Senate Holds First-Ever Hearing On Rape in Prison and Jails

On March 6, 2018, Jonas Caballero was on his way to the Brooklyn Detention Center’s barber shop when an officer ordered him against the wall for a pat frisk. Within full view of security cameras and a jail captain, he said, the officer grabbed his penis and testicles, squeezing them in his hand.

Federal law and city jail policy require that staff report all allegations of sexual assault to the agency’s investigation division. But when Caballero complained to the captain, he said, the captain called him a liar. Caballero told a female officer, who he said told him he should have enjoyed it because he is gay. He went to another female officer, who laughed and said that the officer thought his genitalia was contraband. 

Only after Caballero called 311 was he interviewed by investigators, who told him he’d hear from them shortly. 

New York City law requires that jail sexual abuse investigations be conducted and closed within 90 days. But Caballero waited, and waited, and waited. He filed multiple grievances and repeatedly called 311. Jail staff mockingly called him “Mr. 311” and “the Grievance King.” Despite policy prohibiting retaliation, he said, seven of his appointments with outside medical providers were canceled, and he was cavity searched on at least eight occasions. 

Meanwhile, he said, the officer who assaulted him was assigned to his housing unit. “I was afraid to come out [of my cell] for fear I would cross his path yet again,” Caballero said.

When he was transferred to state prison in late August, Caballero still had not heard from investigators. Finally, in April 2019, over 420 days after he had reported the assault (and a few days after this reporter published an article about it), Caballero received an answer: his claim had been classified as “unsubstantiated.”

The response noted that investigators had failed to retain the video evidence that Caballero says would have corroborated his complaint. “It was infuriating … though I wasn’t surprised,” Caballero told New York Focus. “If they couldn’t substantiate it within 90 days, they surely weren’t going to after 400.”

Now out of prison and a paralegal at the Abolitionist Law Center in Pittsburgh, Caballero testified last Thursday at a 6.5 hour Senate hearing—the first the chamber has ever held on the topic—on sexual assault in the state’s correctional facilities.

Reports of staff sexual abuse in the state’s prisons and jails are not new; they have continued largely unabated for decades, while the state prison prison system has been left to investigate itself against claims of staff misconduct. The lack of outside oversight, incarcerated people and watchdogs say, has contributed to a broken system for reporting abuse, frequent retaliation, and rare consequences for staff perpetrators.

The hearing marks the first time in recent memory that state lawmakers have expressed interest in exercising oversight on the issue. Senator Julia Salazar, chair of the Senate correction committee, told New York Focus that she and Senator Alessandra Biaggi, whose district includes Rikers Island, called the hearing after receiving complaints from incarcerated individuals, families, and correction officers about pervasive sexual violence that has largely gone unaddressed. 

“The way you end a culture of abuse, especially in our prisons and jails–is making sure that we recognize the problem is systemic and will only be changed if we address how the system is run,” Biaggi told New York Focus. “And the only way to understand that is by hearing from people inside of them and the people who run them.”

Rising Rates of Sexual Assault

In 2018, the year that Caballero was assaulted, New York City’s jail agency recorded 368 claims of sexual abuse, one for every 23 individuals jailed that year. Two years later, the jail population has been cut in half, but the number of sexual abuse claims dropped to only 284—one for every 16 people in jail.

New York’s much larger network of upstate prisons, meanwhile, has seen increasing numbers of sexual abuse claims, even as its incarcerated population has also declined. In 2018, the prison agency recorded 511 sexual abuse claims; the following year, that figure rose to 590. DOCCS has yet to release its 2020 numbers. 

The large majority of claims—nearly 80 percent in state prisons and 70 percent in New York City’s jails, in the most recent years for which data is available—are made against staff members, as opposed to other incarcerated people.

Those numbers are likely an undercount of sexual violence and harassment behind bars. Many incarcerated people do not report sexual abuse, particularly staff abuse, for fear of retaliation. Furthermore, those outside New York City have no access to 311 or an anonymous way to report.

Until recently, people in state prisons could call 777, an outside rape crisis hotline for incarcerated people, where a trained counselor could help navigate reporting. 

In March 2021, however, DOCCS changed its outside reporting mechanism to writing letters to the State Commission on Correction, a three-member commission tasked with monitoring state prisons. Incarcerated people can still call 777 to access outside rape crisis services, but service providers can no longer help file reports.

In her testimony, Chel Miller of the New York State Coalition Against Sexual Assault noted that the change prevents anonymous reporting, given that all outgoing mail must be labeled with a person’s name and state ID number. The Prison Rape Elimination Act requires that incarcerated people have a means of anonymously reporting sexual abuse. 

Given low literacy rates in prison, Miller added, the shift to a written system could deter some survivors from reporting abuse. Meanwhile, incarcerated survivors are also often wary of trying to contact crisis counselors because they know that DOCCS is recording calls made to 777, she said.

In a statement to New York Focus, a DOCCS spokesperson said that the agency shields 777 calls from being monitored, accessed, or listed on prisons’ call logs, though calls are recorded and are available to the prison’s investigations office if an incarcerated person consents to its review, or if a rape crisis center “reports misuse of the hotline” and authorizes investigators’ review.

