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State wouldn't sign on to prison-rape law before inquiry

by Jeannie Roberts | June 13, 2015 at 3:59 a.m.

Less than a month before the U.S. Justice Department announced an investigation into sexual-abuse and harassment allegations at an Arkansas prison unit, Gov. Asa Hutchinson told the agency the state couldn't comply with the national Prison Rape Elimination Act.

In March, the Office of Justice Programs and the Office of Violence Against Women sent letters on behalf of the Justice Department to the nation's governors, explaining the state's responsibilities under the act and asking for certification letters that the states were in compliance or a letter of assurance that they would work toward complete compliance.

In a May 15, 2015, letter to the Justice Department, Hutchinson said the state could do neither for any of the state's detention agencies -- the Arkansas Department of Correction, the Arkansas Department of Community Correction or the Youth Services Division.

Arkansas is one of only five states -- the others are Alaska, Arizona, Idaho and Utah -- that declined to offer certification or an assurance of compliance with the national Prison Rape Elimination Act.

The Justice Department and state Correction Department Director Wendy Kelley each released a copy of the letter upon request by the Arkansas Democrat-Gazette.

J.R. Davis, a spokesman for Gov. Asa Hutchinson, declined Friday to comment on the letter. However, Davis said the Correction Department acted "quickly and appropriately" when an allegation of sexual misconduct at the McPherson Unit near Newport came to light in December.

On Thursday, the U.S. Department of Justice announced it was investigating "numerous allegations" concerning multiple staff members at the McPherson Unit, an 807-bed women's prison.

A Justice Department news release said the allegations included reports of staff members engaging in intercourse and other sexual acts with prisoners, mistreating transgender women, trading commissary money for sex and inappropriately watching prisoners while they showered or changed clothes.

Allegations also concerned staff members taking photos or video for "reasons unrelated to correctional goals," the release said.

"The Governor and ADC take these matters very seriously and will cooperate fully with the DOJ during the course of its investigation," Davis said in an emailed statement. "ADC will continue to closely monitor the McPherson unit to address any systematic problems that may be present."

Prison spokesman Cathy Frye said Friday that the Correction Department is aware only of the December allegations by two inmates that they had been sexually involved for 3½ years with a former chaplain. The department referred the complaint to the Arkansas State Police, and the case was turned over to 3rd Judicial Circuit Prosecuting Attorney Henry Boyce in April.

"If the U.S. Justice Department has knowledge of any additional allegations, it surely will provide us with the information so that we can investigate and take appropriate action," Frye said in an email.

Arkansas inmates are more than twice as likely to be the victims of a substantiated instance of sexual abuse or harassment than state and federal prisoners nationwide, according to a January 2014 report from the Bureau of Justice Statistics.

The report, which covered data from 2009-11, showed 11 substantiated cases in Arkansas' state and federal prisons, five of which concerned staff violations regarding inmates.

The McPherson Unit was specifically mentioned in a 2010 report from the Bureau of Justice Statistics titled "Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09." About one in 10 -- or 10.3 percent -- of the 224 McPherson Unit inmates who responded to the survey reported being sexually abused.

"Given the high statistics of sexual assault in Arkansas prisons, it is a bit of a head scratcher that the governor declined to participate in [the Prison Rape Elimination Act]," said Jesse Lerner-Kinglake, spokesman for Just Detention International, a nonprofit organization formed in 1980 in California that aims to stop sexual victimization of prisoners.

"The Prison Rape Elimination Act is a powerful and important set of regulations to help facilities do their job to protect their inmates. Arkansas should have submitted an assurance at least," Lerner-Kinglake said. "Why would any state opt out?"

Congress passed the Prison Rape Elimination Act in 2003, and in 2012 released the first comprehensive federal rules aimed at "zero tolerance" for sexual assaults against inmates in prisons, jails and other detention facilities.

The standards are binding on federal prisons but not for state facilities. States that do not comply could lose 5 percent of their Justice Department funding unless their governors certify that the same amount of money is being used to move toward compliance.

Prison-accreditation organizations also will be barred from federal grants unless they include similar anti-rape standards in their accreditation processes.

Hutchinson said in the May 15 letter that the state implements and trains on national Prison Rape Elimination Act standards, but the state "cannot presently certify full compliance" or "submit an assurance of future compliance."

"Arkansas remains committed to eliminating sexual abuse in its correctional facilities and will continue to diligently implement, as fully as possible, the policies of the Prison Rape Elimination Act," Hutchinson wrote in the letter.

Kelley said Friday that she had urged Hutchinson to decline to offer certification or assurance.

Coming into full compliance would be nearly impossible and compromise staff opportunities for advancement, Kelley said.

Specifically, Kelley pointed to a 1995 lawsuit brought against the state and the Correction Department by the Department of Justice that claimed the state was discriminating against female employees because they were not allowed to work in male housing units.

As part of the $7.2 million settlement, the prison system now allows women to work in all housing areas, except in posts where routine strip-searches are a major part of their job duties.

The Prison Rape Elimination Act bans cross-gender viewing and pat-downs of women inmates.

It also requires that transgender inmates be housed not by their birth gender, but by how best to ensure a transgender inmate's health and safety. This means that a female guard at a women's prison could be required to pat down a transgender inmate with male genitals, a violation of the Prison Rape Elimination Act.

"We have tried very hard to assure that men and women have the opportunity to receive training and experience in order to advance their careers," Kelley said. "If they are restricted from performing a vital part of their job, then those opportunities are limited."

The number of units where female employees could be assigned would be reduced -- which means an overall reduction in female employees departmentwide, Kelley said.

The Prison Rape Elimination Act standards also require that an employee of the opposite sex entering a housing unit verbally announce themselves. Kelley said this practice lessens the ability to enforce rules and conduct inspections.

"If an inmate is indulging in something he's not supposed to, and a female guard hollers out that she's coming in, this gives them the opportunity to dispose of contraband," Kelley said.

Kelley said a recent decision she made to allow a 17-year-old to attend a boot camp to earn early release would also be a violation of the federal standards, which dictate that juvenile inmates must either be separated from the adult population or have an officer with them at all times.

Minors are currently housed at the Ouachita River Unit.

"If we were fully compliant with PREA, I couldn't have given him that opportunity," Kelley said of the teenager.

The required three-year audit by an outside agency for Prison Rape Elimination Act compliance would also cost the prison system about $100,000.

"We conduct internal audits with our staff," Kelley said. "I'm not willing to pay for a PREA-certified auditor, especially since compliance is based on pass or fail. If you are out of compliance on one thing, then you fail."

Kelley said inmate safety is the top priority. The department has continually implemented and updated policies and training to prevent sexual violence between inmates, and between staff and inmates.

Employee discipline is swift when it comes to sexual-abuse allegations, and procedures for inmates to safely report sexual abuse are strong, Kelley said.

The department is in the final planning stages of an agreement with the Arkansas Coalition of Sexual Assault to offer victim-advocacy services to the inmates. The program would allow inmates to report abuse to an outside source, and advocates would be assigned to see inmates through medical procedures and court proceedings.

Kelley said the majority of inappropriate relationships reported involve female prison employees and male inmates. The training for male and female staff members includes techniques to remain empathetic while not crossing professional lines.

"We do have this issue, which is inexcusable," Kelley said. "But we are committed to addressing it head on and to continue working toward the safety of all of our inmates."

A Section on 06/13/2015

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