BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 382 (Ammiano)
As Amended June 25, 2009
Hearing date: June 7, 2009
Penal Code
SM:mc
CORRECTIONS: INMATE SEXUAL ORIENTATION AND GENDER IDENTITY
HISTORY
Source: Equality California
Prior Legislation: AB 550 (Goldberg) - Chapter 303, Statutes of
2005
Support: Asian Communities for Reproductive Justice; Asian &
Pacific Islander Wellness Center; All of Us or None;
California Coalition Against Sexual Assault; California
Communities United Institute; California Coalition for
Women Prisoners; Center for Health Justice; Justice
Now; Legal Services for Prisoners with Children;
Taxpayers for Improving Public Safety; The Transgender,
Gender Variant & Intersex Justice Project; Transgender
Law Center; California Commission on the Status of
Women; 49 private individuals.
Opposition:None known
Assembly Floor Vote: Ayes 65 - Noes 9
KEY ISSUE
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SHOULD SPECIFIED LEGISLATIVE FINDINGS BE ADOPTED?
SHOULD THE DEPARTMENT OF CORRECTIONS AND REHABILITATION'S
("CDCR") INMATE CLASSIFICATION AND HOUSING ASSIGNMENT PROCEDURES
TAKE INTO ACCOUNT "SELF-REPORTED SAFETY CONCERNS RELATED TO THE
SEXUAL ORIENTATION AND GENDER IDENTITY OF THE INMATE OR WARD"
ALONG WITH OTHER RISK FACTORS?
SHOULD CDCR BE PROHIBITED FROM REQUIRING ANY INMATE OR WARD TO
DISCLOSE OR REPORT HIS OR HER SEXUAL ORIENTATION OR GENDER IDENTITY
AT ANY TIME?
SHOULD CDCR BE PROHIBITED FROM DISCREDITING A REPORT OF SUCH SAFETY
CONCERNS SOLELY BECAUSE IT WAS NOT PROVIDED AT AN EARLIER POINT IN
TIME?
SHOULD CDCR BE PROHIBITED FROM DISCIPLINING OR OTHERWISE PUNISHING
AN INMATE OR WARD IF THE INMATE OR WARD FAILS TO DISCLOSE OR REPORT
HIS OR HER SEXUAL ORIENTATION OR GENDER IDENTITY DURING ALL OR PART
OF HIS OR HER TERM OF COMMITMENT?
PURPOSE
The purpose of this bill is to (1) make specified legislative
findings; (2) require that the Department of Corrections and
Rehabilitation's ("CDCR") inmate classification and housing
assignment procedures take into account "self-reported safety
concerns related to the sexual orientation and gender identity
of the inmate or ward" along with other risk factors; (3)
prohibit CDCR from requiring any inmate or ward to disclose or
report his or her sexual orientation or gender identity at any
time; (4) specify that a disclosure or report shall not be
discredited solely because it was not provided at an earlier
point in time; (5) prohibit CDCR from disciplining or otherwise
punishing an inmate or ward if the inmate or ward fails to
disclose or report his or her sexual orientation or gender
identity during all or part of his or her term of commitment;
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and (6) state that nothing in this section shall be construed to
require or justify expansion or construction of Department of
the Corrections and Rehabilitation facilities.
Existing federal law establishes the Prison Rape Elimination Act
to establish a zero-tolerance standard for the incidence of
prison rape in prisons in the United States; 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; 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; and reduce the costs that prison rape imposes on
interstate commerce. (42 USC 15601.)
Existing law requires the Department of Corrections and
Rehabilitation ("CDCR") to review informational handbooks
regarding sexual abuse in detention published by outside
organizations. Upon approving the content thereof, handbooks
provided by one or more outside organizations shall be made
available to inmates and wards. (Penal Code 2635.)
Existing law requires the CDCR inmate classification and housing
assignment procedures to take into account risk factors that can
lead to inmates and wards becoming the target of sexual
victimization or of being sexually aggressive toward others.
Relevant considerations include: age, whether the offender is a
violent or non-violent offender, and whether the inmate has a
history of mental illness. (Penal Code 2636(a).)
Existing law requires that the Department of Corrections and
Rehabilitation ensure that staff members intervene when an
inmate or ward appears to be the target of sexual harassment or
intimidation. (Penal Code 2636(b).)
