Several months ago, a federal inmate we represent in a medical malpractice case called me distressed, wanting to discuss another matter. Though I know her to be a highly intelligent and articulate woman, she could not give me any details regarding this new matter over the phone and asked me to visit her at the jail to speak in person. It was through meeting her that I first encountered a serious problem that exists in many correctional facilities: sexual abuse of inmates by prison staff. We have learned that this client, in addition to at least six other female inmates who were housed in the same jail, were repeatedly sexually abused by Correctional Officer Colin Akparanta over a span of several years, until Mr. Akparanta was finally fired sometime in or around 2018 and criminally indicted for his conduct in 2019. His treatment of these women was horrific. To borrow the words of one of the clients: “I’ve made some bad choices in my life. I can accept that and try to become a better person, that’s why I pleaded guilty [to the crime I was charged with]—but this, this I did not deserve. I think I didn’t deserve this.”
Though seldom acknowledged, staff sexual abuse poses a significant problem within many correctional institutions. Kathleen Hawk Sawyer, a former director of the Federal Bureau of Prisons, once stated that sexual abuse of inmates was the biggest problem she faced as Director. In a comprehensive investigative report in 2005, the Department of Justice (“DOJ”) reported that 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.  There is also a systemic problem of underreporting: sexual abuse by staff, ranging from groping of inmates’ private parts to forced intercourse, is more rampant than any official figures can capture because few officers are reported or investigated, let alone charged or penalized. 
This recognition was one of the major reasons for the passage of the Prison Rape Elimination Act of 2003 (“PREA”). The enabling legislation for PREA states that an estimated 13% of inmates nationwide have been sexually assaulted, with many being exposed to repeated assaults. The Bureau of Prisons states that PREA is a “zero-tolerance policy” toward all forms of sexual activity, including sexual abuse and sexual harassment.  Moreover, unlike a ‘regular’ grievance such as those for medical complaints, grievances related to sexual misconduct can be filed by third parties on behalf of inmates as well as by inmates themselves, and are promised to be treated confidential and thoroughly investigated in all circumstances.
So how could staff continue to sexually abuse inmates? DOJ reports that “staff can generally conceal their sexual abuse because they are familiar with the prison and its operations, they control the prison environment, and they can arrange discreet encounters with inmates. … Moreover, the staff knows that inmates are reluctant to report sexual abuse and that if inmates report sexual abuse they are unlikely to be believed because they are convicted criminals.” We believe that all of these factors were at play in the case of Mr. Akparanta. He was reportedly the only night shift guard who was assigned to an all-female dormitory. He was there alone from midnight to 8 am, with dozens of women under his care, control, and custody. He, therefore, had easy access to these women. Moreover, he knew the private areas called “bubble” or solitary confinement areas where security cameras wouldn’t reach. Upon information and belief, there were other staff members who were suspicious of his behavior and yet did not abide by the PREA “zero tolerance” policy because they didn’t believe they had enough information to turn against one of their own.
Some may wonder why these inmates did not step forward sooner and file grievances or complaints with other officers. When I asked this question, a client laughed and asked: “How was I supposed to know that they would believe me?” She then explained: “They probably wouldn’t have, I mean, I’m a convicted felon and he’s a CO. Get it? It would just have made my life more difficult, I didn’t want to make trouble and thought maybe I should just wait to be transferred to a different facility. … Keep my head down.” I realized that I did not have a good response for her. She was right; the power dynamic between the abused and the abuser is so unequal in the prison context that the abuser does not have to resort to explicit threat, force, or blackmail. Rather, often the safest option is to submit to the sexual coercion because reporting rape can make an inmate vulnerable to further abuse. 
This is why, importantly, consent is never a legal defense for corrections staff who engage in sexual acts with inmates. According to federal law, as well as New York state law, all sexual relations between staff and inmates are considered a criminal offense, even if that sexual act would have been considered consensual if it occurred outside of prison. See 18 U.S.C. § 2243 (c); N.Y. Penal Law § 130.05. Speaking to the inmates, I could understand the rationale behind these laws. The power dynamic in these circumstances is such that the abused cannot possibly escape the abusers and have to depend on their mercy to ensure their health and safety in the facility. Therefore, prisoners cannot give consent in a true sense, even if they may tolerate, submit, acquiesce, or even verbally consent. “Prisoners should never be punished for sexual contact with staff, even if the encounter was allegedly consensual. The power imbalance between staff and prisoners vitiates the possibility of meaningful consent,” the National Prison Rape Elimination Commission concluded in its June 2009 report.
The imbalance of assumed credibility, the inequality of power, and the impossibility of escape create a toxic environment where inmates simply cannot say “no.” Inmates I have spoken to have told me that the assaulting guard could easily “make my life hell” by depriving them of basic human needs if they didn’t comply with his ‘requests’ and advances. For example, he would take away or threaten to take away essentials such as tampons, or write them up for disciplinary tickets so that they would lose privileges to do laundry, spend time outside of their cells, or call their family. These women rightfully felt that they could not escape from their abuser who could control and watch their every move. They had to comply rather than continue to resist; it was their way of survival so that they could live, try to stay safe and healthy, and hope for the best. They feared retaliation from Mr. Akparanta as well as his fellow officers if they were to complain. Clients could provide me with specific past instances where their fellow inmates filed complaints about another guard, which were not successful and instead resulted in retaliation or punishment to the inmates. They felt that ‘the system’ was not going to help them because, after all, their abuser was the officer supposedly in charge of administering the system.
