Existing law establishes the state prisons, under the jurisdiction of the Department of Corrections and Rehabilitation. Existing law requires the department, when establishing inmate classifications and housing assignment procedures, to take into account risk factors that can lead to inmates and wards becoming the target of sexual victimization.

This bill would prohibit male correctional officers from conducting a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search. The bill would also prohibit a male correctional officer from entering an area of the institution where female inmates may be in a state of undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. The bill would require staff of the opposite sex to announce their presence when entering a housing unit. The bill would require documentation of a male correctional officer conducting a pat down search or entering a prohibited area within 3 days of the incident and would require that the documentation to be reviewed by the warden and retained.

Existing law establishes the state prisons, under the jurisdiction of the Department of Corrections and Rehabilitation. Existing law requires the department, when establishing inmate classifications and housing assignment procedures, to take into account risk factors that can lead to inmates and wards becoming the target of sexual victimization.

This bill would prohibit male correctional officers from conducting a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search. The bill would also prohibit a male correctional officer from entering an area of the institution where female inmates may be in a state of undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. The bill would require staff of the opposite sex to announce their presence when entering a housing unit. The bill would require documentation of a male correctional officer conducting a pat down search or entering a prohibited area within 3 days of the incident and would require that the documentation to be reviewed by the warden and retained.

Existing law establishes within the state an institution for the punishment, treatment, supervision, custody, and care of females convicted of felonies known as the California Institution for Women. establishes the state prisons, under the jurisdiction of the Department of Corrections and Rehabilitation. Existing law requires the department, when establishing inmate classifications and housing assignment procedures, to take into account risk factors that can lead to inmates and wards becoming the target of sexual victimization.

This bill would prohibit male correctional officers in the California Institution for Women from conducting a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search. The bill would also prohibit a male correctional officer from entering an area of the institution where female inmates may be in a state of undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. The bill would require staff of the opposite sex to announce their presence when entering a housing unit. The bill would require documentation of a male correctional officer conducting a pat down search or entering a prohibited area within 3 days of the incident and would require that the documentation to be reviewed by the warden and retained.

Existing law establishes within the state an institution for the punishment, treatment, supervision, custody, and care of females convicted of felonies known as the California Institution for Women.

This bill would prohibit male correctional officers in the California Institution for Women from conducting a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others and there is not a female correctional officer available to conduct the search. The bill would also prohibit a male correctional officer from entering an area of the institution where female inmates may be in a state of undress undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. The bill would require documentation of a male correctional officer conducting a pat down search or entering a prohibited area within 3 days of the incident and would require that the documentation to be reviewed by the warden and retained.

Existing law establishes within the state an institution for the punishment, treatment, supervision, custody, and care of females convicted of felonies known as the California Institution for Women.

This bill would prohibit male correctional officers in the California Institution for Women from conducting a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others and there is not a female correctional officer available to conduct the search. The bill would also prohibit a male correctional officer from entering an area of the institution where female inmates may be in a state of undress unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. The bill would require documentation of a male correctional officer conducting a pat down search or entering a prohibited area within 3 days of the incident and would require that the documentation to be reviewed by the warden and retained.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2550

Author:(Weber)

As Amended Ver:May 8, 2018

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Prohibits male correctional officers from conducting pat-down searches on female inmates and from entering areas of the institution where female inmates may be in a state of undress.

The Senate amendments provide that male correctional officers may also conduct pat down searches of female inmates if there is a risk of escape and no female correctional officers are available to conduct the search.

EXISTING LAW:

1. Requires the California Department of Corrections and Rehabilitation (CDCR) to ensure that its protocols for responding to sexual abuse include:
   1. That staff shall immediately ensure the safety of an inmate who alleges to be the victim of sexual abuse;
   2. That there shall be no punishment for inmates who claim to be victims of sexual abuse;
   3. That under no circumstance is it appropriate to suggest that an inmate should fight to avoid sexual violence or suggest that the sexual abuse is not significant enough to be reported to staff;
   4. That staff shall not discriminate in their response to inmates who are gay, bisexual, transgender, who experience sexual aggression, or report that they have experienced sexual abuse; and
   5. That retaliation against an inmate for making an allegation of sexual abuse shall be prohibited.
2. Requires CDCR to ensure that procedures are performed in the investigation and prosecution of sexual abuse, as specified.
3. States that if an investigation confirms that any employee has sexually abused an inmate, the employee shall be terminated, and administrators shall report criminal sexual abuse by staff to law enforcement authorities.
4. States that CDCR shall develop guidelines for allowing outside organizations and service agencies to offer resources to inmates including rape crisis agencies, hospitals, gay rights organizations, Human Immunodeficiency Virus (HIV) / Acquired Immunodeficiency Syndrome (AIDS) service providers, civil rights organizations, and human rights organizations.
5. Creates the Office of the Sexual Abuse in Detention Elimination Ombudsman within the Office of the Inspector General to inspect all of the CDCR institutions and to investigate reports of mishandling of incident of sexual abuse while maintaining the confidentiality of victims of sexual abuse.
6. States that prisoners incarcerated in the state prison are under the protection of the law, and any injury to the prisoner's person, not authorized by law, is punishable in the same manner as if the prisoner were not convicted or sentenced.

AS PASSED BY THE ASSEMBLY, this bill:

1. Prohibited male correctional officers from conducting pat-down searches of female inmates unless the inmate presents a risk of immediate harm and there is no female correctional officer available to conduct the pat-down search.
2. Prohibited male correctional officers from being in an area of the institution where female inmates may be in a state of undress, including restrooms, showers, and medical treatment areas, unless the inmate presents a risk of immediate harm or there is a medical emergency in the area and there is no female correctional officer available to resolve the situation in a safe and timely manner.
3. Stated that if a male correctional officer conducts a pat-down search of a female inmate, or is in an area of the institution where a female inmate may be in a state of undress, the circumstances and details of the search must be documented within three days of the incident.
4. Required the documentation to be reviewed by the warden and retained by the institution for reporting purposes.
5. Stated that the California Department of Corrections and Rehabilitation (CDCR) may promulgate regulations to implement the provisions of the bill.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: According to the author, "Women are the fastest growing population behind bars. In the past two decades, the population of women in prison skyrocketed 700%. Women who are incarcerated often have very high rates of past traumatic experiences, with 86% of women in jails and prisons having reported being survivors of past sexual violence and 77% having reported being survivors of partner violence yet in many states male guards can strip search women and supervise them in showers and bathrooms. This bill aims to restore dignity to incarcerated women and reduce any further trauma by holding correctional officers accountable."

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0003632

 CONSENT  

Bill No: AB 2550

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 5/15/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 70-0, 4/12/18 - See last page for vote

SUBJECT:

SOURCE: Anti-Recidivism Coalition

#Cut50

DIGEST:

This bill prohibits male correctional officers from conducting cross-gender pat-down searches, except as specified; prohibits male correctional officers from entering an area of a prison where female inmates may be undressed, or from being in an area where they can view undressed female inmates; and requires documentation of each incident of a male correctional officer conducting a cross-gender pat-down search or entering a prohibited area.

