Legal Corner: “Illegal Sex” – CDC’s biased definition

by Cassie Pierson, Staff Attorney, Legal Services for Prisoners with Children
There are only two sections in Title 15 governing the sexual behavior of prisoners, Section 3007, which states that prisoners may not engage in illegal sexual acts and must avoid placing themselves in situations that would encourage illegal sexual acts and Section 3008, which defines the term “obscene” as it applies to photographs, drawings, and pictures.
So, what are “illegal sexual acts”? Well, in the case of prisoners who are precluded from the laws protecting activity between consenting adults, any act of a sexual nature could be considered an illegal sexual act.
On September 25, 2000, then Deputy Director of the Institutions Division of the CDC, David Tristan, issued a memorandum ornate woman symbolthat specifically addressed the issue of “inmate sexual misconduct.” While the memo was primarily dealing with the issue of misconduct directed towards institutional staff, there was one reference to “consensual sex acts between inmates.” In the memo, the following are considered illegal activities of a sexual nature: oral copulation, sodomy, and mutual masturbation. According to the memo, there was an increase in the number of incidents where inmates intentionally exposed their genitals to staff or they masturbated in front of staff. Other “overt acts” include: grabbing one’s crotch area, hip thrusts which mimic sexual acts, letters/notes written to staff members which describe the sex act or which have sexual innuendo or meaning, and the intentional or deliberate display of photos or drawings which depict sexual acts.
The primary reason for the memo, however, was to make it clear to prison staff that incidents of illegal sexual activity (notably indecent exposure) were to be reported in a way that reflects the everity of the offense so that the report is processed correctly. For example, the person reporting should not minimize the seriousness of the offense on the Rules Violation Report (RVR) by making it an Administrative violation rather than a Serious violation, should not reduce the RVR to a 128-A Custodial Counseling Chrono, and/or should not discourage the written documentation of an incident that some may consider as “common place behavior.”
Indecent exposure is considered a Division “D-5” offense according to Title 15, section 3323(f)(5), and can bring a credit forfeiture of 1-90 days. Those who have been previously convicted of an offense covered by Penal Code (PC) section 288 are subject to a felony conviction for committing an act of indecent exposure pursuant to PC 314 and CDC form 837 and Incident Reports should be prepared by institutional staff for referral to the local District Attorney.
For those prisoners who do not have any conviction under PC 288, a pattern of sexual misconduct is to be documented so that progressive disciplinary methods can be applied pursuant to Title 15, section 3312, Disciplinary Methods. The written documentation should contain explicit details of the misconduct so that the Chief Disciplinary Officer and/or the District Attorney can determine the appropriate disciplinary action.
Apparently the memo of 9/25/00 wasn’t clear enough because on 2/9/01 another memo was distributed to “clarify” the previous one. In the more recent memo, it is stated very clearly that, “[T]he charge of indecent exposure against an inmate who has not been previously convicted in a court under the provisions of California Penal Code (PC) Section 314(1) or PC Section 288, may not exceed a misdemeanor-level Division “D” offense.” (Emphasis in original). For those inmates who flagrantly violate Title 15 Section 3007 by continuously exposing themselves, the institution should “aggressively seek prosecution and conviction of the misdemeanor charge through the local prosecuting authority.” By actively and aggressively pursuing these misdemeanor charges, the institution can then refer subsequent violations to the DA as felony offenses. Do you find it as interesting as I do that there is nothing in either of these memos that even mentions sexual misconduct by staff directed toward prisoners?