41-d-3 Sexual Assault and Rape

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

41-D-3. Sexual Assault and Rape

(a) Your Right to be Free from Sexual Assault and Rape

The rate of female sexual assault varies dramatically between prisons. The highest reported rate currently shows that one in four women are assaulted during their time in prison.¹³⁴ While a prison official is permitted to touch you for security reasons, for example in a legal search, he or she is never allowed to touch you in a sexual way. Under federal law, it is illegal for a prison official with "custodial, supervisory, or disciplinary authority" to engage in any type of sexual conduct with prisoners.¹³⁵ In federal prisons, it is also a felony for prison officers to obtain sex from a prisoner by using violence or the threat of violence, or to have sex with a prisoner after making her unconscious with drugs or alcohol.¹³⁶ Almost all states also have laws that make sex between prisoners and prison officers illegal.¹³⁷ Check your state's laws to see what kind of protections you are offered.

Even consensual sex between a prisoner and a prison official can be a violation of the Eighth Amendment or a crime under state law.¹³⁸ In New York, sexual contact between an employee of the New York State Department of Correctional Services and a prisoner-even with the prisoner's consent-is considered rape.¹³⁹ The reason for this policy is that prison officials may attempt to abuse their position of authority to get sexual favors from prisoners.

Prison officials may also be liable for the acts of another prisoner under the Eighth Amendment. The officer will be liable if you are sexually assaulted by another prisoner when the officer knew that you faced a substantial risk of serious harm, but did nothing to protect you.¹⁴⁰ For example, if prison officials knew that you were going to be sexually assaulted by another inmate and did not try to prevent the assault, that could be a violation of your Eighth Amendment rights.

(b) What should you do if you have been raped or sexually assaulted?

If you have been raped or sexually assaulted, you should tell someone immediately and request to go to the hospital. Getting a medical exam (including a vaginal inspection and blood tests) at a hospital emergency room or other medical facility after you have been raped is important for several reasons:¹⁴¹

(1) Internal injuries can be assessed

(2) Some injuries that you can't see or feel can only be detected by examination.

(3) Pregnancy can be prevented. If you are not using birth control, "morning-after" emergency contraceptives greatly decrease the chance of pregnancy.

(4) Evidence can be collected. Physical evidence that can identify and convict your rapist can be captured and stored in what is called a "rape kit."

A rape kit is evidence that can be used in court if you choose to bring charges. Many hospitals have "Sexual Assault Rape Trauma" nurses (called "SART nurses") who specialize in collecting evidence from rape victims. You should ask at your hospital if there is a SART nurse available to collect your rape...