And they are not wrong that the system at large is stacked against them. Many allegations are dismissed as unsubstantiated and may result in minor penalties or administrative (rather than criminal) outcomes to the accused officer such as transfer to a different facility – where they may have access to other potential victims. 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.” This is a problem because, as explained previously, sexual abuse in prison often does not occur by means of physical force or overt threats. It is also well known that assaulting officers often reward the victims with contraband ranging from food, toiletries, cigarettes, and jewelry to drugs and weapons. Victims fear that their acceptance of these ‘gifts’ would later be used to destroy their credibility—and they are often correct.
For all of these reasons, Mr. Akparanta’s victims kept quiet for many years. They felt scared, ashamed, and helpless. Their fear was so great that they didn’t disclose the assaults even to each other. The clients told me when they heard that Mr. Akparanta was indicted, they talked and realized with astonishment that they had suffered the same fate by the same officer.
Our clients consider themselves lucky that in their case, ultimately, the abuser was removed, fired, charged, and indicted—earlier this year, the officer actually pleaded guilty to the charges of having had abusive sexual contact with inmates. This brought the clients a small comfort. In a plea hearing in front of a magistrate judge, the guard admitted that he improperly touched, assaulted, and sexually exploited inmates under his custody without their consent, even though “he was aware that federal inmates within the BOP are protected from sexual contact from correctional officers.”
But is this admission a full vindication of the inmates’ rights? It is clear that the abuser has not only committed a crime but also violated the inmates’ civil rights under the Eighth Amendment that prohibits cruel and unusual punishment. Hence, after the abuser is caught, it is easy to think of the system to be inherently virtuous and the abuser as a rotten apple, an anomaly, a long-undetected criminal mastermind. However, the correctional facility, the supervisory officials, and other correctional officers are not and should not necessarily be off the hook. If there is evidence that other employees may have had knowledge of the risk of the assault occurring and yet disregarded it, then those employees can be found to have violated the Eighth Amendment as well. In addition, if the correctional facility failed to remedy systemic deficiencies that enable sexual abuse to persist, that would give rise to a claim of negligence, if not an Eighth Amendment violation. Based upon preliminary research, it appears that there were colleagues and superiors of Mr. Akparanta who sensed that there was something wrong and did not take further action. There are also systemic problems in that Mr. Akparanta was allowed effectively exclusive access to a dorm of female inmates throughout the night, with access to “bubbles” and other areas where there was no surveillance. Furthermore, the jail has had prior instances of other staff members being charged with crimes involving inmates, including CO’s sexual abuse of inmates in 2005; staff member’s smuggling narcotics in 2011; and CO’s sexual abuse of inmates in 2016. Given that Mr. Akparanta’s crimes allegedly occurred from 2012 to 2018, it appears that this jail had systemic deficiencies in identifying warning signs of staff abuse of inmates.
But even when I explain all this, I find with sadness that the clients are not easily convinced that the government can be liable for allowing this to happen—or more precisely, that a jury would see it that way. They are much too aware of the public conception, that the general American public tends to view prisoner sexual assaults as “an expected consequence of incarceration, part of the penalty and the basis for jokes.”  Clients still carry the self-doubt, the learned hopelessness, the shame, the irrational guilt that they somehow ‘allowed’ this to happen to themselves.
Yet, in their own unique ways, they explain that Mr. Akparanta’s abuse was not a harmless crime. Far from it. To one, it was a haunting reminder of her childhood trauma, so distressingly similar, including the ultimate submission despite her better judgments followed by utter self-hatred. To another, it was a confirmation that she doesn’t matter, that it was all lip service and falsehood when she was promised “rehabilitation” in prison when she pleaded guilty to her charges. “Ironically,” this 29-year-old inmate says, “prison was one place where I thought I would feel safe. Can you believe that? I knew I would end up here at some point—I had a terrible family, nowhere to turn, felt like I always had to defend myself against the world … I thought at least in prison, I would be safe, fed, maybe even learn some useful stuff? I would be ‘rehabilitated’ and come out a better person.” She laughed at my silence. “Well, I really am stupid, aren’t I.” She has now been moved to a different facility where she continues to watch out for other inmates who may be suffering abuse at the hands of the correctional officers.
In theory, it should be a simple, black-and-white rule—as posted on the Bureau of Prisons website, “An incarcerated individual has the right against being pressured by anyone to engage in sexual acts and does not have to tolerate sexually abusive behavior or pressure to engage in unwanted sexual behavior from another inmate or staff member.”  The reality, of course, is not that simple. It may be easier, sometimes even safer, to stay silent. However, what these brave women have invariably shown me is that there is, ultimately, power in speaking up, in sharing, and in bringing justice. No one, regardless of their past history, should suffer sexual abuse.
If you or a loved one is a victim of a sexual crime, please consider letting others help you and hear you—it can make a difference.
 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).  https://oig.justice.gov/special/0504/index.htm  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  https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp  https://oig.justice.gov/special/0504/index.htm  In my experience, transfers within the jail and prison systems are in fact very common, especially for prisoners with longer sentences.  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  https://www.ncjrs.gov/pdffiles1/226680.pdf  https://oig.justice.gov/special/0504/index.htm  https://oig.justice.gov/special/0504/index.htm  National Prison Rape Elimination Commission, June 2009 report, https://www.ncjrs.gov/pdffiles1/226680.pdf  https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp