BILL ANALYSIS
AB 550
Page 1
Date of Hearing: April 19, 2005
Counsel: Heather Hopkins
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 550 (Goldberg) - As Amended: April 13, 2005
SUMMARY : Establishes the "Sexual Abuse in Detention Elimination
Act". Specifically, this bill :
1)Makes legislative findings and declarations regarding the
purposes of the Sexual Abuse in Detention Elimination Act.
2)Establishes the Sexual Abuse in Detention Elimination Act
which does the following:
a) Requires the California Department of Corrections (CDC)
and California Department of the Youth Authority (CYA) to
perform background checks on its employees and provides
that no individual convicted of a sexual abuse related
offense, nor any individual who has been fired or has
resigned from a job as a corrections employee following an
allegation of sexual abuse, shall be eligible for
employment in a position that involves inmate or ward
contact.
b) Provides that CDC and CYA shall provide training for
current and future corrections staff members regarding
sexual abuse of inmates and wards.
c) Requires CDC and CYA to provide all inmates and wards
with a handbook describing policies related to sexual
conduct.
d) Provides for practices that shall be instituted to
prevent sexual violence and promote inmate and ward safety
in the CDC and CYA.
e) Provides that CDC and CYA shall ensure its protocols for
responding to sexual abuse include specified requirements
regarding protecting the inmate or ward making the
allegation of sexual abuse.
AB 550
Page 2
f) Provides for thoughtful, confidential standards of
physical and mental healthcare that shall be implemented to
reduce the impact of sexual abuse on inmates and wards in
CDC and CYA.
g) Provides that CDC and CYA shall ensure specified
procedures are performed in the investigation and
prosecution of sexual abuse incidents.
h) Provides that CDC and CYA shall collect specified data
regarding sexual abuse of inmates and wards.
i) Establishes the "Office of the Sexual Abuse in Detention
Elimination Ombudsperson" in state government to ensure the
impartial resolution of inmate and ward sexual abuse
complaints and to comprehensively monitor progress toward
the eradication of this problem. Provides for authorities
and duties for this office.
j) Provides that CDC and CYA shall develop guidelines for
allowing outside organizations and service agencies to
offer resources and provide confidential counseling to
inmates and wards and shall provide information to other
governmental agencies and their staff who may encounter
survivors of sexual abuse in detention to increase their
awareness of and sensitivity to the reality that some of
their clients may have encountered sexual abuse in
detention.
EXISTING LAW establishes the Prison Rape Elimination Act. The
purposes of this Act are to establish a zero-tolerance standard
for the incidence of prison rape in prisons in the United
States; make the prevention of prison rape a top priority in
each prison system; develop and implement national standards for
the detection, prevention, reduction, and punishment of prison
rape; increase the available data and information on the
incidence of prison rape, consequently improving the management
and administration of correctional facilities; standardize the
definitions used for collecting data on the incidence of prison
rape; increase the accountability of prison officials who fail
to detect, prevent, reduce, and punish prison rape; protect the
Eighth Amendment rights of federal, state, and local prisoners;
increase the efficiency and effectiveness of Federal
expenditures through grant programs such as those dealing with
AB 550
Page 3
health care; mental health care; disease prevention; crime
prevention, investigation, and prosecution; prison construction,
maintenance, and operation; race relations; poverty;
unemployment; and homelessness; and reduce the costs that prison
rape imposes on interstate commerce. (42 USC 15601 et seq.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Sexual abuse in
detention is an issue that the Federal Government has recently
addressed with the passage of the Prison Rape Elimination Act
of 2003. Among other provisions of this law, statistics on
the incidence of sexual violence in detention will be
collected on a nationwide basis, and corrections officials
from the best and worst performing states will be required to
testify before a federal panel. California must prepare for
this dramatically increased level of federal scrutiny of its
approach toward addressing sexual abuse in detention.
