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Statement of Cynthia A. Schnedar, Counselor to the Inspector General, U.S. Department of Justice, Office of the Inspector General, before the National Prison Rape Elimination Commission

Thank you for this opportunity to appear before the National Prison Rape Elimination Commission to discuss the work of the Department of Justice Office of the Inspector General (OIG) regarding staff sexual abuse of federal inmates. I will begin by describing a recent change in the federal law which increased certain penalties and broadened federal jurisdiction for cases of staff sexual abuse of federal inmates. I will then provide information regarding the OIG’s efforts to vigorously investigate staff sexual abuse cases.

When Inspector General Glenn Fine testified before this Commission on June 14, 2005, he reported to you the results of an OIG review issued earlier that year that examined sexual abuse of federal inmates by correctional staff. In particular, the report highlighted several shortcomings of what was then federal law in deterring staff sexual abuse.

Federal law criminalizes all sexual relations and sexual contact between federal corrections staff and inmates. See 18 U.S.C. §§ 2241, 2243, and 2244. Consent is never a legal defense for corrections staff who engage in sexual acts or sexual contacts with inmates. However, as the OIG concluded in its April 2005 report entitled Deterring Staff Sexual Abuse of Federal Inmates, the laws then in place were insufficient for deterring sexual abuse at federal correctional facilities.

The federal crime of sexual abuse of an inmate without the use of force or overt threats was only a misdemeanor punishable by a maximum sentence of 1 year, and the federal crime of sexual contact of an inmate without the use of force or threats was only a misdemeanor punishable by a maximum of six months. Further, the federal laws covering sexual abuse of inmates did not apply when the federal inmates were held in facilities under contract to the federal government rather than in BOP facilities. Similarly, the federal laws criminalizing the introduction of contraband into the prisons did not apply when the federal inmates were held in contract facilities.

Based on its work in this area, the OIG believed that misdemeanor penalties were too lenient for sexual abuse or sexual contact of an inmate without the use of force or overt threats. Because prison employees control many aspects of inmates’ lives, in most cases prison employees can obtain sex from inmates without resorting to the use of force or overt threats. This type of sexual abuse can present serious dangers to staff, correctional facilities, inmates, and society. Staff sexual abuse can also undermine the security of institutions by corrupting staff members and increasing rivalry among inmates. Moreover, the abuse can significantly harm inmates by inflicting psychological and emotional trauma. Despite the harm caused by these crimes, the OIG also found that many federal prosecutors were not pursuing these cases, regardless of the strength of the evidence, because the crimes were not felonies.

The second deficiency the OIG identified in federal law covering sexual abuse of inmates was that the laws did not apply when federal inmates were held in facilities under contract to the federal government rather than in facilities operated by the Federal Bureau of Prisons (BOP). The OIG found that state prosecutors inconsistently prosecuted these cases because many states focus their limited resources on sexual abuse against state, rather than federal, inmates. As a result, abuse of federal inmates held at contractor facilities often was going unpunished because of limitations in the law’s coverage.

In addition, the OIG noted that the federal law criminalizing the introduction of contraband into federal correctional facilities by either corrections staff or inmates did not apply to non-BOP facilities where inmates were housed under contract to the federal government. We found a strong correlation between contraband smuggling and sexual abuse cases because nearly half of the subjects in our sexual abuse cases also were smuggling contraband into the prison for the inmate with whom they had the sexual relationship. However, contraband smuggling offenses in contract facilities were left to the discretion of state prosecutors to enforce and often were going unpunished.

I am pleased to report that this year Congress enacted legislation to correct those shortcomings.

The Violence Against Women and Department of Justice Reauthorization Act of 2005 (Act), signed into law on January 5, 2006, provides that in cases where correctional officers sexually abuse a federal inmate without the use of force or threat of force, the maximum penalty is increased from a misdemeanor with a 1-year maximum sentence to a felony with a 5-year maximum sentence. The maximum penalty in cases where correctional officers have sexual contact with a federal inmate without the use of force or threat of force is also increased from a misdemeanor to a felony with a maximum sentence of 2 years.

In addition, the Act extended federal criminal jurisdiction for sexual abuse of federal inmates housed in state, local, or contract corrections facilities. The Act also made clear that federal jurisdiction extends to the introduction of contraband by corrections staff or inmates into state, local, or contract facilities housing federal inmates.

Because the statutory changes recently were enacted, we are not yet able to numerically measure what difference the increased penalties and enhanced jurisdiction will have on the number of cases that federal prosecutors accept for prosecution. However, we are strongly encouraging federal prosecutors to aggressively use these new tools, and we believe that the legislative changes will make a positive difference in addressing the serious problem of staff sexual abuse of federal inmates.

In addition, I want to describe for the Commission efforts the OIG is making to pursue these important cases. As part of our training efforts, the OIG, in collaboration with the National Institute of Corrections and the American University Washington College of Law, recently conducted a 3-day training session in Washington, D.C. which was attended by 40 OIG agents and BOP investigators from across the country. We had the benefit of working with Commissioner Brenda V. Smith as we put this training together which was tailored to the investigative needs of our agents.

