Processes and Practices Associated With Reporting and Investigation of Sexual Misconduct Within Prison: A Novel Case Study Constructed Through Litigation Documents

• Author: Rebecca Campbell,Gina Fedock,Deborah Bybee,Kathleen Darcy,Cristy Cummings,Sheryl Kubiak
• Published date: 01 March 2020
• Date: 01 March 2020
• DOI: http://doi.org/10.1177/0887403418812997
• Subject Matter: Articles

https://doi.org/10.1177/0887403418812997

Criminal Justice Policy Review

2020, Vol. 31(2) 182 –205

© The Author(s) 2018

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DOI: 10.1177/0887403418812997

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Article

Processes and Practices

Associated With Reporting

and Investigation of Sexual

Misconduct Within Prison:

A Novel Case Study

Constructed Through

Litigation Documents

Sheryl Kubiak1, Deborah Bybee2, Rebecca Campbell2,

Gina Fedock3, Kathleen Darcy2, and Cristy Cummings4

Abstract

The reporting and investigation of sexual assault within prison is complex. Although

prevalence data are available, there is little known about the processes and case

attrition within prison that mirror the attrition in the community between reporting,

investigation, and outcomes. This critical case study uses secondary data from a

class action litigation on behalf of incarcerated women who experienced staff sexual

misconduct in one state system. Multiple sources of data are used quantitatively and

qualitatively to examine prison processes. Prison Rape Elimination Act Standards are

used as a framework to interpret the analysis and illustrate potential barriers for the

successful implementation through case narratives. Although secondary data analyses

have limitations, these data would be difficult to obtain under other circumstances

and includes perspectives of the affected women and key institutional actors. The

goal of this study is to inform and improve the prison-based processes in service of

reducing and/or preventing victimization.

Keywords

prison, PREA, social policy, inmate assaults, correctional staff

1Waye State University, Detroit, MI, USA

2Michigan State University, East Lansing, MI, USA

3The University of Chicago, IL, USA

4University of North Florida, Jacksonville, FL, USA

Corresponding Author:

Sheryl Kubiak, School of Social Work, Wayne State University, 5447 Woodward Ave, Detroit, MI, USA.

Email: spk@wayne.edu

812997CJPXXX10.1177/0887403418812997Criminal Justice Policy ReviewKubiak et al.

research-article2018

Kubiak et al. 183

Sexual assault is a highly prevalent, but underreported crime, as most victims do not

report their assaults to legal authorities. Yet, even when victims do make formal reports

of their assaults, most cases are not investigated or prosecuted by the criminal/legal

system (Lonsway & Archambault, 2012).1 Legal case processing of sexual victimiza-

tion begins after the offense has been reported, but most reported cases “drop out” and

do not end in arrest or prosecution (Campbell, Patterson, Bybee, & Dworkin, 2009;

Kelley & Campbell, 2013).

A similar attrition occurs in cases of sexual victimization during incarceration.

This attrition may be further complicated if the perpetrator is a correctional staff

member. Although most national data show that nearly half of sexual victimization

incidents within prison are perpetrated by corrections staff (Beck & Johnson, 2012;

Struckman-Johnson & Struckman-Johnson, 2006; Wolff, Blitz, Shi, Bachman, &

Siegel, 2006), less than one quarter of these reported allegations are sustained

(Guerino & Beck, 2011; National Institute of Corrections [NIC], 2010). Because staff

perpetrated sexual victimization is defined as any “consensual” or nonconsensual

sexual contact by a staff person, as well as any invasion of privacy not required for

supervision (i.e., viewing during showering, etc.), the acts are not initially described

as “criminal” but referred to as “misconduct” and are subject to an administrative

rather than legal process.

The administrative processes, post reporting of staff sexual misconduct within the

United States, are generally outlined in departmental policies which, in most states,

comply with the processes laid out by the Federal Prison Rape Elimination Act (PREA)

guidelines2 (U.S. Department of Justice [DOJ]). Once a report of staff sexual miscon-

duct is executed, there is a “duty to investigate” (NIC, 2010; Smith, 2007). However,

and similar to community settings, there may be subjective initial determinations

made as to the credibility of the allegation and whether the case should move forward

to investigation (Campbell & Fehler-Cabral, 2018; Kelley & Campbell, 2013; Lonsway

& Archambault, 2012). In other words, prison staff members mirror the gatekeeping

role of police within the community, deciding which cases move forward.

Assessing case attrition within prisons allows for a greater understanding of inter-

nal processes and where they may be improved. However, prisons are closed institu-

tional settings (Foucault, 1979; Goffman, 1961; Hearn & Pankin, 2001) and there is

little opportunity to assess such processes and case attrition (Jenness, Maxson,

Sumner, & Matsuda, 2010). Although PREA has focused attention on the issue of

victimization during incarceration, there has been little attention to the nuances in the

processes between reporting, investigation, and case outcomes (i.e., substantiation of

report). Moreover, most of the attention on prison rape has focused on inmate perpe-

trators and male victims. This article uses data from a class action litigation on behalf

of female prisoners alleging staff sexual misconduct. The data, including victim state-

ments and institutional investigation records, are used to illuminate how specific

PREA regulations may affect reporting and the generally hidden attrition between

reporting and case outcome. Thus, the goal of this description and illustration is to

inform and improve the prison-based processes in service of reducing and/or prevent-

ing victimization.