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| Jaehyun Oh |
Existing laws regarding sexual abuse often do not comport with this reality in that the statute of limitations in bringing a civil action typically expires within a few years from the subject incident.
In recognition of this disconnect, several states have passed laws to allow a look-back period to revive claims for which the statute of limitations would have otherwise expired.
In New York state, on Nov. 24, the Adult Survivors Act will open a temporary, one-year window for survivors of adulthood sexual abuse to bring otherwise time-barred claims. This look-back period is anticipated to bring a widespread reprieve for victims of sexual abuse, including formerly or presently incarcerated persons.
Though seldom acknowledged, staff-on-inmate sexual abuse poses a significant problem within correctional institutions. Kathleen Hawk Sawyer, former director of the Federal Bureau of Prisons, once stated that sexual abuse of inmates was the biggest problem she faced as the director.[3]
The enabling legislation for the Prison Rape Elimination Act states that an estimated 13% of people who are incarcerated nationwide have been sexually assaulted, with many having been exposed to repeated assaults.
In June 2021, U.S. Department of Justice reported that as of 2018, people who were incarcerated reported 27,826 allegations of sexual victimization, which is a 14% increase from 2015.[4] Of the 27,826 reported allegations, 55% were perpetrated by prison staff.
It can take many years for sexual abuse in correctional institutions to be discovered. As J.S. Welsh writes in the Harvard Journal of Law and Gender, the power dynamic in correctional settings is such that "submitting to sexual coercion is often the safest option, and reporting rape can make a survivor vulnerable to further abuse."[5]
Victims are fearful that their complaints against correction officers will not be taken seriously or investigated thoroughly.[6] Indeed, the DOJ has acknowledged that "some prosecutors are reluctant to prosecute prison staff who do not use force or overt threats to obtain sex with inmates, often because the penalty is only a misdemeanor."[7]
Yet use of force or overt threats are often unnecessary because in correctional settings, victims cannot possibly escape their abusers and must depend on their mercy to ensure their welfare.
The imbalance of assumed credibility, the inequality of power and the impossibility of escape create a toxic environment where inmates simply cannot say no.
For these reasons, under federal and New York state law, consent is not a legal defense for corrections staff who engage in sexual acts with inmates.[8]
The responsibility of preventing any type of sexual contact between inmates and officers lies with the officers. Indeed, the BOP proclaims a zero tolerance policy toward all forms of sexual activity, including sexual abuse and sexual harassment in its facilities.[9]
Under the binding regulations, BOP officers must immediately report "knowledge and even suspicions of sexual abuse" through a specific chain of command.
In a uniquely controlled environment such as a jail, repeated rapes cannot be attributed solely to the depravity of a single perpetrator, but rather to a broader systemic failure.
A recent case, Herrera v. U.S.,[10] reflects one way in which incarcerated victims can bring claims against the government agency operating the correctional facility at issue, rather than just against the individual officer who abused them.
Herrera[11] involved three incarcerated persons who were repeatedly sexually assaulted by Colin Akparanta, a former correctional officer at a now-closed Metropolitan Correctional Center facility in New York.
After inflicting recurrent abuse on the plaintiffs, Akparanta was criminally indicted and convicted of inmate sexual abuse. At a plea hearing held in March 2020, Akparanta admitted to having sexually abused at least seven inmates since 2012.
To seek redress for their ongoing trauma, three plaintiffs in Herrera[12] sued not only Akparanta, but also the U.S. and its various officers who looked the other way.
They alleged claims pursuant to the Federal Tort Claims Act for various officers' negligence, as well as constitutional claims for their deliberate indifference.
The plaintiffs' constitutional claims were brought under a common-law doctrine from the U.S. Supreme Court's 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics[13] and its progeny, because there is no statute that affirmatively codifies plaintiffs' rights to bring constitutional claims against federal officers.
The federal government moved to dismiss the case against all defendants except for Akparanta, on the grounds that the other officers' conduct was protected as discretionary under FTCA jurisprudence.
In a decision issued on March 27, U.S. District Judge Kevin Castel in the U.S. District Court for the Southern District of New York rejected the government's attempt to dismiss the FTCA claims, holding that there was no discretion for the fellow officers to allow and condone Akparanta's sex abuse.
