The Second Circuit Court of Appeals held on August 11, 2015 that guards who subject prisoners to sexual fondling may violate the prisoners’ constitutional rights. The ruling came in the wake of media reports that the New York Department of Corrections and Community Supervision (DOCCS) has high rates of staff-on-prisoner sexual abuse.

The appellate decision allowed a lawsuit filed by two former prisoners at the Eastern Correctional Facility to proceed against guard Simon Prindle, who has been the focus of more than 20 grievances filed by prisoners claiming he sexually abused or harassed them.

Former prisoners James Crawford and Thaddeus Corley, both of whom are now on parole, alleged that in 2011, when Corley was in the prison’s visiting room with his wife, Prindle ordered him to stand against the wall with his legs spread to make sure he didn’t have an erection. The complaint alleged that Prindle “paused to fondle and squeeze Mr. Corley’s penis,” and threatened Corley when he resisted.

The complaint also claimed that Crawford was victimized by Prindle and threatened with solitary confinement. According to court documents, Prindle pressed Crawford against a wall and “squeezed and roamed” with his hands around the prisoner’s genitals.

The lawsuit was initially dismissed by federal district court judge Norman A. Mordue on the grounds that the alleged sexual abuse was not “severe or repetitive” – a standard established by Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). Mordue held that under Boddie, “sexual abuse only states a cognizable Eighth Amendment claim if it occurs on more than one occasion, is ‘excessive in duration,’ involves direct contact with an inmate’s genitalia (rather than contact through an inmate’s clothing, as was the case here), or causes ‘physical injury, penetration, or pain.’” The Second Circuit reversed, finding that Mordue’s interpretation of the standard was too narrowly drawn.

“A corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment,” the appellate court wrote. The ruling further noted that sexual abuse of prisoners “deeply offends today’s standards of decency.”

“[S]ocietal standards of decency regarding sexual abuse and its harmful consequences have evolved” in the two decades since Boddie, the Court of Appeals held. See: Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015).

“The court’s decision today is an important clarification of what should be totally obvious to prison professionals but, unfortunately is lost on some judges,” said Zachary Margulis Ohnuma, an attorney representing Corley and Crawford, in an email to the New York Times. “Sex abuse in prison is wrong, illegal, and unconstitutional. Our clients won’t let this guard get away with it.” The lawsuit remains pending on remand from the Second Circuit.

In a three-part series published in 2013 by the Albany, New York Times Union, reporter Alysia Santo detailed numerous examples of sexual assaults on prisoners by staff members, and how punishments for abusive staff are often lenient despite the Prison Rape Elimination Act (PREA). In April 2013, DOCCS created an Associate Commissioner position responsible for developing policies and overseeing the prison system’s compliance with PREA standards.

“The sexual abuse of women in custody is a long-standing and endemic problem,” said Brenda Smith, who has 30 years’ experience working with sexual abuse in prisons and served from 2004 to 2009 on the National Prison Rape Elimination Commission. Sexual misconduct by prison staff is “the most basic betrayal of the public’s trust,” she added. “The people victimized in custody are not just them. They are us. It could be anyone you know.”

Records show that from 2006 to 2013, DOCCS substantiated 33 incidents of sexual abuse by staff on female prisoners and 27 incidents of staff sexual harassment. Since 2000 there have been seven cases where prisoners were impregnated by guards.

DOCCS has “zero tolerance” for sexual abuse, department spokesman Tom Mailey wrote in a statement. “Through prevention, education, and ongoing victim support programs, DOCCS works to eliminate all forms of sexual violence within the department, to provide access to appropriate and meaningful emotional support services for victims of sexual abuse, and to prosecute anyone who sexually abuses an offender to the fullest extent of the law.”

But the punishment meted out to DOCCS employees found guilty of sexually abusing prisoners calls into question whether the rhetoric matches the reality.

For example, Albion Correctional Facility guard Donald Lasker, Jr. was sentenced to just 10 weekends in jail and 10 years’ probation after being convicted of raping prisoner Anna Ortiz, who later sued and was awarded $605,750 by the New York Court of Claims in August 2012. The court determined that Lasker had a “propensity to pursue unauthorized relationships with inmates and yet [DOCCS] left him in the position to continue to pursue the same.” See: Anna O. v. State of New York, New York State Court of Claims, UID No. 2012-013-035, Claim No. 114085.