ANALYSIS: Existing federal law, the Prison Rape Elimination Act (PREA), establishes a zero-tolerance standard for the incidence of prison rape in prisons in the United States, provides for the development and implementation of national standards for the detection, prevention, reduction, and punishment of prison rape, and mandates the review and analysis of the incidence and effects of prison rape. (34 U.S.C. § 30301 et seq.)

Existing state law:

1. Requires California Department of Corrections and Rehabilitation (CDCR) to adopt specified policies, practices, and protocols related to the placement of inmates, physical and mental health care of inmate victims, and investigation of sexual abuse via the Sexual Abuse in Detention Elimination Act (SADEA). (Pen. Code, § 2635 et seq.)
2. Requires CDCR to ensure that its protocols for responding to sexual abuse include all of the following:
3. The safety of an inmate or ward who alleges that he or she has been the victim of sexual abuse shall be immediately and discreetly ensured. Staff shall provide the safest possible housing options to inmates and wards who have experienced repeated abuse. Housing options may include discreet institution transfers.
4. Inmates and wards who file complaints of sexual abuse shall not be punished, either directly or indirectly, for doing so. If a person is segregated for his or her own protection, segregation must be nondisciplinary.
5. Any person who knowingly or willfully submits inaccurate or untruthful information in regards to sexual abuse is punishable pursuant to department regulations.
6. Under no circumstances is it appropriate to suggest that an inmate should fight to avoid sexual violence or to suggest that the reported sexual abuse is not significant enough to be addressed by staff.
7. Staff shall not discriminate in their response to inmates and wards who are gay, bisexual, or transgender who experience sexual aggression, or report that they have experienced sexual abuse.
8. Retaliation against an inmate or ward for making an allegation of sexual abuse shall be strictly prohibited. (Pen. Code, § 2637.)
9. Requires certain procedures to be performed in the investigation and prosecution of sexual abuse incidents. (Pen. Code, § 2639.)
10. Requires an employee to be terminated if an investigation confirms that the employee has sexually abused an inmate, and requires prison administrators to report criminal sexual abuse by staff to law enforcement authorities. (Pen. Code, § 2639, subd. (e).)
    
11. Establishes the Office of the Sexual Abuse in Detention Elimination Ombudsman within the Office of the Inspector General to ensure the impartial resolution of inmate and ward sexual abuse complaints. (Pen. Code, § 2641.)
12. Provides that inmates incarcerated in the state prison are under the protection of the law, and any injury to the inmate’s person, not authorized by law, is punishable in the same manner as if the inmate were not convicted or sentenced. (Pen. Code, § 2650.)

This bill:

1. Prohibits male correctional officers from conducting a pat-down search of a female inmate unless the inmate presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search.
2. Prohibits a male correctional officer from entering an area of the institution where female inmates may be in a state of undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance.
3. Requires staff of the opposite sex to announce their presence when entering a housing unit.
4. Requires documentation of a male correctional officer conducting a pat-down search or entering a prohibited area within 3 days of the incident and requires the documentation to be reviewed by the warden and retained for reporting purposes.
5. Provides that CDCR may promulgate regulations to implement the provisions of the bill.

Background

Federal Law: PREA. PREA was enacted in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; to increase of the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape. (34 U.S.C. § 30301 et seq. [previously classified as 42 U.S.C. § 15601 et seq.]) The act also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

PREA Standards. The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 Fed.Reg. 37106 [28 C.F.R. § 115 et seq.] (Jun. 20, 2012).) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse and investigation of sexual abuse.

Pursuant to the PREA standards, prison staff are prohibited from conducting cross-gender strip searches and cross-gender visual body cavity searches except in exigent circumstances or when performed by medical practitioners. (28 C.F.R. § 115.15 (a) (2012).) Prison staff are also prohibited from conducting cross-gender pat-down searches of female inmates, absent exigent circumstances in facilities with more than 50 inmates. (28 C.F.R. § 115.15 (b) (2012).) Prison staff are required to document all cross-gender strip searches and cross-gender visual body cavity searches, and to document all cross-gender pat-down searches of female inmates. (28 C.F.R. § 115.15 (c) (2012).) Each facility is required to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. (28 C.F.R. § 115.15 (d) (2012).) The standards specify that the policies and procedures must require staff of the opposite gender to announce their presence when entering an inmate housing unit. (Id.) Finally, the standards requires that security staff be trained in how to conduct cross-gender pat-down searches in a professional and respectful manner, and in the least intrusive manner, consistent with security needs. (28 C.F.R. § 115.15 (f) (2012).)

The PREA standards became immediately binding upon federal correctional facilities once they were finalized. To incentivize states to comply with the PREA standards, the federal government is authorized to reduce the funds a state would receive for prison purposes via a grant program established by PREA by 5 percent, unless the governor of the state submits proof of compliance to the U.S. Attorney General.

State Law: SADEA. SADEA was enacted in 2005, made several legislative findings and declarations regarding sexual abuse at CDCR institutions, and required CDCR to adopt specified policies, practices, and protocols related to the placement of inmates, physical and mental health care of inmate victims, and investigation of sexual abuse.

CDCR Policies on Inmate Body Searches

• Searches Generally. CDCR regulations provide that an inmate is subject to an inspection of his or her person, either clothed or unclothed, when there is a reasonable suspicion to believe the inmate may have unauthorized or dangerous items concealed on his or her person, or that he or she may have been involved in an altercation of any kind. (Cal. Code Regs., tit. 15, § 3287, subd. (b).) Random or spot-check inspections of inmates may also be authorized by the institution head to prevent possession and movement of unauthorized or dangerous items and substances into, out of, or within the institution. (Id.) CDCR’s regulations specify that all such inspections must be conducted in a professional manner which avoids embarrassment or indignity to the inmate. (Id.) Whenever possible, unclothed body inspections of inmates must be conducted outside the view of others. (Id.)
• Cross Gender Searches. Correctional employees, other than qualified medical staff, are prohibited from conducting unclothed body inspections of inmates of the opposite sex except under emergency conditions with life or death consequences. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(1).) While routine inspections of clothed male inmates may be performed by employees of either sex, body inspection of clothed female inmates shall be conducted by female correctional employees only, except in emergency situations requiring the immediate search of inmates to avoid the threat of death, escape, or great bodily injury. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(2) & (3).) In such emergency situations, male correctional employees may conduct clothed body inspections only until sufficient numbers of female correctional employees are available to assume critical body search duties. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(3).) CDCR regulations prohibit male correctional employees from performing non-emergency body searches of female inmates under any circumstance. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(4).) Further, any inspection of body cavities, other than visual or metal detector inspections, must be conducted in a medical setting under the direct supervision of a physician, and any physical intrusion into body cavities must be performed by a physician, and only after all less obtrusive methods have failed to bring the inspection to a conclusion. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(5).)

