Justice for victims of sexual assault in prison

One type of violence prevalent in correctional facilities throughout New York is sexual victimization — including many forms of abusive behaviors from sexual abuse or threats to sexual assault including rape.

In the New York prison system (and all states), it's completely illegal for a prison guard, corrections officer, or any other prison staff member to have any kind of sexual contact with a prisoner (whether consensual or not).

Prison inmates are exposed to and can experience sexual violence inside the prison system from other inmates, correctional officers, or any jail staff member.

This is a human rights issue that further exposes the prison community to communicable sexually transmitted diseases and trauma — including depression, diminished interests, suicidal ideation, and other serious mental health and physical consequences that can follow the victim into the community upon release.

Survivors of sexual assault in prison may be confused, may try to blame themselves for the assault, or may feel threatened by the abuser.

With decades of experience helping prison rape victims and inmates who have suffered some form of sexual abuse in prison, we will help you take back your dignity and hold those responsible accountable for their actions.

For three generations, the New York prisoner abuse attorneys at Jacob D. Fuchsberg Law Firm have won prison sexual abuse lawsuits for current and former inmates who have experienced jail rape, sexual assault, harassment, and other forms of abusive sexual contact behind bars.

We can help when the unimaginable happens.

Let your voice be heard. Speak with a New York prisoner abuse attorney at our firm today to discuss your claim and legal rights.

Call 212.869.3500 today or contact us online for a confidential, free lawyer consultation.

What types of sexual assault and sexual abuse occur in prison?

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 a criminal offense, 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 environments for inmated; 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-percent 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

How to report prison abuse with the PREA Statewide Rape Crisis Hotline

Claims related to sexual misconduct can be filed by third parties on behalf of inmates as well as by inmates themselves.

After an assault, survivors often fear retaliation or punishment because complaints are either ignored or handled improperly by the justice system and prison officials.

Many victims may carry the self-doubt, the learned hopelessness, shame, or irrational guilt that they somehow ‘allowed’ this to happen to themselves.

Assault is never your fault. As an inmate, you have rights.

While many allegations are dismissed as unsubstantiated and may result in minor penalties or administrative (rather than criminal), having an attorney on your side can ensure your voice is heard and justice is delivered.

If you or a female inmate, male inmate, or juvenile inmate you know are a survivor of inmate-on-inmate abuse due to a failure to intervene by the correctional facility or have been sexually victimized by a corrections officer or jail staff, our prisoner abuse attorneys can provide a discrete, confidential evaluation of your claim, and will aggressively fight to hold those accountable responsible for their actions.

Through a partnership between the State Office of Victim Services, State Office for the Prevention of Domestic Violence, the New York State Coalition Against Sexual Assault, local rape crisis programs, and the Department of Corrections and Community Supervision (DOCCS), survivors who are incarcerated at all DOCCS facilities in New York State can also report sexual violence using the confidential PREA Rape Crisis Hotline.

Incarcerated survivors can dial 777 on any phone in DOCCS facilities to get connected to a rape crisis counselor/advocate for crisis counseling, medical advocacy, legal advocacy, and additional support. Hotline operators are able to take sexual abuse and harassment reports which they then forward to OSI or the facility when requested by the survivor.

This direct-dial number is available every day, in English, Spanish, and other languages, at all facilities operated by the state Department of Corrections and Community Supervision (DOCCS).

Federal law and city jail policy require that staff report all allegations of sexual assault to the agency’s investigation division.

For more information on how to report allegations of inmate abuse, visit: Federal Bureau of Prisons, Sexual Abuse Prevention

Filing a sexual assault lawsuit against a correctional facility in New York

Sexual abuse is a significant human rights issue affecting thousands of people in the New York prison system including Rikers Island Prison, adult state prisons, women’s prisons, correctional institutions, and detention centers.

Hundreds of complaints of sexual harassment and abuse are filed against the Department of Corrections and Community Supervision every year, with many incidents going unreported.

New York law prohibits any form of sexual contact with an inmate by a prison system staff member, prison guard, contractor, or volunteer.

Consent is never a legal defense for corrections staff who engage in sexual activity with anyone who is "under arrest, under supervision, in detention, or in Federal custody." (18 US Code § 2243: Sexual abuse of a minor, a ward, or an individual in Federal custody)

In cases of inmate-on-inmate abuse, prison officials have a legal duty under the Eighth Amendment of the Constitution to protect and safeguard prisoners from assault by other prisoners.

