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THE

Prisoners' Rights Project
199 Water Street
New York, NY 10038
T (2 12) 577-3530
F (2 12) 509-8433
www.legal-aid.org

·= ~~ LEGAL
:'::11 AID

::::1SOCIETY

Blaine (Fin) Y. Fogg
President
Seymour W. James, Jr.
Attorney-in-Chief

September 11 , 2017

Justine M. Luongo
Attorney-in-Charge
Criminal Defense Practice

Mary Lynne Werlwas
Project Director
Prisoners' Rights Project

Dear Members ofthe Board of Correction:
The Prisoners' Rights Project of the Legal Aid Society strongly urges the Board of
Correction ("Board" or " BOC") to deny the request for a variance from the Standards to
Eliminate Sexual Abuse and Sexual Harassment in Correctional Facilities ("Standards")
submitted by the New York City Department of Correction ("Department" or "DOC ') on
September 8, 2017.
The Department seeks a variance from two related Standards. The first, § 5-17(f)(g), requires the Department to reassess a person in custody' s risk of victimization or for
abusiveness within thirty days of admission to a facility or following an incident. The
second, Standard § 5-18, requires the Department to use screening information in making
housing, bed, work, education and program assignments. But very importantly, this
standard also requires the Department to make individualized decisions on how to ensure
the safety of each inmate, using the information obtained at screening and giving serious
consideration to a person's own views on where he or she can safely be housed. Further, it
explicitly prohibits the Department from assigning a transgender or intersex inmate to a
men' s or women's facility based solely on their external genital anatomy. Notably, the
Department's variance request completely ignores any reference to these latter
requirements, apart from quoting their text in a footnote,
The Department's stated need to move from a paper to a computer-based screening
program in no manner justifies their request to violate these Standards. These standards are
critical to the protection of individuals from sexual abuse and can-and must- be readily
implemented.
Compliance with These Standards Is Pivotal to Ensuring People's Safety
The foundation for preventing rape and sexual assault in custody is meaningful use
of screening data to house incarcerated people based on their risk of sexual assault, and for
their potential for abusiveness. The Standards require that screening be conducted at intake
and again within thirty days of a person's arrival at a facility, and following an incident of
abuse. Standard § 5-17. They further obligate the Department to give serious consideration

September 11,2017
Page 2

to a transgender or intersex person's own belief about where they can be safely housed, and
prohibit the Department from relying solely on their external genitalia in coming to a
housing decision. Standard § 5-18. In promulgating Standard § 5-18 the Board carefully
crafted a balanced approach to safety in housing, requiring a case-by-case assessment of
whether the placement would insure the transgender or intersex inmate's health and safety
balanced against whether such a placement would present a management or security
problem.
The Department attempts to justify its failures to comply with the Standards, and
request for a variance, by saying it needs to build a so-called "centralized, automated and
system solution" to complete the thirty-day review. Even if it were true that the
Department could not conduct the 30-day screenings in any other way-and we see no
evidence of that--it does not explain the Department's failure to conduct meaningful intake
screenings or to make individualized assessments regarding housing for the small number
of trans gender and intersex people in custody, neither of which are occurring.
A stark example is the plight of a trans gender woman we reported on at the last
BOC meeting. She is almost 60 years old, petite in stature, and presents in a traditionally
feminine marmer. She has long hair that she wears in a ponytail and is demure and soft
spoken. She has lived as a woman for approximately forty years and her court papers and
rap sheet identify her as female. She has never been charged with, let alone been convicted
of a crime of violence, and has no history of disciplinary infractions when in custody for the
larcenies she has committed to support her addiction. She is the paradigm of a person at
risk of sexual abuse, as screening would identify, and needs to be housed and programmed
appropriately to ensure her safety. But no such screening occurred when she was admitted
to DOC custody, despite the requirements of Standard § 5-17. Instead, although DOC staff
initially intended to send her to the Rose M. Singer Center ("RMSC"), when they found out
she was a transgender woman, she was not allowed to go there. Based solely on an external
examination of her genital anatomy by medical staff, she was sent to a male jail and placed
in general population where she was harassed, threatened, stared at and was at imminent
risk of assault But for our administrative intervention which resulted in her being moved to
the Trans gender Housing Unit ("THU"), horrific consequences would likely have resulted.
The purpose of both the admission and follow-up screening of Standard § 5-17 (f) is
to ensure that DOC identifies such people who, like this person, are suffering a continued
risk of sexual harassment and abuse. Their safety should not depend upon the fortuity of
them finding Legal Aid or other advocates to catch DOC's mistakes, If initial screening per
Standard§ 5-17(a)-(e) had been conducted-which requires an assessment of age, size,
history of non-violence, history of victimization among other criteria-there is no rational
way that this person would have been assigned to a general population dormitory with men.
And had there been compliance with Standard§ 5-18's requirements regarding an
individualized housing assessment, from which DOC also seeks a variance, this individual
would have said that she believed she would be safer at RMSC, and absolutely nothing in
her background would have indicated that she presented a management or security problem.
Instead these Standards were ignored and based solely on her external anatomy she was

