Investigating Allegations of Staff Sexual Misconduct with Offenders

National Institute of Corrections
American University Washington College of Law
July 11 - 16, 2004


Public Correctional Policy on
Staff Sexual Misconduct with Offenders

Introduction:

Sexual misconduct within correctional agencies is an issue of great concern for the corrections profession. The commonly accepted definition for sexual misconduct is "any behavior or act of any sexual nature directed toward an inmate, detainee or an offender, by an employee, vendor, contractor, volunteer, visitor, or any other agency representative." (1)

Sexual misconduct includes, but is not limited to, committing or attempting to commit acts such as sexual assault, sexual abuse, sexual harassment, sexual contact, obscenity, unreasonable and unnecessary invasion of privacy, behavior of a sexual nature or implication, and conversations or correspondence suggesting a romantic or sexual relationship. Sexual misconduct may involve individuals of either sex and may involve interactions between staff and inmates of the same sex.

Staff sexual misconduct violates both federal and state law, including the 8th and Fourth Amendments of the U.S. Constitution and the Prison Rape Elimination Act of 2003 and state criminal statutes prohibiting sexual contact between corrections staff and offenders. The impact of sexual misconduct in correctional environments is harmful to an organization, the public and offenders as it:

  • Jeopardizes facility and operational security;
  • Can violate the constitutional rights of detainees/offenders;
  • Exposes the entire agency and staff to civil and criminal liability;
  • Creates a hostile work environment;
  • Destroys trust among staff and detainees/offenders;
  • Corrupts professionals by inviting dishonesty and compromise;
  • Reflects poorly on the dedicated professionals who work in corrections;
  • Victimizes those already vulnerable due to their susceptibility to inappropriate behavior, their history of abuse, and their subordinate position;
  • Is illegal in most jurisdictions; and
  • Undermines the public support and trust of the agency, facility and staff.

Policy Statement:

The American Correctional Association believes that any contact of a sexual nature between an employee and someone acting on behalf of or in cooperation with a corrections agency with a detainee, inmate or offender is unacceptable and unlawful. It is ACA's position that there can never be "consensual sex" in a custodial or supervisory relationship. This behavior is inconsistent with the professional and ethical principles of the ACA and the corrections profession and shall not be tolerated. ACA promotes the prompt reporting and thorough, professional investigations of all allegations of misconduct by those with the responsibility and authority to handle such matters. The agency's response should include referral for administrative and/or criminal prosecution consistent with departmental policy and state and federal statutes.

ACA recommends that corrections agencies should adopt the following strategies to reduce sexual misconduct:

  1. Support and/or strengthen legislation making sexual contact with offenders/detainees a felony offense;
  2. Establish investigative policies and procedures that include the processes for: reporting and investigating allegations involving sexual misconduct; transferring and/or reassigning of staff during an investigation for the protection of the employee and offender; separating the persons alleged to be involved;
  3. Establish mental health and medical protocols addressing investigative procedures;
  4. Report all instances of sexual misconduct to the proper authorities for investigation and possible criminal action;
  5. Foster an environment in which the reporting of alleged sexual misconduct behavior is encouraged and reports may be made without fear of reprisal;
  6. Establish, publicize and enforce a zero-tolerance policy regarding all forms of sexual misconduct;
  7. Develop and adopt specific, clear and concise policies and definitions that clarify interpretations of the term "sexual misconduct" and that provide clear direction for the agency's response to violations of the policies;
  8. Develop policies and procedures that clearly explain the investigative process to staff and offenders including policies on transfer and movement or separation of the persons alleged to be involved;
  9. Provide orientation and ongoing in-service training to staff emphasizing the zero-tolerance policy and explaining state law, case law, administrative policies on the issue and providing the skills needed to effectively manage offenders;
  10. Provide appropriate orientation to anyone having contact with offenders;
  11. Provide intensive training, resources and support for personnel assigned to investigate allegations of sexual misconduct;
  12. Provide detainee/offender orientation and ongoing education on staff sexual misconduct that includes information on the zero-tolerance policy, how to report allegations, how to obtain medical and mental health services, how to seek relief against retaliation for reporting allegations, and possible disciplinary actions for making false allegations;
  13. Establish partnerships with prosecutors, medical providers, mental health providers and others who can provide advice, support and direct services to detainees/offenders who are victims of staff sexual misconduct;
  14. Establish a systematic process for the collection of data that document the number of sexual misconduct allegations, the nature of each allegation, and the resolution of the allegation.

Note: The proposed ACA Policy on Sexual Assaults in Jails, Prisons, Adult and Juvenile Facilities and Community Supervision addresses offender on offender sexual assaults. This policy addresses sexual misconduct between staff and offenders.

(1) Refer to individual state statutes and agency policies for additional definitions.

May 28, 2004


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