Abuse comes in different forms and from different sources. To initiate a prisoner abuse lawsuit in New York, there are multiple causes of action that our lawsuit may be based upon. Some of these causes of action include:

• Rape/ sexual assault
• Deprivation of civil rights (humiliation, withholding basic needs, coercion)
• Negligence in ownership, operation, maintenance, supervision, and security of the correctional facility
• Negligent hiring of prison staff or personnel
• Negligent retention of personnel

The first step to recovering justice is filing a notice of claim within New York’s statute of limitations for prisoner abuse lawsuits in order for it to be accepted.

In New York City, a notice of claim must be filed within 90 days after the incident occurred, although in rare cases there can be extenuating circumstances that may extend this deadline.

Prisoner abuse lawsuits that are filed outside of the statute of limitations will likely be denied.

Under the Federal Code of Regulations (28 C.F.R. § 115.5), investigations of sexual abuse or harassment are classified as either substantiated, unsubstantiated, or unfounded based on an evaluation of the evidence.

• Substantiated – An allegation was investigated and determined to have occurred based on a preponderance of the evidence.
• Unsubstantiated – An allegation was investigated, and the investigation produced insufficient evidence to make a final determination as to whether or not the event occurred.
• Unfounded – An allegation was investigated and determined not to have occurred.

Client Success

Our attorneys can’t change what has happened, but we can help you move forward as a survivor.

The Jacob D. Fuchsberg Law Firm recently represented female prisoners who (in addition to at least five other female inmates housed in the same federal jail), was repeatedly sexually abused by a Correctional Officer in 2017 and 2018.

These survivors felt so scared, ashamed, and helpless that they didn’t disclose their sexual assaults, even to each other, for fear of retaliation or punishment to the inmates, such as depriving them of basic human needs if they didn’t comply with the officer’s ‘requests’ and advances.

“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.” — Jaehyun Oh

Led by attorney Jaehyun Oh, our firm had a critical role in helping the victims through criminal conviction and sentencing of this officer, who eventually pled guilty to the charge of having had abusive sexual contact with inmates.

We then brought a civil lawsuit against the officer as well as the government, to seek accountability and justice for the horror that was inflicted upon these victims.

With strategic and creative advocacy, the case was settled prior to discovery at an amount that is the highest publicly available settlement amount in the country in inmate sexual abuse cases.

Common questions about sexual assault in prison

What if the prison staff member involved claims that the relationship was consensual?

According to federal law as well as New York state law, all sexual relations between correctional staff and prison inmates are considered a criminal offense, even if that sexual act would have been considered consensual if it occurred outside of prison or detention facility. See 18 U.S.C. § 2243 (c); N.Y. Penal Law § 130.05.

True consent is impossible when one of the parties is under the authority of the other, period. No matter what corrections officials claim, sexual contact is illegal, and you may be eligible for compensation.

How long do I have to file a sexual assault or abuse claim in New York?

Generally, a sexual assault claim must be filed within 90 days of the date of the incident. New York City law requires that jail sexual abuse investigations be conducted and closed within 90 days. (§ 5-02 Definitions Related to Sexual Abuse)

Why is prison sexual abuse so common in the New York prison system?

Sexual victimization is a fact of life for many of New York’s 100,000 prisoners. 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.

However, ”The Department of Justice 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.’”

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.

Which law established a zero-tolerance for rape and sexual assault in prison?

The federal Prison Rape Elimination Act of 2003 (PREA) established national standards to prevent and respond to sexual violence in prisons, jails, and detention centers.

Get a confidential, free consultation — speak with a prisoner abuse attorney today

Sexual abuse between prison staff and inmates is wrong, and those responsible need to be held accountable.

All survivors of sexual violence deserve compassion and support. If you or someone you know has experienced sexual assault, sexual misconduct, harassment, threats, or abuse from a correctional officer, prison staff, or another inmate while incarcerated in New York State, you have rights.

We can help when the unimaginable happens. Let your voice be heard. Speak with a New York prisoner abuse attorney at the Jacob D. Fuchsberg law firm today to discuss your sexual assault, jail rape, or sexual harassment claim.

We will listen to your claim and help you understand your legal rights and next steps.

Call 212.869.3500 today or contact us online for a free, confidential lawyer consultation.