Breaking the Code of Silence - Correctional Officers’ Handbook on Identifying and Addressing Sexual Misconduct, NIC, 2007

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Breaking the Code of Silence A Correction Officer’s Handbook on Identifying and Addressing Sexual Misconduct

Breaking the Code of

SILENCE

Correctional Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Brenda V. Smith and Jaime M. Yarussi
National Institute of Corrections/Washington College of Law Project on Addressing Prison Rape
American University Washington College of Law

www.wcl.american.edu/nic

Breaking the Code of Silence A Correction Officer’s Handbook on Identifying and Addressing Sexual Misconduct

American University Washington College of Law

Breaking the Code of Silence A Correction Officer’s Handbook on Identifying and Addressing Sexual Misconduct

Breaking the Code of

SILENCE
Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Brenda V. Smith, J.D.

Jaime M. Yarussi, M.S.

Professor of Law
Director
NIC/WCL Project on Addressing Prison Rape
American University
The Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016
Phone: 202-274-4261 Fax: 202-274-4182
bvsmith@wcl.american.edu

Program Coordinator
NIC/WCL Project on Addressing Prison Rape
American University
The Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016
Phone: 202-274-4385 Fax: 202-274-4373
jyarussi@wcl.american.edu

American University Washington College of Law

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Copyright © 2007 for the National Institute of Corrections
by Brenda V. Smith and Jaime M. Yarussi
This handbook was prepared under cooperative agreement 03S16GIZ9 between the
National Institute of Corrections (NIC), Federal Bureau of Prisons, U.S. Department of
Justice and American University Washington College of Law (WCL). Points of view or
opinions stated in this handbook are those of the authors and do not necessarily
represent the official opinion or policies of the U.S. Department of Justice or the
National Institute of Corrections.
All rights reserved. No part of this publication may be produced or transmitted in any
form or by any means, electronic or mechanical, including photocopy, recording, or any
information storage or retrieval system, without permission in writing from the National
Institute of Corrections. Requests for permission to make copies of any part of this
publication should be made to:
The NIC/WCL Project on Addressing Prison Rape
American University
Washington College of Law
4801 Massachusetts Ave, NW
Washington, DC 20016
nic@wcl.american.edu

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

The National Institute of Corrections
320 First Street, NW
Washington, DC 20534
1-800-995-6423 or 202-307-3995
Fax: 202-307-3106
www.nicic.org

Morris L. Thigpen
Director
Thomas Beauclair
Deputy Director
Larry Solomon
Deputy Director (Retired)
Dee Halley
Correctional Program Specialist
Prof. Brenda V. Smith
Project Director,
The NIC/WCL Project on Addressing Prison Rape
Jaime M. Yarussi, M.S.
Program Coordinator,
The NIC/WCL Project on Addressing Prison Rape

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

iii

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Acknowledgements
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and
Addressing Sexual Misconduct is the end product of work by many organizations
and individuals concerned about preventing and addressing staff sexual misconduct
with offenders.
We would like to thank the many contributors and reviewers who have given us
insightful and honest commentary about the situations that correctional professionals face and how the code of silence surrounding staff sexual misconduct affects
their jobs. In particular, we thank Darrell Alley, former NIC project consultant for his
critical look and contributions to our understanding of the investigative process;
Susan Carle, professor of law, American University Washington College of Law, for
her help in explaining the legal rights that are available to correctional staff
accused of staff sexual misconduct; Susan McCampbell, president, Center for
Innovative Public Policy, Inc., for her editing assistance and contribution to our
understanding of what matters to correctional professionals, both in administration
and line staff; and A.T. Wall, director, Rhode Island Department of Corrections, for
his insightful responses to our many requests for his expertise on matters of policy
and practices in correctional institutions.
Additionally, we would like to thank the National Institute of Corrections (NIC),
Morris Thigpen, director, NIC, Larry Solomon, deputy director (retired), NIC and Dee
Halley, correctional program specialist, NIC, for supporting this important work.
This handbook builds on important work done by Teena Farmon, Jennie Lancaster,
Anadora Moss, Susan Poole and Brenda V. Smith in naming the issue of staff sexual
misconduct and developing tools to address it. Finally, we could not have completed
this publication without the initial work of Loren Ponds, J.D. in conceptualizing an
initial draft and April Fehling, who did the final edit of the publication.
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and
Addressing Sexual Misconduct addresses rapidly developing areas of law and
practice in the United States. The information in this publication is current as of
January 2007. Both law and policies rapidly change. We will remain abreast of those
changes and encourage you to contact us with new information as it becomes
available.
Brenda V. Smith, J.D.
Professor
Project Director
The NIC/WCL Project
on Addressing Prison Rape

Jaime M. Yarussi, M.S.
Program Coordinator
The NIC/WCL Project
on Addressing Prison Rape

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Foreword
Since 1999, The American University Washington College of Law has had a cooperative agreement with the National Institute of Corrections to provide training to highlevel correctional decision makers on key issues in addressing and investigating
staff sexual misconduct. With the enactment of the Prison Rape Elimination Act in
2003 (PREA), the project’s focus shifted to addressing prison rape—both staff sexual
misconduct with offenders and offender on offender sexual violence and abuse.
This handbook is based on training we have conducted on staff sexual misconduct
over the past eight years, and the feedback and comments that we have received
from correctional professionals who have attended those trainings and implemented changes in their system to prevent sexual abuse of individuals under custodial
supervision.
Since the passage of PREA in 2003, there has been increased national and international attention to the issue of sexual abuse of individuals in custody. States have
strengthened criminal laws prohibiting the sexual abuse of individuals in custody.
Reports on staff sexual misconduct have increased in number; non-governmental
organizations such as Human Rights Watch, Amnesty International and Stop
Prisoner Rape have documented the issue, and both print and visual media have
covered sexual violence in correctional settings.
However, even with the enactment and strengthening of state and federal law,
human rights reports, and media coverage, the fundamental question of whether
conditions that enable staff sexual misconduct have changed, remains unanswered.
While state correctional systems, the federal government and local jurisdictions
have made a great deal of progress in addressing staff sexual misconduct, much
work remains. A climate may still exist where sexual abuse of individuals in custody
is permitted. Moreover, prosecutions and convictions for wrongdoing are rare, and
sanctions for guilty correctional professionals are weak.
This important work must continue in order to ensure the safety and security of
correctional agencies, staff who work in these agencies, facilities across the country
and people under correctional supervision. Law and policy development and
change, consistent enforcement, prosecution and punishment of wrongdoers, and
training of staff and offenders will prevent and reduce staff sexual abuse of
offenders.
This publication is a critical step in reaching out to rank-and-file correctional staff in
order to address the code of silence that surrounds staff sexual misconduct with
offenders. We hope that it will deepen the dialogue between line staff, administrators, community leaders, and criminal justice advocates about strategies to eliminate staff sexual misconduct with individuals under custodial supervision.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Communication, Gender and Abuse Histories . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tools for Defining and Identifying Inappropriate Relationships
with Offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Daily Dozen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Red Flags . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
What Happens When an Allegation of Staff Sexual Misconduct Is Made? . . . . 21
Demystifying the Investigative Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
What Are Your Rights During a Staff Sexual Misconduct Investigation? . . . . . 23
The First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
The Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
The Fifth Amendment and Statutory Due Process Rights . . . . . . . . . . . . . . . . 25
The Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Union Member Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Employee Rights against Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Protections for Private Sector Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Former Employee Reference Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
What are the Legal Consequences of Staff Sexual Misconduct
with Offenders? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Criminal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Civil Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Prevention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Government Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Publications for Legal and Correctional Professionals . . . . . . . . . . . . . . . . . . . 36
Advocacy Group Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Law Review and Journal Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Appendix
A. 50 State Survey of Criminal Laws Prohibiting the Sexual Abuse of
Individuals Under Correctional Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 43
B. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

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CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Why are We Talking About This Now? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
What is Staff Sexual Misconduct with Offenders? . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consequences of Staff Sexual Misconduct with Offenders . . . . . . . . . . . . . . . . . . 7
Can Correctional Environments Enable Sexual Misconduct? . . . . . . . . . . . . . . . 10
What is Agency Culture? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The “Code of Silence” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Victimization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Introduction
Staff1 sexual misconduct with offenders2 is about more than sex. This behavior compromises your safety and security, the safety of the institution and offenders’ safety. While you may never get involved in this unprofessional behavior which is illegal
in all states — you should be aware of how staff sexual misconduct with offenders
can affect you, your job, your family, offenders and the community.
Staff sexual misconduct with offenders is not a subject to read about and put aside.
It needs to be an ongoing discussion involving partners from all correctional sectors. Staff sexual misconduct is a problem that involves facilities, offenders, administration and staff at all levels, as well as outside stakeholders such as law enforcement, the legislature and the community. It has legal and non-legal consequences
as well as long-lasting emotional, economic, and mental and physical health effects
for staff, offenders, agencies and the community.
This handbook aims to educate correctional professionals at all levels on:
why correctional staff and administrators need to be concerned about staff
sexual misconduct with offenders
how agency culture and the workplace environment influence staff sexual
misconduct
the tools that will help identify and address staff sexual misconduct
the consequences of staff sexual misconduct with offenders
the investigative process that should follow an allegation of staff sexual
misconduct
how correctional staff members can keep the workplace safe

In this publication “staff” will include all of the following: officer, staff, contractor, food service employees,
maintenance worker, volunteer, clergy member, medical staff member, and vendors.
2
“Offender” refers to individuals (including youth) under custodial supervision, whether in secure confinement
such as jails and prisons or under community supervision such as probation, parole, home detention and the
like.
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Why are We Talking About This Now?
Staff sexual misconduct undermines the mission of corrections by creating unstable living and working environments for the offenders as well as their supervising
staff members. Sexual misconduct is the most serious form of boundary violation
in a correctional setting. Sexual misconduct is not about sex, but about safety and
security. Both are compromised whenever boundaries break down and a staff
member becomes personal or intimate with an offender.
Staff sexual misconduct with offenders affects correctional staff by:
jeopardizing staff safety
threatening agency and facility safety and security
creating the risk of legal action — both criminal and civil
creating health risks
harming family relationships

Religious Institutions:
A former pastor from Trinity Baptist
Church in Jacksonville, Florida was
charged with two counts of capital sexual battery. Two women told police that
the pastor had fondled them, touched
their genitals and kissed them during
visits to his office when they were six
and attending school at the Trinity
Christian Academy. Six other women
also corroborated the abuse happening
during the late 1970s and early ‘80s. At
least 15 women have accused the pastor
of molesting them. He has admitted to
french kissing students years ago. (As
reported by The Florida Times Union on
May 21, 2006)

Foster Care:

creating negative public views of corrections
diminishing trust and morale of staff and offenders
weakening respect for, and the authority of, correctional staff among offenders
Highly publicized legal cases involving women’s prisons initially brought this issue
to the attention of the national and international community. From civil penalties
to incarceration, correctional staff members and correctional agencies have paid
the price for staff sexual misconduct with offenders.
The National Institute of Corrections (NIC), a branch of the Department of Justice,
has provided training and technical assistance to executive-level correctional professionals since 1996. National professional organizations, individual states, correctional officials and policy advocates have also taken steps to address staff sexual misconduct. Still, staff sexual misconduct persists in correctional settings.
Before we discuss staff sexual misconduct in custodial settings, it is important to
acknowledge that staff sexual misconduct is not unique to correctional settings.
Sexual misconduct is prevalent in organizations where one person or a group of
people has power over others.
It is this imbalance of power that is a pivotal factor in enabling sexual misconduct.
Instances of staff sexual misconduct have been reported in:
religious institutions
the foster care system
the United States government
the United States military

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Omaha police arrested a 15 year old boy
in February for allegedly molesting his
three foster sisters ages three, five and
seven. The abuse had allegedly been
occurring since October and was finally
reported in mid-February. The boy has
entered a denial plea to three counts of
first-degree sexual assault in family
court. A spokesperson for the Nebraska
Department of Health and Human
Services said the girls were immediately
removed from the home. (As reported by
the Omaha World Herald on March 30,
2006)

Military:
Recent allegations of sexual abuse by
U.S. military personnel has some concerned that the Pentagon is cultivating a
culture of sexual violence against
women. More than 500 U.S. servicewomen who have been or are currently
stationed in Iraq, Afghanistan or other
countries say they have been assaulted
by fellow soldiers since 2003. The
Defense Department has stated that
reports of sexual assault have risen 65
percent in the past two years. (As
reported by The Salt Lake Tribune on
July 19, 2006)

A jail guard at the Sixth District Jail was
charged with raping a male inmate. Jail
guard Espiridio Quinones, is accused of
forcing a 25-year-old inmate to perform
oral sex. The inmate was able to save
some of Mr. Quinones’ semen in a shoe
for DNA evidence. The shoe and Mr.
Quinones’ blood sample were sent for
DNA testing but the results are unavailable at this time. Mr. Quinones was
arrested and suspended without pay. (As
reported by The Plain Dealer on August
25, 2006)

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

What is Staff Sexual Misconduct with
Offenders?
Staff sexual misconduct with offenders is generally defined as any behavior or act
of a sexual nature by:
a correctional employee (sworn or civilian, managers, administrators,
supervisors, line officers, supervisors of offenders on work release)
a contractor
a food service employee
a maintenance worker
a volunteer

A former North Carolina Department of
Corrections official was sentenced by
Buncombe County Superior Court to 22
to 36 months in prison. Judge Ronald
Payne told Edith Pope that the potential
security breach created by her sexual
relationship with a convicted murderer
created in the Craggy Correctional
Center necessitated an active prison
term. (As reported by the Asheville
Citizen Times on August 8, 2006)

a medical or mental health staff member (clinical staff and counselors)
a member of the clergy
vendors
youth workers
teachers
Staff sexual misconduct can be directed towards:
a person under the care or custody of any correctional authority

A former Illinois Youth Center worker
faces up to 15 years in prison for having
a sexual relationship with a juvenile
offender. Barnett Gill testified in court
that no sexual activity occurred between
him and the youth resident back in
2004. Gill was convicted of four felony
counts of sexual misconduct with a
minor. (As reported by the Chicago SunTimes on August 3, 2006)

any of the offender’s family members
any other person who has official contact with the department on behalf of
offenders (lawyers, social workers, mental health professionals, victim advocates)
Correctional settings where staff sexual misconduct can occur include, but are not
limited to:3
prisons
jails
police lock-ups
juvenile facilities
immigration detention centers
court holding facilities
community corrections (home monitoring, probation, parole half-way houses)

The Prison Rape Elimination Act of 2003. Pub. L. 108–79. 4 Sept. 2003. Stat. 117. 972. These settings are
defined as correctional settings by the Prison Rape Elimination Act of 2003.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

There are four sources of definitions of staff sexual misconduct:

PREA defines sexual abuse of an
individual in custody as:

state law
agency policy
the Prison Rape Elimination Act of 2003 (PREA)
the Bureau of Justice Statistics (BJS)
Staff sexual misconduct can include both physical and non-physical behaviors. It is
important to remember that misconduct with an offender can include non-physical
actions that precede physical sexual misconduct with offenders. While the criminal
law in most states only covers punishment for the physical aspects of sexual misconduct, department policies and procedures address and provide sanctions for
the non-physical actions.
Physical sexual misconduct includes, but is not limited to, acts or attempts to commit acts such as:
sexual abuse or sexual contact (such as fondling of the breast, buttocks, or
genitalia)
sexual assault (such as rape, intercourse, oral and anal sex, or penetration of the
vagina, mouth or anus by a penis or any object)
actions designed for sexual gratification of either party (such as exposure or
masturbation)
Non-physical sexual misconduct includes, but is not limited to, acts or attempts to
commit acts such as:
undue familiarity (such as flirting, inappropriate compliments, making suggestive sexual remarks or obscenities, doing favors for an offender, letters or notes
which are sexual in nature and conversations with sexual undertones)
conduct of a sexual nature that implies sex
sexual harassment
unreasonable invasion of privacy (such as inappropriate viewing, standing too
close to the offender in an intimate space without touching)
sexually suggestive comments about appearance

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“The rape of an inmate (defined as any
person incarcerated or detained in any
facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent
for violations of criminal law or the
terms and conditions of parole, probation, pretrial release, or diversionary
programs) in the actual or constructive
control of prison officials.”

BJS defines staff sexual
misconduct as:
Any behavior or act of a sexual nature
directed toward an inmate by an
employee, volunteer, official visitor, or
agency representative. Romantic relationships between staff and inmates are
included. Consensual and non-consensual sexual acts include:
Intentional touching of the genitalia,
anus, groin, breast, inner thigh, or
buttocks with the intent to arouse or
gratify sexual desire
completed, attempted, threatened, or
requested sexual acts
occurrences of indecent exposure,
invasion of privacy, or staff
voyeurism for sexual gratification.

One of two former Oakhill Correctional
Institution (Wisconsin) guards, charged
earlier this year with having sex with an
inmate, was put on probation for two
years and fined. Christine Roberge was
charged with second-degree sexual
assault in April after an investigation
showed she was having sex with an
inmate. The plea agreement allowed the
defendant to enter a no contest plea to
the felony charge and two misdemeanor
counts. If she successfully completes
probation she will be able to file a
motion asking that the felony count be
dismissed. That part of the plea bargain
did not have the approval of the
Department of Corrections, and Oakhill
Warden Deirdre Morgan stated that the
department would really like to see a
felony conviction. Both officers were
charged under the law passed in 2003
making sex with a prisoner an assault
regardless of the nature of the act and
carrying a maximum of 40 years in
prison. (As reported by The Capital
Times September 19, 2006)

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Some may feel that, given a staff member’s daily contact with offenders and just
“being human,” the definition of staff sexual misconduct includes too many “normal” behaviors. Perhaps as you reflect on your career, you may find that you have
engaged in one or more of these activities. Maybe you or one of your co-workers
believes that sexual misconduct with an offender is not a problem within your
agency. You may feel that an offender’s actions invite staff sexual misconduct or
that the offender manipulated the staff.
If you are thinking one or all of these things, we urge you to reexamine some
of your opinions about staff sexual misconduct with offenders. Any conduct of
a sexual nature with an offender, whether the offender invites it or not, is prohibited by law and in most states is prohibited by agency policy.

Douglas Tower was sentenced to 20 to
40 years in prison for raping and sexually assaulting a female inmate while he
was a sergeant at the Shea Farms
Halfway House in Concord, New
Hampshire. Tower was convicted in
February of two counts of rape and four
counts of felonious sexual assault. He
faced a maximum of 34 to 68 years in
prison. Tower is still accused of sexually
assaulting 12 other female inmates and
faces trials in those cases. (As reported
by The Concord Monitor on April 19,
2007)

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Consequences of Staff Sexual Misconduct with
Offenders
The legal, emotional and financial consequences of staff sexual misconduct can be
severe, and include legal, emotional, personal and financial hardship. These consequences can be far-reaching, affecting:

Can you think of other consequences?
________________________________________________
________________________________________________
________________________________________________
________________________________________________

staff members

________________________________________________

offenders
To send us your answers go to:
http://www.wcl.american.edu/nic/
co_handbookresponses.cfm

agency operations
administrators
the profession
elected officials
families of staff members and offenders
the community and public
Staff members involved in a sexual relationship with an offender may face both
legal as well as non-legal sanctions for their actions if they are found guilty.
Potential legal consequences for staff members may include:
civil liability
criminal prosecution
incarceration
fines
sex offender registration
community notification
Potential non-legal sanctions for staff members may include:
administrative discipline
loss of employment
loss of professional license/certification
difficulty in obtaining another job
losing the trust of your family, friends, peers and the public
contracting HIV, hepatitis or other sexually transmitted diseases (STDs)
public shame and humiliation
threat to personal safety during incarceration

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California inmates continue to contract
HIV at rates of up to eight times higher
than the general population. Statistics
show that 20 to 26 percent of people living with HIV/AIDS in the United States
have spent time in the correctional system. “The reality is that sex in prison is
taking place and it is an undeniable public health issue and we must provide
inmates with options for protecting their
health and the health of their loved ones
upon being released.” (As reported by
Medical News Today on August 19, 2006)

Incarcerated or formerly incarcerated
persons are often involved in high-risk
behaviors that can spread various infectious diseases. In correctional settings,
the HIV infection rate alone is ten times
higher than in the general U.S. population, Hepatitis B infection is three to
four times greater and Hepatitis C infections are found in 16 to 41 percent of the
inmate population. Additionally, 25 percent of the HIV-infected people in the
U.S. are released from prison or jail each
year. Gonorrhea, Syphilis and Chlamydia
are also present in U.S. incarcerated
populations. (Source: United States.
Department of Justice/ National
Institute of Corrections. “Staff Sexual
Misconduct: Medical Implications”
Addressing Staff Sexual Misconduct
with Offenders Training. Comp. Laura
Worby. Washington, DC. (March 2006).

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Consequences for offenders may include:
punishment under agency policies and procedures
criminal sanctions
victimization
mental health problems
spreading and contracting disease (especially STDs, HIV, Hepatitis)
pregnancy
re-traumatization
family and marital problems
Potential consequences for agency operations include:
an imbalance of power in favor of offenders (offenders feeling they have a
“secret” and can influence or control a staff member)
breaches in safety and security
erratic behavior from offenders thereby placing staff in danger
loss of community, legislative and fiscal support
loss of agency integrity and credibility
difficulty in future recruitment of qualified employees
unfavorable media attention
undermining agency authority
diminished respect for the agency and profession of corrections
Consequences for administrators may include:
criminal liability
civil liability
alienation of staff
loss of employment
staff and offenders not trusting administrators to protect them
doubts about the security of the agency
unfavorable media attention

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Consequences for elected officials may include:

What offenders think:

public mistrust in the criminal justice system

“Sex, just like drugs, is part of being in
prison. There has to be a certain amount
of that going on. What’s important is
what the prison does when they discover
someone having sex.”

loss of funding for correctional programming and training
diminished support for reform funding
demands for better oversight and accountability

“A lot of female staff come here looking
for love. They don’t get a lot of support
at home or at work. First they become
friends with inmates and the next thing
you know they are in love.”

Consequences for staff members’ families may include:
shame
loss of income due to job termination
loss of status with peers and in the community

“A lot of these offenders have low selfesteem. They don’t think a lot of themselves so they will settle for soda, candy
or cigarettes.”

burden of paying monetary damages
fear of retaliation
loss of family member due to incarceration

- Quotes from offenders. “An End to
Silence” by Brenda V. Smith (1998)

Consequences for the public may include:
fear for personal and community safety

What staff think:

mistrust of the correctional system
loss of confidence in the professionalism of correctional operations

“Staff sexual misconduct involves using
power to get what the staff member
wants. We are supposed to be taking
care of the offenders, not hurting
them.”

cost of treating infectious disease
cost of paying civil damages to offenders
cost of prosecution
cost of incarcerating the staff member

“State prisoners are pretty upfront
about how they will never have another
woman because they are doing life.
{Prison sex} is just meeting their needs.”

cost of training replacement staff

“Women engage in sexual activity here
because of a history of previous abuse
and sexual misconduct and are unaware
of healthy sexual behavior. Most of the
women have been victims; not just in
prison, but on the outside also. Most
women have been victims and they think
that’s okay.”
- Quotes from staff members.
“Staff Perspectives” by
The Moss Group, Inc. (2006)

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Interim Tennessee Department of
Corrections Commissioner Gayle Ray
says the fatal escape involving an
inmate and his wife, a former prison
nurse, reinforces the importance of policies prohibiting relationships between
state employees and inmates. Jennifer
Forsyth, who worked as a contractor
LPN nurse, was fired last August from
Northwest Community Services Agency
for "suspicion of a relationship with an
inmate.” Officials say it's unclear how
the two were able to plan the escape.
With thousands of inmates, Ray said,
phone calls are only taped randomly.
Monitors and officers in the rooms during visitations mainly prevent exchange
of contraband, Ray said, "but you can't
overhear conversations." (As reported
by the Associated Press on August 10,
2005)

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Can Correctional Environments Enable
Sexual Misconduct?
YES. The imbalance of power of staff-offender relationships, are a core feature of
correctional culture. This culture affects both those who have power and those
who do not, and may distort communication and interactions between and among
staff and offenders. Offenders who lack power may engage in staff sexual misconduct in an attempt to equalize this power imbalance.
Over-familiarity and sexual interactions between staff and offenders can shift
power from the staff to the offender. Since there are few secrets in correctional
environments, offenders can gain a great deal of power when a staff member is
involved in illegal or unethical behaviors. This power can translate into privileges
and favors, including keys and freedom, that compromise the security of the facility, staff and offenders. These relationships can even result in serious injury or
death.

What is Agency Culture?
Ralph Hill opened fire Wednesday on FBI
agents who had come to arrest him and
five other federal prison guards (at FCI
Tallahassee) on charges of sex with
female inmates in exchange for money
and contraband. Officials said Hill fired
with a personal weapon. Agents from
the Justice Department's inspector general's office returned fire, killing the
guard. Hill and the five other guards had
been indicted Tuesday on sex-for-contraband charges in a scheme that went on
for two years, according to prosecutors.
Besides the sex charges, the guards were
accused of threatening to plant contraband in inmates' belongings, or to have
inmates sent to other institutions farther from their families, if they reported
the illegal activity. (As reported by the
Associated Press on June 22, 2006)

Agency culture is an organization’s sum of attitudes, values, norms, beliefs, prejudices, history, personalities and ethics of staff — both past and present. It is the
organization’s character and the way it does business. In an unhealthy organization, inappropriate relationships between staff and offenders, including sexual
misconduct, may be both ignored or accepted and thus reinforced as part of the
culture of an agency. Changing the way an agency manages inappropriate relationships between staff and offenders can mean changing the culture of that agency.
In correctional agencies, there are often two types of culture:
Ideal: the values held in principle, such as an organization’s mission statement,
policies and procedures, formal incentives and sanctions.
Real: the way the agency actually works, the hidden, informal chain of command, how things get done and who has the power and leadership.
Influences on the culture of an agency include:
the history and critical events that happen within an agency and how they are
interpreted
the hiring process
the promotional process
the disciplinary process
the role played by middle management
the physical environment (how the agency is kept up)
behavior of staff with offenders and vice versa
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Baron v. Hickey, 242 F. Supp. 2d
66 (D. Mass. 2003)

behavior of management with staff
the tone and style of leadership
staff-to-staff interactions
staff-to-offender dynamics
dress code
language
political support
Initiatives to prevent and address staff sexual misconduct through change in
agency culture require a long-term commitment. Changing culture is
not a short-term project; it involves a substantial and organized effort with all
employees as well as with offenders.

The “Code of Silence”
The “code of silence” has been defined as the unwillingness of staff and/or management to talk openly about other staff or incidences of an illegal, unethical or
questionable nature. Staff may refuse to cooperate in the investigation of critical
events, specifically the reporting and investigation of an allegation of staff sexual
misconduct, in order to protect fellow staff members. Most staff members would
rather risk discipline than violate the code of silence within the correctional community; this silence protects wrongdoers.

In Suffolk County, Mass., a correctional
staff member was allegedly harassed
and forced to quit because he broke the
code of silence. He claimed that he was
being harassed by his co-workers after
reporting an incident of misconduct as
instructed by his supervisor. Co-workers
referred to him as a “rat,” dropped
cheese in front of him and slashed his
tires. The officer complained on 30 separate occasions and was eventually forced
to resign.
The court found in favor of the officer
stating that reporting matters of misconduct within prison walls is a matter
of great importance to the public.
Therefore, “it is essential that staff
members be able to speak out freely
about misconduct without the pressure
of a code of silence and fear of extreme
retaliatory harassment sufficient to
force resignation.” The officer was ultimately awarded $500,000 in damages
by a jury.

In the case of staff sexual misconduct, the code of silence may exist because:

The Code of Silence
staff compromise their values in order to fit into an agency and to avoid becoming an outsider
staff may find it easier to ignore the conduct
staff may fear retaliation from the accused or other employees for violating the
code
staff may find it impossible to believe that a peer could have a sexual relationship with an offender
staff may see internal investigations as unprofessional, untimely or even as a
“witch hunt.”
staff may believe offenders deserve what they get
staff fear if they report misconduct, other staff may not protect them if they are
involved in physical altercations with offenders in the future
staff may not see relations with offenders as wrong

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Three whistleblowers from the
California Department of Corrections
(CDC) would not deny that they have felt
ostracized, stigmatized and isolated as a
direct result of breaking the code of
silence and reporting the misconduct of
co-workers in the CDC. Because of the
reprisals and retaliation they endured,
each filed whistleblower lawsuits
against the department. The current status of those claims calls into question
the sincerity of the CDC’s promises of
“zero tolerance” for retaliation against
officers reporting misconduct. Under the
California Whistleblower Protection Act,
“state employees should be free to
report waste, fraud, abuse of authority,
violation of law, or threat to public
health without fear of retribution.” (As
reported by the Sacramento News and
Review on May 13, 2004)

What are some other signs of a Code of
Silence?
________________________________________________

____________________________________________
____________________________________________
____________________________________________
To send us your answers go to:
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co_handbookresponses.cfm

A former correctional officer and supervisor admitted to lying to high-ranking
officials when he said he could not
remember the names or faces of workers involved in a deadly attack on a
detainee last year. The guard said, “The
reason why is that I did not want to be
the one up in this position now. Woods
and Hatcher are good friends of mine. I
have nothing against them.” (As reported by the Baltimore Sun on September
28, 2006)

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

While there is disagreement about the power and pervasiveness of the code of
silence, it does exist within most correctional environments. These unspoken rules
often result in irreparable damage to the profession.4 As previously mentioned,
there are often consequences for those who choose not to report an incident due
to this code of silence.
The primary mission of corrections is to provide safe and secure environments for
persons under correctional supervision and the staff who supervise them. The
code of silence, however, compromises agency security. Administrators and agency
policy should be clear about the harm caused by the code of silence. The presence
of unethical behavior, abuse of power and cover-ups may result in the institution
becoming a dangerous place to live and work.5 It allows a group to enforce the
rules as they see fit without being accountable. It ultimately breeds anger and distrust and can destabilize an agency.
Another mission of corrections is to create an environment where people can contemplate and/or change behavior that resulted in their conviction and imprisonment. Staff sexual misconduct is at odds with the goal of behavioral change and
rehabilitation by creating an unequal and sexualized environment where staff
members fail to fulfill their duties as rehabilitators.
In order to address the unhealthy work environment caused by staff sexual misconduct with offenders, there must be a change in agency culture and a redefinition of staff sexual misconduct as a security issue. Even though staff may face
pressure to be silent or ignore misconduct, it is necessary to understand the difference between loyalty to each other and loyalty to corrections as a whole. Loyalty
to the group is important in fostering solidarity, enhancing safety and building
trust. Ultimately though, loyalty to the mission of corrections — safe, secure and
rehabilitative environments — is more important.6

Martin, Keith. “Cracking the Code of Silence.” Corrections.com. 6 July 2002.
<www.prisonerlife.com/articles/articleID=36.cfm>
Martin, Keith. “Cracking the Code of Silence.” Corrections.com. 6 July 2002.
<www.prisonerlife.com/articles/articleID=36.cfm>
6
Martin, Keith. “Cracking the Code of Silence.” Corrections.com. 6 July 2002.
<www.prisonerlife.com/articles/articleID=36.cfm>
5

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Victimization

Offender Abuse Histories

Many correctional staff do not view offenders as “victims” of staff sexual misconduct, especially when offenders initiate or appear to willingly engage in sexual or
“romantic” interactions with a staff member. Yet, no matter what an offender says
or does, the imbalance of power between staff and offender makes the offender
the victim. What may appear to be consent or willingness to participate can often
be a survival strategy or a response to prior or current victimization.

Men:
Although men are more likely than
women to be abused in childhood by
someone outside of the family, more
than half of male offenders reporting
a history of abuse had been abused
by parents or guardians.

In fact, most offenders have prior histories of victimization. A 1999 report by the
United States General Accounting Office found that 52 percent of state female prisoners had been physically or sexually abused prior to their current incarceration.7

Sixty one percent of male state prisoners reporting abuse were serving a
sentence for a violent offense, compared to 46 percent of those reporting no past mistreatment.

A Bureau of Justice Statistics report from 1999 also indicated that 19 percent of
state prison inmates, 10 percent of federal inmates and 16 percent of jail inmates
(male and female) reported being physically or sexually abused in the past.8 The
report also found:
Female offenders who are survivors of abuse:
report that nearly one-third of the abuse is suffered at the hand of a parent or
guardian; prior abuse by spouses or boyfriends is also reported
report that abuse continues through childhood into adulthood
report abuse by both family members and intimates
are more at risk for unhealthy relationships with authority figures, particularly
men

Males are less likely to report abuse
or seek help.
The experience of sexual victimization may be even more stigmatizing
for men than for women because
these victimization experiences fall
so far outside of the proscribed male
gender role.

Women:
The majority of female offenders
report prior sexual abuse, which
appears to be a pathway to delinquency, addiction and criminality.
Women are more at risk for unhealthy
relationships (characterized by
abuse, exploitation) with authority
figures, particularly men.

Male offenders who are survivors of abuse:
indicate being mistreated, mostly as children
are more likely than women to be abused by someone outside of their family
are less likely to report abuse or seek help
may question sexual identity and preference as a result of the abuse
Some impacts of victimization on all offenders (male and female) are:
questioning what is normal
altered development of attitudes towards self, sexuality and relationships
poor boundaries, including promiscuity
substance abuse and addiction

United States. General Accounting Office. Women in Prison: Sexual Misconduct by Correctional Staff.
Washington, DC. June 1999.
8
United States. Bureau of Justice Statistics. Prior Abuse Reported by Inmates and Probationers. Comp. Caroline
Harlow. Washington, DC. April 1999.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Female offenders report that they
were most often abused by intimates
or family members. Almost 91 percent knew their abuser, 40 percent of
abuse was at the hands of a family
member, and 27.2 percent of abuse at
the hands of a parent or guardian.
Sixty one percent of abuse was perpetrated by an intimate.

Classes of persons vulnerable to
sexual abuse include those who
are:

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

a “use or be used” philosophy
low self-esteem
feelings of powerlessness

Developmentally disabled

feelings of mistrust, betrayal and fear

Hearing impaired

feelings of guilt or shame

Limited language ability

susceptibility to further victimization

Previously victimized

mental illness

Gay and transgendered

suicidal tendencies

Juveniles
Untreated addicts
The mentally ill
The elderly

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Communication, Gender and Abuse Histories
A history of abuse for both staff and offenders will affect how women interact with
men and how men interact with women. It will also affect how men and women
interact with others of the same gender.
In addition, women and men differ in their behavior and communication styles
even if they have not experienced abuse. By understanding how you behave and
communicate, you will be more likely to avoid situations that could be misinterpreted or lead to sexual misconduct.
Some characteristics of male behavior and communication are that men often:

Typology of Staff Involved in
Sexual Misconduct:
SITUATIONAL: Good professional history,
sudden change in life course, situational
breakdown in judgment or control
PSYCHOTIC: Impaired reality, delusions
of grandiosity and love
NAÏVE: Difficulty understanding or operating within professional boundaries
due to poor social judgment
NEEDY: Emotionally dependent, overly
involved, not initially driven by sexual
desires

guard information
do not share thoughts and feelings
are reluctant to ask for help

THRILL-SEEKER: Risk-taker, desires
adventure, enjoys living on the edge

are less verbal
can be aggressive, competitive and less outwardly emotional

PREDATOR: Narcissistic, self-centered
exploiter, manipulative, seeks to gratify
own needs, lacks remorse

have an ability to conceal vulnerabilities
Some characteristics of female behavior and communication are that women
often:
share thoughts and feelings
build rapport, bond, and have closeness and intimacy with people
are eager to talk about problems
are caretakers
can show feelings and emotions

LOVESICK: Believes they are in love with
the offender; deficiency in judgment
confined to one particular offender
RESCUER: Believe they have special
kinds of help that only they can offer to
save/guide/help the offender
BULLY: Intimidates, dominates, finds victims’ submission gratifying, exerts
power and control

are more inclined to ask for help
are willing to expose vulnerabilities
The interrelationship between communication, gender and abuse histories in correctional settings is important because it affects how offenders interact with you
and how they do their time.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

(Source: United States Department of
Justice/National Institute of Corrections.
“Gender Differences.” Investigationg
Allegations of Staff Sexual Misconduct
with Offenders Training: Comp. Melissa
Turner. Washington, DC. (July 2006)).

