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AN
WOMEN PRISONERS ’ HANDBOOK

END
ON IDENTIFYING AND

TO
ADDRESSING SEXUAL MISCONDUCT

SILENCE

NATIONAL WOMEN’S LAW CENTER

The National Women’s Law Center is a non-profit, tax-exempt organization under section 501(c)(3) of the
Internal Revenue Service Code. Our tax I.D. number is 52-1213010. Contributions to the Center enabling it to
continue its work on behalf of women and girls across the country are tax deductible.
© Copyright 1998 by the National Women’s Law Center.
All rights reserved including the right of reproduction in whole or in part in any form.

AN
WOMEN PRISONERS ’ HANDBOOK

END
ON IDENTIFYING AND

TO
ADDRESSING SEXUAL MISCONDUCT

SILENCE
by
Brenda V. Smith, Senior Counsel
and
Director, Women in Prison Project
April, 1998

NATIONAL WOMEN’S LAW CENTER
11 Dupont Circle, NW • Suite 800
Washington, DC 20036
(202) 588-5180 • FAX (202) 588-5185
www.nwlc.org

Acknowledgments
An End To Silence: Women Prisoners’ Handbook on Identifying
and Addressing Sexual Misconduct is the culmination of several years
of work by staff at the National Women’s Law Center, the United
States Department of Justice Federal Bureau of Prisons and National
Institute of Corrections, many law students and most importantly,
innumerable women prisoners who shared their experiences, gave
feedback on drafts and asked and answered the important questions
about why sexual misconduct exists in prison and offered strategies
for preventing misconduct.
The following individuals at the National Women’s Law Center provided invaluable support and assistance in the development and editing of this Handbook: Marcia Greenberger and Nancy Duff Campbell
(Co-Presidents); Deborah Brake, Joanna Grossman and Kathie
Donnelly (Center Attorneys); and Laura Cutiletta, Christina Davis,
Marelisa Fabrega, Kristin Flynn, Kristin Holman, Jessica Jackson and
Heather Lamberg (law clerks). Kimberly Harris, Shauna Helton and
Alvin Stith (administrative assistants) all provided key technical support in typing and formatting the Handbook.
In addition, the Handbook benefitted tremendously from the comments
of our reviewers: Aurie Hall and Jonathan Smith of the D.C. Prisoners’
Legal Services Project; Andie Moss of the National Institute of
Corrections; and Theresa Hunt Katsel of the Federal Bureau of Prisons.
Drs. Elaine Carmen of the Brockton Multi-Service Center and Shelley
Neiderbach of Crime Victims’ Counseling Services Inc. added important information on the effects of trauma.
The National Women’s Law Center would also like to express its gratitude and appreciation to the foundations* which provided generous
funding for this project:

*The information and opinions contained in this Handbook do not necessarily represent the views or
positions of the sponsoring organizations or foundations.

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The Morris and Gwendolyn Cafritz Foundation
The Center on Communities, Crime and Culture of the Open Society
The D.C. Bar Foundation
The Educational Foundation of America
The Ford Foundation
Eugene and Agnes Meyer Foundation
The Public Welfare Foundation
Women’s Law and Public Policy Fellowship Program
Finally, we would like to acknowledge the extraordinary and courageous assistance of incarcerated women, whose challenging questions
and insight helped this publication address the real concerns of incarcerated women. In particular, women prisoners in the District of
Columbia reviewed several versions of the Handbook and participated
in numerous focus groups over the course of its development and production. Women prisoners at the Maryland Correctional Institution for
Women in Jessup, Maryland raised important questions that strengthened the content of the Handbook.
An End to Silence addresses rapidly developing areas of law and practice in the United States and its information is current as of April,
1998. Both law and policies may change. We will remain abreast of
these changes and encourage you to contact us with new information
as it becomes available.
Brenda V. Smith, Senior Counsel
National Women’s Law Center

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Table of Contents
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Recognizing Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Physical and Emotional Effects of Sexual Misconduct . . . . . . . . . . . .11
Third Party Victims of Sexual Misconduct . . . . . . . . . . . . . . . . . . . . .14
What You Can Do If It Happens To You . . . . . . . . . . . . . . . . . . . . . . .15
Take Informal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Pursue Formal, Administrative Action . . . . . . . . . . . . . . . . . . . . . .16
Take Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Other Things To Consider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Seeking Medical Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Questions and Answers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Appendix
Attorneys General In Your State . . . . . . . . . . . . . . . . . . . . . . . . . . .34
50-State Survey of Criminal Laws . . . . . . . . . . . . . . . . . . . . . . . . . .46
Notes and Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
Order Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69
Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71

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Overview
The National Women’s Law Center is a non-profit organization that
has been working since 1972 to advance and protect women’s legal
rights. The Center focuses on major policy areas of importance to
women and their families including education, employment, reproductive rights, health, family support and income security, with special
attention given to the concerns of low-income women.
As a legal arm of the women’s movement, the Center has litigated
ground-breaking cases and filed briefs in landmark Supreme Court
decisions; advocated before state and federal policymakers to shape
legislation and policies affecting women’s lives; and educated the public about issues important to women. The Center’s legal expertise make
it an important contributor to girls’ and women’s progress at school, at
work and in almost every aspect of their lives.
In 1990, the Center launched the Women in Prison Project to address
the serious problems confronting women prisoners. The Project provides legal, counseling and advocacy services to over 1,500 women
incarcerated by the District of Columbia Department of Corrections
and the Federal Bureau of Prisons.
In addition to its local direct services work, the Center works on the
national level conducting public education and training, providing
technical assistance to policymakers and advocates, developing
resources and disseminating information on issues affecting women in
conflict with the law.
In 1993, the Center’s work with women prisoners prompted it to file
class action litigation on behalf of all women incarcerated by the
District of Columbia. In 1994, Judge June Green, of the U.S. District
Court for the District of Columbia, found that women prisoners were
subjected to sexual harassment and provided with programs and opportunities inferior to those provided to male prisoners. The Court found
violations of the U.S. Constitution, federal statutory law and District
of Columbia law and ordered broad remedial relief in the areas of sexual misconduct, obstetrical and gynecological care, education and voca-

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tional programs, and environmental safety. While portions of the
Court’s order were overturned by an appellate court, the Court’s findings with regard to sexual misconduct remain.
In light of the Court’s decision and the emergence of the issue of sexual misconduct nationally, the Center engaged in a three-pronged strategy which included enforcement of the Court’s order, technical assistance and training to women prisoners and corrections officials, and
the development of materials for both prisoners and corrections workers. We believe that addressing sexual misconduct is at the core of
assuring women’s safety in prison and that only a coordinated strategy
that involves law and policy development, training of prisoners and
corrections workers, and public education will reduce the occurrence of
sexual misconduct.

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RECOGNIZING MISCONDUCT
Which of the following do you think is sexual misconduct?
❖
A prison guard walks in on you while you are changing your clothes and tells
you that you are “what he likes.”

❖
The food service worker tells you he can get you cigarettes if you “flash” him.

❖
You fall in love with a staff member and agree to get married as soon as you
are released. You begin a sexual relationship with him while in prison.

❖
The chaplain comforts you when you receive bad news from home. She keeps
asking you to come by and see her even when nothing is wrong. She begins
to write you letters telling you how much she loves you.

❖
You were an exotic dancer before being incarcerated. Three officers on the
midnight shift pay you to dance for them.

❖
A correctional officer locks you in a storage room and rapes you.

All of the Above are Examples of Sexual Misconduct
Sexual misconduct is:

❖ any sexual advance by staff members, agents or volunteers of the
corrections department
❖ requests for sexual favors by staff members, agents or volunteers of
the corrections department

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❖ verbal or physical conduct of a sexual nature in prison toward a
prisoner by staff members, agents or volunteers of a corrections
department
SEXUAL MISCONDUCT BY CORRECTIONS STAFF AGAINST A PRISONER IS PROHIBITED IN ALL STATES BY EITHER DEPARTMENTAL
POLICY AND/OR LAW.

Sexual harassment of prisoners is a form of sexual misconduct1
Sexual misconduct happens in prison any time a staff member, agent
or volunteer of a corrections department makes a sexual advance or
engages in sexual contact with a prisoner, even if the prisoner consents.
Sexual misconduct does not have to be sex. It can include:
❖ touching
❖ kissing
❖ correctional staff walking in on you unannounced while you
are dressing
❖ inappropriate body or cavity searches not justified by a legitimate
institutional security need
❖ inappropriate comments about your personal appearance
❖ language of a sexual nature

1/In this pamphlet, we use the terms sexual misconduct, sexual harassment, and sexual abuse. All of
these terms refer to improper conduct of a sexual nature directed at prisoners. This conduct can range from
acts that violate departmental regulations to those that violate a particular state or federal law. Sexual
harassment, as it relates to prisoners, is any sexual advance, welcome or not, by a staff member, agent or
volunteer of a corrections agency that creates a hostile environment or is either tied to promises or special
benefits (cigarettes, candy, better work assignments, etc.) or punishments (administrative segregation, poor
job assignments, revoking telephone privileges, etc.). In this pamphlet, we only address staff-inmate
sexual misconduct.
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PHYSICAL AND EMOTIONAL
EFFECTS OF
SEXUAL MISCONDUCT
The physical and emotional effects of sexual misconduct
can be devastating for a woman.
❖
She may contract the HIV virus or other sexually-transmitted diseases.

❖
She may become pregnant.

❖
She may feel trapped in her situation and powerless to change it.

❖
She may suffer emotional trauma.

These are repercussions that will affect her long after
she has left prison.

Contracting HIV or Other Sexually-Transmitted Diseases
In some prison systems, such as New York, New Jersey, Connecticut
and the District of Columbia, nearly 1 out of 4 women prisoners is
HIV-positive. You cannot assume correctional employees are practicing
safer sex. Correctional employees who are having sex with prisoners
may not use a condom and may have sex with several partners both
inside and outside of the prison. This creates a fertile breeding ground
for HIV and other sexually-transmitted diseases.

SOME FACTS ABOUT
HIV AND STDS

♦ Unlike in the general population, the rate of HIV infection
among women in prison is
higher than that of men.

♦ A 1994 study of prisons found
that the overall rate of AIDS
was 464 cases per 100,000
among men and 705 cases
per 100,000 among women.
The overall rate of AIDS
among men in the United
States is 95 cases per 100,000
and 40 cases per 100,000
among women. Women and
people of color, however, are
the fastest growing population of people living with
HIV and AIDS.

♦ The incidence of HIV infection
was even higher in city/county
jail systems, where the rate of
infection was 706 cases per
100,000 inmates overall.

