Raped by the Deputy: A Texas Case, A U.S. Problem

On Dec. 27, 2015, a sheriff’s deputy, armed and on-duty, raped a female inmate in the parking lot of the county jail in San Antonio, Texas. Six days later, the woman reported the assault. Her allegations could have easily been ignored, but for one detail: security cameras had recorded the attack in the jail transport van.

Deputy Erick Montez, 35, was arrested on January 12 and held on felony charges of sexual assault and violating the civil rights of a person in custody.

It’s a relief and victory anytime a law enforcement officer is held accountable for violent crimes; all too often, police brutality ends with the victim in a coffin and the perpetrator on the public payroll. (To name but a few examples: in our home of Austin, Texas, detective Charles Kleinert fatally shot unarmed and fleeing Larry Jackson Jr., who was Black; though county courts ruled Kleinert’s actions “unjustifiable,” he got off on a technicality, retiring with a full police pension. The officers involved in the shooting of Tamir Rice are both still receiving salaries while on restricted duty. The officer who fatally shot 26-year-old Jordan Baker, a father wearing a hoodie and flip-flops while riding his bicycle in Houston, then handcuffed him as he was wounded and lay dying, was never removed from the Houston police force and remains on the streets today. And the list goes on.)

We’re also tempted to celebrate Montez’s arrest because it influenced actual policy. Bexar County Sheriff Susan Pamerleau instituted an immediate operations change: Male corrections officers are no longer allowed to transport female inmates without accompaniment by a female officer.

Yet this pragmatic step has a chilling rationale: it suggests that male staff, unsupervised, can’t be trusted not to sexually assault female prisoners, which is particularly troubling when you consider that male guards are frequently in charge of female prisoners at corrections facilities.

This incident, and Pamerleau’s response to it, also raise many questions: What care and resources are survivors legally entitled to? What safeguards protect people from this kind of abuse? How do race, age, sexual orientation, gender identity, and disability status factor into victimization behind bars? What’s the data on sexual assault by male law enforcement officers on people in custody? And when no hard evidence supports an inmate’s claim, what happens?

A System Of Injustice

We asked James Keith, chief communications officer of the Bexar County Sheriff’s Office, the first three questions: what care the victim would receive, what race or ethnicity she occupies, and what safeguards would protect a recurrence of crimes like this one. His response? He replied that the department had issued a plea for anyone else who was assaulted by Montez to come forward. No details about the victim (identified in police documents as “C”) or about her access to recovery resources will be provided to the public, though we are to trust that she’ll be “taken care of.”

“This does not happen in our system; this is something we work very hard to make sure does not happen,” Keith told us. And indeed, Bexar County’s reporting of jail incidents suggests belief-defying odds. Inmates made 31 reports of staff-on-inmate sexual misconduct or sexual harassment in 2012, but jail officials named all 31 of the allegations “unsubstantiated” or “unfounded” and none resulted in charges. A report released last year and focused specifically on juveniles in detention revealed 19 cases of sexual harassment or misconduct by staff; of these, 13 were deemed “unsubstantiated” or “unfounded,” four were listed under “investigation ongoing,” and just two were deemed “substantiated.”

In addition to their consistent dismissal of charges, it seems that jail administrators believe that the small number of incidentsreported accurately reflects the number of incidents taking place—and as such, in their estimation, it’s evident that assaults in American jails do not often happen. Administrators either accept this as truth or are too invested in a punishment model to question the data—and rape is just part of the punishment, like the jokers say.

The mere existence of a program for collecting and analyzing information on prison sexual assaults represents long-fought, hard-won progress. It exists because of the groundbreaking federal Prison Rape Elimination Act, or PREA, passed in 2003. PREA was the first law to deal with sexual assault of prisoners. Its major impact was to create national standards for data collection and reporting about the sexual victimization of male, female, and transgender inmates in correctional facilities, including prisons, jails, juvenile facilities, military and Indian country facilities, and Immigration and Customs Enforcement (ICE) facilities.

