BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
6
3
3
AB 633 (Ammiano)
As Amended May 20, 2010
Hearing date: June 15, 2010
Penal Code
SM:mc
CORRECTIONS: CLASSIFICATION OF INMATES AND WARDS
HISTORY
Source: Equality California
Prior Legislation: AB 382 (Ammiano) -Vetoed, 2009
AB 550 (Goldberg) - Chapter 303, Statutes of 2005
Support: Taxpayers for Improving Public Safety; California
Public Defenders Association
Opposition:The California Correctional Supervisors Organization
Assembly Floor Vote: Ayes 59 - Noes 9
KEY ISSUES
SHOULD THE LEGISLATURE MAKE SPECIFIED FINDINGS AND DECLARATIONS
REGARDING RISK FACTORS INDICATING WHICH INMATES AND WARDS OF
CORRECTIONAL FACILITIES ARE AT A HEIGHTENED RISK OF SEXUAL
VIOLENCE AND ABUSE?
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(CONTINUED)
SHOULD CURRENT LAW BE AMENDED TO REQUIRE THE CALIFORNIA DEPARTMENT
OF CORRECTION AND REHABILITATION'S (CDCR) INMATE CLASSIFICATION AND
HOUSING ASSIGNMENT PROCEDURES TAKE INTO ACCOUNT RISK FACTORS THAT
CAN LEAD TO INMATES AND WARDS BECOMING THE TARGET OF SEXUAL
VICTIMIZATION OR OF BEING SEXUALLY ABUSIVE, TOWARD OTHERS AND SHOULD
THE CURRENT RELEVANT FACTORS TO BE CONSIDERED IN THIS REGARD BE
AMENDED, AS SPECIFIED?
SHOULD CDCR BE PROHIBITED FROM REQUIRING ANY INMATE OR WARD TO
DISCLOSE OR REPORT HIS OR HER SEXUAL ORIENTATION OR GENDER IDENTITY
AND FROM PUNISHING AN INMATE OR WARD FOR FAILING TO DO SO?
SHOULD THE CDCR BE REQUIRED TO PLACE INMATES AND WARDS AT HIGH RISK
FOR SEXUAL VICTIMIZATION IN SEGREGATED HOUSING ONLY AS A LAST RESORT
AND THEN ONLY TEMPORARILY?
SHOULD CDCR BE REQUIRED TO MAKE REASONABLE EFFORTS TO ENSURE THAT
RISK OF SEXUAL VICTIMIZATION DOES NOT LIMIT ACCESS TO
CLASSIFICATION, HOUSING, PROGRAMS, EDUCATION, AND WORK
OPPORTUNITIES, AS SPECIFIED?
SHOULD CDCR BE PROHIBITED FROM, PLACING LESBIAN, GAY, BISEXUAL,
TRANSGENDER, OR OTHER GENDER-NONCONFORMING INMATES OR WARDS IN
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PARTICULAR FACILITIES, UNITS, OR WINGS SOLELY ON THE BASIS OF
SPECIFIED FACTORS?
PURPOSE
The purpose of this bill is to (1) make specified findings and
declarations regarding risk factors indicating which inmates and
wards of correctional facilities are at a heightened risk of
sexual violence and abuse; (2) amend current law to require the
inmate classification and housing assignment procedures of the
Department of Corrections and Rehabilitation (CDCR) to take into
account risk factors that can lead to inmates and wards becoming
the target of sexual victimization or of being "sexually
abusive," toward others, in place of the term "sexually
aggressive," and amend the current relevant factors to be
considered in this regard, as specified; (3) prohibit CDCR from
requiring any inmate or ward to disclose or report his or her
sexual orientation or gender identity at any time, and provide
that a disclosure or report shall not be discredited solely
because it was not provided at an earlier point in time; (4)
prohibit CDCR from disciplining or otherwise punishing an inmate
or ward for failing to disclose or report his or her sexual
orientation or gender identity during all or part of his or her
term of commitment; (5) adopt portions of recommended national
standards for the prevention of prison sexual abuse, as
specified; and (6) specify that these provisions not be
construed to require or justify expansion or construction of
department 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;
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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).)
