to intimidate a witness is guilty of a
misdemeanor and upon conviction,
must be imprisoned for not more than
six months, or both.

facility, or who is an
offender on parole,
probation, or other
community
supervision programs.
(2) ‘Victim’ means an
inmate or patient who
is confined in or
lawfully or unlawfully
absent from a prison,
jail, or mental health
facility, or who is an
offender on parole,
probation, or other
community
supervision programs.
A victim is not
capable of providing
consent for sexual
intercourse or sexual
contact with an actor.

not more than ten years.
(2) When the sexual
misconduct does not
involve sexual
intercourse but involves
other sexual contact
which is engaged in for
sexual gratification, the
actor is guilty of the
felony of sexual
misconduct second
degree and, upon
conviction, must be
imprisoned for not
more than five years.

§44-23-1150(C)(2):
The term sexual
contact, as used in
this subsection, refers
to an intrusion of any
part of a person’s
body or of any object
into the ‘intimate
parts,’ as defined in
Section 16-3-651(d),
of another person’s
body, or to the
fondling of the
intimate parts of
another person’s
body, which is done
in a manner not

Defenses

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Title

Coverage

South
Dakota
American University Washington College of Law

Tennessee

Penalties

required by
professional duties,
but instead is done to
demonstrate affection,
sexually stimulate that
person or another
person, or harass that
person.
S.D. Codified Laws
Ann. §24-1-26.1
(Lexis 1998 and
Supp. 2000)

§41-21-241
(Lexis 1998 and
Supp. 2000)

§24-1-26.1
Sexual acts
prohibited between
prison employees
and prisoners

§41-21-241
Sexual contact
with inmates

§24-1-26.1: Sexual acts prohibited
between prison employees and
prisoners. Any person, employed by the
state, or employed within any state
prison or other detention facility, who
knowingly engages in an act of sexual
penetration with another person who is
in detention and under the custodial,
supervisory, or disciplinary authority of
the person so engaging, is guilty of a
Class 6 felony.

§41-21-241(a): It is an offense for a
law enforcement officer or a
correctional officer to voluntarily engage
in sexual contact or sexual penetration
… with an inmate who is in custody at
a penal institution.

§24-1-26.1:
The violation of this
section is a Class 6
felony.
§22-6-1:
The penalty for a Class
6 felony shall be
imprisonment in the
state penitentiary for
a term of 2 years and/
or a fine of $2,000.
§39-16-601(2),(4):
“Custody” means
under arrest by a law
enforcement officer or
under restraint by a
public servant
pursuant to an order
of a court; “Penal
institution” …
includes any institution
or facility used to
house or detain
a person.

§41-21-241(b):
A violation of this
section is a Class A
misdemeanor. The
authorized term of
imprisonment and fine
for a Class A
misdemeanor are not
greater than 11 months
29 days imprisonment
or a fine not to exceed
$2,500 or both.

Defenses

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Definitions/Notes

61

Statute

Title

Coverage

Definitions/Notes

Penalties

Texas

Tex. Penal Code
Ann. §39.04
(West 1994 and
Supp. 2000)

§39.04
Violations of the Civil
Rights of Person in
Custody; Improper
Sexual Activity with
person in custody

§39.04(a): An official or employee of a
correctional facility or a peace officer
commits an offense if he intentionally:
(2) engages in sexual contact, sexual
intercourse or deviate sexual
intercourse with an individual in custody.

§39.04(e):
In this section: (1)
“Custody” means the
detention, arrest, or
confinement of an
adult offender or the
detention or the
commitment to a
facility operated by or
under contract with
the TX Youth
Commission of a
juvenile offender.

§39.04(b):
An offense under
Sections (a)(2) is a
state jail felony.

(2) “Sexual
Intercourse” and
“deviate intercourse”
have the meanings
assigned by Section
21.01.
Utah

UT ST §76-5-412
2001 UT S.B. 4
(SN) (West 2001)
This act takes
effect on July 1,
2001.

§76-5-412
Custodial sexual
relations: Custodial
sexual misconduct:
Definitions Penalties
Defenses.

§76-5-412 (2) (a): An actor commits
custodial sexual relations and (ii)(A) the
actor knows that the individual is a
person in custody; or (B) a reasonable
person in the actor’s position should
have known under the circumstances
that the individual was a person in
custody.

