Male Guards / Female Inmates

In another thread, the topic of sexual abuse of female prisoners by male guards came up. There is one particularly ill-informed particpant in that conversation who seems to be under the incredibly misguided notion that male guards are not allowed to work in female prisons. This could not be further from the truth (at least, not in the US). In fact, in the US, 70% of guards in female prisons are male. Not only are men allowed to be guards in female prisons, but the majority of the guards are male.

Further, there are very few states that limit male guards' access in these prisons. According to the Amnesty International report, Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women (A State-by-State Survey of Policies and Practices in the U.S.), the only states that have limitations on access for male guards are:

• Arizona: As the result of a settlement with the DOJ, the Arizona DOC must provide privacy screens for shower and toilet areas in the Tuscon-Manzanita Unit or alternatively schedule two daily 15 minute time periods for inmates to shower and/or dress under the supervision of only female guards. Additionally, male guards must announce their presence in areas where female inmates could be in a state of undress.
  
• Connecticut: DOC Directive 6.7 states, "Reasonable accomodations shall be made to provide for same gender strip searches."
  
• Georgia: Gender specific posts have been created; for example, transport officers posts in female prisons are reserved for female. All men entering female units must announce themselves. All pat searches and strip searches are governed by the DOC same-sex regulations.
  
• Michigan: Due to a settlement with the DOJ, male guards must "knock and announce" their presence when entering areas where female inmates could normally be in a state of undress. The DOC Director recently (as of this report) announced a new policy of not assigning male guards to female housing units.
  
• North Carolina: According to the written response from the NC DOC, some duties are gender specific.
  
• South Dakota: No cross-sex pat-down searches or strip searches allowed.
  
• Wisconsin: According to the written response from the Wisconsin DOC, the Bona Fide Occupational Qualification (BFOQ) places restrictions on pat-down searches, strip searches, and unannounced bathroom/shower entries; it also covers when a medical condition is likely to require disrobing.
  
• Wyoming: According to the written response from the Wyoming DOC, male guards are not permitted to perform strip searches on incarcerated women.

While we are on the subject, here are some other interesting findings regarding sexual assault of women in prison. For a simplified chart of the various laws, you can go to this table. But, for those who cannot open or who do not want to bother with a .pdf file, the info is summarized below.

States with no custodial sexual miscoduct law:

• Oregon
  
• Minnesota
  
• Alabama
  
• Wisconsin
  
• Vermont
  

States where custodial sexual misconduct is not considered a felony (only a misdemeanor):

• Arkansas
  
• California
  
• Iowa
  
• Kentucky
  
• Maryland
  
• North Dakota
  
• Tennessee
  
• US Bureau of Prisons
  

States that do not cover all forms of sexual abuse (for example, threats or oral sex, among other things):

• Arkansas: The law only covers sexual contact. It does not cover acts involving penetration.
  
• Delaware: The law only covers sexual intercourse and deviate sexual intercourse.
  
• Florida: Limited to penetration.
  
• Idaho: The law is limited to specific specific sexual acts involving penetration, and does not cover all sexual contact.
  
• Indiana: The law covers only specific sexual acts involving penetration.
  
• Iowa: The sexual acts prohibited are limited to penetration.
  
• Maine: The law specifies that sexual contact is not included in the prohibited acts.
  
• Maryland: The law specifically does not cover sexual contact.
  
• Mississippi: The law is limited to sexual penetration.
  
• Missouri: The law requires that the person "knowingly injures" the inmate by sexual contact in order for it to be covered.
  
• Nevada: The law covers sexual contact with the genital area only.
  
• North Carolina: The law does not prohibit sexual contact.
  
• Ohio: The law only covers sexual penetration.
  
• Rhode Island: The law is specific to sexual penetration.
  
• South Carolina: The law is limited to sexual intercourse only. All other acts, including other acts of penetration, are not prohibited.
  
• South Dakota: For prison employees, the only prohibited act is penetration. Jail employees are also prohibited from sexual contact.
  
• Texas: The law does not prohibit sexual contact.
  
• West Virginia: The law is limited to sexual intercourse or sexual intrusion, and does not include contact.