♦ Among the inmates who are
HIV positive, 43% are AfricanAmerican, 38% are White,
and 13% are Hispanic.

♦ The incidence of other
sexually-transmitted diseases
(gonorrhea, syphilis, and
chlamydia) is also higher
among women in prison
than men.

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Becoming Pregnant
Having sex puts you at risk of becoming pregnant. Becoming pregnant
while in prison is stressful for several reasons:
❖ You may be afraid to tell anyone about the pregnancy and afraid to
seek medical attention.
❖ Prenatal care in many prisons is inadequate and it may be difficult
to receive the medical care and nutrition necessary to have a
healthy baby.
❖ There are few prisons that will allow you to keep your baby with
you. More often, women prisoners must place their newborns for
adoption, foster care or with family members soon after the child
is born.
❖ If you decide to terminate the pregnancy it can be very difficult to
obtain an abortion while in prison. Many states do not allow government funds to be used to pay for abortions except in the case of
rape, incest or where the mother’s health is threatened. More often
than not, women prisoners must arrange to terminate a pregnancy
with a private agency and pay for the procedure with their own
money.
❖ You may be punished for becoming pregnant, be denied parole,
receive a disciplinary report, lose work or visiting privileges, or be
charged with a separate criminal offense.2

Emotional Trauma
A woman who is involved with a correctional staff person can experience a range of feelings about the relationship. If she believes the relationship meets her emotional or financial needs, she may feel a sense
of power. For women who feel coerced and pressured by staff to have
these relationships, they may feel they are helpless and have lost control of their lives. In both circumstances, women can feel fear about
being caught and shame at being involved with a staff member.

2/In Arizona, Delaware and Nevada, prisoners who voluntarily engage in sexual contact with corrections
employees can be charged with a separate criminal offense.
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Women may also:
❖ become depressed
❖ begin using alcohol and other drugs
❖ have suicidal and/or homicidal feelings
❖ have panic attacks
❖ be unable to sleep
❖ have fits of rage and anger
WOMEN WHO EXPERIENCE THESE FEELINGS RELATED TO SEXUAL
MISCONDUCT SHOULD GET COUNSELING WHETHER OR NOT
THEY DECIDE TO REPORT THIS CONDUCT!

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THIRD PARTY VICTIMS OF
SEXUAL MISCONDUCT
WHAT WOMEN
PRISONERS THINK

Sexual misconduct hurts ALL women, both women prisoners and
women correctional employees. Even women who are not being
sexually mistreated directly are harmed by sexual misconduct.

♦ In focus groups women
inmates were asked, “Why
are women vulnerable to sexual abuse in prison?” They
responded:

HOW?

♦ “Sex, just like drugs is a 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.”

❖
Because some correctional employees believe that all women, both women
prisoners and employees, are available for sex, and treat them as such.

♦ “If we had more jobs in here,

❖

we wouldn’t have to have sex
just to get a candy bar, some
street food, or a perm.”

Because sexual misconduct erodes the boundaries that are necessary
for prison security and other functions such as rehabilitation and
program participation.

♦ “Cops should act like cops.
They should stay in their
place so that we can stay in
ours.”

❖
Because women who do not participate in sexual talk or sexual relationships
may be penalized by being denied the opportunities or privileges that
women who participate in that conduct receive.

♦ “A lot of these women have
low self-esteem. They don’t
think a lot of themselves so
they’ll settle for a soda, candy
or some cigarettes.”

♦ “A lot of the girls that the
officers bother are slow (have
mental health problems).
They can prey on these
women because they don’t
know any better.”

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IF YOU FEEL THAT YOU HAVE BEEN HARMED BY SEXUAL MISCONDUCT, EVEN IF YOU HAVE NOT EXPERIENCED IT DIRECTLY, YOU
MAY BE A THIRD PARTY VICTIM. AS A THIRD PARTY VICTIM, YOU
CAN ALSO REPORT THE MISCONDUCT AND EXPECT A REMEDY.

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WHAT YOU CAN DO
IF IT HAPPENS TO YOU
You Can Take Steps to Prevent or Stop
Sexual Misconduct!
Sexual misconduct by corrections staff against a prisoner is prohibited
in all states by departmental policy and/or law. However, this type of
behavior will continue unless YOU ACT.

DEPARTMENT OF
CORRECTIONS POLICIES
( DOC ) REGARDING
SEXUAL MISCONDUCT

♦ All DOCS address sexual misconduct of correctional staff
in their administrative policies.

♦ The DOCS of the District of

There are several things you can do.

Take Informal Action
❖ If you are comfortable doing it, tell the staff person that his/her
advances are offensive and are not welcome.
❖ Try to separate yourself from the staff person. This can be difficult.
You should first request that the staff person be moved or reassigned so that you do not have any contact with him or her. If
your request is denied, you may want to consider being placed in
protective custody. You may also have the option of requesting a
move to another institution, but you must consider the risk of
losing your programming placement, and the possibility of moving
farther away from your family.
❖ Tell a corrections staff member you trust about the incident. In
many states, Department of Corrections personnel are required to
file written reports regarding any sexual misconduct that they
witness or that is brought to their attention. These reports can
lead to an investigation of the sexual misconduct and disciplinary
proceedings against the perpetrator. In many states, Department of
Corrections personnel who report the misconduct are required to
keep it confidential. However, information about sexual misconduct is often leaked. Therefore, choose the staff member you
confide in wisely.

Columbia, Delaware, Georgia
and Illinois have developed
separate policies specifically
addressing sexual misconduct
between staff and inmates.

♦ Many agencies discipline
inmates found to be
voluntarily involved in
sexual misconduct.

♦ Many agencies dismiss staff
involved in serious, substantiated sexual misconduct
incidents. Other actions
include suspension, oral
reprimands, staff transfer
and staff resignation.

♦ Agencies generally take
no action toward staff or
inmates when allegations of
misconduct are found to be
unsubstantiated—the agency
is unable to either prove
or disprove misconduct
occurred. However, most
agencies will discipline
staff and inmates who make
false allegations of sexual
misconduct.

♦ Agencies generally will
protect inmates from
retaliation by staff or others
even if they do not find or
cannot prove that sexual
misconduct occurred.

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REMEMBER, TAKING INFORMAL ACTION IS OPTIONAL. IF YOU FEEL
YOU ARE IN PHYSICAL DANGER OR IF THE STAFF PERSON HARASSING YOU WILL NOT STOP HIS/HER CONDUCT AFTER YOU HAVE
ASKED HIM/HER TO STOP, YOU SHOULD TAKE A MORE FORMAL
APPROACH.

Pursue Formal Administrative Action
❖ File a formal complaint with the institution.
Your institution should have an inmate grievance process which
allows inmates to file a formal complaint about prison-related matters. Use this process to report the sexual misconduct.
Try to keep copies of any forms that you send or receive in a safe place.
Having detailed and accurate records of the conduct, and your attempts
to stop it, will help during an investigation of the matter. Remember that
there is little privacy in prison. Corrections staff or other inmates may have
access to your belongings. Therefore, use your best judgment when deciding
whether, where, and how to keep your records. If you feel that you will not
be able to keep your records confidential in the prison, you may want to
consider mailing copies of these records to a trusted friend or relative outside
the prison for safe-keeping, or to an advocate or attorney whom you know
and trust.
❖ Write directly to the warden of your institution or the Director of
your Department of Corrections.
You may report sexual misconduct by writing directly to the warden
of your facility or the Director of your Department of Corrections.
You can send your letter either through the institutional or regular
mail. Be sure to write “Legal Mail” and “Emergency-Confidential”
across the top of your letter and on the envelope to ensure its confidentiality. Once the misconduct is reported, the Department of
Corrections should conduct an investigation. It should be confidential but this may not always be the case. The purpose of the investigation is to determine the nature and extent of the misconduct. You
may be asked to testify at a hearing or give a statement. Ask
whether you are allowed to have an attorney present. If you are
allowed to have legal representation, make every effort to locate an
attorney who will appear on your behalf. Once the investigation is
completed, you should follow up to find out the result. If the investigation finds sexual misconduct occurred, the employee could face

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punishment including a reprimand, suspension or termination and
in some states, criminal prosecution. Follow the procedures that the
institution has set forth with regard to reporting and resolving misconduct. Not only is this the most effective way of dealing with
the problem, but you may be prohibited from bringing an action
in court later if you have not used these procedures to try and
resolve the problem.
Remember that sexual misconduct investigations are supposed to be confidential. But the reality is that many are not. Information may be leaked by both
corrections staff and the inmate involved. Many corrections departments
punish breaches of confidentiality as a separate violation of their sexual misconduct policy. Use your best judgment about how to report the misconduct.
Use the method most likely to protect your privacy when informing the
Department of Corrections of your complaint and YOU should remember to
keep the information confidential, so that YOU are not responsible for
breaches of confidentiality.

Take Legal Action
❖ You can pursue a remedy under state or federal criminal laws.

STATE LAWS PROHIBITING
SEXUAL RELATIONS
BETWEEN INMATES AND
CORRECTIONS STAFF

♦ Thirty-five states, the District
of Columbia, and the federal
government have laws imposing criminal sanctions on corrections staff members who
have sexual relations with
inmates. Thirteen of these
state statutes specifically
provide that consent is not
a defense to the conduct.

♦ Nine state statutes, the
District of Columbia and
the federal government
specifically provide that
marriage is a defense to a
charge of sexual misconduct.

♦ Three state statutes—Arizona,

Thirty-five states, the District of Columbia and the federal government have criminal laws prohibiting the sexual abuse of prisoners.
These laws are specific to each state so both the definition of sexual misconduct and the penalty imposed for violation of the law will
vary from state to state.3
In addition, if you decide to come forward with a complaint and
there is no criminal law specifically prohibiting sexual misconduct
between corrections staff and inmates, a prosecutor may apply the
general rape laws of the state so that you may get relief.
❖ You can pursue a remedy under state civil laws.

Delaware and Nevada—
specifically provide that the
prisoner, as well as the staff
member, will be punished
for having consensual sexual
relations.

♦ Even if a state does not have
a statute that specifically covers sexual activity in prisons,
state rape laws apply to sexual assaults which occur in
prison. So, a corrections
staff person can be convicted
of rape if he has sexual relations with an inmate against
her will.

You may have a cause of action under state civil laws for intentional infliction of emotional distress, assault and/or battery, or negligence. The claims will depend on the facts of your situation and
state laws. Be aware also that state statutes of limitation require
that you file claims within a certain period of time. The time period for filing claims depends on state law.

