13 sexual misconduct myths busted
By Susan McCampbell and Elizabeth Layman
The following is an excerpt from a 2001 Sheriff magazine article
Cross-gender supervision: The inmate perspective
There are a number of myths about staff sexual misconduct in a jail setting. When any of these myths is the basis for decisions about how to address staff sexual misconduct, an agency misses the mark in effective management of a dangerous situation.
Myth: My agency has had no allegations of staff sexual misconduct, so I can’'t see why this should be a concern to me.
Reality: Virtually no public or private institution has escaped sexual misconduct, be it the church, schools, mental health facilities and government. An agency with no allegations would be wise to review its policies and procedures. Are policies specific in terms of prohibited behaviors? Do procedures mandate reporting and thoroughly address the reporting process-for staff and inmates-to ensure that any reports are not squashed? What is the general work climate-does the staff work with and trust the administration?
Myth: Sexual misconduct is the result, at least in part, of crossgender supervision.
Reality: While it is true today that there are both more females in the jail workforce, and more female inmates, sexual misconduct is not the result of cross-gender supervision, Analyses of incidents in several states have shown that women staff are involved as often as male staff. Staff sexual misconduct is not limited to male staff/female inmates or female staff/male inmates. Incidents of same-sex misconduct have also been reported and litigated. In an attempt to prevent misconduct, some jails have banned the supervision of female inmates by male corrections staff. Unfortunately, such policies infrequently prevent misconduct, and, in some cases, risk violation of provisions of Title VII of the 1964 Civil Rights Act. Effective policies regarding the supervision and searches of inmates, along with prompt and effective investigation of allegations, do more to prevent misconduct than a ban on cross-gender supervision.
Myth: If the inmate consents to the sexual relationship with staff, the allegation is difficult to sustain.
Reality. The federal courts have been quite clear that there is no such thing as consensual sex in a jail or prison environment.’' Most state statutes have eliminated consent as a defense. Any belief that consensual sex exists in jails leaves agencies open to litigation, compromises security and establishes a workplace that is hostile for both staff and inmates.
Myth: “The code of silence"prevents us from getting reports, so investigating these allegations is pointless.
Reality: The code of silence is unfortunately part of the culture in many agencies and it impacts the agency’'s professionalism in every way The code of silence is most prevalent when administrators are investigating potentially serious allegations, such as use of force or sexual misconduct. If the code of silence inhibits a sheriff or jail administrator from conducting effective investigations, then the source of the mistrust must be identified and a plan adopted for improving the situation. But, the code of silence does not relieve the sheriff of the responsibility of conducting as effective an investigation as possible. The agency needs to have clear procedures for reporting misconduct, and it must address how it will protect those who report misconduct, both staff and inmates.
Myth. Raising this issue with staff and inmates will only exacerbate the matter, creating problems where none exists.
Reality: On the contrary, the problem is exacerbated and permitted to thrive when the issue is NOT raised. Most state prison systems are aggressively addressing staff sexual misconduct by implementing policies that identify prohibited conduct, educate staff and require mandatory reporting.’' Staff training, clearly defined policies prohibiting specific behaviors, inmate orientation, and effective reporting and investigative protocols are critical in establishing zero tolerance.While controversial to some, orienting inmates to the agency’'s zero-tolerance policy along with providing an appropriate reporting procedure is one way to ensure the policy’'s integrity. Without raising the issue of staff sexual misconduct to the same status as use of force, the matter will not be sufficiently addressed. And the issue WON’'T go away on its own.
Myth: Orienting inmates will only produce false allegations against staff whom an inmate dislikes or wants to get even with.
Reality: Agencies that institute mandatory reporting for staff and inmates may find an initial increase in allegations. Most allegations are determined to be unfounded. However, few have been found to be maliciously false.As part of their policies, many agencies include procedures that deal with maliciously false reports. When inmates see that allegations are investigated both fairly and thoroughly, the spike in reports drops.The other option is to not orient inmates at all, with the intention of avoiding malicious reporting or over-reporting. But for the sheriff and jail administrator, ignorance of what is really happening in the jail may be even more hazardous and eventually prove lethal to even the most stellar career.
Myth: We get so many new employees, some of whom are not prepared for this job’'s demands, that it is almost inevitable that misconduct will occur.
Reality: While some rookie officers have been involved with misconduct, a disturbing observation is that many officers involved in sexual misconduct are those with many years on the job and who hold rank in the organization.6 These veteran officers have access to keys, know the isolated parts of the facility, can move unquestioned around the facility; and their conduct is generally unchallenged by their peers or supervisors. The loss of trust in and pending criminal charges against an individual who might have been a leader in the agency are yet another way that sexual misconduct allegations can be so damaging.
Myth: Streetwise inmates con the staff into compromising situations, victimizing staff.