CDCR’s Department Operations Manual (DOM) provides further detail on its body search policies. Male correctional staff are prohibited from performing non-emergency clothed body searches of female inmates. (DOM § 52050.16.4.) Clothed body searches of female inmates must be conducted by female correctional staff only, except in emergency situations. (Id.) Emergency situations include ones in which an immediate search is required in order to avoid the threat of death, escape, or great bodily injury to staff, inmates, or visitors, and only until sufficient numbers of female correctional staff are available to assume critical body search duties. (Id.) Clothed body searches performed by male correctional staff during an emergency must be performed such that sweep the back of the officer’s hand the inmate’s breast and genital area with. (Id.) If cause exists for a more thorough search, the female inmate must be detained until a female correctional staff member is available to conduct the search. (Id.) Any time a male correctional staff member conducts a pat-down search of a female inmate, the search must be documented on a specified form which is reviewed by the supervisor and sent to the institutional PREA Compliance Manager (PCM) who must retain the completed document. (Id.)

Correctional personnel, other than qualified medical staff, are prohibited from conducting unclothed body inspections or searches of an inmate of the opposite sex, except in an emergency. (DOM § 52050.16.5.) Routine unclothed body searches must be conducted in a safe manner and in an area that allows the inmate to preserve some measure of dignity and self-respect. (Id.) Routine unclothed body searches are prohibited from being completed by staff of the opposite biological sex. (Id.) Unclothed body searches of inmates by staff of the opposite biological sex are only permitted in emergency situations. (Id.) If a cross gender unclothed body search is required, the search must be documented, reviewed by the supervisor, and routed to the institutional PCM who must retain the completed document. (Id.)

CDCR’s PREA Policy. CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct and sexual harassment against CDCR inmates. (DOM §§ 54040.1-54040.22.) The policy applies to all offenders and persons employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole. The policy provides:

“Each institution shall enable offenders to shower, perform bodily functions, and change clothing without non-medical staff of the opposite biological sex viewing their breast, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Except in circumstances where there would be an impact to safety and security, modesty screens shall be placed strategically in areas that prevent incidental viewing. . . . In order to minimize cross gender exposure, staff of the opposite biological sex shall announce their presence when entering the housing unit. This announcement is required at the beginning of each shift and/or when the status quo within the housing unit changes.” (DOM § 54040.4.)

The policy also requires that all cross-gender strip searches and cross-gender visual body cavity searches, as well as all cross-gender pat-down searches of female inmates be documented. (DOM § 54040.5.) Completed documentation must be reviewed by the supervisor and routed to the institutional PCM who must retain it. (Id.)

PREA Audits. CDCR’s adult and juvenile facilities are subject to audits to ensure PREA compliance. PREA audits are completed in 3-year cycles. One-third of the state’s prisons are audited each year of the 3-year cycle, with all of the state’s prisons being audited during each 3-year cycle. The audits are completed by individuals who are certified with the U.S. DOJ to be PREA auditors. These individuals typically work within a state’s corrections system. PREA auditors perform PREA audits of prisons outside of the state where the auditor is based. For example, a California corrections official who is a certified PREA auditor would complete PREA audits of prisons in another state, not of prisons within California.

The first PREA audit cycle began in August 2013 and ended in August 2016. No PREA audit was completed for the California Women’s Institute (CIW) or the California Correctional Facility for Women (CCWF) during that audit cycle. Audits for both prisons are scheduled during 2018 or 2019 as part of the current audit cycle.

An audit of Folsom State Prison which contains the 400-bed Folsom Women’s Facility was completed in 2016. The audit report did not include separate entries for the men’s and women’s facilities. It found that the prison was in overall compliance with the PREA standards. With respect to PREA Standard 115.15—limits to cross-gender viewing and searches—the report concluded:

There were no instances of cross-gender strip searches, body cavity searches or pat-down searches within the past 12 months requiring the use of a Notice of Unusual Occurrence (NOU). This information was verified through random and specialized interviews with both staff and offenders. . . The audit team observed every shower and toilet area for the possibility of cross gender viewing. The facility has done an excellent job either installing permanent modesty screens, such as shower areas within the housing units, or portable modesty screens for use in areas when offenders are strip-searched. (https://www.cdcr.ca.gov/PREA/docs/FSP-2016-PREA-Report.pdf)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/25/18)

Anti-Recidivism Coalition (co-source)

#Cut50 (co-source)

ACLU of California

American College of Obstetricians and Gynecologists

California Catholic Conference

California Legislative Black Caucus

California Public Defenders Association

Ella Baker Center for Human Rights

National Association for Social Workers, California Chapter

Prison Law Office

Sister Inmate

OPPOSITION: (Verified 6/25/18)

None received

ASSEMBLY FLOOR: 70-0, 4/12/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Bloom, Cristina Garcia, Gray, Limón, Low, Mullin, Steinorth

Prepared by:

6/27/18 10:19:14

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2550 Hearing Date: May 15, 2018

Subject: Prisons: Female Inmates and Male Correctional Officers

HISTORY

Source: Anti-Recidivism Coalition

#Cut50

Prior Legislation: AB 303 (Gonzalez), Ch. 464, Stats. of 2015

SB 716 (Lara), held in Assembly Appropriations 2013

AB 550 (Goldberg), Ch. 303, Stats. of 2005

Support: ACLU of California; American College of Obstetricians and Gynecologists; California Catholic Conference; California Legislative Black Caucus; California Public Defenders Association; Ella Baker Center for Human Rights; National Association for Social Workers, California Chapter; Prison Law Office

Opposition: None known

Assembly Floor Vote: 70 - 0

PURPOSE

The purpose of this bill is to: 1) prohibit male correctional officers from conducting cross-gender pat-down searches, except as specified; 2) prohibit male correctional officers from entering an area of a prison where female inmates may be undressed, or from being in an area where they can view undressed female inmates; and 3) require documentation of each incident of a male correctional officer conducting a cross-gender pat-down search or entering a prohibited area.

Existing federal law, the Prison Rape Elimination Act (PREA), establishes a zero-tolerance standard for the incidence of prison rape in prisons in the United States, provides for the development and implementation of national standards for the detection, prevention, reduction, and punishment of prison rape, and mandates the review and analysis of the incidence and effects of prison rape. (34 U.S.C. § 30301 et seq.)

Existing law, the Sexual Abuse in Detention Elimination Act (SADEA), requires CDCR to adopt specified policies, practices, and protocols related to the placement of inmates, physical and mental health care of inmate victims, and investigation of sexual abuse. (Pen. Code, § 2635 et seq.)