3/See Appendix for Fifty-State Survey of Criminal Laws Prohibiting Sexual Misconduct Against Prisoners.
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❖ You can pursue a remedy under federal law.
Sexual misconduct in prison is prohibited under federal law. A prisoner who has been subjected to sexual misconduct in prison may
have a claim or cause of action pursuant to: (1) the Eighth
Amendment to the United States Constitution, which prohibits
cruel and unusual punishment; (2) the Fourteenth Amendment to
the United States Constitution which mandates equal protection
under the law; (3) the gender-motivated violence provision of the
Violence Against Women Act of 1994; or (4) Title IX of the
Education Amendments of 1972, which prohibits sexual harassment in educational programs or activities that receive federal
funds.
❖ Seek legal advice.
Whether you decide to take legal action in state or federal court,
seek advice and legal assistance from organizations who might prosecute these cases or who assist prisoners in your area. If you decide
to file a lawsuit, few large national organizations other than the
NAACP or the ACLU provide legal assistance to women prisoners
on this issue. However, most states have local organizations that
can provide legal assistance to women who have been subjected to
sexual abuse. Contact organizations such as your state’s bar association, local women’s advocacy groups or area law schools. (See also
Resource Section on pg. 25).

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OTHER THINGS TO CONSIDER
Retaliation By Prison Staff
Corrections staff may try to intimidate you to prevent you from filing a
complaint or from participating in an investigation of sexual misconduct. Most corrections departments prohibit any individual from interfering with an investigation, including intimidation or retaliation
against witnesses. If you believe that you are being denied privileges, or
are being unfairly transferred or punished in some way because you
filed a complaint or assisted in the investigation of a complaint, you
should report this to the warden or to an investigative agency.

Gathering A Support System
The process of dealing with sexual misconduct, whether or not you
decide to formally report it, is difficult at best. It is important that you
get support during this time.
Here are some suggestions:
❖ Tell a trusted friend inside the prison community.
Find other prisoners whom you trust and with whom you can talk
about your experiences. Share stories and ideas on how to deal with
the misconduct. This support will help you and other prisoners in
similar situations. Keep in mind that other prisoners could use this
information to better their own situation. Therefore, it is extremely
important that you only confide in those people you know you can
trust.

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❖ Tell a trusted friend outside the prison community.
A friend or family member outside the prison community can help
you decide what to do, including notifying the prison about the
misconduct and requesting that the prison respond appropriately.
The individual can also be used to corroborate your account of the
misconduct should the claim be investigated.
❖ Go to your community or other agencies for help or have your family
and friends go on your behalf.
For example, both C.U.R.E. (Citizens United for the
Rehabilitation of Errants) and F.A.M.M. (Families Against
Mandatory Minimums) are national groups with local chapters.
Both assist the families of prisoners to address problems their incarcerated family member may be facing. You can also obtain a copy
of the ACLU (American Civil Liberties Union) National Prison
Project Resource Guide which may provide some valuable help.
You may call or write these organizations as follows:

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ACLU National Prison Project
1875 Connecticut Avenue, NW, Suite 410
Washington, DC 20009

202/234-4830

C.U.R.E.
P.O. Box 3210
National Capital Station
Washington, DC 20001

202/789-2126

F.A.M.M.
1612 K Street, NW, Suite 1400
Washington, DC 20006

202/822-6700

National Center for Women in Prison
c/o D.C. Prisoners’ Legal Services Project
1400 20th Street, NW, Suite 117
Washington, DC 20036

202/775-0323

SEEKING MEDICAL HELP
You must seek medical help if:
❖ you may be pregnant
❖ you have been raped or sexually assaulted
❖ you may have been exposed to HIV or other sexually-transmitted
diseases

Pregnancy
If you become pregnant while in prison, whether or not it is the result
of sexual assault, it is very important that you receive medical care.
Remember, only you can decide what is in your best interest—carrying
the pregnancy to term, adoption, foster care or termination. Do not be
pressured by anyone—family members, friends, other prisoners, the
biological father or prison officials—to do what is not in your best
interest.
First, if you decide to continue the pregnancy, proper prenatal care is
essential for your health and that of the fetus. This is especially true for
women who are in high risk groups, such as those who have a history
of drug or alcohol abuse, have HIV or other sexually-transmitted diseases, or suffer from poor nutrition.
Second, if you do not wish to carry the fetus to term you can receive
counseling on other options such as adoption, foster care placement or
terminating your pregnancy. In most communities, organizations exist
to provide you with information about your options. You can contact
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at your institution. For example, you can contact your local Planned
Parenthood or the National Abortion Federation about terminating an
unwanted pregnancy.
For information about adoption or foster care placement you can contact your local department of human services or local private social service agencies, such as Family and Child Services, Catholic Charities or
Jewish Social Services.

Rape and Sexual Assault
If you have been raped or sexually assaulted, you must get medical
attention immediately. You should request to be taken to a hospital
where a “rape kit” can be performed. During a rape kit examination, a
doctor performs a pelvic examination and takes samples of hair and
semen which the perpetrator may have left during the assault. These
samples often provide crucial evidence in proving that a sexual assault
occurred and in identifying the assailant. That is why it is especially
important that you have a rape kit in a hospital, where the medical
staff is accustomed to performing it.
Although it may be difficult, it is important that you do not shower
after the assault. Showering may wash off the hair and semen evidence.
Also, bring the clothes and underwear that you had on at the time of
the assault to the hospital with you along with any other items that
may have come into contact with the perpetrator’s bodily fluids—
blood, semen, or saliva. This includes any towels the perpetrator may
have used to wipe himself, or you, and condoms if they were worn during the assault. The doctors may be able to take hair and semen samples from all of these items. Technology is such that even small traces
of blood, semen, vaginal fluids or saliva can yield information that can
identify the source of these fluids.

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If you have been raped or sexually assaulted, you should always be tested for pregnancy, HIV, and other sexually-transmitted diseases. Even if
you test negative for HIV, you should request that you be re-tested six
months later, since it may take that long for a test to detect the HIV
antibodies in your blood.

Sexually-Transmitted Diseases
A sexually-transmitted disease, if left untreated, can have very serious
consequences. It can cause sterility or otherwise negatively affect your
health. HIV infection, for which there is no cure, decreases the body’s
ability to fight infection and makes a person susceptible to a large
number of illnesses. While there is no cure for HIV there are new medical treatments that can greatly increase both the quality and length of
the lives of those infected with the virus. Proper medical care can, in
some cases, cure a sexually-transmitted disease. If no cure is available,
it can often reduce the effects of the disease. Therefore, it is very
important to get medical care as soon as possible.

Counseling
If you have been subject to sexual misconduct, you may want to seek
professional counseling or mental health advice. Many prisons offer
mental health services for victims of sexual abuse, and some offer
counseling sessions. There are also community-based counseling services such as local rape crisis centers. If you cannot obtain mental
health services, talk about your experiences with a trusted friend, relative, or spiritual advisor. Talking with someone helps you explore your
feelings about the harassment and is an important step in gaining control over your life.

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QUESTIONS AND ANSWERS
Q. Why is all sexual conduct between correctional staff and inmates
considered misconduct?
A. Because sexual contact between staff and inmates is an abuse of
power. Correctional staff have ultimate power in corrections settings, and they often control the way a prisoner serves her time.
One way in which correctional staff may abuse their power is to
coerce, threaten or seduce women into giving them sexual favors.
Women may feel they have to comply with these demands in order
to survive in prison or protect their safety.
Q. Are some women in prison more vulnerable to sexual misconduct
than others?
A. Yes. Women who are especially vulnerable to sexual misconduct are
likely to fall into one or more of the following categories:
❖ Women with Addictions
More than 80% of women prisoners suffer from an addiction to
alcohol, drugs or nicotine and sometimes all three. Because these
items are difficult to get in prison, they become highly-valued.
Correctional employees can use women’s addiction to their advantage by offering to exchange alcohol, tobacco or other drugs for sex
or sexual favors.
❖ Survivors of Sexual Abuse
It is estimated that 80% of women in prison and jails have been
victims of sexual and physical abuse. If a woman has been sexually
abused in the past, she is far more likely to be abused while in

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prison. A woman who has been abused before may feel powerless to
stop abuse in prison. She may accept the sexual abuse as an unwelcome, but normal, part of life. She may believe that she either
deserves the abuse or that the harasser will grow to care for her if
she allows it to continue.
❖ Women With Mental Health Issues
Often, a woman who suffers from a mental illness does not fully
realize what is happening to her when she is being sexually abused.
When she does realize it, she may also have a more difficult time
reporting the abuse or being believed by staff.
❖ Women with Little Experience in the Criminal Justice System
A woman entering the prison system for the first time may feel
intimidated by other prisoners and the corrections staff. She may
feel isolated, and when subjected to sexual harassment, may not
know where to turn. She may not understand how to report incidents of sexual misconduct.
Q. What if I am in control of the relationship or am receiving some
benefit from it? Does that make it OK?
A. No. Remember, even if you feel you can control the relationship
and end it when you want to, it is the correctional employee, not
you, who is in charge. Often, a woman finds that once a sexual relationship starts, she can’t end it even if she wants to. The authority
that correctional employees have in prison carries over into the
sexual relationship. So if a prisoner tries to end the relationship
or threatens to report a correctional employee, the correctional
employee can make things particularly difficult for her. The
employee can:
❖ change her work assignments
❖ threaten her with a transfer or disciplinary action
❖ give her a negative parole recommendation

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❖ interfere with her visits
❖ threaten or commit physical violence against her
❖ harass and intimidate her
Q. What if I want to have sex with a correctional employee? Is this
sexual misconduct?
A. Yes. Not only is consensual sex with a correctional employee sexual
misconduct, but it is also against most departmental policies and
state and federal law. If prison officials discover that you are having
sex with a correctional employee, you could face disciplinary
charges and in Arizona, Delaware and Nevada could also be
charged with a separate criminal offense.
Q. Do some women invite sexual abuse?
A. No. Sometimes people blame women for sexual misconduct because
they behave or dress in what others believe is a seductive or inviting way. It is wrong for a corrections staff member to sexually harass
a prisoner regardless of how an inmate acts or dresses. Correctional
staff are responsible for their own actions and for setting and
enforcing appropriate boundaries between staff and inmates.
Q. What if a female staff member is making sexual advances? Is that
also sexual misconduct?
A. Yes. Sexual misconduct is about power and a female staff member
can abuse that power in the same way as her male counterparts. A
female staff member who coerces or forces you into granting sexual
favors, touches you inappropriately, or makes inappropriate comments is also committing sexual misconduct. You should use the
same procedure to report sexual misconduct by a female staff member as you would that of a male staff member.