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Other examples of pressures
correctional staff face are:

Tools for Defining and Identifying
Inappropriate Relationships with Offenders

____________________________________________

Correctional staff members are subject to many pressures. These pressures
can make staff vulnerable to behaviors they may not normally engage in.

____________________________________________
____________________________________________

Pressures include but are not limited to:

____________________________________________
____________________________________________

Other strategies for supporting
staff can include:

stress on the job (e.g. conflicts with other staff)
personal stress (e.g. financial difficulties, marital difficulties, loneliness, mental
health problems)
substance abuse
personal life changes
issues of power and control

________________________________________________

____________________________________________

balancing counseling and treatment responsibilities with surveillance and
control

____________________________________________

inadequate preparation for supervising offenders and understanding their
complex life experiences

____________________________________________

inadequate supervision and support from administration

____________________________________________
To send us your answers go to:
http://www.wcl.american.edu/nic/
co_handbookresponses.cfm

Offenders have the right to be free from sexual advances by correctional staff.
While there is no question that correctional environments are stressful and dangerous work places, personal factors can also weaken a staff member’s resolve to
avoid sexual misconduct with an offender.
If you are afraid you are in danger of having an inappropriate relationship with an
offender you should find out what resources your agency has to support staff in
these situations. You can:
tell a supervisor and request help
contact your employee assistance program (E.A.P.) or a private counselor
tell a friend or other trusted staff member
request a transfer of post
request a transfer of the offender

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Ethics9

American Correctional
Association Code of Ethics

Ethics are the knowledge and guidelines used to make decisions based on a set
of morals and values within a particular group. Correctional staff face many
challenges that make day-to-day decisions difficult. Making ethical decisions are
sometimes even harder.
In order to make an ethical decision it helps to:
define the dilemma you are having

Respect and protect the civil and
legal rights of all individuals.

gather data and information about the dilemma
list the “pros and cons” if you make a decision either way
ask yourself if your choices would be considered legal
ask yourself if your choices feel consistent with your own values and moral compass
ask yourself if your choices are consistent with your agency’s mission
list the consequences for yourself, offenders, other staff, supervisors, administrators and the public
We face ethical dilemmas every day. Some examples of ethical decisions you may
need to make are:
Is it ethical for me to have dinner with the family of an offender?
Is it ethical to cover for a colleague who is experiencing some personal problems
at home and behaving in a questionable manner?
Is it ethical to accept a reduced price meal from a local diner because I am a correctional staff member?
Is it ethical to overlook a close friend’s violation of a petty department rule?
Is it ethical to take a mental health day periodically?
Is it ethical to have my car serviced at a garage where a former offender works?
Is it ethical to tell a “little white lie” to protect a peer or colleague?
Is it ethical to tell an offender s/he looks good or flirt if no one “gets hurt”?
Is it ethical to find ways around departmental policy and procedures that get in
the way of doing my job?
Is it ethical to do favors for my supervisor?
Is it ethical to do favors for an offender?

The American Correctional Association
expects of its members unfailing honesty, respect for the dignity and individuality of human beings and a commitment to professional and compassionate
service. To this end, we subscribe to the
following principles. Members shall:

Center for Innovative Public Policies. Addressing Staff Sexual Misconduct in Community Corrections. Comp.
Susan McCampbell. 2002.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Treat every professional situation
with concern for the welfare of the
individuals involved and with no
intent to personal gain.
Maintain relationships with colleagues to promote mutual respect
within the profession and improve
the quality of service.
Make public criticism of their
colleagues or their agencies only
when warranted, verifiable, and
constructive.
Respect the importance of all disciplines within the criminal justice system and work to improve cooperation
with each segment.
Please visit the American Correctional
Association at www.aca.org for the full
Code of Ethics.

Some headlines involving staff
sexual misconduct with offenders
have included:

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

The answers to these questions are not always clear or easy to determine. Avoiding
staff sexual misconduct with offenders also involves ethical choices.
To determine if the decision you have made is ethical, ask yourself:

Former Prison Nurse Springs
Husband, Fatally Shoots Officer

Was my decision based on anger, lust, peer pressure or greed?

Escape Reinforces Rules Against
Relationships with Inmates

Would I make the same decision if my family were standing beside me?
Would I make the same decision if I were being videotaped or my supervisor was
watching?

Prison Love Led To Deadly Shooting, 2
Days on the Run and Capture

Would my loved ones be ashamed of my decision?

Virginia Ex-Deputy Guilty of Having
Sex With Inmates
Governor Fires Prison Chief Over
Inmate Sex in Mansion
Correctional Officers Accused of Sex
Offenses with Inmates
County Jail Guard Charged with
Sexually Abusing Woman

Can I look at myself in the mirror after the decision I made?
Some people find applying the Headline Test is a good way to determine whether
a decision may be ethical or not. Ask yourself, “what would a headline in a newspaper look like if they were covering this story?” If the headline looks or feels bad
or is one you would be ashamed to show your friends or family, the decision or
action is probably not a good one.

Ex-Officer Pleads Guilty to Sex with
Inmate
Deputy Sentenced in Sex Case

The Daily Dozen10

Nurse Pleads Guilty in Prison Sex
Case

Asking yourself questions can be a good “check and balance” to see if pressure
is clouding or affecting your good judgment. The purpose of these self-check
questions is to help correctional staff members identify when they might be getting close to crossing ethical and professional boundaries.
The questions are as follows:
Do you look forward to seeing a particular offender when you come to work?
Have you done anything with an offender that you would not want your family or
your supervisor to know about?
Would you be reluctant to have a co-worker observe your behavior for an
entire day?
Do you talk about your personal matters with offenders?
Do you believe you can ask an offender to do personal favors for you?
Have you ever received personal advice from an offender?
Have you said anything to an offender that you would not want tape recorded?
Do you have thoughts or fantasies of touching a particular offender? Does this
extend to planning how you can be alone with that offender?
Do you think you have the right to touch an offender whenever and wherever
you want to?
10

Teena Farmon, a former warden and a national expert on staff sexual misconduct initially developed this
questionnaire for correctional staff to use as a self-test daily.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Do you look forward to sharing good/ bad news with a particular offender?
Do you think offenders are not allowed to say “no” to you, no matter what
you ask?
Have you ever allowed an offender to talk to you about sexual experiences or
sexual fantasies, or to tell sexual jokes in your presence? Have you ever shared
these things with an offender?
If you answered “yes” to any of the above questions, you may be in danger — sexual misconduct often begins as over-familiarity with an offender. Even offering an
offender something you may think is simple and harmless, such as candy or soda,
can begin to break down professional boundaries. This is particularly important
because in some facilities, correctional staff come from the same communities.
You may share schools, friend, and sometimes even family. But it is your responsibility to treat all offenders the same and in accordance with your agency’s policies.
Correctional administrators also have a responsibility to assist and support staff
members. Administrators need to ask if their agency does the following to prevent
staff sexual misconduct with offenders:
adequately train and supervise staff
minimize role ambiguity within the agency (make it clear where boundaries
between staff as helpers and staff as keepers should be drawn)
have adequate staffing so staff are not required to work excessive overtime to
fill gaps
limit overcrowding and case loads as much as possible
minimize the isolation of staff members from their peers
minimize staff turn-over
have zero tolerance for retaliation against those who report sexual misconduct
develop a system of anonymous reporting of incidents of sexual misconduct
offer safe avenues for staff who seek help
protect staff who come forward to report misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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Are there other questions like the Daily
Dozen you should be asking yourself?
________________________________________________

____________________________________________
____________________________________________
____________________________________________
____________________________________________
To send us your answers go to:
http://www.wcl.american.edu/nic/
co_handbookresponses.cfm

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Can you identify other red flags?

Red Flags

____________________________________________

Addressing staff sexual misconduct is important both individually and within an
agency. While you may not be in danger of committing such an offense, one of your
co-workers may be. Therefore it is very important to pay close attention to your
colleagues’ behavior as well as your own.

The following is an exercise developed over the years. It is a list of behaviors that
may be signs that you or someone you work with is in danger of engaging in sexual
misconduct. These behaviors or “red flags” may signal that there are problems
ahead for you, your co-workers, or your agency.
Some examples of “red flags” are:

Can you identify the red flags
in this situation?

deviating from agency policy for the benefit of a particular offender

(Answers on page 22)

changes in the appearance of an offender or staff member
overlooking infractions of a particular offender

Emily, the only female intern working on
unit 4, came to work early on a Friday to
work on some programming she was
planning. That was the fourth day that
week she came in early and worked late.
She had appointments with four residents set up that day for review of discipline files. Each appointment took about
15 minutes.

spending a lot of time with a particular offender
trying to manipulate duty assignments in favor of a particular offender
taking up an offender’s cause or grievance
doing favors for an offender
getting into conflicts with co-workers over an offender
withdrawing from co-workers
consistently volunteering for a particular assignment or shift

As usual, she kept her office door open
during those appointments. The fifth resident appointment took an hour and the
door was closed. This particular resident
had been in her office each day this week
and she was unusually attentive to him
when she was out on the unit. She always
asked the unit advisor about this particular resident and his progress, even
though he was not on her case load.
When questioned about her unusual work
hours and specific interest in this particular resident, she responded that she was
fighting a lot with her husband and did
not want to be home much. She said her
interest in this particular resident was
because they were from the same neighborhood and she knew his sister.
When the resident was questioned about
his relationship with Emily he revealed
that he knew her phone number and that
she had confided in him that she was
thinking of getting a divorce. The resident
stated that she looked sad one day, and,
noticing that she did not interact with any
other staff because they were all men, he
thought he could be her friend.

consistent overtime
coming to work early
staying at work late
flirting with an offender
feeling the effects of major life changes (such as the end of a relationship)
less rigid body language or standing unusually close to an offender
doing favors for an offender’s family
bringing things into the facility for the offender
Remember, it is a problem for every staff member when a co-worker is involved
in sexual misconduct. By regularly looking for red flags and signs of over-familiarity, and by asking yourself the Daily Dozen questions, you will be doing a personal
check of your feelings and emotions as well as those of your co-workers. This
will help in the protection from and prevention of staff sexual misconduct with
offenders.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

What Happens When an Allegation of Staff
Sexual Misconduct is Made?
Because all states define staff sexual misconduct as a criminal behavior, sexual
misconduct allegations must be treated like any other allegation of criminal conduct. While each investigating authority will have different protocols, there are
some common investigative elements.
An investigation is a process to objectively gather the facts surrounding an allegation to prove or disprove, to the extent possible, its merits. Effective investigations
of allegations of staff sexual misconduct with offenders are essential for the
agency’s security, the safety of offenders and staff, and the professionalism of corrections. Effective investigations also help the agency to prove the guilt or innocence of staff members.

Demystifying the Investigative Process
The first few hours after an allegation is made are critical to the investigative
process. Investigators should:
secure the crime scene
assure medical and mental health interventions are available
collect and preserve physical evidence
gather witness statements
transfer the victim and/or staff member involved to ensure no further harm
provide medical or mental health services to the victim if necessary
implement the investigative plan
The plan put together by an investigative team may include:
individual interviews with staff, the victim, and all other possible witnesses (staff
and offenders)
searches of staff and offender property
reviewing account activity of the offender
reviewing telephone activity of the offender and staff
reviewing mail to the offender
collection of DNA evidence (which includes blood, semen, saliva, skin and hair)
the use of covert surveillance techniques11
electronic monitoring and recordings

Each jurisdiction’s rules about surveillance are different. For more information on the rules for your agency
consult your investigations department.

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DNA can be collected from cups, chairs,
floors and clothes and can be found
years after an incident. One of the most
important aspects of securing a crime
scene in a correctional setting is to preserve the scene with minimal contamination or disturbance of any physical
evidence. The first responder in a sexual
assault incident should always treat the
area in question as a crime scene. He or
she should remain observant of any persons, events, potential evidence and
environmental conditions, and pass this
information on to the investigative
team.

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Polygraph results are often in question.
The CIA, the FBI and many other agencies use polygraphs to screen applicants
even though scientists are increasingly
certain that the equipment is ineffective
at accurately detecting when people are
lying. Many researchers and defense
attorneys say the technology is prone to
a large number of false results that have
stalled or derailed careers. (As reported
by The Washington Post on May 1, 2006)

Staff members accused of sexual misconduct may face the following during an
investigation:

Red Flags Answers

Each agency has a unique investigative process. We suggest that you find out what
the investigative process is in your agency. Consider the following:

(from page 20)
1. Unusual amount of office visits by an
offender
2. Employee is isolated from other
employees
3. Employee is in personal crisis
4. Employee is consistently working
overtime
5. Employee is overly concerned about
a particular offender

controlled calls between staff and offenders
polygraph examinations

reassignment
placement on administrative leave with or without pay
required participation in an employee assistance program (E.A.P.)

Who is responsible for investigating allegations of staff sexual misconduct?
How can an offender or staff member make a complaint?
To whom is the complaint made?
Who collects evidence?
How does evidence get collected?
Who interviews witnesses?
What are the guidelines for interviewing other staff?
Does the interview policy allow the use of polygraphs?

6. Employee is discussing personal
information with an offender

Who will manage the investigation?

7. Employee is involved with an
offender’s family

Does your agency have a victim advocate? If so, when are they called in?

8. Closed door

What are the procedures for handling unsubstantiated reports?

Is there a review of the investigation once it is completed?

By learning the answers to these questions, you can demystify the internal investigative process for yourself. At the mere mention of internal affairs, many correctional staff have negative reactions. For a variety of reasons, including unfamiliarity with the investigative process, internal affairs investigations are suspect for
most correctional staff members. However, if the internal investigative process is
understood, staff are more likely to be cooperative and report suspicious activity
and violations of policy. Remember, thorough and competent investigations can
clear staff as well as convict them.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

What are Your Rights During a Staff Sexual
Misconduct Investigation?

What is a "probationary
employee"?

Your rights as a correctional staff member depend on your employment status.
Consider the following:

A worker may be considered
"probationary" when:
1. the worker is first hired (whether
under a union contract or based on
the employer's personnel policies);
or

Are you a public or government employee?
Are you a union member?
Are you a private employee?

2. the worker is being disciplined by the
employer

Are you a new employee and on probation status?
Are you on disciplinary status from a previous situation?
Public or government employees are those employed by a federal, state or local
government. They have significant protections under federal and state law and
also under federal and state constitutions.
Many correctional staff members belong to unions. If you are a union member, you
have certain protections during investigations and/or disciplinary procedures that
are governed by the collective bargaining agreement (the agreement between the
union, the workers represented and the agency).
Still other correctional employees are workers in the private sector, who do not
have rights against their employer under the federal constitution but have some
protections under federal and state antidiscrimination and other laws.
As public sector employers, correctional facilities must balance your constitutional
rights with the legitimate interests of your agency. Your constitutional rights as a
public employee are guaranteed by the:
First Amendment — Freedom of Association
Fourth Amendment — Privacy and Surveillance
Fifth and Fourteenth Amendments — Due Process and Equal Protection

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As a probationary employee, am I
still covered by employment laws?
Generally, employment laws treat probationary and regular employees equally.
Whatever the reason for an employee’s
probation, the employer is still required
to abide by minimum wage, discrimination, and workers' compensation laws
regarding that employee.

I have been placed on probation
by my employer for disciplinary
reasons. What is the legal significance of being on probation?
If an employer places an employee on
probation for disciplinary reasons, that
employee still has the same legal rights
as regular employees. There is no legal
significance to this probationary status
other than as notice to the employee
that s/he is in danger of being fired.

Ross v. Clayton County, 173 F.3d 1305
(11th Cir. 1999). Demotion of a corrections officer who had allowed his probationer brother to live with him did not
violate the officer’s free association
rights under the First Amendment.

Keeney v. Heath, 57 F.3d 579 (7th Cir.
1995). Plaintiff guard at a county jail,
who had been forced to resign from her
job when she married a former inmate,
sued, arguing that the county jail regulation that prohibited employees from
becoming socially involved with inmates
in or out of jail violated her constitutionally protected right to marry under the
First Amendment. The court upheld the
agency rule as constitutional.

Sacramento County Deputy Sheriff’s
Association v. County of Sacramento, 51
Cal. App.4th 1468 (1996), cert. denied,
520 U.S. 1124 (1997). County jail employees sued for Fourth Amendment violations after discovering they had been
subjected to video surveillance in the
county jail’s release office, which was off
limits to inmates. A concealed video
camera without audio capacity had been
installed in this office after inmates’
money was reported missing almost a
dozen times. The court held that the
employees had no objectively reasonable expectation of privacy while in the
release office, especially given that they
had accepted employment in a prison
setting, and that the institution’s security concerns weighed more heavily than
officers’ privacy rights.

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

The First Amendment
The First Amendment to the U.S. Constitution protects your rights to free speech
and free association against interference by government actors. If you work for a
government employer, you carry some of these First Amendment protections to
work. However, courts have recognized that staff rights to freedom of association
may be limited by correctional facilities’ legitimate interests in upholding staff professionalism and preventing fraternization between staff and offenders. Using this
reasoning, courts have said correctional facilities’ no-contact policies are appropriate even when challenged under the First Amendment. No contact policies typically
prohibit correctional staff from having relationships, both while on and off duty,
with persons under correctional supervision. The courts have held that the policies
are reasonable as long as they are justified by:
interests in on-the-job performance
interests in off-the-job conduct that implicates officers’ fitness for duty
interests in the public reputation of correctional facilities

The Fourth Amendment
The Fourth Amendment states that it is your right to be free from unreasonable
searches and seizures. If you are a public employee, this means you have some privacy rights at work. However, the amount of privacy protection you are entitled to
depends on what reasonable expectations of privacy are in your employment setting. Because correctional facilities are, by their very nature, work settings where
employees can reasonably expect a high degree of surveillance, your reasonable
privacy expectations as a correctional staff member are limited. Correctional staff
are well aware that their employers often use various types of surveillance within
and around the perimeters of the agency, and that those surveillance techniques
are often likely to watch staff as well as offenders.
The courts have found the following in cases of surveillance and Fourth
Amendment violations:
employees who accept a job in a correctional setting have very limited expectations of privacy
a correctional agency’s security concerns weigh heavily in the balance between
agency needs and employee privacy rights
random drug testing of correctional employees is permissible provided that it is
not administered in a discriminatory way

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

employee vehicles parked where they are accessible to offenders can be
searched without cause provided that the searches are not administered in a discriminatory manner
employee vehicles not accessible to offenders can only be searched on the basis
of reasonable suspicion that they may contain contraband
searches of a staff member’s home require probable cause, as would be the case
for any citizen

The Fifth Amendment and Statutory Due Process Rights
If you are a public employee, the Fifth Amendment gives you the right to due
process of law. Due process includes the right to avoid self-incrimination, to have
representation for yourself, and to have due process proceedings before negative
employment action is taken against you. The hearing procedures to which you are
entitled will be spelled out under your state or federal civil service laws that apply
to government employees.

The Fourteenth Amendment
The Supreme Court has held that the Fourteenth Amendment to the U.S.
Constitution prohibits coerced statements in an internal investigation from being
used in a later criminal prosecution. These rights are based on a U.S. Supreme
Court case known as Garrity v. New Jersey, 385 U.S. 493 (1967). These rights apply
only in the context of investigations of public employees. The Supreme Court set
forth rules for interrogating public employees and said that public employees
could not be forced, under threat of discipline, to violate their protection against
self-incrimination. In simple terms, this means that an investigator cannot force
you to talk to them in connection with a criminal matter by threatening you with
the loss of your job or other employment-related discipline. If an investigator does
this, any information you provide cannot be used against you in a later criminal
proceeding. Asserting your Garrity rights during an administrative hearing where
you can be disciplined is advised.

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Sample Garrity Notice
“You are advised that you are being
questioned as part of an official
investigation by (insert agency name
here). You will be asked questions
specifically directed and narrowly related to the performance of your official
duties or fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and Constitution of
(the State) and the United States
Constitution. This includes your right
not to be compelled to incriminate yourself (for unionized agencies only) and to
have a union representative present
during questioning. I further wish to
advise you that if you refuse to issue a
statement or to answer
questions relating to performance of
your official duties or fitness for duty
you will be subject to departmental
charges which could result in your
termination. If you do answer, neither
your statements nor any information or
evidence, which is gained by reason of
such statements, can be used against
you in any subsequent criminal proceeding. However, these statements may be
used against you in relation to subsequent disciplinary actions.” - Minnesota
DOC Internal Affairs Division

Sample Waiver of
Union/Association Representation
I have been offered the opportunity to
have a Union/Association representative
present prior to my being asked any
questions during this investigation that
may lead to my being disciplined in
accordance with the collective bargaining agreement between _________ and the
State/ local jurisdiction of ________.

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

The burden is on the employee to assert Garrity and make clear to the employer
that you are answering under threat of losing your job. Once an employee has
asserted Garrity rights, a supervisor or investigating authority must:
attempt to make the question specific and related to your employment
advise you that the answers will not and cannot be used against you in a
criminal proceeding
It is important to understand that Garrity rights apply only under certain
circumstances. Important to the Garrity rule is the following:

I am hereby waiving my right to have
Union/Association representation present while being asked questions during
the investigation.

whether the employer actually ordered or required you to respond to questions
whether you were compelled by the threat of discipline to answer the question
Garrity protections do not apply if you voluntarily give a statement. Unless you are
compelled, you have no obligation to respond to the questions. If you do decide to
respond to questions without being compelled, there is no immunity given for the
later use of your answers in a criminal prosecution. It is also important to remember that Garrity does not protect you from employment discipline.

Union Member Rights
If you are a union member, you also have a right to union representation at investigatory interviews. These rights were first announced by the U.S. Supreme Court in
a 1975 case and have become known as Weingarten rights.12 Weingarten rights
apply during investigatory interviews. Investigatory interviews happen any time a
supervisor questions an employee to obtain information that could be used as a
basis for discipline, or asks an employee to defend his or her conduct.
If you have a reasonable belief that discipline or other adverse consequences may
result from what you say in answering a supervisor’s questions, you have the right
to request union representation. Management is not required to inform you of your
Weingarten rights; it is your responsibility to know and make the request.
When you make the request for a union representative to be present, your
supervisor or the investigating authority has three options:
stop questioning until the representative arrives
call off the interview
ask you to voluntarily give up your right to a union representative (it is generally
not a good idea to waive your rights)

NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689. University of Hawaii – Oahu. Center for Labor and
Research.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Employers often claim that the only role of a union representative in an investigatory interview is to observe the discussion. However, according to the Supreme
Court, your union representative may do any of the following:

Can an Employer Take the
Following Actions?
(Answers on Page 28)
Withdraw a job offer to a probation officer applicant after learning the applicant is married to a former offender

assist and counsel you during the interview
seek information on the subject of the interrogation
speak privately with you before the interview
interrupt to clarify a question or to object to confusing or intimidating tactics
advise you on how to answer a question, provided that this advice does not
extend to telling you what to say
add information to support your case at the end of the interview
The union representative may not be disruptive or obstructionist, and an employer
may be within its rights to request that the representative leave if he or she acts
this way.
Your collective bargaining agreement will also provide for a grievance procedure
ending in arbitration of any disciplinary action. If you engage in arbitration to contest discipline imposed based on an allegation of sexual misconduct with an
offender, remember the following:
both sides have the right to representation. (Remember, the attorney or other
representative your union provides for you works for the union. He or she is not
your lawyer.)
both sides have the right to present evidence
your employer may not interfere with your or any employee’s right to testify at
an arbitration hearing
your union owes you the duty of fair representation and may not refuse to take
or defend your case vigorously

Employee Rights against Discrimination
If you are a public employee, federal and state laws, and the Constitution, grant
you protection against discrimination by your employer on the basis of race, sex,
national origin or religion. In order to make a case of discriminatory treatment
based on your employer’s investigation of alleged sexual misconduct or disciplinary action, you must be able to prove that you were treated differently from
other employees in the same situation but with different social identity characteristics. It is usually very difficult for employees to win discrimination cases. Most
employees who file such cases lose them even when they have some evidence of
discrimination. Nevertheless, the law does require employers to treat employees
with an even hand regardless of race, sex, national origin or religion.

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Yes

Terminate a probation officer for buying
a car at a dealership where a probationer under her supervision works (even
though he was not involved in the sale)
Yes
No

Terminate a probation officer for
exchanging letters with a man she once
dated who is now serving a life sentence
outside her jurisdiction
Yes
No

Deny a probation officer’s request to
attend the baptism of a child of a longstanding friend whose older son had
been placed on probation
Yes
No

Defamation and Qualified
Privilege
“Qualified privilege” protects representatives of employers who give out
allegedly defamatory information for
legitimate business purposes. This
applies to former employee reference
checks, provided that employer can
show:
Lack of malice
Good faith
Belief in truth of the statement made

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

If it appears that you are being wrongfully targeted for investigation based on your
race, sex, national origin or religion, and others are treated differently, your rights
may be being violated.

Protections for Private Sector Employees
If you work for a non-government employer, such as a private contractor who provides services within a correctional agency, the constitutional protections discussed above will not apply to you. You will, however, still have significant protections under federal and state antidiscrimination laws. Almost all employers are
prohibited from discriminating on the basis of race, sex, national origin or religion.
Generally, employment in the private sector however, is on an “at will” basis,
which means that your employer is free to fire you for any reason except a discriminatory one, at any time.

Employee Polygraph Protection Act:
Many states have rules limiting or
prohibiting polygraph testing; check
with your legal counsel
Federal law prohibits most polygraph
testing in the private sector, but
exempts public employees

Former Employee Reference Checks
If you are terminated based on allegations of sexual misconduct, your former
employer will have “qualified privilege”13 to provide information about your termination to future employers who are conducting reference checks. Your former
employer must act in good faith and may not be vindictive or spread information
about the circumstances of your termination beyond those who have a legitimate
“need to know.” Your employer can ask you to sign a waiver before agreeing to
provide information about your employment to prospective employers. If you are
investigated for alleged staff sexual misconduct and the investigation does not
conclude that the allegations are true, be sure that it is clear in your employee
record that the allegations were unfounded. You should also save copies of any
reports or other written materials you receive in the course of any such investigation in your personal files at home.

(Answers from Page 27)
Courts upheld employers in all of these
cases. While this is still a developing
area of law, there is a strong trend in the
courts toward upholding state no contact policies between correctional
employees and offenders and exoffenders.
13

Qualified Privilege is applied to material that is of public concern and for the public benefit.

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

What are the Legal Consequences of Staff
Sexual Misconduct with Offenders?
There is legal liability for staff sexual misconduct with offenders. That liability can
come in a number of ways. Correctional staff members who are found guilty of sexual misconduct with an offender could face:
criminal;

A former Livingston County jail (Illinois)
correctional officer will serve fifteen
weekends in jail, pay a fine of $300.00
and register as a sex offender after
pleading guilty to having sexual contact
with a female inmate. In 2002 the officer
was the jail’s correctional officer of the
year. (As reported by the Pantagraph of
Bloomington, on November 2, 2004)

civil; and
administrative sanctions
When discussing legal consequences for staff sexual misconduct, it is important to
know the following:
sex between staff and offenders violates state and federal criminal laws
sex in correctional settings between staff and offenders can violate the U.S.
Constitution
correctional staff have a special responsibility to offenders; therefore as a matter of law, offenders cannot consent to sex with staff
correctional agencies have a responsibility to protect employees and offenders
who report sexual misconduct
It is important to remember that however you may feel about offenders, there are
legal ramifications for any actions taken with or against an offender.

Criminal Liability14
Each state has a law that makes staff sexual misconduct with offenders a crime.
While each state’s law is different in its coverage and penalties, it is essential that
you know the following about the laws in your state:
which employees are covered under the law
which correctional settings are covered under the law
what conduct is covered under the state’s sexual misconduct law
if staff are considered mandatory reporters
what are the legal sanctions and penalties defined for those found guilty
is there a strict liability defense

A 50 State Survey of Criminal Laws Prohibiting the Sexual Abuse of Individuals in Custody developed by the
NIC/WCL Project on Addressing Prison Rape under NIC Cooperative Agreement 06S20GJJ1 is located in the
appendix of this handbook.
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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A former corrections lieutenant fathered
the child of an incarcerated woman. DNA
tests proved that veteran Virginia
Department of Corrections Officer
Bobby Gordon Brown, Jr. fathered a
child while the child’s mother, Sheron
Montrey, was imprisoned at the
Pocahontas Correctional Center in 2005.
Brown will serve six months in jail and
pay restitution. (As reported by The
Richmond Times Dispatch on July 27,
2006)

A former jail guard plead guilty to rape
and lying to the FBI about sexually abusing female inmates at the Rensselaer
County Jail (New York). David Rohrmiller
admitted to the Rensselaer County Court
that he lied to the FBI and the grand
jury. He faces one to three years in
prison for third-degree rape. (As reported by the Associated Press on March 24,
2006)

Jimmie Harris Knight, a former Federal
Correctional Institute (FCI) officer, was
sentenced to three years probation and
six months home detention for a sexual
incident that occurred with a female
inmate on June 6, 2005. Other FCI
guards were charged separately with
conspiracy and staff sexual misconduct,
which spurred a deadly shootout in
June. (As reported by the Tallahassee
Democrat on August 29, 2006)

A suit filed in federal court by the Civil
Rights Division of the U.S. Department
of Justice accuses former Inmate
Systems Manager, Rick Bernard, of sexual contact with female inmates at the
Bryan Federal Prison Camp. He is
charged with two counts of sexual abuse
of a ward, two counts of abusive sexual
contact with a ward and one count of
making a false statement to a federal
agent. (As reported by the Houston
Chronicle on October 3, 2006)

Prosecutors can also use the following
areas of law to charge correctional staff
who engage in sexual abuse of individuals under correctional supervision:

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

The legal consequences you could face if convicted of felony or misdemeanor staff
sexual misconduct with an offender may include:
fines
imprisonment for “less than one year” up to “a term not to exceed life in prison”
loss of professional license
sex offender registration
It is important to remember that in cases of staff sexual misconduct, prosecutors
can seek a conviction under sexual assault, statutory rape, sodomy and sexual misconduct laws. In addition, prosecutors can charge you for official misconduct.
If you fail to report the misconduct or assist another staff member in facilitating
the conduct — either by hiding their conduct, lying about conduct you’ve
witnessed, or participating in it — you can be charged with:

1. Witness Tampering
2. Bribery

obstruction of justice

3. Perjury

conspiracy

4. Malfeasance in Office

making a false statement to a government official

Civil Liability
The U.S. Constitution, state constitutions and state and federal laws protect offenders from correctional officials’ actions and actions of other individuals whom correctional authorities have given authority over offenders.
Federal Constitutional provisions are:
42 U.S.C. §1983
The Fourth Amendment
The Eighth Amendment
The Fourteenth Amendment
Correctional staff are “persons acting under color of state law” under 42 U.S.C.
§1983, so they can be liable for violating offenders’ rights. This is true even if you
are not security staff or if you don’t work for the corrections agency. Persons acting under color of state law can include:
volunteers
contractors
food service workers

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

clergy
staff in other agencies where offenders work (such as supervisors of offenders
on work release)
teachers
nurses
In sexual misconduct cases, offenders typically claim that correctional staff or
agents violated their rights under:
The Fourth Amendment

Colman v. Vasquez, 142 F. Supp.2d 226
(2d. Cir. 2001). A female inmate was
incarcerated at FCI Danbury in a special
unit for victims of sexual abuse, where
they were subjected to random pat
searches by male staff. A victim filed a
complaint after a staff member made
sexual advances, but the complaint was
ignored. The court found that there was
a failure to protect inmates and adequately train staff. The motion to dismiss on the basis of qualified immunity
was dismissed.

The Fourteenth Amendment
The Eighth Amendment
State law

The Fourth Amendment prohibits unreasonable search and seizures. Typical
actions challenged under the Fourth Amendment are:

Torres v. Wisconsin DOC, 859 F.2d 1523
(7th Cir. 1986). A male correctional officer at a maximum security women’s
prison challenged the DOC’s exclusion of
male employees from posts in the living
units. The court upheld the prison’s
decision.

inappropriate or intrusive searches
cross-gender supervision
inappropriate viewing of offenders
The Fourteenth Amendment prohibits states from depriving “any person of life,
liberty or property without due process of law.” Typical actions challenged under
the Fourteenth Amendment are:
sexual abuse by staff or other offenders
discipline or retaliation for reporting misconduct
any action that puts the offender at risk
Most often, though, offenders challenge staff sexual misconduct under the Eighth
Amendment of the Constitution. They claim that sexual abuse is “cruel and unusual
punishment” in violation of the Eighth Amendment. Courts favor offenders using
the Eight Amendment. Offenders must show that the harm is serious and that
persons acting under color of state law were deliberately indifferent to their
safety, health or a known vulnerability.
Typical actions challenged under the Eighth Amendment are:
sexual abuse by staff or other offenders
retaliation
inadequate medical treatment
conditions of confinement that contribute to an unsafe environment
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www.wcl.american.edu/nic

Morris v. Eversley, 2002 WL 1313118 (S.D.
N.Y. June 13, 2002). The court found that
women challenging sexual assault during incarceration are not required to
meet the Prison Litigation Reform Act
(PLRA) exhaustion requirement once
released.

Smith v. Cochran, 339 F.3d 1205 (10th Cir.
2003). An inmate who was assigned to
work in a state driver’s license bureau as
part of her sentence was able to sue the
state driver’s license examiner for sexual misconduct under the Eighth
Amendment. The court found that a
state agency that is delegated the
responsibility of care and confinement
of an inmate of the DOC can be liable
under Eight Amendment.

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

malfunctioning of unmonitored cameras
poorly trained staff
poor investigations
failure to fire staff who harm offenders
failure to supervise or train staff properly
Offenders also challenge sexual misconduct using state laws including:
State constitutions
State tort laws

Austin v. Terhune, 2004 WL 1088293
(9th Cir. 2003). A correctional officer
exposed his genitalia to a male prisoner.
The prisoner tried to file a grievance but
was prevented from doing so by other
officers. The exposing officer apologized
later and told the inmate not to complain but the inmate refused. The officer
filed a false disciplinary report on the
inmate. As a result, the inmate was
placed in segregation for six weeks.
During that time, the inmate continued
to file grievances. Officials eventually
investigated, and suspended the officer
without pay for 30 days. The court found
that there was no Eighth Amendment
violation for the exposure, but allowed
the inmate to proceed in an Eighth
Amendment law suit for the retaliation
against him.

assault and battery
negligent hiring, firing and supervision
intentional infliction of emotional distress
negligent infliction of emotional distress
Sexual misconduct can result in criminal and civil liability for correctional staff,
officials, and agencies. Staff can face sentences ranging from probation to 40
years in prison — in addition to loss of license, sex offender registration and civil
liability. Civil liability means that the state will have to pay monetary damages to
the harmed offender and/or take actions to remedy the sexual abuse. More often
than not, damages incurred by agencies and officials are paid by the state.
However, damages incurred by the staff who directly harm the offender or who
assist in harming the offender by covering up the misconduct are paid by those
staff from their own financial resources.