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Existing law requires that the Department of Corrections and
Rehabilitation shall ensure that its protocols for responding to
sexual abuse include all of the following:
The safety of an inmate or ward who alleges that he or
she has been the victim of sexual abuse shall be
immediately and discreetly ensured. Staff shall provide
the safest possible housing options to inmates and wards
who have experienced repeated abuse. Housing options may
include discreet institution transfers.
Inmates and wards who file complaints of sexual abuse
shall not be punished, either directly or indirectly, for
doing so. If a person is segregated for his or her own
protection, segregation must be nondisciplinary.
Any person who knowingly or willfully submits inaccurate
or untruthful information in regards to sexual abuse is
punishable pursuant to department regulations.
Under no circumstances is it appropriate to suggest that
an inmate should fight to avoid sexual violence or to
suggest that the reported sexual abuse is not significant
enough to be addressed by staff.
Staff shall not discriminate in their response to
inmates and wards who are gay, bisexual, or transgender who
experience sexual aggression, or report that they have
experienced sexual abuse.
Retaliation against an inmate or ward for making an
allegation of sexual abuse shall be strictly prohibited.
(Penal Code 2637(a) - (f).)
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Existing law requires that thoughtful, confidential standards of
physical and mental health care shall be implemented to reduce
the impact of sexual abuse on inmates and wards in the
Department of Corrections and Rehabilitation that include all of
the following:
Victims shall receive appropriate acute-trauma care for
rape victims, including, but not limited to, treatment of
injuries, HIV/AIDS prophylactic measures, and, later,
testing for sexually transmittable diseases.
Health practitioners who conduct or encounter an inmate
or ward suffering from problems that might indicate sexual
abuse, such as trauma, sexually transmissible diseases,
pregnancy, or chronic pain symptoms, shall ask whether the
patient has experienced sexual abuse.
Practitioners should strive to ask frank,
straightforward questions about sexual incidents without
shaming inmates or displaying embarrassment about the
subject matter.
Confidential mental health counseling intended to help
the victim to cope with the aftermath of abuse shall be
offered to those who report sexual abuse. Victims shall be
monitored for suicidal impulses, posttraumatic stress
disorder, depression, and other mental health consequences.
Any adult inmate in mental health counseling for any
reason shall be entitled to speak confidentially about
sexual abuse. (Penal Code 2638(a) - (e).)
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Existing law requires the Department of Corrections and
Rehabilitation to ensure that the following procedures are
performed in the investigation and prosecution of sexual abuse
incidents:
The provision of safe housing options, medical care, and
the like shall not be contingent upon the victim's
willingness to press charges.
Investigations into allegations of sexual abuse shall
include, when deemed appropriate by the investigating
agency, the use of forensic rape kits, questioning of
suspects and witnesses, and gathering of other relevant
evidence.
Physical and testimonial evidence shall be carefully
preserved for use in any future proceedings.
Staff attitudes that inmates and wards cannot provide
reliable information shall be discouraged.
If an investigation confirms that any employee has
sexually abused an inmate or ward, that employee shall be
terminated. Administrators shall report criminal sexual
abuse by staff to law enforcement authorities.
Consensual sodomy and oral copulation among inmates is
prohibited by subdivision (e) of Section 286 and
subdivision (e) of Section 288a, respectively. Without
repealing those provisions, the increased scrutiny provided
by this article shall apply only to nonconsensual sexual
contact among inmates and custodial sexual misconduct.
(Penal Code 2639(a) - (f).)
Existing law requires the Department of Corrections and
Rehabilitation to keep statistics on the sexual abuse of inmates
and wards. Sexual abuse incidents shall not be classified as
"other" nor simply included in a broader category of general
assaults. Statistics shall include whether the abuse was
perpetrated by a staff member or other inmate, the results of
the investigation and any resolution of the complaint by
department officials and prosecution authorities. The data
shall be made available to the Office of the Sexual Abuse in
Detention Elimination Ombudsperson. (Penal Code 2640.)
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Existing law creates 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:
The office shall be based within the Office of the
Inspector General. The duties of this office may be
contracted to outside nongovernmental experts.
The ombudsperson shall have the authority to inspect all
of the Department of Corrections and Rehabilitation
institutions and to interview all inmates and wards.
The Department of Corrections and Rehabilitation shall
allow all inmates and wards to write confidential letters
regarding sexual abuse to the ombudsperson.
Information about how to confidentially contact the
ombudsperson shall be clearly posted in all of the
Department of Corrections and Rehabilitation institutions.