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RESOURCES
The next section provides additional resources that may be helpful in
obtaining more information about state laws or in reporting sexual misconduct in prison.

The Criminal Laws In Your State
In addition to the civil remedies discussed earlier, you may also decide
that you want to pursue criminal prosecution of the corrections staff
person. In the Appendix section of this guide is a Fifty-State Survey of
criminal laws which prohibit sexual contact between prisoners and corrections staff. Even if your state does not have a law which specifically
covers sexual misconduct in prison, you can still use your state’s general sexual assault laws. In many states, even if you do not want to pursue
the action, the institution can independently decide to seek criminal
prosecution of a staff member. The following is some basic information
about state criminal laws prohibiting the sexual abuse of prisoners:
❖ 35 states, the District of Columbia, and the federal government
have laws specifically criminalizing sexual abuse in prisons.4
❖ 28 states and the District of Columbia define sexual misconduct in
prisons as a felony.5
❖ 4 states define sexual misconduct in prisons as a misdemeanor.6
❖ 3 states and the federal government define sexual misconduct in
prisons as either a felony or a misdemeanor depending on the
nature and severity of the assault.7
4/Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode
Island, South Carolina, South Dakota, Texas, Wisconsin, and Wyoming.
5/Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas,
Louisiana, Maine, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, North
Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Wisconsin, and
Wyoming.
6/Arkansas, Iowa, Michigan, and North Dakota.
7/California, Connecticut, and New York.
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❖ 3 states criminalize the conduct of both the prisoner and the corrections employee8 in “consensual” cases of sexual misconduct.
❖ 13 states and the District of Columbia specifically provide that
even if a prisoner “consents” to or voluntarily engages in sex with
a corrections staff person, the staff member is criminally liable.9
❖ 9 states, the District of Columbia and federal government provide
that marriage is a defense to a charge of sexual misconduct.10
❖ 15 states have no laws criminalizing sexual misconduct in prisons.11
States that have enacted laws criminalizing the sexual abuse of prisoners
have done so for several reasons. First, these states view prisoners as a
vulnerable population—similar to the elderly, mentally ill or mentally
retarded—and view prison staff as owing them a particular duty of care.
Second, because prisoners often trade sex for food, drugs or money, it
could appear to be consensual and therefore outside the scope of traditional sexual abuse statutes.

The Attorney General In Your State
If you have been subjected to sexual misconduct in a state that has a
specific statute prohibiting sexual misconduct in prison and are having
difficulty pursuing your claim or obtaining information about the law,
you should write to the Attorney General of your state. If you are in a
federal correctional facility you should contact the Office of Inspector
General, which has oversight of the Federal Bureau of Prisons. Included
in the Appendix section of this guide are the addresses for the Attorneys
General in each state. Because Attorneys General are elected officials,
you should contact their office and ask them for the name of the current Attorney General. A letter to the Attorney General in your state
or the Office of Inspector General will be most effective if it includes
a detailed account of the misconduct, as well as the steps you have
taken to pursue your claim. Remember to keep a copy of the letter
for your records.

8/Arizona, Delaware, and Nevada.
9/Arkansas, California, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Mississippi, Nevada, New
Hampshire, New York, and North Carolina.
10/Alaska, Arizona, Florida, Georgia, Illinois, Kansas, Maine, Ohio and Oklahoma.
11/Alabama, Kentucky, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Oregon,
Pennsylvania, Tennessee, Utah, Vermont, Virginia, Washington, and West Virginia.
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Attorney General of Alabama
Office of the Attorney General
State House
11 South Union Street
Montgomery, AL 36130
Attorney General of Alaska
Office of the Attorney General
Post Office Box 110300
Diamond Courthouse
Juneau, AK 99811-0300
Attorney General of American Samoa
Office of the Attorney General
Post Office Box 7
Pago Pago, AS 96799
Attorney General of Arizona
Office of the Attorney General
1275 West Washington Street
Phoenix, AZ 85007
Attorney General of Arkansas
Office of the Attorney General
200 Tower Building, 323 Center Street
Little Rock, AR 72201-2610

ALASKA

AMERICAN SAMOA

ARIZONA

ARKANSAS

ADDRESS

ALABAMA

STATE

(501) 682-2007

(602) 542-4266

(684) 633-4163

(907) 465-3600

(334) 242-7300

PHONE NO.

Attorneys General in Your State

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ADDRESS

Attorney General of California
Office of the Attorney General
1300 I Street, Suite 1740
Sacramento, CA 95814
Attorney General of Colorado
Office of the Attorney General
Department of Law
1525 Sherman Street
Denver, CO 80203
Attorney General of Connecticut
Office of the Attorney General
55 Elm Street
Hartford, CT 06141-0120
Attorney General of Delaware
Office of the Attorney General
Carvel State Office Building
820 North French Street
Wilmington, DE 19801
District of Columbia Corporation Counsel
Office of the Corporation Counsel
441 4th Street, NW
Washington, DC 20001
Attorney General of Florida
Office of the Attorney General
The Capitol
PL 01
Tallahassee, FL 32399-1050

STATE

CALIFORNIA

COLORADO

CONNECTICUT

DELAWARE

DISTRICT OF
COLUMBIA

FLORIDA

(904) 487-1963

(202) 727-6248

(302) 577-3838

(860) 566-2026

(303) 866-3052

(916) 324-5437

PHONE NO.

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Attorney General of Guam
Office of the Attorney General
Judicial Center Building
120 West O’Brien Drive
Agana, GU 96910
Attorney General of Hawaii
Office of the Attorney General
425 Queen Street
Honolulu, HI 96813
Attorney General of Idaho
Office of the Attorney General
Statehouse
Boise, ID 83720-1000
Attorney General of Illinois
Office of the Attorney General
James R. Thompson Center
100 West Randolph Street
Chicago, IL 60601

HAWAII

IDAHO

ILLINOIS

Attorney General of Georgia
Office of the Attorney General
40 Capitol Square, SW
Atlanta, GA 30334-1300

GEORGIA

GUAM

ADDRESS

STATE

(312) 814-2503

(208) 334-2400

(808) 586-1282

(671) 475-3324

(404) 656-4585

PHONE NO.

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Attorney General of Iowa
Office of the Attorney General
Hoover State Office Building
Des Moines, IA 50319
Attorney General of Kansas
Office of the Attorney General
Judicial Building
301 West Tenth Street
Topeka, KS 66612-1597
Attorney General of Kentucky
Office of the Attorney General
State Capitol, Room 116
Frankfort, KY 40601

IOWA

KANSAS

KENTUCKY

MAINE

Attorney General of Maine
Office of the Attorney General
State House Station Six
Augusta, ME 04333

Attorney General of Louisiana
Office of the Attorney General
Department of Justice
Post Office Box 94095
Baton Rouge, LA 70804-4095

Attorney General of Indiana
Office of the Attorney General
Indiana Government Center South
Fifth Floor
402 West Washington Street
Indianapolis, IN 46204

INDIANA

LOUISIANA

ADDRESS

STATE

(207) 626-8800

(504) 342-7013

(504) 696-5300

(913) 296-2215

(515) 281-5164

(317) 233-4386

PHONE NO.

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Attorney General of Massachusetts
Office of the Attorney General
One Ashburton Place
Boston, MA 02108-1698
Attorney General of Michigan
Office of the Attorney General
Post Office Box 30212
525 West Ottawa Street
Lansing, MI 48909-0212
Attorney General of Minnesota
Office of the Attorney General
State Capitol
Suite 102
St. Paul, MN 55155
Attorney General of Mississippi
Office of the Attorney General
Department of Justice
Post Office Box 220
Jackson, MS 39205-0220

MICHIGAN

MINNESOTA

MISSISSIPPI

Attorney General of Maryland
Office of the Attorney General
200 Saint Paul Place
Baltimore, MD 21202-2202

MARYLAND

MASSACHUSETTS

ADDRESS

STATE

(601) 359-3692

(612) 296-6196

(517) 373-1110

(617) 727-2200

(410) 576-6300

PHONE NO.

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Attorney General of Montana
Office of the Attorney General
Justice Building, 215 North Sanders
Helena, MT 59620-1401
Attorney General of Nebraska
Office of the Attorney General
State Capitol
Post Office Box 98920
Lincoln, NE 68509-8920
Attorney General of Nevada
Office of the Attorney General
Old Supreme Court Building
100 North Carson Street
Carson City, NV 89701

MONTANA

NEBRASKA

NEVADA

NEW JERSEY

Attorney General of New Jersey
Office of the Attorney General
Richard J. Hughes Justice Complex
25 Market Street, CN 080
Trenton, NJ 08625

Attorney General of New Hampshire
Office of the Attorney General
State House Annex, 25 Capitol Street
Concord, NH 03301-6397

Attorney General of Missouri
Office of the Attorney General
Supreme Court Building
207 West High Street
Jefferson City, MO 65101

MISSOURI

NEW HAMPSHIRE

ADDRESS

STATE

(609) 292-4925

(603) 271-3658

(702) 687-4170

(402) 471-2682

(406) 444-2026

(573) 751-3321

PHONE NO.

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Attorney General of New York
Office of the Attorney General
Department of Law-The Capitol
2nd Floor
Albany, NY 12224
Attorney General of North Carolina
Office of the Attorney General
Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
Attorney General of North Dakota
Office of the Attorney General
State Capitol
600 East Boulevard Avenue
Bismarck, ND 58505-0040
Attorney General of N. Mariana Islands
Office of the Attorney General
Administration Building
Saipan, MP 96950

NORTH CAROLINA

NORTH DAKOTA

N. MARIANA
ISLANDS

Attorney General of New Mexico
Office of the Attorney General
Post Office Drawer 1508
Santa Fe, NM 87504-1508

NEW MEXICO

NEW YORK

ADDRESS

STATE

(670) 664-2341

(701) 328-2210

(919) 716-6400

(518) 474-7330

(505) 827-6000

PHONE NO.