The court emphasized that pursuant to the BOP's self-proclaimed zero tolerance policy toward any forms of sexual activity, the officers did not have discretion to tolerate a fellow officer's suspected sex abuse.[14] The government was required to stay true to its policy mandate to immediately report and thoroughly investigate any suspicion or allegation of sexual abuse.[15]
Notably, the court dismissed the Bivens constitutional claims under the Supreme Court's 2017 decision in Ziglar v. Abbasi,[16] holding that a Bivens[17] remedy cannot be extended to this novel context even if the officers' conduct was factually unconstitutional.
However, the court based its reasoning at least in part on the plaintiffs' entitlement to an alternative statutory remedy under the FTCA. Therefore, the court left open the question of whether a Bivens[18] remedy would have existed here in the absence of a viable FTCA claim.
The court's assessment of alternative remedies gives a reason to believe that the judiciary will not leave victims of prison rape without compensation.
The survival of FTCA claims in Herrera[19] stands for the principle that staff-on-inmate sexual abuse reflects a systemic deficiency in the way that our jails and prisons are run.
Unfortunately, according to a National Prison Rape Elimination Commission report, the public still tends to regard prison sex abuse as "an expected consequence of incarceration, part of the penalty and the basis for jokes."[20]
Such lack of understanding further hurts the victims who live with crippling guilt and self-blame — that they should have done something, fought back or spoken up. Even after their release, victims often carry with them the learned hopelessness, shame, self-hatred and the irrational guilt that they somehow allowed this terror to befall on themselves.[21]
As a result, victims often hesitate or delay seeking legal recourse without the awareness of statute of limitations.
The look-back window under the ASA is intended to provide a much-needed opportunity for victims to seek justice without concerns about timeliness.
It remains to be seen what, if any, ramifications this new state law will have on claims against the federal government, and the impact it will have on the incarcerated population more broadly in their willingness to seek legal remedies.
Jaehyun Oh is an attorney at the Jacob D. Fuchsberg Law Firm LLP.
Disclosure: Oh represented the plaintiffs in Herrera v. U.S.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.nytimes.com/2007/12/28/nyregion/28lives.html?ex=1356584400&en=e550b423e59326c0&ei=5124&partner=permalink&exprod=permalink.
[2] Dean G. Kilpatrick et al., Criminal Victimization: Lifetime Prevalence, Reporting to Police and Psychological Impact, Crime & Delinq. (1987).
[3] Addressing Staff Sexual Misconduct With Offenders, Remote Conference for Investigating and Preventing Staff Sexual Misconduct in a Corrections Setting (U.S. Department of Justice National Institute of Corrections 2001).
[4] https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/pdca21.pdf.
[5] J.S. Welsh, Sex Discrimination in Prison: Title VII Protections for America's Incarcerated Workers, Harvard Journal of Law & Gender (2019), https://harvardjlg.com/wp-content/uploads/sites/19/2020/05/Sex-Discrimination-in-Prison.pdf.
[6] Julie Small, "#MeToo Behind Bars: Records Shed Light on Sexual Abuse Inside State Women's Prisons," KQED (Nov. 14, 2019), https://www.kqed.org/news/11786495/metoo-behind-bars-new-records-shed-light-on-sexual-abuse-inside-state-womens-prisons.
[7] https://oig.justice.gov/special/0504/index.htm.
[8] See 18 U.S.C. § 2243 (c); N.Y. Penal Law § 130.05.
[9] https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.
[10] Herrera v. U.S.
, 1:20-cv-10206 (S.D.N.Y.).[11] Herrera v. U.S., 1:20-cv-10206 (S.D.N.Y.).
[12] Herrera v. U.S., 1:20-cv-10206 (S.D.N.Y.).
[13] Bivens v. Six Unknown Fed. Narcotics Agents
, 403 U.S. 388 (1971).[14] See https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.
[15] See https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.
[16] Ziglar v. Abbasi
, 137 S. Ct. 1843 (2017).[17] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
[18] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
[19] Herrera v. U.S., 1:20-cv-10206 (S.D.N.Y.).
[20] National Prison Rape Elimination Commission, June 2009 report, https://www.ncjrs.gov/pdffiles1/226680.pdf.
[21] Robert W. Dumond, The impact of prisoner sexual violence: Challenges of implementing Public Law 108-79 the Prison Rape Elimination Act of 2003, J. Legis. (2005).