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| Jaehyun Oh |
In August 2023, a putative class action was filed against the United States, seeking injunctive relief on behalf of all people incarcerated at FCI Dublin, where inadequate mental health care and ineffective sexual abuse reporting system put everyone at risk.[3] Eventually, the parties reached a consent decree, which the U.S. District Court for the Northern District of California approved on Feb. 27, 2025.[4] Even though FCI Dublin closed down in December 2024, for the next two years, this consent decree will be enforced at the many federal women's prisons where the class members are now housed.[5]
Despite these recent developments, victims of sexual abuse by prison staff continue to face substantial difficulties in pursuing civil and compassionate release cases related to sexual abuse.
One of the most difficult challenges in pursuing these cases is that victims often believe, and are sometimes overtly told, that they will be disbelieved or retaliated against if they report the offending officers. Therefore, years go by before many of the victims come forward. Because of this, there is rarely physical or DNA evidence available, and the cases depend on credibility determinations or the perpetrators' similar pattern of conduct with many other victims.
Survivors are often at the mercy of the government to obtain information, evidence and testimony that pertain to their cases. To address these enduring issues, we need to build a system where victims feel more comfortable making contemporaneous complaints, camera footage and other physical evidence are preserved without lapse, and truth can be determined.
Scope of the Problem
It is impossible to overstate the scope of the problem. Indeed, the endemic nature of sexual abuse of incarcerated women across the Federal Bureau of Prisons system was highlighted by the bipartisan investigative report published by the U.S. Senate Permanent Subcommittee on Investigations in December 2022.[6]
Staff-on-prisoner sexual abuse was, and still is, sometimes considered a nonexistent problem, or worse, "an expected consequence of incarceration, part of the penalty and the basis for jokes," according to a 2009 report by the National Prison Rape Elimination Commission.[7]
However, the Senate subcommittee found that BOP employees sexually abused women in their custody in at least two-thirds (19 of the 29) of the facilities where the BOP has held incarcerated women in the past decade.[8] There were at least 134 cases for which a BOP employee was convicted of sexually abusing a female prisoner or where the BOP substantiated allegations that a female prisoner was sexually abused by a BOP employee.[9]
Even these statistics likely understate the true magnitude of prison sexual abuse. The Senate subcommittee report noted that prison officials repeatedly failed to apply federal laws to adequately reduce prison sexual abuse, and that about 8,000 reports of misconduct, including sexual abuse, had not been investigated due to alleged backlog. Indeed, only about 10% of abuse allegations were found to have been properly investigated and reported through mandated chain of command.[10]
Hurdles to Reporting
Victims face numerous challenges, both practical and psychological, in reporting sexual abuse. For instance, formerly incarcerated women have testified before Congress about their experience in BOP custody, explaining how corrections officers can wield their resources, information and authority over incarcerated people to make them succumb to sexual abuse and stay silent.[11]
Indeed, reporting sexual violence in correctional settings can make a survivor vulnerable to further abuse or retaliation.[12] Even when victims shoulder the burden of reporting sexual violence, those reports are frequently disbelieved or dismissed, for various reasons, and often do not result in criminal prosecution or administrative discipline against the offending officers. Indeed, the U.S. Department of Justice acknowledged in a 2005 special report that "some prosecutors are reluctant to prosecute prison staff who do not use force or overt threats to obtain sex with inmates."[13]
Of course, regardless of the use of force or threats, any sexual contact between staff and incarcerated people is a violation of the latter's Eighth Amendment constitutional rights to be safe from cruel and unusual punishment. BOP staff can exploit their positions of power in numerous ways to create a culture of abuse in the prison, putting numerous prisoners in danger.
Under federal and many state laws, consent is not a legal defense for corrections staff who engage in sexual acts with prisoners.[14] There is simply too much power imbalance at play for there to be a valid consent defense.[15]
Potential Reforms
In order to ensure that the power imbalance between staff and prisoners is not weaponized against the prisoners, it is crucial to create a system where prisoners feel safe to make contemporaneous complaints. There needs to be a significant change in culture to encourage victims to promptly report staff misconduct and to ensure that they will not suffer retaliation or other adverse consequences as a result thereof.
As noted above, a lack of physical evidence continues to present problems in these cases, given that the initial investigation is handled by internal prison staff, some of whom may be friends or close colleagues of the accused. Thus, the BOP must develop a system where all physical evidence including camera footage are carefully collected and preserved by parties who do not have conflicts of interest.
The BOP should consider having an independent agency or personnel who accept said reports and conducts investigations, as well as monitor any staff retaliation thereafter to ensure the victims' safety. The court-appointed special master in the FCI Dublin class action served this precise role, which could serve as a guide for other prison facilities across the country.
An independent agency or personnel who are clearly separated from the rest of the BOP would help victims feel safer in making prompt complaints regarding staff sexual abuse without fear of retaliation.
Currently, the DOJ's Office of the Inspector General serves the role of watchdog over the BOP and other federal agencies. Incarcerated people are told that they can call or email the OIG hotline to report staff misconduct and that reports will be confidential. However, since the OIG is a part of the DOJ, which also oversees the BOP, would-be reporters often do not realize the different federal agencies operate separately.
Moreover, people in prison often see their peers report staff misconduct to the OIG, and immediately thereafter, get questioned by the Special Investigative Services agents who are internal to BOP facilities. Indeed, SIS can refer cases and investigations to the OIG, and vice versa. It is generally unclear to the reporting person how much information will be shared between these agencies.
Court-appointed special masters or other judicial appointees who are clearly separate from the BOP would substantially reduce the perception in prisons, whether accurate or not, that reports against a corrections officer will be shared with that officer or their colleagues.