Campos v. Nueces County, 162 S.W. 3d
778 (2005). The court found that female
prisoners in a county substance abuse
treatment facility could sue guards and
the county under the Civil Rights Act and
Texas Tort Claims Act for non-functional
and improperly placed security cameras,
doors, rooms and enclosures, when
those defects resulted in prisoners’ sexual abuse and harassment.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Prevention

Prevention Strategies Include:

Although staff sexual misconduct may be difficult to control, internal policies and
training15 for both staff and offenders can help. The purpose of internal policies is
to deter behavior that may lead to the violation of your agency’s standards for
conduct, and ultimately to prevent you from violating the law. Your agency has
policies regarding use of force, searches and seizures, and confidentiality of
records. Likewise, most facilities have internal policies prohibiting staff sexual misconduct with offenders.

1. Following agency policies and procedures
2. Triaging your organization
3. Reviewing policies and procedures
4. Training
5. Knowing investigative protocols
6. Zero tolerance

We suggest that you find and read your facility’s policy regarding this matter. It
may also be helpful to read some representative policies from other facilities and
compare and contrast the language and behaviors outlined in those policies.16
Then consider the following:

Are there other prevention strategies
that you use or are aware of?
________________________________________________

____________________________________________
Does your agency’s internal policy measure up to others?

____________________________________________

Do you see gaps in your agency’s policy that may leave you or your co-workers
vulnerable to committing, and being found guilty of, sexual misconduct with an
offender?
Is your agency’s policy outdated or otherwise lacking?

____________________________________________
____________________________________________
To send us your answers go to:
http://www.wcl.american.edu/nic/
co_handbookresponses.cfm

To prevent and address staff sexual misconduct, you can:
ask your agency’s policy review board to review, revise and update your written
policies and procedures to include updated definitions of illegal and unethical
behaviors
ask for training about policies and procedures as well as state laws governing
staff sexual misconduct
ask for training to improve your skills in offender management
ask for training on offender abuse histories and how it impacts them and you
during their incarceration
work to diminish the “code of silence” in your agency
research and learn more about the resources available to you through your
employee assistance program (E.A.P.) and resources available to your agency
through the National Institute of Corrections
report sexual misconduct in your agency
do not commit sexual misconduct

The National Institute of Corrections (NIC) is a useful resource for training on staff sexual misconduct. To view
these opportunities please go the NIC website at www.nicic.org.
16
If you would like to get a copy of policies and procedures from other jurisdictions please go to
www.wcl.american.edu/nic.
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

For further information on anything
discussed in this handbook or to give us
your comments please email us at
nic@wcl.american.edu. We are interested in hearing from you.

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Conclusion
Staff sexual misconduct with offenders can be prevented. It is not inevitable. Staff
and agencies have the tools to prevent this harmful conduct.
This handbook addresses and explains:
why staff sexual misconduct is an important topic for discussion individually and
agency-wide
how correctional culture can allow sexual misconduct to flourish
which tools can help you identify and address sexual misconduct
what will happen if there is an allegation against you and what your rights are
what the consequences of staff sexual misconduct with offenders are for you
personally and for your agency
We hope that we have provided information that assists you in understanding and
addressing this problem. This issue cannot be ignored. It is not just a legal issue; it
is an issue of public safety and security. We hope that you commit to eliminating
inappropriate relationships and staff sexual misconduct in your agency.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Resources
Government Reports
United States. The Department of Justice/Bureau of Justice Statistics. The Prison
Rape Elimination Act of 2003: Sexual Violence Reported by Correctional
Authorities, 2005. Comp. Beck and Harrison. Washington, DC. 2006.
United States. The Department of Justice/National Institute of Corrections. Gender
Responsive Strategies for Women: Using Jail Exit Surveys to Improve
Community Responses to Women Offenders. Comp. Teri Martin and Becky Ney.
Washington, DC. December 2005.
United States. The Department of Justice/National Institute of Corrections. Gender
Responsive Strategies for Women Offenders: Supervision of Women
Defendants and Offenders in the Community. Comp. Linda Sydney.
Washington, DC. October 2005.
United States. The Department of Justice/National Institute of Corrections. The
Gender Responsive Strategies Project: Jail Applications. Comp. Susan
McCampbell. Washington, DC. April 2005.
United States. The Department of Justice/Office of the Inspector General. Deterring
Staff Sexual Abuse of Federal Inmates. Washington, DC. April 2005.
United States. The Department of Justice/Bureau of Justice Statistics. The Prison
Rape Elimination Act: Sexual Violence Reported by Correctional Authorities,
2004. Comp. Beck and Hughes. Washington, DC. 2004.
United States. The Department of Justice/National Institute of Corrections. Annual
Report to Congress: The Prison Rape Elimination Act of 2003 (PREA): Public
Law 108-79. Washington, DC. September 2004.
United States. The Department of Justice/Bureau of Justice Statistics.
Implementing the Prison Rape Elimination Act. Washington, DC. February 5,
2004.
United States. The Department of Justice/National Institute of Justice. Crime Scene
Investigation: A Guide for Law Enforcement. Comp. The Technical Working
Group on Crime Scene Investigation. Washington, DC. January 2000.
Unites States. General Accounting Office [Currently the Government Accountability
Office]. Women in Prison: Issues and Challenges Confronting U.S. Correctional
Systems. Washington, DC. December 1999.
United States. General Accounting Office [Currently the Government Accountability
Office]. Women in Prison: Sexual Misconduct by Correctional Staff.
Washington, DC. June 1999.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

United Nations. Integration of the Human Rights of Women and the Gender
Perspective: Violence Against Women, Report of the Special Rapporteur, on
violence against women, it's causes and consequences, Ms. Radhika
Coomaraswamy, in accordance with Commission on Human Rights resolution
1997/44, Addendum, Report to the mission to the United States of America on
the Issue of violence against women in state and federal prisons. New York,
NY. January 4, 1999.
United States. The Department of Justice/Federal Bureau of Prisons. Sexual
Abuse/Assault Prevention and Intervention, A System Response and Agency
Plan. Washington, DC. July 1998.
United States. The Department of Justice/National Institute of Corrections. Women
in Jail: Legal Issues. Comp. Collins and Collins. Washington, DC. December
1996.
United States. The Department of Justice/National Institute of Justice. What Every
Law Enforcement Officer Should Know About DNA Evidence. Comp. The
National Commission on the Future of DNA Evidence. Washington, DC. (no
date listed).
Publications for Legal and Correctional Professionals
Simonian, Nairi M. and Brenda V. Smith. “Antifraternization Policies in Community
Corrections: A Tool to Address Staff Sexual Misconduct in Community
Corrections Agencies.” Perspectives (Winter 2007): 43-48.
Simonian, Nairi M. and Brenda V. Smith. “Integrity in Jail Operations: Addressing
Employee/ Offender Relationships.” American Jails (July/August 2006): 9-19.
Smith, Brenda V., Nairi M. Simonian and Jaime M. Yarussi. “The Health Concerns of
Incarcerated Women Part 2: Communicable Diseases and Treatment Issues.”
Women Girls and Criminal Justice 7:4 (June/July 2006): 49-56, 64.
Simonian, Nairi M. and Brenda V. Smith. “Policy on Worker Relations Helps Ensure
Office Integrity.” Sheriff May-June 2006: 27-28.
Smith, Brenda V., Nairi M. Simonian and Jaime M. Yarussi. "Health Concerns of
Incarcerated Women Part 1: Profiles, Chronic Diseases and Conditions."
Women, Girls and Criminal Justice 7:3 (April/ May 2006): 33-34, 39-45
Eggen, Dan and Shankar Vedantam. “Polygraph Results Often in Question.” The
Washington Post 1 May 2006, Final Ed., Sec A: 01.
United States. Center for Disease Control. “HIV Transmission among Male Inmates
in a State Prison System- Georgia, 1992-2005.” Morbidity and Mortality Weekly
Report 55:15 (21 April 2006): 421-428.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Simonian, Nairi and Smith, Brenda V. A memo regarding Anti-Fraternization policies and case law in the Ninth Circuit. The Department of Justice/ National
Institute of Corrections Project on Addressing Prison Rape. Washington, DC.
January 2006.
Moss, Andie and A.T. Wall “Addressing the Challenge of Inmate Rape.” Corrections
Today (August 2005): 1-4.
McCampbell, Susan and Alen L. Ault. Ed.D, “Lessons Learned, Miles to Go:
Preventing Staff Sexual Misconduct with Offenders.” American Jails Magazine
(Jan/Feb 2005): 37.
Buell, Maureen, Elizabeth Layman, Susan McCampbell and Brenda V. Smith.
“Addressing Sexual Misconduct in Community Corrections.” Perspectives 27:2
(Spring 2003): 26-37.
Layman, Elizabeth and Susan McCampbell. “Investigating Allegations of Staff
Sexual Misconduct with Inmates: Myths and Realities.” Sheriffs' Magazine
(November – December 2001): 20-23.
Smith, Brenda V., “Sexual Abuse Against Women in Prison.” American Bar
Association Criminal Justice Magazine 16:1 (Spring 2001): 30-35
Layman, Elizabeth, Susan McCampbell and Andie Moss, “Sexual Misconduct in
Corrections.” American Jails Magazine (November/December 2000): 23-31.
Mullendore, Kristine and Laurie Beever. “Sexually Abused Female Inmates in State
and Local Correctional Institutions.” Women, Girls & Criminal Justice 1:6
(October/November 2000): 81-96.
Advocacy Group Reports
American Civil Liberties Union. Abandoned and Abused: Orleans Parish Prisoners
in the Wake of Hurricane Katrina. Comp. the ACLU National Prison Project with
contributions by the ACLU of Louisiana and the ACLU Human Rights Program.
Washington, DC: August 2006.
Vera Institute. Confronting Confinement: A Report of the Commission on Safety and
Abuse in America’s Prisons. Comp. John J. Gibbons and Nicholas de B.
Katzenbach. Washington, DC: June 2006.
The Ford Foundation. Close to Home: CASE Studies of Human Rights Work in the
United States. New York: 2004.
Human Rights Watch. NO ESCAPE: Male Rape in U.S. Prisons. New York: April 2001.
Amnesty International. Abuse of Women in Custody: Sexual Misconduct and
Shackling of Pregnant Women — A State-by-State Survey of Policies and
Practices in the USA, New York: March 2001.
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Amnesty International. Justice for Women Prisoners: The Human Rights of Women
Prisoners. New York: April 2000.
Amnesty International. Not Part of My Sentence, Violations of Human Rights of
Women in Custody. New York: March 1999.
Human Rights Watch. All Too Familiar: Sexual Abuse of Women in U.S. State Prisons.
Comp. Women’s Rights Watch. New York: December 1996.
Law Review and Journal Articles
Smith, Brenda V. “Analyzing Prison Sex: Reconciling Self Expression with Safety.”
American University, Washington College of Law Human Rights Brief 13:3
(Spring 2006): 17-22.
Smith, Brenda V. “Sexual Abuse of Women in United States Prisons: A Modern
Collary of Slavery.” Fordham Urban Law Journal 33 (2006): 571-607.
Mann, Rebecca. “A Review of Lesbian, Gay, Bisexual and Transgender Legal Issues.”
Law and Sexuality 15:91 (2006).
Smith, Brenda V. “Rethinking Prison Sex: Self Expression and Safety.” Columbia
Journal of Gender and the Law 15 (2006): 185-234.
Smith, Brenda V. “Watching You Watching Me.” Yale Journal of Law and Feminism
15:2 (2003): 225-288.

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Websites
American Civil Liberties Union: www.aclu.org
American Correctional Association: www.aca.org
American Correctional Health Services Association: www.achsa.org
American Jail Association: www.aja.org
American Probation and Parole Association: www.appa-net.org
Amnesty International: www.amnesty.org
Bureau of Justice Statistics: www.ojp.usdoj.gov/bjs
Center for Disease Control: www.cdc.gov
Center for Mental Health Services: GAINS Center: www.gainscenter.samhsa.gov
Federal Bureau of Prisons: www.bop.gov
Human Rights Watch: www.hrw.org
Institute for Criminal Justice Healthcare: www.icjh.org
Justice Research and Statistics Association: www.jrsa.org
National Clearinghouse for Science, Technology and
Law at Stetson University: www.ncstl.org
National Criminal Justice Reference Service: www.ncjrs.org
National Institute of Corrections: www.nicic.org
National Institute of Justice: www.ojp.usdoj.gov/nij
National Juvenile Defender Center: www.njdc.info
National Prison Rape Elimination Commission: www.nprec.us
National Sheriff’s Association: www.sheriffs.org
National Victims’ Constitutional Amendment Passage: www.nvcap.org
National Youth Court Center: www.youthcourt.net
Office of Juvenile Justice and Delinquency Prevention: www.ojjdp.ncjrs.org
Prisons Foundation: www.prisonsfoundation.org
Prison Legal News: www.prisonlegalnews.org/visitors
Rape Abuse and Incest National Network (RAINN): www.rainn.org
The Sentencing Project: www.sentencingproject.org
Stop Prison Rape: www.spr.org
United States Department of Health & Human Services: www.hhs.gov
United States Department of Justice: www.doj.gov
Urban Institute: www.urban.org
Vera Institute of Justice: www.vera.org

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

APPENDIX

Coverage
ALA. CODE § 14-11-31 (LexisNexis
2005).
(a):It shall be unlawful for any
employee to engage in sexual conduct with a person who is in the custody of the Department of
Corrections, the Department of
Youth Services, a sheriff, a county,
or a municipality.
(b):It shall be unlawful for any probation or parole officer to engage in
sexual conduct with a person who is
under the supervisory, disciplinary,
or custodial authority of the officer
engaging in the sexual conduct with
the person

Statute

Custodial Sexual
Misconduct.
Prohibited Acts
ALA. CODE § 14-1131 (LexisNexis
2005).

State

Alabama

Custody.
ALA. CODE § 14-11-30 (LexisNexis
2005).
(a)(1) Custody is defined as any of
the following: (a) pretrial incarceration or detention; (b) incarceration
or detention under the sentence or
commitment to a state or local
penal institution, any detention
facility for children or youthful
offenders; (c) parole or mandatory
supervised release; (d) electronic
home detention; (e) parole or
probation.
(b)(2):Employee. An employee or
contractual employee of any governmental agency of the state, county,
or municipality that has by statute,
ordinance, or court order the
responsibility for care, control, or
supervision of pretrial or sentenced
persons in a penal system or detention facility.
(b)(3): Sexual Conduct. Any of the
following acts: (a) sexual intercourse.- this shall have its ordinary
meaning; (b) sexual contact- any
known touching for the purpose of
sexual arousal, gratification, or
abuse of the following: (1) the sexual
or other intimate parts of the victim
by the actor, (2) the sexual or other
intimate parts of the actor by the
victim, (3) the clothing covering the
immediate area of the sexual or
other intimate parts of the victim or
actor; (c) Sexual Intrusion- any
intrusion, however slight by any
object or any part of the body of a
person into the genital, anal, or oral
opening of the body of another person if that sexual intrusion can reasonably be construed as being for
the purposes of sexual arousal, gratification, or abuse.

Definitions/Notes

Fines; felonies.
ALA. CODE 813A-5-11 (Lexis Nexis
2005).
A sentence to pay a fine for a felony
shall be for a definitive amount,
fixed by the court, within the following limitations:
(3) For a Class C felony, not more
than $15,000.00; or (4) Any amount
not exceeding double the pecuniary
gain to the defendant or loss to the
victim caused by the commission of
the offense.

Prison terms; felonies
ALA. CODE 813A-5-6 (Lexis Nexis
2006).
(a) Sentences for felonies shall be
for a definite term of imprisonment,
which imprisonment means hard
labor within the following limitations:
(3) For a Class C felony, not more
than 10 years or less than 1 year and
1 day.

ALA. CODE § 14-11-31 (LexisNexis
2005).
(c)Any person violation subsection
(a) or (b) shall upon conviction, be
guilty of custodial sexual misconduct.
(d)Custodial Sexual Misconduct is a
Class C felony.

Penalties

(e):Consent of the person
in custody of the
Department of Corrections,
the Department of Youth
Services, a sheriff, a county, or a municipality, or a
person who is on probation
or on parole shall not be a
defense to a prosecution
under this act.

ALA. CODE § 14-11-31
(LexisNexis 2005).

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

ALASKA STAT. § 11.41.410 (2006).
(a) An offender commits the crime
of sexual assault in the first degree
if, (3) the offender engages in sexual
penetration with another person (B)
who is in the offender’s care (i) by
authority of law; or (ii) in a facility
or program that is required by law
to be licensed by the state.

Sexual assault in
the first degree.
ALASKA STAT. §
11.41.410 (2006).

Alaska

Sexual assault in
the third degree.
ALASKA STAT. §
11.41.425 (2006).

www.wcl.american.edu/nic

ALASKA STAT. § 11.41.427 (2006).
(a)An offender commits the crime of
sexual assault in the fourth degree
if (1) while employed in a state correctional facility or other placement
designated by the commissioner of
corrections for the custody and care
of prisoners, the offender engages
in sexual contact with a person who
the offender knows is committed to
the custody of the Department of
Corrections to serve a term of
imprisonment or period of temporary commitment.

ALASKA STAT. § 11.41.425 (2006).
(a) An offender commits the crime
of sexual assault in the third degree
if the offender (2) while employed in
a state correctional facility or other
placement designated by the commissioner of corrections for the custody and care of prisoners, engages
in sexual penetration with a person
who the offender knows is committed to the custody of the
Department of Corrections to serve
a term of imprisonment or period of
temporary commitment

ALASKA STAT. § 11.41.420 (2006).
(a) An offender commits the crime
of sexual assault in the second
degree if, (2) the offender engages
in sexual contact with a person (A)
who the offender knows is mentally
Sexual assault in
incapable; and (B) who is in the
the fourth degree. offender’s care (i) by authority of
ALASKA STAT. §
law; or (ii) in a facility or program
11.41.427 (2006). that is required by law to be
licensed by the state.

Sexual assault in
the second
degree.
ALASKA STAT. §
11.41.420 (2006).

Coverage

Statute

State
Definitions.
ALASKA STAT. 811.81.900.
(a) For purposes of this title, unless
the context requires otherwise,
(58) "sexual contact" means (A) the
defendant's (i) knowingly touching,
directly or through clothing, the victim's genitals, anus, or female
breast; or
(ii) knowingly causing the victim to
touch, directly or through clothing,
the defendant's or victim's genitals,
anus, or female breast; (B) but "sexual contact" does not include acts (i)
that may reasonably be construed to
be normal caretaker responsibilities
for a child, interactions with a child,
or affection for a child; (ii) performed for the purpose of administering a recognized and lawful
form of treatment that is reasonably
adapted to promoting the physical
or mental health of the person being
treated; or (iii) that are a necessary
part of a search of a person committed to the custody of the
Department of Corrections or the
Department of Health and Social
Services;
(59) "sexual penetration" (A) means
genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or
any part of a person's body into the
genital or anal opening of another
person's body; each party to any of
the acts described in this subparagraph is considered to be engaged in
sexual penetration; (B) does not
include acts (i) performed for the
purpose of administering a recognized and lawful form of treatment
that is reasonably adapted to promoting the physical health of the
person being treated; or (ii) that are
a necessary part of a search of a
person committed to the custody of
the Department of Corrections or
the Department of Health and Social
Services;

Definitions/Notes

Defenses

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

Sentences of imprisonment for misdemeanors.
ALASKA STAT. § 12.55.135. (a) A
defendant convicted of a class A
misdemeanor may be sentenced to a
definite term of imprisonment of not
more than one year.

ALASKA STAT. § 11.41.410 (2006).
Defenses
(b) Sexual assault in the first degree ALASKA STAT § 11.41.432
is an unclassified felony.
(2006).
(a) It is a defense to a
ALASKA STAT. § 11.41.420 (2006):
crime charged under AS
(b) Sexual assault in the second
11.41.410(a)(3), AS
degree is a class B felony.
11.41.420(a)(2), AS
11.41.420(a)(3) or AS
ALASKA STAT. § 11.41.425(b) (2006). 11.41.425 that the offender
Sexual assault in the third degree is is: (1) mentally incapable;
a class C felony.
or (2) married to the person and neither party has
ALASKA STAT. § 11.41.427 (2006).
filed with the court for a
(b) Sexual assault in the fourth
separation, divorce, or disdegree is a class A misdemeanor.
solution of the marriage.
Sentences of imprisonment for
(b) Except as provided in
felonies
(a) of this section, in a
ALASKA STAT. § 12.55.125 (2006).
prosecution under AS
(d) a defendant convicted of a class 11.41.410 or 11.41.420, it is
B felony may be sentenced to a defi- not a defense that the vicnite term of imprisonment of not
tim was, at the time of the
more than 10 years, and shall be
alleged offense, the legal
sentenced to a definitive term with- spouse of the defendant.
in the following presumptive ranges,
subject to adjustment as provided in
AS 12.55.155—12.55.175.
(e) a defendant convicted of a class
C felony may be sentenced to a definite term of not more than 5 years,
and shall be sentenced to a definitive term within the following presumptive ranges, subject to adjustments as provided in AS 12.55.155—
12.55.175.
(i) a defendant convicted of (1) sexual assault in the first degree or sexual abuse of a minor in the first
degree may be sentenced to a definitive term of imprisonment of not
more than 99 years and shall be
sentenced to a definitive term within the following presumptive ranges,
subject to adjustment as provided in
AS 12.55.155—12.55.175.

Penalties

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

44
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Arizona

(cont.)

Alaska

State

Unlawful sexual
conduct; correctional employees;
persons in custody; classification.
ARIZ. REV. STAT.
ANN. § 13-1419
(LexisNexis 2006).

Statute

ARIZ. REV. STAT. ANN. § 13-1419
(LexisNexis 2006).
A. A person who is employed by the
state department of corrections, the
department of juvenile corrections,
a private prison facility or a city or
county jail, or who contracts to provide services with the state department of corrections, the department
of juvenile corrections a private
prison facility or a city or county jail
commits unlawful sexual conduct by
engaging in oral sexual contact, sexual contact, or sexual intercourse
with a person who is in the custody
of the department or with an
offender who is under the supervision of the department or a city or
county.
B. A prisoner who is in the custody
of the state department of corrections or an offender who is on
release status and who is under the
supervision of the state department
of corrections commits unlawful sexual conduct by engaging in oral sexual contact, sexual contact, or sexual intercourse with a person who is
employed by the state department
of corrections or a private prison
facility or who contracts to provide

Coverage

Definitions.
ARIZ. REV. STAT. ANN. § 13-1401
(LexisNexis 2006).
In this chapter, unless the context
otherwise requires:
1. "Oral sexual contact" means oral
contact with the penis, vulva or
anus.
2. "Sexual contact" means any direct
or indirect touching, fondling or
manipulating of any part of the genitals, anus or female breast by any
part of the body or by any object or
causing a person to engage in such
contact.
3. "Sexual intercourse" means penetration into the penis, vulva or anus
by any part of the body or by any
object or masturbatory contact with
the penis or vulva.
4. "Spouse" means a person who is
legally married and cohabiting.
5. "Without consent" includes any of
the following:
(a) The victim is coerced by the
immediate use or threatened use of
force against a person or property.
(b) The victim is incapable of consent by reason of mental disorder,
mental defect, drugs, alcohol, sleep
or any other similar impairment of

Definitions/Notes

Defenses

ARIZ. REV. STAT. ANN. § 131419 (LexisNexis 2006). C.
This section does not apply
to:
Sentence of imprisonment for
1. A person who is
felony.
employed by the state
ARIZ. REV. STAT. ANN. § 13-701
department of corrections,
(LexisNexis 2006). (C)(4).The penalty a private prison facility or
for a class 5 felony shall be imprisa city or county jail who
onment for one and one half years, contracts to provide servicprovided it is the first offense.
es within the state department of corrections, a priFines for Felonies.
vate prison facility or a city
ARIZ. REV. STAT. ANN. § 13-801
or county jail or an offend(LexisNexis 2006). (A) a fine not to
er who is on release status
exceed $150,000.
if the person was lawfully
married to the prisoner or
offender on release status
before the prisoner or
offender was sentenced to
the state department of
corrections or was incarcerated in a city or county
jail.
2. An offender who is on
release status and who was
lawfully married to a person who is employed by the
state department of corrections, a private prison facility or a city or county jail

ARIZ. REV. STAT. ANN. § 13-1419(D)
(LexisNexis 2006): Unlawful sexual
conduct is a class 5 felony.

Fines.
Alaska Stat. § 12.55.035 (2006).
(a) Except as provided in AS
12.55.036, upon conviction of an
offense, a defendant may be sentenced to pay a fine as authorized in
this section or as otherwise authorized by law.
(b) Except as provided in AS
12.55.036, upon conviction of an
offense, a defendant who is not an
organization may be sentenced to
pay, unless otherwise specified in
the provisions of law defining the
offense, a fine of no more than
(3) $100,000.00 for a class B felony;
(4) $50,000.00 for a class C felony;
(5) $10,000.00 for a class A
misdemeanor.

Penalties

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Arkansas

(cont.)

Arizona

State
cognition and such condition is
known or should have reasonably
been known to the defendant. For
purposes of this subdivision, "mental defect" means the victim is
unable to comprehend the distinctively sexual nature of the conduct
or is incapable of understanding or
exercising the right to refuse to
engage in the conduct with another.
(c) The victim is intentionally
deceived as to the nature of the act.
(d) The victim is intentionally
deceived to erroneously believe that
the person is the victim's spouse.

services with the state department
of corrections or a private prison
facility.

www.wcl.american.edu/nic

Definitions.
ARK. CODE ANN. § 5-14-101(1)
(2006): “deviate sexual activity”
means any act of sexual gratification involving:
(A) the penetration, however slight,
of the anus or mouth of one person
by the penis of another person; or
(B) the penetration, however slight,
of the labia majora or anus of one
person by any body member or foreign instrument manipulated by
another person.

Definitions.
ARIZ. REV. STAT. ANN. § 13-2501
(2006).
In this chapter, unless the context
otherwise requires:
3. "Custody" means the imposition
of actual or constructive restraint
pursuant to an on-site arrest or
court order but does not include
detention in a correctional facility,
juvenile detention center or state
hospital.

Definitions/Notes

Coverage

ARK. CODE ANN. § 5-14-124 (2006).
(a) A person commits sexual assault
in the first degree if the person
engages in sexual intercourse or
deviate sexual activity with another
person who is less than eighteen
Sexual Assault in
(18) years of age and is not the
the second degree. actor's spouse and the actor is:
ARK. CODE ANN. § (1) Employed with the Department
5-14-125 (2006).
of Correction, the Department of
Community Correction, the
Sexual assault in
Department of Health and Human
the third degree.
Services, or any city or county jail or
ARK. CODE ANN. § a juvenile detention facility, and the
5-14-126 (2006).
victim is in the custody of the
Department of Correction, the
Department of Community
Correction, the Department of
Health and Human Services, any city
or county jail or juvenile detention
facility, or their contractors or
agents;

Sexual assault in
the first degree.
ARK. CODE ANN. §
5-14-124
(2006).

Statute
or who contracts to provide services with the
state department of corrections, a private prison
facility or a city or county jail if the marriage
occurred prior to the
offender being sentenced
to the state department
of corrections or incarcerated in a city or county jail.

Defenses

ARK. CODE ANN. § 5-14-124 (2006). ARK. CODE ANN. § 5-14(c) Sexual assault in the first degree 124 (2006).
(b) It is no defense to
is a Class A felony.
prosecution under this
Sexual Assault in the second degree. section that the victim
ARK. CODE ANN. § 5-14-125 (2006). consented to the
conduct.
(b) (1) Sexual assault in the second
degree is a Class B felony.
ARK. CODE ANN. § 5-14(2) Sexual assault in the second
degree is a Class D felony if commit- 125 (2006).
(B) For the purposes of
ted by a person less than eighteen
(18) years of age with another per- subdivision (a)(4)(A) of
this section, consent of
son who is:
(A) Less than fourteen (14) years of the minor is not a
defense to a prosecution.
age; and
(B) Not the person's spouse.
ARK. CODE ANN. § 5-14ARK. CODE ANN. § 5-14-126 (2006). 126 (2006).
(b) It is no defense to a
(c)Sexual assault in the 3rd degree
prosecution under this
is a class C Felony.
section that the victim
consented to the
conduct.

Penalties

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

46
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

(cont.)

Arkansas

State

Statute

ARK. CODE ANN. § 5-14-125 (2006).
(a) A person commits sexual assault
in the second degree if the person:
(1) Engages in sexual contact with
another person by forcible compulsion;
(2) Engages in sexual contact with
another person who is incapable of
consent because he or she is:
(A) Physically helpless;
(B) Mentally defective; or
(C) Mentally incapacitated;
(3) Being eighteen (18) years of age
or older, engages in sexual contact
with another person who is:
(A) Less than fourteen (14) years of
age; and
(B) Not the person's spouse;
(4) (A) Engages in sexual contact
with another person who is less than
eighteen (18) years of age and the
actor is:
(i) Employed with the Department of
Correction, Department of
Community Correction, any city or
county jail, or any juvenile detention
facility, and the minor is in custody
at a facility operated by the agency
or contractor employing the actor;
(ii) A professional under § 12-12507(b) and is in a position of trust or
authority over the minor; or
(iii) The minor's guardian, an
employee in the minor's school or
school district, a temporary caretaker, or a person in a position of trust
or authority over the minor.
(B) For purposes of subdivision
(a)(4)(A) of this section, consent of
the minor is not a defense to a prosecution;

(2) A professional under § 12-12507(b) and is in a position of trust or
authority over the victim and uses
the position of trust or authority to
engage in sexual intercourse or
deviate sexual activity; or
(3) An employee in the victim's
school or school district, a temporary caretaker, or a person in a position of trust or authority over the
victim.

Coverage

Definitions/Notes

ARK. CODE ANN. § 5-4-201 (2006).
(a) A defendant convicted of a felony
may be sentenced to pay a fine:
(1) Not exceeding fifteen thousand
dollars ($15,000) if the conviction is
of a Class A felony or Class B felony;
(2) Not exceeding ten thousand dollars ($ 10,000) if the conviction is of
a Class C felony or Class D felony.

ARK. CODE ANN. § 5-4-401(a)
(2006).
(a) a defendant convicted of a felony
shall receive a determinate sentence
according to the following limitations:
(2) The penalty for a Class A felony
shall be not less than 6 years nor
more than 30 years imprisonment
(3) For a Class B felony, the sentence
shall be not less than five (5) years
nor more than twenty (20) years;
(4) For a Class C felony, the sentence
shall be not less than three (3) years
nor more than ten (10) years
(5) For a Class D felony, the sentence
shall not exceed six (6) years.

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

(cont.)

Arkansas

State

Statute

www.wcl.american.edu/nic

ARK. CODE ANN. § 5-14-126 (2006).
(a) A person commits sexual assault
in the 3rd degree if: (1) the person
engages in sexual intercourse or
deviate sexual activity with another
person, not the person's spouse and
the person (A) Is employed with the
Department of Correction,
Department of Community
Correction, Department of Human
Services, or any city or county jail
and the victim is in the custody of
the Department of Correction,
Department of Community correction, Department of Human
Services, or any city or county jail;
or (B) A professional under §12-12507(b) or a member of the clergy
and is in a position of trust or
authority over the victim to engage
in sexual intercourse or deviate sexual activity; or (2)(A) Being under
eighteen (18) years of age, engages
in sexual intercourse or deviate
sexual activity with another person
who is:
(i) Less than fourteen (14) years of

(5) (A) Being less than eighteen (18)
years of age, engages in sexual contact with another person who is:
(i) Less than fourteen (14) years of
age; and
(ii) Not the person's spouse.
(B) It is an affirmative defense to a
prosecution under this subdivision
(a)(5) that the actor was not more
than:
(i) Three (3) years older than the victim if the victim is less than twelve
(12) years of age; or
(ii) Four (4) years older than the victim if the victim is twelve (12) years
of age or older; or
(6) Is a teacher in a public school in
a grade kindergarten through twelve
(K-12) and engages in sexual contact
with another person who is:
(A) A student enrolled in the public
school; and
(B) Less than twenty-one (21) years
of age.

Coverage

Definitions/Notes

Penalties

Defenses

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48
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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California

(cont.)

Arkansas

State

Employee or officer of detention
facility; Engaging
in sexual activity
with consenting
adult confined in
detention facility.
CAL. PENAL CODE
§ 289.6 (Deering
2006).

Statute

CAL. PENAL CODE § 289.6 (Deering
2006).
(a)(2) An employee or officer of a
public entity detention facility, or an
employee, officer, or agent of a private person or entity that provides a
detention facility or staff for a
detention facility, or person or agent
of a public or private entity under
contract with a detention facility, or
a volunteer of a private or public
entity detention facility, who
engages in sexual activity with a
consenting adult who is confined in
a detention facility, is guilty of a
public offense.
(3) An employee with a dept, board
or authority under the Youth & Adult
Correctional Agency or a facility
under contract with a dept, board or
authority under the Youth & Adult
Correctional Agency, who during the
course of employment directly provides treatment, care, control, or
supervision of inmates, wards or
parolees, and who engages in sexual
activity with a consenting adult who
is an inmate, ward or parolee, is
guilty of a public offense.

age and;
(ii) not the person’s spouse
(B) It Is an affirmative defense
under this subdivision
(a)(2) that the actor was not more
then three (3) years older than the
victim.
(b) It is no defense to a prosecution
under this section that the victim
consented to the conduct.

Coverage

CAL. PENAL CODE § 289.6 (Deering
2006).
(h) Any violation of paragraph (2) or
(3) of subdivision (a) shall be punished by imprisonment in a county
jail not exceeding one year or by a
fine not exceeding $10,000, or by
both fine and imprisonment

CAL. PENAL CODE § 289.6 (Deering
2006).
(g)Any violation of paragraph (1) of
subsection (a), or a violation of
paragraph (2) or (3) of subdivision
(a) as described in paragraph (5) of
subdivision (d), is a misdemeanor.

Penalties

CAL. PENAL CODE § 289.6
(Deering 2006).
(e)Consent by a confined
person or parolee to sexual
activity proscribed by this
section is not a defense to
a criminal prosecution for
violation of this section.