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Attorney General of Oklahoma
Office of the Attorney General
State Capitol, Room 112
2300 North Lincoln Boulevard
Oklahoma City, OK 73105
Attorney General of Oregon
Office of the Attorney General
Justice Building
1162 Court Street, NE
Salem, OR 97310
Attorney General of Pennsylvania
Office of the Attorney General
Strawberry Square
Harrisburg, PA 17120

OKLAHOMA

OREGON

PENNSYLVANIA

RHODE ISLAND

Attorney General of Rhode Island
Office of the Attorney General
150 South Main Street
Providence, RI 02903

Attorney General of Puerto Rico
Office of the Attorney General
Post Office Box 192
San Juan, PR 00902-0192

Attorney General of Ohio
Office of the Attorney General
State Office Tower
30 East Broad Street
Columbus, OH 43266-0410

OHIO

PUERTO RICO

ADDRESS

STATE

(401) 274-4400

(787) 721-7700

(717) 787-3391

(503) 378-6002

(405) 521-3921

(614) 466-3376

PHONE NO.

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ADDRESS

Attorney General of South Carolina
Office of the Attorney General
Rembert C. Dennis Office Building
Post Office Box 11549
Columbia, SC 29211-1549
Attorney General of South Dakota
Office of the Attorney General
500 East Capitol
Pierre, SD 57501-5070
Attorney General of Tennessee
Office of the Attorney General
500 Charlotte Avenue
Nashville, TN 37243
Attorney General of Texas
Office of the Attorney General
Capitol Station
Post Office Box 12548
Austin, TX 78711-2548
Attorney General of Utah
Office of the Attorney General
State Capitol, Room 236
Salt Lake City, UT 84114-0810
Attorney General of Vermont
Office of the Attorney General
109 State Street
Montpelier, VT 05609-1001

STATE

SOUTH CAROLINA

SOUTH DAKOTA

TENNESSEE

TEXAS

UTAH

VERMONT

(802) 828-3171

(801) 538-1326

(512) 463-2191

(615) 741-6474

(605) 773-3215

(803) 734-3970

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Attorney General of the Virgin Islands
Office of the Attorney General
Department of Justice
G.E.R.S. Complex
48B-50C Kronprinsdens Gade
St. Thomas, VI 00802
Attorney General of Washington
Office of the Attorney General
Post Office Box 40100
1125 Washington Street, SE
Olympia, WA 98504-0100
Attorney General of West Virginia
Office of the Attorney General
State Capitol
Charleston, WV 25305

VIRGIN ISLANDS

WASHINGTON

WEST VIRGINIA

Attorney General of Wisconsin
Office of the Attorney General
State Capitol
Post Office Box 7857
Suite 114 East
Madison, WI 53707-7857

Attorney General of Virginia
Office of the Attorney General
900 East Main Street
Richmond, VA 23219

VIRGINIA

WISCONSIN

ADDRESS

STATE

(608) 266-1221

(304) 558-2021

(360) 753-6200

(809) 774-5666

(804) 786-2071

PHONE NO.

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United States Department of Justice
Office of the Inspector General
1425 New York Ave., NW
Washington, DC 20005

Attorney General of Wyoming
Office of the Attorney General
State Capitol Building
Cheyenne, WY 82002

WYOMING

UNITED STATES

ADDRESS

STATE

(800) 869-4499

(307) 777-7841

PHONE NO.

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Alaska Stat.
§ 11.41.410
(1989 & Supp.
1996)

Alaska

Alaska Stat.
§ 11.41.420
(1989 & Supp.
1996)

No Legislation1

Statute

Alabama

State

§ 11.41.420.
Sexual assault in
the second degree

§ 11.41.410.
Sexual assault in
the first degree

Title

§ 11.41.420(a): An offender commits the
crime of sexual assault in the second degree
if (2) the offender engages in sexual conduct
with a person (B) who is entrusted to 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 Department
of Administration under AS 47.33 or by the
Department of Health and Social Services.

§ 11.41.410(a): A person commits the
crime of sexual assault in the first degree if,
(3) the defendant engages in sexual
penetration with another person (B) who is
entrusted to the defendant’s care (i) by
authority of law; or (ii) in a facility or
program that is required by law to be
licensed by the Department of
Administration under AS 47.33 or by the
Department of Health and Social Services.

Coverage

Definitions/Notes

§ 12.55.125(d):
The penalty for a class
B felony shall be
imprisonment for a
term not to exceed
10 years.

§ 11.41.420(b):
Sexual assault in the
second degree is a
class B felony.

§ 12.55.125(i):
The penalty for an
unclassified felony
shall be (1):
imprisonment for a
term of 8 years for
first time, unarmed
offense.

§ 11.41.410(b):
Sexual assault in the
first degree is an
unclassified felony.

Penalties

§ 11.41.432.
Defenses: (a) It is
a defense to a crime
charged under
AS 11.41.410(a)(3)
or AS 11.41.420
(a)(2) that the
offender is:
(1) mentally
incapable; or
(2) married to the
person and neither
party has filed with
the court for a
separation, divorce,
or dissolution of
the marriage.

Defenses

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

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Arkansas

Arizona

State

Ark. Code Ann.
§ 5-14-109
(Michie 1987 &
Supp. 1995)

[Enacted 7/20/96]

Ariz. Rev. Stat.
Ann. §13-1419
(1997)

Statute

§ 5-14-109.
Sexual abuse in
the second degree

§13-1419.
Unlawful sexual
conduct;
correctional
employees;
prisoners;
classification;
definition

Title

§ 5-14-109: Sexual abuse in the second
degree: (a) A person commits sexual
contract with the Department of
abuse in the second degree if: (3) He or
she, being employed directly or through
Corrections or the Department of
Community Punishment, engages in sexual
contact for the purpose of sexual
gratification with any person in the custody
of the Department of Correction or the
Department of Community Punishment,
the consent of the person in custody
notwithstanding.

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 contact by engaging in oral
sexual contact, sexual contact, or sexual
intercourse with a person who has custodial
responsibility for the prisoner or offender.

§13-1419.A: A person who has custodial
responsibility for a prisoner or an offender
who is on release status and who is under
the supervision of the Department of
Corrections commits unlawful sexual
conduct by engaging in oral sexual contact,
sexual contact or sexual intercourse with a
prisoner who is in the custody of the
department or an offender who is under the
supervision of the department.

Coverage

NOTE: The statute
makes it illegal for the
prisoner to engage in
any sexual contact
with a custodian.

§13-1419.E: For the
purposes of this
section “custodial
responsibility”
means having
responsibility for the
care, management or
control of a prisoner
who is committed to
the state Department
of Corrections or an
offender who is under
the supervision of the
state department of
corrections.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

5-4-201(b)(1): a fine
not to exceed $1,000.

5-4-401(b)(1): The
penalty for a Class A
misdemeanor shall be
imprisonment for a
term not to exceed
1 year; and/or

5-14-109(b): Sexual
abuse in the second
degree is a Class A
misdemeanor.

§ 5-14-109: Consent
is not a defense.

§13-1419.C.2:
Marriage
is a defense for an
offender who is on
release status
if the marriage
occurred before the
prisoner was
incarcerated by the
Department of
Corrections.

§ 13-802(A): a fine
not to exceed
$150,000.

§ 13-701(C)(4): The
penalty for a class 5
felony shall be
imprisonment for
two years and/or

§13-1419.C.1:
Marriage is a
defense for custodian if the the marriage occurred
before the prisoner
was incarcerated by
the Department of
Corrections.

Defenses

§ 13-1419.D: Unlawful
sexual conduct is a
class 5 felony.

Penalties

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California

State

Title

Cal. Penal Code
§ 289.6. Public
§ 289.6 (West 1996 entity employees,
Supplement)
officers, or agents;
sexual activity
with confined
consenting adult;
defense;
application;
violation; penalty

Statute
§ 289.6(a): An employee or officer of a
public entity, or an employee, officer,
or agent of a private person or entity that
provides a detention facility or staff for a
detention facility under contract with a
public entity, who engages in sexual
activity with a consenting adult who is
confined in a detention facility is guilty
of a public offense.

Coverage

Definitions/Notes

§ 18: The penalty for a
felony where not
otherwise prescribed
shall be imprisonment
for a term of 16 months,
2 years, or 3 years.

§ 289.6(h): Any
person previously
convicted of a
violation of this
section shall, upon a
subsequent violation
be guilty of a felony.

§ 19: The penalty
for a misdemeanor
where not otherwise
prescribed shall be
imprisonment in the
county jail for a term
not to exceed 6 months,
and/or a fine not to
exceed $1,000.

§ 289.6 (g): Any
violation of this section
shall constitute a
misdemeanor.

Penalties

§ 289.6(f): This
section does not
apply to sexual
activity between
consenting adults
that occurs during
an overnight
conjugal visit that
takes places
pursuant to a court
order or with the
written approval of
an authorized
representative of the
public entity that
operates or contracts
for the operation of
the detention
facility where the
conjugal visit takes
place.

§ 289.6 (e) Consent
by a confined person
to sexual activity
proscribed by this
section is not a
defense to a criminal
prosecution for
violation of this
section.

Defenses

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Conn. Gen. Stat.
Ann. § 53a-71
(West 1958 &
Supp. 1994)

Connecticut

Conn. Gen. Stat.
Ann. § 53a-73a
(West 1958 &
Supp. 1994)

Colo. Rev. Stat.
§ 18-3-403 (1986
& Supp. 1995)

Statute

Colorado

State

Coverage

§ 53a-73a. Sexual
assault in the
fourth degree:
Class A
misdemeanor

§ 53a-71. Sexual
assault in the
second degree:
Class C felony:
Nine months
not suspendable

§ 53a-73a: Sexual assault in the fourth degree:
(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.

§ 53a-71: Sexual assault in the second degree:
(a) A person is guilty of sexual assault in the
second degree when such person engages in
sexual intercourse with another person and:
(5) such other person is in custody of law
or detained in a hospital or other institution
and the actor has supervisory or disciplinary
authority over such other person.

§ 18-3-403. Sexual § 18-3-403: Sexual assault in the second
assault in the
degree. (1) Any actor who knowingly
second degree
inflicts sexual penetration or sexual intrusion
on a victim commits sexual assault in the
second degree if: (g) The victim is in custody
of law or detained in a hospital or other
institution and the actor has supervisory or
disciplinary authority over the victim and
uses this position of authority, unless the
sexual intrusion is incident to a lawful search,
to coerce the victim to submit.

Title

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

§ 53a-36: The penalty
for a class A misdemeanor shall be imprisonment for a term not
to exceed 1 year.

§ 53a-73a(b): Sexual
assault in the fourth
degree is a class A
misdemeanor.

§ 53a-35a(6): The
penalty for a class C
felony shall be imprisonment for a term not
less than 1 year nor
more than 10 years.

§ 53a-71(b): Sexual
assault in the second
degree is a class C felony
for which 9 months of
the sentence imposed
may not be suspended
or reduced by the court.

