How to Report Sexual Assault in Prison in NY

The Federal Prison Rape Elimination Act (PREA), established in 2003, established national standards to provide access to sexual abuse victims who are incarcerated. If you or a loved one have been a victim of sexual abuse, harassment, or assault while in a jail, detention center, or prison, many resources are available.

A New York prisoner sexual assault attorney can help you learn how to file a PREA complaint for yourself or on behalf of a loved one.

What Types of Sexual Assaults Occur in Prison?

Youth-on-youth or inmate-on-inmate sexual abuse is nonconsensual sexual abusive contact or acts involving a victim that cannot refuse or give consent.

Nonconsensual sexual acts are considered to be the most serious type of sexual abuse and can include the following:

• Penetration of the vulva or anus with the penis;
• Oral contact of the vulva, penis, or anus;
• Penetration of the genital opening or anus with a finger, hand, or another object.

Abusive sexual contact consists of intentional touching, either through the clothing or directly, of the groin, genitalia, anus, buttocks, or breast of another person without consent. It is less serious than nonconsensual acts but is still assault.

Sexual harassment of one inmate to another can include:

• Requests for sexual favors;
• Unwelcome or repeated sexual advances;
• Verbal comments or actions that are sexual or derogatory.

Staff-on-youth and staff-on-inmate sexual abuse involve both nonconsensual and consensual acts perpetrated by a member of the staff on a resident of a jail or detention center.

Prisoners, by their situation, cannot legally consent, and therefore, any sexual contact by a staff member would be considered non-consensual. The term “staff” includes several positions:

• Employees;
• Official visitors;
• Volunteers;
• Contractors;
• Other agency representatives.

Staff sexual abuse or misconduct includes “romantic” relationships, any consensual behavior, or nonconsensual:

• Intentional touching of a sexual part of the body;
• Threats of, attempts, or completed sexual acts;
• Requests for sexual favors;
• Indecent exposure, staff voyeurism, or invasion of privacy;
• Verbal comments and other sexual harassment.

These may not be the only form of sexual abuse that someone in prison, jail, or a detention center can experience. Protecting prisoners from sexual abuse is challenging for the New York City department of corrections. Even if you are in prison, you have rights, including the right to report any unwanted sexual contact.

New York law prohibits any type of sexual relations between facility staff and an incarcerated person, including sexual contact, vaginal intercourse, or a sexual act.

All sexual acts are considered criminal offenses, even if that sexual activity would have been considered consensual if it occurred outside of prison.

In a comprehensive investigative report released by the Department of Justice (“DOJ”), between 2000 and 2004, there were 351 allegations of staff sexual abuse in federal jails alone, 185 of which resulted in criminal or administrative outcomes.

Protecting prisoners from sexual abuse remains a challenge in correctional facilities across the country. The prison system should be a secure, safe environment for inmates; however, thousands of men, women, and children are raped or abused by other incarcerated individuals, corrections officers, and staff every year. The 2009 National Prison Rape Elimination Commission Report suggests an estimated 60,500 individuals had been sexually abused during the previous 12 months.

Another recent annual report of sexual victimization from the NYS Corrections and Community Supervision found that 78% of reported allegations of sexual abuse or sexual assault are made against staff members.

Generally speaking, a sexual assault occurs when the act is intentional and is committed by:

• Physical force or threat of force without the consent of the victim; or
• Taking advantage of the victim’s (1) mental health or disorder, (2) mental incapacity (including being under the influence of drugs or alcohol), (3) physical helplessness (including being unconscious), and the victim’s inability to consent.

Sexual abuse of an inmate by a prison system staff member, prison guard, contractor, or volunteer includes any of the following acts, with or without consent of the inmate:

• Intentional touching (either directly or through the clothing), of specific areas of the body, including touching or fondling of genital, anal, or other intimate areas (anus, groin, breast, inner thigh, or the buttocks) that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire.
• Forced sex acts, including oral contact with the anus, oral sex, anal sex, or penetration of a genital opening or anus with an object or any body part that is not penis/vagina contact.
• Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities listed above.
• Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, and.
• Voyeurism, meaning an invasion of privacy of an inmate by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate’s naked body or of an inmate performing bodily functions.

Sexual harassment of a prison inmate may include:

• Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate directed toward another; and
• Repeated verbal comments or gestures of a sexual nature to an inmate by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, obscene language or gestures, or;
• Failure to prevent sexual assault by other inmates.

What Can Victims of Sexual Assault in Detention Do?

Under New York law and the regulations of the PREA, if you are a victim of prison sexual abuse or assault, you have many rights and protections:

• You can decide whether you wish to report the act.
• The staff member to whom you disclose the assault will treat you with respect.
• You have the right to be protected from retaliation.
• You may be housed separately for your own safety.
• You may request an appointment with a mental health professional on staff.
• You may request a victim’s advocate during the investigation and forensic medical exam.
• You may receive emotional support and crisis intervention from a rape crisis center.
• Your questions will be answered honestly.

After you make the report, you will be presented with the New York State Sexual Assault Victims Bill of Rights, which states the above guarantees and more.  

What Is the Prison Rape Elimination Act?

Congress passed the Prison Rape Elimination Act in 2003 to protect jail, prison, and detention center inmates from sexual abuse. It established a zero-tolerance policy for any sexual misconduct of staff members and other inmates.

All residents of these facilities deserve to be protected from sexual abuse, assault, or sexual advances while they serve their sentences. It’s important to report any sexually-based abuse or assault to a staff member so that you can be protected and the perpetrator can be dealt with.