Defenses

CAL. PENAL CODE § 289.6
(Deering 2006).
(f)This section does not
apply to sexual activity
between consenting adults
that occurs during an
overnight conjugal visit
that takes place pursuant
to a court order or with the
CAL. PENAL CODE § 289.6 (Deering
Sodomy.
written approval of an
2006).
CAL. PENAL CODE § 286 (Deering
(i): Any person previously convicted authorized representative
2006).
of the public entity that
of a violation of this section shall,
(a) Sodomy is sexual conduct conoperates or contracts for
upon a subsequent violation, be
sisting of contact between the penis guilty of a felony.
the operation of the detenof one person and the anus of
tion facility where the conanother person. Any sexual penetra- CAL. PENAL CODE § 289.6 (Deering
jugal visit takes place or to
tion, however slight, is sufficient to 2006).
physical contact or penecomplete the crime of sodomy.
tration made pursuant to a
(j) Anyone who is convicted of a
lawful search or bona fide
felony violation of this section who
Oral Copulation.
medical examinations or
is employed by a department,
CAL. PENAL CODE § 288a (Deering
board, or authority within the Youth treatments, including clini2006).
and Adult Correctional Agency shall cal treatments.
(a) Oral copulation is the act of cop- be terminated in accordance with
ulating the mouth of one person and the State Civil Service Act. Anyone
the sex organ or anus of another
who has been convicted of a felony
person
violation of this section shall not be

CAL. PENAL CODE § 289.6 (Deering
2006).
(d) As used in this section, “sexual
activity” means: (1) Sexual intercourse. (2) Sodomy, as defined in
subdivision (a) of Section 286. (3)
Oral copulation, as defined in subdivision (a) of Section 288a. (4) Sexual
penetration, as defined in subdivision (k) of Section 289. (5) The rubbing or touching of the breasts or
sexual organs of another, or of oneself in the presence of and with
knowledge of another, with the
intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of oneself or another.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Colorado

(cont.)

California

State

Coverage

COLO. REV. STAT. §18-3-404 (2005).
(1) Any actor who knowingly subjects a victim to any sexual contact
commits unlawful sexual contact if:
(f) the victim is in custody of law or
Sexual Conduct in detained in a hospital or other instiPenal Institutions. tution and the actor has supervisory
COLO. REV. STAT. § or disciplinary authority over the
victim and uses this position of
18-7-701 (2005).
authority, unless incident to a lawful
search, to coerce the victim to
submit.

Unlawful Sexual
Contact.
COLO. REV. STAT. §
18-3-404 (2005).

Statute
eligible to be hired or reinstated by
a department, board, or authority
within the Youth and Adult
Correctional Agency.

CAL. PENAL CODE § 289 (Deering
2006).
(k) As used in this section:
(1) “Sexual penetration” is the act of
causing the penetration, however
slight, of the genital or anal opening
of any person or causing another
person to so penetrate the defendant’s or another person’s genital or
anal opening for the purpose of sexual arousal, gratification, or abuse
by any foreign object, substance,
instrument, or device, or by any
unknown object.

www.wcl.american.edu/nic

COLO. REV. STAT. §18-3-404 (2005).
(2)(a) Unlawful Sexual Contact is a
class 1 misdemeanor, and is an
extraordinary risk crime that is subject to the modified sentencing
range specified in section 18-1.3501(3).
COLO. REV. STAT. § 18-7-701 (2005).
(b) Notwithstanding the provisions
(2)(b) “Sexual conduct” means sexu- of paragraph (a) of this subsection
al contact as defined in section 18-3- (2), unlawful sexual contact is a
401(4), sexual intrusion as defined
class 4 felony if the actor compels

COLO. REV. STAT. § 18-7-701 (2005).
(2)(a) “Criminal justice facility”
means a correctional facility, as
defined in § 17-1-102, operated by or
under contract with the department
of corrections or a jail.

Punishment of felony not otherwise
prescribed.
CAL. PENAL CODE § 18 (Deering
2006).
Except in cases where a different
punishment is prescribed by any law
of this state, every offense declared
to be a felony, or to be punishable
by imprisonment in a state prison, is
punishable by imprisonment in any
of the state prisons for 16 months,
CAL. PENAL CODE § 289.6 (Deering
or two or three years; provided,
2006).
however, every offense which is pre(3)(c) The term detention facility
scribed by any law of the state to be
means (1) prison, jail, camp or other a felony punishable by imprisoncorrectional facility used for the
ment in any of the state prisons or
confinement of adults, juveniles, or by a fine, but without an alternate
both adults and minors. (2) A build- sentence to the county jail, may be
ing or facility used for the confinepunishable by imprisonment in the
ment of adults or adults and minors county jail not exceeding one year
pursuant to a contract with a public or by a fine, or by both.
entity. (3) A room that is used for
holding persons for interviews,
Punishment for
interrogations, or investigations and misdemeanor.
that is separate from a jail or locat- CAL. PENAL CODE § 19 (Deering
ed in the administrative area of a
2006). Except in cases where a diflaw enforcement facility. (4) A vehi- ferent punishment is prescribed by
cle used to transport confined perany law of this state, every offense
sons during their period of confine- declared to be a misdemeanor is
ment. (5) A court holding facility
punishable by imprisonment in the
located within or adjacent to a court county jail not exceeding six
building that is used for the confine- months, or by fine not exceeding
ment of persons for the purpose of one thousand dollars ($1,000), or by
court appearances.
both.

Penalties

Definitions/Notes

Defenses

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50
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

(cont.)

Colorado

State

Statute

Definitions
COLO. REV. STAT. § 18-3-401 (2005).
As used in this part 4, unless the
context otherwise requires:
(4) “Sexual contact” means the
knowing touching of the victim's
intimate parts by the actor, or of the
actor's intimate parts by the victim,
or the knowing touching of the
clothing covering the immediate
area of the victim's or actor's intimate parts if that sexual contact is
for the purposes of sexual arousal,
gratification, or abuse.
(5)“Sexual intrusion” means any
intrusion, however slight, by any
object or any part of a person's
body, except the mouth, tongue, or
penis, into the genital or anal opening of another person's body if that
sexual intrusion can reasonably be

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

COLO. REV. STAT. § 18-7-701 (2005).
(4) Sexual conduct in a penal institution is a class 6 felony if: (a) the sexual conduct consists solely of sexual
contact and is committed by an
employee or contract employee of a
criminal justice facility or by an
employee, contract employee, or
individual who performs work functions in a criminal justice facility or

COLO. REV. STAT. § 18-7-701 (2005).
(3)Sexual conduct in a penal institution is a class 5 felony if the sexual
conduct includes sexual intrusion or
sexual penetration and is committed
by an employee or contract employee of a criminal justice facility or by
an employee, contract employee, or
individual who performs work functions in a criminal justice facility or
for the department of corrections.

COLO. REV. STAT. § 18-3-404 (2005).
(g) The actor engages in treatment
or examination of a victim for other
than bona fide medical purposes or
in a manner Substantially inconsistent with reasonable medical practices.
(g)(1.5) Any person who knowingly
with or without sexual contact,
induces or coerces a child by any of
the means set forth in section 18-3402 to expose intimate parts or to
engage in any sexual contact, intrusion, or penetration with another
person, for the purpose of the
actor’s own sexual gratification,
commits unlawful sexual contact .
For purposes of this section (1.5),
the term “child” means any person
under the age of eighteen years.

the victim to submit by use of such
force, intimidation, or threat as
specified in section 18-3-402 (4)(a),
(4)(b), or (4)(c) or if the actor
engages in the conduct described in
paragraph (g) of subsection (1) of
this section or subsection (1.5) of
this section.

in section 18-3-401 (5), or sexual
penetration as defined in section 183-401(6). It does not include acts of
an employee of a criminal justice
facility or a person who has custody
of another person that are performed to carry out the necessary
duties of the employee or the person with custody.

COLO. REV. STAT. §18-7-701 (2005).
(1)An employee, contract employee
or volunteer of a criminal justice
facility or an individual who performs work or volunteer functions in
a criminal justice facility or for the
department of corrections who
engages in sexual conduct with a
person who is in lawful custody in a
criminal justice facility commits the
offense of sexual conduct in a penal
institution.
Definitions.
COLO. REV. STAT. § 16-1-104 (2006).
(1) The following definitions in this
section are applicable generally in
this code. Other terms which need
definition, but which are used only
in a limited number of sections of
this code are defined in the particular section or article in which the
terms appear. Definitions set forth
in any section of this code are applicable whenever the same term is
used in the same sense in another
section of this code, unless the definition is specifically limited or the
context indicates that it is inapplicable.
(9) "Custody" means the restraint of
a person's freedom in any significant way.

Penalties

Definitions/Notes

Coverage

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

(cont.)

Colorado

State

Statute

Coverage

Definitions
COLO. REV. STAT. § 17-1-102 (2005).
As used in this title, unless the context otherwise requires:
(1) and (1.3) (Deleted by amendment, L. 93, p. 404, § 1, effective
April 19, 1993.)
(1.7) "Correctional facility" means
any facility under the supervision of
the department in which persons
are or may be lawfully held in custody as a result of conviction of a
crime.
(2) "Department" means the department of corrections.
(3) (Deleted by amendment, L. 94,
p. 602, § 2, effective July 1, 1994.)
(4) "Executive director" means the
executive director of the department of corrections.
(5) and (6) (Deleted by amendment,
L. 2000, p. 829, § 2, effective May
24, 2000.)
(6.5) "Inmate" means any person
who is sentenced to a term of
imprisonment for a violation of the
laws of this state, any other state,
or the United States.
(7) "Local jail" means a jail or an
adult detention center of a county
or city and county.
(7.3) "Private contract prison"
means any private prison facility
operated by a county, city and county, or private corporation located in
this state; except that "private contract prison" does not include any
local jail, multi-jurisdictional jail, or
community corrections center.
(7.5) (a) "Special needs offender"
means a person in the custody of

for the department of corrections;
or (b) the sexual conduct includes
sexual intrusion or sexual penetration and is committed by a
volunteer.

construed as being for the purposes
of sexual arousal, gratification, or
abuse.
(6)“Sexual penetration” means sexual intercourse, cunnilingus, fellatio,
analingus, or anal intercourse.
Emission need not be proved as an
element of any sexual penetration.
Any penetration, however slight, is
sufficient to complete the crime.

COLO. REV. STAT. § 18-1.3-401
(2005).
(V)(A) The penalty for a class 4
felony shall be imprisonment for a
term ranging from 2-6 years with a
3 year mandatory period of parole
and/or (III)(A) A fine ranging from
$2,000 to $500,000.

COLO. REV. STAT. § 18-7-701 (2005).
(5) Sexual conduct in a penal institution is a class 1 misdemeanor if the
sexual conduct consists solely of
sexual contact and is committed by
a volunteer.

Penalties

Definitions/Notes

Defenses

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52
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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www.wcl.american.edu/nic

(cont.)

Colorado

State

Statute

Coverage

COLO. REV. STAT § 18-7-701 (2005).
(2)(b) “Sexual conduct” means sexual contact as defined in section 18-3401(4), sexual intrusion as defined
in section 18-3-401 (5), or sexual
penetration as defined in section 183-401(6). It does not include acts of
an employee of a criminal justice
facility or a person who has custody
of another person that are performed to carry out the necessary
duties of the employee or the person with custody.
“Sexual contact” means the knowing
touching of the victim's intimate
parts by the actor, or of the actor's
intimate parts by the victim, or the
knowing touching of the clothing

the department:
(I) Who is physically handicapped,
mentally ill, or developmentally disabled; or
(II) Who is sixty-five years of age or
older and incapable of taking care of
himself or herself; or
(III) (A) Who has a medical condition, other than a mental illness,
that is serious enough to require
costly care or treatment; and
(B) Who is physically incapacitated
due to age or the medical condition.
(b) Notwithstanding the provisions
of paragraph (a) of this subsection
(7.5), "special needs offender" does
not include a person who:
(I) Has been convicted of a class 1
felony; or
(II) Has ever been convicted of a
crime of violence as defined in section 18-1.3-406, C.R.S.; or
(III) Is or has ever been a sex offender as defined in section 18-1.3-1003
(4), C.R.S.
(8) "State inmate" means any person who is sentenced by the state to
a term of imprisonment in a correctional facility or who is sentenced to
a term of imprisonment pursuant to
section 16-11-308.5, C.R.S.
(9) "Warden" means the administrative head of a correctional facility.

Definitions/Notes

Penalties

Defenses

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(cont.)

CONN. GEN. STAT. § 53a-71 (2006). A
person is guilty of sexual assault in
the second degree when: (a) A person is guilty of sexual assault in the
second degree when such person
engages in sexual intercourse with
Sexual assault in
another person and (5) such other
the fourth degree: person is in custody of law or
Class A misdedetained in a hospital or other instimeanor or class D tution and the actor has supervisory
felony.
or disciplinary authority over such
CONN. GEN. STAT. other person.
§ 53a-73a (2006).
CONN. GEN. STAT. § 53a-73a (2006).
A person is guilty of sexual assault
in the fourth degree when: (a) A
person is guilty of sexual assault in
the fourth degree when: (1) Such
person intentionally subjects another person to sexual contact who is
(E) in custody of law or detained in a
hospital or other institution and the
actor has supervisory or disciplinary
authority over such other person.

the second degree:
Class C or B felony.
CONN. GEN. STAT.
§ 53a-71 (2006).

www.wcl.american.edu/nic

Imprisonment for any felony committed on or after July 1, 1981
CONN. GEN. STAT.§ 53a-35a (2006).
(6) The penalty for a class C felony
shall be imprisonment for a term
not less than 1 year nor more than
10 years.

CONN. GEN. STAT.§ 53a-71 (2006).
(b)Sexual assault in the second
degree is a class C felony or, if the
victim of the offense is under 16
years of age, a Class B felony and
any person found guilty under this
section shall be sentenced to a term
of imprisonment of which 9 months
of the sentence imposed may not be
suspended or reduced by the court.

Penalties

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

NOTE: See State v. Straub, 1999
Conn. Super. LEXIS 746 (holding that
the statutory phrase “in custody of
law” covered persons beyond those
confined and included persons committed by the court to supervision
by the probation departments, and
that the alleged victims were therefore in custody while on probation).

CONN. GEN. STAT. § 53a-73a (2006).
(b) Sexual assault in the fourth
degree is a class A misdemeanor, or
if the victim of the offenses is under
CONN. GEN. STAT. § 53a-65 (2006).
(3) “Sexual contact” means any con- 16 years of age, a Class D felony.
tact with the intimate parts of a
person not married to the actor for Imprisonment for misdemeanor
CONN. GEN. STAT. § 53a-36 (2006).
the purpose of sexual gratification
(1) The penalty for a class A misdeof the actor or for the purpose of
degrading or humiliating such per- meanor shall be imprisonment for a
term not to exceed 1 year.
son or any contact of the intimate
parts of the actor with a person not
married to the actor for the purpose CONN. GEN. STAT. § 53a-35 (2006).
(7) The penalty for a Class D felony
of sexual gratification of the actor
shall be imprisonment for not less
or for the purpose of degrading or
than one, but no more than 5 years.
humiliating such person.

Definitions.
CONN. GEN. STAT. § 53a-65 (2006).
(2) “Sexual intercourse” means any
contact with the intimate parts of a
person not married to the actor for
the purpose of sexual gratification
of the actor for the purpose of
degrading or humiliating such person or any contact of the intimate
parts of the actor with a person not
married to the actor for the purpose
of sexual gratification of the actor
or for the purpose of degrading or
humiliating such person.

CONN. GEN. STAT § 53a-70b (2006).
(a)(2) "Use of force" means: (A) Use
of a dangerous instrument; or (B)
use of actual physical force or violence or superior physical strength
against the victim.

Definitions/Notes

Connecticut Sexual assault in

Coverage
covering the immediate area of the
victim's or actor's intimate parts if
that sexual contact is for the purposes of sexual arousal, gratification, or abuse.

Statute

Colorado

State

Defenses

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Coverage
DEL. CODE ANN. tit. 11, § 1259
(2006). A person is guilty of sexual
relations in a detention facility
when, being a person in custody at a
detention facility or being an
employee working at a detention
facility, the person engages in sexual
intercourse or deviate sexual intercourse on the premises of a detention facility.

Statute

Sexual relations in
detention facility;
Class G felony
DEL. CODE ANN.
tit. 11, § 1259
(2006).

State

Delaware

Escape and offenses relating to custody; definitions.
DEL. CODE ANN. tit. 11, § 1258
(2006). As used in §§ 1251-1257 of
this title:
(1) "Detention facility" means any
place used for the confinement of a
person:
a. Charged with or convicted of an
offense; or
b. Charged with being a delinquent
child as defined in § 901 of Title 10;
or
c. Held for extradition or as a material witness; or
d. Otherwise confined pursuant to
an order of a court.
(2) "Custody" means restraint by a
public servant pursuant to an arrest,
detention or an order of a court.
(3) "Contraband" means any intoxicating liquor or drug prohibited
under Chapter 47 of Title 16, except
as prescribed by a physician for
medical treatment, any money without the knowledge or consent of the
Department of Health and Social
Services, any deadly weapon or part
thereof or any instrument or article
which may be used to effect an
escape.
(4) "Escape" means departure from
the place in which the actor is held
or detained with knowledge that
such departure is unpermitted.
(5) "Other place having custody of
such person" includes, but is not
limited to, any building, facility,
structure, vehicle or property in
which a person may be placed while
in custody, whether temporarily or
permanently and regardless of
whether such building, facility, structure, vehicle or property is owned or
controlled by the Department of
Correction or any other state
agency.
(e) "Sexual intercourse" means:
(1) Any act of physical union of the
genitalia or anus of 1 person with
the mouth, anus or genitalia of
another person. It occurs upon any

Definitions/Notes

DEL. CODE ANN. tit. 11,§ 4205
(2006). (b)(7) The penalty for a class
G felony shall be imprisonment at
Level V for a term of up to 2 years,
and (k)The penalty may include fines
and penalties as the court deems
appropriate.

DEL. CODE ANN. tit. 11, § 1259
(2006). Violation of this section
shall be a class G felony.

Penalties
DEL. CODE ANN. tit. 11, §
1259 (2006).
It shall be no defense that
such conduct was consensual.

Defenses

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(cont.)

Delaware

State

Statute

Coverage
penetration, however slight.
Ejaculation is not required. This
offense encompasses the crimes
commonly known as rape and
sodomy; or
(2) Any act of cunnilingus or fellatio
regardless of whether penetration
occurs. Ejaculation is not required.
(f) "Sexual contact" means: (1) Any
intentional touching by the defendant of the anus, breast, buttocks or
genitalia of another person; or(2)
Any intentional touching of another
person with the defendant's anus,
breast, buttocks or genitalia which
touching, under the circumstances
as viewed by a reasonable person, is
intended to be sexual in nature.
Sexual contact shall also include
touching when covered by clothing.
(g) "Sexual penetration" means:
(1) The unlawful placement of an
object, as defined in subsection (c)
of this section, inside the anus or
vagina of another person; or (2) The
unlawful placement of the genitalia
or any sexual device inside the
mouth of another person.
(h) "Without consent" means: (1)
The defendant compelled the victim
to submit by any act of coercion as
defined in §§ 791 and 792 of this
title, or by force, by gesture, or by
threat of death, physical injury, pain
or kidnapping to be inflicted upon
the victim or a third party, or by any
other means which would compel a
reasonable person under the circumstances to submit. It is not
required that the victim resist such
force or threat to the utmost, or to
resist if resistance would be futile or
foolhardy, but the victim need resist
only to the extent that it is reasonably necessary to make the victim's
refusal to consent known to the
defendant; or
(2) The defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act
was being performed; or
(3) The defendant knew that the vic-

Definitions/Notes

Penalties

Defenses

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(cont.)

Delaware

State

Statute

Coverage
tim suffered from a mental illness or
mental defect which rendered the
victim incapable of appraising the
nature of the sexual conduct; or
(4) Where the defendant is a health
professional, as defined herein, or a
minister, priest, rabbi or other member of a religious organization
engaged in pastoral counseling, the
commission of acts of sexual contact, sexual penetration or sexual
intercourse by such person shall be
deemed to be without consent of the
victim where such acts are committed under the guise of providing
professional diagnosis, counseling or
treatment and where at the times of
such acts the victim reasonably
believed the acts were for medically
or professionally appropriate diagnosis, counseling or treatment, such
that resistance by the victim could
not reasonably have been manifested. For purposes of this paragraph,
"health professional" includes all
individuals who are licensed or who
hold themselves out to be licensed
or who otherwise provide professional physical or mental health
services, diagnosis, treatment or
counseling and shall include, but not
be limited to, doctors of medicine
and osteopathy, dentists, nurses,
physical therapists, chiropractors,
psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors,
marriage and family counselors or
therapists and hypnotherapists; or
(5) The defendant had substantially
impaired the victim's power to
appraise or control the victim's own
conduct by administering or employing without the other person's
knowledge or against the other person's will, drugs, intoxicants or
other means for the purpose of preventing resistance.
(i) "Position of trust, authority or
supervision over a child" includes,
but is not limited to:
(1) Familial or custodial authority or

Definitions/Notes

Penalties

Defenses

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District of
Columbia

(cont.)

Delaware

State

Coverage

www.wcl.american.edu/nic

NOTE: See Smith v. State, 361 A.2d
237. A prisoner on furlough,
although outside the prison walls
without immediate supervision, is
clearly not free from restraint; the
prisoner is deemed to be fully aware
that the prisoner's movements are
restricted according to the limitations of time, place and purpose
imposed by the terms of the
furlough.

supervision; or
(2) A teacher, instructor, coach,
babysitter, day care provider, or
aide or any other person having regular direct contact with children
through affiliation with a school,
church or religious institution, athletic or charitable organization or
any other organization, whether
such a person is compensated or
acting as a volunteer.
(j) A child who has not yet reached
his or her sixteenth birthday is
deemed unable to consent to a sexual act with a person more than 4
years older than said child. Children
who have not yet reached their
twelfth birthday are deemed unable
to consent to a sexual act under any
circumstances.

Definitions/Notes

Definitions.
D.C. CODE ANN.§ 22-3001(6)
(LexisNexis 2006).
“Official custody” means: (A)
Detention following arrest for an
offense; following surrender in lieu
of an arrest for an offense; following
a charge or conviction of an offense,
or an allegation or finding of juvenile delinquency; following commitment as a material witness; following or pending civil commitment
proceedings, or pending extradition,
deportation, or exclusion; (b) cusD.C. CODE ANN.§ 22-3014 (LexisNexis tody for purposes incident to any
2006).
detention described in subparaWhoever engages in sexual contact graph (a) of this paragraph, includwith another person or causes
ing transportation, medical diagno-

D.C. CODE ANN.§ 22-3013 (LexisNexis
2006).
Whoever engages in a sexual act
with another person or causes
another person to engage in or submit to a sexual act when that other
person: (1) Is in official custody, or is
Second degree
sexual abuse of a a ward or resident, on a permanent
or temporary basis, of a hospital,
ward.
D.C. CODE ANN. § treatment facility, or other institution: and (2) Is under the superviso22-3014
(LexisNexis 2006). ry or disciplinary authority of the
actor.

First degree sexual
abuse of a ward.
D.C. CODE ANN. §
22-3013
(LexisNexis 2006).

Statute

Defenses

Defenses to sexual abuse of
a ward, patient, or client.
D.C. CODE ANN.§ 22-3017
(LexisNexis 2006).
(a) Consent is not a defense
to either first or second
degree sexual abuse of a
ward; (b) Marriage between
D.C. CODE ANN.§ 22-3014 (LexisNexis the defendant and the victim at the time of the
2006).
offense is a defense to both
(2) The penalty for second degree
first and second degree
sexual abuse of a ward shall be
sexual abuse of a ward,
imprisonment for a term not to
which the defendant must
exceed 5 years and may include a
prove by a preponderance
fine not to exceed $50,000.
of the evidence.
D.C. CODE ANN.§ 22-3013(2)
(LexisNexis 2006).
The penalty for first degree sexual
abuse of a ward shall be imprisonment for a term not to exceed 10
years, and may include a fine not to
exceed $100,000.

Penalties

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Florida

State

Definitions/Notes

FLA. STAT. ANN. § 944.35(4)(a)
(LexisNexis 2006).
(4)(a) Any employee required to
report pursuant to this section who
knowingly or willfully fails to do so,
or who knowingly or willfully prevents another person from doing so,
commits a misdemeanor of the first
degree.

Sexual battery.
FLA. STAT. ANN. §
794.011
(LexisNexis 2006).

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FLA. STAT. ANN. § 944.35 (LexisNexis
2006). Sexual misconduct is a felony
in the third degree.
(3)(d) The penalty for a felony in the
third degree shall be: imprisonment
for a term not to exceed 5 years

Penalties

FLA. STAT. ANN. § 944.35
(LexisNexis 2006).
(3)(b)(3) Consent is not a
defense.

Defenses

FLA. STAT. ANN. § 944.35
(LexisNexis 2006).
FLA. STAT. ANN. § 944.35 (LexisNexis (3) (b)(4) Ignorance that
inmate is an inmate or
2006).
under the supervision by
(4)(a): Failure to report is a misdethe.
meanor of the first degree. The
penalty for a misdemeanor of the
FLA. STAT. ANN. § 944.35 (LexisNexis first degree shall be imprisonment
FLA. STAT. ANN. § 944.35
2006).
(LexisNexis 2006).
for a term not to exceed 1 year
(3)(c)Notwithstanding prosecution,
(3)(b) (4) Marriage is a
and/or payment of a fine.
any violation of the provisions of
defense.
this subsection, as determined by
Penalties; applicability of sentencing
the Public Employees Relations
structures; mandatory minimum
Commission, shall constitute suffisentences for certain re-offenders
cient cause under 5.110.227 for dis- previously released from prison.
missal from employment with the
FLA. STAT. ANN. § 775.082
department, and such person may
(LexisNexis 2006).
not again be employed in any capac- (7) This section does not deprive the
ity in connection with the correccourt of any authority conferred by
tional system.
law to decree a forfeiture of property, suspend or cancel a license,
FLA. STAT. ANN. § 794.011
remove a person from office, or
(LexisNexis 2006). (1)(a) "consent" impose any other civil penalty. Such
means intelligent, knowing, voluna judgement or order may be includtary consent and does not include
ed in the sentence.
submission.
Fines.
FLA. STAT. ANN. § 794.011
FLA. STAT. ANN. § 775.083
(LexisNexis 2006).
(LexisNexis 2006).
(1)(f) "retaliation" includes but is
(c) $5,000 when the conviction is of
not limited to threats of future phys- a felony of the third degree.
ical punishment, false imprisonment (d): $1,000 when the conviction is of
or forcible confinement or extortion. a misdemeanor of the first degree.

FLA. STAT. ANN. § 944.35 (LexisNexis
2006).
(3)(b)(1)Sexual Misconduct means
the oral, anal, or vaginal penetration
by, or union with, the sexual organ
of another or the anal or vaginal
penetration of another by any other
object. Does not include an act
done for a bona fide medical exam
or an internal search lawfully conducted.

FLA. STAT. ANN. § 944.35 (LexisNexis
2006).
(4)(c) Any person who knowingly or
willfully coerces or threatens any
other person with the intent to alter
either testimony or a written report
regarding the incident of sexual misconduct commits a felony in the
third degree. As part of the correctional-officer training program, the
FLA. STAT. ANN. § 794.011
Criminal Justice Standards and
(LexisNexis 2006).
Training Commission shall develop

FLA. STAT. ANN. § 944.35 (LexisNexis
2006).
(4)(b)Any person who knowingly or
willfully submits inaccurate, incomplete, or untruthful information with
regard to reports required in their
section commits a misdemeanor of
the first degree.

FLA. STAT. ANN. § 944.35 (LexisNexis
2006).
(3)(b)(2)Any employee of the department who engages in sexual misconduct with an inmate or an offender
supervised by the department in the
community, without committing the
crime of sexual battery, commits a
felony of the third degree.

another person to engage in or sub- sis or treatment, court appearances,
mit to sexual contact when that
work and recreation; or (c) probaother person: (1) Is in official custion or parole.
tody, or is a ward or resident, on a
permanent or temporary basis, of a
hospital, treatment facility, or other
institution; and (2) Is under the
supervisory or disciplinary authority
of the actor.

Coverage

Authorized use of
Force; malicious
battery & sexual
misconduct prohibited; reporting
required; penalties. FLA. STAT.
ANN. § 944.35
(LexisNexis 2006).

Statute

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(cont.)

Florida

State

Statute

Definitions.
FLA. STAT. ANN. § 943.10 (LexisNexis
2006).
The following words and phrases as
used in §§943.085-943.255 are
defined as follows:
(1) “Law enforcement officer”
means any person who is elected,
appointed or employed full time by
any municipality or the state or any
political subdivision thereof; who is
vested with authority to bear arms
and make arrests; and whose primary responsibility is the prevention and detection of a crime or the
enforcement of the penal, criminal,
traffic or highway laws of the state.
This definition includes all certified
supervisory and command personnel whose duties include, in whole
or in part, the supervision, training,
guidance, and management responsibilities of full-time law enforcement officers, part-time law
enforcement officers, or auxiliary
law enforcement officers but does
not include support personnel
employed by the employing agency
(2) “Correctional officer” means any
person which is appointed or
employed full time by the state or
any political subdivision thereof, or
by any private entity which has contracted with the state or county and
whose primary responsibility is the
supervision, protection, care, custody, and control, or investigation of
inmates within a correctional institution; however, the term “correctional officer” does not include any
secretarial, clerical, or professionally trained personnel.
(3)”Correctional Probation Officer”

(1)(h) "Sexual battery" means oral,
anal, or vaginal penetration by, or
union with, the sexual organ of
another or the anal or vaginal penetration of another by any other
object; however sexual battery does
not include an act done for a bona
fide medical purpose.

course materials for inclusion in the
appropriate required course specifically designed to explain the parameters of this subsection and to teach
sexual assault identification and
prevention methods and techniques.
FLA. STAT. ANN. § 794.011
(LexisNexis 2006).
(4) Sexual battery upon a person 12
years of age or older without that
person’s consent, under any of the
following circumstances, commits a
felony of the 1st degree, punishable
as provided in §§775.082, 775.083,
775.084 & 794.0115).
(4)(g): when the offender is a law
enforcement officer, correctional
officer, or correctional probation
officer, or is an elected official
exempt from such certification by
virtue of § 943.253, or any other
person in a position of control or
authority in a probation, community
control, controlled release, detention, custodial, or similar setting,
and such officer, official, or person
is acting in such a manner as to lead
the victim to reasonably believe that
the offender is in a position of control or authority as an agent or
employee of government.

Definitions/Notes

Coverage

Penalties

Defenses

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Georgia

State

Sexual assault
against persons in
custody; sexual
assault against
person detained or
patient in hospital
or other institution; sexual
assault by practitioner of psychotherapy
against patient.
GA. CODE ANN. §
16-6-5.1 (2006).

Statute

GA. CODE ANN. § 16-6-5.1 (2006).
(b) A probation or parole officer or
other custodian or supervisor of
another person referred to in this
Code section commits sexual assault
when he engages in sexual contact
with another person who is a probationer or parolee under the supervision of said probation or parole officer or who is in the custody of law
or who is enrolled in a school or who
is detained in or is a patient in a
hospital or other institution and
such actor has supervisory or disci-

Coverage

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GA. CODE ANN. § 16-6-5.1 (2006).
As used in this code section the
term: (2)"intimate parts" means
genital area, groin, inner thighs,
buttocks, or breasts of a person.

GA. CODE ANN. § 16-6-5.1 (2006).
(a)As used in this Code section, the
term: (4) “Sexual Contact” means
any contact for the purpose of sexual gratification of the actor with the
intimate parts of a person not married to the actor.

FLA. STAT. ANN. § 944.02
(LexisNexis 2006).
"Correctional system" means all
prisons and other state correctional
institutions now existing or hereafter created under the jurisdiction
of the Department of Corrections.

means a person who is employed
full time by the state whose primary
responsibility is the supervised custody, surveillance, and control of
assigned inmates, probationers,
parolees, or community
controllees within institutions of the
Department of Corrections or within
the community. The term includes
supervisory personnel whose duties
include, in whole or in part, the
supervision, training and guidance
of correctional probation officers,
but excludes management and
administrative personnel above, but
not including, the probation and
parole regional administrator level.
(4) “Employing agency” means any
agency or unit of government or any
municipality or the state or any
political subdivision thereof, or any
agent thereof, which has constitutional or statutory authority to
employ or appoint persons as officers. The term also includes any private entity which has contracted
with the state or county for the
operation and maintenance of a
non-juvenile detention facility.

Definitions/Notes

GA. CODE ANN. § 16-6-5.1 (2006).
(b) A person convicted of sexual
assault shall be punished by imprisonment for not less than ten nor
more that 30 years; provided, however, that any person convicted of
the offense of sexual assault under
this subsection of a child under the
age of 14 years shall be punished by
imprisonment for not less than 25
nor more than 50 years. Any person
convicted under this subsection of
the offense of sexual assault, shall,
in addition, be subject to the sen-

Penalties

The definition of “sexual
contact” in
§ 16-6-5.1(a)(4) excludes
contact between married
persons.

GA. CODE ANN. § 16-65.1(c)(3) (2006)..
Consent of the victim is not
a defense.

Defenses

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Hawaii

(cont.)

Georgia

State
plinary authority over such other
person.
(c) A person commits sexual assault
when such person has supervisory
or disciplinary authority over another person and such person engages
in sexual contact with that other
person who is: (A) In the custody of
law; or (B) Detained in or is a
patient in a hospital or other
institution.

Coverage

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HAW. REV. STAT. ANN. § 707-732
(LexisNexis 2006).
Sexual assault in the third degree:
(1) A person commits the offense of
sexual assault in the third degree if:
(d) the person, while employed in a
state correctional facility, (ii) by a
private company providing services
at a correctional facility, (iii) by a

HAW. REV. STAT. ANN. § 707-731
(LexisNexis 2006).
Sexual assault in the second degree:
(1) A person commits the offense of
sexual assault in the second degree
if: (c) the person, while employed (i)
in a state correctional facility, (ii) by
a private company providing servicSexual assault in
es at a correctional facility, (iii) by a
the third degree.
private company providing commuHAW. REV. STAT.
nity based residential services to
ANN. § 707-732
persons committed to the director
(LexisNexis 2006). of public safety and having received
notice of this statute, (iv) by a private correctional facility operating
in the state of Hawaii, or (v) as a law
enforcement officer, knowingly subjects to sexual penetration an
imprisoned person, a person confined to a detention facility, a person residing in a private correctional
facility operating in the state of
Hawaii, or a person in custody.

Sexual assault in
the second degree.
Haw. Rev. Stat.
Ann.
HAW. REV. STAT.
ANN. § 707-731
(LexisNexis 2006).

Statute

HAW. REV. STAT. ANN. §710-1000
(LexisNexis 2006).
(3) "Custody" means restraint by a
public servant pursuant to arrest,
detention, or order of a court;
(4) "Detention facility" means any
place used for the confinement of a
person: (a) Arrested for, charged

Definitions of terms in this chapter.
HAW. REV. STAT. ANN. § 707-700
(LexisNexis 2006).
"Sexual penetration" means vaginal
intercourse, anal intercourse, fellatio, cunnilingus, anilingus, deviate
sexual intercourse, or any intrusion
of any part of a person's body or of
any object into the genital or anal
opening of another person's body; it
occurs upon any penetration, however slight, but emission is not
required. For purposes of this chapter, each act of sexual penetration
shall constitute a separate offense.
"Sexual contact" means any touching of the sexual or other intimate
parts of a person not married to the
actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the
clothing or other material intended
to cover the sexual or other intimate
parts.

Definitions/Notes

HAW. REV. STAT. ANN. § 706-660
(LexisNexis 2006).
(1) The penalty for a class B felony
shall be imprisonment not to exceed
a term of 10 years. The penalty for
a class C felony shall be imprisonment for a term not to exceed 5
years. (2) The minimum length of
imprisonment shall be determined
by the paroling authority.

HAW. REV. STAT. ANN. § 707-732
(LexisNexis 2006).
(2)Sexual assault in the third degree
is a class C felony.