Additionally, the PREA Resource Center was created, offering an online hub of information, research, training, technical assistance, and essential surveys and reports, including the National Inmate Survey. The law set out provisions for improvement; correctional facilities must now provide access to outside confidential support services, advocacy for hospital accompaniment, investigatory interviews, emotional support, crisis intervention, information, and referrals. Authorities and correctional facility operators who fail to comply with the law get a 5% reduction in federal funding for each year of noncompliance. PREA caused a sea change in public awareness, and seemed to put corrections facilities on notice that prison rape would no longer be tolerated.

But that’s the funny thing. At the current level of enforcement, as long as states provide a letter of “assurance” to the government that they’re working toward compliance, even the 5% budgetary punishment will be waived. An audit is required of one-third of the facilities in each state, but there is no real consequence to not conducting them. As such, PREA is largely funneling money into a performance art piece. Facilities go through the motions of posting signs about zero tolerance, collecting data and mildly investigating charges, and keeping their records in a locked filing cabinet for 10 years. Most report numbers to the feds. The government employs statisticians to organize the data as if to take meaningful action on it. And the brutality against the defenseless continues.

There’s no doubt that PREA has the potential to unmask and transform a rape epidemic. But lax enforcement and lip service to the law is a nationwide problem. Until January 2015, for example, Governor Rick Perry rejected and ignored PREA, calling it “counterproductive and unnecessarily cumbersome and costly.” Other Republican governors have done the same. Texas has nowsigned on to PREA, with the current governor, Greg Abbott, agreeing to a zero tolerance policy. In practice, however, there’s not enough oversight to even begin to implement—much less enforce—the standards.

Two entities are involved with cases in Texas’ county jails. The Texas Commission on Jail Standards is the state agency tasked with overseeing 246 county jails containing 60,000 people. But it has only four jail investigators, and it does not investigate sexual assault or criminal activity in the facilities. There’s also the Texas Ranger Division of state law enforcement, which is responsible for investigating criminal activity in county jails. In this case, jailers are trusted to self-report crimes of sexual assault perpetrated by their own colleagues to people who are essentially their enforcement allies. Unless the Rangers refer a case to the District Attorney, it will not be brought to the court. (Comprehensive information for prosecution of county jail-based crimes is not available.)

As for state prisons, The Texas Department of Criminal Justice (TDCJ) is the state agency with authority on over 142 state prisons housing 145,000 people. It does better, barely: it has one PREA ombudsman who oversees complaints and responds to allegations of sexual assault. This one person is responsible for prisons spread over 268,000 square miles.

Here’s how the journey of a single allegation goes through the system, based on what we’ve gathered researching all of the documents from all the different agencies about what part they play in the process: Prisons around the state do their own administrative investigations of allegations. Then they may send the reports to TDCJ’s ombudsperson, who reviews incidents. The ombudsperson determines which cases qualify to be sent to the Office of the Inspector General (OIG). The OIG then reviews incidents and determines if the cases qualify as crimes. If the OIG determines an incident qualifies as a crime and can be substantiated, it will then forward the case to a special prosecutor at the local district attorney’s office. The prosecutor may or may not decide to pursue the case.

To get a sense of the absurdity, let’s see how 766 outcries turn into zero substantiated cases. In 2014, the PREA Ombudsman office reviewed 766 allegations of staff-on-offender sexual abuse and sexual harassment. Of these 766, the ombudsperson sent 78 qualifying alleged incidents of Sexual Assault and 53 qualifying alleged incidents of Improper Sexual Activity with Persons in Custody to the Office of the Inspector General (OIG)—and the buck stopped there. The OIG declared that none of the allegations were substantiated. Zero cases were sent on to a prosecutor.

It wasn’t just a fluke year. An analysis by the Marshall Project found that between 2000 and 2014, the OIG referred nearly 400 cases of staff sex crimes against inmates to prosecutors in Texas. Prosecutors refused to try nearly half of these cases. Of the 126 jail workers who were convicted of sexual misconduct or assault, only nine were sentenced to serve time in a state jail. For most, the penalty was a fine between $200 and $4,000 and a few years on probation.

Sans an outside, neutral third-party called in to investigate each report, justice—despite lip service to the contrary—is almost never sufficiently served.