76-5-412(1):
As used in this
section: (b) “Person
in custody” means a
person, either an
adult 18 years of age
or older, or a minor
younger than 18
years of age, who is:
(3) Acts referred to in Subsection (2)(a) (i) a prisoner, as
are: (a) having sexual intercourse with a defined in Section
person in custody; (b) engaging in any 76-5-101, and
sexual act a person in custody involving includes a prisoner
the genitals of one person and the
who is in the custody
mouth or anus of another person,
of the Department of
regardless of the sex of either
Corrections created
participant; or (c) causing the
under Section ,
penetration, however slight, of the
64-13-2 but who is

Defenses

§12.35:
The penalty for a state
jail felony is 180 days
to 2 years in the state
jail and/or a fine not to
exceed $10,000.
§12.42:
Additional penalties may
apply depending on
prior offense history.

§76-5-412(b):
A violation of
Subsection (4)(a) is a
class A misdemeanor,
but if the person in
custody is younger than
18 years of age, a
violation of Subsection
(4)(a) is a third degree
felony

§76-5-412 (7)(a):
It is not a defense to the
commission of the offense of
custodial sexual relations under
Subsection (2) or custodial
sexual misconduct under
Subsection (4), or an attempt to
commit either of these offenses,
if the person in custody is
younger than 18 years of age,
that the actor (i) mistakenly
(b) A violation of
believed the person in custody to
Subsection (2)(a) is a be 18 years of age or older at
third degree felony, but the time of the alleged offense;
if the person in custody or (ii) was unaware of the true
is younger than 18
age of the person in custody.
years of age, a violation
of Subsection (2)(a) is (b) Consent of the person in

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

American University Washington College of Law

State

62

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
State

Statute

Title

Penalties

genital or anal opening of a person in
custody by any foreign object,
substance, instrument, or device,
including a part of the human body,
with the intent to cause substantial
emotional or bodily pain to any person,
regardless of the sex of any participant.

being housed at the
Utah State Hospital
established under
Section 62A-12-201
or other medical
facility; (ii) under
correctional
supervision, such as
at a work release
facility or as a parolee
or probationer; or (iii)
under lawful or
unlawful arrest, either
with or without a
warrant.

a second degree felony. custody is not a defense to any
violation or attempted violation
§76-6-106:
of Subsection (2) or (4).
Fines of persons (1) A
person convicted of an (8) It is a defense that the
offense may be
commission by the actor of an
sentenced to pay a fine, act under Subsection (2) or (4) is
not exceeding: (a)
the result of compulsion, as the
$10,000 for a felony defense is described in
conviction of the first
Subsection 76-2-302(1).
degree or second
degree; (b) $5,000 for
a felony conviction of
the third degree; (c)
$2,500 for a class A
misdemeanor
conviction.

American University Washington College of Law

Definitions/Notes

(c) “Private provider
or contractor” means
any person or entity
that contracts with the
Department of
Corrections or with a
county jail to provide
services or functions
that are part of the
operation of the
Department of
Corrections or a
county jail under state
or local law.
Vermont

Bill introduced in
Vermont [pending
legislation]

§3256
Sexual Exploitation
of an inmate

(b) A person who
violates subsection (a)
of this section shall be
imprisoned for not
more than two years or
fined not more than
$10,000.00, or both.
63

§3256: Sexual Exploitation of an
Inmate (a) No correctional officer
employee, contractor or other person
providing services to offenders on
behalf of the department of corrections
or pursuant to a court order or in
accordance with a condition of
probation, supervised community
sentence or furlough shall knowingly

Defenses

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Utah
(Continued)

Coverage

State

Statute

Title

Vermont
(Continued)

Virginia

Coverage

Definitions/Notes

Penalties

64

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
Defenses

engage in a sexual act with a person
who is in the custody of or confinement
by the department of corrections or
who is being supervised by the
department of corrections while on
parole, probation, supervised
community sentence or furlough.
§18.2-64.2
Carnal knowledge
of an inmate,
parolee, probationer,
or pretrial or posttrial offender; penalty