While under investigation for illicit behavior with other prisoners, Lasker was allowed to call Ortiz to the school building to clean classrooms. The first time he made advances to Ortiz, but was interrupted when someone entered the school. The second time he had enough time to brutally rape her on a desk in the classroom.

Ortiz was discovered cowering and crying in a hallway by a sergeant. She initially told him she was upset about her children, but when she finally told authorities what had really happened, they locked her in solitary confinement “for her own safety.”

When confronted with Ortiz’s accusations, Lasker claimed she had seduced him – but because sex with prisoners is considered statutory rape whether consensual or not, he was convicted. Ortiz also received $250,000 in compensatory damages and $250,000 in punitive damages in a federal civil rights action filed against Lasker. See: Ortiz v. Lasker, U.S.D.C. (W.D. N.Y.), Case No. 6:08-cv-06001-DGL-JWF.

Of eight criminal cases involving sexually abusive prison guards reviewed by the Times Union, five ended in misdemeanor convictions that resulted in short probation terms or a small fine. Only Lasker received jail time, and even then the court was sympathetic to his claim that Ortiz had seduced or pursued him.

“[T]here is only so much empathy you can have for an inmate who wanted to have relations with you,” said Orleans County Court Judge James Punch when sentencing Lasker, “and you fell into the trap of having those relations.”

Despite the Second Circuit’s ruling in Crawford v. Cuomo and the media attention which tends to surround prison sexual assault cases, staff-on-prisoner rape and sexual misconduct persist.

In October 2015, Sing Sing Correctional Facility guard Evita Hinds, 35, was arrested on a charge of third-degree rape – a felony – for having sexual intercourse with a prisoner. She was released on her own recognizance.

DOCCS guard Ruben Garcia, 38, of Yonkers, New York was charged on August 27, 2015 with two counts of third-degree rape after he “engaged in sexual contact” with a female prisoner at the Bedford Hills Correctional Facility, a maximum-security prison for women, according to State Police investigators.

Greene Correctional Facility guard Clifford A. Rowe, 57, was arrested on September 4, 2014 on a felony charge of criminal sexual act and misdemeanor charges of second-degree sexual abuse and official misconduct for allegedly having sex with a male prisoner over a six-month period.

And in July 2014, Bedford Hills guard Richard Rodriguez, 33, was arrested and charged with third-degree rape following an investigation by the state Inspector General’s office, the State Police and DOCCS investigators. He was accused of having sexual contact with a female prisoner and released on a $500 bond; a week after his arrest another Bedford Hills guard, Kevin R. Fields, 29, was charged with a similar offense. Rodriguez pleaded guilty in October 2014.

The Times Union’s investigative series revealed a number of hurdles that prosecutors face when trying to seek justice after prisoners are sexually abused by staff members: prisoners have credibility issues and there is a lack of evidence in many cases, and sexual abuse tends to occur out of the view of witnesses or surveillance cameras. The preservation of physical evidence is another challenging aspect.

Even when physical evidence does exist, juries do not always convict abusive guards because they view prisoners’ claims through a jaundiced eye. For example, the first DNA case ever prosecuted against a prison guard by Orleans County District Attorney Joe Cardone resulted in a misdemeanor conviction and an acquittal on a felony sex charge.

“I’ve had jurors say to me, ‘These are people that ended up in state prison, so what happens to them, they probably deserve,’” he stated.

Further, prisoners do not always cooperate in staff prosecutions. Frederic Green, head of the sex crimes bureau for the Westchester County District Attorney’s Office, said he has presented video evidence and eyewitness testimony to female prisoners of their involvement with a guard.

“They will look you right in the eye and say no,” said Green. Often, he explained, that occurs because the woman has feelings for the guard and seeks to protect him. In other cases the prisoner fears retribution.

“It’s not an atmosphere that makes a woman feel comfortable, when she knows she is likely reporting to someone who is a colleague of her abuser,” Green noted.

Former Bedford Hills prisoner Jennifer Coombs learned firsthand the pitfalls of falling in love with a guard. Authorities said Coombs was enamored with guard David Sawyer, whom she would meet for sexual encounters in his office and storage closets. Her hope of post-prison romance turned to jealous rage, however, when she heard rumors that Sawyer was interested in another prisoner. After Coombs saved his DNA and turned him in, Sawyer pleaded guilty to statutory rape and received 10 years’ probation.