Existing law requires CDCR to ensure that its protocols for responding to sexual abuse include all of the following:

• The safety of an inmate or ward who alleges that he or she has been the victim of sexual abuse shall be immediately and discreetly ensured. Staff shall provide the safest possible housing options to inmates and wards who have experienced repeated abuse. Housing options may include discreet institution transfers.
• Inmates and wards who file complaints of sexual abuse shall not be punished, either directly or indirectly, for doing so. If a person is segregated for his or her own protection, segregation must be nondisciplinary.
• Any person who knowingly or willfully submits inaccurate or untruthful information in regards to sexual abuse is punishable pursuant to department regulations.
• Under no circumstances is it appropriate to suggest that an inmate should fight to avoid sexual violence or to suggest that the reported sexual abuse is not significant enough to be addressed by staff.
• Staff shall not discriminate in their response to inmates and wards who are gay, bisexual, or transgender who experience sexual aggression, or report that they have experienced sexual abuse.
• Retaliation against an inmate or ward for making an allegation of sexual abuse shall be strictly prohibited. (Pen. Code, § 2637.)

Existing law requires certain procedures to be performed in the investigation and prosecution of sexual abuse incidents. (Pen. Code, § 2639.)

Existing law requires an employee to be terminated if an investigation confirms that the employee has sexually abused an inmate, and requires prison administrators to report criminal sexual abuse by staff to law enforcement authorities. (Pen. Code, § 2639, subd. (e).)

Existing law establishes the Office of the Sexual Abuse in Detention Elimination Ombudsman within the Office of the Inspector General to ensure the impartial resolution of inmate and ward sexual abuse complaints. (Pen. Code, § 2641.)

Existing law provides that inmates incarcerated in the state prison are under the protection of the law, and any injury to the inmate’s person, not authorized by law, is punishable in the same manner as if the inmate were not convicted or sentenced. (Pen. Code, § 2650.)

This bill prohibits male correctional officers from conducting a pat-down search of a female inmate unless the inmate presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search.

The bill prohibits a male correctional officer from entering an area of the institution where female inmates may be in a state of undress, or from being in an area where they can view female inmates in a state of undress, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area and there is not a female correctional officer who can resolve the situation in a safe and timely manner without his assistance.

This bill requires staff of the opposite sex to announce their presence when entering a housing unit.

The bill requires documentation of a male correctional officer conducting a pat-down search or entering a prohibited area within 3 days of the incident and requires the documentation to be reviewed by the warden and retained for reporting purposes.

This bill provides that CDCR may promulgate regulations to implement the provisions of the bill.

COMMENTS

1. Need for This Bill

According to the author:

This bill will prohibit male correctional officers from pat down searching women who are incarcerated or entering into an area where incarcerated women are in a state of undress such as shower rooms and bathrooms. This bill also seeks to hold correctional officers accountable and ensure that documentation is submitted when women are pat searched or seen in a state of undress by a male guard.

Women are the fastest growing population behind bars. In the past two decades, the population of women in prison skyrocketed 700%. Women who are incarcerated often have very high rates of past traumatic experiences, with 86% of women in jails and prisons having reported being survivors of past sexual violence and 77% having reported being survivors of partner violence yet in many states male guards can strip search women and supervise them in showers and bathrooms. This bill aims to restore dignity to incarcerated women and reduce any further trauma by holding correctional officers accountable.

The bill is aligned with Prison Rape Elimination Act (PREA)….enacted…with the goal of preventing rape, sexual abuse, and harassment in federal, state, and local prisons.

1. PREA
2. Federal Law

PREA was enacted in 2003. It applies to all correctional facilities, including prisons, jails, and juvenile facilities. Among the many stated purposes for PREA are: to establish a zero-tolerance standard for the incidence of prison rape in prisons in the United States; to develop and implement national standards for the detection, prevention, reduction, and punishment of prison rape; to increase of the available data and information on the incidence of prison rape to improve the management and administration of correctional facilities; and to increase the accountability of prison officials who fail to detect, prevent, reduce, and punish prison rape. (34 U.S.C. § 30301 et seq. [previously classified as 42 U.S.C. § 15601 et seq.]) The act also created the National Prison Rape Elimination Commission and charged it with developing standards for the elimination of prison rape.

1. PREA Standards

The PREA standards developed by the National Prison Rape Elimination Commission were issued as a final rule by the U.S. Department of Justice in 2012. (77 Fed.Reg. 37106 [28 C.F.R. § 115 et seq.] (Jun. 20, 2012).) Among other things, the standards require each agency and facility to: designate a PREA point person to coordinate compliance efforts; develop and document a staffing plan, taking into account a set of specified factors, that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse; and train staff on key topics related to preventing, detecting, and responding to sexual abuse. In addition, the standards provide requirements regarding the avenues for reporting sexual abuse, investigation of sexual abuse, and access to medical and mental health care for inmate victims of sexual abuse.

Pursuant to the PREA standards, prison staff are prohibited from conducting cross-gender strip searches and cross-gender visual body cavity searches except in exigent circumstances or when performed by medical practitioners. (28 C.F.R. § 115.15 (a) (2012).) Prison staff are also prohibited from conducting cross-gender pat-down searches of female inmates, absent exigent circumstances in facilities with more than 50 inmates. (28 C.F.R. § 115.15 (b) (2012).) Prison staff are required to document all cross-gender strip searches and cross-gender visual body cavity searches, and to document all cross-gender pat-down searches of female inmates. (28 C.F.R. § 115.15 (c) (2012).) Each facility is required to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. (28 C.F.R. § 115.15 (d) (2012).) The standards specify that the policies and procedures must require staff of the opposite gender to announce their presence when entering an inmate housing unit. (Id.) Finally, the standards requires that security staff be trained in how to conduct cross-gender pat-down searches in a professional and respectful manner, and in the least intrusive manner, consistent with security needs. (28 C.F.R. § 115.15 (f) (2012).)

The PREA standards became immediately binding upon federal correctional facilities once they were finalized. To incentivize states to comply with the PREA standards, the federal government is authorized to reduce the funds a state would receive for prison purposes via a grant program established by PREA by 5 percent, unless the governor of the state submits proof of compliance to the U.S. Attorney General. Proof of compliance means either a certification that the state has adopted and is in full compliance with the PREA standards, or an assurance that the state intends to adopt and achieve full compliance with the PREA standards in the future. (34 U.S.C. § 30307 (e)(2) [previously classified as 42 U.S.C. § 15607(c)(2)].)

1. SADEA

AB 550 (Goldberg), Chapter 303, Statutes of 2005, established SADEA. The Act made several legislative findings and declarations regarding sexual abuse at CDCR institutions and required CDCR to adopt specified policies, practices, and protocols related to the placement of inmates, physical and mental health care of inmate victims, and investigation of sexual abuse.

1. CDCR Policies on Inmate Body Searches
2. Searches Generally

CDCR regulations provide that an inmate is subject to an inspection of his or her person, either clothed or unclothed, when there is a reasonable suspicion to believe the inmate may have unauthorized or dangerous items concealed on his or her person, or that he or she may have been involved in an altercation of any kind. (Cal. Code Regs., tit. 15, § 3287, subd. (b).) Random or spot-check inspections of inmates may also be authorized by the institution head to prevent possession and movement of unauthorized or dangerous items and substances into, out of, or within the institution. (Id.) CDCR’s regulations specify that all such inspections must be conducted in a professional manner which avoids embarrassment or indignity to the inmate. (Id.) Whenever possible, unclothed body inspections of inmates must be conducted outside the view of others. (Id.)