In addition to guaranteeing confidentiality and protection from staff retaliation, the independent agency or personnel should clearly explain the process of reporting and the subsequent events, including evidence collection, possible evidentiary hearings, factual determination and potential consequences for the perpetrator. The current system is devoid of such transparency.[16]
Another reform that would encourage timely reporting is ensuring that complainants have counsel present when they make statements regarding staff sexual abuse. Though incarcerated people always have the right to counsel in the sense that they are always allowed to send legal mail or request a legal call, there is no statutorily or constitutionally prescribed right to have counsel during interviews or statements.[17]
Once someone in prison makes a report regarding sexual abuse, whether to the BOP internally or to external agencies like the OIG, they are subsequently subjected to repeated questioning by SIS, the BOP, the OIG or other federal agents. This process can feel daunting to anyone, but especially to incarcerated people — who, by definition, have had negative experiences with law enforcement.
Victims may be terrified of having to relive traumatic details of sexual abuse in front of multiple law enforcement officers or agents, without knowing their legal rights and without having an advocate present to provide practical as well as emotional support. The prospect of having to navigate the reporting process alone deters many incarcerated victims from reporting the issue altogether.
Complainants should thus be given the option to have an attorney or at least a non-BOP-affiliated advocate present at any interviews or proceedings regarding sexual abuse allegations against staff. Resources should be devoted to enlisting pro bono attorneys or trauma advocacy centers to provide such services, if the victims do not have the capacity or ability to retain an attorney of their choosing.
Law enforcement officers and agents who conduct the questioning should be required to inform complainants that they have the option to have counsel present at questioning. Knowing that they will not have to face interrogation by federal agents without support, more victims are likely to make timely reports regarding sexual abuse and get the help they need.
Even if such wide reform is not possible in the immediate future, it would be highly beneficial to ensure that security cameras are available throughout facilities so there are no blind spots where sexual assaults can occur. The formerly incarcerated women who testified before the December 2022 Senate subcommittee hearing emphasized how inadequate surveillance contributed to the perpetrators' conduct. They said the perpetrators flaunted their knowledge of the blind spots and threatened that no one would believe them without camera footage.[18]
Less than 24 hours after the women delivered their testimony to the Senate subcommittee, Congress passed the Prison Camera Reform Act, which was signed into law Dec. 27, 2022. While the Prison Camera Reform Act is a step in the right direction, to date, there remain numerous blind spots across BOP facilities that should be immediately remedied. Heightened camera coverage throughout the facilities benefits not only potential victims, but also corrections officers, in that better security and monitoring can be achieved overall.
Conclusion
Victims of staff sexual abuse continue to express reluctance to make contemporaneous reports and face investigation, especially while they remain in custody. The delayed reporting creates significant challenges in proving or disproving the abuse, as all the physical evidence is destroyed. Camera footage is often not available at all or overwritten after a few weeks.
By the time victims decide to speak up, they face an overwhelming informational gap where the government collects whatever evidence and testimony is available at that time. Victims are often left in the dark throughout the process.
Implementing the reforms discussed above would make a significant difference in victims' willingness to make reports without lapse, such that the truth can be determined, accountability decided, remedies provided and legitimacy of the institution restored.
Jaehyun Oh is a partner at the Jacob Fuchsberg Law Firm.
Disclosure: Oh represented several plaintiffs in cases related to M.R. v. FCI Dublin et al. She also represented one of the victims who testified to the Senate in 2022.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.eastbaytimes.com/2023/05/12/ex-correctional-officer-charged-with-sexually-abusing-3-inmates-in-california-federal-prison-cells/.
[2] As of the present date, five corrections officers including Highhouse have pled guilty to sexually abusing women; two officers including Garcia were convicted of all charges at federal jury trials; and one officer, Darrell "Dirty Dick" Smith, is awaiting a jury trial.
[3] California Coalition for Women Prisoners et al. v. Federal Bureau of Prisons et al., 4:23-cv-4155 (N.D.C.A.).
[4] See CCWP v. BOP, 4:23-cv-4155 (N.D.C.A.), Dkt. No. 473.
[5] https://apnews.com/article/federal-prisons-dublin-sexual-abuse-lawsuit-settlement-efd50a189859f73e4945a4e2e104137d.
[6] https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/2022-12-13%20PSI%20Staff%20Report%20-%20Sexual%20Abuse%20of%20Female%20Inmates%20in%20Federal%20Prisons.pdf.
[7] National Prison Rape Elimination Commission, June 2009 report, https://www.ncjrs.gov/pdffiles1/226680.pdf.
[8] https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/2022-12-13%20PSI%20Staff%20Report%20-%20Sexual%20Abuse%20of%20Female%20Inmates%20in%20Federal%20Prisons.pdf.
[9] Id.
[10] Id.
[11] https://www.hsgac.senate.gov/subcommittees/investigations/hearings/sexual-abuse-of-female-inmates-in-federal-prisons/.
[12] J.S. Welsh, Sex Discrimination in Prison: Title VII Protections for America's Incarcerated Workers, Harvard Journal of Law & Gender (2019), https://harvardjlg.com/wp-content/uploads/sites/19/2020/05/Sex-Discrimination-in-Prison.pdf.
[13] https://oig.justice.gov/special/0504/index.htm.
[14] See 18 U.S.C. § 2243 (c); N.Y. Penal Law § 130.05.
[15] See https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.
[16] Even when the victims report sexual abuse and share the details with the OIG investigators or prosecutors, they are often given no further updates regarding any investigation that follows, unless an indictment is brought many months or years later.
[17] As it would specifically be prescribed in trial or deposition, for instance.
[18] https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/2022-12-13%20PSI%20Staff%20Report%20-%20Sexual%20Abuse%20of%20Female%20Inmates%20in%20Federal%20Prisons.pdf.