Even with this shielding, there’s still the risk of being overheard. Phones are grouped closely together. In some prisons—such as Greene Correctional Facility, where Caballero was sent—there are individual phone booths, but conversations can still be heard through the glass.

Substantiations

Even when abuse is reported, few claims are substantiated. In 2018, city jail investigators substantiated only eight of the 368 claims of sexual abuse. In 2020, they substantiated 14 of 284 claims, which included just one substantiation of a claim against a staff member.

The rate is even lower in state prisons where, in 2019, investigators substantiated only 23 of 590 claims.

Acting DOCCS commissioner Anthony Annucci, whom Governor Kathy Hochul recently nominated to become permanent commissioner, had originally been scheduled to testify at last week’s Senate hearing. Two days earlier, he had been grilled by members of the Senate Crime Victims, Crime, and Correction and Finance committees about deaths in custody, increasing violence, the lack of substantiations of complaints about assaults and sexual violence, and other problems since he became acting leader in May 2013. The following day, the Senate opted not to vote on his nomination; that same afternoon, DOCCS informed senators that Annucci would be submitting written testimony for the sexual assault hearing. Four DOCCS officials would be on hand to answer senators’ questions.  

Pressed by senators to explain the low rate of substantiations, Darren Miller, chief of DOCCS’s Office of Special Investigations (OSI), said that investigators substantiate a case based on preponderance of evidence—or that the evidence points to a 51 percent chance that the incident occurred.

If a claim is substantiated, DOCCS may still not be able to terminate employment. DOCCS’s contract with the New York State Correctional Officer and Police Benevolent Association requires that such cases go to arbitration. 

Daniel Martuscello, DOCCS’s executive deputy commissioner, acknowledged that there have been instances in which investigators substantiated a claim of sexual abuse by a staff member, but the arbitrator, appointed by the governor's Office of Labor Relations, decided that DOCCS had not met the burden of proof and allowed the person to return to work. 

In a 2017 letter to then-governor Andrew Cuomo, the Prisoners’ Rights Project of the Legal Aid Society described the outcome of arbitration for an officer accused of sexually assaulting an incarcerated woman in the middle of the night. The arbitrator decided not to credit the woman’s testimony, even though it included the intimate detail that the officer trimmed his pubic hair. Under its contract with the correction officers’ union, DOCCS was required to reinstate the officer at his former position of guarding women in their housing areas, alone and at night. The officer raped another woman, for which he was criminally prosecuted and arrested.

No outside agency or organization oversees sexual assault complaints. While the Prison Rape Elimination Act requires periodic federal audits, auditors do not oversee the investigations as they happen.

Oversight and accountability

In 2018, DOCCS launched a pilot program equipping some prison staff with body cameras. Each of the three women’s prisons, as well as several men’s prisons, received 150 body cameras. 

Body cameras do not remain on for officers’ entire eight-hour shifts. Martuscello explained that those who are issued body cameras are required to turn them on when interacting with incarcerated people, while on the walkway during movement, or when responding to an incident. At other times, cameras are turned off to conserve the battery. Footage is stored from 30 to 90 days, depending on the age of the system. 

When a person reports sexual assault, DOCCS policy requires a period of retaliation monitoring throughout the course of the investigation and for four months after its conclusion. But advocates, including formerly incarcerated people, say that retaliation is the norm. Miller of the New York State Coalition Against Sexual Abuse noted that service providers who report concerns about their incarcerated clients are subjected to retaliation, such as having their emails and calls ignored or having appointments with clients cancelled or rescheduled without notice or reason. 

Sophie Gebresalassie, staff attorney at the Prisoners’ Rights Project of the Legal Aid Society, recommended that staff be required to keep their body-worn cameras on for their entire shift—and be disciplined if they fail to do so.

Furthermore, when DOCCS’s contract with the corrections officers’ union ends next spring, Gebresalassie urged that the next contract not permit arbitrators the ability to return staff to their former position if DOCCS has substantiated claims of sexual abuse. 

A 2019 law may allow some incarcerated people to anonymously report sexual abuse. Under the law, employees can report workplace sexual harassment to the state’s Division of Human Rights. Senator Biaggi questioned DOCCS officials about whether incarcerated people employed by Corcraft, DOCCS’s prison industry program, were able to contact the Division. DOCCS told New York Focus that it is still researching this question.  

Another proposed bill would allow the state’s attorney general to investigate staff misconduct, including sexual abuse and misconduct. It would also create an ombudsman, a governmental oversight agency independent of DOCCS, with the power to monitor prisons, investigate complaints, and report to the governor, legislators and general public. The bill, introduced in January 2021, has remained in the Senate correction committee.

This week, Salazar is introducing a bill to remove investigating sexual violence entirely from DOCCS and assign it to the inspector general’s office.

“I don’t think that the department should be overseeing investigations of their own employees,” she said.“We really need an individual entity to be doing the investigating.”