Who Can Report Sexual Abuse if a Victim Is Still in Prison?

The New York Department of Correction takes the safety of incarcerated individuals seriously and endeavors to ensure that everyone in these facilities, both workers and residents, understands how to properly report any allegations of sexual abuse.

Sexual abuse or assault may be reported by many people, not just the victims themselves. For example:

• Residents may use the PREA hotline to report abuse, including making an anonymous report.
• Residents may also report being sexually assaulted to community supervision.
• Residents may use their facility’s grievance process to report abuse.
• Staff members should report abuse they witnessed to their community supervision.
• Staff members may also use the PREA hotline to report abuse anonymously.
• Friends or family members may report the abuse of their loved one.

When reporting sexual harassment, abuse, or assault, you will be asked about specific details that can assist investigators, including the name of the perpetrator, the facility in which the assault occurred, the time and date of the offense, and a brief summary of what happened.

How to Report Sexual Assault in Prison with the Prea Statewide Rape Crisis Hotline

Sexual abuse, assault, or misconduct claims may be reported by either the inmate themselves or by a third party on behalf of the victim. Many victims, especially inmates, may fear retribution or reprisals after disclosing a complaint of assault or may fear their complaint being handled improperly or ignored.

Hopelessness, fear, and shame are common, but being sexually assaulted is never your fault, and you have rights. If you have been victimized while an inmate in a New York correctional facility, you may receive help and support using the confidential PREA Rape Crisis Hotline by calling 777 from any phone at a corrections facility.

You will be connected to a counselor for crisis support and receive medical and legal advocacy. The hotline operator will take your complaint and forward it to the OSI and the facility for investigation.

The 777 PREA rape crisis hotline is not a reporting hotline; you can report the abuse at your own facility or by calling the 444 OSI Reporting Line from 8 a.m. to 5 p.m. on business days. You can also report sexual abuse or misconduct in a letter addressed to:

DOCCS Office of Special Investigations

1220 Washington Ave.

Albany, NY 12226-2050

Or via email at OSIComplaint@doccs.ny.gov.

Filing a Sexual Assault Lawsuit Against a Correctional Facility in New York

Sadly, hundreds of complaints of sexual abuse and harassment are filed against the New York Department of Corrections and Community Supervision each year, and more likely go unreported.

New York law forbids any kind of sexual contact with an inmate of the prison system, both adult and juvenile, by any staff member, guard, or visitor. Consent to the act is not a defense for a staff member who engages in sexual activity with an inmate since an incarcerated inmate may not legally give consent.

Prison officials and employees have the legal obligation to protect prisoners in their care from assaults perpetrated by other inmates. Abuse in a prison can come in many forms and from different sources. Some of the causes that our New York prison sexual abuse lawyers may cite in our suit include:

• Charge of rape or sexual abuse or assault;
• Deprivation of human rights, such as coercion and deprivation of basic needs;
• Negligent operation or supervision in a correctional facility;
• Negligent hiring and retention of staff.

The first step in your quest for justice is to file a notice of claim within the PREA statute of limitations, which is 90 days after the incident, although there may be extenuating circumstances in very rare cases.

Once the report has been filed, it is investigated under the Federal Code of Regulations guidelines to determine whether it is unsubstituted, substantiated, or unfounded. In PREA claims, a preponderance of the evidence is required for a substantiated claim.

What Are the Possible Difficulties in Obtaining Evidence?

Collecting evidence of sexual abuse or assault in prisons can be more challenging than in other types of sexual abuse cases. The evidence of what happened to you will often be out of your control, such as bodycam footage of a guard or video surveillance of the facility. Other things like records and reports, duty logs, and medical logs are all things that you, the victim, have no control over; the prison does.

Our experienced NY sexual abuse lawyers use subpoenas to request these items and demand their preservation without alteration.

Without a prompt request filed for this evidence, it could be destroyed by accident, documents shredded according to retention policies, or video footage erased and recorded over. A lawyer's request for evidence will stop any destruction of evidence until the lawyer can review it.

Speak with a lawyer soon so they can begin preserving the evidence for your claim. The law is on your side if you have been victimized while incarcerated, and the prison must turn over any pertinent and possible evidence to your attorney.

What Is the Statute of Limitations for Sexual Assault in Prison Cases?

Sexual assault cases in New York must be filed within 90 days of the incident. Furthermore, New York City law requires all jail sexual abuse investigations to be conducted and concluded within a 90-day period.

However, the New York Adult Survivors Act (ASA) legislation provides assault victims with more legal ways of reporting the abuse. Victims may be able to file a lawsuit in civil court even if the claim would have previously been dismissed due to being outside of the statute of limitations.

The ASA:

• Applies to claims involving sexual abuse of victims aged 18 or older;
• Allows a one-year “lookback” window for survivors to file a lawsuit, no matter when the incident occurred;
• Permits claims to be brought against institutions and individuals.

The adult survivors act was passed in May 2022, with the one-year window lasting from November 24, 2022, to November 24, 2023. It’s imperative to speak with a lawyer as soon as possible, as the window of opportunity to file civil lawsuits is rapidly closing.

Contact a Lawyer for Victims of Sexual Assault in Prison

If you or someone you love has been sexually assaulted, harassed, or abused while in a New York state jail, prison, or detention center, call the Jacob Fuchsberg Law Firm at (212) 869-3500 immediately. We can help you file a suit under the adult survivors act and hold the abuser to justice. Contact us today for a free case review.