Reality: Many inmates will certainly try to manipulate staff in attempts to improve or gain control over their environment. But the agency-meaning administrators and supervisors-has an obligation to prepare and supervise staff so that they do not become involved in misconduct. Inmate profiles clearly detail their troubled backgrounds; this information is critical to effective inmate management. For example, approximately 60 percent of female inmates have been the victims of physical or sexual abuse before they arrive in jail. Sixteen percent of male inmates report prior abuse histories, most likely an underreported number.7 The inmates’’ view of reality and how to get what they want is different from the world of most staff. The agency must arm staff with the information and skills they need for working with this unique population.The courts have made it clear that they do not consider staff the victim in any incidence of staff sexual misconduct.
Myth: There is hardly ever any physical evidence with these allegations, and witnesses infrequently cooperate.
Reality: It is often the case that jail administrators receive reports of misconduct weeks or months after the alleged event. Physical evidence, if it existed, may be unusable or tainted. In a jail setting, witnesses may have been released from custody or moved to prison. But if the agency has a credible and fair internal investigation process, staff and inmates are more likely to cooperate. If staff fear the internal investigation process, or perceive it as unfair with the outcomes predetermined, then there will be little cooperation.
Myth: The department’'s investigators from the criminal investigation division routinely review all sexual misconduct allegations from the jail. Many top-notch investigators are ineffective in the jail environment.
Reality: The jail is not the real world. Investigators skilled at freeworld sex crime investigations are often lost, frustrated and stymied in the maze of the jail’'s culture. jurisdictions that have worked to ensure effective investigations have taken knowledgeable and skilled corrections staff and trained them as investigators, or taken good free-world sex crime investigators and immersed them in the reality of the jail culture.The challenge for the sheriff is to figure out how best to use the resources available to conduct a credible and effective investigation, knowing the limits and challenges of the jail environment,
Myth: If I had any problems in the jail with sexual misconduct, I’'m sure I would have heard about it from my medical or mental health service-providers.
Reality: Maybe and maybe not. Medical and mental health providers may see a confidentiality issue in providing information, or don’'t know what is important to report. The best way to clarify this matter is to review the contractor’'s operating procedures and reach a mutually agreed upon notification plan. It is recommended that a jail’'s medical staff not gather forensic evidence in a sexual assault case. Using the local sexual assault treatment center would be a wiser alternative.
Myth: Even if we investigate and sustain criminal law violations, the prosecutor won’'t take the case. These cases are just not a priority for them.
Reality: Many jail administrators voice this frustration.The prosecutor might say that the grand jury won’'t indict, or a jury won’'t convict. In truth, the issue may be that the quality of the investigation makes successful prosecution difficult. Investigations often start out as administrative, and statements given by staff during administrative investigations cannot then be used against them in criminal cases.’' Further, evidence protection, witness statements and corroboration often don’'t meet the standards for prosecution.The sheriff and jail administrator should make sure the prosecutor is aware that prosecution of cases helps to maintain a professional jail workplace.They should also invite the prosecutor’'s help in establishing investigation standards. Even after working with the prosecutor, cases still might not be accepted for criminal prosecution. But this does not relieve the sheriff of the responsibility of conducting a credible investigation and forwarding it to the prosecutor.
Myth: Arrestees aren’'t in jail long enough for sexual misconduct to occur The prison environment, where inmates and staff have years to get to know each other, is the place where this misconduct will happen.
Reality: Since sexual misconduct is less about sex and more about power, every institutional setting is vulnerable. Although most arrestees are “frequent flyers, some will not understand or be prepared for the jail culture and therefore are potential victims for unprofessional staff. These arrestees are frightened, intimidated and willing to do what is necessary to get out of jail. Once out, most want to forget the experience, or they think that whatever they went through was just routine. In addition, some staff may see the short stays as an even safer opportunity for prohibited behavior. The frequent turnover of inmate population may reduce the risk of discovery since suspicious activity may go unnoticed by new arrivals, and those inmates with short stays may choose to not report such activity for fear of retaliatory acts that could affect their court appearances and the outcome of pending cases.
Effective investigations of staff sexual misconduct allegations are essential. The facility’'s security, the safety and health of inmates, and the professionalism of the organization are all at risk. With effective and definitive policies and procedures, a role — modeled zero tolerance for such conduct, mandatory reporting, support and training for staff working in this difficult environment, inmate orientation and a credible and effective investigative process, the sheriff can work to produce a healthy and safe work environment.
About the authors
Susan W. McCampbell is President of the Center for Innovative Public Policies, Inc., (www.cipp.org) a notfor-profit company specializing in public policy consulting. She has been working with the National Institute of Corrections for more than two years on a curriculum and other training materials to address staff sexual misconduct Ms. McCampbell was formerly the
Director of the Department of Detention and Community Control for the Broward County, Ra., Sheriff’'s Office. Elizabeth P. Layman is the President of Price Layman, Inc., a firm specializing in public and criminal justice policy and grant funding. Ms. Layman was previously regional administrator for the Florida Parole Commission.
Copyright 2001 National Sheriff’'s Association