HAW. REV. STAT. ANN. § 707-731
(LexisNexis 2006).
(2) Sexual assault in the second
degree is a class B felony.

tencing and punishment provisions
of Code Section 17-10-6.2.
(c)(4) A person convicted of sexual
assault under this subsection shall
be punished by imprisonment for
not less than ten nor more than30
years; provided, however, that any
person convicted of the offense of
sexual assault under this subsection
of a child under the age of 14 years
shall be punished by imprisonment
for not less than 25 nor more than
50 years. Any person convicted
under this subsection of the offense
of sexual assault shall, in addition,
be subject to the sentencing and
punishment provisions of Code
Section 17-10-6.2.

Penalties

Defenses

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Idaho

(cont.)

Hawaii

State

Sexual contact
with a prisoner.
IDAHO CODE ANN.
§ 18-6110 (2006).

Statute

Definitions.
IDAHO CODE ANN. § 18-101A (2006).
(1)"Correctional facility" means a
facility for the confinement of prisoners. The term shall be construed
to include references to terms
including, but not limited to,
"prison," "state prison," "state penitentiary," "governmental detention
facility," "penal institution (facility),"
"correctional institution," "detention
institution (facility)," "county jail,"
"jail," "private prison (facility)" or
"private correctional facility."
(3) “Local correctional facility”
means a facility for the confinement
of prisoners operated by or under
the control of the county or city. The
term shall include references to
“county jail,” or “jail.” The term
shall also include a private correctional facility housing prisoners
under the custody of the state board
of correction, the county Sheriff or
other local law enforcement agency.
(5) “Prisoner” means a person who
has been convicted of a crime in the
state of Idaho and is either incarcerated or on parole or probation for

IDAHO CODE ANN. § 18-6110 (2006).
“Sexual contact” means sexual
intercourse, genital-genital, manualanal, manual-genital, oral-genital,
anal-genital or oral-anal, between
persons of the same or opposite sex.

with, or convicted of a criminal
offense; or (b) Confined pursuant to
chapter 571; or (c) Held for extradition; or (d) Otherwise confined pursuant to an order of a court.

private company providing community based residential services to
persons committed to the director
of public safety and having received
notice of this statute, or (iv) by a
private correctional facility operating in the state of Hawaii knowingly
subjects to sexual contact an imprisoned person, a person committed to
the director of public safety, or a
person residing in a private correctional facility operating in the state
of Hawaii, or causes such person to
have sexual contact with the actor.
IDAHO CODE ANN. § 18-6110 (2006).
It is a felony for any employee of the
Idaho department of correction or
any officer, employee or agent of a
state, local or private correctional
facility to have sexual contact with a
prisoner, not their spouse, whether
an in-state or out-of-state prisoner.

Definitions/Notes

Coverage

IDAHO CODE ANN. § 18-6110 (2006).
Any person found guilty of sexual
contact with a prisoner is punishable by imprisonment in the state
prison for a term not to exceed life.

Penalties

IDAHO CODE ANN. § 186110 (2006).
The sexual contact must be
with a prisoner who is not
the employee’s spouse.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Illinois

(cont.)

Idaho

State

Custodial Sexual
Misconduct
720 ILL. COMP.
STAT. ANN. 5/119.2 (LexisNexis
2005).

Statute

720 ILL. COMP. STAT. ANN. 5/11 9.2
(LexisNexis 2005).
(a) A person commits the offense of
custodial sexual misconduct when:
(1) he or she is an employee of a
penal system and engages in sexual
conduct or sexual penetration with a
person who is in the custody of that
penal system or (2) he or she is an
employee of a treatment and detention facility and engages in sexual
conduct or sexual penetration with a

Coverage

www.wcl.american.edu/nic

720 ILL. COMP. STAT. ANN. 5/11 9.2
(LexisNexis 2005). (g)(1) “Custody”
means: (i) pretrial incarceration or
detention; (ii) incarceration or
detention under a sentence or commitment to a State or local penal
institution, (iii) parole or mandatory
supervised release; (iv) electronic
home detention; (v) probation; (vi)
detention or civil commitment either
in secure care or in the community
under the Sexually Violent Persons

that crime or in custody for trial and
sentencing, or who is convicted of
and sentenced for a crime in a state
other than the state of Idaho, or
under the laws of the United States
or other foreign jurisdiction, and
who is being housed in any state,
local or private correctional facility,
or who is being transported in any
manner within or through the state
of Idaho.
(6) “Private correctional facility” or
private prison (facility)” means a
correctional facility constructed or
operated in the state of Idaho by a
private prison contractor.
(7) “Private prison contractor”
means any person, organization,
partnership, joint venture, corporation or other business entity
engaged in the site selection,
design/building, acquisition, construction/ management, financing,
maintenance, leasing, leasing/purchasing, management or operation
of private correctional facilities or
any combination of these services.
(8) “State correctional facility”
means a facility for the confinement
of prisoners, owned or operated by
or under the control of the state of
Idaho. The term shall include references to “state prison,” “state penitentiary” or state penal institution
(facility).” The term shall also
include a private correctional facility housing prisoners under the custody of the board of correction.

Definitions/Notes

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

A Class 3 felony carries a penalty of
2-5 years.
720 ILL. COMP. STAT. ANN. 5/11 9.2
(LexisNexis 2005).
(d) Any person convicted of violating
this Section immediately shall forfeit his or her employment with a
penal system, treatment and deten-

720 ILL. COMP. STAT. ANN. 5/11 9.2
(LexisNexis 2005). (c) Custodial sexual misconduct is a Class 3 felony.

Penalties

720 ILL. COMP. STAT. ANN.
5/11 9.2 (LexisNexis 2005).
(f) This section does not
apply to:
(1) Any employee, probation or supervising officer,

720 ILL. COMP. STAT. ANN.
5/11 9.2 (LexisNexis 2005).
(e) Consent is not a defense
to a prosecution under this
section.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

64
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

(cont.)

Illinois

State

Statute

Definitions.
720 ILL. COMP. STAT. ANN § 5/12-12
(LexisNexis 2005).
(e) "Sexual conduct" means any
intentional or knowing touching or
fondling by the victim or the
accused, either directly or through
clothing, of the sex organs, anus or
breast of the victim or the accused,
or any part of the body of a child
under 13 years of age, or any transfer or transmission of semen by the
accused upon any part of the
clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or
the accused.
(f) "Sexual penetration" means any
contact, however slight, between the
sex organ or anus of one person by
an object, the sex organ, mouth or
anus of another person, or any
intrusion, however slight, of any
part of the body of one person or of
any animal or object into the sex

tion facility, or conditional release
Commitment Act;
program.
(g)(3) “Employee” means: (i) an
employee of any governmental
agency of this State or any county or
municipal corporation that has by
statute, ordinance, or court order
the responsibility for the care, control, or supervision of pretrial or
sentenced persons in a penal system, (ii) a contractual employee of a
penal system, or (iii) a contractual
employee of a treatment and detention facility.
(6) “Supervising officer” means any
person employed to supervise persons placed on parole or mandatory
supervised release with the duties
described in Section 3-14-2 of the
certified Code of Corrections.
(7) “Surveillance agent” means any
person employed or contracted to
supervise persons placed on conditional release in the community
under the Sexually Violent Persons
Commitment Act [725ILCS 207/1et
seq.].

person who is in the custody of that
treatment and detention facility.
(b) A probation or supervising officer or surveillance agent commits
the offense of custodial sexual misconduct when the probation or
supervising officer or surveillance
agent engages in sexual conduct or
sexual penetration with a probationer, parolee, or releasee or person
serving a term of conditional release
who is under the supervisory, disciplinary, or custodial authority of the
officer or agent so engaging in the
sexual conduct or sexual
penetration.

Penalties

Definitions/Notes

Coverage
or surveillance agent who
is lawfully married to a
person in custody if the
marriage occurred before
the date of custody.
(2) Any employee, probation, or supervisory officer,
or surveillance agent who
has no knowledge, and
would have no reason to
believe, that the person
with whom he or she
engaged in custodial sexual
misconduct was a person in
custody.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Indiana

(cont.)

Illinois

State

Sexual misconduct
by service
provider and
detainee.
IND. CODE ANN. §
35-44-1-5
(LexisNexis 2006).

Statute

IND. CODE ANN. § 35-44-1-5
(LexisNexis 2006).
(b) A service provider who knowingly or intentionally engages in sexual
intercourse or deviate sexual conduct with a person who is subject to
lawful detention commits sexual
misconduct, a Class D felony.

Coverage

www.wcl.american.edu/nic

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

Lawful detention.
IND. CODE ANN. § 35-41-1-18

IND. CODE ANN. § 35-44-1-5
(LexisNexis 2006).
(a)As used in this section, “service
provider” means a public servant or
other person employed by a governmental entity or another person
who provides goods or services to a
person who is subject to lawful
detention.

"Penal institution."
720 ILL. COMP. STAT. ANN. 5/2 14
(LexisNexis 2005).
"Penal institution" means a penitentiary, state farm, reformatory,
prison, jail, house of correction, or
other institution for the incarceration or custody of persons under
sentence for offenses or awaiting
trial or sentence for offenses.

Definitions.
720 ILL. COMP. STAT. ANN. 110/9b
(LexisNexis 2005).
(3) “Probation officer” means a person employed full time in a probation or court services department
providing services to a court under
this Act or the Juvenile Court Act of
1987 [705 ILCS 405/1-1 et.seq.]. A
probation officer includes detention
staff, non-secure group home staff
and management personnel who
meet minimum standards established by the Supreme Court and
who are hired under the direction of
the circuit court. These probation
officers are judicial employees designated on a circuit wide or county
basis and compensated by the
appropriate county board or boards.

organ or anus of another person,
including but not limited to cunnilingus, fellatio or anal penetration.
Evidence of emission of semen is
not required to prove sexual
penetration.

Definitions/Notes

Defenses

IND. CODE ANN. § 35-44-1-5
(LexisNexis 2006).
(c)It is not a defense that
an act described in subsection (b) was consensual.
(d) This section does not
Definitions
apply to sexual intercourse
IND. CODE ANN. § 35-50-2-1
or deviate sexual conduct
(LexisNexis 2006).
(c) The minimum penalty for a Class between
spouses.
D felony is imprisonment for one
half (1/2) year.
IND. CODE ANN. § 35-44-1-5(b)
(LexisNexis 2006).
Sexual misconduct is a class D
felony.

Penalties

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66
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

(cont.)

Indiana

State

Statute

Coverage

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Sexual Intercourse.
IND. CODE ANN. § 35-41-1-26
(LexisNexis 2006).
“Sexual intercourse means an act
that includes any penetration of the
female sex organ by the male sex
organ.

Deviate sexual conduct.
IND. CODE ANN. § 35-41-1-9
(LexisNexis 2006).
“Deviate sexual conduct” means an
act involving:
(1) A sex organ of one person and
the mouth or anus of another person, or
(2) The penetration of the sex organ
or anus of a person by an object.

(LexisNexis 2006).
(a) "Lawful detention" means:
(1) arrest;
(2) custody following surrender in
lieu of arrest;
(3) detention in a penal facility;
(4) detention in a facility for custody
of persons alleged or found to be
delinquent children;
(5) detention under a law authorizing civil commitment in lieu of criminal proceedings or authorizing such
detention while criminal proceedings are held in abeyance;
(6) detention for extradition or
deportation;
(7) placement in a community corrections program's residential
facility;
(8) electronic monitoring;
(9) custody for purposes incident to
any of the above including transportation, medical diagnosis or
treatment, court appearances, work,
or recreation; or
(10) any other detention for law
enforcement purposes.
(b) Except as provided in subsection
(a) (7) and (a) (8), the term does not
include supervision of a person on
probation or parole or constraint
incidental to release with or without
bail.

Definitions/Notes

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Statute

Sexual misconduct
with offenders
and juveniles
IOWA CODE §
709.16 (2005).

State

Iowa

Coverage

IOWA CODE § 702.17 (2005).
The term "sex act" or "sexual activity" means any sexual contact
between two or more persons by:
penetration of the penis into the
vagina or anus; contact between the
mouth and genitalia or by contact
between the genitalia of one person
and the genitalia or anus of another
person; contact between the finger
or hand of one person and the genitalia or anus of another person,
except in the course of examination
or treatment by a person licensed to
do so; or by use of artificial sexual
organs or substitutes therefore in
contact with the genitalia or anus.

IOWA CODE § 709.16 (2005).
(2) A “juvenile placement facility”
means a "juvenile placement facility" means any of the following:
a. A child foster care facility
licensed under section 237.4.
b. Institutions controlled by the
department of human services listed
in section 218.1.
c. Juvenile detention and juvenile
shelter care homes approved under
section 232.142.
d. Psychiatric medical institutions
for children licensed under chapter
135H.
e. Substance abuse facilities as
defined in section 125.2.

Definitions/Notes

Special sentence — class "D" felonies
or misdemeanors.
IOWA CODE § 903B.2.
A person convicted of a misdemeanor or a class "D" felony offense
under chapter 709, section 726.2, or
section 728.12 shall also be sentenced, in addition to any other
punishment provided by law, to a
special sentence committing the
person into the custody of the director of the Iowa department of corrections for a period of ten years,
with eligibility for parole as provided in chapter 906. The special sentence imposed under this section
shall commence upon completion of
the sentence imposed under any
applicable criminal sentencing provisions for the underlying criminal
offense and the person shall begin
the sentence under supervision as if
on parole. The person shall be
placed on the corrections continuum
in chapter 901B, and the terms and
conditions of the special sentence,
including violations, shall be subject
to the same set of procedures set
out in chapters 901B, 905, 906, and
908, and rules adopted under those
chapters for persons on parole. The
revocation of release shall not be
for a period greater than two years

Maximum sentence for misdemeanants.
IOWA CODE § 903.1(2) (2005).
The penalty for an aggravated misdemeanor shall be imprisonment for
a term not to exceed 2 years and a
fine ranging between $500 and
$5,000 when a judgment of conviction of an aggravated misdemeanor
is entered against any person and
the court imposes a sentence of
confinement for a period of more
than one year the term shall be an
indeterminate term.

IOWA CODE § 709.16 (2005).
Sexual misconduct with offenders is
an aggravated misdemeanor.

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

68
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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Kansas

(cont.)

Iowa

State

Unlawful sexual
relations.
KAN. STAT. ANN. §
21-3520 (2005).

Statute

KAN. STAT. ANN. § 21-3520 (2005).
(a) Unlawful sexual relations is
engaging in consensual sexual intercourse, lewd fondling or touching,
or sodomy with a person who is not
married to the offender if:
(1) The offender is an employee of
the department of corrections or the
employee of a contractor who is
under contract to provide services in
a correctional institution and the
person with whom the offender is
engaging in consensual sexual intercourse, lewd fondling or touching, or
sodomy is a person 16 years of age
or older who is an inmate; or
(2) the offender is a parole officer,
or the employee of a contractor who
is under contract to provide supervision services for persons on parole,
conditional release or post-release
supervision, and the inmate has
been released on parole, conditional
release or post-release supervision
under direct supervision and control
of the offender; or
(3) the offender is a law enforcement officer, jail employee, or
employee of a contractor and the
person is 16 or older under lawful
confinement; or
(4) the offender is a law enforcement officer, employee of a juvenile
detention facility or sanctions
house, or employee of a contractor
and the person is 16 years of age or
older under lawful confinement; or
(5) the offender is an employee of
the juvenile justice authority or the
employee of a contractor under contract to provide services to such
juvenile correctional facility and the
person is 16 years of age or older

Coverage
upon any first revocation, and five
years upon any second or subsequent revocation. A special sentence
shall be considered a category "A"
sentence for purposes of calculating
earned time under section 903A.2.

Penalties

KAN. STAT. ANN. § 21-3520 (2005).
Definitions.
(c) “Unlawful sexual relations” is a
KAN. STAT. ANN. § 75-5202 (2005).
As used in K.S.A. 75-5201 et seq. and severity level 10 person felony.
amendments thereto, unless the
context clearly requires otherwise:
(a) "Secretary" means the secretary
of corrections.
(b) "Parole board" means the
Kansas parole board established by
K.S.A. 22-3707 and amendments
thereto.
(c) "Inmate" means any person
incarcerated in any correctional
institution of the state of Kansas.
(d) "Correctional institution" means
the Lansing correctional facility,
Hutchinson correctional facility,
Topeka correctional facility, Norton
correctional facility, Ellsworth correctional facility, Winfield correctional facility, Osawatomie correctional facility, Larned correctional
mental health facility, Toronto correctional work facility, Stockton correctional facility, Wichita work
release facility, El Dorado correctional facility, and any other correctional institution established by the
state for the confinement of offenders under control of the secretary of
corrections.
(e) "Warden" means the person in
charge of the operation and supervision of a correctional institution.
(f) "Corrections officer" means a
full-time, salaried officer or employee under the jurisdiction of the secretary, whose duties include the
receipt, custody, control, maintenance, discipline, security and
apprehension of persons convicted
of criminal offense in this state and
sentenced to a term of imprison-

Definitions/Notes

KAN. STAT. ANN. § 213520 (2005).
(c) “Unlawful sexual relations” is a severity level
10 person felony.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

(cont.)

Kansas

State

Statute
ment under the custody of the secretary.
(g) "Parole officer" means a fulltime salaried officer or employee
under the jurisdiction of the secretary whose duties include:
(1) Investigation, supervision, arrest
and control of persons on parole or
postrelease supervision and the
enforcement of the conditions of
parole or postrelease supervision;
and
(2) services which relate to probationers, parolees or persons on
postrelease supervision and are
required by the uniform act for outof-state parolee supervision.

under lawful confinement; or
(6) the offender is an employee of
the juvenile justice authority or
employee of a contractor, and the
person is 16 or older and
(A)released on conditional release
from a juvenile correctional facility
under supervision and control of
the juvenile justice authority or
juvenile community supervision
agency or (B) placed in custody of
juvenile justice authority under
direct supervision and control of the
juvenile justice authority or juvenile
community supervision agency and
the offender has knowledge that the
person with whom the offender is
engaging in consensual sexual intercourse, lewd fondling or touching or
sodomy is currently under
supervision.

www.wcl.american.edu/nic

Definitions.
KAN. STAT. ANN. § 38-1602 (2005).
As used in this code, unless the context otherwise requires:
(a) "Juvenile" means a person 10 or
more years of age but less than 18
years of age.
(b) "Juvenile offender" means a
person who commits an offense
while a juvenile which if committed
by an adult would constitute the
commission of a felony or

Definitions.
KAN. STAT. ANN. § 21-4703 (2005).
As used in this act: (o) "nonimprisonment," "nonprison" or "nonprison
sanction" means probation, community corrections, conservation camp,
house arrest or any other community based disposition;
(p) "postrelease supervision" means
the release of a prisoner to the community after having served a period
of imprisonment or equivalent time
served in a facility where credit for
time served is awarded as set forth
by the court, subject to conditions
imposed by the Kansas parole board
and to the secretary of correction's
supervision;
(r) "prison" means a facility operated by the Kansas department of corrections.

Definitions/Notes

Coverage

Penalties

Defenses

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NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

(cont.)

Kansas

State

Statute

Coverage
misdemeanor as defined by K.S.A.
21-3105, and amendments thereto,
or who violates the provisions of
K.S.A. 21-4204a or K.S.A. 41-727 or
subsection (j) of K.S.A. 74-8810, and
amendments thereto, but does not
include:
(1) A person 14 or more years of
age who commits a traffic offense,
as defined in subsection (d) of K.S.A.
8-2117, and amendments thereto;
(2) a person 16 years of age or over
who commits an offense defined in
chapter 32 of the Kansas Statutes
Annotated;
(3) a person under 18 years of age
who previously has been:
(A) Convicted as an adult under the
Kansas code of criminal procedure;
(B) sentenced as an adult under the
Kansas code of criminal procedure
following termination of status as an
extended jurisdiction juvenile pursuant to K.S.A. 38-16,126, and
amendments thereto; or
(C) convicted or sentenced as an
adult in another state or foreign
jurisdiction under substantially similar procedures described in K.S.A.
38-1636, and amendments thereto,
or because of attaining the age of
majority designated in that state or
jurisdiction.
(d) "Law enforcement officer"
means any person who by virtue of
that person's office or public
employment is vested by law with a
duty to maintain public order or to
make arrests for crimes, whether
that duty extends to all crimes or is
limited to specific crimes.
(e) "Youth residential facility"
means any home, foster home or
structure which provides twentyfour-hour-a-day care for juveniles
and which is licensed pursuant to
article 5 of chapter 65 of the Kansas
Statutes Annotated.
(f) "Juvenile detention facility"
means any secure public or private
facility which is used for the lawful
custody of accused or adjudicated

Definitions/Notes

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

(cont.)

Kansas

State

Statute

Coverage
juvenile offenders and which shall
not be a jail.
(g) "Juvenile correctional facility"
means a facility operated by the
commissioner for juvenile offenders.
(j) "Jail" means:
(1) An adult jail or lockup; or
(2) a facility in the same building as
an adult jail or lockup, unless the
facility meets all applicable licensure requirements under law and
there is (A) total separation of the
juvenile and adult facility spatial
areas such that there could be no
haphazard or accidental contact
between juvenile and adult residents in the respective facilities; (B)
total separation in all juvenile and
adult program activities within the
facilities, including recreation, education, counseling, health care, dining, sleeping, and general living
activities; and (C) separate juvenile
and adult staff, including management, security staff and direct care
staff such as recreational, educational and counseling.
(l) "Juvenile intake and assessment
worker" means a responsible adult
authorized to perform intake and
assessment services as part of the
intake and assessment system
established pursuant to K.S.A. 757023, and amendments thereto.
(m) "Institution" means the following institutions: The Kansas juvenile
correctional complex, the Atchison
juvenile correctional facility, the
Beloit juvenile correctional facility,
the Larned juvenile correctional
facility and the Topeka juvenile correctional facility.
(n) "Sanctions house" means a
facility which is operated or structured so as to ensure that all
entrances and exits from the facility
are under the exclusive control of
the staff of the facility, whether or
not the person being detained has
freedom of movement within the
perimeters of the facility, or which
relies on locked rooms and

Definitions/Notes

Penalties

Defenses

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Kentucky

(cont.)

Kansas

State

Sexual Abuse in
the Second
Degree. KY. REV.
STAT. ANN. §
510.120
(LexisNexis 2006).

Statute

KY. REV. STAT. § 510.120 (LexisNexis
2006).
(1) A person is guilty of sexual abuse
in the second degree when:
(c) Being an employee, contractor,
vendor, or volunteer of the
Department of Corrections, or a
detention facility, or of an entity
under contract with either the
department or a detention facility
for the custody, supervision, evaluation, or treatment of offenders, he
subjects an offender who is incarcerated, supervised, evaluated, or
treated by the Department of
Corrections, the detention facility, or
the contracting entity, to sexual
contact.

Coverage

KY. REV. STAT. § 510.010 (LexisNexis
2006).
(2) "Custody" means restraint by a
public servant pursuant to a lawful
arrest, detention, or an order of
court for law enforcement purposes,
but does not include supervision of
probation or parole or constraint
incidental to release on bail;
(4) "Detention facility" means any
building and its premises used for
the confinement of a person:
(a) Charged with or convicted of an
offense;
(b) Alleged or found to be delinquent;
(c) Held for extradition or as a material witness; or
(d) Otherwise confined pursuant to
an order of court for law enforcement purposes.

KY. REV. STAT. § 510.010 (LexisNexis
2006).
(7) “Sexual contact” means any
touching of the sexual or other intimate parts of a person done for the
purpose of gratifying the sexual
desire of either party.

buildings, fences, or physical
restraint in order to control the
behavior of its residents. Upon an
order from the court, a licensed
juvenile detention facility may serve
as a sanctions house.
(r) "Juvenile corrections officer"
means a certified employee of the
juvenile justice authority working at
a juvenile correctional facility
assigned by the commissioner with
responsibility for maintaining custody, security and control of juveniles in the custody of the commissioner at a juvenile correctional
facility.
(s) "Investigator" means an employee of the juvenile justice authority
assigned by the commissioner with
the responsibility for investigations
concerning employees at the juvenile correctional facilities and juveniles in the custody of the commissioner at a juvenile correctional
facility.

Definitions/Notes

Sentence of imprisonment for a misdemeanor.
KY. REV. STAT. § 532.090 (LexisNexis
2006).
Sentence of Imprisonment for misdemeanor: (1) For a Class A misdemeanor, the term shall not exceed
12 months.

KY. REV. STAT. § 510.120 (LexisNexis
2006).
(2) Sexual abuse in the second
degree is a Class A misdemeanor.

Penalties

KY. REV. STAT. § 510.120
(LexisNexis 2006).
(1) Marriage at the time of
sexual contact is a defense.

Defenses

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Unlawful sexual
touching.
ME. REV. STAT.
ANN. tit. 17-A, §
260.1-E (2005).

Unlawful sexual
contact.
ME. REV. STAT.
ANN. tit. 17-A, §
255-A 1.E (2005).

Gross sexual
assault.
ME. REV. STAT.
ANN. tit. 17-A, §
253 (2005).

Definitions/Notes

ME. REV. STAT. ANN. tit. 17-A, §
251(1)(C) (2005).
1. In this chapter the following definitions apply.
C. “Sexual act” means:
1) Any act between 2 persons involving direct physical contact between
the genitals of one and the mouth
or anus of the other, or direct physical contact between the genitals of
one and genitals of the other;
2) Any act between a persona and
an animal being used by another
person which act involves direct
physical contact between the genitals of one and the mouth or anus of
the other, or direct physical contact
between the genitals of one and the
genitals of the other; or
3) Any act involving direct physical
contact between the genitals or
anus of one and an instrument or
device manipulated by another person when that act is done for the
purpose of arousing or gratifying
sexual desire or for the purpose of
causing bodily injury or offensive
physical contact. A sexual act may
be proved without allegation or
Unlawful sexual touching,
proof of penetration.
ME. REV. STAT. ANN. tit. 17-A, §
260.1(2005). 1. A person is guilty of § 251.1.D "Sexual contact" means
unlawful sexual touching if the actor any touching of the genitals or anus,
directly or through clothing, other
intentionally subjects another person to any sexual touching and: (E) than as would constitute a sexual
act, for the purpose of arousing or
the other person, not the actor's
gratifying sexual desire or for the
spouse, is in official custody as a
purpose of causing bodily injury or
probationer or parolee or is
offensive physical contact.
detained in a hospital prison or
ME. REV. STAT. ANN. tit. 17-A, § 253
(2005).
2. A person is guilty of gross sexual
assault if that person engages in a
sexual act with another person and:
E. The other person, not the actor’s
spouse, is in official custody as a
probationer or a parolee, or is
detained in a hospital, prison or
other institution, and the actor has
supervisory or disciplinary authority
over the other person; violation of
this paragraph is a Class B crime.
J. The actor owns, operates or is an
employee of an organization, program or residence that is operated,
administered, licensed or funded by
the Dept. of Mental Health, Mental
Retardation and Substance Abuse
Services or the Dept. of Human
Services and the other person, not
the actor’s spouse, receives services
from the organization, program or
residence and the organization, program or residence recognizes that
person as a person with mental
retardation.

LA. REV. STAT. ANN. § 14:134.1(A)
(2006).
It shall be unlawful and constitute
malfeasance in office for any person
who is a law enforcement officer,
officer of the Department of
Corrections, or employee of a
prison, jail, or correctional institution, to engage in sexual intercourse
or any other sexual conduct with a
person confined in a prison, jail or
correctional institution.

Malfeasance in
office; sexual conduct prohibited
with persons confined in correctional institutions.
LA. REV. STAT.
ANN. § 14:134.1
(2006).

Louisiana

Maine

Coverage

Statute

State

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

ME. REV. STAT. ANN. tit. 17-A, § 260)
(2005).
1.E. Unlawful sexual touching is a
Class D crime.

Imprisonment for crimes other than
murder.
ME. REV. STAT. ANN. tit. 17-A, § 1252
(2005).
The court shall set the term of
imprisonment as follows: B.in the
case of a Class B crime, the court
shall set a definite period not to
exceed 10 years.

ME. REV. STAT. ANN. tit. 17-A, § 253
(2005).
6. In using a sentencing alternative
involving a term of imprisonment
for a person convicted of violating
this section, a court shall, in determining the maximum period of
incarceration as the second step in
the sentencing process, treat each
prior Maine conviction for a violation of this section as an aggravating sentencing factor.
A. When the prior conviction is a
Class A crime, enhance the basic
period of incarceration by at least 4
years of imprisonment;
B. when the prior conviction is a
Class B crime, enhance the basic
period of incarceration by at least 2
years of imprisonment;
C. when the prior conviction is a
Class C crime, enhance the basic
period of incarceration by at least
one year of imprisonment.

LA. REV. STAT. ANN. § 14:134.1(B)
(2006).
Whoever violates a provision of this
section shall be fined not more than
$10,000 or imprisoned for a term
not to exceed 10 years, or both.

Penalties

ME. REV. STAT. ANN. tit. 17A, § 253 (2005).
3. It is a defense to a prosecution under subsection 2,
paragraph A that the other
person voluntarily consumed or allowed administration of the substance
with knowledge of its
nature, except that it is no
defense when the other
person is a patient of the
actor and has a reasonable
belief that he actor is
administering the substance for medical or dental examination or
treatment.

ME. REV. STAT. ANN. tit. 17A, § 253(2)(E), (F) & (G)
(2005).
Marriage is a defense.

Defenses

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Maryland

(cont.)

Maine

State

Sexual conduct
between correctional or
Department of
Juvenile Services
employee and
inmate or confined
child.
MD. CODE ANN.,
CRIM. LAW § 3-314
(LexisNexis 2006).

Statute

Definitions/Notes

MD. CODE ANN., CRIM. LAW § 3314(b) (LexisNexis 2006).
A correctional employee may not
engage in vaginal intercourse or a
sexual act with an inmate.
(c) An employee or licensee of the
Department of Juvenile Services
may not engage in vaginal intercourse or a sexual act with an indi-

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MD. CODE ANN., CRIM. LAW § 3-314
(LexisNexis 2006).
(a) Definitions.—
(2)(i) “Correctional employee”
means a 1. a correctional officer, as
defined in § 8-201 of the
Correctional Services Article; or (2)
managing official or deputy managing official of a correctional facility.

ME. REV. STAT. ANN. tit. 17-A, § 755
(2005).
3. As used in this section, "official
custody" means arrest, custody in,
or on the way to or from a courthouse or a jail, police station, house
of correction, or any institution or
facility under the control of the
Department of Corrections, or under
contract with the department for
the housing of persons sentenced to
imprisonment, the custody of any
official of the department, the custody of any institution in another
jurisdiction pursuant to a sentence
imposed under the authority of section 1253, subsection 1-A or any custody pursuant to court order. A person on a parole or probation status
is not, for that reason alone, in "official custody" for purposes of this
section.

other institution and the actor has
E. "Compulsion" means the use of
supervisory or disciplinary authority physical force, a threat to use physiover the other person.
cal force or a combination thereof
that makes a person unable to physically repel the actor or produces in
that person a reasonable fear that
death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another
human being. "Compulsion" as
defined in this paragraph places no
duty upon the victim to resist the
actor.
G. "Sexual touching means any
touching of the breasts, buttocks,
groin or inner thigh, directly or
through clothing, for the purpose of
arousing or gratifying sexual desire.

Coverage

MD. CODE ANN., CRIM. LAW § 3-314
(LexisNexis 2006).
(d) Penalty —
A person who violates this section is
guilty of a misdemeanor and on conviction is subject to a fine of not
more than $3,000,or imprisonment
for not more than 3 years, or both.

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

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(cont.)

Maryland

State

Statute
(ii) “Correctional employee” includes
a sheriff, warden, or other official
who is appointed or employed to
supervise a correctional facility. (3)(i)
“Inmate has the meaning stated in §
1-101 of this article. (ii) “Inmate”
includes an individual confined in a
community adult rehabilitation
center.

vidual confined in a child care institution licensed by the Department,
a detention center for juveniles, or a
facility for juveniles, or a facility for
juveniles Listed in Article §3c82117(a)(2) of the code.

MD. CODE ANN., CRIM. LAW § 8-201
(LexisNexis 2006).
(e) Correctional officer.
(1) "Correctional officer" means a
member of a correctional unit whose
duties relate to the investigation,
care, custody, control, or supervision
of inmates and individuals who: (i)
have been placed on parole or
mandatory supervision;
(ii) have been placed on probation; or
(iii) have received a suspended sentence. (2) "Correctional officer" does
not include: (i) the head or deputy
head of a correctional unit; or (ii) a
sheriff, warden, or superintendent or
an individual with an equivalent title
who is appointed or employed by a
unit of government to exercise equivalent supervisory authority.
(g) Correctional unit. -- (1)
"Correctional unit" means a unit of
State, county, or municipal government that is responsible under a
statute, ordinance, or court order for
the investigation, care, custody, control, and supervision of inmates and
individuals who: (i) have been placed
on parole or mandatory supervision;
(ii) have been placed on probation; or
(iii) have received a suspended sentence. (2) "Correctional unit" includes
those facilities as set forth in Article
83C, § 2-117 and other facilities as
designated by the Secretary of
Juvenile Services.
(h) Department of Juvenile Services
employee.
(1) "Department of Juvenile Services
employee" means a youth supervisor,
youth counselor, direct care worker,
or other employee of the Department

Definitions/Notes

Coverage

Penalties

Defenses

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76
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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(cont.)

Maryland

State

Statute

Coverage

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MD. CODE ANN., CRIM. LAW § 1-101
(LexisNexis 2006).
(i) Inmate. — "Inmate" means an
individual who is actually or constructively detained or confined in a
correctional facility.

State facilities — Establishment and
operation.
MD. CODE ANN., CRIM. LAW art. 83C
§ 2-117 (LexisNexis 2006).
(a) Facilities authorized.
(1) The Department may establish
and operate the facilities that are
necessary to diagnose, care for,
train, educate, and rehabilitate
properly children who need these
services.
(2) These facilities include: (i) The
Baltimore City Juvenile Justice
Center; (ii) The J. DeWeese Carter
Center; (iii) The Charles H. Hickey, Jr.
School; (iv) The Alfred D. Noyes
Children's Center; (v) The
Cheltenham Youth Facility; (vi) The
Victor Cullen Center; (vii) The
Thomas J. S. Waxter Children's
Center;
(viii) The Lower Eastern Shore
Children's Center; (ix) The Western
Maryland Children's Center; and (x)
The youth centers.

of Juvenile Services whose employment responsibility is the investigation, custody, control, or supervision
of minors, juvenile delinquents, and
youthful offenders who are committed, detained, awaiting placement,
adjudicated delinquent, or are otherwise under the supervision of the
Department of Juvenile Services. (2)
"Department of Juvenile Services
employee" includes an employee of
any nonprofit or for-profit entity
under contract with the Department
of Juvenile Services whose employment responsibility is the investigation, custody, control, or supervision
of minors, juvenile delinquents, and
youthful offenders as described
under paragraph (1) of this
subsection.

Definitions/Notes

Penalties

Defenses

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Statute

for sexual relations with
inmate.
MASS. ANN.
LAWS ch. 268,
§ 21A
(LexisNexis
2006).