"The goal of this bill is to raise awareness on the issue of
prisoner rape and to bring to light the fact that this is not
a marginal issue - that rape often occurs against inmates and
wards every year and that our community should pay serious
attention to this issue. It is no secret that prisoner rape
occurs in almost every detention facility at the local, state,
and federal level. While rape within correctional and
detention facilities clearly violates state and federal law,
many institutions tend to look the other way. Prisoner rape
is a basic human rights issue, yet this human right issue is
often clouded by judgment and bias. Many turn a blind eye to
this problem because it occurs within correctional
institutions.
"Sexual abuse in a correctional setting harms inmates and wards
physically and psychologically and undermines the potential
for their successful community reintegration. Any and all
forms of rape cause serious physical and psychological damage.
This can lead to long-term effects such as substance abuse,
self-hatred, depression, post-traumatic stress, rape-trauma
syndrome and even suicide. Rates of HIV and other sexually
transmitted diseases (STDs) are much higher inside of prisons,
yet rape prevention is not a priority. Upwards of 90% of all
inmates will eventually be released. So, in addition to the
AB 550
Page 4
psychological and physical harms that inmates tend to vent
after release, we are also talking about a public health
problem.
"Allowing sexual abuse in detention to remain unaddressed has
numerous legal implications. We need to protect the rights of
inmates and wards to be free from cruel and unusual punishment
as guaranteed by both the California and the United States
Constitution."
2)Sexual Abuse in the Correctional Setting : According to
background provided by the author's office, "Sexual abuse in a
correctional setting harms inmates and wards physically and
psychologically and undermines the potential for their
successful community reintegration. Insufficient research has
been conducted and insufficient data has been reported on the
extent of sexual abuse in detention in the state of
California. However, data collected in other states has led
experts to conservatively estimate that at least 13% of
inmates in the United States have been sexually assaulted in
prison. Many inmates have suffered repeated assaults.
"The CDC has over 300,000 inmates and the CYA has more than
4,000 wards, disproportionately from low-income groups and
marginalized racial and ethnic minorities. In its annual
report on inmate incidents, the CDC breaks down inmate
incidents into categories, including assault/battery,
possession of weapons, drug-related incidents, and other.
Rape, sexual assault, and other abuse of a sexual nature are
not specifically tracked and may be categorized under either
assault/battery or other. The failure of the CDC to
distinguish sexual violence from other forms of inmate
misconduct illustrates a lack of recognition of the uniqueness
of this problem and the particular effects that sexual
violence can have on the victim's physical and mental health.
"In addition to the lack of CDC data about this problem, no
independent research studies have been conducted about sexual
abuse in detention in California. However, data collected in
other states has led experts to conservatively estimate that
at least 13% of inmates in the United States have been
sexually assaulted in prison. Many inmates have suffered
repeated assaults. A study of prisons in four midwestern
states found that approximately one in five male inmates have
experienced a pressured or forced sex incident while
AB 550
Page 5
incarcerated. About one in ten male inmates reported that he
had been raped. For male inmates, the abuse was typically,
though not exclusively, at the hands of other inmates. Other
research conducted in the Midwest found that incarcerated
women were most likely, though not exclusively, to be abused
by male staff members. In one institution, 27% of women
reported a pressured or forced sex incident while
incarcerated, while in another institution, seven percent of
women reported sexual abuse.
"Research has shown that juveniles incarcerated with adults are
five times more likely to report being victims of sexual
assault than youth in juvenile institutions. These youth are
often assaulted within the first 48 hours of incarceration.
Therefore, when California prosecutes juveniles as adults
offenders, the risk of sexual abuse increases.
"Although any person can be a victim of sexual abuse in
detention, victims are typically among the most vulnerable
members of the population in custody. For example, male
victims are often small, young, non-violent, first-time
offenders who are inexperienced in the ways of prison life.
Approximately 75% of newly convicted inmates have never been
convicted of a violent crime. Studies suggest that a typical
rapist in detention chooses a victim on the basis of the
weakness and inability of the victim to defend himself. As
many as 16% of inmates in state prisons and jails suffer from
mental illness, and inmates with mental illness are at
increased risk of sexual victimization. Believing they have
no choice, some inmates 'consent' to sexual acts to avoid
violence. Often, those who live through the experience are
marked as targets for further attacks. Some victims are
treated like the perpetrator's property and forced into
prostitution arrangements with other inmates.