1. Cross Gender Searches

Correctional employees, other than qualified medical staff, are prohibited from conducting unclothed body inspections of inmates of the opposite sex except under emergency conditions with life or death consequences. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(1).) While routine inspections of clothed male inmates may be performed by employees of either sex, body inspection of clothed female inmates shall be conducted by female correctional employees only, except in emergency situations requiring the immediate search of inmates to avoid the threat of death, escape, or great bodily injury. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(2) & (3).) In such emergency situations, male correctional employees may conduct clothed body inspections only until sufficient numbers of female correctional employees are available to assume critical body search duties. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(3).) CDCR regulations prohibit male correctional employees from performing non-emergency body searches of female inmates under any circumstance. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(4).) Further, any inspection of body cavities, other than visual or metal detector inspections, must be conducted in a medical setting under the direct supervision of a physician, and any physical intrusion into body cavities must be performed by a physician, and only after all less obtrusive methods have failed to bring the inspection to a conclusion. (Cal. Code Regs., tit. 15, § 3287, subd. (b)(5).)

CDCR’s Department Operations Manual (DOM) provides further detail on its body search policies. CDCR’s policy on clothed body searches of female inmates provides:

Body search procedures for clothed female inmates recognize, address, and minimize the effects of cross-gender contact inherent in the body search process by limiting this function to female correctional staff unless an emergency exists that threatens death, inmate escape, or great bodily injury to staff , inmates, or visitors.

Clothed Body Searches of female inmates shall be conducted by female correctional staff only, except in emergency situations as follows:

• When circumstances exist that require an immediate search of a female inmate in order to avoid the threat of death, escape, or great bodily injury to staff , inmates, or visitors, and only until sufficient numbers of female correctional staff are available to assume critical body search duties.
• Clothed Body Searches performed by male correctional staff during the emergency circumstances described above shall sweep the inmate’s breast and genital area with the back of the hand for the purpose of discovering contraband directly related to the threat posed by the emergency. If cause exists for a more thorough search, the female inmate shall be detained until a female correctional staff member is available to conduct the search.
• At any time a male correctional staff member conducts a pat-down search of a female inmate, the search shall be documented. This documentation shall be completed utilizing a Notice of Unusual Occurrence which shall be reviewed by the supervisor and routed to the institutional PREA Compliance Manager (PCM). The PCM shall retain the completed document, in accordance with the Records Retention Schedule, for audit purposes.

Under no circumstances shall male correctional staff perform non-emergency clothed body searches of female inmates. (DOM § 52050.16.4.)

The relevant portions of CDCR’s policy on unclothed body searches of inmates provide:

Unclothed body searches:

• Correctional personnel, other than qualified medical staff, shall not conduct unclothed body inspections or searches of an inmate of the opposite sex, except in an emergency.
• Routine unclothed body searches shall be conducted in a safe manner and in an area that allows the inmate to preserve some measure of dignity and self-respect. Routine unclothed body searches shall not be completed by staff of the opposite biological sex.
• Unclothed body searches of inmates by staff of the opposite biological sex shall only be conducted in emergency situations. If a cross gender unclothed body search is required, the search shall be documented. This documentation shall be completed utilizing a Notice of Unusual Occurrence which shall be reviewed by the supervisor and routed to the institutional PCM. The PCM shall retain the completed document, in accordance with the Records Retention Schedule, for audit purposes. (DOM § 52050.16.5.)

1. CDCR’s PREA Policy

CDCR’s PREA policy provides guidelines for the prevention, detection, response, investigation, and tracking of sexual violence, staff sexual misconduct and sexual harassment against CDCR inmates. (DOM §§ 54040.1-54040.22.) The policy applies to all offenders and persons employed by CDCR, including volunteers and independent contractors assigned to an institution, community correctional facility, conservation camp, or parole. The policy provides:

Each institution shall enable offenders to shower, perform bodily functions, and change clothing without non-medical staff of the opposite biological sex viewing their breast, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Except in circumstances where there would be an impact to safety and security, modesty screens shall be placed strategically in areas that prevent incidental viewing.

In order to minimize cross gender exposure, staff of the opposite biological sex shall announce their presence when entering the housing unit. This announcement is required at the beginning of each shift and/or when the status quo within the housing unit changes. (DOM § 54040.4.)

The policy further provides:

Institutions shall document all cross-gender strip searches and cross-gender visual body cavity searches in accordance with DOM Section 52050.16.5, and shall document all cross-gender pat-down searches of female inmates in accordance with DOM Section 52050.16.4 utilizing the Notice of Unusual Occurrence (NOU). Completed NOU forms shall be reviewed by the supervisor and routed to the institutional PCM to retain for audit purposes. If the search is incidental to an emergency or crime that constitutes a CDCR Form 837, Crime Incident Report, the search shall also be documented within the incident report. (DOM § 54040.5.)

1. PREA Audits

CDCR’s adult and juvenile facilities are subject to audits to ensure PREA compliance. PREA audits are completed in 3-year cycles. One-third of the state’s prisons are audited each year of the 3-year cycle, with all of the state’s prisons being audited during each 3-year cycle. The audits are completed by individuals who are certified with the U.S. DOJ to be PREA auditors. These individuals typically work within a state’s corrections system. PREA auditors perform PREA audits of prisons outside of the state where the auditor is based. For example, a California corrections official who is a certified PREA auditor would complete PREA audits of prisons in another state, not of prisons within California.

The first PREA audit cycle began in August 2013 and ended in August 2016. No PREA audit was completed for the California Women’s Institute (CIW) or the California Correctional Facility for Women (CCWF) during that audit cycle. Audits for both prisons are scheduled during 2018 or 2019 as part of the current audit cycle.

An audit of Folsom State Prison which contains the 400-bed Folsom Women’s Facility was completed in 2016. The audit report did not include separate entries for the men’s and women’s facilities. It found that the prison was in overall compliance with the PREA standards. With respect to PREA Standard 115.15—limits to cross-gender viewing and searches—the report concluded:

CDCR Department Organization Manual…Policy 52050.16.4 reads body search procedures for clothed female inmates recognize, address, and minimize the effects of cross-gender contact inherent in the body search process by limiting this function to female correctional staff unless an emergency exists that threatens death, inmate escape, or great bodily injury to staff, inmates, or visitors. Policy section 54040.5 requires the documentation of all … cross-gender pat-down searches of female inmates in accordance with DOM Section 52050.16.4 utilizing the Notice of Unusual Occurrence (NOU) form. Completed NOU forms are reviewed by supervisors and routed to the institutional PREA Compliance Manager for retention and audit purposes.

