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California Enacts Strong Sexual Abuse in Detention Elimination" Act

California Enacts Strong Sexual Abuse in Detention Elimination" Act

by John E. Dannenberg

To aid compliance with the federal Prison Rape Elimination Act (PREA) of 2003 (Public Law 108-79), California enacted Assembly Bill 550 (AB 550), the Sexual Abuse in Detention Elimination Act (SADEA), on September 22, 2005. SADEA provides for policies, instruction, counseling and investigation regarding sexual abuse in California's prisons and juvenile facilities.

Studies in the United States have estimated that one in five male prisoners has been sexually abused, usually by other prisoners. Female prisoners fare worse, with a one-in-four record, but with much of the abuse perpetrated by male guards. Recognizing that the problem will not go away by itself [149 California prisoners reported sexual abuse in 2004 alone], the California Legislature adopted AB 550 to require the California Department of Corrections and Rehabilitation (CDCR) to take a proactive stance against this pervasive problem.

The stated purposes of AB 550 are to protect all CDCR prisoners from sexual abuse; to make this goal a top priority; to require CDCR to implement preventive procedures and to protect victims; to maintain and make public sexual abuse records within all prisons; to increase CDCR's accountability in preventing sexual abuse; to protect prisoners' federal and state constitutional rights to be free from cruel and unusual punishment in this regard; to establish the Office of the Sexual Abuse in Detention Elimination Ombudsperson to monitor all CDCR sexual abuse incidents; and to comply with the federal PREA. In addition, AB 550 contains language requiring CDCR to increase the efficiency of state expenditures on corrections, correctional physical and mental health care, substance abuse reduction, HIV/AIDS prevention, violence prevention and reentry programs for inmates and wards.

To effect these changes, the Legislature added § 2635 et seq. to the Penal Code (PC), which requires CDCR to make available informational handbooks on sexual abuse to prisoners. Then, mindful of youth offender ward classification standards set forth in Farrell v. Allen, Alameda County Superior Court case No. RG 03078344, the Legislature enacted PC § 2636, which requires CDCR to take into account prisoner risk factors for sexual abuse, to include age, violence convictions, priors and mental illness history. CDCR personnel are required to preemptively intervene when prisoner/ward abuse or intimidation appears imminent.

Section 2637 requires CDCR to establish protocols regarding sexual abuse, including immediate and discreet protection of alleged victims. Importantly, the filing of such complaints shall not be punished and any segregation ordered must be non-disciplinary; retaliation is expressly prohibited. Under no circumstances may staff suggest to complaining prisoners that they should simply fight to protect themselves from abuse. Nor may staff discriminate against any prisoner based upon sexual orientation. Filing false reports is a new punishable infraction.

Section 2638 goes on to require CDCR to provide appropriate health care for apparent sexual abuse victims, with confidentiality to be maintained by mental health care counselors. Section 2639 enacts specific procedures to ensure full investigation and prosecution of sexual abuse incidents. In unambiguous language, § 2639(e) provides that if any employee has sexually abused an inmate or ward, that employee will be terminated," and that administrators are required to report criminal sexual abuse to law enforcement authorities. Section 2640 requires that a sexual abuse data base be established and maintained.

Section 2641 establishes the SADEA Ombudsperson office within the Office of the Inspector General, and further provides that the duties of the Ombudsperson office may be contracted to outside nongovernmental experts." Wisely, the Legislature has thus distanced sexual abuse investigation from within the self-protective cocoon of CDCR. Indeed, § 2641(c) permits prisoners to write confidential letters regarding sexual abuse to the Ombudsperson. Section 2641(d) grants power to the Inspector General to investigate all reports of mishandling of sexual abuse incidents, while maintaining victim confidentiality.

Finally, to gain community involvement, § 2642 requires CDCR to permit outside civil rights and human rights organizations and service agencies to offer resources to prisoners. AB 550 is a strong commitment by the California Legislature, and its language appears sufficient to become a sound basis for litigation for sexually abused prisoners whose claims arise from failure to reasonably protect them.

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