"CDC staff can also be involved in the sexual abuse of inmates
and wards. Their involvement can range from committing sexual
assault to tolerating the activities of sexually predatory
inmates. When male staff members are allowed to watch female
inmates when they are dressing, showering, or using the
toilet, this creates an environment that can lead to verbal
degradation and harassment of inmates. In addition to the
possibility of disease exposure that both male and female
victims experience, female inmates and wards risk being
impregnated as a result of staff sexual misconduct.
AB 550
Page 6
"The response to sexual abuse in detention is often inadequate,
in part because corrections staff have not been adequately
trained to prevent, report, or treat this type of violence.
Knowing that reports of abuse may not be properly handled and
fearing retaliation from the abuser, victims often fail to
report sexual abuse in detention.
"Allowing sexual abuse in detention to remain unaddressed has
numerous legal implications. As a criminal matter, sexual
contact between staff and inmates is prohibited by Penal Code
Section 289.6 and rape is prohibited by Penal Code Section
261. The California Constitution Article 1, Section 24,
guarantees those in detention the right to be free from cruel
and unusual punishment. Sexual abuse in detention is an issue
that the Federal Government has recently addressed with the
passage of the Prison Rape Elimination Act of 2003. Rape in
detention is also a violation of international human rights
law that frequently meets the definition of torture."
3)Prison Rape Elimination Act of 2003 : In 2003, Congress
enacted the Prison Rape Elimination Act. (42 USC 15601 et
seq.) The Act makes the following findings:
a) Insufficient research has been conducted and
insufficient data reported on the extent of prison rape.
However, experts have conservatively estimated that at
least 13% of the inmates in the United States have been
sexually assaulted in prison. Many inmates have suffered
repeated assaults. Under this estimate, nearly 200,000
inmates now incarcerated have been or will be the victims
of prison rape. The total number of inmates who have been
sexually assaulted in the past 20 years likely exceeds one
million.
b) Inmates with mental illness are at increased risk of
sexual victimization. America's jails and prisons house
more mentally ill individuals than all of the nation's
psychiatric hospitals combined. As many as 16% of inmates
in state prisons and jails, and 7% of Federal inmates,
suffer from mental illness.
c) Young, first-time offenders are at increased risk of
sexual victimization. Juveniles are five times more likely
to be sexually assaulted in adult rather than juvenile
AB 550
Page 7
facilities - often within the first 48 hours of
incarceration.
d) Most prison staff are not adequately trained or prepared
to prevent, report, or treat inmate sexual assaults.
e) Prison rape often goes unreported, and inmate victims
often receive inadequate treatment for the severe physical
and psychological effects of sexual assault - if they
receive treatment at all.
f) HIV and AIDS are major public health problems within
America's correctional facilities. In 2000, 25,088 inmates
in federal and state prisons were known to be infected with
HIV/AIDS. In 2000, HIV/AIDS accounted for more than 6% of
all deaths in federal and state prisons. Infection rates
for other STDs, tuberculosis, and Hepatitis B and C are
also far greater for prisoners than for the American
population as a whole. Prison rape undermines the public
health by contributing to the spread of these diseases and
often giving a potential death sentence to its victims.
g) Prison rape endangers the public safety by making
brutalized inmates more likely to commit crimes when they
are released - as 600,000 inmates are each year.
h) The frequently interracial character of prison sexual
assaults significantly exacerbates interracial tensions,
both within prison and, upon release of perpetrators and
victims from prison, in the community at large.
i) Prison rape increases the level of homicides and other
violence against inmates and staff and the risk of
insurrections and riots.
j) Victims of prison rape suffer severe physical and
psychological effects that hinder their ability to
integrate into the community and maintain stable employment
upon their release from prison. Thus, they are more likely
to become homeless and/or require government assistance.
aa) Members of the public and government officials are
largely unaware of the epidemic character of prison rape
and the day-to-day horror experienced by victimized
inmates.
