Raped behind bars
|By Dave Maass|
Detention authorities have a year to enact a zero-tolerance policy toward sexual assault
Joe was presented with a choice: Get in the cell with the stranger or get written up.
It was the summer of 2009. Joe was 41, openly gay, HIV positive and serving a three-year sentence on attempted robbery charges at Richard J. Donovan Correctional Facility, a prison in Otay Mesa run by the California Department of Corrections and Rehabilitation (CDCR). Joe had asked to be removed from the general population after being threatened by another inmate. But there were no open cells in administrative segregation, or Ad/Seg, so he was told to share.
Joe couldn't have known that the man in the cell, whom we'll call Taylor, was a convicted rapist. In 1991, Taylor picked up a woman and drove her to a park, where he beat her, sodomized her, raped her and forced her to perform oral sex. She escaped to a nearby house and pounded on the doors. The occupants called the cops, who found her there with a swollen face and a dress stained with blood and fecal matter. Taylor was sentenced to 72 years in prison for committing the sexual assault while knowingly carrying HIV.
Joe couldn't have known that Taylor had been charged with battering and injuring his cell mate in an altercation a week earlier. Had CDCR followed protocol, Taylor would've been on mandatory single-cell status.
Joe maintains that the guard told him Taylor was an "all right guy." So, he went in the cell.
This time, Taylor's victim would not escape.
This is a story about sexual assault in prisons and jails in San Diego County. It will be difficult to read.
"Prison rape" is a term of convenience, an umbrella that we can use to avoid describing in detail the many ways in which a person may violate another. But those details are important.
"This is not love-making," Joe says in a telephone interview. "This is nothing like that."
Joe wrote out by hand what happened to him at Donovan in a 19-page sworn declaration. Without the details, from the agony of the first anal penetration to the oral copulation performed under the tacit threat of getting shanked, it's hard to understand how a predator can turn another man into his bitch in just four days.
The details are important in law enforcement, as well. The criminal code doesn't recognize the rape of men. A man can be forcibly sodomized, but a rape charge legally requires a female victim. Instead, prosecutors ask questions about anatomy, the kinds of force and threat employed, to select the most appropriate charge from a long list of options.
This is also a story about rapists in the community who become rapists in prison.
"It's a question a lot of people wonder about: How do people behave when they've been convicted of sex crimes?" San Diego County Deputy District Attorney Wendy Patrick says. "I've seen lots of people sort of fall on their swords and say, I'm so sorry. I want to have an opportunity to apologize to the victim.' And then, on the complete opposite end of the spectrum, you see guys like this."
Patrick's talking about an unrepentant young man we'll call Jason, who raped a woman on the outside and then sexually assaulted two men while in county jail. He's the only San Diego inmate in the last 10 years to be convicted by a jury of sexual assault of another inmate.
Yet, sex assault is common in San Diego's lockups and could be getting worse. Federal research indicates that hundreds of people, if not thousands, have been assaulted in local facilities. In 2011, the San Diego County Sheriff's Department recorded its highest number of sexual-victimization allegations in six years.
In May 2012, the U.S. Department of Justice approved official guidelines for combating sexual assault as part of the Prison Rape Elimination Act of 2003 (PREA). Corrections systems that receive federal funds have until August 2013 to comply. Within a few years, the public may have a much clearer picture of a notoriously elusive crime.
The question is whether, as a society, we're willing to face it.
This story contains graphic descriptions of sexual abuse.We have changed the names of the victims to protect their privacy, but we've also changed the names of the alleged perpetrators over concerns for their safety.
Joe's first two days with his new "cellie" were uneventful as Joe awaited a classification-committee hearing. The panel agreed that Joe should remain in Ad/Seg, not only because of the threats he'd received, but because of the problems associated with his homosexuality and "feminine" appearance.
The description that follows is drawn from Joe's handwritten account.
The evening after the hearing, Taylor started his terror campaign by capturing a mouse. He played with it, squeezed it in his hands and threw it in the toilet to watch it drown.
"I am God," Taylor said.
The next day, he began making jokes about sex. He seized Joe's inhaler, smashed it and used the parts to form a foot-long, sharp needle. In the evening, Taylor caught another mouse, again drowning it in the toilet.
After lights out, Taylor rose and stood naked over Joe. He slapped Joe on the butt and said, "Come on, girl. You know you want this." Joe said no, and Taylor yanked him off the bed by his ankle, forced his face into the sheets and began pulling down Joe's boxers. When Joe screamed for help, Taylor grabbed the makeshift needle.