States with cutodial sexual misconduct laws in place that allow "consent" as a defense:

• Nevada (consent is presumed)
  
• Wyoming: The law requires proving the custodian "used" their position of authority in order to get the victim to submit. Consent if a valid defense.
  
• Colorado: Penal codes 403 (Sexual Assault in the Third Degree) and 404 (Unlawful Sexual Contact) allow consent as a defense. Penal code 701 (Sexual Conduct in Penal Institutions), however, does not.
  
• Missouri: The law requires that the officer "knowingly injures the physical well-being" of the inmate, which allows the defense of consent.
• New Hampshire: The law does not allow the defense of consent for cases involving penetration. The law does not specify as to whether consent can be raised as a defense to other sexual contact.

States Where the current custodial sexual misconduct law imposes a criminal penalty on an inmate:

• California (in the case of oral copulation)
  
• Nevada: the inmate is considered guilty of the same offense. The law presumes the sexual contact was voluntary and consensual.
  
• Arizona: In order for an inmate to complain about alleged abuse, she would have to admit to committing the same offense. Arizona makes no issue of the inmate's lack of consent, so even an inmate who was raped could be charged under this law.
  
• Delaware: An inmate would be guilty of the same offense.

States where cross-gender pat-downs are routine:

• Kansas
  
• Michigan: Scheduled searches are same-sex. Random searches can be cross-gender.
  
• Pennsylvania: Practice is managed at individual institutions. At Muncy, cross-gender pat-downs are routine. At Cambridge, pat-searches are predominately same-gender.
  
• New York: a class-action suit was filed in 1998.
  
• Connecticut
  
• New Hampshire

Only Florida, Michigan, and South Dakota disallow cross-gender pat-down searches. All other states say that the majority of searches are done by someone of the same gender, but allow cross-gender pat-down searches in emergencies (but "emergenies" is never defined).

States where the law covers all staff and custodians (e.g. vendors, medical or kitchen staff)

• Arizona
  
• Arkansas
  
• California
  
• Indiana
  
• Iowa
  
• Kansas
  
• Kentucky
  
• Nevada
  
• North Carolina
  
• Oklahoma

States where the statute does not cover all correctional facilities and locations:

• Arkansas: While the law protects state prisoners, it requires that the custodial sexual misconduct within a city or county jail for non-state inmates
  
• Colorado: 701 applies only to employees of the correctional facility or jail. 403 and 404 apply to hospitals and other institutions, but require the actor to have "supervisory or disciplinary authority" over the inmate.
  
• Delaware: The law does not cover employees of private prisons, contractors, or non-employee staff.
  
• Florida: The law only covers employees of the Florida DOC. Does not currently cover employees of jails, private facilities, or others.
  
• Hawaii: The law is specific to state employees, and adds "law enforcement officers" for penetration only
  
• Idaho: The law prohibits employees, officers, and agents from sexual acts, but does not include persons such as service providers who are affiliated with contractors.
  
• Louisiana: The law specifies public employees; it does not include private contractors or ancilliary service providers.
  
• Maryland: The law specifies who is covered. It does not cover jailors, service providers, or others who are not correctional employees.
  
• Michigan: The law does not cover municipal or local jail employees, nor does it protect those convicted who are detained in local or munipal institutions, unless they are juveniles convicted as adults.
  
• Missouri: The law is specific to employees of the Missouri DOC.
  
• Montana: The offender must have supervisory or disciplinary authority over the victim. The law provides different standards of who is covered for each offense.
  
• Nebraska: The law is limited to employees of the DOC or Office of Parole Administration and contract employees and agents.
  
• New Hampshire: The only protects against a person "supervisory disciplinary authority" and that offender has to use this authority.
  
• New Mexico: The law requires that the person has to be in a supervisory position over the inmate.
  
• North Dakota: The law only covers those who have "supervisory or disciplinary authority" over the inmate.
  
• Pennsylvania: The law only applies to state and county employees and specified agents.
  
• Rhode Island: The law is specific to state employees or state contractors.
  
• South Carolina: The law only covers employees of the state or local correctional facility.
  
• South Dakota: Both laws require the person to have custodial, supervisory, or disciplinary authority over the victim.
  
• Tennessee: The law only covers law enforcement or corrections officers.
  
• Virginia: The laws require the actor to be in a position of authority over the person in custody.