Massachusetts Punishments

State
MASS. ANN. LAWS ch. 268, § 21A
(LexisNexis 2006).
An officer or other person who is
employed by or contracts with any
penal or correctional institution in
the commonwealth, and who, in the
course of such employment or contract or as a result thereof, engages
in sexual relations with an inmate
confined therein, within or outside
such institution, or an inmate who is
otherwise under the direct custodial
supervision and control of such officer or other person.

Coverage

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Rape.
MASS. ANN. LAWS ch. 265, § 22
(LexisNexis 2006).
(a) Whoever has sexual intercourse
or unnatural sexual intercourse with
a person, and compels such person
to submit by force and against his
will, or compels such person to submit by threat of bodily injury and if
either such sexual intercourse or
unnatural sexual intercourse results
in or is committed with acts resulting in serious bodily injury, or is
committed by a joint enterprise, or
is committed during the commission
or attempted commission of an
offense defined in section fifteen A,
fifteen B, seventeen, nineteen or
twenty-six of this chapter, section
fourteen, fifteen, sixteen, seventeen
or eighteen of chapter two hundred

MASS. ANN. LAWS ch. 268, § 21A
(LexisNexis 2006).
For purposes of this section, “sexual
relations” includes intentional, inappropriate contact of a sexual nature,
including, but not limited to conduct
prohibited by section 22 (sexual
intercourse or unnatural sexual
intercourse) or 24 (assault with the
intent to commit rape) of chapter
265 or section 2 (prostitution or
unlawful sexual intercourse), 3
(drugging a person for the purposes
of engaging in sexual intercourse),
35 (unnatural and lascivious acts) or
53A (engaging in sexual conduct for
a fee) of chapter 272.

Definitions.
MASS. ANN. LAWS ch. 125, § 1
(LexisNexis 2006).
As used in this chapter and elsewhere in the general laws, unless
the context otherwise requires, the
following words shall have the following meanings:
(i) “inmate, committed offender or
such other person as is placed in
custody in a correctional facility in
accordance with law.

Definitions/Notes
MASS. ANN. LAWS ch. 268, § 21A
(LexisNexis 2006).
A person who violates this section
shall be punished by imprisonment
for not more than five years in a
state prison or by a fine of $10,000
or both.

Penalties
MASS. ANN. LAWS ch. 268,
§ 21A (LexisNexis 2006).
An inmate shall be deemed
incapable of consent.

Defenses

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(cont.)

Massachusetts

State

Statute

Coverage
and sixty-six or section ten of chapter two hundred and sixty-nine shall
be punished by imprisonment in the
state prison for life or for any term
of years.
No person serving a sentence for a
second or subsequent such offense
shall be eligible for furlough, temporary release, or education, training
or employment programs established outside a correctional facility
until such person shall have served
two-thirds of such minimum sentence or if such person has two or
more sentences to be served otherwise than concurrently, two-thirds of
the aggregate of the minimum
terms of such several sentences.
(b) Whoever has sexual intercourse
or unnatural sexual intercourse with
a person and compels such person
to submit by force and against his
will, or compels such person to submit by threat of bodily injury, shall
be punished by imprisonment in the
state prison for not more than twenty years; and whoever commits a
second or subsequent such offense
shall be punished by imprisonment
in the state prison for life or for any
term or years.
Whoever commits any offense
described in this section while being
armed with a firearm, rifle, shotgun,
machine-gun or assault weapon,
shall be punished by imprisonment
in the state prison for not less than
ten years. Whoever commits a second or subsequent such offense
shall be punished by imprisonment
in the state prison for life or for any
term of years, but not less than 15
years.
No person serving a sentence for a
second or subsequent such offense
shall be eligible for furlough, temporary release, or education, training
or employment programs established outside a correctional facility
until such person shall have served
two-thirds of such minimum sentence or if such person has two or

Definitions/Notes

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

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www.wcl.american.edu/nic

(cont.)

Massachusetts

State

Statute

Coverage

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

www.wcl.american.edu/nic

Abduction of Persons for the
Purpose of Prostitution or Unlawful
Sexual Intercourse.

Assault with Intent to Commit Rape.
MASS. ANN. LAWS ch. 265, § 24
(LexisNexis 2006).
Whoever assaults a person with
intent to commit a rape shall be
punished by imprisonment in the
state prison for not more than twenty years or by imprisonment in a jail
or house of correction for not more
than two and one-half years; and
whoever commits a second or subsequent such offense shall be punished by imprisonment in the state
prison for life or for any term of
years. Whoever commits any
offense described in this section
while armed with a firearm, rifle,
shotgun, machine gun or assault
weapon shall be punished by imprisonment in the state prison for not
less than five years. Whoever commits a second or subsequent such
offense shall be punished by imprisonment in the state prison for life or
for any term of years, but not less
than 20 years.
No person serving a sentence for a
second or subsequent such offense
shall be eligible for furlough, temporary release, or education, training or employment programs established outside a correctional facility
until such person shall have served
two-thirds of such minimum sentence or if such person has two or
more sentences to be served otherwise than concurrently, two-thirds
of the aggregate of the minimum
terms of such several sentences.

more sentences to be served otherwise than concurrently, two-thirds
of the aggregate of the minimum
terms of such several sentences.
For the purposes of prosecution, the
offense described in subsection (b)
shall be a lesser included offense to
that described in subsection (a).

Definitions/Notes

Penalties

Defenses

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

(cont.)

Massachusetts

State

Statute

Coverage

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Engaging in Sexual Conduct for Fee;
Payors and Payees; Penalties.
MASS. ANN. LAWS ch. 272, § 53A
(LexisNexis 2006).
Any person who engages, agrees to
engage, or offers to engage in sexu-

Unnatural and Lascivious Acts.
MASS. ANN. LAWS ch. 272, § 35
(LexisNexis 2006).
Whoever commits any unnatural and
lascivious act with another person
shall be punished by a fine of not
less than one hundred nor more
than one thousand dollars or by
imprisonment in the state prison for
not more than five years or in jail or
the house of correction for not more
than two and one half years.

Administering Drug.
MASS. ANN. LAWS ch. 258, § 3
(LexisNexis 2006).
Whoever applies, administers to or
causes to be taken by a person any
drug, matter or thing with intent to
stupefy or overpower such person
so as to thereby enable any person
to have sexual intercourse or unnatural sexual intercourse with such
person shall be punished by imprisonment in the state prison for life or
for any term of years not less than
ten years.

MASS. ANN. LAWS ch. 272, § 2
(LexisNexis 2006).
Whoever fraudulently and deceitfully entices or takes away a person
from the house of his parent or
guardian or elsewhere, for the purpose of prostitution or for the purpose of unlawful sexual intercourse,
and whoever aids and assists in such
abduction for such purpose, shall be
punished by imprisonment in the
state prison for not more than three
years or in jail for not more than
one year or by a fine of not more
than one thousand dollars, or by
both such fine and imprisonment in
jail.

Definitions/Notes

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

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Statute
Statute

Michigan

(cont.)

Coverage
Coverage

MICH. COMP. LAWS § 750.520b
(LexisNexis 2006).
(1) A person is guilty of criminal sexual conduct in the first degree if he
or she engages in sexual penetration
with another person and if any of
the following circumstances exists:
(f) The actor causes personal injury
Criminal sexual
to the victim and force or coercion is
conduct in the sec- used to accomplish sexual penetraond degree;
tion. Force or coercion includes, but
felony.
is not limited to, any of the following
MICH. COMP. LAWS circumstances:
SERV. § 750.520c
(i) When the actor overcomes the
(LexisNexis 2006). victim through the actual application of physical force or violence.
(ii): When the actor coerces the victim to submit by threatening to use
force of violence on the victim, and
the victim believes the actor has the
present ability to execute these
threats
(iii): when the actor coerces the victim to submit by threatening to use
force or violence on the victim, and
the victim believes the actor has the
present ability to execute these
threats
(iv): when the actor engages in the
medical treatment or examination of
the victim in a manner or for purposes which are medically recognized as unethical or unacceptable
(v): when the actor, through concealment or by the element of surprise,
is able to overcome the victim.

Criminal sexual
conduct in the first
degree; felony.
MICH. COMP. LAWS
§ 750.520b
(LexisNexis 2006).

Massachusetts

State
State

MICH. COMP. LAWS § 750.520a
(LexisNexis 2006).
(n) "Sexual contact" includes the
intentional touching of the victim's
or actor's intimate parts or the
intentional touching of the clothing
covering the immediate area of the
victim's or actor's intimate parts, if
that intentional touching can reasonably be construed as being for
the purpose of sexual arousal or
gratification, done for a sexual purpose, or in a sexual manner for:
(i) Revenge.
(ii) To inflict humiliation.
(iii) Out of anger.
(o) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio,
anal intercourse, or any other intrusion, however slight, of any part of a
person's body or of any object into
the genital or anal openings of
another person's body, but emission
of semen is not required.

al conduct with another person in
return for a fee, or any person who
pays, agrees to pay or offers to pay
another person to engage in sexual
conduct, or to agree to engage in
sexual conduct with another natural
person may be punished by imprisonment in a jail or house of correction for not more than one year, or
by a fine of not more than five hundred dollars, or by both such fine
and imprisonment.

Definitions/Notes
Definitions/Notes

MICH. COMP. LAWS § 750.520c
(LexisNexis 2006).
(2) Criminal sexual conduct in the
second degree is a felony punishable
by imprisonment for not more than
15 years.

Penalties
Penalties

Defenses
Defenses

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(cont.)

Michigan

State

Statute
MICH. COMP. LAWS SERV. § 750.520c
(LexisNexis 2006).
(1) A person is guilty of criminal sexual conduct in the second degree if
he or she engages in sexual contact
with another person and if any of
the following circumstances exist:
(f) The actor causes personal injury
to the victim and force or coercion is
used to accomplish the sexual contact. Force or coercion includes, but
is not limited to, any of the circumstances listed in § 520b(1)(f)(i) to (v).
(See definitions)
(g) The actor knows or has reason to
know that the person is mentally
incapable, mentally incapacitated,
or physically helpless.
(i) That the other person is under
jurisdiction of the department of
corrections and the actor is an
employee or a contractual employee
of, or volunteer with, the dept of
corrections who knows that the
other person is under the jurisdiction of the dept of corrections.
(j) that other person is under the
jurisdiction of the department of
corrections and the actors is an
employee or a contractual employee
of, or a volunteer with, a private
vendor that operates a youth correctional facility, who knows that the
other person is under the jurisdiction of the department of
corrections.
(k) That other person is a prisoner
or probationer under the jurisdiction
of a county for purposes of imprisonment or a work program or other
probationary program and the actor
is an employee or a contractual
employee of or a volunteer with the
county who knows that the other
person is under the county’s jurisdiction.
(l) The actor knows or has reason to
know that a court has detained the
victim in a facility as a result of the
victim having been found responsible for an act that would be a crime
if committed by an adult, and the

Coverage

Definitions/Notes

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Minnesota

(cont.)

Michigan

State

Criminal sexual
conduct in the
fourth degree.
MINN. STAT. §
609.345 (2005).

Criminal sexual
conduct in the
third degree.
MINN. STAT. §
609.344 (2005).

Statute

Definitions/Notes

Definitions.
MINN. STAT. § 609.341(11)(a) (2005).
“Sexual contact” includes any of the
following acts committed without
the complainant’s consent, except in
those cases where consent is not a
defense, and committed with sexual
or aggressive intent:
(i) the intentional touching by the
actor of the complainant’s intimate
parts, or
(ii) the touching by the complainant
of the actor’s, the complainant’s, or
another’s intimate parts effected by
a person in a position of authority,
or by coercion, or by inducement if
the complainant is mentally
impaired or under 13, or
MINN. STAT.§ 609.345
(1) A person who engages in sexual (iii) the touching by another of the
contact with another person is guilty complainant’s intimate party effected by coercion or by a person in a
of criminal sexual conduct in the
fourth degree if any of the following position of authority, or
(iv) in any of the cases above, the
circumstances exist:
(m) the actor is an employee, inde- touching of the clothing covering the
pendent contractor, or volunteer of immediate area of the intimate
parts.
a state, county, city or privately
operated adult or juvenile correcti0nal system, including but not limited to, jails, prisons, detention centers or work-release facilities, and
the complainant is a resident of a
facility or under supervision of the
correctional system.
MINN. STAT. § 609.344 (2005).
(1)A person who engages in sexual
penetration with another person is
guilty of criminal sexual conduct in
the third degree if any of the following circumstances exist:
(m) the actor is an employee, independent contractor, or volunteer of
a state, county, city, or privately
operated adult or juvenile correctional system, including but not limited to, jails, prisons, detention centers, or work release facilities, and
the complainant is a resident of a
facility or under supervision of the
correctional system.

actor is an employee or contractual
employee of, or volunteer with, the
facility in which the victim is
detained or to which the victim was
committed.

Coverage

MINN. STAT. § 609.344 (2005).
(2) A person convicted under subdivision 1 may be sentenced to imprisonment for not more than fifteen
years or to a payment of a fine not
more than $30,000 or both.
MINN. STAT. § 609.345 (2005).
(2) A person convicted under subdivision 1 may be sentenced to imprisonment for not more than ten years
or to a payment of a fine not more
than $20,000 or both.

Penalties

MINN. STAT. § 609.344
(2005).
(1)(m)Consent by the complainant is not a defense.

Defenses

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MO. REV. STAT. § 566.145 (amended
2006) (current version at 2006 Mo.
HB 1698 (2006)).
1. A person commits the crime of
sexual contact with a prisoner or
offender if:
(1) Such person is an employee of, or
assigned to work in, any jail, prison
or correctional facility and such person has sexual intercourse or deviate sexual intercourse with a prisoner or;
(2) such person is a probation and
parole officer and has sexual intercourse or deviate sexual intercourse
with an offender who is under the
direct supervision of the officer.

Sexual contact
with an inmate,
penalty -- consent
not a defense
MO. REV. STAT. §
566.145 (amended
2006) (current
version at 2006
Mo. HB 1698
(2006)).

Missouri

Abuse of offender,
duty to report;
penalty – confidentiality of
report, immunity
from liability –
harassment prohibited.
MO. REV. STAT. §
217.410 (2005).

MO. REV. STAT. § 217.405 (2005).
1. Except as provided in subsection
3 of this section, a person commits
the crime of “offender abuse” if he
knowingly injures the physical wellbeing of any offender under the
jurisdiction of the department by
beating, striking, wounding or by
sexual contact with such person.
(3) No employee of the department
shall use any physical force on an
offender except the employee shall
have the right to use such physical
force as is necessary to defend himself, suppress an individual or group
revolt or insurrection, enforce discipline or to secure the offender.

MISS. CODE ANN. § 97-3-104 (2006).
It shall be unlawful for any jailer,
guard, employee of the Department
of Corrections, sheriff, constable,
marshal or other officer to engage
in any sexual penetration, with any
offender, with or without the offender’s consent, who is incarcerated at
any jail or any state, county or private correctional facility.

Crime of sexual
activity between
law enforcement
or correctional
personnel and
prisoners; sanctions. MISS. CODE
ANN. § 97-3-104
(2006).

Mississippi

Offender abuse;
penalty; employees not to use
physical force,
exceptions.
MO. REV. STAT. §
217.405 (2005).

Coverage

Statute

State

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

MO. REV. STAT. § 566.145 (amended
2006) (current version at 2006 MO
HB1698(2006)).
2. For the purposes of this section
the following terms shall mean:
(1) “Prisoner,” includes any person
who is in the custody of a jail,
whether pre-trial or after disposition
of a charge
(2) “Offender” includes any person
in the custody of a prison or correctional facility and any person who is
under the supervision of the state
board of probation and parole.

MO. REV. STAT. § 217.410 (2005).
1. When any employee of the department has reasonable cause to
believe that an offender in a correctional center operated or funded by
the department has been abused, he
shall immediately report it in writing
to the director.
(5) Upon receipt of a report, the
department shall initiate an investigation within 24 hours.
(10) No person who directs or exercises any authority in a correctional
center operated or funded by the
department shall harass, dismiss or
retaliate against an offender or
employee because he or any member of his family has made a report
of any violation or suspected violation of laws, ordinances or regulations applying to the correctional
center which he has reasonable
cause to believe has been committed or has occurred.

Sexual battery; definitions.
MISS. CODE ANN. § 97-3-97 (2006).
(a) Sexual penetration includes cunnilingus, fellatio, buggery, or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s
body, and insertion of any object
into the genital or anal openings of
another person’s body.

Definitions/Notes

Defenses

MO. REV. STAT. § 558.011.1 (2005).
5. The penalty for a class A misdemeanor shall be imprisonment for a
term not to exceed 1 year.

MO. REV. STAT. § 217.410 (2005).
3. Any person required by subsection 1 of this section to report or
cause a report to be made, but who
fails to do so within a reasonable
time after the act of abuse or neglect is guilty of a class A misdemeanor.

Sentence of imprisonment terms –
conditional release
MO. REV. STAT. § 558.011.1 (2005).
The penalty

MO. REV. STAT. §
558.011 (2005).
1. The terms of imprisonment,
including both prison and conditional release terms are:
(4) For a class D felony, a term of
years not to exceed four years.

MO. REV. STAT. § 566.145 (amended
2006) (current version at 2006MO
HB1698(2006))
3. Sexual contact with a prisoner or
offender is a class D felony.

MO. REV. STAT. § 566.145(3)
(2005).
4. Consent of a prisoner or
offender is not an affirmative defense.

MISS. CODE ANN. § 97-3-104 (2006). MISS. CODE ANN. § 97-3Any person who violates this section 104 (2006).
shall be guilty of a felony and upon Consent is not a defense.
conviction shall be fined not more
than $5,000 or imprisoned for a
term not to exceed 5 years, or both.

Penalties

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Montana

(cont.)

Missouri

State

Coverage

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

www.wcl.american.edu/nic

MONT. CODE ANN. § 45-5-503
(2005).

Sexual assault.
MONT. CODE ANN. § 45-5-502
MONT. CODE ANN. (2005).
§ 45-5-502 (2005). (1) A person who knowingly subjects
another person to any sexual conSexual intercourse tact without consent commits the
without consent.
offense of sexual assault.
MONT. CODE ANN. (5) Consent is ineffective under this
§ 45-5-503 (2005). section if:
(a) the victim is incarcerated in an
adult or juvenile correctional, detention, or treatment facility and the
perpetrator is an employee, contractor, or volunteer of the facility and
has supervisory or disciplinary
authority over the victim, unless the
act is part of a lawful search.

Statute
MO. REV. STAT. § 566.010 (2005).
As used in this chapter and chapter
568, RSMo, the following terms
mean:
(1) "Deviate sexual intercourse", any
act involving the genitals of one person and the hand, mouth, tongue, or
anus of another person or a sexual
act involving the penetration, however slight, of the male or female
sex organ or the anus by a finger,
instrument or object done for the
purpose of arousing or gratifying
the sexual desire of any person;
(2) "Sexual conduct", sexual intercourse, deviate sexual intercourse
or sexual contact;
(3) "Sexual contact", any touching of
another person with the genitals or
any touching of the genitals or anus
of another person, or the breast of a
female person, or such touching
through the clothing, for the purpose of arousing or gratifying sexual
desire of any person;
(4) "Sexual intercourse", any penetration, however slight, of the
female sex organ by the male sex
organ, whether or not an emission
results.

Definitions/Notes

Defenses

MONT. CODE ANN. § 45-5-503
(2005).
(3)(d) If the victim was incarcerated
in an adult or juvenile correctional,
detention, or treatment facility at
the time of the offense and the
offender had supervisory or disciplinary authority over the victim, the
offender shall be punished by
imprisonment in the state prison for
a term of not more than 5 years or

MONT. CODE ANN. § 45-5-502
MONT. CODE ANN. § 45-5(2005).
501 (2005).
2. A person convicted of sexual
Consent is not a defense.
assault shall be fined not to exceed
$500 or be imprisoned in the county
jail for a term not to exceed 6
months, or both.

Penalties

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Nebraska

(cont.)

Montana

State

Definitions/Notes

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

Sexual abuse of an inmate or
parolee; terms, defined.
NEB. REV. STAT. ANN. § 28-322
(LexisNexis 2005).
For purposes of sections 28-322 to
28-322.03:
(1) Inmate or parolee means any
individual confined in a facility operated by the Department of
Correctional Services or a city or
county correctional or jail facility or

Terms Defined.
NEB. REV. STAT. ANN. § 28-318
(LexisNexis 2005).
(5) Sexual contact means the intentional touching of the victim's sexual
or intimate parts or the intentional
touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts.
Sexual contact shall also mean the
touching by the victim of the actor's
sexual or intimate parts or the
clothing covering the immediate
area of the actor's sexual or intimate parts when such touching is
intentionally caused by the actor.
Sexual contact shall include only
such conduct which can be reasonably construed as being for the purNEB. REV. STAT.
NEB. REV. STAT. ANN. § 28-322.03
pose of sexual arousal or gratificaANN. § 28-322.03 (LexisNexis 2005).
tion of either party;
(LexisNexis 2005). Any person who subjects an inmate (6) Sexual penetration means sexual
or parolee to sexual contact is guilty intercourse in its ordinary meaning,
of sexual abuse of an inmate or
cunnilingus, fellatio, anal interparolee in the second degree.
course, or any intrusion, however
slight, of any part of the actor's or
victim's body or any object manipulated by the actor into the genital or
anal openings of the victim's body
which can be reasonably construed
as being for nonmedical or nonhealth purposes. Sexual penetration
shall not require emission of semen.

(1) A person who knowingly has sexual intercourse without consent with
another person commits the offense
of sexual intercourse without
consent.

Coverage

NEB. REV. STAT. ANN. § 28-322.01
(LexisNexis 2005).
A person commits the offense of
sexual abuse of an inmate or
parolee if such person subjects an
individual who is confined in a corSexual abuse of an rectional institution or a city or
inmate or parolee county correctional or jail facility or
in the first degree; under parole supervision to sexual
penalty.
penetration or sexual contact as
those terms are defined in § 28-318.
NEB. REV. STAT.
ANN. 28-322.02
NEB. REV. STAT. ANN. § 28-322.02
(LexisNexis 2005). (LexisNexis 2005).
Sexual abuse of an Any person who subjects an inmate
inmate or parolee or parolee to sexual penetration is
in the second
guilty of sexual abuse of an inmate
degree; penalty
or parolee in the first degree.

Sexual abuse of an
inmate or parolee.
NEB. REV. STAT.
ANN. § 28-322.01
(LexisNexis 2005).

Statute

Felonies; classification of penalties;
sentences; where served; eligibility
for probation.
NEB. REV. STAT. ANN. § 28-105(1)
(LexisNexis 2005).
The penalty for a Class III felony is a
term of 1 to 20 years imprisonment
or a $25,000 fine, or both.
The penalty for a Class IV felony is
minimum- one and maximum- five
years imprisonment, or ten thousand dollars fine, or both.

Sexual abuse of an inmate or
parolee in the second degree;
penalty.
NEB. REV. STAT. ANN. § 28-322.03
(LexisNexis 2005).
Sexual abuse of an inmate or
parolee in the second degree is a
Class IV felony.

Sexual abuse of an inmate or
parolee in the first degree; penalty.
NEB. REV. STAT. ANN. § 28-322.02
(LexisNexis 2005).
Sexual abuse of an inmate or
parolee in the first degree is a Class
III felony.

fined an amount not to exceed
$50,000, or both.

Penalties

NEB. REV. STAT. ANN. § 28322.01 (LexisNexis 2005).
It is not a defense to a
charge under this section
that the inmate or parolee
consented to such sexual
penetration or sexual
contact.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

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Nevada

(cont.)

Nebraska

State

Voluntary sexual
conduct between
prisoner and
another person;
penalty.
NEV. REV. STAT.
ANN. § 212.187
(LexisNexis 2006).

Statute

NEV. REV. STAT. ANN. § 212.187
(LexisNexis 2006).
1. A prisoner who is in lawful custody or confinement, other than in
the custody of the division of parole
and probation of the department of
public safety or residential confinement, and who voluntarily engages
in sexual conduct with another person is guilty of a category D felony.
2. A person who voluntarily engages
in sexual conduct with a prisoner
who is in lawful custody or confinement, other than in the custody of
the division of parole and probation
of the department of public safety
or residential confinement, is guilty
of a category D felony.

Coverage

www.wcl.american.edu/nic

NEV. REV. STAT. ANN. § 212.187
(LexisNexis 2006).
3. As used in this section, “sexual
conduct”:
(a) Includes acts of masturbation,
homosexuality, sexual intercourse or
physical contact with another person’s clothed or unclothed genitals
or pubic area to arouse, appeal to or
gratify the sexual desires of a
person.
(b) Does not include acts of a person
who has custody of a prisoner or an
employee of the institution in which
the prisoner is confined that are
performed to carry out the necessary duties of such a person or
employee.

under parole supervision; and
(2) Person means (a) an individual
employed by the Department of
Correctional Services or by the
Office of Parole Administration,
including any individual working in
central administration of the
department, any individual working
under contract with the department,
and any individual, other than an
inmate's spouse, to whom the
department has authorized or delegated control over an inmate or an
inmate's activities, (b) an individual
employed by a city or county correctional or jail facility, including any
individual working in central administration of the city or county correctional or jail facility, any individual working under contract with the
city or county correctional or jail
facility, and any individual, other
than an inmate's spouse, to whom
the city or county correctional or jail
facility has authorized or delegated
control over an inmate or an
inmate's activities, and (c) an individual employed by the Office of
Probation Administration who performs official duties within any facility operated by the Department of
Correctional Services or a city or
county correctional or jail facility.

Definitions/Notes

Categories and punishment of
felonies.
NEV. REV. STAT. ANN. § 193.130
(LexisNexis 2006).
2. (d)A category D felony is a felony
for which a court shall sentence a
convicted person to imprisonment
in the state prison for a minimum
term of not less than 1 year and a
maximum term of not more than 4
years. In addition to any other
penalty, the court may impose a
fine of not more than $5,000
unless a greater fine is authorized
or required by statute.

Penalties

Defenses

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New
Hampshire

(cont.)

Nevada

State

Coverage

“Prisoner" defined.
NEV. REV. STAT. ANN. § 193.022
(LexisNexis 2006).
"Prisoner" includes any person
held in custody under process of
law, or under lawful arrest.

NOTE: Unlike many laws in other
states, this law addresses sexual
conduct between prisoners and
gives a “duty defense” to correctional officers.

Definitions/Notes

Definitions.
N.H. REV. STAT. ANN. § 632-A:1
In this chapter:
I. "Actor" means a person accused of
a crime of sexual assault.
I-a. "Affinity" means a relation
which one spouse because of marriage has to blood relatives of the
other spouse.
I-b. "Genital openings" means the
internal or external genitalia including, but not limited to, the vagina,
labia majora, labia minora, vulva,
urethra or perineum.
I-c. "Pattern of sexual assault"
means committing more than one
act under RSA 632-A:2 or RSA 632A:3, or both, upon the same victim
over a period of 2 months or more
and within a period of 5 years.
II. "Retaliate" means to undertake
action against the interests of the
victim, including, but not limited to:
(a) Physical or mental torment or
abuse.
(b) Kidnapping, false imprisonment
or extortion.
N.H. REV. STAT. ANN. § 632-A:3
(c) Public humiliation or disgrace.
(LexisNexis 2006).
III. "Serious personal injury" means
A person is guilty of a class B felony extensive bodily injury or disfigureif such person:
ment, extreme mental anguish or
I. Subjects a person to sexual contrauma, disease or loss or impairtact and causes serious personal
ment of a sexual or reproductive
injury to the victim under any of the organ.
circumstances named in RSA § 632- IV. "Sexual contact" means the

N.H. REV. STAT. ANN. § 632-A:2(I)
(LexisNexis 2006).
i. A person is guilty of the felony of
aggravated felonious sexual assault
if he engages in sexual penetration
with another person under any of
the following circumstances:
(n) When the action is in a position
Felonious Sexual
of authority over the victim and use
Assault.
this authority to coerce the victim to
N.H. REV. STAT.
submit under any of the following
ANN. § 632-A:3
(LexisNexis 2006). circumstances:
(1) When the actor has direct supervisory or disciplinary authority over
the victim by virtue of the victim
being incarcerated in a correctional
institution, the secure psychiatric
unit, or juvenile detention facility
where the actor is employed; or
(2) When the actor is a probation or
parole officer or juvenile probation
and parole officer who has direct
supervisory or disciplinary authority
over the victim while the victim is on
parole or probation or under juvenile probation.

Aggravated
Felonious Sexual
Assault.
N.H. REV. STAT.
ANN. § 632-A:2
(LexisNexis 2006).

Statute

N.H. REV. STAT. ANN. § 632A:2 (LexisNexis 2006).
(n) Consent of the victim
under any of the circumstances set forth in subparagraph (n) shall not be
a defense.

Defenses

N.H. REV. STAT. ANN. § 632A:3 (LexisNexis 2006).
Classification of crimes.
IV. Consent of the victim
N.H. REV. STAT. ANN. § 625:9
under any of the circum(LexisNexis 2006).
stances set forth in subThe penalty for a class B felony is
paragraph IV shall not be a
imprisonment of 1-7 years and fines. defense.

N.H. REV. STAT. ANN. § 632-A:3
(LexisNexis 2006).
A person is guilty of a class B felony
if such person:
I. Subjects a person to sexual contact and causes serious personal
injury to the victim under any of the
circumstances named in RSA § 632A:2.

Penalties

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

New Jersey

(cont.)

New
Hampshire

State

Sexual assault
N.J. REV. STAT.
ANN. § 2C:14-2
(2006).

Statute

www.wcl.american.edu/nic

Definitions.
N.J. REV. STAT. ANN. § 2A:61B-1
(2006).
a. As used in this act:
(3) "Sexual penetration" means vaginal intercourse, cunnilingus, fellatio
or anal intercourse between persons
or insertion of the hand, finger or
object into the anus or vagina either
by the adult or upon the adult's
instruction.

intentional touching whether directly, through clothing, or otherwise, of
the victim's or actor's sexual or intimate parts, including breasts and
buttocks. Sexual contact includes
only that aforementioned conduct
which can be reasonably construed
as being for the purpose of sexual
arousal or gratification.
V. "Sexual penetration" means:
(a) Sexual intercourse; or
(b) Cunnilingus; or
(c) Fellatio; or
(d) Anal intercourse; or
(e) Any intrusion, however slight, of
any part of the actor's body or any
object manipulated by the actor into
genital or anal openings of the victim's body; or
(f) Any intrusion, however slight, of
any part of the victim's body into
genital or anal openings of the
actor's body;
(g) Any act which forces, coerces or
intimidates the victim to perform
any sexual penetration as defined in
subparagraphs (a)-(f) on the actor,
on another person, or on himself.
(h) Emission is not required as an
element of any form of sexual penetration.
VI. "Therapy" means the treatment
of bodily, mental, or behavioral disorders by remedial agents or methods.

A:2; or
IV. Engages in sexual contact with
the person when the actor is in a
position of authority over the person and uses that authority to
coerce the victim to submit under
any of the following circumstances:
(a) When the actor has direct supervisory or disciplinary authority over
the victim by virtue of the victim
being incarcerated in a correctional
institution, the secure psychiatric
unit, or the juvenile detention facility where the actor is employed; or
(b) when the actor is a probation or
parole officer or a juvenile probation and parole officer who has
direct supervisory or disciplinary
authority over the victim while the
victim is on parole or probation or
under juvenile probation.

N.J. REV. STAT. ANN. § 2C:14-2
(2006).
a. An actor is guilty of aggravated
sexual assault if he commits an act
of sexual penetration with another
person under any one of the following circumstances:
(2) The victim is at least 13 but less
than 16 and (b) the actor has supervisory or disciplinary power over the
person by virtue of the actor’s legal,
professional or occupational status,
or
c. An actor is guilty of sexual assault

Definitions/Notes

Coverage

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

Sentence of imprisonment for crime;
ordinary terms; mandatory terms.
N.J. REV. STAT. ANN. § 2C:43-6
(2006).

N.J. REV. STAT. ANN. § 2C:14-2
(2006).
c. Sexual assault is a crime of the
second degree.

N.J. REV. STAT. ANN. § 2C:14-2
(2006).
(a) Aggravated sexual assault is a
crime of the first degree.

Penalties

Defenses

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Rape in the third
degree.
N.Y. PENAL LAW §
130.25 (Consol.
2006).

Sexual misconduct.
N.Y. PENAL LAW §
130.20 (Consol.
2006).

penetration.
N.M. STAT. ANN. §
30-9-11
(LexisNexis 2006).

N.Y. PENAL LAW § 130.20 (Consol.
2006).
A person is guilty of sexual misconduct when:
1. He or she engages in sexual intercourse with another person without
such person’s consent; or
2. He or she engages in oral sexual
conduct or anal sexual conduct with
another person without such person’s consent.

N.M. STAT. ANN. § 30-9-11.
(LexisNexis 2006).
D. Criminal sexual penetration in
the second degree consists of all
criminal sexual penetration perpetrated:
(1) on a child thirteen to eighteen
years of age when the perpetrator
is in a position of authority over
the child and uses this authority to
coerce the child to submit;
(2) on an inmate confined in a correctional facility or jail when the
perpetrator is in a position of
authority over the inmate;
(3) by the use of force or coercion
that results in personal injury to
the victim;
(4) by the use of force or coercion
when the perpetrator is aided or
abetted by one or more persons.

(cont.)

New Mexico Criminal sexual

Coverage
if he commits an act of sexual penetration with another person under
any one of the following circumstances: (2) The victim is on probation or parole, or is detained in a
hospital, prison or other institution
and the actor has supervisory or
disciplinary power over the victim
by virtue of the actor’s legal, professional or occupational status.

Statute

New Jersey

State

N.Y. PENAL LAW § 130.05 (Consol.
2006).
3.(e)For purposes of this paragraph,
“employee” means
(i) an employee of the state department of correctional services who
performs professional duties in a
state correctional facility consisting
of providing custody, medical or
mental health services, counseling
services, educational programs, or

N.M. STAT. ANN. § 30-9-11.
(LexisNexis 2006).
A. Criminal sexual penetration is the
unlawful and intentional causing of
a person to engage in sexual intercourse, cunnilingus, fellatio or anal
intercourse or the causing of penetration, to any extent and with any
object, of the genital or anal openings of another, whether or not
there is any emission.

Definitions/Notes

N.Y. PENAL LAW § 130.25 (Consol.
2006).
Rape in the third degree is a class E
felony.

N.Y. PENAL LAW § 130.20 (Consol.
2006).
Sexual misconduct is a class A misdemeanor.

N.M. STAT. ANN. § 31-18-15)
(LexisNexis 2006). A. The penalty
for a second degree felony shall be
imprisonment for a term of 9 years
and
E. The court may, in addition to the
imposition of a basic sentence of
imprisonment, impose a fine not to
exceed:
(5) for a second degree felony, ten
thousand dollars.

N.M. STAT. ANN. § 30-9-11.
(LexisNexis 2006).
D. Criminal sexual penetration in the
second degree is a second-degree
felony. Whoever commits criminal
sexual penetration in the second
degree when the victim is a child
who is thirteen to eighteen years of
age is guilty of a second degree
felony for a sexual offenses against
a child shall be sentenced to a minimum term of imprisonment of three
years.

a. Except as otherwise provided, a
person who has been convicted of a
crime may be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first
degree, for a specific term of years
which shall be fixed by the court and
shall be between 10 years and 20
years;
(2) In the case of a crime of the second degree, for a specific term of
years which shall be fixed by the
court and shall be between five
years and 10 years.