"I just froze," Joe writes. "I stopped crying and everything. I thought he was going to kill me. He didn't say anything. He just came over to me, turned me around, pushed me over and pulled my shorts down. I saw him grab his penis. I closed my eyes. I just wished him away. But he didn't go away. Then I felt his hand on my back
. There was a lot of pain. It hurt so bad that I yelled really loud. It must have been pretty loud because he put the shank up to my face and said, Shut up, bitch, and take this dick.'"
Joe tried to get the attention of the guards without arousing the suspicion of his cellmate, but the guards wouldn't take him seriously when he said he was "having real problems" with his cellie. On the fourth day, Taylor was taken out for a medical exam, and Joe used the opportunity to tell a staff member in no uncertain terms that Taylor had been hurting him sexually.
When they put Joe in the isolation cage, he says he fell to the floor and cried uncontrollably.
For the last six months, CityBeat has attempted to compile a statistical picture of sexual assault in San Diego's regional detention facilities, pulling together data from multiple agencies. There are many ways to look at the problem, but none of them full views.
Between 2003 and 2011, the San Diego County District Attorney's office investigated a total of 26 allegations of sexual assault in detention—18 reported by CDCR at Donovan and eight at the jails by the Sheriff's Department. Of those eight, five were recorded in 2011.
But those numbers include only the allegations that jail and prison guards thought were substantial enough to send to the D.A. for prosecution. Many more were never pursued for lack of evidence.
As part of PREA, the sheriff files an annual report with the U.S. Bureau of Justice Statistics (BJS) called the Survey of Sexual Violence. Inspecting reports filed since 2006, CityBeat found that a total of 46 allegations had been recorded by regional jails. In at least one case, the perpetrator, a woman, had abused three different women. Most of the cases were dropped due to a lack of evidence to substantiate the allegations. Similar data was not available for Donovan prison.
Between the D.A.'s records and the surveys, that's 65 allegations since 2003, and that's still nowhere close to an accurate picture. Those figures represent only what inmates voluntarily report to authorities.
"We find much higher rates when we do an anonymous survey," Dr. Allen Beck, the BJS analyst who oversees prison-rape data, says. "Victims might not always come forward because there may be consequences, or a fear of retaliation or violating some code of silence."
In 2007, BJS researchers surveyed the 4,166 inmates at Donovan. Asked if they'd been sexually victimized in the last year, 6.1 percent said yes, compared with a national average of 4.8 percent. BJS rated Donovan the eighth most dangerous prison for sexual assault in the country.
That same year, BJS also queried the 1,724 inmates at the George F. Bailey jail—5.1 percent said they'd been victimized in the previous six months. The national jail average was 3.3. percent. BJS further noted that Bailey had the third highest rate of injury related to sexual violence among U.S. jails.
BJS came back to San Diego in 2008 and 2009 to poll the 1,077 inmates at the San Diego Central Detention Facility. This time they were asked if they'd been victimized in the previous year—6.7 percent said yes. It was the second highest rate of 25 California jails in the survey and more than double the 3.1-percent national average.
The numbers indicate that hundreds of inmates are sexually assaulted in San Diego County each year.
Yet, only three cases have been prosecuted since 2003.
One night in 2006, a 6-foot-tall, 200-pound inmate at Donovan decided to celebrate his 24th birthday by sodomizing his 5-foot-2-inch-tall roommate. The inmate wasn't able to force his penis into the victim, partly because of size, but also because of the struggle. Instead, he ejaculated onto the victim's buttocks and legs.
The victim, who required a Vietnamese translator in court, alleged that he'd been threatened with a pen, told he'd be killed or have his penis chopped off. A medical exam found blunt force trauma around the victim's anus, and a DNA test confirmed the presence of the cellmate's semen.
In court, the defense attempted to discredit the victim as a sexual deviant by noting that he had a small marble inserted in his penis. When the court rejected the fact as irrelevant, the defendant accepted the district attorney's plea deal. He copped to having sex with his cellmate and had three years added to his sentence.
One of the major challenges in these cases is witness credibility—if there are any witnesses—since, in a detention setting, most have their own criminal baggage.
Joe's 2009 rape was the second case pursued by the D.A., but it was dropped when Joe's credibility took a hit during a preliminary hearing. Sitting feet away from his attacker, Joe couldn't keep his days straight and stumbled when explaining why he hadn't asked for help sooner. Deputy District Attorney Hector Jimenez, the prosecutor who'd also worked the 2006 case, spoke with Joe, and they agreed there wasn't much of point in continuing.
"To be honest with you, I'm not sure if he was sodomized," Jimenez says. "I do believe there was sexual intercourse. I'm just not sure it was not consensual."
The third case involved Jason. In 2010, the 19-year-old man brought a young woman he met at a bus station to his hotel room. He broke her nose, raped her vaginally, sodomized her and forced her to perform oral copulation until she gagged.