AB 550
Page 8
bb) The high incidence of sexual assault within prisons
involves actual and potential violations of the United
States Constitution. In Farmer v. Brennan , 511 U.S. 825
[128 L. Ed. 2d 811] (1994), the Supreme Court ruled that
deliberate indifference to the substantial risk of sexual
assault violates prisoners' rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment. The
Eighth Amendment rights of state and local prisoners are
protected through the Due Process Clause of the Fourteenth
Amendment. Pursuant to the power of Congress under Section
Five of the Fourteenth Amendment, Congress may take action
to enforce those rights in states where officials have
demonstrated such indifference. States that do not take
basic steps to abate prison rape by adopting standards that
do not generate significant additional expenditures
demonstrate such indifference. Therefore, such states are
not entitled to the same level of federal benefits as other
states.
The Act directs the Bureau of Justice Statistics of the
Department of Justice to conduct, each calendar year, a
comprehensive, statistical review and analysis of the
incidence and effects of prison rape, establishes a review
panel of prison rape, creates a National Prison Rape Reduction
Commission, and provides for grants to protect inmates,
particularly from prison rape.
4)Prison Rape : Stop Prison Rape (SPR) is a national 501(c)(3)
human rights organization that seeks to end sexual violence
against men, women, and youth in all forms of detention. SPR
reports the following, "A recent study of prisons in four
Midwestern states found that approximately one in five male
inmates reported a pressured or forced sex incident while
incarcerated. About one in ten male inmates reported that
that they had been raped. Rates for women, who are most
likely to be abused by male staff members, vary greatly among
institutions. Youth in detention are also extremely vulnerable
to abuse. Research has shown that juveniles incarcerated with
adults are five times more likely to report being victims of
sexual assault than youth in juvenile facilities. As states
try growing numbers of juveniles as adults, the risk of sexual
abuse increases. Overcrowding and insufficient staffing are
key contributors to prisoner rape, and recent changes in
criminal justice policy have exacerbated the problem by
AB 550
Page 9
swelling prison and jail populations beyond capacity.
Following an incident of rape, victims may experience vaginal
or rectal bleeding, soreness and bruising (and much worse in
the case of violent attacks), insomnia, nausea, shock,
disbelief, withdrawal, anger, shame, guilt, and humiliation.
Long-term consequences may include post-traumatic stress
disorder, rape trauma syndrome, ongoing fear, nightmares,
flashbacks, self-hatred, substance abuse, anxiety, depression,
and suicide. Rates of HIV are five to ten times as high
inside of prison as outside, making forced sex - where
prevention methods are virtually nonexistent - a deadly
proposition.
"Prisoner rape victims are typically among the most vulnerable
members of the population in custody. Male victims are often
young, nonviolent, first-time offenders who are small, weak,
shy, gay or effeminate, and inexperienced in the ways of
prison life. Studies suggest that a typical male prison
rapist chooses a victim on the basis of 'the weakness and
inability of the victim to defend himself.' Believing they
have no choice, some male prisoners consent to sexual acts to
avoid violence. For others, gang rape and other brutal
assaults have left them beaten, bloodied, and in rare cases,
dead. Often, those who live through the experience are marked
as targets for further attacks, eventually forcing victims to
accept long-term sexual enslavement in order to survive.
Treated like the perpetrator's property, the victim may be
forced into servitude that includes prostitution arrangements
with other male prisoners.
"Among women behind bars, young and mentally ill inmates and
first-time offenders are particularly vulnerable to sexual
assault by male staff. Male custodial officials have
vaginally, anally, and orally raped female prisoners and have
abused their authority by exchanging goods and privileges for
sex. Male corrections officers are often allowed to watch
female inmates when they are dressing, showering, or using the
toilet, and some regularly engage in verbal degradation and
harassment of women prisoners. Women also report groping and
other sexual abuse by male staff during pat frisks and
searches."
REGISTERED SUPPORT / OPPOSITION :
Support
AB 550
Page 10
Books Not Bars
California Attorneys for Criminal Justice
California Pubic Defenders Association
Stop Prison Rape
Opposition
None on file
Analysis Prepared by : Heather Hopkins / PUB. S. / (916)
319-3744