§ 18-1-105(III)(A): a
fine ranging from
$2,000 to $500,000.

§ 18-1-105(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 probation
and/or

§ 18-3-403(2): Sexual
assault in the second
degree is a class
4 felony.

Penalties

Defenses

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District of
Columbia

Delaware

State

Title

D.C. Code Ann.
§ 22-4101.
§ 22-4101 (1981 & Definitions
Supp. 1996)
§ 22-4113. First
D.C. Code Ann.
degree sexual
§ 22-4113 (1981
abuse of a ward
& Supp. 1996)
§ 22-4114. Second
D.C. Code Ann.
degree sexual
§ 22-4114 (1981 & abuse of a ward
1996)
§ 22-4117.
D.C. Code Ann.
Defenses to sexual
§ 22-4117 (1981
abuse of a ward,
& 1996)
patient, or client

De. Code Ann. tit. § 1259. Sexual
11, § 1259 (1974 & relations in detenSupp. 1995)
tion facility; Class
G felony

Statute
NOTE: The statute also
makes it illegal for a
prisoner to engage in
sexual relations with an
employee at the
detention facility.

Definitions/Notes

§ 22-4101: Definitions:
For the purposes of
this chapter: (6)
“Official custody”
means: (A) Detention
following 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;
§ 22-4114: Second degree sexual abuse of a
following or pending
ward: Whoever engages in sexual contact
civil commitment
with another person or causes another person proceedings, or pending
to engage in or submit to sexual contact
extradition, deportation,
when that other person: (1) Is in official
or exclusion.
custody, 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 shall be imprisoned for
not more than 5 years and, in addition, may
be fined in an amount not to exceed $50,000.

§ 22-4113: First degree sexual abuse of a
ward: 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
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 shall be imprisoned for not more
than 10 years and, in addition, may be fined
in an amount not to exceed $100,000.

§ 1259: Sexual Relations in detention
facility; Class G felony: 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.

Coverage

Defenses

§ 22-4114: The penalty
for second degree sexual
abuse of a ward (2):
shall be imprisonment
for a term not to
exceed 5 years and may
include a fine not to
exceed $50,000.

§ 22-4113: The penalty
for first degree sexual
abuse of a ward (2):
shall be imprisonment
for a term not to
exceed 10 years, and
may include a fine not
to exceed $100,000.

4205(k): may
include fines and
penalties as the court
deems appropriate.
§ 22-4117(a):
Consent is not a
defense, to either
first or second
degree sexual abuse
of a ward; (b)
Marriage between
the defendant and
the victim at the
time of the offense
is a defense to both
first and second
degree sexual abuse
of a ward, which the
defendant must
prove by a preponderance of the
evidence.

§ 1259: Violation of this § 1259: It shall be
section is a class G
no defense that
felony.
such conduct was
consensual.
4205(b)(7): The
penalty for a class G
felony shall be
imprisonment at
Level V for a term
not to exceed 2 years,
and

Penalties

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Florida

State

(Approved
5/30/96)

Fla. Stat. Ann.
§ 944-35

Statute
Authorized use of
Force; Malicious
battery & Sexual
misconduct
prohibited;
reporting required

Title
Covers offense of sexual misconduct by
Department of Corrections employees with
inmates or offenders being supervised by the
Department of Corrections. Also covers the
offense of failure to make reports of such
activity or preventing another from
doing so.

Coverage
Sexual Misconduct:
oral, anal, 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
internal search or
bona fide medical
exam.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

Inaccurate or false
reports is a misdemeanor
of the first degree.
Preventing others from
reporting is a felony in
the third degree.

Failure to report is a
misdemeanor of the first
degree. The penalty for
a misdemeanor of the
first degree shall be
imprisonment for a term
not to exceed 1 year.

Sexual misconduct is a
felony in the third
degree. The penalty for
a felony in the third
degree shall be:
imprisonment for a
term not to exceed 5
years; dismissal from
employment; and
prohibition from
employment in any
capacity in connection
with the correctional
system.

Penalties

Marriage is a defense.

Ignorance that
inmate is an inmate
or under the supervision by the
Department of
Corrections is a
defense.

Consent is not a
defense.

Defenses

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Hawaii

Georgia

State

§ 707-731. Sexual
assault in the
second degree
§ 707-732. Sexual
assault in the
third degree

Haw. Rev. Stat.
Ann. § 707-732
(Michie 1994)

§ 16-6-5.1. 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

Title

Haw. Rev. Stat.
Ann. § 707-731
(Michie 1994)

Ga. Code Ann.
§ 16-6-5.1 (1996)

Statute

§ 707-732: 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, knowingly subjects to sexual contact
with an imprisoned person or causes such
person to have sexual contact with the actor.

§ 707-731: 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 in a state
correctional facility, knowingly subjects to
sexual penetration by an imprisoned person.

§ 16-6-5.1(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 disciplinary
authority over such other person.(c)(1): 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
§ 16-6-5.1(a): As used
in this Code section,
the term: (2) “Intimate
parts” means the genital
area, groin, inner thighs,
buttocks, or breasts of a
person; (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.

Definitions/Notes

§ 706-660: The penalty
for a class B felony
shall be imprisonment
for a term of 10 years.
The penalty for a
class C felony shall be
imprisonment for a
term of 5 years.

§ 707-732(2): Sexual
assault in the third
degree is a class C
felony.

§ 707-731(2): Sexual
assault in the second
degree is a class B
felony.

§ 16-6-5.1(b): The
penalty for sexual
assault shall be
imprisonment for a
term not less than 1
nor more than 3 years.

Penalties

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

§ 16-6-5.1(c)(3):
Consent of the
victim is not a
defense.

Defenses

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53

Ill. Criminal Code §11-9.2.
§11-9.2
Custodial Sexual
Misconduct

Illinois

§ 18-6110.
Sexual contact
with an inmate

Title

Idaho Code § 186110 (1987 &
Supp.1996)

Statute

Idaho

State

§11-9.2 (a) A person commits the offense
of custodial sexual misconduct when 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.

§ 18-6110: Sexual contact with an inmate.
It is a felony for any officer, employee or
agent of a jail or correctional facility to
have sexual contact with an inmate of such
facility.

Coverage

§11-9.2(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; 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; (4)
“Sexual conduct” or
“sexual penetration”
means any act of sexual
conduct of sexual
penetration as defined
in Section 12-12 of this
code.

§ 18-6110: For the
purposes of this section
sexual contact means
sexual intercourse,
genital-genital, oralgenital, anal-genital or
oral-anal, between
persons of the same or
opposite sex.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

A Class 3 felony carries
a penalty of 2-5 years.

§11-9.2 Custodial
sexual misconduct is
a Class 3 felony.

§ 18-6110: The penalty
for sexual contact with
an inmate shall be
imprisonment in the
state prison for a term
not to exceed life.

Penalties

§11-9.2.(f)(2) Lack of
knowledge that the
individual with whom
the employee was
engaged in custodial
sexual misconduct of a
prisoner is a defense.

§11-9.2.(f)(1)
Marriage is a defense
if the marriage
occurred prior to the
date of custody.

§11-9.2.(e) Consent
is not a defense to a
criminal charge under
this section.

Defenses

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Iowa Code Ann.
§ 709.16 (West
1993)

Kan. Stat. Ann.
§ 21-3520 (1995)

Kansas

Ind. Code Ann.
§ 35-44-1-5 (West
1986 & Supp.
1996)

Statute

Iowa

Indiana

State

§ 21-3520.
Unlawful sexual
relations

§ 709.16. Sexual
misconduct with
offenders

§ 35-44-1-5.
Sexual misconduct
by service provider
with detainee

Title

§ 21-3520: Unlawful sexual relations: (a)
Unlawful sexual relations is engaging in
consensual sexual intercourse 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 or
sodomy is an inmate; or (2) the offender is a
parole officer and the person with whom the
offender is engaging in consensual sexual
intercourse or sodomy is an inmate who has
been released on parole or conditional release
or postrelease supervision under the direct
supervision and control of the offender.

§ 709.16: Sexual misconduct with offenders:
An officer, employee, contractor, vendor,
volunteer or agent of a judicial district
department of correctional services, who
engages in a sex act with an individual
committed to the custody of the Department
of Corrections or a judicial district
department of correctional services commits
an aggravated misdemeanor.

§ 35-44-1-5: Sec. 5(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.

Coverage
§ 35-44-1-5: Sec. 5(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.

Definitions/Notes

§ 21-4704(a): The
penalty for a severity 10
person felony shall be
imprisonment for a term
between 6 and 12
months depending on
offender’s criminal
history.

§ 21-3520(c): Unlawful
sexual relations is a
severity 10 person
felony.

§ 903.1(2): 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.

§ 709.16: Sexual misconduct with offenders
is an aggravated
misdemeanor.

§ 35-50-2-7(a): The
penalty for a Class D
felony is imprisonment
for 11/2 years and may
also include a fine not
to exceed $10,000.

§ 35-44-1-5(b): Sexual
misconduct is a class D
felony.

Penalties

Consent is not a
defense.

Marriage is a
defense.

§ 35-44-1-5(c): It is
not a defense that
an act described in
subsection (b) was
consensual.

Defenses

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Massachusetts

Maryland

No Legislation1

Last Action:
2/24/98
before Committee
on Judiciary:
Reported favorably.

1998 Maryland
Senate Bill 156

BILL
INTRODUCED

§ 253 (West 1983
& Supp. 1995)

Me. Rev. Stat.
Ann. tit. 17-A,

Maine
§ 253. Gross
sexual assault

La. Rev. Stat. Ann. § 134.1.
§ 134.1 (West
Malfeasance in
1986)
office; sexual
conduct prohibited
with persons
confined in
correctional
institutions

Title

Louisiana

1

No Legislation

Statute

Kentucky

State

Provides that a fourth degree sexual offense
includes sexual activity between an
individual who works in a correctional
facility or supervises offenders in the
community and someone incarcerated or
supervised in the community; relates to
custodial employees and individuals in
custody.

§ 253(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.

§ 134.1: Malfeasance in office; sexual
conduct prohibited with persons confined in
correctional institutions. A. 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.

Coverage

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners
Defenses

§ 1252(2)(B): The
penalty for a Class B
crime shall be
imprisonment for a
term not to exceed
10 years.

§ 253(5): Violation of
Marriage is a
subsection 2, paragraph E defense.
is a Class B crime.

§ 134.1.B: Penalty for a
violation of a provision
of this section shall be
imprisonment for a term
not to exceed 10 years
and/or a fine not to
exceed $10,000.