The Office of the Inspector General shall investigate
reports of the mishandling of incidents of sexual abuse,
while maintaining the confidentiality of the victims of
sexual abuse, if requested by the victim. (Penal Code
2641(a) - (e).
Existing law requires that the Department of Corrections and
Rehabilitation develop guidelines for allowing outside
organizations and service agencies to offer resources to inmates
and wards, including, but not limited to, the following:
Rape crisis agencies.
Hospitals.
Gay rights organizations.
HIV/AIDS service providers.
Civil rights organizations.
Human rights organizations. (Penal Code 2642.)
This bill makes the following legislative findings:
The Legislature finds and declares that inmates and
wards of the Department of Corrections and Rehabilitation
may be at a heightened risk of sexual violence and abuse
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based on certain risk factors, including being young, being
lesbian, gay, bisexual, or transgender, not having served a
prior term of commitment, or having a history of mental
illness.
It is the intent of the Legislature in the enacting this
act to ensure that the Department of Corrections and
Rehabilitation (1) recognizes that wards or inmates may be
at increased risk based on these factors, and (2) provides
vulnerable inmates or wards who are determined to be at
risk with heightened protection in classification and
housing decisions, without automatically subjecting them to
highly restrictive or isolated settings or denying them
access to programs and services.
This bill requires that CDCR inmate classification and housing
assignment procedures take into account "self-reported safety
concerns related to the sexual orientation and gender identity
of the inmate or ward" along with other risk factors listed in
existing law that can lead to inmates and wards becoming the
target of sexual victimization or of being sexually aggressive
toward others.
This bill provides that CDCR:
shall not require any inmate or ward to disclose or
report his or her sexual orientation or gender identity at
any time, and a disclosure or report shall not be
discredited solely because it was not provided at an
earlier point in time; and
is prohibited from disciplining or otherwise punishing
an inmate or ward if the inmate or ward fails to disclose
or report his or her sexual orientation or gender identity
during all or part of his or her term of commitment.
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This bill states that nothing in this section shall be construed
to require or justify expansion or construction of Department of
Corrections and Rehabilitation facilities.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
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period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
[AB 382] would add sexual orientation and gender
identity to the current list of factors that should be
considered when classifying and housing prisoners.
One of the most important tools available to
corrections officials to prevent sexual assault is the
use of appropriate prisoner classification and housing
protocols.
While anyone can be a victim of sexual violence, in
prison typical victims are young, nonviolent, or
first-time offenders. Lesbian, Gay, Bisexual and
Transgender prisoners or those perceived to be LGBT
are also exceptionally vulnerable to violence.
Sexual violence against prisoners who are LGBT is a
recurring problem that needs to be addressed.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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According to a recent study from the California
Department of Corrections and Rehabilitation, 67
percent of LGBT inmates report being sexually
assaulted by another inmate, a rate 15 times higher
than the overall population.
Our prisons have been the focus of recent attention
and litigation involving overcrowding and violence.
Recognizing these problems, the Legislature enacted a
law in 2005 to require CDCR to consider certain risk
factors that can lead to inmates becoming the target
of sexual victimization including age, whether the
inmate is a violent or nonviolent offender, whether
the inmate has served a prior term, and whether the
inmate has a history of mental illness.
Unfortunately, existing law does not provide specific
protections for LGBT inmates housed by CDCR.
[AB 382] would simply add sexual orientation and
gender identity to a list of criteria that CDCR must
consider when classifying and housing prisoners.
2. California Department of Corrections and Rehabilitation Policy
on Sexual Assault on Inmates and Wards
CDCR has provided the following description of its policies with
respect to Sexual Assault on Inmates and Wards.
The California Department of Corrections and
Rehabilitation implemented sweeping policy guidelines
to ensure compliance with the Prison Rape Elimination
Act of 2003 (PREA) and the Sexual Abuse in Detention
Elimination Act (Chapter 303, Statutes of 2005)
(SADEA). These protocols take a comprehensive
approach for the prevention, detection, response,
investigation, and tracking of offender sexual
assaults and sexual misconduct between offenders
and/or staff and offenders.
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As you are aware, sexual contact between CDCR
employees and offenders is prohibited by law and
regulation, regardless of whether it is consensual or
not, sexual contact between the latter mentioned
parties is considered nonconsensual.
