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Hunting Rapists Behind Bars

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Law professor Brenda V. Smith has long suspected that prosecutors are reluctant or unwilling to pursue allegations of sexual violence that arise in prison.

Now she knows why.

Sexual assault cases—difficult to prove under any circumstances—are especially hard to prosecute in prison, says Smith, co-author of a recent study on prosecutors’ reasons for declining to bring more cases to trial.

Prosecutors have little to gain—and a lot to lose—from pursuing such cases, according to the study. For one thing, they are not high-profile, high-value cases that will increase a prosecutor’s stature within his or her office or the community at large. In fact, prosecuting such cases could actually weaken a prosecutor’s stature in the community by making him or her appear to be soft on criminals.

Moreover, in many jurisdictions, correctional staff—often the alleged offenders—are sworn peace officers, the same individuals whom prosecutors need to rely on in other criminal cases originating in prison.

“I went into [the study] thinking that pros­ecutors were being unreasonable, that their reluctance or unwillingness to pursue these cases was unfounded,” says Smith, who is with American University and serves on the National Prison Rape Elimination Commis­sion, a bipartisan federal panel created by Congress in 2003. “But I came out of it with a greater appreciation for the significant disincentives and barriers to prosecution that these cases present.”


The study, which grew out of a training program for high-level correctional officials, is based in part on individual interviews and focus group sessions with 27 federal, state and local prosecutors, along with a review of case law, statutes, government and advocacy group reports, and news stories. An article about the findings, “Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors’ Perceptions,” co-authored by Jaime M. Yarussi, a colleague of Smith’s, is available online at

The study also found that unsympathetic victims, delayed reporting of incidents, a lack of physical evidence, poor investigations and conflicting testimony make prison rape cases high risk for prosecutors.

On top of that, prosecutors often see their role as securing significant sentences for hardened criminals. Some may even believe that being assaulted, physically or sexually, is part of the penalty for committing a crime, the study found.

Even prosecutors who don’t share those views may be reluctant or unwilling to prosecute such cases because they see their job as being done after securing a conviction or because they do not consider crimes that occur in prison as part of their purview.

Smith came away from the study more convinced than ever of the importance of taking such cases to court.

“One successful prosecution can have a ripple effect on an entire correctional system,” says Smith. “It sends correctional officers the message that they can and will be held accountable for the sexual abuse of individuals in their custody. And it tells inmates that even though they may have committed a crime, they too are worthy of protection under the law.”

Prison rape is an intractable problem despite all efforts to combat it. An estimated 60,500 inmates—about 4.5 percent of the nation’s prison population—experienced one or more incidents of sexual victimization in 2007, according to the U.S. Bureau of Justice Statistics, which collects data annually on the prevalence of sex­ual violence in prison. Nearly two-thirds of those inmates were victimized by a staff member. About 45 percent were assaulted by another inmate. (Some inmates were victimized by both staff and other inmates.)

Yet few such incidents ever result in prosecution, according to Smith and other experts.

One of the biggest barriers to prosecuting cases of sexual assault in prison is the lower standard of proof that applies to administrative or disciplinary proceedings, which usually take place before any criminal prosecution, the study found. If a staff member accused of assaulting an inmate prevails in an administrative proceeding, he or she is unlikely to be prosecuted.

Furthermore, investigations conducted in connection with an administrative proceeding can taint a criminal investigation, particularly if a staffer is compelled to testify under threat of being fired. Finally, staffers accused of assaulting inmates are often allowed to resign in lieu of prosecution.

Another barrier to the prosecution of sexual violence cases in prison, according to the study, is the issue of consensual versus forced sex.

While most states recognize that staff have tremendous control over every aspect of a prisoner’s life, pros­ecutors say juries have problems accepting the credibility of inmates, perceiving them as liars with a bias against correctional staff or as having a financial motive for making false allegations. They also tend to view the inmates as the aggressors.

Inmate-on-inmate sex in prison presents another barrier, the study found.

In prison, there is a continuum of sexual behavior between inmates ranging from rape to coerced, strategic and consensual sex that can vary over time, depending on the circumstances. This means that consensual sex today could become forced, coerced or strategic at some other point. And while consensual sex between inmates may be a disciplinary matter, it is generally not a crime. Some prosecutors were even quoted in the study as saying they would not pursue such a claim without physical evidence of violence, eyewitness testimony or evidence of addi­tional crimes.

Complicating matters further, according to the study, are laws that vary from state to state. Some classify sexual offenses against inmates as misdemeanors, some do not cover custodial sexual offenses in all settings, and some allow consent to be raised as a defense in cases of alleged staff assaults on inmates.

The credibility of the inmate victim is also of paramount concern in cases in which a staffer is the accused offender. Some prosecutors said a case based solely on an inmate’s claim that he or she was raped is “virtually untriable” without some corroborating evidence, such as physical injuries or eyewitness testimony.

Nor is eyewitness testimony easy to come by in a prison setting, where inmates are often afraid to come forward for fear of reprisal and staffers tend to adhere to a “code of silence” with regard to other staffers.

Prosecutorial inexperience with sexual assault claims and a lack of understanding of prison culture also contribute to the difficulties such cases present, the study found.


Present and former prosecutors agree with many of the study’s findings. Sexual assault cases present a lot of unusual challenges, they say, even when they occur in a noncustodial setting. And prison-based cases come with a whole new set of challenges.

But they take issue with the study’s suggestion that prosecutors as a rule are reluctant to take on such cases.

Jennifer Long is the director of the National District Attor­neys Association’s National Center for the Pros­ecution of Violence Against Women, which is in Alexandria, Va. She says reluctance may rule in some jurisdictions—but not in Philadelphia, where she spent three years as a prosecutor.

“Those cases were vigorously prosecuted, no matter who the victim was,” Long says.

Diane Berman, a deputy district attorney in Pittsburgh who partici­pated in one of the study’s focus groups, says it’s not the case in her office, either.

“We’re not hesitant at all about prosecuting those cases in our jurisdiction,” she says.

Julie Sheridan, an assistant district attorney in Portland, Maine, who successfully prosecuted a for­- mer prison guard there in January for having sex with two inmates, says every case has to be judged on its own set of facts.

But “if a case comes in and we can prove it, we’ll prosecute,” she says.

One civil rights lawyer who has made a name for herself representing female inmates in Michigan’s prisons says she thinks most prosecutors are initially loath to prosecute sexual assault cases that occur in correctional settings.

“I’ve worked with a number of prosecutors who start out thinking that no jury is going to believe a woman inmate with a criminal record, especially one with a history of prostitution or drug offenses,” says Ann Arbor lawyer Deborah LaBelle, lead attorney in two successful class action suits against the Michigan Department of Corrections.

But LaBelle says most prosecutors come around once they realize such cases are winnable.

“Once they actually do the case and put the woman on the stand, they’re finding out that the jury didn’t believe the guard. They almost always believe the woman.”

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