Penalties

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Title

1998 Miss. H.B.
59 (Miss. 1998)

Mississippi

H.B. 59 An
Act to Prohibit
Jailers and
Approved by Gov. Other Officials
March 26, 1998
From Engaging in
Sexual Conduct
with Prisoners; To
Prescribe Penalties
for Violations; and
for Related
Purposes

No Legislation1

Mich. Comp. Laws § 750.520e. Fourth
Ann. § 750.520e
degree criminal
(West 1991 &
sexual conduct
Supp. 1996)

Statute

Minnesota

Michigan

State

Section 2. This act shall take effect and be
in force from and after its passage.

Section 1. 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 as defined in Section 97-3-97,
Mississippi code of 1972, with any offender,
with or without the offender’s consent, who
is incarcerated at any jail or any state,
county or private correctional facility.

§ 750.520e.(1): A person is guilty of criminal
sexual conduct in the fourth degree if he or
she engages in sexual contact with another
person and if any of the following
circumstances exist: (e) 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.

Coverage

Definitions/Notes

Section 1. Any person
who violates this
section shall be guilty
of a felony and upon
conviction shall be
fined not more than
$5,000 or imprisoned
for a term not to exceed
5 years, or both.

§ 750.520e(2): Criminal
sexual conduct in the
fourth degree is a
misdemeanor the penalty
for which shall be
imprisonment for a
term not to exceed 2
years and/or a fine not
to exceed $500.

Penalties

Consent is not
a defense.

Defenses

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No Legislation1

No Legislation1

Montana

Nebraska

§217.405. Offender
abuse, penalty —
employees not to
use physical force,
exceptions

Title

Coverage

§ 217.410.1: 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.

§ 217.405: Offender abuse, penalty employees not to use physical force,
exceptions: (1) Except as provided in
subsection 3 of this section, a person
commits the crime of “offender abuse” if he
Mo. Ann. Stat.
knowingly injures the physical well-being of
§ 217.410 (Vernon § 217.410. Abuse any offender under the jurisdiction of the
1983 & Supp.
of offender, duty to department by beating, striking, wounding
1996)
report, penalty—
or by sexual contact with such person.
confidentiality of (3) No employee of the department shall use
report, immunity
physical force on an offender except the
from liability—
employee shall have the right to use such
harassment
physical force as is necessary to defend
prohibited
himself, suppress an individual or group
revolt or insurrection, enforce discipline or
to secure the offender.

Mo. Ann. Stat.
§ 217.405 (Vernon
1983 & Supp.
1996)

Statute

Missouri

State
NOTE: There is a
requirement to report
reasonable belief of
abuse.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

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

§ 558.011.1(3): The
penalty for a class C
felony shall be
imprisonment for a term
not to exceed 7 years.

§ 217.410.3: 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.

§ 217.405.2: Offender
abuse is a class C felony.

Penalties

Defenses

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Title

Effective
January 1, 1998

Ann. §§ 632-A:
(2), (3)

§632-A:3.
Felonious Sexual
Assault

§ 632-A:2.
Aggravated
Felonious Sexual
Assault;

§ 212.187.
Voluntary sexual
conduct between
(amended 10/1/97) prisoner and
another person
is unlawful

Nev. Rev. Stat.
§ 212.187 (1997)

Statute

New Hampshire N.H. Rev. Stat.

Nevada

State

Consent of the victim under . . . (n) shall
not be considered a defense.

§ 632-A:2. 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 of authority over the victim and
use this authority to coerce the victim to
submit under any of the following
circumstances: (1) When the actor has
supervisory authority over the victim by
virtue of the victim being incarcerated in
a correctional institution or juvenile
detention facility; (2) When a probation or
parole officer has supervisory authority over
the victim while the victim is on parole or
probation or under juvenile probation.

(2) A person who voluntarily engages in
sexual conduct with a prisoner who is in
lawful custody or confinement, other
than residential confinement, is guilty
of a category D felony.

§ 212.187(1): A prisoner who is in lawful
custody or confinement, other than
residential confinement, and who
voluntarily engages in sexual conduct
with another person is guilty of a
category D felony.

Coverage
§ 212.187(2): As used
in this section, sexual
conduct means acts of
masturbation, homosexuality, sexual intercourse or physical
contact with another’s
unclothed genitals or
pubic area to arouse,
appeal to or gratify
the sexual desires
of a person.

Definitions/Notes

Defenses

§632-A:(3) Violation of
§ 632-A:2. Is a class B
felony which carries a
penalty of three and
one-half to seven
years in prison.

§ 193.130: (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 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.
Consent is not
a defense.

Violation of § 212.187
Consent is not a
(2) is a category D felony. defense.

Penalties

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N.Y. Penal Law
§ 130.05
(McKinney 1996)

New York
§ 130.05.
Sex offenses

N.M. Stat. Ann.
§ 30-9-11.
§ 30-9-11 (Michie Criminal sexual
1978 & Supp.
penetration
1996)

New Mexico

§ 2C: 14-2.
Sexual assault

Title

N.J. Stat. Ann.
§ 2C: 14-2 (West
1995)

Statute

New Jersey

State

§ 130.05: Whether or not specifically stated,
it is an element of every offense defined in
this article ... that the sexual act was
committed without consent of the victim:
(3) A person is deemed incapable of consent
when he or she is: (e) committed to the
care and custody of the state department of
correctional services or a hospital; or (f)
committed to the care and custody of a
local correctional facility.

§ 30-9-11: Criminal sexual penetration. D.
Criminal sexual penetration in the second
degree consists of all criminal sexual
penetration perpetrated:(2) on an inmate
confined in a correctional facility or jail
when the perpetrator is in a position of
authority over the inmate.

§ 2C:14-2.c: An actor is guilty of sexual
assault if he commits an act of sexual
penetration with another person under any
one of the following circumstances: (3) 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.

Coverage

(1) Covers employees
of the state department
of correctional services
who perform professional duties in a state
correctional facility
consisting of providing
custody, medical or
mental health services,
counseling services,
educational programs or
vocational training for
inmates.
(2) Also covers
employees of the
division of parole and
office of mental health
who perform professional duties and
provide professional
services in a state
correctional facility.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

§ 70.15(1): A sentence
of imprisonment for a
class A misdemeanor
shall ... be fixed by the
court, and shall not
exceed one year.

§ 70.00(2)(e): For a
class E felony, the term
shall be fixed by the
court, and shall not
exceed four years.

Violation of this
section is either a class
E felony or a class A
misdemeanor, depending
on the nature and
severity of the assault.

§ 31-18-15.A.(3): The
penalty for a second
degree felony shall be
imprisonment for a term
of 9 years and E.(3): may
include a fine of up to
$10,000.

§ 30-9-11.D. Criminal
sexual penetration in
the second degree is a
second degree felony.

§ 2C:43-6a(2): The
penalty for a crime of
the second degree shall
be imprisonment for a
term of between 5 and
10 years.

§ 2C:14-2: Sexual
assault is a crime of the
second degree.

Penalties

Marriage is a
defense.

Consent is not
a defense.

Defenses

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§ 12.1-20-06.
Sexual abuse of
wards
§ 12.1-20-07.
Sexual assault

N.D. Cent. Code
§ 12.1-20-07
(1985)

§ 14-27.7.
Intercourse and
sexual offenses
with certain
victims; consent
no defense

Title

N.D. Cent. Code
§ 12.1-20-06
(1985)

N.C. Gen. Stat.
§ 14-27.7 (1993)

North Carolina

North Dakota

Statute

State

§ 12.1-20-07.1: A person who knowingly
has sexual contact with another, or who
causes such other person to have sexual
contact with him, is guilty of an offense if:
(d) 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 him or her.

§ 12.1-20-06: 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 A misdemeanor 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.

§ 14-27.7: Intercourse and sexual offenses
with certain victims; consent no defense: . . .
if a person 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.

Coverage
CASE NOTE:
Custodial sexual offense
does not require act by
force against the will
of another person. It
requires that the
perpetrator or the
perpetrator’s principal
or employer, have
custody of the victim.
State v. Raines,
319 N.C. 358, 354 S.E.
2d 486 (1987).

Definitions/Notes

§ 12.1-32-01.6: The
penalty for a class B
misdemeanor shall be
imprisonment for a term
not to exceed 30 days
and/or a fine not to
exceed $500.

§ 12.1-32-01.5.: The
penalty for a class A
misdemeanor shall be
imprisonment for a
term not to exceed 1
year and/or a fine of
$1,000.

§ 12.1-20-07(2): Sexual
assault is a class B
misdemeanor.

§ 12.1-20-06: Sexual
abuse of wards is a class
A misdemeanor.

§ 15A-1340.17: The
penalty for a class E
felony shall be a fine at
the discretion of the
court and imprisonment
for a term between 20
and 59 years depending
on the amount and kind
of prior offenses.

§ 14-27.7 A violation
of this section is a
class E felony.

Penalties

§ 14.27.7: Consent
is not a defense to
a charge under this
section.

Defenses

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Okla. Stat. Ann.
tit. 21, § 1111
(West 1983 &
Supp. 1996)

Oklahoma

Pa. Stat. Ann. tit.
18, § 3126 (1983
Supp. 1996)

Pennsylvania

By 1995 amendment, the legislature amended the
statute and deleted
“in custody of law”
language.
Legislation has been
introduced to add
that language back
to the statute.

No Legislation1

Oregon

Okla. Stat. Ann.
tit. 21, § 1116
(West 1983 &
Supp. 1996)

Okla. Stat. Ann.
tit. 21, § 1114
(West 1983 &
Supp. 1996)

Ohio Rev. Code
Ann. § 2907.03
(1993)

Statute

Ohio

State

§ 1114. Rape in
the first degreesecond degree

§ 1111. Rape
Defined

§ 2907.03. Sexual
battery

Title

§ 3126 [before the 1995 amendment]: (a)
Offense defined.—A person who has
indecent contact with another not his
spouse, or causes such other to have indecent
contact with him, is guilty of indecent
assault if: (5)the other person is in custody
of law or detained in a hospital or other
institution and the actor has supervisory or
disciplinary authority over him.

HOW SECTION READ BEFORE THE
AMENDMENT

§ 1111: Rape defined: A. Rape is an act of
sexual intercourse involving vaginal or anal
penetration accomplished with a male or
female who is not the spouse of the
perpetrator and who may be of the same or
the opposite sex as the perpetrator under any
of the following circumstances: 7. Where the
victim is under the legal custody of a state
agency and engages in sexual intercourse
with a state employee or employee of a
contractor of the state that exercises
authority over the victim.