There were no instances of cross-gender strip searches, body cavity searches or pat-down searches within the past 12 months requiring the use of an NOU. This information was verified through random and specialized interviews with both staff and offenders. Policy section 54040.4 requires each institution to enable offenders to shower, perform bodily functions and change clothing without non-medical staff of the opposite biological sex viewing their breast, buttocks or genitalia except in exigent circumstances or when such viewing is incidental to routine cell checks. Except in circumstances where there would be an impact to safety and security, modesty screens shall be placed strategically in areas that prevent incidental viewing. The audit team observed every shower and toilet area for the possibility of cross gender viewing. The facility has done an excellent job either installing permanent modesty screens, such as shower areas within the housing units, or portable modesty screens for use in areas when offenders are strip-searched. (https://www.cdcr.ca.gov/PREA/docs/FSP-2016-PREA-Report.pdf)

1. Effect of This Legislation

Current CDCR regulations and policy prohibit male correctional officers from conducting clothed body searches of female inmates except in emergencies. (Cal. Code Regs., tit. 15, § 3287, subd. (b); DOM § 52050.16.4.) Both regulations and department policy specify that the emergency exception to the general prohibition on cross-gender searches of female inmates ends once there are female correctional officers available to conduct searches. This bill would codify the prohibition on cross-gender pat-downs of female inmates and would specify an exception only when “the inmate presents a risk of immediate harm to herself or others, or risk of escape, and there is not a female correctional officer available to conduct the search.”

The DOM generally prohibits cross-gender viewing of showering, other bathroom activities, and changing. (DOM § 54040.5.) However, the policy provides an exception in exigent circumstances or when such viewing is incidental to routine cell checks. This bill would generally codify this prohibition, but specifies an exception only when “an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area.” In addition, this bill specifies that a male correctional officer is prohibited from entering into a prohibited area if there is a female correctional officer who can resolve the situation in a safe and timely manner without his assistance.

The DOM requires staff to announce their presence when entering a housing unit that houses inmates of the opposite biological sex in order to minimize cross-gender exposure. (DOM § 54040.4.) This bill generally codifies this requirement but specifies that it is to “prevent incidental viewing.”

The DOM requires staff to document all cross-gender pat-down searches of female inmates on a specialized form and requires that form to be reviewed by the officer’s supervisor and then sent to the institutional PREA Compliance Manager. (DOM §§ 54040.5, 52050.16.4.) This bill would codify the requirement that each cross-gender pat-down search of a female inmate was documented. In addition, this bill would require documentation of each incident of a male correctional officer entering a prohibited area, would establish a requirement that an incident be documented within three days of the incident, and would require the documentation to be reviewed by the warden.

1. Argument in Support

The National Association of Social Workers, California Chapter writes:

AB 2550…would improve the treatment of women who are incarcerated and reduce potential trauma by implementing policies that enforce gender specific practices.

…Women who are incarcerated often have very high rates of past traumatic experiences with 86% of women in jails and prisons having reported being survivors of past sexual violence. In addition, 77% have reported being survivors of partner violence.

Allowing male guards to observe women who are incarcerated at all times-taking showers, dressing, going to the bathroom and being strip searched fails to acknowledge the ongoing suffering and trauma that can occur through these interactions. Consistent with the National Prison Rape Elimination Act (PREA) standards, this bill would further the goal of preventing sexual abuse and harassment and enhancing sexual safety for this vulnerable population.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2550

Author:(Weber)

As Amended Ver:March 22, 2018

Majority vote

SUMMARY: Prohibits male correctional officers from conducting pat-down searches on female inmates and from entering areas of the institution where female inmates may be in a state of undress. Specifically, this bill:

1. Prohibits male correctional officers from conducting pat-down searches of female inmates unless the inmate presents a risk of immediate harm and there is no female correctional officer available to conduct the pat-down search.
2. Prohibits male correctional officers from being in an area of the institution where female inmates may be in a state of undress, including restrooms, showers, and medical treatment areas, unless the inmate presents a risk of immediate harm or there is a medical emergency in the area and there is no female correctional officer available to resolve the situation in a safe and timely manner.
3. States that if a male correctional officer conducts a pat-down search of a female inmate, or is in an area of the institution where a female inmate may be in a state of undress, the circumstances and details of the search must be documented within three days of the incident.
4. Requires the documentation to be reviewed by the warden and retained by the institution for reporting purposes.
5. States that the California Department of Corrections and Rehabilitation (CDCR) may promulgate regulations to implement the provisions of the bill.

EXISTING LAW:

1. Requires CDCR to ensure that its protocols for responding to sexual abuse include:
   1. That staff shall immediately ensure the safety of an inmate who alleges to be the victim of sexual abuse;
   2. That there shall be no punishment for inmates who claim to be victims of sexual abuse;
   3. That under no circumstance is it appropriate to suggest that an inmate should fight to avoid sexual violence or suggest that the sexual abuse is not significant enough to be reported to staff;
   4. That staff shall not discriminate in their response to inmates who are gay, bisexual, transgender, who experience sexual aggression, or report that they have experienced sexual abuse; and
   5. That retaliation against an inmate for making an allegation of sexual abuse shall be prohibited.
2. Requires CDCR to ensure that procedures are performed in the investigation and prosecution of sexual abuse, as specified.
3. States that if an investigation confirms that any employee has sexually abused an inmate, the employee shall be terminated, and administrators shall report criminal sexual abuse by staff to law enforcement authorities.
4. States that CDCR shall develop guidelines for allowing outside organizations and service agencies to offer resources to inmates including rape crisis agencies, hospitals, gay rights organizations, Human Immunodeficiency Virus (HIV) / Acquired Immunodeficiency Syndrome (AIDS) service providers, civil rights organizations, and human rights organizations.
5. Creates the Office of the Sexual Abuse in Detention Elimination Ombudsman within the Office of the Inspector General to inspect all of the CDCR institutions and to investigate reports of mishandling of incident of sexual abuse while maintaining the confidentiality of victims of sexual abuse.
6. States that prisoners incarcerated in the state prison are under the protection of the law, and any injury to the prisoner's person, not authorized by law, is punishable in the same manner as if the prisoner were not convicted or sentenced.

FISCAL EFFECT: According to the Assembly Appropriations Committee, negligible fiscal effect to CDCR because the department is already required to comply with similar requirements established through state and federal regulations and CDCR policy.

COMMENTS:

Author's Statement: According to the author, "Women are the fastest growing population behind bars. In the past two decades, the population of women in prison skyrocketed 700%. Women who are incarcerated often have very high rates of past traumatic experiences, with 86% of women in jails and prisons having reported being survivors of past sexual violence and 77% having reported being survivors of partner violence yet in many states male guards can strip search women and supervise them in showers and bathrooms. This bill aims to restore dignity to incarcerated women and reduce any further trauma by holding correctional officers accountable."

Please see the policy committee analysis for a full discussion on this bill.

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0002652

Date of Hearing: April 4, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2550

Author:(Weber) – As Amended Ver:March 22, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits California Department of Corrections and Rehabilitation (CDCR) male correctional officers from conducting pat-down searches on female inmates and from entering areas of an institution where female inmates may be in a state of undress. This bill provides certain exemptions, such as if there is an immediate risk of harm or medical emergency.