September 11,2017
Page 3

forced to endure humiliation and harassment while housed in a men's facility in general
population.
This person is not alone, but she is lucky in that she was not assaulted before she
was moved to the THU. We hear from far too many people, including many transgender
individuals not housed in the THU, who allege they were sexually abused by staff or other
incarcerated people. And DOC knows these allegations too. According to the statistics
released by the Department, the numbers of allegations of sexual abuse and harassment
have increased a shocking amount. In CY 2015 there were 57 allegations of inmate-inmate
abuse, and 131 allegations of staff sexual abuse. In CY 2016 the numbers had dramatically
increased with 155 allegations of inmate-inmate abuse and 321 allegations of staff sexual
abuse. 1 It would be complete folly to respond to this crisis by suspending the very
standards that, if followed, would prevent such violence.
DOC Has Had More than Enough Time to Comply With These Standards
In their variance request, DOC says that they need additional time so that they can
optimize compliance, and we certainly want DOC to implement an effective screening tool.
But the fact is that DOC has been on notice for years that they were expected to comply
with these requirements. The language in Standards §§ 5-17(f)-(g) and 5-18 is essentially
the same as that contained in the National PREA Standards promulgated in 2012. See 28
C.F.R. Part 115. 2 And when the Public Advocate requested the institution ofrulemaking in
2015, she made proposals that are almost identical with the Standards the Department now
says it needs more time to meet. Since there is no bona fide operational reason for delay,
we believe the Board should not grant a variance and allow the Department any further
delay before requiring compliance with its Standards, and certainly not a delay of six
months.
The Board Should Condemn DOC's Reluctance to Protect Transgender and Intersex
Persons in Its Custody
To be blunt, we believe that DOC's explanation for its lack of compliance with
Standard § 5-18 is pure pretext. We think that it is an open question whether the
Department's reluctance to comply with the Standard' s requirements regarding the housing
of transgender and intersex inmates is based on discriminatory animus.

1Available at:
http://www l .nyc.gov/assetsldoc/downloads/pdf/Report Regarding Sexual Abuse Allegations Incidents CY
16.pdthttp://www l.nyc.gov/assetsldoc/downloadslpdf/Report Regarding Sexual Abuse Allegations Inciden
ts.pdf
2 While the National PREA Standards do not contain the explicit prohibition on housing based on external
genital anatomy, they do require that serious consideration be given to a person's own belief on where he or
she can be safely housed, 28 C.F.R. § 115.42 and guidance issued by DOJ makes clear that an agency cannot
house I 00% of its transgender and intersex population based on genitalia. See PREA Resource Center,
Frequently Asked Questions available at https://www.prearesourcecenter.org/freguently-asked-guestions.