An accused shall be guilty of carnal
knowledge of an inmate, parolee,
detainee, probationer, or pretrial or posttrial offender if he or she is an
employee or contractual employee of,
or a volunteer with a state or local
correctional facility or regional jail, the
Department of Corrections, the
Department of Juvenile Justice, a
secure facility or detention home, a
local community correction program or
a pretrial program; is in a position of
authority over the inmate, probationer,
parolee, detainee or a pretrial or posttrial offender; knows that the inmate,
probationer, parolee, detainee or pretrial
or post-trial offender is under the
jurisdiction of the state or local
correctional facility, a regional jail, the
Department of Corrections, the
Department of Juvenile Justice, a
secure facility or detention home, a
local community corrections program,
or a pretrial program; and carnally
knows without the use of force, threat
or intimidations (i) an inmate who has
been committed to jail or convicted and
sentenced to confinement in a state or
local correctional facility or regional jail
or (ii) a probationer, parolee, detainee or

Such offense is a Class
6 felony.
§18.2-10(f):
The penalty for a Class
6 felony is
imprisonment for 1–5
years if tried by a jury
or up to 12 months if
tried by the court and/
or a fine not to exceed
$2,500.

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

American University Washington College of Law

Code of VA
§18.2-64.2
(Code of VA 1950)
(Michie 2000)

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
State

Statute

American University Washington College of Law

Washington

Coverage

Definitions/Notes

Penalties

Defenses

§9A.44(3):
Custodial sexual
misconduct in the first
degree is a class C
felony.

§9A.44(2):
Consent of the victim is not a
defense.

a pretrial or post-trial offender under the
jurisdiction of the department of
corrections, the Department of Juvenile
Justice, a secure facility or detention
home, a local community corrections
program, a pretrial program, a local or
regional jail for the purposes of
imprisonment, a work program or any
other parole/probationary or pretrial
program.
Rev. Code of
WA Ann.
§9A.44.160, 170
(West 2000
Supp.)

§9A.44.160: A person is guilty of
custodial sexual misconduct in the first
degree when the person has sexual
intercourse with another person; (a)(i)
Who is a resident of a state, county, or
city adult or juvenile correctional facility,
including but not limited to jails, prisons,
detention centers, or work release
facilities, or (ii) who is under correctional
supervision; and the perpetrator is an
employee or contract personnel of a
correctional agency and the perpetrator
has, or the resident reasonably believes
the perpetrator has, the ability to
influence the terms,conditions, length
or fact of incarceration or correctional
supervision; or (b) who is being
detained, under arrest or in the custody
of a law enforcement officer and the
perpetrator is a law enforcement
officer.
§9A.44.170: A person is guilty of
custodial misconduct in the second
degree when the person has sexual
contact with another person [when in
same circumstances as above].

§9A.20.020(1)(c):
The penalty for a class
C felony is
imprisonment for no
more than 5 years and/
or a fine of no more
than $20,000.
§9A.44(3):
Custodial sexual
misconduct in the
second degree is a
gross misdemeanor.

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Virginia
(Continued)

Title

§9A.20.020(2):
The penalty for a gross
misdemeanor is
imprisonment for up to
1 year and/or a fine of
up to $5,000.
65

Statute

Title

Coverage

West
Virginia

WV Stat. Ann.
§61-8B-10
(Lexis 2000
Supp.)

§61-8B-10
Imposition of sexual
intercourse or sexual
intrusion on
incarcerated
persons; penalties

§61-8B-10(a): Any person, employed
by the division of corrections, working
at a correctional facility managed by the
commissioner of corrections pursuant
to contract or as an employee of a
state agency, working at a correctional
facility managed by the division of
juvenile services pursuant to contract or
as an employee of a state agency,
employed by a county jail or by the
regional jail and correctional facility
authority or a county jail who engages
in sexual intercourse or sexual intrusion
with a person who is incarcerated is
guilty of a felony.

Definitions/Notes

Penalties
§61-8B-10(a):
Upon conviction thereof,
the employee shall be
sentenced to one to
five years or fined up to
$5,000.
§61-8B-10(b):
Upon conviction thereof,
the employee shall be
sentenced to one to
five years or fined up to
$5,000.

