As the accompanying article, Not Part of My Sentence , makes clear, the sexual abuse of female prisoners by male prison employees is an endemic problem. As past issues of PLN show, this problem is not confined to any single state or prison system, but is national in scope.

Surprisingly, given the number of sexual assaults of prisoners by staff that are taking place, there is relatively little litigation ensuing as a result. A PLN investigation of settlements and verdicts paid out by the Washingon Department of Corrections (DOC) between 1994 and 2000 shows that the Washington DOC has paid out a little over a half million dollars to settle nine sexual assault lawsuits filed in state courts by female prisoners and one by a male prisoner sexually assaulted by a female guard. (See accompanying article.) Interestingly, none of the cases have gone to trial, with the attorney general's office opting to settle those cases even where the prison employee defendant claimed the sex was "consensual." [Federal courts have held that the prisoner's "consent" to sex with a prison employee is not a defense under the Eighth Amendment, even in the absence of laws that criminalize all sexual contact between staff and prisoners, regardless of consent. These laws are similar to statutory rape laws.]

An analysis of the Washington DOC's settlement figures indicates that in the prison system's actuarial table, a rape is "worth" $50,000; a rape where pregnancy and an abortion result is "worth" $110,000; and a sexual assault where a child is born as a result is "worth" $150,000, the highest amount paid to date.

In 1997 the Tacoma News Tribune reported that from1994 through 1997, prison officials at the Washington Corrections Center for Women (WCCW) in Gig Harbor and the McNeil Island Corrections Center (MICC) in Steilacoom, alone investigated 24 cases of sex between prisoners and staff, substantiating 12. "The rest have been unsubstantiated, but that doesn't mean they didn't happen," said David Savage, who was then the director of the DOC's Office of Correctional Operations. The most ob- vious conclusion is that even substantiated claims of prison rape rarely result in litigation, civil or criminal.

Between 1992 and 1997 the Washington DOC paid only $8,500 to settle two sexual abuse lawsuits by WCCW prisoners. Julia Washington filed suit claiming that a prison counselor coerced her into having sex with him in 1989. She later settled her lawsuit for $5,000. In 1997, Teresa Glover settled a lawsuit for $3,500. Glover claimed that while she was recovering from an asthma attack in St. Joseph's Hospital in Tacoma, she awoke to find prison guard Curtis Higginbotham fondling her breasts through her hospital gown. Glover reported the assault and was duly threatened, harassed and retaliated against by prison officials for doing so, a common theme among prisoners who report sexual assaults in Washington state. Glover was represented by Seattle attorney Katrin Frank. See: Glover v. Higginbotham , Pierce County Superior Court, Case No. 95-2-03175-2.

In addition to the four cases mentioned in the accompanying article, which resulted in settlements ranging from $22,500 to $150,000, the DOC has settled two other cases involving female prisoners raped by male prison guards. In 1998 the DOC paid former WCCW prisoner Stephanie Hamilton-McKendry $110,000 to settle a lawsuit in which she claimed that prison guard Curtis Higginbotham had raped and impregnated her, and that she had an abortion as a result. In subsequent criminal proceedings, Higginbotham was convicted of raping Hamilton-McKendry and was himself sentenced to prison. The DOC had failed to terminate Higginbotham, even after he was accused of sexual misconduct in Teresa Glover's prior lawsuit.

In December 1999, the DOC paid Christy Kidder, a former prisoner at the MICC Work Ethic Camp, $49,625 to settle a lawsuit in which she claimed that MICC guard Eric Zoot had fondled her in a dormitory shower and forced her to perform oral sex on him. Represented by Vancouver, Washington attorney William Dunn, Kidder filed suit in Clark County Superior Court.

So far, in all these cases the state has denied tort claims and forced the plaintiffs to file suit. When asked why the plaintiffs tend to settle for relatively small amounts of money, plaintiff's lawyer David Gehrke said that most prisoners aren't used to having much money, thus they settle for small amounts. Gehrke made the analogy of the personal injury lawsuit by a person injured on a city bus versus the Mercedes owner who sues after being rear ended at Microsoft's headquarters. "They lowball you knowing the person doesn't even have a car. Five thousand dollars is as much as they're ever going to see at one time. The other guy can't be so easily bought off," Gehrke said.

As PLN has reported, litigation by female prisoners in other states has brought in jury awards in the six and seven figure range. While Washington law does not allow for punitive damage awards, the Washington DOC doesn't appear to want to take a chance that citizens on a jury may voice their disapproval of the rampant sexual abuse of prisoners by DOC employees.

Despite widespread sexual abuse of female prisoners, relatively few prison employees are ever actually prosecuted for rape. A Tacoma News Tribune investigation in 1997 found that prison officials routinely violated state laws requiring the prompt notification of law enforcement officials, and instead found a pattern of punishing and harassing prisoners who reported sexual assaults by staff.

On October 2, 1996, an unidentified male MICC prisoner reported that a guard had performed oral sex on him. MICC officials did not report the assault to Pierce county police until December 4, 1996, and then only after the guard had confessed and resigned.

In the rapes of Brenda Pierce and Trisha Mechtley by MICC sergeant Jeffrey Donaldson (see accompanying article), prison officials started their "investigation" on August 1, 1996, but did not notify police until September 11, 1996, two days after Donaldson had resigned.

To date, the DOC seems to favor quiet resignations over active investigation and criminal prosecution of DOC employees who sexually assault the prisoners in their care. Beyond that is the issue of the taxpayer-supported legal defense provided to staff rapists in civil suits.

As reported in this issue of PLN , when transsexual prisoner Douglas Schwenk filed suit claiming that Washington State Penitentiary guard Robert Mitchell had raped her, the attorney general's office stepped in to provide Mitchell with a vigorous defense. State law allows the attorney general's office to defend state employees who are sued for performing their duties or for acts arising from the performance of their duties. Apparently, raping prisoners is considered a normal part of prison employees' duties based on their representation by the attorney general's office. In Mitchell's case, his government lawyers argued to the court that the law was not clearly established that guards could not rape prisoners in their care! See: Schwenk v. Hartford , 204 F.3d 1187, 1197-98 (9th Cir. 2000). The court rejected this argument as "absurd." As the court put it: "[A] reasonable prison guard simply could not have believed that he could with impunity enter the cell of a prisoner (transsexual or otherwise), unzip his pants, expose himself, demand oral sex, grab the prisoner, push her up against the bars of the cell, and grind his naked penis into her but- tocks." Id ., at 1198. Yet the Washington attorney general's office is going into court arguing exactly that, ostensibly on behalf of Washington taxpayers!

While criminal prosecution of DOC employee rapists is very rare, having a taxpayer funded defense in civil suits for rapes, with the state paying out the settlement awards as well, ensures there is little incentive for the investigation of the sexual assault of prisoners. Moreover, this policy fails to address a conflict of interest on the part of prison officials and the attorney general's office alike when they are faced with reporting or defending criminal actions that also subject the state to tort liability. A meaningful reform would be the creation of an independent ombudsman, with subpoena power, to investigate claims of serious misconduct within the prison system and which in turn could report criminal activities by staff to local police. Otherwise the situation remains one of the proverbial fox guarding the henhouse.

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