FISCAL EFFECT:

Negligible fiscal effect to CDCR because the department is already required to comply with similar requirements established through state and federal regulations and CDCR policy.

COMMENTS:

1. Background. Existing regulations specify that body inspections of clothed female inmates must be conducted only by female correctional employees, except in emergency situations. Similarly, CDCR policy specifies that only medical staff can conduct body searches of an unclothed inmate, except in emergency situations. In addition, CDCR policy requires each institution to generally allow female inmates to shower, perform bodily functions, and change clothing without non-medical staff of the opposite gender viewing private areas of the inmates’ bodies.
2. Purpose. According to the author:

Women are the fastest growing population behind bars. In the past 2 decades, the population of women in prison skyrocketed 700%. Women who are incarcerated often have very high rates of past traumatic experiences, with 86% of women in jails and prisons having reported being survivors of past sexual violence and 77% having reported being survivors of partner violence yet in many states male guards can strip search women and supervise them in showers and bathrooms. This bill aims to restore dignity to incarcerated women and reduce any further trauma by holding correctional officers accountable.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2550

Author:(Weber) – As Introduced Ver:February 15, 2018

As Proposed to be Amended in Committee

SUMMARY:

Prohibits male correctional officers from conducting pat-down searches on female inmates and from entering areas of the institution where female inmates may be in a state of undress. Specifically, this bill:

1. Prohibits male correctional officers from conducting pat-down searches of female inmates unless the inmate presents a risk of immediate harm and there is no female correctional officer available to conduct the pat-down search.
   
2. Prohibits male correctional officers from being in an area of the institution where female inmates may be in a state of undress, including restrooms, showers, and medical treatment areas, unless the inmate presents a risk of immediate harm or there is a medical emergency in the area and there is no female correctional officer available to resolve the situation in a safe and timely manner.
   
3. States that if a male correctional officer conducts a pat-down search of a female inmate, or is in an area of the institution where a female inmate may be in a state of undress, the circumstances and details of the search must be documented within three days of the incident.
   
4. Requires the documentation to be reviewed by the warden and retained by the institution for reporting purposes.
   
5. States that the California Department of Corrections and Rehabilitation (CDCR) may promulgate regulations to implement the provisions of the bill.

EXISTING LAW:

1. Requires CDCR to ensure that its protocols for responding to sexual abuse include:
   
   1. That staff shall immediately ensure the safety of an inmate who alleges to be the victim of sexual abuse;
      
   2. That there shall be no punishment for inmates who claim to be victims of sexual abuse;
      
   3. That under no circumstance is it appropriate to suggest that an inmate should fight to avoid sexual violence or suggest that the sexual abuse is not significant enough to be reported to staff;
      
   4. That staff shall not discriminate in their response to inmates who are gay, bisexual, transgender, who experience sexual aggression, or report that they have experienced sexual abuse; and
   5. That retaliation against an inmate for making an allegation of sexual abuse shall be prohibited. (Pen. Code, § 2637.)
2. Requires CDCR to ensure that procedures are performed in the investigation and prosecution of sexual abuse, as specified. (Pen. Code, § 2368.)
3. States that if an investigation confirms that any employee has sexually abused an inmate, the employee shall be terminated, and administrators shall report criminal sexual abuse by staff to law enforcement authorities. (Pen. Code, § 2368, subd. (e).)
   
4. States that CDCR shall develop guidelines for allowing outside organizations and service agencies to offer resources to inmates including rape crisis agencies, hospitals, gay rights organizations, HIV/AIDS service providers, civil rights organizations, and human rights organizations. (Pen. Code, § 2642.)
   
5. Creates the Office of the Sexual Abuse in Detention Elimination Ombudsman within the Office of the Inspector General to inspect all of the CDCR institutions and to investigate reports of mishandling of incident of sexual abuse while maintaining the confidentiality of victims of sexual abuse. (Pen. Code, § 2641.)
6. States that prisoners incarcerated in the state prison are under the protection of the law, and any injury to the prisoner’s person, not authorized by law, is punishable in the same manner as if the prisoner were not convicted or sentenced. (Pen. Code, § 2650.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author, “Women are the fastest growing population behind bars. In the past 2 decades, the population of women in prison skyrocketed 700%. Women who are incarcerated often have very high rates of past traumatic experiences, with 86% of women in jails and prisons having reported being survivors of past sexual violence and 77% having reported being survivors of partner violence yet in many states male guards can strip search women and supervise them in showers and bathrooms. This bill aims to restore dignity to incarcerated women and reduce any further trauma by holding correctional officers accountable.”
2. CDCR’s Cross-Gender Body Search Policies and Practices: Inmates are subject to body inspections when there is a reasonable suspicion to believe the inmate may have concealed unauthorized or dangerous items, or if the inmate may have been involved in an altercation. (15 C.C.R. § 3287, subd. (b).) Routine body inspections may be required for inmate movement into or out of high security risk areas. CDCR’s regulations specify that “all such inspections shall be conducted in a professional manner which avoids embarrassment or indignity to the inmate,” and “whenever possible, unclothed body inspections of inmates shall be conducted outside the view of others.” (Id.) Regulations prohibit correctional employees from conducting unclothed body inspections of inmates of the opposite sex, unless there is an emergency. Both male and female correctional staff are permitted to conduct routine clothed-body pat-down inspections of male inmates. However, routine clothed-body pat-down inspections of female inmates can only be conducted by female correctional employees, unless there is an emergency situation. Male correctional employees shall not, under any circumstances, perform non-emergency body searches of female inmates. (Id.)

In addition, CDCR has adopted a Prison Rape Elimination Policy in its Department Operations Manual (DOM). (See, DOM, §§ 54050.1-54050.22.) The DOM states that “routine unclothed body searches shall be conducted in a safe manner and in an area that allows the inmate to preserve some measure of dignity and self-respect.” Correctional employees, other than qualified medical staff, may not conduct unclothed body inspections or searches of an inmate of the opposite sex, except in an emergency. Male correctional staff may conduct clothed-body pat-down searches of female inmates for the limited purpose of discovering contraband directly related to a threat posed by an emergency. When a male correctional staff member performs a clothed-body pat-down search of a female inmate, he must sweep the female inmate’s breast and genital area with the back of his hand. If there is a need for a more thorough search, the female inmate may be detained until a female correctional staff member is available to conduct the search. Any time a male correctional staff member conducts a clothed or unclothed body search of a female inmate, the search must documented.

The DOM also states that inmates must be able to shower, perform bodily functions, and change clothing without non-medical staff of the opposite sex viewing their breast, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. CDCR institutions are required to strategically place modesty screens in areas that prevent incidental viewing. In order to minimize cross gender exposure, staff of the opposite sex are required to announce their presence when entering a housing unit. These policies allow inmates to take into consideration that staff of the opposite gender may be present when performing bodily and bathing functions. (http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%202018/2018%20DOM.pdf)

This bill would codify some of CDCR’s existing policies relating to cross-gender viewing and clothed-body pat-down searches.