Sexual Contact between CDCR employees and offenders
According to DOM Section 54040.1, any sexual behavior
by a departmental employee directed toward an offender
does not meet the legal concept of "consent." In
effect, the legal concept of "consent" does not exist
between departmental employees and offenders; any
sexual behavior between them constitutes sexual
misconduct and shall subject the employee to
disciplinary action and/or to prosecution under the
law.
Training
The CDCR's policy toward the prevention of sexual
misconduct and victimization starts with education.
According to DOM 54040.4, all employees, including
volunteers and contractors, shall receive instruction
related to the prevention, detection, response, and
investigation of offender sexual assault. This
training class will be conducted during new employee
orientation, annual block training, and included in
the curriculum of the Correctional Training Academy.
All CDCR employees who are assigned to investigate
sexual exploitation and/or assault receive specialized
training per PC 13516. The CDCR also provides
intensive training for victims' advocates. In
addition, the CDCR provides inmates with an
orientation on PREA via a multi-media presentation on
a quarterly basis in both English and Spanish. The
latter mentioned presentation includes prevention and
intervention strategies, reporting, and treatment and
counseling options.
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Screening
Prevention of sexual assault occurs immediately after
the Department receives an inmate. According to DOM
Section 54040.5, a process is in place for review and
evaluation for single cell status during RC
processing. During the screening process, questions
related to sexual assault and victimization are asked.
An offender's need for single cell status is reviewed
as part of the initial and annual classification and
mechanisms are in place for either providing the
inmate with housing with a compatible inmate or
designating the offender for single cell housing.
Detection
Detection of sexual assault is a critical
responsibility of the CDCR. According to DOM 54040.5,
every CDCR employee is responsible for reporting
immediately and confidentially to the appropriate
supervisor any information that indicates an offender
is being or has been sexually assaulted. Provisions
are also outlined for offenders to report sexual
misconduct.
Investigations and Treatment
Section 54040.6 of the DOM outlines very specific
protocols in regards to the investigative process and
initial response. Specific policies are in place,
according to DOM 54040.6.1 for notifying the Office of
Internal Affairs and the Warden in the event that CDCR
is alleged to be the perpetrator of sexual
assault/misconduct.
Sections 54040.6.2, 54040.6.3, and 54040.7 of the DOM
outline specific policies related to medical treatment
protocols for victims of sexual assault.
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Offender on Offender sexual assaults
When an allegation is made or an assault occurs, CDCR
staff will immediately ensure that there is no
physical, verbal or visual contact between the victim
and the suspect, when possible. Specific protocols
have been developed for forensic medical examinations
and the suspect will be re-housed in the
Administrative Segregation Unit. This prevents
further contact between the victim and suspect.
According to DOM 54040.9, sexual assaults and
attempted sexual assaults between two offenders shall
be investigated by staff from the ISU. The ISU
lieutenant will be responsible for completion of the
investigation and will follow standard investigative
procedures per institutional procedures. Criminal
investigations are referred to the District Attorney's
office.
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3. Protecting at Risk Lesbian, Gay, Bisexual and Transgender
("LGBT") Inmates
This bill allows LGBT inmates to report any safety concerns and
requires CDCR to take those concerns into account in housing and
security classification of the inmate, while specifically
prohibiting the Department from requiring an inmate to disclose
their sexual orientation or gender identity at any time during
their incarceration.
WILL THIS HELP REDUCE SEXUAL ASSAULT AGAINST LGBT AND OTHER
VULNERABLE INMATES AND WARDS?
4. Argument in Support
Equality California states:
The landmark case of Farrell v. Allen, which was
brought under state law as a taxpayer action to stop
inhumane and illegal conditions of confinement,
spurred a comprehensive plan to improve California's
prison system. Pursuant to a consent decree approved
by a judge in November 2004, state officials have
agreed to remedy serious ongoing problems in the
state's correctional facilities, including developing
a system to separate vulnerable prisoners from
dangerous ones and a plan to reduce violence.
Sexual violence against prisoners who are LGBT is a
recurring problem that must be addressed by any
reforms. According to a recent study by the
California Department of Corrections and
Rehabilitation (CDCR), 67 percent of LGBT inmates
report being sexually assaulted by another inmate, a
rate 15 times higher than the overall prison
population. One of the most important tools available
to corrections officials to prevent sexual assault is
the use of appropriate prisoner classification and
housing protocols. While anyone can be a victim of
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sexual violence behind bars, typical victims are
young, nonviolent, or first time offenders. LGBT
prisoners or those perceived to be LGBT are also
exceptionally vulnerable to violence.
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