Penalties

N.Y. PENAL LAW § 130.05
(Consol. 2006).
3. A person is deemed incapable of consent when he
or she is:
(a) less than seventeen
years old; or
(b) mentally disabled; or
(3) mentally incapacitated;
or
(4) physically helpless.

Defenses

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Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Sexual abuse in
the second
degree.
N.Y. PENAL LAW §
130.60 (Consol.
2006).

Sexual abuse in
the third degree.
N.Y. PENAL LAW §
130.55 (Consol.
2006).

Forcible touching.
N.Y. PENAL LAW §
130.52 (Consol.
2006).

Definitions/Notes

vocational training for inmates;
(ii) an employee of the division of
parole who performs professional
duties in a state correctional facility
and who provides institutional
parole services pursuant to section
two-hundred-fifty-nine of the executive law; or
(iii) an employee of the office of
mental health who performs profesN.Y. PENAL LAW § 130.40.
sional duties in a state correctional
A person is guilty of criminal sexual facility or hospital, such as such
act in the third degree when:
term is defined in subdivision two of
1. He or she engages in oral sexual
section four hundred of the correcconduct or anal sexual conduct with tional law, consisting of providing
a person who is incapable of concustody, or medical or mental health
sent by reason of some factor other services for such inmates; or
than being less than seventeen
(f) committed to the care and cusyears old;
tody of a local correctional facility,
2. Being twenty-one years old or
as such term is defined in subdivimore, he or she engages in oral sex- sion two of section forty of the corual conduct or anal sexual conduct
rectional law, and the actor is an
with a person less than seventeen
employee, not married to such peryears old; or
son, who knows or reasonably
3. He or she engages in oral sexual
should know that such person is
conduct or anal sexual conduct with committed to the care and custody
another person without such perof such facility. For purposes of this
son's consent where such lack of
paragraph, “employee” means an
consent is by reason of some factor employee of the local correctional
other than incapacity to consent.
facility where the person is committed who performs professional
N.Y. PENAL LAW § 130.52 (Consol.
duties consisting of providing cus2006).
tody, medical or mental health servA person is guilty of forcible touch- ices, counseling services, educationing when such person intentionally, al services, or vocational training for
and for no legitimate purpose,
inmates.
forcibly touches the sexual or other
intimate parts of another person for Sex Offenses; definition of terms.
the purpose of degrading or abusing N.Y. PENAL LAW § 130.00 (Consol.
such person; or for the purposes of 2006).
gratifying the actor’s sexual desire. The following definitions are appliFor the purposes of this section,
cable to this article
forcible touching includes the
1. "Sexual intercourse" has its ordisqueezing, grabbing or pinching.
nary meaning and occurs upon any
penetration, however slight.
N.Y. PENAL LAW § 130.55 (Consol.
2. "Oral sexual conduct means con2006).
duct between persons consisting of
A person is guilty of sexual abuse in contact between the mouth and the
the third degree when he or she
penis, the mouth and the anus, or
subjects another person to sexual
the mouth and the vulva or vagina.
contact without the latter's consent; (b) “Anal sexual conduct” means the
except that in any prosecution under conduct between persons consisting

N.Y. PENAL LAW § 130.25 (Consol.
2006).
A person is guilty of rape in the
third degree when:
1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of
some factor other than being less
than seventeen years old.

Criminal sexual
act in the third
degree.
N.Y. PENAL LAW §
130.40 (Consol.
2006).

New York

(cont.)

Coverage

Statute

State

www.wcl.american.edu/nic

Sentences of imprisonment for a
violent felony offense.
N.Y. PENAL LAW § 70.02 (Consol.
2006).

Sentences of imprisonment for misdemeanors and violation
N.Y. PENAL LAW § 70.15 (Consol.
2006).
(1): A sentence of imprisonment for
a class A misdemeanor shall ... be
fixed by the court, and shall not
exceed one year. (3)(d): For a class E
felony, the term shall be fixed by the
court, and shall range from 1 ? to 4
years.

N.Y. PENAL LAW § 130.60 (Consol.
2006).
Sexual abuse in the second degree
is a class A misdemeanor.

N.Y. PENAL LAW § 130.55 (Consol.
2006).
Sexual abuse in the third degree is a
class B misdemeanor.

N.Y. PENAL LAW § 130.52 (Consol.
2006).
Forcible touching is a class A misdemeanor.

N.Y. PENAL LAW § 130.40 (Consol.
2006).
Criminal sexual act in the third
degree is a class E felony.

Penalties
3. (e)Marriage is a defense.

Defenses

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(cont.)

New York

State

Statute

Definitions/Notes

this section, it is an affirmative
defense that (a) such other person's
lack of consent was due solely to
incapacity to consent by reason of
being less than seventeen years old,
and (b) such other person was more
than fourteen years old, and (c) the
defendant was less than five years
older than such other person.

Definitions.
N.Y. CORREC § 40 (Consol. 2006).
As used in this article the following
terms have the following meanings:
2. "Local correctional facility" means
any county jail, county penitentiary,
county lockup, city jail, police station jail, town or village jail or lockup, court detention pen or hospital
prison ward.
3. "Correctional facility" means any
institution operated by the state
department of correctional services,
any local correctional facility, or any
place used, pursuant to a contract
with the state or a municipality, for
the detention of persons charged
with or convicted of a crime, or, for
the purpose of this article only, a
secure facility operated by the state
division for youth.

of contact between the penis and
anus.
3. "Sexual contact" means any
touching of the sexual or other intimate parts of a person not married
to the actor for the purpose of gratifying sexual desire of either party. It
includes the touching of the actor by
the victim, as well as the touching of
the victim by the actor, whether
N.Y. PENAL LAW § 130.60 (Consol.
directly or through clothing.
2006).
8. "Forcible compulsion" means to
A person is guilty of sexual abuse in compel by either: a. use of physical
the second degree when he or she
force; or b. a threat, express or
subjects another person to sexual
implied, which places a person in
contact and when such other person fear of immediate death or physical
is:
injury to himself, herself or another
1. incapable of consent by reason of person, or in fear that he, she or
some factor other than being less
another person will immediately be
than seventeen years old.
kidnapped.

Coverage

Penalties

Defenses

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Sexual assault.
N.D. CENT. CODE §
12.1-20-07 (2006).

Sexual abuse of
wards.
N.D. CENT. CODE §
12.1-20-06 (2006).

Penalties

CASE NOTE:
Custodial sexual offense does not
require act by force against the will
of another person. It requires that
the perpetrator’s principal or
employer, have custody of the
victim.
State v. Raines, 319 N.C. 258 (1987)
(holding that a voluntary patient in
a private hospital was in “custody”
of the hospital, and an intensive
care charge nurse was properly convicted, under a statute criminalizing
sexual intercourse with a person in
the custody of the offender’s
employer).

N.D. CENT. CODE § 12.1-32-01 (2006).
(4) The penalty for a class C felony
shall be imprisonment for a maximum of 5 years, a fine of $5,000, or
both.

N.D. CENT. CODE § 12.1-20-07(2)
(2006).
Sexual assault is a class C felony.

N.D. CENT. CODE § 12.1-20-06
(2006).
Sexual abuse of wards is a class C
felony.

N.C. GEN. STAT. § 14-27.1 (2006).
N.C. GEN. STAT. § 14-27.7 (2006)
(4)"Sexual act" means cunnilingus, (a) A violation of this section is a
fellatio, analingus, or anal interclass E felony.
course, but does not include vaginal
intercourse. Sexual act also means
the penetration, however slight, by
any object into the genital or anal
opening of another person's body:
provided, that it shall be an affirmative defense that the penetration
was for accepted medical purposes.

Definitions/Notes

N.D. CENT. CODE § 12.1-20-02 (2006).
3. "Sexual act" means sexual contact
between human beings consisting of
contact between the penis and the
vulva, the penis and the anus, the
mouth and the penis, the mouth and
the vulva, or any other portion of
the human body and the penis,
anus, or vulva; or the use of an
object which comes in contact with
the victim's anus, vulva, or penis.
For the purposes of this subsection,
sexual contact between the penis
N.D. CENT. CODE § 12.1-20-07 (2006). and the vulva, the penis and the
(1) A person who knowingly has sex- anus, any other portion of the
ual contact with another person, or human body and the anus or vulva,
who causes another person to have or an object and the anus, vulva, or
sexual contact with that person, is
penis of the victim, occurs upon
guilty of an offense if:
penetration, however slight.
(d) The other person is in official
Emission is not required.
custody or detained in a hospital,
4. "Sexual contact" means any
prison, or other institution and the
touching, whether or not through

N.D. CENT. CODE § 12.1-20-06
(2006).
A person who engages in a sexual
act with another person, or any person who causes another to engage
in a sexual act is guilty of a class C
felony if the other person is in official custody or detained in a hospital, prison, or other institution and
the actor has supervisory or disciplinary authority over the other
person.

N.C. GEN. STAT. § 14-27.7 (2006).
(a) If a defendant having custody of
a victim of any age or a person who
is an agent or employee of any person, or institution, whether such
institution is private, charitable, or
governmental; having custody of a
victim of any age engages in vaginal
intercourse or a sexual act with such
victim, the defendant is guilty of a
Class E felony.

Intercourse and
sexual offenses
with certain victims; consent no
defense N.C. GEN.
STAT. § 14-27.7
(2006).

North
Carolina

North
Dakota

Coverage

Statute

State
N.C. GEN. STAT. § 14-27.7
(2006).
(a) Consent is not a
defense to a charge
under this section.

Defenses

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Ohio

(cont.)

North
Dakota

State

Sexual Battery.
OHIO REV. CODE
ANN. § 2907.03
(LexisNexis 2006).

Statute

Definitions/Notes

OHIO REV. CODE ANN. § 2907.03 (A)
(LexisNexis 2006).
(A) No person shall engage in sexual
conduct with another, not the
spouse of the offender, when any of
the following apply:
(6) The other person is in custody of
law or a patient in a hospital or
other institution, and the offender
has supervisory or disciplinary
authority over the other person.
(11) The person is confined in a
detention facility, and the offender
is an employee of that detention
facility.
CASE NOTE:
See State v. Thompson, 33 Ohio St.
3d 1 (1987) (stating that both probationers and parolees have been held
to possess U.S. const. Amend. IV
rights more limited than other people, because they are considered to
be in the constructive, as opposed to
actual or physical, custody of the
state at all times during their probation or parole).

Definitions.
OHIO REV. CODE ANN. § 2907.01(A)
(LexisNexis 2006).
(A) “Sexual conduct” means vaginal
intercourse between a male and
female; anal intercourse; fellatio,
and cunnilingus between persons
regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any
instrument, apparatus, or other
object into the vaginal or anal cavity
of another. Penetration, however
slight, is insufficient to complete
vaginal or anal intercourse.

CASE NOTE:
See State v. Ennis, 464 N.W. 2d 378
(1990) (holding that time on probation is not “time spent in custody”
within the meaning of N.D. Cent.
Code §12.1-32-02 and time on parole,
too, is not “time spent in custody”
within the meaning of §12.1-32-02).

actor has supervisory or disciplinary the clothing or other covering, of
authority over that other person.
the sexual or other intimate parts of
the person, or the penile ejaculation
or ejaculate or emission of urine or
feces upon any part of the person,
for the purpose of arousing or satisfying sexual or aggressive desires.

Coverage

OHIO REV. CODE ANN. § 2929.14
(LexisNexis 2006).
(A)(3) The penalty for a felony of the
third degree shall be imprisonment
for a term of between 1 and 5 years.

OHIO REV. CODE ANN. § 2907.03
(LexisNexis 2006).
(B) Sexual battery is a felony of the
third degree.

Penalties

OHIO REV. CODE ANN. §
2907.03 (LexisNexis 2006).
(A) Marriage is not a
defense.

Defenses

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OKLA. STAT. tit. 21, § 888 (2005).
A. Any person who forces another
person to engage in the detestable
and abominable crime against
nature, pursuant to Section 886 of
this title, upon conviction, is guilty
of a felony punishable by imprisonment in the State Penitentiary for a
period of not more than twenty (20)
years, except as provided in Section
3 of this act. Any person convicted
of a second violation of this section,

OKLA. STAT. tit. 21, § 1114 (2005).
A. Rape in the first degree shall
include:
3. rape accomplished with any person by means of force, violence, or
threats of force or violence accompanied by apparent power of execution regardless of the age of the person committing the crime; or
4. rape by instrumentation resulting in bodily harm is rape by instrumentation in the first degree
regardless of the age of the person
committing the crime.
B. In all other cases, rape or rape by
instrumentation is rape in the second degree.

Rape defined.
OKLA. STAT. tit. 21, § 1111(A) (2005).
OKLA. STAT. tit. 21, Rape is an act of sexual intercourse
§ 1111 (2005).
involving vaginal or anal penetration
accomplished with a male or female
Rape in the first
who is not the spouse of the perpedegree - second
trator and who may be of the same
degree.
or the opposite sex as the perpetraOKLA. STAT. tit.21, tor under any of the following cir§ 1114 (2005).
cumstances:
7. Where the victim is under the
Forcible sodomy.
legal custody or supervision of a
OKLA. STAT. tit. 21, state agency, a federal agency, a
§ 888 (2005).
county, a municipality or a political
subdivision and engages in sexual
intercourse with a state, federal,
county, municipal or political subdivision employee or an employee of a
contractor of the state, the federal
government, a county, a municipality or a political subdivision that
exercises authority over the victim.

Oklahoma

Coverage

Statute

State

Definitions/Notes

Defenses

Rape in the second degree a felony.
OKLA. STAT. tit. 21, § 1116 (2005).
Rape in the second degree is a
felony, and punishable by imprisonment in the State Penitentiary for
not less than one (1) year nor more
than fifteen (15) years.

Punishment of rape in the first
OKLA. STAT. tit. 21, § 1111
degree.
(2005).
OKLA. STAT. tit. 21, § 1115 (2005).
(A) Marriage is a defense.
Rape in the first degree is a felony
punishable by death or imprisonment in the State Penitentiary, not
less than five (5) years, in the discretion of the jury, or in case the
jury fails or refuses to fix the punishment then the same shall be pronounced by the court.

Penalties

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Oregon

(cont.)

Oklahoma

State

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Custodial sexual
misconduct in the
second degree.
OR. REV. STAT. §
163.454 (2006).

Custodial sexual
misconduct in the
first degree.
OR. REV. STAT. §
163.452 (2006).

Statute

OR. REV. STAT. § 163.452 (2006).
(1) A person commits the crime of
custodial sexual misconduct in the
first degree if the person:
(a) Engages in sexual intercourse or
deviate sexual intercourse with
another person or penetrates the
vagina, anus or penis of another
person with any object other than
the penis or mouth of the actor
knowing that the other person is:
(A) In the custody of a law enforcement agency following arrest;
(B) Confined or detained in a correctional facility;

where the victim of the second
offense is a person under sixteen
(16) years of age, shall not be eligible for probation, suspended or
deferred sentence.
B. The crime of forcible sodomy
shall include:
1. Sodomy committed by a person
over eighteen (18) years of age upon
a person under sixteen (16) years of
age; or
2. Sodomy committed upon a person
incapable through mental illness or
any unsoundness of mind of giving
legal consent regardless of the age
of the person committing the crime;
or
3. Sodomy accomplished with any
person by means of force, violence,
or threats of force or violence
accompanied by apparent power of
execution regardless of the age of
the victim or the person committing
the crime; or
4. Sodomy committed by a state,
county, municipal or political subdivision employee or a contractor or
an employee of a contractor of the
state, a county, a municipality or
political subdivision of this state
upon a person who is under the
legal custody, supervision or authority of a state agency, a county, a
municipality or a political subdivision of this state.

Coverage

Definitions.
OR. REV. STAT. §
163.305 (2006).
As used in chapter 743, Oregon Laws
1971, unless the context requires
otherwise:
(1) "Deviate sexual intercourse"
means sexual conduct between persons consisting of contact between
the sex organs of one person and
the mouth or anus of another.
(5) "Physically helpless" means that
a person is unconscious or for any
other reason is physically unable to
communicate unwillingness to an
act.

Definitions/Notes

OR. REV. STAT. § 163.454 (2006).
(4) Custodial sexual misconduct in
the second degree is a Class A misdemeanor.

OR. REV. STAT. § 163.452 (2006).
(4)Custodial sexual misconduct in
the first degree is a Class C felony.

Penalties

OR. REV. STAT. § 163.452
(2006).
(2) Consent of the other
person to sexual intercourse, deviate sexual
intercourse or the sexual
penetration is not a
defense to a prosecution
under this section.
(3) Lack of supervisory
authority over the other
person is an affirmative
defense to a prosecution
under this section when
the other person is on pro-

Defenses

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(cont.)

Oregon

State

Statute

www.wcl.american.edu/nic

OR. REV. STAT. § 163.454 (2006).
(1) A person commits the crime of
custodial sexual misconduct in the
second degree if the person:
(a) Engages in sexual contact with
another person knowing that the
other person is:
(A) In the custody of a law enforcement agency following arrest;
(B) Confined or detained in a correctional facility;
(C) Participating in an inmate or
offender work crew or work release
program; or
(D) On probation, parole, postprison supervision or other form of
conditional or supervised release;
and
(b) Is employed by or under contract
with the state or local agency that:
(A) Employs the officer who arrested
the other person;
(B) Operates the correctional facility
in which the other person is confined or detained;
(C) Is responsible for supervising the
other person in a work crew or work
release program or on probation,

(6) "Sexual contact" means any
touching of the sexual or other intimate parts of a person or causing
such person to touch the sexual or
other intimate parts of the actor for
the purpose of arousing or gratifying the sexual desire of either party.
(7) "Sexual intercourse" has its ordinary meaning and occurs upon any
penetration, however slight; emission is not required.

(C) Participating in an inmate or
offender work crew or work release
program; or
(D) On probation, parole, postprison supervision or other form of
conditional or supervised release;
and
(b) Is employed by or under contract
with the state or local agency that:
(A) Employs the officer who arrested
the other person;
(B) Operates the correctional facility
in which the other person is confined or detained;
(C) Is responsible for supervising the
other person in a work crew or work
release program or on probation,
parole, post-prison supervision or
other form of conditional or supervised release; or
(D) Engages the other person in
work or on-the-job training pursuant
to ORS 421.354 (1).
OR. REV. STAT. § 30.642 (2006).
(2)"Correctional facility" means a
Department of Corrections institution or a jail.

Definitions/Notes

Coverage

Penalties

OR. REV. STAT. § 163.454
(2006).
(2) Consent of the other
person to sexual contact is
not a defense to a prosecution under this section.
(3) Lack of supervisory
authority over the other
person is an affirmative
defense to a prosecution
under this section when the
other person is on probation, parole, post-prison
supervision or other form
of conditional or supervised release.

bation, parole, post-prison
supervision or other form
of conditional or supervised release.

Defenses

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Statute
parole, post-prison supervision or
other form of conditional or supervised release; or
(D) Engages the other
person in work or on-the-job training pursuant to ORS 421.354 (1).

Coverage

ual assault.
18 PA. CONS.
STAT. § 3124.2
(2005).
(a) Except as provided in Sections
3121 (Relating to Rape), 3122.1
(Relating to Statutory Sexual
Assault), 3123 (Relating to
Involuntary Deviate Sexual intercourse), 3124.1 (relating to Sexual
Assault) and 3125 (Relating to a
Aggravated Indecent Assault), person who is an employee or agent of
the Department of Corrections or a
county corrections authority, state
or a county correctional authority,
youth development center, youth
forestry camp, State or county juvenile detention facility, other licensed
residential facility serving children
and youth, or mental health or mental retardation facility or institution
commits a felony of the third degree
when that person engages in sexual
intercourse, deviate sexual intercourse, or indecent contact with an
inmate, detainee, patient or
resident.

Pennsylvania Institutional sex- 18 PA. CONS. STAT. § 3124.2 (2005).

(cont.)

Oregon

State

Definitions.
18 PA. CONS. STAT. § 3101 (2005).
Subject to additional definitions contained in subsequent provisions of
this chapter which are applicable to
specific provisions of this chapter,
the following words and phrases
when used in this chapter shall
have, unless the context clearly indicates otherwise, the meanings given
to them in this section:
DEVIATE SEXUAL INTERCOURSE."
Sexual intercourse per os or per
anus between human beings and
any form of sexual intercourse with
an animal. The term also includes
penetration, however slight, of the
genitals or anus of another person
with a foreign object for any purpose other than good faith medical,
hygienic or law enforcement procedures.
"INDECENT CONTACT." Any touching
of the sexual or other intimate parts
of the person for the purpose of

18 PA. CONS. STAT. § 3124.2 (2005).
(b) As used in this section, the term
“agent” means a person who is
assigned to work in a State or county correctional or juvenile detention
facility, a youth development center,
youth forestry camp, other licensed
residential facility serving children
and youth or mental health or mental retardation facility or institution
who is employed by any state or
county agency or any person
employed by an entity providing
contract services to the agency.

Definitions/Notes

18 PA. CONS. STAT. § 106 (2005).
(b)(4) The penalty for a felony of the
third degree shall be imprisonment
for a term up to 7 years.

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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S.C. CODE ANN. § 44-23-1150 (2005).
(B)An actor is guilty of sexual misconduct when the actor, knowing
that the victim is an inmate, offender, or patient voluntarily engages
with the victim in an act of sexual
intercourse, whether vaginal, oral or
anal, or other sexual contact for the
purpose of sexual gratification.

Sexual misconduct
with an inmate,
patient or offender
S.C. CODE ANN.
§ 44-23-1150
(2005).

South
Carolina

R.I. GEN. LAWS § 11-37-1 (2006).
(8) “Sexual penetration” means: sexual intercourse, cunnilingus, fellatio,
and anal intercourse, or any other
intrusion, however slight, by any
part of a person’s body or by any
object into the genitals or anal
openings of another person’s body
or the victim’s own body upon the
accused’s instruction, but emission
of semen is not required.

arousing or gratifying sexual desire,
in either person.
“SEXUAL INTERCOURSE.” In addition
to its ordinary meaning, includes
intercourse per os or per anus, with
some penetration however slight;
emission is not required.

Definitions/Notes

S.C. CODE ANN.
§ 44-23-1150 (2005).
(A) As used in this section: (1)‘Actor’
means an employee, volunteer,
agent, or contractor of a public entity that has statutory or contractual
responsibility for inmates or
patients confined in a prison, jail, or
mental health facility, or who is an
offender on parole, probation, or
S.C. CODE ANN. § 44-23-1150 (2005). other community supervision
(D) A person who knowingly or will- programs.
fully submits inaccurate or untruth- (2) ‘Victim’ means an inmate or
ful information concerning sexual
patient who is confined in or lawfulmisconduct as defined in this secly or unlawfully absent from a
tion is guilty of the misdemeanor of prison, jail, or mental health facility,
falsely reporting sexual misconduct or who is an offender on parole,
and, upon conviction, must be
probation, or other community
imprisoned for not more than one
supervision programs. A victim is
year.
not capable of providing consent for
(E) A person who has knowledge of sexual intercourse or sexual contact
sexual misconduct who has received with an actor.
information in the person’s professional capacity and fails to report it S.C. CODE ANN. § 44-23-1150 (2005).
to the appropriate law enforcement (c)(2) The term sexual contact, as
authority, or a person who threatens used in this subsection, refers to an
or attempts to intimidate a witness intrusion of any part of a person’s
is guilty of a misdemeanor and upon body or of any object into the “inti-

R.I. GEN. LAWS § 11-25-24 (2006).
Every employee of the department
of corrections or the employee of a
contractor who is under contract to
provide services in a correctional
institution who engages in sexual
penetration, as defined in §11-37-1,
with an inmate confined therein or
who is otherwise under the direct
custodial supervision and control of
said employee shall be guilty of a
felony.

Coverage

Correctional
employees - Sexual relations
with inmates- Felony
R.I. GEN. LAWS §
11-25-24 (2006).

Statute

Rhode
Island

(cont.)

Pennsylvania

State

S.C. CODE ANN.
§ 44-23-1150 (2005).
(c)(1) When the sexual misconduct
involves an act of sexual intercourse, whether vaginal, oral or
anal, the actor is guilty of the felony
of sexual misconduct first degree
and, upon conviction, must be
imprisoned for not more than ten
years.
(2) When the sexual misconduct
does not involve sexual intercourse
but involves other sexual contact
which is engaged in for sexual gratification, the actor is guilty of the
felony of sexual misconduct second
degree and, upon conviction, must
be imprisoned for not more than
five years.

R.I. GEN. LAWS § 11-25-24 (2006).
Violation of this section is a felony,
the penalty for which shall be
imprisonment for not more than 5
years and/or a fine of not more than
$10,000.

Penalties

S.C. CODE ANN.
§ 44-23-1150 (2005).
(A)(2) A victim is not capable of providing consent for
sexual intercourse or sexual contact with an actor.

Defenses

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South
Dakota

(cont.)

South
Carolina

State
mate parts”, as defined in Section
16-3-651(d), of another person’s
body, or to the fondling of the intimate parts of another person’s
body, which is done in a manner not
required by professional duties, but
instead is done to demonstrate
affection, sexually stimulate that
person or another person, or harass
that person.

conviction, must be imprisoned for
not more than six months, or both.

Programs and agencies governed by
department.
S.D. CODIFIED LAWS § 1-15-1.4
(2006).
The Department of Corrections,
under the direction and control of
the secretary of corrections, shall
govern the juvenile corrections programs established subject to § 2611A-1, the state penitentiary, and
other state correctional facilities,
parole services, the Board of
Pardons and Paroles, and such other
agencies as may be created by
statute, executive order, and administrative action and placed under the
Department of Corrections.

Definitions.
S.D. CODIFIED LAWS § 22-22-2
(2006).
“Sexual penetration” means an act,
however slight, of sexual intercourse, cunnilingus, fellatio, anal
intercourse, or any intrusion, however slight, of any part of the body
or of any object into the genital or
anal openings of another person’s
body.

Criminal sexual conduct: definitions.
S.C. CODE ANN. § 16-3-651 (2005).
For the purposes of §§ 16-3-651 to
16-3-659.1:
(d) "Intimate parts" includes the primary genital area, anus, groin, inner
thighs, or buttocks of a male or
female human being and the breasts
of a female human being.

Definitions/Notes

Coverage

S.D. CODIFIED LAWS § 24-1-26.1
(2006).
Sexual acts prohibited between
prison employees and prisoners.
Any person, employed by the state,
or employed within any state prison
or other detention facility, who
knowingly engages in an act of sexuSexual contact or al penetration with another person
penetration by
who is in detention and under the
correctional facili- custodial, supervisory, or disciplity employee with nary authority of the person so
inmate -- Penalty engaging, is guilty of a Class 6
S.D. CODIFIED
felony.
LAWS § 22-22-7.6
(2006).
S.D. CODIFIED LAWS § 22-22-7.6
(2006).
Any person employed at any jail or
juvenile correctional facility, who
knowingly engages in an act of sexual contact or sexual penetration with
another person who is in detention
and under the custodial, supervisory, or disciplinary authority of the
person so engaging, and which act
of sexual contact or sexual penetration does not otherwise constitute a
felony pursuant to the provisions of
chapter 22-22, is guilty of a Class 6
felony.

Sexual acts
between employees and inmates
prohibited.
S.D. CODIFIED
LAWS § 24-1-26.1
(2006).

Statute

S.D. CODIFIED LAWS § 22-6-1 (2006).
(8) The penalty for a Class 6 felony
shall be imprisonment in the state
penitentiary for a term of 2 years
and/or a fine of $2,000.

S.D. CODIFIED LAWS § 24-1-26.1
(2006).
The violation of this section is a
Class 6 felony.

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

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101

Tennessee

(cont.)

South Dakota

State

www.wcl.american.edu/nic

Sexual battery by
an authority figure. TENN. CODE
ANN. § 39-13-527
(2005).

Sexual contact
with inmates.
TENN. CODE ANN
§ 39-16-408
(2006).

Statute

TENN. CODE ANN. § 39-13-527
(2005).
(a) Sexual battery by an authority
figure is unlawful sexual contact
with a victim by the defendant, or
the defendant by a victim, accompanied by the fact that the victim was,
at the time of the offense, thirteen
(13) years of age or older, but less
than eighteen (18) years of age, and
either:
(1) The defendant was, at the time
of the offense, in a position of trust,
or had supervisory or disciplinary

TENN. CODE ANN. § 39-13-501
(2005).
(6) “Sexual contact” includes the
intentional touching of the victim’s,
the defendant’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the victim’s, the defendant’s, or any other
person’s intimate part, if that intentional touching can be reasonably

TENN. CODE ANN. § 39-16-408
(2006).
“Volunteer” means any person who,
after fulfilling the appropriate policy
requirements, is assigned to a volunteer job and provides a service
without pay from the correctional
agency except for compensation for
those expenses incurred directly as
a result of such volunteer service.
“Law enforcement officer” and “correctional employee” include a person working in such capacity as a
private contractor or employee of a
private contractor.

S.D. CODIFIED LAWS § 26-7A-1
(2006).
(15) "Detention," the temporary custody of a child in secured physically
restricting facilities for children,
sight and sound separated from
adult prisoners;
(16) "Detention facility," a secured,
physically-restricting facility
designed, staffed, and operated for
children and separated by sight and
sound from adult prisoners or a
facility for children in the same
building or secure perimeter as an
adult jail or lockup, where children
are sight and sound separated from
adult prisoners, where staff in the
detention facility are trained and
certified by the entity operating
facility to work with children, and
the facility had been approved as a
collocated facility by the Office of
Juvenile Justice and Delinquency
Prevention.

A juvenile correctional facility pursuant to this section is a juvenile
detention facility as defined in subdivision 26-7A-1 (16) or a juvenile
facility operated by the Department
of Corrections under § 1-15-1.4.

TENN. CODE ANN. § 39-16-408
(2006).
It is an offense for a law enforcement officer, correctional employee,
vendor or volunteer to engage in
sexual contact or sexual penetration, as such terms are defined in
§39-13-501, with a prisoner or
inmate who is in custody at a penal
institution as defined in §39-16-601,
whether such conduct occurs on or
off the grounds of such institution.

Definitions/Notes

Coverage

TENN. CODE ANN. § 39-13-527
(2005). (b) Sexual battery by an
authority figure is a Class C felony.

TENN. CODE ANN. § 39-16-408
(2006).
A violation of this section is a Class
E felony. The authorized term of
imprisonment for a Class E felony is
not less than 1 year nor more than 6
years. In addition, a fine not to
exceed $3000 may be assessed.

Penalties

Defenses

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TEX. PENAL CODE ANN. § 39.04
(Vernon 2005).
(a) An official of a correctional facility or employee of a correctional
facility, a person other than an
employee who works for compensation at a correctional facility, a volunteer at a correctional facility, or a
peace officer commits an offense if
he intentionally: (2) engages in sexual contact, sexual intercourse or
deviate sexual intercourse with an
individual in custody.

Violations of the
Civil Rights of
Person in Custody;
Improper Sexual
Activity with person in custody.
TEX. PENAL CODE
ANN. § 39.04
(Vernon 2005).

Texas
TEX. PENAL CODE ANN. § 39.04
(Vernon 2005).
(e) In this section: (2) “Custody”
means the detention, arrest, or confinement of an adult offender or the
detention or the commitment of an
offender to a facility operated by or
under contract with the TX Youth
Commission or a facility operated by
or under contract with a juvenile
board of a juvenile offender.
(4) "Sexual contact" means:
(A) "deviate sexual intercourse" as
defined by Section 21.01, Penal
TEX. PENAL CODE ANN. § 39.04(f)
Code;
(Vernon 2005).
(B) "sexual contact" as defined by
An employee of the Texas
Section 21.01, Penal Code;
Department of Criminal Justice com- (C) "sexual intercourse" as defined
mits an offense if the employee
by Section 21.01, Penal Code; or
engages in sexual contact, sexual
(D) requests by the mental health
intercourse, or deviate sexual inter- services provider for conduct
course with an individual who is not described by Paragraph (A), (B), or
the employee's spouse and who the (C). "Sexual contact" does not
employee knows is under the super- include conduct described by
vision of the department but not in Paragraph (A) or (B) that is a part of
the custody of the department.

TENN. CODE ANN. § 39-16-601
(2005).
(2) “Custody” means under arrest by
a law enforcement officer or under
restraint by a public servant pursuant to an order of a court;
(4) “Penal institution” ... includes
any institution or facility used to
house or detain a person:
(A) convicted of a crime;
(B) adjudicated delinquent by a juvenile court;
(C) who is direct or indirect custody
after a lawful arrest.

construed as being for the purpose
of sexual arousal or gratification.
(7) “Sexual penetration” means sexual intercourse, cunnilingus, fellatio,
anal intercourse, or any other intrusion, however slight, of any part of a
person’s body or of any object into
the genital or anal openings of the
victim’s, defendant’s, or any other
person’s body, but emission of
semen is not required.

power over the victim by virtue of
the defendant's legal, professional
or occupational status, and used
such position of trust or power to
accomplish the sexual contact; or
(2) The defendant had, at the time
of the offense, parental or custodial
authority over the victim and used
such authority to accomplish the
sexual contact.

Tennessee

(cont.)

Definitions/Notes

Statute

Coverage

State

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

TEX. PENAL CODE ANN. § 12.35(c)
(Vernon 2005).
Additional penalties may apply
depending on prior offense history.

State jail felony punishment.
TEX. PENAL CODE ANN. § 12.35(a)(b) (Vernon 2005).
The penalty for a state jail felony is
180 days to 2 years in the state jail
and/or a fine not to exceed $10,000.

TEX. PENAL CODE ANN. § 39.04(g)
(Vernon 2005).
An offense under Subsection (f) is a
state jail felony.

TEX. PENAL CODE ANN. § 39.04(b)
(Vernon 2005). An offense under
Section (a)(2) is a state jail felony.

Penalties

Defenses

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103

Utah

(cont.)

Texas

State

Custodial sexual
relations – custodial sexual misconduct – definitions – penalties –
defenses. UTAH
CODE ANN. § 76-5412 (2006).

Statute

UTAH CODE ANN. § 76-5-412 (2006).
Custodial sexual relations -Custodial sexual misconduct -Definitions -- Penalties -- Defenses
(1) As used in this section:
(a) "Actor" means:
(i) a correctional officer, as defined
in Section 53-13-104;
(ii) a law enforcement officer, as
defined in Section 53-13-103; or
(iii) an employee of, or private
provider or contractor for, the
Department of Corrections or a
county jail.
(b) "Person in custody" means a person, either an adult 18 years of age
or older, or a minor younger than 18
years of age, who is:

Coverage

www.wcl.american.edu/nic

UTAH CODE ANN. § 76-5-412 (2006).
(1) As used in this section:
(b) "Person in custody" means a
person, either an adult 18 years of
age or older, or a minor younger
than 18 years of age, who is: (i) a
prisoner, as defined in Section 76-5101, and includes a prisoner who is
in the custody of the Department of
Corrections created under Section
64-13-2, but who is being housed at
the Utah State Hospital
established under Section 62A-12201 or other medical facility; (ii)
under correctional supervision, such
as at a work release facility or as a
parolee or probationer; or (iii) under
lawful or unlawful arrest, either

Definitions.
TEX. PENAL CODE ANN. § 21.01
(Vernon 2005).
In this chapter:
(1) "Deviate sexual intercourse"
means:
A) any contact between any part of
the genitals of one person and the
mouth or anus of another person; or
(B) the penetration of the genitals or
the anus of another person
with an object.
(2) "Sexual contact" means, except
as provided by Section 21.11, any
touching of the anus, breast, or any
part of the genitals of another person with intent to arouse or gratify
the sexual desire of any person.
(3) "Sexual intercourse" means any
penetration of the female sex organ
by the male sex organ.
(4) "Spouse" means a person to
whom a person is legally married
under
Subtitle A, Title 1, Family Code, or a
comparable law of another
jurisdiction.

a professionally recognized medical
treatment of a patient.