1. Sexual Abuse in Detention Elimination Act (SADEA): SADEA was enacted to protect all inmates in California from sexual abuse and provide training to corrections staff about sexual abuse. (Pen. Code §§ 2635, et seq.) SADEA required CDCR to develop specified policies, practices aimed at preventing sexual abuse and required CDCR to establish guidelines for outside organizations and service agencies to provide resources and counseling to inmates and wards. (Id.) SADEA also created the Office of the Sexual Abuse in Detention Elimination Ombudsperson within the Office of the Inspector General. (Id.)

When enacting SADEA, the Legislature contemplated the necessity of addressing situations in which correctional staff can view inmates of the opposite sex in a state of undress and cross-gender pat-down searches. As stated in the committee analysis for AB 550, “Male corrections officers are often allowed to watch female inmates when they are dressing, showering, or using the toilet, and some regularly engage in verbal degradation and harassment of women prisoners. Women also report groping and other sexual abuse by male staff during pat frisks and searches.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 550 (2005-2006 Reg. Sess.) as amended April 13, 2005, p. 9.)

This bill seeks to add protections aimed at preventing male correctional staff from viewing female inmates who may be in a state of undress to the SADEA provisions.

1. Federal Analogues Prohibiting Cross-Gender Searches in Correctional Facilities:
   1. Prison Rape Elimination Act (PREA): Congress enacted PREA with the goal of preventing rape, sexual abuse, and harassment in federal, state, and local prisons. (42 U.S.C §§ 15601 et seq.) The federal Department of Justice promulgated a comprehensive set of regulations implementing PREA. (https://www.justice.gov/opa/pr/justice-department-releases-final-rule-prevent-detect-and-respond-prison-rape.)

Pursuant to the PREA regulations, federal prison officials are prohibited from conducting cross-gender strip searches and cross-gender visual body cavity searches except in exigent circumstances or when performed by medical practitioners, and are prohibited from conducting cross-gender pat-down searches of female inmates, absent exigent circumstances in facilities with more than 50 inmates. (28 C. F. R. § 115.15 (a)-(b).) The regulations specify that federal facilities cannot restrict female inmates’ access to regularly available programming or other out-of-cell opportunities in order to comply with the prohibitions on cross-gender body searches. (28 C. F. R. § 115.15 (b).) Each facility must promulgate procedures that enable inmates to shower, perform bodily functions, and change clothing free from the view of nonmedical staff of the opposite gender, except in exigent circumstances and require staff of the opposite gender to announce their presence when entering an inmate housing unit. (28 C. F. R. § 115.15 (d).) Similar to the provisions of this bill, federal prison staff must document all cross-gender strip searches, cross-gender visual body cavity searches, and cross-gender pat-down searches of female inmates. (28 C. F. R. § 115.15 (c).)

The PREA regulations are binding on federal correctional facilities. States that do comply with the PREA regulations are subject to a five percent reduction in funds they would otherwise receive for prison purposes from the Department of Justice, unless the governor certifies that five percent of such funds will be used to enable compliance in future years. (42 U.S.C. § 15607(c)(2).) State and local correctional facilities, such as CDCR, are audited regularly and risk losing federal funding if it is found that they do not comply with PREA. (Id.) The Office of Emergency Services (CalOES) administers a grant program to help bring CDCR into compliance with the PREA standards. (http://www.caloes.ca.gov/GrantsManagementSite/Documents/Final%202017-18%20JLBC%20Report.pdf.) The grant program is supported with funds through the Violence Against Women Act. (Id.) Additionally, in 2017 California’s Board of State and Community Corrections received a federal grant to support CDCR facility renovations that prevent cross gender viewing and to conduct audits required under PREA. (https://external.ojp.usdoj.gov/SelectorServer/awards/pdf/award/2017-XT-BX-0006/2017-H1949-CA-DB/2017.)

• 1. Dignity for Incarcerated Women Act of 2017 (Dignity Act): The Dignity Act, currently pending in Congress, addresses the use of sex-appropriate officers in federal correctional facilities. (Sen. No. 1524, 115th Cong., 1st Sess., § 2 (2017-2018).) The Dignity Act would prohibit a correctional officer from conducting a strip search of a prisoner of the opposite sex and from entering a restroom reserved for prisoners of the opposite sex. (Id.)

1. Arguments in Support:
   
   1. According to the California Catholic Conference, “This bill seeks to improve the treatment of incarcerated women and to reduce the potential for trauma by implementing policies that enforce gender specific practices.

“Incarcerated women often have high rates of past traumatic experiences with 86% of women in jails and prisons having reported being survivors of past sexual violence. In addition 77% have reported being survivors of partner violence.

“Allowing male guards to observe women who are incarcerated at all times, taking showers, dressing, going to the bathroom and being strip searched fails to acknowledge the ongoing suffered growing trauma that can occur through these interactions.”

• 1. According to American Civil Liberties Union of California, “AB 2550 is consistent with the Federal Prison Rape Elimination Act (PREA) which provides that prisons and jails ‘shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks’.”

1. Prior Legislation:
   
   1. AB 303 (Gonzales Fletcher), Chapter 464, Statutes of 2015, requires that all persons within sight of specified detainees and incarcerated juveniles during a strip search or visual or physical body cavity search be of the same sex as the person being searched, except for physicians or licensed medical personnel.
   2. SB 716 (Lara), of the 2013-2014 Legislative Session, would have required CDCR and all local corrections agencies and departments statewide, and all private corrections companies; city, county, city and county, and regional juvenile justice facilities; police lockups; and all private confinement companies, to create a safe environment free from sexual abuse for inmates or arrestees, including those inmates or arrestees subject to a United States Immigration and Customs Enforcement hold, by adopting policies and procedures equivalent to or stronger than implementing specified federal regulations. SB 716 was held in the Assembly Appropriations Committee.
      
   3. AB 550 (Goldberg), Chapter 330, Statutes of 2005, the Sexual Abuse in Detention Elimination Act, made legislative findings and declarations that the purpose is to protect all inmates and wards from sexual abuse while held in institutions operated by CDCR, and requires the agency to provide inmates and wards with informational handbooks regarding sexual abuse in detention published by outside organizations; AB 2550 also requires CDCR to adopt specified policies, practices, and protocols related to the placement of inmates and investigation of sexual abuse, and created the Office of the Sexual Abuse in Detention Elimination Ombudsperson to ensure impartial resolution of inmate and ward sexual abuse complaints, and required CDCR to develop guidelines for allowing outside organizations and service agencies to provide resources and counseling to inmates and wards.

REGISTERED SUPPORT / OPPOSITION:

Support

#cut50 (Sponsor)

American Civil Liberties Union of California

California Catholic Conference

Opposition

None

Analysis Prepared by:

Liah Burnley / PUB. S. / (916) 319-3744