The Difficulty Of Speaking Out

With rape, we know numbers tell insufficient stories. So we also turn to narratives, from those who are familiar with the system.

To report, survivors must first survive assault. They must then preserve physical evidence, in spite of their trauma and revulsion. What waits is a long process potentially laden with potential blame, shame, stigma, interrogation, counterattack, and life-or-death risks. Imagine being put into solitary cell with just a thin blanket and steel toilet for several months, for being so daring.

One inmate we interviewed, on conditions of anonymity, wrote a grievance to the jail, reporting that a corrections officer was regularly sexually assaulting a mentally disabled, elderly man in his housing unit. The inmate hoped that the warden would investigate and protect the more vulnerable inmate. Instead, the man reports, he was beaten by guards and placed into administrative segregation—that is, solitary detention—for nearly three months. It was the consequence to his filing a grievance on behalf of someone else, calling attention to guard misconduct.

Diana Claitor is executive director of the Texas Jail Project, a small, mostly-volunteer nonprofit that advocates for victims and their families, and corresponds with incarcerated individuals who reach out by phone and handwritten letters, with nowhere else to turn. She notes:

“Sexual assault is happening at our jails and prisons; it’s just being ignored and considered unsubstantiated. There’s enormous stigma and shame around it, so reporting is very low. And it’s virtually impossible for an inmate or their family to get an investigation to take place. Nobody wants to admit that they were raped, and the trauma of it is paralyzing. The numbers are misleading.”

Consider that in Live Oak County, Texas, in 2013, three jailers stood trial for running a “rape camp” and forcing female inmates to do hundreds of sexual acts in exchange for food. Multiple victims came forward. Only three people were sentenced: two officers to a year, and one officer to a year and a half behind bars. The jail was never investigated to see if a culture of rape existed, despite numerous reports that inmates were being raped through the food tray slots in their cell doors in order to get food, among other nightmares, over a number of years. The attitude toward prevention was summed up by another officer on the police force: “We have a good staff now, and we’re focusing on training. You can’t stop something like that, unfortunately, if you have knuckleheads doing those things.”

Asked to comment on the alarming numbers of inmate-reported staff-on-inmate assaults in his own county, the Bexar Sheriff’s Department communications director, James Keith, said, “You have to understand that a lot of these people make allegations to be disruptive, to start trouble, to get even.”

It’s a time-honored victim-blaming posture. However, facts refute the claim: false rape allegations have been proven to be extremely rare. The National Sexual Violence Resource Center and the U.S. Department of Justice report that 1 in 5 women and 1 in 71 men will be raped in their lifetime, and only 2 to 10% of rape accusations are false. These figures themselves are often controversial, because as with most rape statistics, they are nearly impossible to verify because of the stigma associated with the crime. Part of what contributes to the stigma: the pervasive myth, rooted in sexism, that women make false accusations all the time. But according to the Rape, Abuse and Incest National Network, or RAINN, the majority of rapes go unreported; it is estimated that only about 2% of rapists will ever serve a day in prison.

The American public imagines sexual assault behind bars to be a cruelty that inmates inflict on each other—to release pressure, regulate power, and add extra punishment for those who’ve committed certain crimes like child molestation. Yet in actuality, according to Bureau of Justice statistics, inmates report much higher rates of sexual assault by jail guards and officers than by other prisoners, in all state and federal prisons and local jails.

Furthermore, National Crime Victimization surveys conducted by the Bureau of Justice Statistics between 2011 and 2012 found that for a female prisoner in a federal, state or local corrections facility, the likelihood of becoming a victim of sexual assault is roughly 30 times higher than that of any given woman on the outside. The same dynamics at work here may be the ones at play in other relationships between male guards and women: according to U.S. surveys cited by investigative journalists in a book on the topic, up to 40% of law enforcement officers abuse and batter their wives, girlfriends, and former partners. The abuse rate for cops is reportedly up to 15 times higher than among the public.