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
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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).)
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
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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).)
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
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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.)
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.
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Gay rights organizations.
HIV/AIDS service providers.
Civil rights organizations.
Human rights organizations. (Penal Code 2642.)
This bill makes the following legislative findings and
declarations:
The National Prison Rape Elimination Commission has
reported that inmates and wards of correctional facilities
are at a heightened risk of sexual violence and abuse based
on certain risk factors, including having a mental or
physical disability, being young, having a slight physical
build, having a sexual orientation other than heterosexual,
being gender nonconforming, for example, having transgender
identity or an intersex condition, not having served a
prior term of commitment, having a nonviolent history,
having a history of sexual victimization, or having a prior
conviction for a sexual offense.
It is the intent of the Legislature in enacting this act
to ensure that the Department of Corrections and
Rehabilitation recognizes that wards or inmates may be at
increased risk based on these factors, and provides
vulnerable inmates or wards who are 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 amends current law to require CDCR's 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
abusive," toward others, in place of the term "sexually
aggressive," and would amend the current relevant factors to be
considered in this regard by the Department to include the
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following:
For assessing inmates or wards in men's or boys'
facilities or units for risk of sexual victimization:
mental or physical disability, mental illness, young age,
slight physical build, first incarceration in prison or
jail, nonviolent offense history, prior convictions for sex
offenses against an adult or child, sexual orientation of
gay or bisexual, gender nonconformance, for example,
transgender identity or intersex condition, prior sexual
victimization, and the inmate's or ward's own perception of
vulnerability.
For assessing inmates or wards in men's or boys'
facilities or units for risk of being sexually abusive:
prior acts of sexual abuse and prior convictions for
violent offenses.
For assessing inmates or wards in women's or girls'
facilities or units for risk of sexual victimization:
mental or physical disability, mental illness, prior sexual
victimization, and the inmate's or ward's own perception of
vulnerability.
For assessing inmates or wards in women's or girls'
facilities or units for risk of being sexually abusive:
prior acts of sexual abuse.
This bill provides:
The department 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
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earlier point in time.
The department 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.
In accordance with the department's classification
scoring system, the risk factors listed above shall be
considered with the goal of keeping separate those inmates
and wards at high risk of being sexually victimized from
those at high risk of being sexually abusive. Inmates and
wards at high risk for sexual victimization may be placed
in segregated housing only as a last resort and then only
until an alternative means of separation from likely sexual
abusers can be arranged. The department shall make
reasonable efforts to ensure that risk of sexual
victimization based on the risk factors listed above does
not limit access to classification, housing, programs,
education, and work opportunities, unless it is clinically
indicated. Lesbian, gay, bisexual, transgender, or other
gender-nonconforming inmates or wards shall not be placed
in particular facilities, units, or wings solely on the
basis of sexual orientation, genital status, or gender
identity.
This bill states that it shall not be construed to require or
justify expansion or construction of department facilities.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
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federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
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for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
Existing law (Section 2636 of the Penal Code) requires
the Department of Corrections and Rehabilitation to
----------------------
<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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classify inmates and wards in order to prevent inmate
and ward sexual violence and to promote inmate and
ward safety. Existing law also requires the
department to consider specified risk factors when
classifying and housing inmates.
The National Prison Rape Elimination Commission has
reported that inmates and wards of correctional
facilities are at a heightened risk of sexual violence
and abuse based on certain risk factors, including
having a mental or physical disability, being young,
having a slight physical build, having a sexual
orientation other than heterosexual, being gender
nonconforming, for example, having transgender
identity or an intersex condition, not having served a
prior term of commitment, having a nonviolent history,
having a history of sexual victimization, or having a
prior conviction for a sexual offense.
This bill would ensure that the Department of
Corrections and Rehabilitation recognizes that wards
or inmates may be at increased risk based on these
factors, and provides vulnerable inmates or wards who
are 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.
The bill would also prohibit the department from
requiring an inmate or ward to disclose or report his
or her sexual orientation or gender identity and from
disciplining or punishing an inmate or ward for
failing to disclose or report his or her sexual
orientation or gender identity.
2. The National Prison Rape Elimination Commission
The National Prison Rape Elimination Commission was a bipartisan
panel created by Congress as part of the Prison Rape Elimination
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Act of 2003. (One member of the Commission was former Assembly
Republican Leader Pat Nolan.) The Commission was charged with
studying federal, state and local government policies and
practices related to the prevention, detection, response and
monitoring of sexual abuse in correction and detention
facilities in the United States. Consistent with the Act, the
Commission convened public hearings and committees of experts
around the country obtaining input from corrections leaders,
survivors of abuse, health care providers, researchers, legal
experts, advocates, and academics. It also conducted a thorough
review of the existing literature and initiated new studies to
resolve some of the unanswered questions about causality and
intervention. In June 2009, the Commission published a detailed
report with specific recommendations designed to make the
prevention of rape a top priority in America's jails, prisons,
and juvenile detention facilities. (National Prison Rape
Elimination Commission Report, hereafter "Report.")
( http://www.cybercemetery.unt.edu/archive/nprec/20090820154813/ht
tp://nprec.us/home/ )
3. What the Eighth Amendment Requires
As the Commission's report observes, the Eighth Amendment of the
U.S. Constitution forbids cruel and unusual punishment, and this
requires corrections staff to protect incarcerated individuals
from sexual abuse whenever the threat is known. Facilities that
fail to implement adequate protective measures risk exposure to
civil lawsuits from current and former prisoners and the U.S.
Department of Justice. In Farmer v. Brennen, 511 U.S. 825
(1994), a transgender woman alleged that corrections officials
failed to protect her from repeated sexual assaults. The
Supreme Court ruled unanimously that deliberate indifference to
the substantial risk of sexual abuse violates incarcerated
individuals' rights under the Eighth Amendment. The court
stated that officials have a duty to protect prisoners:
Having incarcerated persons [with] demonstrated
proclivit[ies] for antisocial criminal, and often
violent, conduct, having stripped them of virtually
every means of self-protection and foreclosed their
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access to outside aid, the government and its
officials are not free to let the state of nature take
its course. Prison conditions may be restrictive and
even harsh, but gratuitously allowing the beating or
rape of one prisoner by another serves no legitimate
penological objectiv[e], any more than it squares with
evolving standards of decency. Being violently
assaulted in prison is simply not part of the penalty
that criminal offenders pay for their offenses against
society. (Brennen, supra, at 832-834, citations
omitted.)
4. The Commission's Findings and Proposed Nationwide Standards
The Commission made the following findings:
Protecting prisoners from sexual abuse remains a
challenge in correctional facilities across the country.
Too often, in what should be secure environments, men,
women, and children are raped or abused by other
incarcerated individuals and corrections staff.
Sexual abuse is not an inevitable feature of
incarceration. Leadership matters because corrections
administrators can create a culture within facilities that
promotes safety instead of one that tolerates abuse.
Certain individuals are more at risk of sexual abuse
than others. Corrections administrators must routinely do
more to identify those who are vulnerable and protect them
in ways that do not leave them isolated and without access
to rehabilitative programming.
Few correctional facilities are subject to the kind of
rigorous internal monitoring and external oversight that
would reveal why abuse occurs and how to prevent it.
Dramatic reductions in sexual abuse depend on both.
Many victims cannot safely and easily report sexual
abuse, and those who speak out often do so to no avail.
Reporting procedures must be improved to instill confidence
and protect individuals from retaliation without relying on
isolation. Investigations must be thorough and competent.
Perpetrators must be held accountable through
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administrative sanctions and criminal prosecution.
Victims are unlikely to receive the treatment and
support known to minimize the trauma of abuse.
Correctional facilities need to ensure immediate and
ongoing access to medical and mental health care and
supportive services.
Juveniles in confinement are much more likely than
incarcerated adults to be sexually abused, and they are
particularly at risk when confined with adults. To be
effective, sexual abuse prevention, investigation, and
treatment must be tailored to the developmental capacities
and needs of youth.
Individuals under correctional supervision in the
community, who outnumber prisoners by more than two to one,
are at risk of sexual abuse. The nature and consequences
of the abuse are no less severe, and it jeopardizes the
likelihood of their successful reentry.