“I couldn’t believe how many of the girls were with the guards,” Coombs said. “They were getting gifts, money, and special treatment.”

DOCCS employees charged with sex offenses enjoy strong union support throughout the investigative and criminal justice processes, and afterwards. Guard Frederick Brenyah was prosecuted in 2003 for raping a prisoner, but acquitted at trial. When DOCCS tried to fire him, the guards’ union pushed the matter to arbitration. Brenyah prevailed and regained his job at the Bedford Hills facility. In 2010 he was charged with raping a 57-year-old prisoner and making her perform oral sex. He claimed the woman had pursued him. Brenyah, 67, received 10 years of probation in July 2012.

“I don’t think we have a substantial problem with this,” said Donn Rowe, president of the New York State Correctional Officers and Police Benevolent Association, referring to sexually abusive prison staff.

However, a 2014 Bureau of Justice Statistics report on a survey of prisoners at state and federal prisons nationwide found that DOCCS does have a problem with staff sexual abuse. Five of the seven DOCCS prisons surveyed reported staff sexual misconduct rates above the national average. Additionally, according to DOCCS records from 2007 to 2012, while women accounted for 5% of all state prisoners, they were involved in 30% of sexual misconduct cases and 61% of sexual harassment cases.

In a Bureau of Justice Statistics report released in 2010, Bayview Prison, a women’s facility in lower Manhattan that has since closed, was found to have the highest rate of self-reported staff-on-prisoner sexual misconduct. In a survey of 96 of the 137 women imprisoned at Bayview, 11.5% reported being sexually victimized by staff members – more than five times the national average.

Then-DOCCS Commissioner Brian Fischer offered no explanation for the high rate of sexual assaults at Bayview when questioned by a federal panel. Asked about elevated rates of sexual abuse at Elmira Correctional Facility, an all-male prison, he responded, “The perception that a good pat-frisk constitutes a sexual assault is a major factor influencing the results.”

Beyond that head-in-the-sand response, another indicator of a long-standing problem of sexual misconduct by DOCCS staff was a lawsuit, filed in 2003, claiming that prison officials had failed to protect women prisoners from sexual abuse by male guards. The complaint was filed on behalf of 17 current and former prisoners by the Prisoners’ Right Project of the Legal Aid Society of New York and a private law firm.

In December 2007 the district court dismissed the prisoners’ injunctive relief claims and almost all of their damages claims, as they had failed to exhaust the prison grievance system – instead filing reports of sexual abuse with the Inspector General’s office. DOCCS sought to dismiss the suit in 2012, arguing that the department’s zero tolerance policy and other initiatives under the Prison Rape Elimination Act rendered the case moot.

The three remaining plaintiffs eventually settled their claims; Shenyell Smith agreed to a $15,000 settlement in July 2012, while plaintiff Shantelle Smith reached a settlement in the New York Court of Claims on March 27, 2012. The last plaintiff, Stephanie Dawson, accepted a $10,000 settlement in July 2015, closing the case. See: Amador v. Department of Correctional Services, U.S.D.C. (S.D. NY), Case No. 03-cv-00650-KTD-GWG.

In February 2015, DOCCS released videos to be shown to prisoners on “how to avoid rape in prison”; the videos featured real prisoners discussing issues related to sexual assault, and were lauded by some advocates but criticized by others. Only the video made for women prisoners acknowledged staff-on-prisoner sexual abuse.

The Times Union series on sexual misconduct in DOCCS facilities pointed to a dramatic decline in reports of sexual assaults in Michigan’s prison system when, in 2005, male guards were restricted from working in women’s housing units, and concluded that “Both critics and impartial observers of the current system say restricting sensitive duties in women’s prisons to female officers would reduce sexual assaults and counter false reporting.”

But the union representing New York state prison guards has resisted such a policy change. “[P]roper training is the best approach,” union president Donn Rowe contended.

Which makes one wonder: Exactly how much training do guards need to ensure they don’t rape or sexually abuse the prisoners in their custody? If they don’t already receive such training, why not? And if they do, why does staff sexual misconduct persist in New York’s prison system?

Sources: Albany Times-Union, www.dailyfreeman.com, www.timesunion.com, http://poststar.com, http://nymag.com, http://pix11.com, www.leagle.com, Associated Press, www.correctionsone.com, www.legal-aid.org, www.clearinghouse.net

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