In America, sexual assaults within jails and prisons are not generally included in national crime statistics at all. This implies that these are not even seen as criminal acts, but rather as a natural, predictable part of serving justice. Sexual victimization is simply the shadow side of a jail or prison sentence. This chilling status quo is systemically accepted—by taxpayers who fund the facilities, by the jailers who have the rape risk-benefit analysis down to a science, and by lawmakers who fixate on punishment rather than rehabilitation.

As is common, the people most impacted by this systemic corruption are those with the least societal privilege and power. According to data released last year by the Department of Justice, 12% percent of LGB prisoners reported sexual victimization in prison and 8.5% reported sexual victimization in jail. For transgender individuals, the rates were even higher; nearly 40% of transgender prisoners reported sexual victimization in state and federal prisons and 27% reported sexual victimization in jail. The mentally ill are also more at risk for sexual abuse behind bars.

The Need For Change

No one, guilty or innocent, should be subjected to a climate like this. Yet this climate is documented and proven to exist across America. The group Just Detention International, a health and human rights organization which seeks to end sexual abuse in all forms of detention, has gathered many heartbreaking  survivor stories, such as Roderick’s: “For 18 months, from September 2000 to April 2002, I was subjected to a system of gang-run sexual slavery at the James Allred Prison in Texas . . . After I made complaints to prison officials, they told me, ‘Go down there and fight like a man, or get a man.’”

Another instance is the case of a 17-year-old boy, Rodney, in a Texas adult jail on charges of setting a fire in a dumpster. He was sentenced to eight years in an adult prison. After being raped repeatedly and desperately seeking help with letters to jail officials, he hanged himself in his cell at age 18. In his grievance letter he wrote, “I have been sexually and physically assaulted several times, by several inmates. I am afraid to go to sleep, to shower, and just about everything else. I am afraid that when I am doing these things, I might die at any minute. Please sir, help me.”

His mother Linda Bruntmeyer testified before the National PREA Commission, “Rodney tried to ask for help, and I tried too. But nothing was done. Rape in prison should not be tolerated. It destroys human dignity, it spreads disease, it makes people more angry and violent. It kills.”

We celebrate each rape report made, because we honor the strength and might of every victim.

We grieve each rape survivor who makes the choice to end their lives rather than exist in torture.

Our culture condemns other circumstances in which mass rape takes place, such as prisoner of war and refugee camps. It is ridiculous that we point at other nations when our own government’s Bureau of Justice Statistics has found through anonymous surveys that at least 200,000 adults and children are sexually assaulted or abused in U.S. prisons, jails, juvenile detention complexes, and immigration detention facilities each year; the numbers of reports are rising; and unknown numbers of foreign citizens are sexually tortured in American military prison facilities abroad, like Abu Ghraib. The public pays to build the complexes that these assaults take place in. We pay the salaries of perpetrators.

Annette Burrhus-Clay, the director of Texas Association Against Sexual Assault, says, “As a state, it’s imperative that we devote adequate resources to preventing sexual violence and serving survivor needs. To do otherwise seems both reckless and heartless.”

We need PREA to have teeth, and outcries handled by independent third-party investigators.

We need increased money for rape prevention education, consent, nonviolence, and gender equity taught in schools. We need a culture that values this as knowledge.

We need the conversation about victim behavior and choices to disappear from discussion, and rapist behaviors, choices, and the culture that grooms and excuses them to be centered and addressed. If male guards cannot be trusted not to assault prisoners, we need only female guards.

We need the staggering deprivation in Texas jails to be a national issue. Sexual abuse of incarcerated people, whether committed by officers, guards, staff, or other inmates, is a human rights violation and a form of torture.

Miriam Elizondo, co-executive director of the Rape Crisis Center in San Antonio, says,  “When it comes down to it, rape is about power and control and prisons are based in that, so they’re a prime place for it to occur.”

The system we wish to transform values neither life nor the repair of human beings. We do not want more people incarcerated. We want to move beyond environments of power and control; we want to change the dynamics inside and outside of prisons and jails to protect fundamental human rights of all people.

Originally posted at: http://www.theestablishment.co/2016/02/17/raped-by-the-deputy-a-texas-case-a-u-s-problem/