A large and growing number of detained immigrants are at
risk of sexual abuse. Their heightened vulnerability and
unusual circumstances require special interventions.
("Report" pages 3-21.)
In response to these finding the Commission published "NPREC
Standards for the Prevention, Detection, Response, and
Monitoring of Sexual Abuse in Adult Prisons and Jails, including
Supplemental Standards for Facilities with Immigration
Detainees." Among the recommended standards are the following:
Screening for risk of victimization and abusiveness
All inmates are screened during intake, during the
initial classification process, and at all subsequent
classification reviews to assess their risk of being
sexually abused by other inmates or sexually abusive
toward other inmates. Employees must conduct this
screening using a written screening instrument
tailored to the gender of the population being
screened. Although additional factors may be
considered, particularly to account for emerging
research and the agency's own data analysis, screening
instruments must contain the criteria described below.
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All screening instruments must be made available to
the public upon request.
At a minimum, employees use the following criteria
to screen male inmates for risk of victimization:
mental or physical disability, young age, slight
build, first incarceration in prison or jail,
nonviolent history, prior convictions for sex offenses
against an adult or child, sexual orientation of gay
or bisexual, gender nonconformance (e.g., transgender
or intersex identity), prior sexual victimization, and
the inmate's own perception of vulnerability.
At a minimum, employees use the following criteria
to screen male inmates for risk of being sexually
abusive: prior acts of sexual abuse and prior
convictions for violent offenses.
At a minimum, employees use the following criteria
to screen female inmates for risk of sexual
victimization: prior sexual victimization and the
inmate's own perception of vulnerability.
At a minimum, employees use the following criteria
to screen female inmates for risk of being sexually
abusive: prior acts of sexual abuse.
Use of screening information
Employees use information from the risk screening to
inform housing, bed, work, education, and program
assignments with the goal of keeping separate those
inmates at high risk of being sexually victimized from
those at high risk of being sexually abusive. The
facility makes individualized determinations about how
to ensure the safety of each inmate. Lesbian, gay,
bisexual, transgender, or other gender-nonconforming
inmates are not placed in particular facilities,
units, or wings solely on the basis of their sexual
orientation, genital status, or gender identity.
Inmates at high risk for sexual victimization may be
placed in segregated housing only as a last resort and
then only until an alternative means of separation
from likely abusers can be arranged. To the extent
possible, risk of sexual victimization should not
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limit access to programs, education, and work
opportunities. (Report, Appendix B, Page 217.)
This bill would codify these portions of the recommended
national standards in California.
WOULD CODIFYING THESE STANDARDS HELP ELIMINATE SEXUAL ASSAULTS
AGAINST INMATES AND WARDS?
5. California Department of Corrections and Rehabilitation Policy
on Sexual Assault on Inmates and Wards
In 2009 CDCR 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.
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
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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.
Screening
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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.
Offender on Offender sexual assaults
(More)
AB 633 (Ammiano)
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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.
SHOULD THE POLICIES AND PRACTICES AT CDCR REFLECT THE
RECOMMENDATIONS OF THE NATIONAL PRISON RAPE ELIMINATION
COMMISSION?
6. AB 382 Veto Message
AB 382 also addressed inmate classification to prevent prison
rape, was approved by this Committee last year, and was vetoed
by the Governor. The Governor's veto message reads:
This bill would add, among other provisions, the
sexual orientation and gender identity of an inmate or
ward to the list of risk factors considered as part of
the California Department of Corrections and
Rehabilitation's (CDCR) inmate and ward classification
and housing assignment procedures. This bill is
unnecessary because CDCR already considers these
factors when determining where to house inmates.
This bill adds several classification factors that were not
included in AB 382.
7. Arguments in Opposition
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The California Correctional Supervisors Organization states:
The California Correctional Supervisors Organization
(CCSO) opposes AB 633 as amended, which would require
the Department of Corrections and Rehabilitation to
take into consideration the sexual identity or
orientation when classifying an inmate or ward. Under
current CDCR policies all such factors are currently
considered when classifying inmates or wards. This
measure while scaled down from its introduction
continues to raise concerns with our membership and
thus our opposition remains.
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