At the seminar, senior OIG agents and federal prosecutors provided training to our newer agents on the intricacies of investigating sexual abuse cases involving prison inmates and staff. The first and most difficult obstacle to overcome typically is gaining the cooperation of the victim. The correctional officers often choose the most vulnerable inmates as their victims, such as inmates with drug additions, previous physical or sexual abuse, mental health issues, or little experience with the criminal justice system. Consequently, these victims are often scared and reluctant to cooperate with investigators. The victims also fear that if they cooperate, they will be isolated in a special housing unit or transferred to an institution that is farther away from their families. As a result, OIG agents work hard to build a rapport with these victims and gain their trust and cooperation.

The OIG agents also attempt to obtain all available corroborating evidence, such as cards and letters between the subject and the victim, statements from other inmate witnesses, or admissions the suspect made to the victim. In addition, DNA is a powerful corroborating tool, but we recover it only in a small percentage of cases because victims typically delay in disclosing staff sexual abuse. I know from experience in prosecuting sexual abuse cases in the United States Attorney’s Office for the District of Columbia that an examination of the victim must be conducted within 72 hours of a sexual assault in order to collect any DNA evidence from the victim’s body. In the rare instances where a victim discloses the assault within that time period, victims can be taken to the BOP medical clinic where medical personnel conduct the Sexual Assault Nurse Examiner (SANE) examination.

However, evidence from the crime scene, such as a semen stain on the couch where the illegal act occurred, or an unlaundered item of clothing saved by the victim, can sometimes yield DNA results even when the evidence is collected months after the sexual act occurred. While our agents occasionally are able to obtain assistance from state laboratories in collecting crime scene evidence, OIG agents most often collect the evidence on their own. We usually submit our forensic evidence to the Federal Bureau of Investigation (FBI) Laboratory for analysis. Unfortunately, because of the FBI’s backlog in processing evidence, we often have a lengthy wait, sometimes up to a year or more, before we receive the results of the forensic testing. Occasionally, state laboratories have analyzed our evidence for us, but the state laboratories often have the same lengthy delays due to backlogs.

In terms of total numbers of sexual abuse complaints we receive involving the BOP, in fiscal years (FY) 2004, 2005 and 2006 (as of 6/30/06), the OIG received 956 allegations of inappropriate relationships or sexual abuse of inmates. The following graph depicts the number of these and other types of allegations received by the OIG from FY 2004 to FY 2006 regarding the BOP.

I will highlight the case of United States v. Alfred Barnes, et. al, which is illustrative of the harm that is caused to both individual inmates who are victims of sexual abuse and to the institution when correctional officers engage in this illegal conduct. Because this case is pending trial, I will limit the discussion to the factual allegations asserted in the public indictment.

Six Federal Bureau of Prisons (BOP) Correctional Officers at the Federal Correctional Institution in Tallahassee, Florida, were indicted on June 20, 2006, in the Northern District of Florida on charges of conspiracy to sexually abuse female inmates and introduction of contraband into the correctional facility. The indictment charges that the six male correctional officers bribed numerous female inmates to engage in sexual activity with them by providing them with contraband. According to the indictment, the defendants would conspire among themselves to switch duty assignments to facilitate this illegal sexual activity.

The indictment further charges that the defendants conspired to cover up their illegal activities. The defendants required other female inmates to act as look-outs when the illegal sexual activity was taking place. The defendants kept inmates from reporting the defendants’ illegal conduct by threatening to plant contraband among the inmates’ belongings and by threatening to have the inmates transferred to a facility that was far from the family members who visit them. The defendants showed victims information about the inmates on the BOP computer system as proof that the inmates could be tracked anywhere with the BOP system. The defendants monitored telephone calls of specific inmates in order to intimidate them and to identify any inmates who were disclosing their criminal conduct. The defendants also asked other correctional officers and inmates to speak with individuals suspected of cooperating with law enforcement investigators in an attempt to persuade them not to cooperate.

The 23 count indictment includes one count of conspiracy and multiple counts of mail fraud, bribery, and witness tampering. The indictment also seeks forfeitures of any proceeds the defendants received that are traceable to the criminal conduct.

Finally, it is with great sadness that I note the death of OIG Special Agent William “Buddy” Sentner, who was shot and killed in the line of duty on June 21, 2006, as he was working as part of the team to execute arrest warrants in the Tallahassee case I just described. When OIG and FBI agents went to arrest the indicted correctional officers in the BOP facility, one of the correctional officers began firing at the team with a personal firearm he brought into the facility. The correctional officer hit a BOP lieutenant, shot at another OIG agent, and then shot and hit Buddy Sentner. After he was hit, Buddy courageously returned fire and killed the correctional officer. Buddy died a short time later. As Inspector General Fine stated in his eulogy, Buddy Sentner was a hero. His brave actions under fire saved the lives of other federal employees, while giving his own life.

Buddy Sentner, like other OIG agents, recognized that his job was dangerous and difficult. It is not an easy job to investigate corrupt federal employees who abuse their trust and prey upon others. But he, like other OIG agents, worked tirelessly to protect others and improve the Department of Justice. He was a deeply committed federal law enforcement agent, colleague, and friend and he will be greatly missed.

I thank the Commission for inviting me to provide this testimony, and I would be glad to answer any questions you have.