September II, 2017
Page 4

As BOC knows, DOC has repeatedly threatened to shut down the THU, one of the
few safe and successful special units they run. The Department's purported justification for
this proposal is that the THU violates the National PREA Standards. We disagree, since
placement in the Unit is voluntary. Regardless, we have not heard a viable explanation for
why the Department is in such a rush to close it. It is obvious, as made evident by DOC's
request for a variance, that DOC is nowhere near approaching PREA compliance. Yet the
Department has virtually been obsessed with shutting down the THU. 3 Now, DOC wants to
be excused from compliance with the Standards regarding housing transgender prisoners
purportedly because of problems with their rollout of electronic assessments. But this is
just one in a series of misrepresentations and excuses for not complying with this Standard.
First they said at a meeting with advocates that they were complying with this Standard and
had housed a transgender woman at the Rose M. Singer Center. Then at a meeting at which
BOC staff were present they reluctantly admitted that this was not true. Then they said that
they could not house transgender women in a women's facility because of State law. When
we probed, it became obvious that there is no such law. Then they said there is a regulation
that forbids compliance with this Standard. When advocates stated that we could not find
such a regulation and asked to be pointed to it, we were told by DOC that they were going
to look for it and get back to us. They never got back to us. Instead now they claim that
problems in rolling out electronic assessments are the issue, but in six months they will
comply.
There is simply no reason to believe that in six months there will not be yet another
excuse since there is no reason why a need to switch from paper to computers means that
DOC cannot conduct an individualized case-by-case assessment of where a trans gender or
intersex inmate can be housed that is not based solely on external genital anatomy. DOC
apparently just does not want to comply with the Board's Standards. That is willful
noncompliance and BOC should not countenance it.
DOC Is Disregarding Other BOC Standards Intended To Prevent Sexual Abuse
DOC did not seek a variance from other Standards it has yet to meet. Most notably,
the Department is in violation of Standard § 5-40(i), which requires the public posting on
the Department's website of data pertaining to its compliance with many of the other
Standards, the Department's corrective actions, and an assessment by the Department of its
progress in addressing sexual abuse and harassment. The first of these semiannual
assessments was to be completed by August I, 2017, yet no report is posted.
A similar report as well as detailed information on compliance efforts was to be
provided to BOC on August I, 2017. We ask the Board to advise the public whether it has
received the information required to be provided by Standard § 5-40.

'DOC first told the advocates of their plans to close the THU and replace it with special population units over
a year ago, and announced these plans at a public BOC meeting in March. It is impossible to tell from DOC's
variance request whether this is still their plan.

September II , 20I7
Page 5

Without DOC providing this information it is impossible to state with certainty how
widespread DOC ' s non-compliance is. But given the appalling statistics DOC posted on
July I, 20I7, for CY 2016-which indicated that of 32I allegations of staff sexual abuse,
zero were substantiated, and that of I 55 allegations of inmate-inmate sexual abuse only one
was substantiated4- it is obvious that the Board' s requirements for investigations are being
disregarded, including the timeframes within which investigations are to be completed. 5
Conclusion
The Board should not tolerate DOC's willful disregard of its Standards, including
both the Standards set out in the Department's request for a variance but also the Standards
regarding reporting. The Board should deny this variance request, hold a public hearing,
and demand compliance from the Department.

VK y truly yours, _

~

ac{a.

_,

DORI A. LEWIS
Supervising Attorney

4

Available at:
http://www l .nyc.gov/assets/doc/downloads/pdf/Report Regarding Sexual Abuse Allegations Incidents CY
J6.pdthttp://www l .nyc.gov/assets/doc/downloads/pdf/Report Regarding Sexual Abuse Allegations Inciden
ts.pdf
5 Of the hundreds of allegations of abuse lodged in 2016, only about 5% were investigated to any conclusion,
with the rest still "pending" according to information posted on the Board's website after the June 13, 2017
meeting. See "Background on PREA Investigations, June 2017 Board of Correction".