Breaking the Silence about Sexual Abuse in Detention
- Sexual abuse of detainees is illegal under state and federal law.
- The purpose of this pamphlet is to educate detainees, their friends and family members, and immigration advocates about sexual abuse in Immigration and Customs Enforcement (ICE) detention and detainees' rights to be free from such abuse.
- Federal and state law, as well as the Department of Homeland Security (DHS) Performance Based Detention Standards (PBDS), protect all individuals in government custody, including non-citizens and detainees, from sexual harassment and assault.
- Please note: This pamphlet does not contain legal advice and, if you have been assaulted, you should report the assault to someone you trust—like a friend, a family member, an immigration attorney, the police, and/or detention officials.
Federal and Texas state law prohibit the sexual abuse of detainees and provide criminal penalties for perpetrators and civil remedies for victims. Sexual abuse is also prohibited by ICE's agency policy as set forth in it its Performance-Based Detention Standards (PBDS).
- Staff (including medical providers), volunteers, contract personnel and/or other detainees may NOT:
- Make abusive or sexually offensive comments, gestures or threats towards a detainee.2
- Inappropriately touch a detainee's private areas, such as the genital area, buttocks, breasts, or inner thighs.3
- Engage in a "sexual act" with a detainee.4 This includes kissing, hugging, touching the genitals, oral sex, vaginal sex, and anal sex.
- Expose him or herself to a detainee with the intent of causing arousal.5
- Staff, including supervisors, must act to prevent sexual assault by other staff members or detainees, and [may not ignore or display deliberate indifference in preventing sexual assault by other staff members or detainees]6
- While the PBNDS themselves do not create a right to sue the government, the facility or the facility's private operator, if you are sexually assaulted you may have a claim that your rights were denied "under color of state law" and can sue on those grounds.7
1. PBNDS: Sexual Abuse and Assault Prevention and Intervention, P. 5 (December 2, 2008) available at http://www.ice.gov/detention-standards/2008/ (last visited on Aug. 5, 2011).
Permissible/Legal Physical Contact
ICE officers and facility staff may make contact with detainees in the course of conducting legitimate pat-downs, strip searches and cavity searches.
- Pat-down Searches
- An officer does not need any level of suspicion to conduct a pat-down search. This means that a detainee can be subjected to a pat-down search at almost any time or as part of a routine.8
- A pat-down search does not require the detainee to remove any clothing.9
- A detainee may still report being sexually assaulted during a pat-down search. Examples of sexual assault during a pat-down include if the guard touched or grabbed a detainee inappropriately or in a way not related to the search, or if the guard makes offensive or inappropriate comments during the search.
- Strip Searches and Cavity Searches
A guard may only perform a strip search or cavity search if her or she has a "reasonable suspicion" that the detainee is concealing contraband, and only where a less intrusive search would not be effective.10
Detainees are allowed to have a strip search performed by a staff member of the same gender. If it is not possible for a staff member of the same gender to perform the strip search, then at least two members must be present for the search and it must be done in private.11
Body cavity searches may only be conducted by authorized medical personnel. Detainees are allowed to have all opposite-gender staff excluded from the room during a body cavity search.12
If a detainee is searched during a transport, the detainee must be searched by an officer of the same sex unless the search is under "extreme circumstances" and there is no officer of the same sex present.13
The ICE PBNDS grant detainees who are sexually assaulted, harassed or abused, or fear they may be sexually assaulted, harassed, or abuse, a number of rights.
Every Detainee has the Right to Information about Sexual Assault
- ICE Information. Detainees have the right to have the content and procedures of ICE's Sexual Abuse and Assault Prevention and Intervention Standard communicated to the detainee in a language and manner that the detainee can understand.14
- Facility Information. Detainees have the right to be informed of the facility's Sexual Abuse and Assault Prevention and Intervention Program in both the orientation program and the detainee handbook.15
Detainees who have been sexually assaulted or fear sexual assault have the right to:
- Reporting. Detainees have the right to safely and confidentially report the assault or threat of assault. See section X for more detail.
- Housing. Be placed in the least restrictive housing that is available and appropriate to prevent sexual assault.16
- Protection. Immediately be protected from the assailant and referred for a medical examination if the detainee is sexually abused.17
- Transportation. Be transported according to any special safety concerns if the detainee is at high risk for sexual victimization.18
- Collection of Evidence. Be referred, when feasible, to a community facility for treatment and collection of evidence.19
- Reproductive Health Services.
