Publications

Anti-Fraternization Polices and their Utility in Preventing Staff Sexual Abuse in Custody
By: Brenda V. Smith and Melissa C. Loomis
May 1, 2013

Many custodial facilities have implemented anti-fraternization policies that regulate contact between staff and inmates. These policies either limit, or altogether prohibit, interactions between employees and current or former inmates and their families. Correctional employees who are adversely affected by their agency’s anti-fraternization policies most often challenge these polices under the First Amendment, which guarantees the right to freedom of association. Courts generally uphold the agency’s anti-fraternization policy against such challenges, and cite the agency’s interest in maintaining a safe and secure facility. This document provides an overview of how courts across various jurisdictions have responded to employees’ challenges to anti-fraternization policies.

Legal Responses to Sexual Violence in Custody:
Using Existing State Mandatory Reporting Statutes to Improve Disclosure of Sexual Violence in Correctional Settings
By: Brenda V. Smith, Loren Ponds, and Melissa Loomis
2013

This publication provides an introduction to mandatory reporting laws, and how these laws can help corrections officials respond to sexual abuse in custodial settings, both offender-on-offender and staff sexual misconduct.  The importance of mandatory reporting laws cannot be overstated, given recent scandals involving the abuse of vulnerable populations, including youth. This publication provides insight into the utility of mandatory reporting laws, in light of the enactment of the Prison Rape Elimination Act of 2003 (PREA)

Legal Responses to Sexual Violence in Custody:
Protections Provided by Vulnerable Persons Statutes
By: Brenda V. Smith and Mary Beth Pavlik
2013

This publication discusses the intersection between groups traditionally recognized as vulnerable persons under the law, and offenders in federal, state, and local custodial settings. State and federal statutes define certain persons as “vulnerable” due to age or mental or physical handicaps, and provide enhanced penalties to persons who exploit those persons physically, emotionally, financially, and sexually. Under current law and sentencing guidelines, offenders who qualify as vulnerable persons do not receive the same level of protection in every state. This lack of protection creates a separate and particularly at-risk category of persons: vulnerable offenders.

Cross-gender Searches: A Case Law Survey
By: Brenda V. Smith and Melissa C. Loomis
February 1, 2013

Inmates and detainees retain a limited privacy right when detained in correctional settings, particularly in the context of cross-gender searches. Jurisdictions have approached the competing interests of privacy and cross-gender searches quite differently, finding liability for correctional officers, supervisors, and facilities under a variety of circumstances. These decisions are highly fact-sensitive, and the jurisprudence has evolved rapidly. This document provides an overview of cross-gender search cases in both state and federal courts, focusing on what types of conduct most often result in individual and supervisory liability.

Sexual Abuse in Custody: A Case Law Survey
By: Brenda V. Smith and Melissa C. Loomis
February 1, 2013

Under certain circumstances correctional officers and their supervisors can be subject to civil liability for sexual abuse of inmates and detainees under their care. Liability for sexual abuse can attach whether the abuse was perpetrated by a correctional officer, facility employee or volunteer, or by a fellow inmate or detainee. This document provides an overview of sexual abuse cases in both state and federal courts, focusing on what types of conduct most often result in individual and supervisory liability. It does not address other issues that may arise in sexual abuse litigation, such as exhaustion requirements under the Prison Litigation Reform Act, qualified immunity for officers acting in an official capacity, or Eleventh Amendment immunity for states and their employees. Facilities should be mindful that these issues can complicate sexual abuse litigation.

Legal Responses to Sexual Violence in Custody:
State Criminal Laws Prohibiting the Sexual Abuse of Individuals under Custodial Supervision
By: Brenda V. Smith and Jaime M. Yarussi
2009

Over the past decade, sexual abuse of individuals under custodial supervision has permeated the news. Media coverage has focused on criminal prosecutions of staff and on civil litigation brought by offenders against staff perpetrators, corrections officials and correctional agencies. These stories demonstrate that no correctional setting is immune from staff sexual misconduct. Many states have sought to address this problem in recent years by enacting criminal laws explicitly prohibiting staff sexual interactions with adults and youth under correctional supervision. This publication provides an overview of these laws and examines trends in their enactment and amendment.

Legal Responses to Sexual Violence in Custody:
Sex Offender Registration Statutes: Impact on Addressing Sexual Abuse in Custodial Settings
By Brenda V. Smith and Mary Elizabeth Pavlik
2012

This publication addresses sex offender registration and its utility as a tool for addressing sexual violence in correctional institutions.  While the publication primarily discusses correctional settings, the issues it raises also apply to other custodial settings, such as nursing homes and facilities for the mentally disabled and mentally retarded.