Definitions/Notes

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

Fines of persons.
UTAH CODE ANN. § 76-6-301 (2006).
(1) A person convicted of an offense
may be sentenced to pay a fine, not

UTAH CODE ANN. § 76-5-412 (2006).
(4)(b)A violation of Subsection
(4)(a) is a class A misdemeanor, but
if the person in custody is younger
than 18 years of age, a violation of
Subsection (4)(a) is a third degree
felony
(2)(b) A violation of Subsection
(2)(a) is a third degree felony, but if
the person in custody is younger
than 18 years of age, a violation of
Subsection (2)(a) is a second degree
felony.

Penalties

UTAH CODE ANN. § 76-5412 (2006).
(7) (a) It is not a defense to
the commission of the
offense of custodial sexual
relations under Subsection
(2) or custodial sexual
misconduct under
Subsection (4), or an
attempt to commit either
of these offenses, if the
person in custody is
younger than 18 years of
age, that the actor (i) mistakenly believed the person
in custody to be 18 years of
age or
older at the time of the

Defenses

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(cont.)

Utah

State

Statute
with or without a
warrant.
(c) "Private provider or contractor"
means any person or entity that
contracts with the Department of
Corrections or with a county jail to
provide
services or functions that are part of
the operation of the Department of
Corrections or a county jail under
state or local law.

(i) a prisoner, as defined in Section
76-5-101, and includes a prisoner
who is in the custody of the
Department of Corrections created
under Section 64-13-2, but who is
being housed at the Utah State
Hospital established under Section
62A-15-601 or other medical facility;
(ii) under correctional supervision,
such as at a work release facility or
as a parolee or probationer; or
(iii) under lawful or unlawful arrest,
either with or without a warrant.
(c) "Private provider or contractor"
means any person or entity that
contracts with the Department of
Corrections or with a county jail to
provide services or functions that
are part of the operation of the
Department of Corrections or a
county jail under state or local law.
(2) (a) An actor commits custodial
sexual relations if the actor commits
any of the acts under Subsection (3):
(i) under circumstances not amounting to commission of, or an attempt
to commit, an offense under
Subsection (6); and
(ii) (A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the
actor's position should have known
under the circumstances that the
individual was a person in custody.
(b) A violation of Subsection (2)(a) is
a third degree felony, but if the person in custody is younger than 18
years of age, a violation of
Subsection (2)(a) is a second degree
felony.
(c) If the act committed under this
Subsection (2) amounts to an
offense subject to a greater penalty
under another provision of state law
than is provided under this
Subsection (2), this Subsection (2)
does not prohibit prosecution and
sentencing for the more serious
offense.
(3) Acts referred to in Subsection
(2)(a) are:
(a) having sexual intercourse with a
"Prisoner" defined.
UTAH CODE ANN. § 76-5-101 (2006).
For purposes of this part "prisoner"
means any person who is in custody
of a peace officer pursuant to a lawful arrest or who is confined in a jail
or other penal institution or a facility used for confinement of delinquent juveniles operated by the
Division of Juvenile Justice Services
regardless of whether the confinement is legal.

Definitions/Notes

Coverage
exceeding:
(a) $10,000 for a felony conviction
of the first degree or second degree;
(b) $5,000 for a felony conviction of
the third degree;
(c) $2,500 for a class A misdemeanor conviction.

Penalties
alleged offense; or (ii) was
unaware of the true age of
the person in custody.
(b) Consent of the person in
custody is not a defense to
any violation
or attempted violation of
Subsection (2) or (4).
(8) It is a defense that the
commission by the actor of
an act under
Subsection (2) or (4) is the
result of compulsion, as the
defense is
described in Subsection 762-302 (1).

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

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105

(cont.)

Utah

State

Statute
person in custody;
(b) engaging in any sexual act with a
person in custody involving the genitals of one person and the mouth or
anus of another person, regardless
of the sex of either participant; or
(c) causing the penetration, however
slight, of the genital or anal opening
of a person in custody by any foreign object, substance, instrument,
or device, including a part of the
human body, with the intent to
cause substantial emotional or bodily pain to any person, regardless of
the sex of any participant.
(4) (a) An actor commits custodial
sexual misconduct if the actor commits any of the acts under
Subsection (5):
(i) under circumstances not amounting to commission of, or an attempt
to commit, an offense under
Subsection (6); and
(ii) (A) the actor knows that the individual is a person in custody; or
(B) a reasonable person in the
actor's position should have known
under the circumstances that the
individual was a person in custody.
(b) A violation of Subsection (4)(a) is
a class A misdemeanor, but if the
person in custody is younger than 18
years of age, a violation of
Subsection (4)(a) is a third degree
felony.
(c) If the act committed under this
Subsection (4) amounts to an
offense subject to a greater penalty
under another provision of state law
than is provided under this
Subsection (4), this Subsection (4)
does not prohibit prosecution and
sentencing for the more serious
offense.
(5) Acts referred to in Subsection
(4)(a) are the following acts when
committed with the intent to cause
substantial emotional or bodily pain
to any person or with the intent to
arouse or gratify the sexual desire
of any person, regardless of the sex
of any participant:

Coverage

Definitions/Notes

Penalties

Defenses

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(cont.)

Utah

State

Statute
(a) touching the anus, buttocks, or
any part of the genitals of a person
in custody;
(b) touching the breast of a female
person in custody;
(c) otherwise taking indecent liberties with a person in custody; or
(d) causing a person in custody to
take indecent liberties with the
actor or another person.
(6) The offenses referred to in
Subsections (2)(a)(i) and (4)(a)(i)
are:
(a) Section 76-5-401, unlawful sexual activity with a minor;
(b) Section 76-5-402, rape;
(c) Section 76-5-402.1, rape of a
child;
(d) Section 76-5-402.2, object rape;
(e) Section 76-5-402.3, object rape
of a child;
(f) Section 76-5-403, forcible
sodomy;
(g) Section 76-5-403.1, sodomy on a
child;
(h) Section 76-5-404, forcible sexual
abuse;
(i) Section 76-5-404.1, sexual abuse
of a child or aggravated sexual
abuse of a child; or
(j) Section 76-5-405, aggravated sexual assault.
(7) (a) It is not a defense to the commission of the offense of custodial
sexual relations under Subsection
(2) or custodial sexual misconduct
under Subsection (4), or an attempt
to commit either of these offenses,
if the person in custody is younger
than 18 years of age, that the actor:
(i) mistakenly believed the person in
custody to be 18 years of age or
older at the time of the alleged
offense; or
(ii) was unaware of the true age of
the person in custody.
(b) Consent of the person in custody
is not a defense to any violation or
attempted violation of Subsection
(2) or (4).
(8) It is a defense that the commission by the actor of an act under

Coverage

Definitions/Notes

Penalties

Defenses

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107

VT. STAT. ANN. tit. 13, § 3257 (2006).
(A) No correctional employee, contractor, or other person providing
services to offenders on behalf of
the department of corrections or
pursuant to a court order or in
accordance with a condition of
parole, probation, supervised community sentence or furlough shall
engage in a sexual act with a person
who the employee, contractor, or
other person providing services
knows.
(1) Is confined to a correctional facility; or
(2) Is being supervised by the
department of corrections while on
parole, probation, supervised community sentence or furlough, where
the employee, contractor, or other
service provider is currently
engaged in a direct supervisory
relationship with the person being
supervised. For purposes of this
subdivision, person is engaged in a
direct supervisory relationship with
a supervisee is the supervisee is
assigned to the caseload of that
person.
VA. CODE ANN. § 18.2-64.2 (2006).
An accused shall be guilty of carnal
knowledge of an inmate, parolee,
detainee, probationer, or pretrial or
post-trial offender if he or she is an
employee or contractual employee
of, or a volunteer with, a state or
local correctional facility or regional
jail, the Department of Corrections,
the Department of Juvenile Justice,
a secure facility or detention home,

Carnal knowledge
of an inmate,
parolee, probationer, or pretrial
or post-trial
offender; penalty.
VA. CODE ANN. §
18.2-64.2 (2006).

Virginia

Subsection (2) or (4) is the result of
compulsion, as the defense is
described in Subsection 76-2-302(1).

Coverage

SEXUAL EXPLOITATION OF AN
INMATE
VT. STAT. ANN. tit.
13, § 3257 (2006).

Statute

Vermont

(cont.)

Utah

State

VA. CODE ANN. § 18.2-64.2 (2006).
For the purposes of this section,
"carnal knowledge" includes the
acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse and animate or inanimate
object sexual penetration.

Definitions/Notes

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Punishment for conviction of felony
VA. CODE ANN. § 18.2-10(f) (2006).
The penalty for a Class 6 felony is
imprisonment for 1-5 years if tried
by a jury or up to 12 months if tried
by the court and/or a fine not to
exceed $2,500.

VA. CODE ANN. § 18.2-64.2 (2006).
Such offense is a Class 6 felony.

VT. STAT. ANN. tit. 13, § 3257 (2006).
(B) A person who violates this subsection (A) of this section shall be
imprisoned for not more than five
years or fined not more than
$10,000.00 or both.

Penalties

Defenses

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a local community correction program or a pretrial program; is in a
position of authority over the
inmate, probationer, parolee,
detainee or a pretrial or posttrial
offender; knows that the inmate,
probationer, parolee, detainee or
pretrial or posttrial offender is
under the jurisdiction of the state or
local correctional facility, a regional
jail, the Department of Corrections,
the Department of Juvenile Justice,
a secure facility or detention home,
a local community corrections program, or a pretrial program; and
carnally knows without the use of
force, threat or intimidations (i) an
inmate who has been committed to
jail or convicted and sentenced to
confinement in a state or local correctional facility or regional jail or
(ii) a probationer, parolee, detainee
or a pretrial or post-trial offender
under the jurisdiction of the department of corrections, the Department
of Juvenile Justice, a secure facility
or detention home, a local community corrections program, a pretrial
program, a local or regional jail for
the purposes of imprisonment, a
work program or any other
parole/probationary or pretrial
program.

Coverage

misconduct in the
first degree.
WASH. REV. CODE
ANN. § 9A.44.160
(LexisNexis 2006).

WASH. REV. CODE ANN. § 9A.44.160
(LexisNexis 2006).
A person is guilty of custodial sexual
misconduct in the first degree when
the person has sexual intercourse
with another person; (a) when (i) the
victim is a resident of a state, county, or city adult or juvenile correcCustodial sexual
misconduct in the tional facility, including but not limited to jails, prisons, detention censecond degree.
WASH. REV. CODE ters, or work release facilities, or is
ANN. § 9A.44.170 under correctional supervision; and
(LexisNexis 2006). (ii) the perpetrator is an employee
or contract personnel of a correctional agency and the perpetrator
has, or the resident reasonably
believes the perpetrator has, the

Washington Custodial sexual

(cont.)

Virginia

State

Definitions/Notes

NIC/WCL Project on Addressing Prison Rape American University, Washington College of Law

www.wcl.american.edu/nic

WASH. REV. CODE ANN. § 9A.44.170
(LexisNexis 2006).
(3) Custodial sexual misconduct in

Maximum sentences for crimes committed July 1, 1984 and after.
WASH. REV. CODE ANN. § 9A.20.021
(LexisNexis 2006).
(1)(c) The penalty for a class C felony
is imprisonment for no more than 5
years and/or a fine of no more than
$10,000.

WASH. REV. CODE ANN. § 9A.44.160
(LexisNexis 2006).
(3) Custodial sexual misconduct in
the first degree is a class C felony.

Penalties

Custodial Sexual
Misconduct Defense.
WASH. REV. CODE ANN. §
9A.44.180 (LexisNexis
2006).

WASH. REV. CODE ANN. §
9A.44.170.(LexisNexis
2006).
(2) Consent of the victim is
not a defense.

WASH. REV. CODE ANN. §
9A.44.160.(LexisNexis
2006).
(2) Consent of the victim is
not a defense.

Defenses

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109

West
Virginia

(cont.)

Washington

State

Imposition of sexual intercourse or
sexual intrusion
on incarcerated
persons; penalty.
W. VA. CODE ANN.
§ 61-8B-10
(LexisNexis 2006).

Statute

www.wcl.american.edu/nic

W. VA. CODE ANN. § 61-8B-10
(LexisNexis 2006).
(a) Any person, employed by the
division of corrections, working at a
correctional facility managed by the
commissioner of corrections pursuant to contract or as an employee
of a state agency, working at a correctional facility managed by the
division of juvenile services pursuant to contract or as an employee
of a state agency, employed by a
county jail or by the regional jail and
correctional facility authority or a
county jail who engages in sexual
intercourse or sexual intrusion with
a person who is incarcerated is
guilty of a felony.

WASH. REV. CODE ANN. § 9A.44.170
(LexisNexis 2006).
A person is guilty of custodial misconduct in the second degree when
the person has sexual contact with
another person (a) when (i) the victim is a resident of a state, county,
or city adult or juvenile correctional
facility, including but not limited to
jails, prisons, detention centers, or
work release facilities, or is under
correctional supervision; and
(ii) the perpetrator is an employee
or contract personnel of a correctional agency and the perpetrator
has, or the resident reasonably
believes the perpetrator has, the
ability to influence the terms, conditions, length or fact of incarceration
or correctional supervision; or
(b) when the victim is being
detained, under arrest or in the custody of a law enforcement officer
and the perpetrator is a law enforcement officer.

ability to influence the terms, conditions, length or fact of incarceration
or correctional supervision; or
(b) when the victim is being
detained, under arrest or in the custody of a law enforcement officer
and the perpetrator is a law enforcement officer.

Coverage

Definitions/Notes

Defenses

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

W. VA. CODE ANN. § 61-8B-10
(LexisNexis 2006).
(b) Upon conviction thereof, the
employee shall be sentenced to one
to five years or fined up to $5,000.

W. VA. CODE ANN. § 61-8B-10
(LexisNexis 2006). (a) Upon conviction thereof, the employee shall be
sentenced to one to five years or
fined up to $5,000.

the second degree is a gross misdemeanor.

W. VA. CODE ANN.§ 61-8B-2
Lack of consent.
(a) Whether or not specifically stated, it is an element of every offense
defined in this article that
the sexual act was committed without the consent of
the victim.
(b) Lack of consent results
from:
(1) Forcible compulsion; or
(2) Incapacity to consent;
or
(3) If the offense charged is
sexual abuse, any circumstances in addition to the

It is an affirmative defense
to prosecution under §§ 10
and 170, to be proven by
WASH. REV. CODE ANN. § 9A.20.021 the defendant by a preponderance of the evidence,
(LexisNexis 2006).
(2)(c) The penalty for a gross misde- that the act of sexual intermeanor is imprisonment for up to 1 course or sexual contact
resulted from forcible comyear and/or a fine of up to $5,000.
pulsion by the other person.

Penalties

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Wisconsin

(cont.)

West
Virginia

State
W. VA. CODE ANN. § 61-8B-10(a)
(LexisNexis 2006).
Any person employed by the division
of corrections as a parole officer or
by the West Virginia Supreme
Court of Appeals as an adult or juvenile probation officer who engages
in sexual intercourse or sexual intrusion with someone said parole officer or probation officer is charged
with supervising is guilty of a felony.

Coverage

Definitions/Notes

Definition of jail.
WIS. STAT. ANN. § 302.30 (West
2006)..
In ss. 302.30 to 302.43, "jail"
includes municipal prisons and rehabilitation facilities established under
s. 59.53 (8) by whatever name they
are known. In s. 302.37 (1) (a) and
(3) (a), "jail" does not include lockup
facilities. "Lockup facilities" means
those facilities of a temporary place
of detention at a police station
which are used exclusively to hold
WIS. STAT. ANN. § 940.225 (West
persons under arrest until they can
2006).
be brought before a court, and are
(2)(i) Has sexual contact or sexual
not used to hold persons pending
intercourse with an individual who is trial who have appeared in court or
on probation, parole, or extended
have been committed to imprisonsupervision if the actor is a probament for nonpayment of fines or fortion, parole, or extended supervifeitures. In s. 302.365, "jail" does
sion agent who supervises the indi- not include rehabilitation facilities
vidual, either directly or through a
established under s. 59.53 (8).
subordinate, in his or her capacity
as a probation, parole, or extended WIS. STAT. ANN. § 940.225 (West
supervision agent or who has influ- 2006).
enced or has attempted to influence (5)(ab) "Correctional institution"
another probation, parole, or
means a jail or correctional facility,
extended supervision agents super- as defined in s. 961.01 (12m), a
vision of the individual. This parasecured correctional facility, as
graph does not apply if the individ- defined in s. 938.02 (15m), or a
ual with whom the actor has sexual secure detention facility, as defined
contact or sexual intercourse is sub- in s. 938.02 (16).
ject to prosecution for the sexual
contact or sexual intercourse under WIS. STAT. ANN. § 961.01(West
this section.
2006). (12m) "Jail or correctional

WIS. STAT. ANN. § 940.225 (West
2006).
(2)(h) Has sexual contact or sexual
intercourse with an individual who is
confined in a correctional institution
if the actor is a correctional staff
member. This paragraph does not
Abuse of residents apply if the individual with whom
of penal facilities. the actor has sexual contact or sexuWIS. STAT. ANN. § al intercourse is subject to prosecution for the sexual contact or sexual
940.29 (West
intercourse under this section.
2006).

Second Degree
Sexual Assault.
WIS. STAT. ANN. §
940.225 (West
2006).

Statute

Classification of felonies.
WIS. STAT. ANN. § 939.50 (West
2006).
(3)(i) The penalty for a Class I felony
shall be imprisonment for a term
not to exceed 3 years and/or a fine
not to exceed $10,000.

WIS. STAT. ANN. § 940.29 (West
2006).
The abuse of residents of penal
facilities is a Class I felony.

WIS. STAT. ANN. § 939.50 (West
2006).
The penalty for a Class C felony is a
fine not to exceed 100,000 or
imprisonment not to exceed 40
years, or both.

WIS. STAT. ANN. § 940.225 (West
2006). Second Degree Sexual
Assault is a Class C felony.

Penalties
forcible compulsion or
incapacity to consent in
which the victim does not
expressly or impliedly
acquiesce in the actor's
conduct.
(c) A person is deemed
incapable of consent when
such person is:
(1) Less than sixteen years
old; or
(2) Mentally defective; or
(3) Mentally incapacitated;
or
(4) Physically helpless.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

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111

(cont.)

Wisconsin

State
State

Statute
Statute
facility" means any of the following:
(a) A Type 1 prison, as defined in s.
301.01 (5).
(b) A jail, as defined in s. 302.30.
(c) A house of correction.
(d) A Huber facility under s. 303.09.
(e) A lockup facility, as defined in s.
302.30.
(f) A work camp under s. 303.10.

WIS. STAT. ANN. § 940.29 (West
2006).
Any person in charge of or
employed in a penal or correctional
institution or other place of confinement who abuses, neglects or illtreats any person confined in or a
resident of any such institution or
place or who knowingly permits
another person to do so is guilty of
a Class I felony.

www.wcl.american.edu/nic

WIS. STAT. ANN. § 940.225 (West
2006)
(5)(b) "Sexual contact" means any of
the following:
1. Intentional touching by the complainant or defendant, either directly or through clothing by the use of
any body part or object, of the complainant's or defendant's intimate
parts if that intentional touching is
either for the purpose of sexually

WIS. STAT. ANN. § 940.225 (West
2006)
(5)(ad) "Correctional staff member"
means an individual who works at a
correctional institution, including a
volunteer.

WIS. STAT. ANN. § 938.02 (WEST
2006)
(16) "Secure detention facility"
means a locked facility approved by
the department under s. 301.36 for
the secure, temporary holding in
custody of juveniles.

WIS. STAT. ANN. § 938.02 (WEST
2006).
(15m) "Secured correctional facility"
means a correctional institution
operated or contracted for by the
department of corrections or operated by the department of health
and family services for holding in
secure custody persons adjudged
delinquent. "Secured correctional
facility" includes the Mendota juvenile treatment center under s.
46.057 and a facility authorized
under s. 938.533 (3) (b), 938.538 (4)
(b), or 938.539 (5).

Definitions/Notes
Definitions/Notes

Coverage
Coverage

Penalties
Penalties

Defenses
Defenses

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Wyoming

(cont.)

Wisconsin

State

Sexual assault in
the second degree
WYO. STAT. ANN. §
6-2-303 (2006).

Statute

WYO. STAT. ANN. § 6-2-303 (2006).
(a)Any actor who inflicts sexual
intrusion on a victim commits sexual
assault in the second degree if,
under circumstances not constituting assault in the first degree: (vi)
the actor is in a position of authority
over the victim and uses this position of authority to cause the victim
to submit.

Coverage

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WYO. STAT. ANN. § 6-2-301 (2006).
(a)(iv)Position of authority means
that position occupied by a parent,
guardian, relative, household member, teacher, employer, custodian or
any other person who, by reason of
his position, is able to exercise significant influence over a person.
(vii) "Sexual intrusion" means:
(A) Any intrusion, however slight,

WIS. STAT. ANN. § 940.225( West
2006).
(5)(c) "Sexual intercourse" includes
the meaning assigned under s.
939.22 (36) as well as cunnilingus,
fellatio or anal intercourse between
persons or any other intrusion, however slight, of any part of a person's
body or of any object into the genital or anal opening either by the
defendant or upon the defendant's
instruction. The emission of semen
is not required.

degrading; or for the purpose of sexually humiliating the complainant or
sexually arousing or gratifying the
defendant or if the touching contains the elements of actual or
attempted battery under s. 940.19
(1).
2. Intentional penile ejaculation of
ejaculate or intentional emission of
urine or feces by the defendant
upon any part of the body clothed or
unclothed of the complainant if that
ejaculation or emission is either for
the purpose of sexually degrading or
sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
3. For the purpose of sexually
degrading or humiliating the complainant or sexually arousing or
gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any
part of the defendant's body,
whether clothed or unclothed.

Definitions/Notes

WYO. STAT. ANN. § 6-2-306 (2006).
(a)(ii) Sexual assault in the 2nd
degree is a felony punishable by
imprisonment for not more than 20
years.

Penalties

Defenses

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113

Aggravated sexual
abuse.
18 U.S.C.S. § 2241
(LexisNexis 2006).

Statute

Coverage

18 U.S.C.S. § 2241 (LexisNexis 2006).
(a) Whoever, in the special maritime
and territorial jurisdiction of the
United States or in a Federal prison
(NOTE: This
or in any prison, institution, or facililaw also covty in which persons are held in cusers all federal Sexual abuse.
United States 18 U.S.C.S. § 2242 tody by direction of or pursuant to a
(LexisNexis 2006). contract or agreement with the
territories
Attorney General, knowingly causes
including
Sexual abuse of a another person to engage in a sexuGuam,
minor or ward.
al act (1) by using force against that
Northern
18 U.S.C.S. § 2243 person, (2) by threatening or placing
Mariana
(LexisNexis 2006). that other person in fear that any
Islands,
person will be subjected to death,
Puerto Rico
serious bodily injury or kidnapping;
and the Virgin Abusive sexual
contact.
or attempts to do so, shall be fined
Islands)
18 U.S.C.S. § 2244 under this title, imprisoned for any
(LexisNexis 2006). term of years or life, or both; (b)(1)
renders another person unconscious, and thereby engages in a
sexual act with that person, or (2)
administers to another person by
force or threat of force or without
the knowledge or permission of that
person a drug, intoxicant or other
similar substance and thereby (A):
substantially impairs the ability of
that other person to appraise or
control conduct, and (B) engages in
a sexual act with that other person;

United
States

(cont.)

Wyoming

State

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Definitions for chapter
18 U.S.C.S. § 2246
(LexisNexis 2006).
As used in this chapter [18 USCS §§
2241 et seq.]-(1) the term "prison" means a correctional, detention, or penal
facility;
(2) the term "sexual act" means-(A) contact between the penis and
the vulva or the penis and the anus,
and for purposes of this subparagraph contact involving the penis
occurs upon penetration, however
slight;
(B) contact between the mouth and
the penis, the mouth and the vulva,
or the mouth and the anus;
(C) the penetration, however slight,
of the anal or genital opening of
another by a hand or finger or by
any object, with an intent to abuse,
humiliate, harass, degrade, or
arouse or gratify the sexual desire
of any person; or
(D) the intentional touching, not
through the clothing, of the genitalia
of another person who has not
attained the age of 16 years with an
intent to abuse, humiliate, harass,

CASE NOTE: Scadden v. Wyoming,
732 P.2d 1036, 1039 (Wyo. 1987). In
Scadden, the Wyoming Supreme
Court stated that “a jailer ... [has]
power over his prisoner, and therefore, the jailer is in a position of
authority over the prisoner.” Id at
1042.

by any object or any part of a person's body, except the mouth,
tongue or penis, into the genital or
anal opening of another person's
body if that sexual intrusion can
reasonably be construed as being
for the purposes of sexual arousal,
gratification or abuse; or (B) Sexual
intercourse, cunnilingus, fellatio,
analingus or anal intercourse with
or without emission.

Definitions/Notes

Defenses

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

18 U.S.C.S. Appx. § 2A3.4(a)(3)
(LexisNexis 2006).
The base penalty for abusive sexual

18 U.S.C.S. Appx. § 2A3.3(a)
(LexisNexis 2006).
The base penalty for sexual abuse of
a ward shall be imprisonment for a
term of 4-10 months.

18 U.S.C.S. § 2243
(LexisNexis 2006). (c)(1)In
a prosecution under subsection (a) of this section,
18 U.S.C.S. Appx. § 2A3.1(b)(1)
it is a defense, which the
(LexisNexis 2006).
defendant must establish
The base penalty for aggravated
sexual abuse shall be imprisonment by a preponderance of the
evidence, that the defenfor a term of 108-135 months.
dant reasonably believed
that the other person had
18 U.S.C.S. Appx. § 2A3.1(a)
attained the age of 16
(LexisNexis 2006).
years.
The base penalty for sexual abuse
shall be imprisonment for a term of (2) In a prosecution under
this section, it is a defense,
70-87 months.
which the defendant must
establish by a preponder18 U.S.C.S. Appx. § 2A3.2(a)
ance of the evidence, that
(LexisNexis 2006).
The base penalty for sexual abuse of the persons engaging in
a minor shall be imprisonment for a the sexual act were at that
time married to each other.
term of 18-24 months.
For offenders with 0 to 1 prior
offenses:

Penalties

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United
States

State

Statute

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18 U.S.C.S. § 2243 (LexisNexis 2006).
(b) Whoever, in the special maritime

18 U.S.C.S. § 2242 (LexisNexis 2006).
Whoever, in the special maritime
and territorial jurisdiction of the
United States or in a Federal prison
or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a
contract or agreement with the
Attorney General, knowingly (1) causes another person to engage
in a sexual act by threatening or
placing that other person in fear
(other than by threatening or placing that other person in fear that
any person will be subjected to
death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with
another person if that other person
is - (A) incapable of appraising the
nature of the conduct; or
(B) physically incapable of declining
participation in, or communicating
unwillingness to engage in, that sexual act; or attempts to do so, shall
be fined under this title, imprisoned
not more than 20 years, or both.

contact shall be imprisonment for a
term of 6-27 months depending on
the circumstances.

degrade, or arouse or gratify the
sexual desire of any person;
(3) the term "sexual contact" means
the intentional touching, either
directly or through the clothing, of
the genitalia, anus, groin, breast,
inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person;
(4) the term "serious bodily injury"
means bodily injury that involves a
substantial risk of death, unconsciousness, extreme physical pain,
protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily
member, organ, or mental
faculty;
(5) the term "official detention"
means-(A) detention by a Federal officer or
employee, or under the direction of
a Federal officer or employee, following arrest for an offense; following surrender in lieu of arrest for an
offense; following a charge or conviction of an offense, or an allegation or finding of juvenile delinquency; following commitment as a
material witness; following civil
commitment in lieu of criminal proceedings or pending resumption of
criminal proceedings that are being
held in abeyance, or pending extradition, deportation, or exclusion; or
(B) custody by a Federal officer or
employee, or under the direction of
a Federal officer or employee, for
purposes incident to any detention
described in subparagraph (A) of
this paragraph, including transportation, medical diagnosis or
treatment, court appearance, work,
and recreation;
but does not include supervision or
other control (other than custody
during specified hours or days) after
release on bail, probation, or
parole, or after release following a
finding of juvenile delinquency; and

or attempts to do so, shall be fined
under this title, imprisonment for
any term of years, or life, or both.
(c) With children. Whoever, in the
special maritime and territorial
jurisdiction of the U.S. or in a
Federal prison or in any prison,
institution, or facility in which persons are held in custody by direction
of or pursuant to a contract or
agreement with the Attorney
General, knowingly engages in a sexual act under the circumstances
described in subsections (a) and (b)
with another person who has
attained the age of 12 but not 16
(and is at least 4 years younger than
the person so engaging), or
attempts to do so, shall be fined
under this title, imprisoned for any
term of years or life or both.
18 U.S.C.S. § 2244(a) (LexisNexis
2006).
Whoever, in the special maritime
and territorial jurisdiction of the
United States or in a Federal prison,
knowingly engages in or causes sexual contact with or by another person, if so to do would violate - (1)
section 2241 of this title had the
sexual contact been a sexual act,
shall be fined under this title,
imprisoned not more than ten years,
or both;
(2) section 2242 of this title had the
sexual contact been a sexual act,
shall be fined under this title,
imprisoned not more than three
years, or both;
(3) subsection (a) of section 2243 of
this title had the sexual contact
been a sexual act, shall be fined
under this title, imprisoned not
more than two years, or both; or
(4) subsection (b) of section 2243 of
this title had the sexual contact
been a sexual act, shall be fined
under this title, imprisoned not
more than fifteen years, or both.

Penalties

Definitions/Notes

Coverage

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

115

(cont.)

United
States

State

Statute
(6) the term "State" means a State
of the United States, the District of
Columbia, and any commonwealth,
possession, or territory of the
United States.

and territorial jurisdiction of the
United States or in a Federal prison
or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a
contract or agreement with the
Attorney General, knowingly
engages in a sexual act with another
person who is (1) In official detention; and (2) under the custodial,
supervisory, or disciplinary authority of the person so engaging; or
attempts to do so, shall be fined
under this title, imprisoned not
more than five years, or both.
18 U.S.C.S. § 2244 (LexisNexis 2006).
Abusive sexual conduct is sexual
conduct in circumstances where sexual acts are punished under this
chapter, if the sexual contact, had it
been a sexual act, would have violated § 2241, § 2242, or § 2243.

Definitions/Notes

Coverage

Penalties

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody

116
Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law

www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Evaluation
The NIC/WCL Project staff and consultants are evaluating Breaking the Code of
Silence: A Correction Officers’ Handbook on Identifying and Addressing Sexual
Misconduct, to determine how well it serves the field of corrections. We are primarily interested in its usability and applicability.
We would like you to complete the enclosed survey by going to
www.imperialresolutions.com/coheval.htm
or by filling this in and mailing it back to us at:
The NIC Project
Washington College of Law
4801 Massachusetts Ave, N.W.
Washington, D.C. 20016
Please circle your answer to the following questions:
1. This handbook provides a favorable user/reader experience.
Strongly
Agree

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Neutral

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Not Applicable/

2. This handbook clearly describes each topic to any interested party.
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Don’t know

3. This handbook treats each topic in a balanced and fair manner.
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4. All topics in this handbook are treated impartially on their merits.
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5. Correctional professionals can easily locate the topic/information they are
looking for.
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6. This handbook is a useful/realistic reference for corrections officers.
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7. The use of this handbook will improve my job performance.
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117

118

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

8. This handbook can be understood by staff on every level – line, management, and leadership
Strongly
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Neutral

Disagree

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9. My perception of this handbook compares favorably with my experience
with other similar handbooks.
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10. I would recommend this handbook to other correctional professionals.
Strongly
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Don’t know

11. How did you first learn about this handbook?
Information and resource assistance through an NIC division
Word of mouth
Training [regional or academy]
Professional book list
Presentation
NIC/WCL Website
Other ______________________________

12. Indicate the last time you contacted the NIC/WCL Project on Addressing
Prison Rape for training?
1-12 months ago

13-18 months ago

19-24 months ago

37-48 months ago

49-60 months ago

more than 61 months ago

25-36 months ago

13. Indicate the last time you contacted the NIC/WCL Project on Addressing
Prison Rape for information or resources?
1-12 months ago

13-18 months ago

19-24 months ago

37-48 months ago

49-60 months ago

more than 61 months ago

25-36 months ago

NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
www.wcl.american.edu/nic

Breaking the Code of Silence: Correction Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Reader Profile
The following questions are to collect demographic information only and are strictly voluntary.
Please circle your answer to the following questions

1. Job title/occupation:
1. Executive: (such as: Commissioner, Deputy Commissioner, Secretary etc.)
2. Facility Administrator: (such as: Warden, Superintendent, Jail Administrator, etc.)
3. Investigations: (such as: Investigator, Inspector General, Special Agent, etc.)
4. Line Staff: (such as correctional officer, guard etc.)
5. Law Enforcement: (such as: Sheriff, Deputy, Police Officer etc.)
6. Legal: (such as: Prosecutor, Attorney, Counsel, EEO etc.)
7. Advocacy: (such as: Psychologist, Victim Advocate, etc.)
8. Support Personnel: (such as: Human Resources, Training etc.)
9. Other: _________________________________

2. Gender:

Male

Female

3. Race:

African American
Asian or Pacific Islander
Hispanic
Other ____________________________

Arab American/Middle Eastern
Caucasian (White) non-Hispanic
Native American/Alaskan Native

4. Age: Less than 20

20-29

30-39

40-49

50-59

more than 60 years

5. What is your highest level of education?
High School graduate/GED
BA/BS
PhD/MD

Associates Degree
MA/MS/MSW
JD

6. How long have you worked in your career field?
Less than 3 years
11 to 20 years

3 to 5 years
21 to 30 years

6 to 10 years
more than 31 years

7. How long have you worked at your current organization?
Less than 3 years
11 to 20 years

3 to 5 years
21 to 30 years

6 to 10 years
more than 31 years

8. What is your current work location?
Northeast
Southwest

Mid-Atlantic
Northwest

Mid-West
South
Other _____________________________

Jurisdiction (state or county): ____________________________________________________

9. Type of Facility:
Prison
Detention Center Private
State Juvenile Facility
Community Supervision Agency

10. Your facility or agency is: male only

Jail
Correctional Facility (Adult/ Juvenile)
Residential Facility (Adult/ Juvenile)
Other: __________________________
female only

mixed gender

Thank you for completing the survey.
NIC/WCL Project on Addressing Prison Rape American University Washington College of Law
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119

120

Breaking the Code of Silence A Correction Officer’s Handbook on Identifying and Addressing Sexual Misconduct

Breaking the Code of

SILENCE

Correctional Officers’ Handbook on Identifying and Addressing Sexual Misconduct

Brenda V. Smith and Jaime M. Yarussi
National Institute of Corrections/Washington College of Law Project on Addressing Prison Rape
American University
WashingtonWashington
College of Law
American
University
College of Law