Trans Victory in Prison Rape Elimination Act Complaint

BY ARTHUR S. LEONARD | The State of Maryland has accepted most of the recommendations from a state administrative law judge requiring its Division of Public Safety and Correction Services to implement key elements of the federal Prison Rape Elimination Act, a statute whose regulations address important issues regarding how to treat transgender inmates. The August 17 announcement from Stephen T. Moyer, the Division’s secretary — in response to Judge Denise Oakes Shaffer’s April 1 ruling on a grievance brought by inmate Neon Brown — has been described in some media accounts as the first legal victory by a transgender inmate under the PREA.

The PREA was enacted with bipartisan support in both houses of Congress in 2003, following hearings and studies documenting the epidemic of sexual assault in the nation’s prisons. The legislation was intended to establish common-sense policies to reduce such violence, but Congress did not specifically authorize inmates to bring lawsuits to enforce their rights.

Brown’s grievance made clear how far short the good intentions of PREA can fall. Corrections staff at the state’s Patuxent Institution, where Brown was incarcerated for purposes of a mental health assessment from February 4 through April 11, 2014, professed ignorance about the PREA and the specific regulations concerning transgender inmates. In trying to decide how to conduct a strip search of a transgender inmate, for example, Orlando Johnson, the facility’s chief of security, testified that it was a “make it up as you go” situation.

Maryland’s agreement to abide by administrative judge’s recommendations is a first under federal statute

When Brown arrived at Patuxent, she was immediately separated from the other inmates and taken to the medical unit. All incoming inmates are strip-searched for the purpose of detecting and confiscating contraband, but it was clear from Johnson’s testimony that officers were also looking to see “if the inmate made the transition from female to male” (in fact, she was transitioning from male to female). The strip search was conducted by two corrections officers in the presence of medical unit staff. A female corrections officer searched the top half of Brown’s body, and then she was allowed to put on a top garment and a male officer searched the lower half of her body. Since hormone therapy led Brown to develop breasts while she had male genitals, Johnson decided to put her into administrative segregation — isolation — having judged that as a transgender inmate she posed a “possible threat to the security of the institution.” Neither he nor anyone else made an individualized risk assessment of Brown’s vulnerability at that time. Indeed, even before she arrived, officials had decided on isolation for her. The psychiatric evaluation on Brown was completed by February 20, but Patuxent kept her in isolation for another 50 days and on only one occasion was she given access to recreational facilities.

Brown claimed she was deprived of showers, but Judge Shaffer found she actually was allowed to shower, though not without adverse incident. “On at least one occasion,” Shaffer wrote, “unidentified correctional officers pulled a curtain back to stare at [Brown] while she showered,” and this was “not done for security purposes.”

Brown testified that throughout her time there she “was taunted and harassed by Patuxent employees,” particularly Sergeant Dawn Halsey, “who repeatedly referred to the Grievant as an ‘it,’” Shaffer found. “Sergeant Halsey told the Grievant that she was not a real woman and should kill herself. These statements left the Grievant feeling belittled and contemplating suicide.”

The judge also found, based on testimony by another inmate in an adjoining cell as well as Brown, that correctional officers would stare into Brown’s cell, “not for the required purpose of determining whether she was alive, but to gawk and ‘giggle’ at her.” These officers “would threaten the Grievant and call her names,” leaving her in tears at times.

Patuxent had no formal policy “mandating zero tolerance towards sexual abuse or harassment of transgender inmates,” provided no instruction to staff about how to relate to them, and when Brown complained to the chief psychiatrist, her complaints were not investigated.

When Brown was able to get her grievances in front of Shaffer, the judge found that the improvised strip-search procedure did not itself violate the PREA, but that aspects of the intake process did. Strip searches of new inmates to detect contraband are a fact of life in prisons, but strip searches to determine the physical sex of an inmate are not. Shaffer found that questions about the genital status of an incoming transgender inmate could be addressed through interviewing without the need for a physical examination.

Turning to Brown’s incarceration in an isolation unit, Shaffer quoted regulations stating that “inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers.” If that assessment has not been completed, an inmate should be held in isolation for no longer than 24 hours, and even if it’s concluded that isolation is the best available course, that should last no more than 30 days.

Clearly, Patuxent violated these regulations.

Shaffer credited Brown’s account when she testified, “The officers, they just treat me like crap. They talk — they call me all types of fags, and how — why do I want to get breasts, what makes me think that I’m a woman.” Brown was told that she was “disgusting” and was made to feel like “some type of animal… like I was just less than a human being.”

“Based on the Grievant’s testimony,” Shaffer wrote, “I am persuaded that this type of disparaging behavior began almost immediately and continued through the Grievant’s stay at Patuxent.”

In addition to finding that the facility was out of compliance with PREA, Shaffer found that Brown’s treatment by the staff was hostile environment sexual harassment. Although she was not physically abused, she was mentally abused. Shaffer concluded that Brown had not documented her claim for $75,000 damages for mental anguish, but she did recommend a payment of $5,000 in damages. The judge also recommended that the Division determine “what, if any, disciplinary action should be taken against Sergeant Halsey,” and recommended that Patuxent adopt comprehensive policies and institute mandatory training.

The only one of Shaffer’s recommendations that the State rejected was that Brown be given credit for good behavior for her time at Patuxent, Division Secretary Moyer arguing it was “entirely speculative” that she would have earned the credits had she received different treatment.

Brown was represented in this process by two attorneys, Rebecca Simpson and Jer Welter.

Widespread reporting of this decision could be beneficial given that many states have been dragging their feet in complying with PREA. Disciplinary consequences for corrections staff and damage awards to harassed and mistreated inmates may make the PREA appear more concrete to corrections officials nationwide.

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