A couple of days after his conviction in February 2011, Jason began sexually assaulting other inmates at the George Bailey jail. Jason grabbed one inmate in the bathroom, pushed him up against a wall, pulled his pants down and jammed a finger in his anus. The man got free, and as he ran away, Jason told him he was going to make the victim "suck on his thing down there."
Two days later, Jason forced to his cellmate to the floor and tried to pull both of their pants down. Jason tried to insert two fingers into the victim's anus. The victim clenched his buttocks and continued to resist long enough for the guards to make their rounds.
A jury convicted Jason in January 2012. Deputy District Attorney Patrick said the case succeeded because there were witnesses who each saw a little piece of the assaults, but, also, multiple victims were willing to testify.
"That's a tough thing to do," Patrick says. "It's a little bit analogous to why for a long time men were hesitant to report sexual harassment. It's not the easiest thing in the world for a man to come forward and tell the police that he has been sexually assaulted by another man. That is basically what happened in this case. There's always some reluctance, but there is also a sense of, you know, It's just not right that I have to put up with this.'"
"The only thing I want is to take this anger away from my heart because my life has been destroyed already," the victim writes from jail. "I want him to do the death row so he won't be a threat to the community. What he did, there's no forgiveness from God or from me.... People make mistakes and what he did was not a mistake."
Jason also wrote a letter to the court during the sentencing stage, proclaiming his innocence and citing Dr. Martin Luther King Jr.
"I'm asking you to get me some justice, because what happened in regard to the guilty verdict was an injustice," Jason writes. "The only evidence you have comes from two inmates who can't be believed."
In April, Jason was sentenced 25 to life. He is currently at Donovan.
In 2003, President George W. Bush signed the Prison Rape Elimination Act (PREA), establishing a national goal of zero-tolerance for sexual assault of prisoners. For the last nine years, the Justice Department has focused on collecting data and establishing corrections guidelines that would reduce sexual victimization behind bars.
Those guidelines were turned into a final rule in May and contain a comprehensive list of reforms, ranging from publishing data and standards online to developing new ways for inmates to report abuse The guidelines call for facilities to designate primary PREA officers, institute new evidence protocols and implement greater sensitivity in policies regarding LGBT inmates. Just Detention International (JDI), the national organization formerly known as Stop Prison Rape, is especially optimistic about the re quirement that detention facilities forge partnerships with outside rape-crisis centers.
If all goes well, the problem will seem to worsen before it gets better.
"Really, with this issue, initial progress does mean an increase in reports," JDI Deputy Executive Director Linda McFarlane says. "Then, you'd expect over time to see those reports level off, and as prevention strategies get better, to see them decrease."
CDCR describes itself as an early adopter of the guidelines, having hired a PREA coordinator and analyst who work out of the statewide female-offender and special-housing unit. Meanwhile, the Sheriff's Department is just beginning to look at the guidelines and can't yet say how fully it will implement them.
"I think it's too soon to tell," says Commander John Ingrassia, who heads the county's Detention Services Bureau. "Obviously, it will take some staff time to go through it, but to what extent we'll change anything is unknown. On the surface, it doesn't look overwhelming at this point."
Nationally, the cost of compliance is expected to reach $6.9 billion during the next 14 years, or about $469 million per year—but states that fail to meet the requirements risk losing 5 percent of their prison-related grants. No similar sanction exists for local agencies like the San Diego County Sheriff's Department.
But a failure to implement them could result in legal liabilities.
"These standards are now the law of the land," McFarlane says. "What that means is that no facility can say that they didn't know, that they didn't realize that there were certain protections they should put into place. Now if somebody does get hurt and chooses to bring a lawsuit, there's going to be a precedent out there that facilities should have followed."
From prison, Joe filed grievances, then appealed those grievances when CDCR rejected them with claims that staff had made no errors. Joe wrote out his 19-page account and filed it as a lawsuit in federal court. He sent letters to law firms and issue-oriented legal associations, such as the ACLU and Lambda Legal, asking for help. Most politely refused him, but he eventually found rep Morrison & Foerster.
Joe was released from prison in 2011 but continued with his lawsuit. By May 2012, with depositions completed, Joe's legal team had forced CDCR to acknowledge it hadn't followed policy: Taylor should've been on single-cell status.
Joe accepted CDCR's settlement offer at the end of June. He lives with his mother and began dating again a few months ago, with intimacy. He's also trying to learn to trust the world again.
"I love my country, and I love the way that it works," he says. "The laws are there for when people screw up. You screw up, you pay the penalty. But sometimes that penalty is more than it's supposed to be."