- Pregnancy testing and care. Pregnancy testing and pregnancy management services that include routine prenatal care, addiction management, comprehensive counseling and assistance, nutrition, and postpartum follow-up, if necessary.20
- HIV Testing. Request HIV testing at any time during the detainee's confinement.21
- Security. Be provided same sex chaperones for medical treatment as appropriate or as requested.22
- Medical Records.
- Have the detainee's medical record be kept confidential and maintained separately from the detainee's detention records.23
- Receive a copy of the detainee's medical record, at no cost to the detainee, if the detainee completes the request form provided by the facility.24
16. PBNDS: Sexual Abuse and Assault Prevention and Intervention, P. 1, 7 (December 2, 2008) available at http://www.ice.gov/detention-standards/2008/ (last visited on Aug. 5, 2011).
Detainees' Right to Report Complaints or Threats of Sexual AssaultA detainee who has been assaulted has the right to:
- Safely and confidentially report the assault.
- Have all allegations of sexual abuse promptly and effectively reported and investigated. Detainees can not be punished for truthfully reporting abuse.25
- Report an incident of sexual misconduct to someone other than an immediate pointof-contact line officer (for example, the program coordinator or a mental health specialist).26
- Have the detainee's allegations immediately reported according to the facility's reporting procedures.27
- Have the detainee's identity and the facts of the report revealed only to individuals who need to know in order to make decisions concerning the detainee's welfare and investigate your complaint.28
- Understand the facility's grievance procedure and file an administrative grievance.
- Have the detainee's facility's grievance procedure communicated to the detainee in a language or manner the detainee can understand.29
- File a formal, informal, medical or emergency grievance according to the detainee's facility's grievance procedures.30
- File the grievance without being harassed, disciplined, punished or otherwise retaliated against.31
- Appeal the grievance to at least one level of higher authority if the detainee is unsatisfied with the outcome.32
25. PBNDS: Sexual Abuse and Assault Prevention and Intervention, P. 1 (December 2, 2008) available at http://www.ice.gov/detention-standards/2008/ (last visited on Aug. 5, 2011).
Where and How to Report Sexual Abuse
A detainee who has been sexually harassed, abused, assaulted or threatened with assault should tell someone the detainee trusts and report it to the appropriate authorities. Keep a record of everything that happened and include as much detail as possible—what happened, when, where, who was involved, who else might have been there.
Reporting Sexual Abuse
Please note that different facilities may have different procedures for reporting sexual abuse. You should check your facility's inmate handbook for the procedure. Regardless of your facility's reporting process, the PBNDS create certain guarantees when reporting sexual abuse.
Where to File Your Complaint
A detainee, his or her family member, or an advocate can file a complaint with one or all of these entities. Make sure to include as much detail as possible—who was involved, when it happened, where it took place. Always put the date on a complaint and always make a copy before submitting it.
- The local police. Sexual assault is a crime and the local police should investigate any reported incidents of sexual assault. A detainee should be able to call 911 from any phone in the facility without a charge.
- The Department of Homeland Security (DHS) Office of Inspector General (OIG) and Office of Civil Rights and Civil Liberties (OCRCL)
- Detainees, family members, and advocates can report abuse to DHS in several ways:
- DHS Office of Inspector General
- Call the DHS OIG hotline: 1-800-323-8603.
- In writing. File any complaint about staff misconduct, physical or sexual abuse, or civil rights violations by writing to:
- DHS Office of Inspector General
Department of Homeland Security
Attn: Office of the Inspector General
245 Murray Drive, SW, Building 410
Washington, DC 20528
- DHS Office of Civil Rights and Civil Liberties (OCRCL)
Office for Civil Rights and Civil Liberties
Review and Compliance
245 Murray Lane, SW
Building 410, Mail Stop #0190
Washington, D.C. 20528
- With the facility staff. As discussed above, you should review your inmate handbook or ask facility officials you feel comfortable with to find out your facility's reporting procedures.
- With your immigration attorney.
- If you do not have an immigration attorney, you may ask for list of pro bono immigration providers.
- If you are the victim of a crime, you may be eligible for temporary legal status and work eligibility for up to four (4) years. This is called a U-Visa.33 You should ask your immigration attorney whether you qualify for a U-Visa if you are the victim of sexual assault.
- With the ACLU
- Online: INSERT LINK WEB BASED INTAKE FORM
33. See Form I-918, Petition for U Nonimmigrant Status.
Sexual Assault Survivor Resources
Several organizations are dedicated to aiding victims of sexual assault. Even if they are unable to assist you in your case, they will likely be able to refer you to someone who can help you.
Immigration Consequences for Reporting Sexual Assault
You cannot be deported or threatened with deportation for reporting sexual assault, and it is against the law for any official to threaten you with retaliation for reporting a crime.