§61-8B-10(a): Any person employed
by the division of corrections as a
parole officer or as a probation officer
who engages in sexual intercourse or
sexual intrusion with someone he/she is
charged with supervising is guilty of a
felony.
Wisconsin

Wis. Stat. Ann.
§940.29
(1999)

§940.29
Abuse of residents
of penal facilities

§940.29: Any person in charge of or
employed in a penal or correctional
institution or other place of confinement
who abuses, neglects or ill-treats any
person confined in or a resident of any
such institution or place or who
knowingly permits another person to
do so is guilty of a Class E felony.

Defenses

§940.29:
The abuse of residents
of penal facilities is a
Class E felony.
§939.50(3)(e):
The penalty for a Class
E felony shall be
imprisonment for a term
not to exceed 5 years
and/or a fine not to
exceed $10,000.

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

American University Washington College of Law

State

66

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)
Statute

Title

Wyoming

Wyo. Stat.
§6-2-303
(Supp. 1999)

§6-2-303
§6-2-303: Sexual Assault in the
Sexual assault in the second degree. (a) Any actor who
second degree.
inflicts sexual intrusion on a victim
commits sexual assault in the second
degree if, under circumstances not
constituting assault in the first degree:
(vi) the actor is in a position of authority
over the victim and uses this position of
authority to cause the victim to submit.

Wyo. Stat.
§6-2-306
(1988 and
Supp. 2000)

Coverage

American University Washington College of Law

United
States

18 U.S.C. §2241
(West, Westlaw
through P.L. 105220, approved
8/7/98)

§2241
Aggravated sexual
abuse
§2242
Sexual abuse

Penalties

§6-2-301(a)(vi):
Position of authority
means that position
occupied by a parent,
guardian, relative,
household member,
teacher, employer,
custodian or any other
person who, by
reason of his position,
is able to exercise
significant influence
over a person.
Scadden v. Wyoming,
732 P.2d 1036,
1039 (Wyo. 1987).
In Scadden, the
Wyoming Supreme
Court stated that “a
jailer … [has] power
over his prisoner, and
therefore, the jailer is
in a position of
authority over the
prisoner.” Id at 1042.

§6-2-306(a)(ii):
Sexual assault in the
2nd degree is a felony
punishable by
imprisonment for not
more than 20 years.

Specifically covers conduct in federal
prisons.

For offenders with 0
to 1 prior offenses:

§2241: (a) Whoever, in the special
maritime and territorial jurisdiction of
the United States or in a Federal prison,
knowingly causes another person to
engage in a sexual act (1) by using
force, (2) threats, (b)(1)rendering the
other unconscious, or (2)administering
drugs. (c) With children. Whoever, in the
special maritime and territorial
jurisdiction of the U.S. or in a Federal
prison, knowingly engages in a sexual

U.S.S.G. §2A3.1(a)
The base penalty for
sexual abuse shall be
imprisonment for a term

Defenses

§2243:
Sexual abuse of a minor or ward.
(c)(2): In a prosecution under this
U.S.S.G. §2A3.1(b)(1) section, it is a defense, which the
The base penalty for
defendant must establish by a
aggravated sexual
preponderance of the evidence,
abuse shall be
that the persons engaging in the
imprisonment for a term sexual act were at that time
of 108–135 months. married to each other.

67

18 U.S.C. §2242
(West, Westlaw
§2243
through P.L. 105- Sexual abuse of a
220, approved
minor or ward
8/7/98)
§2244
18 U.S.C. §2243 Abusive sexual
(West, Westlaw
contact

Definitions/Notes

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

State

State

Statute

United
States
(Continued)

through P.L. 105220, approved
§2246
8/7/98)
Definitions for
chapter
18 U.S.C. §2244
(West, Westlaw
through P.L. 105220, approved
8/7/98)

Coverage
act under the circumstances described
in subsections (a) and (b) with another
person who has attained the age of 12
but not 16 (and is at least 4 years
younger than the person so engaging),
or attempts to do so, shall be fined
under this title, imprisoned for any term
of years or life or both.
§2242: Covers engaging in a sexual act
in federal prison with someone who is
incapable of appraising the nature of
the conduct or is physically incapable
of declining participation.
§2243: Sexual abuse of a minor or
ward. (b) Whoever, in the special
maritime and territorial jurisdiction of
the United States or in a Federal prison,
knowingly engages in a sexual act with
another person who is (1) In official
detention; and (2) under the custodial,
supervisory, or disciplinary authority of
the person so engaging; or attempts to
do so, shall be fined under this title,
imprisoned not more than one year, or
both.