§ 2907.03: Sexual battery: (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.

Coverage

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

§ 1116: The penalty for
rape in the second
degree shall be
imprisonment in the
penitentiary for a term
ranging between
1-15 years.

§ 1114.B: Violation of
this section is rape in
the second degree.

§ 2929.14(A)(3): The
penalty for a felony of
the third degree shall
be imprisonment for a
term of between 1 and
5 years.

§ 2907.03(B): Sexual
battery is a felony of
the third degree.

Penalties

Marriage is a
defense.

Marriage is a
defense.

Defenses

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No Legislation1

Tennessee

Sexual intercourse
with a patient,
trainee; employee
of a correctional
facility engaging in
sexual intercourse
with an inmate.

§44-23-1150.
Illegal sexual
intercourse:

§11-25-24.
Correctional
employees —
sexual relations
with inmates —
felony

Title

S.D. Codified
§ 24-1-26.1.
Laws Ann.
Sexual acts
§ 24-1-26.1 (1997) prohibited
between prison
employees and
prisoners

(amended 6/11/97)

S.C. Code Ann.
§44-23-1150

R.I. Gen. Laws
§ 11-25-24 (1994
& Supp. 1995)

Statute

South Dakota

South Carolina

Rhode Island

State

§ 24-1-26.1: 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 sexual
penetration with another person who
is in detention and under the custodial,
supervisory, or disciplinary authority of the
person so engaging, is guilty of a Class 6
felony.

§ 44-23-1150. An employee of a state or
local correctional facility having sexual
intercourse with an inmate of that facility,
is guilty of a felony.

§11-25-24: Correctional employees — sexual
relations with inmates — felony. 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
in chapter 37 of this title entitled “Sexual
Assault” 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
§ 11-37-1.(8): “Sexual
penetration” - 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 genitalia
or anal openings of
another person’s body,
but emission of semen
is not required.

Definitions/Notes

§ 22-6-1: 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.

§ 24-1-26.1: The
violation of this section
is a Class 6 felony.

§ 44-23-1150. An
employee of a state or
local correctional
facility having sexual
intercourse with an
inmate of that facility,
upon conviction, must
be imprisoned not more
than 10 years.

§ 11-25-24: Violation
of this section is a
felony the penalty for
which shall be
imprisonment for a
term not to exceed 5
years and/or a fine not
to exceed $10,000.

Penalties

Defenses

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No Legislation1

No Legislation1

No Legislation1

No Legislation1

No Legislation1

Wis. Stat. Ann.
§ 940.29
(West 1996)

Vermont

Virginia

Washington

West Virginia

Wisconsin

Amended
September 1,
1997.

Tex. Penal Code
Ann. Sec. 39.04
(Vernon 1994
and 1997 pocket
part)

Statute

Utah

Texas

State

§ 940.29. Abuse
of residents of
penal facilities

Sec.39.04
Violations of the
Civil Rights of
Person in Custody;
Improper Sexual
Activity

Title

§ 940.29: Any person is charge of or
employed in a penal or correctional
institution or other place of confinement
who abuses, neglects or ill-treats 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 E felony.

Sec.39.04 (a) An official or employee of a
correctional facility or a peace officer
commits an offense if he intentionally:
(2) engages in sexual intercourse or deviate
sexual intercourse with an individual in
custody.

Coverage
Sec. 39.04(b) An offense
under Sections (a)(2) is a
state jail felony.

Penalties

§ 939.50(3)(e): The
penalty for a Class E
felony shall be
imprisonment for a term
not to exceed 2 years
and/or a fine not to
exceed $10,000.

§ 940.29: The abuse of
residents of penal
facilities is a Class E
felony.

Sec. 12.35: The penalty
for a state jail felony is
180 days to 2 years in the
(2) “Sexual intercourse” state jail and/or a fine not
and “deviate intercourse” to exceed $10,000.
have the meaning
assigned by Section
21.01.

Sec. 39.04 9 (e) In
this section:
(1) “Custody” means
the detention, arrest
or confinement of a
person.

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners
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Wyoming

State

Wyo. Stat.
§ 6-2-306 (1988)

Wyo. Stat.
§ 6-2-303 (1988)

Statute
§ 6-2-303. Sexual
assault in the
second degree

Title
§ 6-2-303: Sexual Assault in the second
degree. (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
§ 6-2-301(a)(iv):
“Position of authority
means that position
occupied by a parent,
guardian, relative,
household member,
teacher, employers,
custodian or any other
person who, by reason
of his position, is able
to exercise significant
influence over a person.
In Scudder v. Wyoming,
732 P.2d 136 (1987)
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.

Definitions/Notes
§6-2-306(a)(ii):
The penalty for sexual
assault in the second
degree shall be
imprisonment for a
term not to exceed
20 years.

Penalties

Defenses

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United States

State

2

18 U.S.C. § 2246
(1994)

18 U.S.C. § 2244
(1994)

18 U.S.C. § 2243
(1994)

18 U.S.C. § 2242
(1994)

18 U.S.C. § 2241
(1994)

Statute

§ 2242 covers engaging in a sexual act in
federal prison with someone who is
incapable of appraising the nature of the
conduct or is physically incapable of
declining participation.

Specifically covers conduct in federal
prisons.
§ 2241: “Whoever, in the special maritime
and territorial jurisdiction of the United
States or in a Federal prison,” knowingly
causes another person to engage in a sexual
act by using force, threats, rendering the
other unconscious, or administering drugs.

Coverage

§ 2246. Definitions
for chapter
§ 2243: Sexual abuse of a minor or ward.
(b) Whoever, in the special maritime and
territorial jurisdiction of the United States
or in a Federal prison, 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 one year,
or both.

§ 2244. Abusive
sexual contact

§ 2243. Sexual
abuse of a minor
or ward

§ 2242. Sexual
abuse

§ 2241.
Aggravated sexual
abuse

Title

Definitions/Notes

Fifty-State Survey of Criminal Laws Prohibiting Sexual Abuse of Prisoners

U.S.S.G. § 2A3.4(a)(3):
The base penalty for
abusive sexual contact
shall be imprisonment
for a term of 6-12 months.

U.S.S.G. § 2A3.3(a): The
base penalty for sexual
abuse of a ward shall be
imprisonment for a term
of 4-10 months.

U.S.S.G. § 2A3.2(a): The
base penalty for sexual
abuse of a minor shall be
imprisonment for a term
of 18-24 months.

U.S.S.G. § 2A3.1(a): The
base penalty for sexual
abuse shall be imprisonment for a term of 70-87
months.

U.S.S.G. § 2A3.1(b)(1):
The base penalty for aggravated sexual abuse shall be
imprisonment for a term
of 108-135 months.

For offenders with 0 to 1
prior offenses:

Penalties

§ 2243: Sexual
abuse of a minor or
ward. (c)(2): In a
prosecution under
this section, it is a
defense, which the
defendant must
establish by a
preponderance
of the evidence,
that the persons
engaging in the sexual act were at that
time married to
each other.

Defenses

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2. The United States Code is included in this 50-state survey because of the increasing impact of federal criminal legislation on criminal defendants, particularly with regard to drug
offenses. With the federalization of many drug offenses, criminal defendants are being sentenced to federal prisons in increasing numbers. Prisoners sentenced for drug offenses constitute the largest group of ferderal inmates (60%) in 1995, up from 34% in 1985. Between 1985 and 1995, the federal prison population increased approximately 283% (from 31,364 to
88, 801). The increase of 42,000 drug offenders counted for more than 80% of that growth.

1. In states that have no specific legislation criminalizing the sexual abuse of prisoners, correctional employees may be prosecuted under the state’s existing sexual assault and rape
statutes. Under these laws, consent is a defense to criminal liability. However, many experts believe that the inherent disparity in power between prisoners and correctional employees
renders valid consent impossible in the prison context. Also, from both a management and public policy perspective, sanctioning consensual sex between correctional employees and
prisoners severely compromises legitimate correctional goals such as prison security, inmate management, and rehabilitation.

Notes and Comments

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✃

An
End to Silence:
Women Prisoners’ Handbook on Identifying
and Addressing Sexual Misconduct

National Women’s Law Center
11 Dupont Circle, NW, Suite 800
Washington, DC 20036
202/588-5180; fax: 202/588-5185

S

exual harassment and sexual misconduct against incarcerated persons violates either the law
or corrections policy in all 50 states. Incarcerated women who experience verbal or physical harassment, assault or misconduct have the right to remedy the abuse. Corrections institutions should also
remedy this conduct because sexual misconduct threatens both personal and institutional security. To
provide critical information and strategies to address this problem, the National Women’s Law Center
has produced an educational manual designed for incarcerated women and others concerned about
sexual misconduct in correctional institutions.
An End to Silence: Women Prisoners’ Handbook on Identifying and Addressing Sexual Misconduct is
the latest in a series of publications developed as part of the National Women’s Law Center’s Women
in Prison Project. The project employs a strategy of litigation, advocacy, training and support aimed
at reducing and preventing the incarceration of women, and improving the conditions of confinement for women who are incarcerated. The project serves as a model for programs throughout the
United States.
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An
End to Silence:
Women Prisoners’ Handbook on Identifying
and Addressing Sexual Misconduct

Reader Survey
The National Women’s Law Center invites your response to the following questions about the value of this
publication. Your answers will help the Center continue to develop educational materials that meet your need
for information.
Did this handbook answer your basic questions about sexual harassment and sexual misconduct in prison?
❏ Yes ❏ No
If no, what other questions did you have?

❏ Yes

Do you think the handbook explained the issues clearly?

❏ No

Based on the information you learned from this handbook, if you or someone you know became a victim of
sexual misconduct or sexual assault, would you know what steps to take to address the situation?
❏ Yes ❏ No
Would you feel comfortable in taking those steps?

❏ Yes

❏ No

What did you like most about this handbook?

What, if any, suggestions do you have for improving the handbook?

How did you receive the handbook?

❏ distributed by corrections department
❏ from an attorney
❏ mailed from the National Women’s Law Center ❏ from a friend
❏ other
How would you rate the overall effectiveness of this handbook?
(5 = Very effective; 1 = not effective) 5 4 3 2 1
How will you use the information you obtained in the handbook?

I am a(n):

❏ incarcerated woman; ❏ corrections staff person; ❏ corrections administrator; ❏ lawyer;
❏ advocate; ❏ appointed or elected official; ❏ other (please specify)

Name (optional)

Address

Would you like additional information about this issue or other Center programs?
Thank you.

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