Definitions/Notes

Penalties

Defenses

of 70–87 months.
U.S.S.G. §2A3.2(a)
The base penalty for
sexual abuse of a
minor shall be
imprisonment for a term
of 18–24 months.
U.S.S.G. §2A3.3(a):
The base penalty for
sexual abuse of a ward
shall be imprisonment
for a term of 4–10
months.
U.S.S.G. §2A3.4(a)(3):
The base penalty for
abusive sexual contact
shall be imprisonment
for a term of 6–27
months depending on
the circumstances.

§2244: Abusive sexual conduct is
sexual conduct in circumstances where
sexual acts are punished under this
chapter, if the sexual contact, had it
been a sexual act, would have violated
§2241, §2242, or §2243.
a In

states that have no specific legislation criminalizing the sexual abuse of prisoners, correctional officers may be prosecuted under the state’s existing sexual assault and rape statutes.
Under these laws, consent is a defense to criminal liability. However, many experts believe and courts have decided that the inherent disparity in power between prisoners and correctional employees renders valid consent impossible in the prison context. Also experts believe that from a management and public policy perspective, sanctioning consensual sex between
correctional employees and prisoners severely compromises legitimate correctional goals such as prison security, inmate management and rehabilitation.

an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

American University Washington College of Law

18 U.S.C. §2246
(West, Westlaw
through P.L. 105220, approved
8/7/98)

Title

68

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners (Continued)

✃

An
End to Silence:
Prisoners’ Handbook on Identifying
and Addressing Sexual Misconduct
Second Edition

Washington College of Law
American University
4801 Massachusetts Avenue, NW
Washington, DC 20016
202/274-4182

S

exual harassment and sexual misconduct against incarcerated persons violates either the law
or corrections policy in all 50 states. Incarcerated men and women who experience verbal or physical
harassment, assault or misconduct have the right to remedy the abuse. Corrections institutions
should also remedy this conduct because sexual misconduct threatens both personal and institutional
security. This publication provides critical information and strategies to address this problem. This
publication is designed for incarcerated peoples and others concerned about sexual misconduct in
correctional institutions.
An End to Silence: Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct is the
2nd edition of a 1998 publication, which originally focused on women. Four years later it is clear that
sexual abuse in intutitutional settings affects both men and women.

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an end to silence prisoners’ handbook on identifying and addressing sexual misconduct

Notes

American University Washington College of Law

✃

An
End to Silence:
Prisoners’ Handbook on Identifying
and Addressing Sexual Misconduct

Reader Survey
We invite your response to the following questions about the value of this publication. Your answers will assist
in the development of educational materials to address this problem.

Did this handbook answer your basic questions about sexual harassment and sexual misconduct in prison?
❏ Yes ❏ No
If no, what other questions did you have?

❏ Yes

Do you think the handbook explained the issues clearly?

❏ No

Based on the information you learned from this handbook, if you or someone you know became a victim of
sexual misconduct or sexual assault, would you know what steps to take to address the situation?
❏ Yes ❏ No

❏ Yes

Would you feel comfortable in taking those steps?

❏ No

What did you like most about this handbook?

What, if any, suggestions do you have for improving the handbook?

How did you receive the handbook?

❏ distributed by corrections department
❏ mailed from Washington College of Law
❏ other

❏ from an attorney
❏ from a friend

❏ Internet or Website

How would you rate the overall effectiveness of this handbook?
(5 = Very effective; 1 = not effective) 5 4 3 2 1
How will you use the information you obtained in the handbook?

I am a(n):

❏ incarcerated person; ❏ corrections staff person; ❏ corrections administrator; ❏ lawyer;
❏ advocate; ❏ appointed or elected official; ❏ other (please specify)

Name (optional)

Would you like additional information about this issue?
Thank you.

Address

❏ Yes ❏ No Date:

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Washington College of Law
American University
Prof. Brenda V. Smith
4801 Massachusetts Avenue, N.W.
Washington, DC 20016